R v R T G [2004] VSCA 89

Court of Appeal (Vic)|2004-05-06|Before: BATT, CHERNOV and EAMES, JJ.A.

Criminal Law - Procedure - Application for extension of time for leave to appeal against sentence - Refusal by Registrar to extend time - Failure by applicant to give notice of election - Application for extension of time not prosecuted some 12 months - Delay due to administrative shortcomings of Victoria Legal Aid - Satisfactory explanation for delay - Substantive application has sound prospects of success - Interests of justice require grant of extension of time - Crimes Act 1958, ss. 572(1), 582A(1), Supreme Court (Criminal Procedure) Rules 1998, rr.22.03, 2.08

On 8 August 2002 the applicant, who is now aged 35, pleaded guilty to five counts of incest committed by him on 22 and 23 February 2001 against his then 17 year old daughter. The maximum penalty for incest is 25 years' imprisonment. The applicant has no relevant prior convictions. After the conduct of a plea in mitigation made on his behalf, the applicant was sentenced on 9 August 2002 to a total effective sentence of nine years' imprisonment and ordered to serve a period of seven years' imprisonment before being eligible for parole. The applicant, who wishes to appeal against the sentence, has failed to instigate the appeal process within the 14 day period prescribed by s.572(1) of the Crimes Act 1958. Consequently, if he is to proceed, he will need to obtain an extension of time within which to give notice of his application for leave to appeal and, because he has also failed to give notice of election, as is required by Chapter VI of the Supreme Court (Criminal Procedure) Rules 1988 ("the Rules"), that the application for extension of time be heard by this Court, he will need to obtain an order dispensing with the requirements of the relevant Rule. Hence, the applicant now seeks such orders and if an extension of time is granted, he seeks leave to appeal against the sentence. The ground on which the applicant seeks to challenge the sentence is that it is manifestly excessive and, in particular, that the sentencing judge gave insufficient weight to his plea of guilty as evidence of his remorse, the age of the victim and the applicant's lack of prior convictions.

Before dealing with the circumstances pertaining to the applications and the arguments in relation to them, it is convenient to mention briefly the terms of the relevant statutory provisions. The first, as I have noted, is s.572(1) of the Crimes Act, which essentially provides that a notice of application for leave to appeal must be filed no later than 14 days after sentence, although this time limit may be extended by this Court. So far as is relevant, the power to extend may be exercised, in the first instance, by the Registrar - s.582A(1) of the Crimes Act. If the Registrar refuses the application, the applicant may elect to have this Court determine the application for extension of time - Rule 2.08(2). Rule 2.08(4) prescribes that an election must be made within ten days of receipt by the applicant of notification of the Registrar's refusal. Non-compliance with this requirement, however, shall not prevent the prosecution of an application for leave to appeal if the Court considers that it is in the interests of justice that the failure should be waived or remedied and the matter proceed - Rule 2.02. In any event, Rule 2.03 enables this Court to dispense with compliance with that requirement.

I now turn to the circumstances on which the applicant relies to explain the failure to file the notice of application for leave to appeal within the prescribed time and to prosecute his application for extension of time. At the time of the hearing of the plea in mitigation his solicitor was Meagan Keogh from the Morwell office of Victoria Legal Aid ("VLA"). She had temporarily replaced the solicitor who had acted for the applicant, Jeanette McDonough who, after her return to the Morwell office, continued to act for him. The affidavit material filed on the applicant's behalf shows that, shortly after he was sentenced, he conferred with counsel and Ms Keogh concerning the prospect of successfully appealing against the sentence. In the result, the applicant instructed Ms Keogh to institute appeal proceedings, but it seems that she decided not to take that step until she received advice from counsel on the merits of any such appeal. On 16 August 2002 Ms Keogh left the Morwell office without having received counsel's advice and without having filed a notice of application for leave to appeal. Apparently after Ms McDonough returned to that office she did not become aware of this situation until after the expiration of the relevant 14 day period. She then arranged for an application for an extension of time to be filed on 1 October 2002 with a supporting affidavit sworn by her. Ms McDonough also filed a notice of application for leave to appeal as is required by Rule 2.06. The documents were filed notwithstanding that counsel's advice had not been received. The advice, favouring an application for leave to appeal, was in fact given on 8 October 2002.

On 4 February 2003 the Registrar dismissed the application for extension of time and, as is required by the Rules, forwarded to the applicant, who was then at the Ararat prison, the notice of refusal of the application and a blank election form for execution by him if he desired this Court to determine his application for extension of time. Like documents were sent to the Melbourne office of VLA, but not to its Morwell office, so that they were not received, in the first instance, by

Ms McDonough. It seems that when the applicant received the documents he mistakenly returned to the Registrar, not the election form, but merely an acknowledgment of his receipt of those documents. Thus, no notice of election to have this Court determine the applicant's application for extension of time was ever filed by the applicant as is required by the Rules.

With his customary frankness Mr Robinson, for the applicant, told us that the affidavit material before the Registrar was inadequate to have justified granting an extension of time and, therefore, it was not surprising that the Registrar had refused to grant the application. Subsequent to this decision, however, further affidavits were filed on behalf of the applicant, between August and November 2003, which clarified somewhat the circumstances relating to the failure to progress the appeal and the application for extension of time.

It seems that the applicant wrote to Ms McDonough in about mid 2003 enquiring as to the progress of his appeal. He did so because he had been told shortly after he was sentenced that his appeal would be heard in approximately 12 months. Not having heard of its progress, and given that well over 12 months had passed, he decided to contact his solicitor. The material before us shows that after this communication steps were taken by VLA to have the application for extension of time heard by this Court (as if the applicant had made an election). Thus, although ignorant of the Registrar's above decision, Ms McDonough wrote to the Melbourne office of VLA on 4 June and 16 July 2003 inquiring as to the status of the applicant's application for assistance for his appeal. This correspondence, it would seem, prompted Mr McLoughlin, an in-house advocate employed by VLA with special responsibility for appeal matters, to contact the applicant in August 2003 concerning his proposed appeal. The applicant told Mr McLoughlin that, as far as he knew, the appeal was on foot and that he wanted it to proceed.

It would also seem that, at or about the time when the last of the affidavits was filed, the Registry took steps to have the application for extension of time listed for hearing before three judges of this Court. Several days before the matter came on for hearing before us, the parties were advised that the Court would be prepared to hear, at the same time, the application for extension of time and the application for leave to appeal. The parties were agreeable to that course and supplemented the material that had been filed and produced outlines of submissions accordingly. At the outset of the hearing before us it was accepted by the applicant that he would also have to obtain a dispensation with compliance with the requirements of the Rules regarding the filing of an election.

Turning first to the application for extension of time, it seems plain enough that the applicable principles are stated in cases such as R. v. O'Keefe [1] and

R. v. Davis. [2] There is no need to restate all the principles here. It is sufficient to note that the applicant must at least provide a reasonably satisfactory account of the failure to comply with the time limits. It is also recognised that, generally, the longer the time which has elapsed since the expiration of the period, the more exceptional are the circumstances that have to be put before the court. In the end, however, the ultimate question is whether the justice of the situation requires the grant of leave. [3] In a case such as the present this will involve an analysis of the merits of the proposed appeal to determine if it is likely to succeed.

I consider that a satisfactory explanation has been provided for the failure to comply with the relevant time limits, including the requirement of Rule 2.08. As Mr Robinson has pointed out:

(a) The applicant himself has not been dilatory nor has he acted in any way so as to indicate that he did not intend to press the appeal.

(b) The delay between the sentence and the application to the Registrar for extension of time to lodge the notice of application for leave to appeal was relatively short and was due to administrative inaction on the part of VLA.

(c) Similarly, the delay between the refusal of the extension of time by the Registrar and the application to this Court to determine the application arose from the inadvertent failure by the Melbourne office of VLA to deal with the notification of refusal by the Registrar and by the applicant's erroneous understanding of what were the documents that had been sent to him from the office of the Registrar.

Thus, in essence, the delay was brought about by the administrative shortcomings in the office of VLA and the misunderstanding by the applicant of the relevance of the documents that were sent to him and of the situation as to the progress, or lack of progress, in the appeal process. I hasten to add that I make no relevant criticism of VLA given its stretched funding, the difficulty in communicating between the applicant in Ararat prison and the VLA office at Morwell, the different locations of the offices where the applicant's matters were handled by VLA and the change in staff of VLA that was apparently necessitated at the relevant time.

The more difficult question is whether the proposed appeal is likely to succeed. The determination of this issue will largely, if not wholly, resolve the question whether the justice of the situation requires that the extension of time be granted and whether leave to appeal should be granted. For these purposes, it is necessary to set out briefly the circumstances pertaining to the offending. In the main, I summarise the facts and circumstances that seem to have been accepted by his Honour in his sentencing remarks. The applicant and the victim's mother were married when they were 18 years of age. That marriage, however, broke up after a few months. Thereafter, the applicant looked after his daughter as a single father until she was of school age when she moved to live with her mother in Brisbane. Save for the period 1998 to 1999 when, following difficulties with her mother, the daughter resided with the applicant and his present family before returning to her mother, the daughter lived continuously with her mother.

I interpolate here some matters that are referable to the applicant's circumstances. He was born in McLaren Vale in South Australia. He was one of seven children. Most of his siblings live in Queensland or northern New South Wales and seem to be engaged in useful occupations. The applicant grew up in Brisbane. His parents separated when he was young and he left school at the end of Year 8 and worked in various occupations throughout Australia. He met the victim's mother in Brisbane when they were both 16 or 17 years of age. She became pregnant shortly thereafter and, as I have said, they were married when they were aged 18, although the marriage was short lived principally because, according to the applicant, she had an affair with his best friend. Although the applicant seems to have been a good worker and generally had good relationships with people, he smoked marijuana most of his life and started drinking alcohol at the age of 15 and eventually became an alcoholic and addicted to the drug. In approximately 1993, he met his present de facto wife. They have two children and eventually they moved to Cowes where the applicant lived at the time of the offending.

Shortly before the occasion of the offending, the daughter again had a falling out with her mother, from whom she apparently stole some property, or so it is said. Having nowhere to live and no food, she went to Centrelink which eventually persuaded her to stay with her father, notwithstanding her initial reluctance to do so because he was an alcoholic. Thus, on 21 February 2001, she came to stay at the applicant's premises pending her court appearance in relation to the alleged offences concerning her mother's property. On the night that the victim arrived at the applicant's home, his de facto wife and three children were away in South Australia. On the following day, 22 February 2001, the applicant consumed a very large quantity of alcohol, including beer and spirits, and took tablets that had been prescribed for a friend, possibly in respect of a schizophrenic condition. He also smoked marijuana. It seems that the victim also smoked some marijuana that evening when they discussed certain "sexual misdealings" in relation to the daughter which she had brought to the applicant's notice. According to her, the applicant then "rambled on" about his love for, and his infatuation with, her claiming that he wanted her to be his lover for the next two weeks until his family returned. In the context of these claims of sexual desire for his daughter, the applicant pushed her towards the bed in his bedroom and when she began to cry he told her to "stop acting like a baby". He then pinned her body down on the bed, took off her clothes, licked her vagina and then, without using a condom, put his penis inside it. Throughout this episode the victim was crying and said later that the experience made her feel sick. These circumstances were the subject of count 1. The applicant then rolled his daughter on to her stomach and again put his penis inside her vagina. This was the basis of count 2. The next morning, as soon as the daughter woke up, the applicant began kissing her and touching her breasts and her vagina. He then rolled her on her back and again inserted his penis into her vagina. That was the subject of count 3.

Later that day the daughter told the applicant that what he did was wrong, that he was her father that he could get into trouble for that conduct. The applicant, however, dismissed these complaints as being based on "just the way society [saw] it and that it [was] okay". The victim, nevertheless, said that she did not want him to do these things to her. The applicant thereupon became angry, picked up his daughter and carried her into the bedroom and threw her on to the bed. She was crying and tried to fight him off. She was yelling at him and saying he could not do that to her and that he would go to gaol. It seems that they then returned to the couch in the living room where the applicant pushed his daughter down and took off most of her clothes and then put on a pornographic video. In the course of that he put his finger into her vagina. This digital penetration was the subject of count 4.

Shortly after that episode, a person whom they both knew called at the house and after he departed the applicant again tried to touch his daughter while she sought to push him away. He then grabbed her and made her walk to his bedroom, notwithstanding her physical resistance. The daughter said that he became aggressive in his behaviour and, eventually, put his penis into her anus. She said that she was screaming out that it was hurting, but the applicant just said: "No, it's not". The daughter kept asking the applicant to stop but he just kept saying "I will in a bit". This offending was the basis of count 5.

On the following day the daughter complained about the applicant's conduct towards her to people who lived nearby and, as a result, the applicant was interviewed by the police. As the learned sentencing judge observed, although the applicant said that he had only a partial recollection of what occurred during the two days in question, he acknowledged to the police that he had sex with his daughter as she described, but he denied forcing her to do this. In his record of interview he acknowledged that he knew that what he did was wrong, but said it was something that he could not help "and we were pissed and ra ra ra". Later, he said it was something that he wished had never happened, "but it happened".

The applicant gave evidence at the hearing of the plea in mitigation during which he claimed that he did not force himself on to his daughter and that she did not fight him, although he said he remembered her crying at one stage. His Honour unequivocally rejected any claim that the applicant's daughter consented to his offending conduct against her and it is plain enough that this conclusion was well open to the judge. His Honour also had before him the report of David Bruce, a forensic psychologist, that was tendered on the applicant's behalf, which made it apparent that he was an alcoholic at the time of the offending, but who, at the time of the interview, was clear thinking and had been alcohol free for a significant period and who had expressed "great remorse" about his offending conduct. Mr Bruce concluded: "This seems to be an isolated episode in the life of a man who must have been a caring father at one time and has tried to look after his daughter as well as he could for two extended periods of her life. On the third attempt his judgment was damaged by chronic, severe alcohol abuse ... I do not see [the applicant] as any danger to the community and [consider that] the likelihood of any reoffending [is] minimal." the applicant's de facto wife also gave evidence at the hearing of the plea in mitigation. She told his Honour that, notwithstanding his offending and his previous drinking, she still loved him and that she forgave him and intended to stand by the applicant while he was in prison and to assist him when he was released. She explained that since the offending the applicant drank only the occasional light beer and smoked marijuana rarely.

The learned sentencing judge accepted that alcohol, and perhaps also marijuana, played a large part, at least on the first night, in clouding the applicant's judgment and unleashing his baser instincts, but it was less clear, his Honour doubted however, whether his behaviour on the following day was similarly precipitated. Whilst having reservations about some of the assertions made by the daughter in her victim impact statement, his Honour considered it to be sufficiently credible to point to her having experienced very considerable emotional turmoil as a result of the applicant's offending behaviour. But the judge also recognised, as mitigating factors, the applicant's admissions to the police when he was interviewed, his early plea of guilty and the lack of relevant prior convictions. His Honour also noted that the applicant's present wife was standing by him. The judge accepted that the applicant's offending and the punishment that must be imposed on him will lead to suffering by him and his family. His Honour said that the applicant was genuinely remorseful, that he had much reduced his intake of alcohol and marijuana and that he had good prospects of rehabilitation. While noting that specific deterrence may not be of material importance here, the judge considered that general deterrence was an important sentencing principle in this case. Notwithstanding these mitigating factors, said the judge, a substantial period of imprisonment had to be imposed. In the result his Honour sentenced the applicant as follows:

His Honour's sentencing remarks and the return of prisoners show that his Honour effectively cumulated on count 1 one year from each of the sentences imposed on counts 3 and 4 and two years of the sentence imposed on count 5, thereby producing a total effective sentence of nine years' imprisonment. His Honour then ordered a non-parole period of seven years.

I consider that the sentences on at least counts 4 and 5 are outside the relevant range and because of that, and because of excessive cumulation, the total effective sentence is also manifestly excessive. It is trite that the question whether a sentence is manifestly excessive does not admit of much argument. The sentencing judge has the difficult task of fixing a sentence that reflects the seriousness of the offence and the circumstances of the offending and of the offender, including mitigating factors, as well as the applicable sentencing principles. There is no doubt that for the reasons given by Winneke, P. in R. v. Wakime[4] incest is a terrible crime at biological and social levels. It strikes at the heart of family life and usually involves a gross breach of trust. Thus, it ordinarily attracts condign punishment. The gravity of the offence has been recognised by Parliament which has fixed, as I have said, a maximum custodial sentence of 25 years' imprisonment for the crime. In the present case the offending was very serious, the applicant forcing himself on his young daughter against her will in circumstances where she came to him, in the first instance, seeking refuge. His offending caused her distress at the time and no doubt this distress is ongoing. In particular, he caused the victim pain when he had anal intercourse with her. Notwithstanding her complaint of pain arising from this offending, he persisted in his criminal conduct. His behaviour on that occasion bordered on brutality. There are other aggravating aspects of the offending to which reference has already been made and it is relevant to bear in mind that the principle of general deterrence is of great importance to the sentencing disposition, as is the need for the court to express its denunciation of this conduct.

The five incidents, which are the subject of the five counts however, can be properly reduced to three for sentencing purposes and his Honour accepted that the offending constituted an isolated event in the applicant's otherwise crime-free life. As I have said his Honour also accepted that the applicant has shown genuine remorse and has admitted the offending to the police and has pleaded guilty at the earliest opportunity. Moreover, the applicant realised that he needed to limit his intake of alcohol and marijuana and has taken positive steps to achieve that. Importantly, his Honour accepted that the applicant is unlikely to reoffend, has sound prospects of rehabilitation and will be able to return to a family unit when he is released from prison.

It is true, as I have said, that general deterrence and condemnation of this crime by the courts are very important sentencing principles in this case, but it is also important to note that specific deterrence and the protection of the community are not of upper most significance here. The crime was, as I have said, a terrible one. Nevertheless, the mitigating circumstances here are quite powerful and they must be given proper weight by being reflected in the sentence. I consider that this has not occurred in this case as is manifested in the fact that at least the sentences imposed on counts 4 and 5 and to the total effective sentence are outside the relevant range.

23 In light of my above conclusions and the period of re-sentencing that I propose below, I consider that the justice of the situation requires that the operation of the Rules concerning the applicant's election be dispensed with and that his application for extension of time be granted notwithstanding the long period that has lapsed since sentence. In my view, given the situation here, it would be unjust if the extension of time sought by the applicant were denied to him merely because of the length of time that has elapsed since the sentence and because there was, on one view, a dilatory attitude from the applicant and those representing him towards progressing the application. It is also apparent from what I have said that, in my view, leave to appeal against the sentence should be given. Accordingly, if other members of the Court agree, I would propose to re-sentence the applicant, as a serious offender, to the following terms of imprisonment:

I would order that one year of the sentence imposed on count 1 be served cumulatively on the sentence imposed on count 5 and that two and a half years of the sentence imposed on count 3 and the whole of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 5 thereby making a total effective sentence of imprisonment of 7 years. I would fix a non-parole of period of four and a half years.

I agree with the orders proposed by Chernov, J.A. and with his reasons.

Considering this course to be in the best interests of the parties and to assist in the efficient and expeditious disposition of the business of the Court, we heard argument this morning on both the application for an extension of time for applying for leave to appeal and the application for leave to appeal itself without thereby in any way indicating a view on the outcome of either application.

Besides having to apply for an extension of time for applying for leave, the applicant has not complied with Rule 2.08(4) of Chapter VI of the Rules of Court and requires a dispensation from it. However, in the circumstances of this case, that relief will be granted if an extension of time is granted and refused if an extension is refused.

28 The last day for giving notice of application for leave to appeal against sentence was 23 August 2002. It became clear from argument that the applicant's side was responsible for the delay or inactivity from that date until 1 October 2002 and for the delay or inactivity from 11 February 2003 until at least 12 November 2003. Principles applicable to the determination of an application for extension of time for appealing (or for leave to appeal out of time by the Director) in a criminal matter will be found stated in cases such as R. v. O'Keefe[5] and R. v. Davis[6]. However, since the decision on an application for an extension of time under s.572(1) of the Crimes Act 1958 [7] (made applicable here by an informal election under s.582A(2)) (or leave under s.567A(3)) is a discretionary determination, the principles cannot be erected into binding rules: Director of Public Prosecutions v. Craib; Director of Public Prosecutions v. Coad[8]. Cases such as O'Keefe and Davis show a strict approach to delay, but the ultimate question is whether justice requires the grant of leave[9]. Having regard to the fact that the delays and mistakes were those of the applicant's solicitors and that, if at fault at all, he was only so in a very minor degree, and also to the fact fairly pointed out by Mr McArdle, of the absence of any prejudice to the respondent, I consider that justice requires the grant of leave.

I turn then to the application for leave to appeal. Incest is a very serious offence, as is shown by the maximum penalty of 25 years fixed by Parliament. It is an odious offence for societal and familial reasons, as explained in R. v. Wakime [10] and R. v. Ware [11]and must attract condign punishment. Important sentencing purposes for it are general deterrence, specific deterrence and denunciation of the conduct, though specific deterrence was in this case much reduced in significance. It is true that the applicant could call in aid the mitigatory facts that he pleaded guilty early, that he was remorseful, that he had no relevant prior convictions, that his prospects of rehabilitation were good, that he was unlikely to commit this offence again and that he had the support of his de facto wife. On the other hand, the offending was not limited to one incident or even one day. Indeed, there were three episodes. Further, the sentencing judge was entitled to find, as he did, that the victim did not consent to his penetrations of her [12]and that, rather, he forced himself upon her and also that his conduct, and particularly the anal penetration, caused her considerable pain. Moreover, the effect of Part 2A of the Sentencing Act 1991 and Schedule 1 to that Act was that the applicant was to be sentenced on counts 3, 4 and 5 as a serious offender and that the offences the subject of those counts were "relevant offences" under Part 2A. Significantly, s.6E, found in Part 2A, provides that a sentence imposed on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on an uncompleted sentence, including one imposed at the same time. Although his Honour did not mention Part 2A in his sentencing remarks, the scheme of his sentences and cumulation directions appear to show that that was how he proceeded, having been reminded of the provisions at the conclusion of the plea.

The sole ground of the proposed application for leave to appeal is that the sentence is manifestly excessive, the particulars of which are that insufficient weight was given to the early plea, to evidence of remorse, to the age of the victim, to the applicant's lack of prior convictions and to the applicant's having good prospects of rehabilitation. Now, sentencing is inherently and par excellence a discretionary exercise, so that there is no one correct sentence. Rather, there is a range of sentences open to a sentencing judge in the exercise of a sound discretionary determination. Appellate courts must, I consider, accord to sentencing judges a proper measure of autonomy in the exercise of that discretion.

31 Count 4 concerns a digital penetration of the vagina which is the first of two offences forming the third episode. I have come to the conclusion that in the circumstances of this case the sentence of five years on that count and the cumulation of one year of that sentence upon the base sentence chosen by his Honour were both manifestly excessive [13] The conclusion I have expressed has the consequence that the non-parole period was also manifestly excessive. Save as mentioned, I do not consider that his Honour's sentences or cumulation directions were manifestly excessive having regard to the seriousness of the offence and the offending and the maximum penalty provided. Nevertheless, the whole sentencing discretion is reopened for me by reason of my conclusion concerning count 4 and the cumulation relating to it.

I agree in the re-sentencing proposed by Chernov, J.A.

Subject to anything counsel may say, in particular about the cumulation/concurrency directions, the order of the court is as follows:

1. The Court dispenses retrospectively with compliance on the part of the applicant with paragraph (4) of Rule 2.08 of Chapter VI of the Rules of Court.

2. The time in which the applicant may give notice of his application for leave to appeal against the sentence imposed on him in the County Court at Melbourne on 9 August 2002 is extended to this day, 6 May 2004.

3. Notice of application for leave to appeal against sentence is taken to have been given instanter in the terms of the notice dated 30 September 2002 and filed on 1 October 2002.

4. That application is heard instanter and is allowed.

5. The appeal is taken to be instituted and heard instanter and is allowed.

6. The sentence imposed on the appellant in the County Court at Melbourne on 9 August 2002 is quashed and in place of it.

The Court sentences the appellant to the following terms of imprisonment, namely -

The court directs, first, that one year of the sentence imposed on count 1 be served cumulatively upon the sentence imposed on count 5 and, secondly, that two years and six months of the sentence imposed on count 3 and the whole of the sentence imposed on count 4 be served concurrently with the sentence imposed on count 5, so that the total effective sentence is imprisonment for 7 years. The court fixes four years and six months as the period during which the appellant is not eligible for release on parole.

7. The Court directs that the fact that the appellant was sentenced by it for the offences the subject of counts 3, 4 and 5 as a serious offender be entered in the records of the court.

8. The order for the taking of a forensic sample is affirmed.

9. The Court declares that the period of 638 days calculated to and including this day, 6 May 2004, is to be reckoned as already served under the sentence now passed and directs that the fact that the declaration was made and its details be noted in the records of the court.

[1] [1979] VicRp 1; [1979] V.R. 1 at 5 (where the principles stated by Gowans, J. in R. v. John Edward Darby (unreported, 2 May 1975) are set out)

[2] [2003] VSCA 173; [2003] 6 V.R. 538 at 534 per Winneke, P.

[3] D.P.P. v. Craib and Coad [2003] 3 V.R. 388 at 398-399 per Batt, J.A.

[4] [1997] 1 V.R. 224 at 244. See also R. v. Dent, unreported, 14 March 1991 N.S.W.C.A. at 6 per Lee, J. and R. v. Fisher (1989) 40 A.Crim.R. 442 at 446 per Maxwell, J.

[5] [1979 V.R. at 5, incorporating the statement of Gowans, J. for the Full Court in R. v. John Edward Darby (unreported, 2 May 1975).

[7] Made applicable here by an informal election under s.582A(2).

[12] Consent of course is no defence (s.44(5) of the Crimes Act 1958), but it might bear on moral culpability.

[13] Strictly, in the case of the last three counts, the direction of his Honour should have been that the non-cumulative balance of the term be served concurrently, and it would have been preferable to cumulate upon the sentence for the most serious offence.

Supreme Court (Criminal Procedure) Rules 1998

Supreme Court (Criminal Procedure) Rules 1988

Supreme Court (Criminal Procedure) Rules 1998

Supreme Court (Criminal Procedure) Rules 1988

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