R v Scholes [2007] VSCA 303

Court of Appeal (Vic)|2007-12-14|Before: MAXWELL P, BUCHANAN JA and WHELAN AJA

CRIMINAL LAW - Sentence - Guilty plea to armed robbery (3 counts), theft (7 counts), common assault (1 count), aggravated burglary (1 count), destruction or damage of property (3 counts), conspiracy to commit an offence (1 count), reckless driving (3 counts), burglary (1 count), attempted theft (1 count), failure to answer bail (1 count), driving while disqualified (2 counts) and unlawful assault (1 count) - Whether judge erred by ordering excessive cumulation of sentences - Totality - Fresh evidence - Circumstances of incarceration - Further psychological report - Cancellation of parole - Further material save as to parole cancellation not admissible - Appeal dismissed.

2 In my opinion, the appeal should be dismissed for the reasons stated by Whelan AJA.

**3 This is an appeal against sentences passed upon the appellant in the County Court on 19 May 2006. The appellant had pleaded guilty to seven counts of theft, three counts of armed robbery, one count of common assault, one count of aggravated burglary, three counts of destroying or damaging property, one count of conspiracy to commit an offence (a burglary), three counts of reckless conduct endangering persons, one count of burglary, and one count of attempted theft. In all, there were 21 counts on the presentment. In addition, the trial judge sentenced the appellant on four summary offences, being two offences of driving whilst disqualified, an offence of failing to answer bail, and an offence of unlawful assault. The appellant had also pleaded guilty to those summary offences.

4 The trial judge heard a plea on behalf of the appellant on 6 April 2006 and heard further submissions on 19 May 2006 prior to passing sentence. The appellant was sentenced to terms of imprisonment on each of the various charges and directions were made as to cumulation as a consequence of which the total effective sentence was 13 years 3 months' imprisonment. The trial judge fixed a non-parole period of 10 years.

5 The trial judge's reasons for sentence are full and detailed. In those reasons the trial judge summarises the circumstances relating to each of the various offences. Save for an error concerning one aspect of one of the reckless conduct offences, it is not suggested that the trial judge inaccurately summarised the circumstances of the various offences. I will not repeat the summary which the trial judge gave and which occupied 22 paragraphs of the reasons for sentence. In the light of the matters put on appeal it will be necessary to briefly refer to the circumstances of the offences in order to attempt to identify the separate "episodes" involved, but before turning to that I need to say something of the appellant's prior history and his personal circumstances.**

Appellant's personal circumstances and prior history

**6 The appellant is now 35 years of age. There is nothing remarkable about his family background. He does not complain of any mistreatment within the family. He had twin brothers, Brett and Craig. Brett died as a result of the appellant's culpable driving in an incident to which I will refer below. The appellant has suffered from depression. He has used drugs. He was trained as a ceramic tiler. His serious problems with the law began in 1990 when he was 18 years old.

7 Prior to September 1990 the appellant had convictions for exceeding the speed limit, exceeding .05, unlawful assault, and wilful damage. On 17 September 1990 the appellant, whilst driving at an excessive speed, hit and killed a pedestrian. He accelerated away from the accident. The appellant was charged with culpable driving causing death, failing to stop a motor vehicle after an accident, and failing to render assistance after an accident. He was sentenced in the County Court on 25 March 1994 to a total effective sentence of 4 years imprisonment with a non-parole period of 30 months. His licence was cancelled and he was disqualified for a period of five years.

8 On 26 April 1994 the appellant was convicted of three charges of unlawful assault and charges of resisting a police office in the lawful execution of duty, damaging property with intent, being an unlicensed driver, and failing to stop a motor vehicle after an accident. He did not receive a custodial sentence on any of those charges.

9 The appellant was released on parole on 16 December 1996.

10 On 10 May 1997 the appellant lost control of a motor vehicle he was driving. There was a collision in which his brother and his girlfriend were both killed. The appellant was at the time driving whilst disqualified, with a blood alcohol content of .078. Immediately after the accident the appellant dragged his dying girlfriend into the driver's seat in an attempt to escape responsibility.

11 On 27 March 1998 in the County Court he was sentenced to a total effective sentence of 6 years' imprisonment with a non-parole period of 4 years on two counts of culpable driving and other offences arising out of the May 1997 collision. He was disqualified from obtaining a licence for 10 years. After a Director's appeal to the Supreme Court the total effective sentence was increased to 8 years with a non-parole period of 6 years.

12 On 26 July 1999 the appellant was convicted of offences of refusing a breath test, driving whilst disqualified, and exceeding the speed limit, and was sentenced to a term of imprisonment of 42 days to be undertaken concurrently with the sentence he was then undergoing.

13 The appellant was paroled on 25 June 2003. His parole was due to expire on 17 March 2006.

14 On 9 December 2003 the appellant was convicted of offences of aggravated burglary and being drunk in a public place. He was sentenced to a period of 2 months' imprisonment which was wholly suspended.

15 The offences which are the subject of this appeal occurred between August 2004 and July 2005.**

Circumstances of the offences, the sentences imposed, and the cumulation directions

16 The matter most pressed by counsel for the appellant during submissions on the appeal was that the trial judge's approach to cumulation had resulted in a total sentence that was manifestly excessive, that was crushing, and which revealed that proper regard had not been paid to principle of totality. Whilst I will not give a detailed description of the circumstances of the offences, in the light of the way the argument was put on appeal, it is necessary to say something about how the offences might be categorised into episodes.[1]

**17 Counts 1 to 3 on the presentment concern events on 17 and 18 August 2004. The appellant and an accomplice committed an armed robbery on a Minimart at Tecoma. The accomplice had a firearm. A car had been stolen that was used in the armed robbery and items were stolen from that car. The co-offender was sentenced on a separate occasion by the same judge as the judge who sentenced the appellant on 19 May 2006. The accomplice was sentenced to a term of imprisonment of 5 years and a non-parole period of 3 years was fixed.

18 The appellant was sentenced to 12 months' imprisonment for theft of the car, 3 months' imprisonment for theft of the goods from the car, and 4 years 6 months' imprisonment for the armed robbery. Directions as to cumulation were made such that 3 months of the sentence for theft of the car and 2 years of the sentence on the armed robbery were directed to be cumulative with the sentence on another armed robbery, which occurred in the second episode to which I will refer in a moment. Thus, the total of the portions of the sentences on these offences which were ordered to be cumulative is 2 years 3 months.**

**19 Counts 4 and 5 relate to an armed robbery at the Ringwood East Post Office carried out by the appellant alone on 19 August 2004. Prior to the armed robbery he had stolen registration plates. In the armed robbery the appellant used a firearm. Amongst other things, he threatened to shoot an elderly woman who was a customer in the post office. He stole a large amount of money, $7,155. Victim impact statements filed by staff and patrons in the post office reveal the serious effect that this behaviour had upon those who were the innocent victims of it.

20 The appellant was sentenced to 9 months' imprisonment for theft of the registration plates and 6 years' imprisonment for the armed robbery. This armed robbery sentence was used by the trial judge as the head sentence in relation to all of the directions concerning cumulation which were made on other offences. No direction for cumulation was made in relation to the offence of theft of the registration plates and that sentence is accordingly concurrent.**

**21 On 26 September 2004 the appellant carried out another armed robbery at an IGA supermarket in North Ringwood. This time he was armed with a knife. He again acted alone. He stole $860 and two bottles of alcohol. After the armed robbery he was followed by a member of the public into a parking area. He assaulted that member of the public by threatening him with a knife. The member of the public managed to disarm the appellant who nevertheless escaped.

22 For the armed robbery the trial judge sentenced the appellant to 4 years' imprisonment (count 6) and for the assault the appellant was sentenced to 2 years' imprisonment (count 7). The trial judge directed that 1 year of the term of imprisonment on the armed robbery be cumulative with the head sentence and that 3 months of the sentence on the assault be cumulative with the head sentence. Thus, the total of the portions of the sentences on these offences which were ordered to be cumulative is 1 year 3 months.**

**23 On 3 April 2005 the appellant went to premises at 34 Witham Drive, Coldstream armed with an axe handle and a knife. He smashed his way inside and proceeded to ransack the premises. He caused substantial damage to the premises themselves (count 9) and he smashed and stole goods that were inside. Counts 8 to 13 on the presentment concern this behaviour, being aggravated burglary (count 8), three counts of criminal damage (counts 9, 10 and 11) and two counts of theft (counts 12 and 13).

24 In addition, the summary offence of unlawful assault had a connection with this episode. After leaving the premises the appellant approached a motorist demanding a lift in circumstances where the knife was on display. He told the motorist it would be better for him if he complied. The motorist wound up his window and drove away.

25 The trial judge sentenced the appellant to 3 years' imprisonment for the aggravated burglary (count 8), 2 years' imprisonment on one of the counts of criminal damage (count 9), 6 months' imprisonment on each of the two other counts of criminal damage (counts 10 and 11), and 6 months' imprisonment on the two thefts (counts 12 and 13). For the unlawful assault summary offence the trial judge sentenced him to 6 months' imprisonment. The trial judge directed that 6 months of the sentence on the aggravated burglary offence be cumulative, and in relation to one of the criminal damage counts (count 9), the trial judge directed that 3 months be cumulative. On the unlawful assault summary offence the trial judge directed that 1 month be cumulative. Thus, the total of the portions of the sentences which were ordered to be cumulative in relation to the Coldstream episode is 10 months.**

26 On 3 April 2005, after the Coldstream episode, the appellant was arrested and was bailed. He failed to appear when required on 24 June 2005. The summary offence of failing to answer bail concerned that failure. The trial judge sentenced the appellant to 6 months' imprisonment on that charge and directed that 1 month be cumulative with the head sentence.

27 Between 27 June 2005 and 5 July 2005 the appellant again stole registration plates (count 14). The trial judge sentenced the appellant to 9 months' imprisonment on this charge and directed that 3 months be cumulative with the head sentence.

The conspiracy and the first escape police episode

**28 The appellant and an accomplice conspired together to burgle premises where they believed they would find cash and drugs. As a result of telephone intercepts the police were aware of this plan and attempted to intercept the appellant as he approached the premises on two separate occasions on 3 July 2005. On each occasion the appellant drove in a reckless manner to escape police. The two occasions were approximately 30 minutes apart. This episode resulted in the offences the subject of counts 15, 16 and 17, being conspiracy to commit an offence, and two counts of reckless driving. This episode also involved one of the summary offences of driving whilst disqualified.

29 It is necessary to refer to some aspects of the reckless driving. The first incident occurred at approximately 9.30 pm. The accused's vehicle was driven directly at a police car and then down several residential streets at a speed reaching 130 kilometres per hour whilst on the wrong side of the road. Pursuit was called off by the police because of the danger involved. The appellant returned to the area and a second incident occurred at approximately 10 pm. The appellant avoided police by driving at very high speed on the wrong side of the road directly into the path of oncoming traffic causing several vehicles to take evasive action. The police pursuit was again discontinued because of the danger posed by the accused's driving.

30 On the conspiracy charge the trial judge sentenced the appellant to 2 years' imprisonment. The trial judge sentenced the appellant to 3 years' imprisonment on each of the reckless driving charges and to 12 months' imprisonment on the driving whilst disqualified summary offence. The trial judge directed that 3 months of the sentence on the conspiracy charge, 6 months of each of the sentences on the reckless driving charges, and 2 months of the sentence on the driving whilst disqualified charge be cumulative with the head sentence. Thus, the total of the portions of the sentences which were ordered to be cumulative is 1 year 5 months in relation to this episode.**

31 Counts 18 and 19 on the presentment concerned a burglary at premises at Waverley Park and an attempt by the appellant to steal a plasma screen television. The trial judge sentenced the appellant to 18 months' imprisonment on the burglary and 6 months' imprisonment for attempted theft. The trial judge directed that 3 months of the burglary sentence be cumulative with the head sentence.

**32 On 4 July 2005 there was another incident where the appellant drove in a reckless manner in order to escape the police. This resulted in the charge of reckless driving which is count 20 on the presentment. As was the case on the earlier occasions there was a high speed pursuit of the appellant by the police. The appellant's vehicle reached speeds as high as 133 kilometres per hour and he again drove on the wrong side of the road. A collision was narrowly averted at the intersection of Stud Road and David Street, Dandenong.

33 The trial judge sentenced the appellant to 3 years' imprisonment on this count. The second summary offence of driving whilst disqualified concerned this episode. The trial judge sentenced the appellant to 12 months' imprisonment on that charge. The trial judge directed that 6 months of the term on the reckless driving charge be cumulative and 2 months of the term on the driving whilst disqualified charge be cumulative. Accordingly, the total of the portions of the sentences which were ordered to be cumulative in relation to this episode is 8 months**

34 Between 4 July and 5 July 2005 the appellant again stole registration plates (Count 21). The trial judge sentenced the appellant to 6 months' imprisonment on this charge and directed that 3 months be cumulative with the head sentence.

35 On the plea before the trial judge the appellant's counsel who appeared on 6 April 2006, and his solicitor who appeared on 19 May 2006, conceded that the sentences to be imposed must involve serving "a significantly long jail sentence". Counsel for the appellant submitted that that sentence must be "tempered" by the following factors:

The early guilty pleas to the armed robbery charges.
The cooperation the appellant had given in relation to his offences after his arrest.
The remorse which the appellant felt for the offences, and which he expressed in his record of interview.
The fact that the appellant was a person capable of rehabilitation, as was demonstrated by the contents of psychological reports which were tendered on the plea.
The appellant's circumstances in prison. The appellant had been stabbed on 21 January 2006. It was submitted that as a consequence steps would have to be taken for his protection which would mean his imprisonment would be more onerous than would otherwise have been the case. As at the dates of the plea hearings and the sentence, the appellant had not been classified as a protected prisoner. A letter from the Sentence Management Unit of Corrections Victoria concerning the appellant's placement options was tendered on the plea.
It was necessary to have regard to the totality of the sentence and to not impose a sentence which was crushing.
The long periods of incarceration which the appellant had experienced throughout his adult life and the appellant's addiction to drugs provided an explanation, although not an excuse, for his offences.

36 The trial judge accepted that all of these matters were mitigating factors. She also specifically referred to a psychological report which indicated that the appellant was still "undergoing a significant psychological effect" as a consequence of the stabbing incident. The report to which the sentencing judge referred described hyper vigilance and heightened symptoms of anxiety. The report stated that this caused the appellant's time in prison to be "difficult and anxiety provoking". The trial judge said that she accepted those conclusions and that that situation would continue indefinitely. She said that she had taken that into account.

37 I will address the various grounds of appeal in the order in which they were addressed in the appellant's written submissions rather than in the order in which they appear in the full statements of grounds filed on 18 December 2006.

Ground 6: The learned sentencing judge erred by ordering excessive cumulation

**38 It was submitted that the trial judge's sentencing discretion miscarried because the trial judge did not start with the presumption of concurrency. I do not accept that her Honour's reasons reveal any such error.

39 Specific complaint was made concerning the cumulation of 6 months in relation to each sentence on the reckless driving offences on 3 July 2005 "despite those offences being 30 minutes apart". I find nothing objectionable about this approach. There were two separate driving incidents. There were two separate occasions when police and members of the public were subjected to very considerable risk.

40 Specific complaint was also made in relation to cumulation concerning the summary offences. Again, each of the summary offences, whilst related to episodes of offences which were counts on the presentment, concern circumstances which relevantly justified cumulation in my view.

41 When the various offences are divided into episodes, as I have done earlier, it seems to me that the cumulation directions made by the trial judge thoughtfully and appropriately reflect the circumstances of the various offences.

42 It emerged in the course of submissions that the appellant's true complaint as to the cumulation directions was not that the particular directions were unwarranted, but that the trial judge had failed to ensure that the total effective sentence accorded with the principle of totality and was not crushing.[2]**

Ground 2: The total effective sentence and non-parole period are crushing

43 When regard is had to the trial judge's summary of the offences, and when the offences are considered by reference to the episodes I have set out, the total effective sentence of 13 years 3 months and the non-parole period of 10 years were justified by the total criminality involved.[3] His conduct demanded a lengthy sentence, as his counsel recognised on the plea. The sentence was not such as connotes the destruction of any reasonable expectation of a useful life after release.[4] I reject this ground. I will return to this issue in the context of additional material which was not before the sentencing judge and which is now sought to be relied upon.

Ground 5: The learned sentencing judge erred by failing, in consideration of totality, to have any regard or adequate regard to the appellant's unexpired parole period

**44 The sentencing judge was not entitled, in considering totality or on any other ground, to have regard to the possibility that the Adult Parole Board would take action concerning the appellant's unexpired parole period.[5]

45 The appellant's position concerning his parole was also the subject of the application concerning fresh evidence to which I will return.**

Ground 3: The learned sentencing judge erred by rejecting the appellant's explanation to the psychologist Ms Millar for his involvement in counts 3 and 5

Ground 4: The learned sentencing judge erred by mistaking the facts in respect of counts 16 and 17 by finding the appellant was driving without lights

47 It does appear that the trial judge made a mistake in that she attributed the absence of headlights to count 17 when it ought to have been attributed to count 20. Given the circumstances of the appellant's driving on each occasion, the mistake is inconsequential in my view. Counsel for the appellant indicated to the Court on the appeal that he did not propose to address any submission to this ground. I reject it.

Ground 7: There has been a miscarriage of justice by reason of fresh evidence that the appellant was permitted to lead

**48 When the matter was first heard in this Court, the appellant sought to rely on an affidavit sworn by him on 29 September 2006 concerning the circumstances of his incarceration.

49 The trial judge in the sentencing remarks had accepted that the appellant would encounter difficulties in serving his prison term over and above what would normally be expected. The trial judge had specifically referred to the stabbing on 21 January 2006 and to the steps taken in consequence of that incident. At the time of the sentence the appellant was not classified as a protected prisoner, but the trial judge said that it would be necessary to carefully monitor the situation and also said that concerns for the appellant's safety would "contribute to difficulties that you will experience whilst undergoing your sentence over and above what you would otherwise expect to experience".

50 In the course of the plea the trial judge had said it would be a matter of "grave concern" if it were to transpire that the appellant was to be the subject of "lock down long term". The appellant's affidavit sworn 29 September 2006 said that he was "locked up for 23 hours a day" and that he was in "solitary confinement for 22 to 23 hours a day".

51 The affidavit of 29 September 2006 was inadequate for a number of reasons. The appellant was given the opportunity to supplement that affidavit. At this point, I simply observe that no error by the trial judge was suggested in relation to this ground. The issue now raised by further material which has been filed and which is sought to be relied upon is a separate matter to which I will return.**

Ground 1: The total effective sentence, the non-parole period and the individual sentences on counts 5, 7, 9, 16 and 17 and the summary offence of failing to appear on bail are manifestly excessive

**52 On the hearing of the appeal the appellant's counsel abandoned the complaints in relation to individual sentences other than the sentence on count 7 and the sentence on the summary offence of failing to appear. The appellant's counsel maintained the submission that the total effective sentence and the non-parole period were manifestly excessive.

53 I have previously referred to the circumstances of count 7, which concerned the confrontation between the appellant and a member of the public in a car park after the appellant had carried out the armed robbery on the IGA supermarket. The sentence of 2 years' imprisonment on this count which involved the appellant threatening an intervening member of the public with a knife was not, in the circumstances, manifestly excessive. In any event, only 3 months of that sentence was directed to be cumulative and, as was submitted by counsel for the Crown, even if the sentence itself was excessive, in these circumstances the complaint, given the very modest cumulation, becomes merely a structural argument.

54 In relation to the offence of failing to answer bail, the sentence of 6 months' imprisonment was not, in the circumstances here, manifestly excessive. The appellant was bailed on the same day as, and as a consequence of, the offences involved in the Coldstream episode. He was to appear on 24 June 2005. He failed to appear, and it was immediately after that failure, while he was still on bail, that he embarked on a further series of offences, involving the 3 counts of reckless driving amongst other things, which terminated only upon his re-arrest on 5 July 2005. Again, it is to be noted that only 1 month of the sentence on the failure to answer bail count was directed to be cumulative.

55 Leaving aside for the moment the additional material sought to be relied upon, neither the individual sentences nor the total effective sentence and the non-parole period were manifestly excessive in my view.**

Ground 8: The licence disqualification period is manifestly excessive

56 Three people are dead as a consequence of driving offences committed by the appellant before he began this series of offences. In this series of offences the appellant drove whilst disqualified in a manner which could well have resulted in further tragedy on three occasions. The licence disqualification of 15 years was in my view fully justified and was not manifestly excessive.

57 The appeal was first listed and heard on Thursday 26 July 2007. At that stage there was the affidavit of the appellant sworn 29 September 2006, to which I have earlier referred, and an affidavit of his solicitor sworn 25 July 2007, which substantially set out the appellant's beliefs about submissions made by the Crown in relation to the circumstances of his incarceration. The opportunity was sought to file further material.

**58 On 7 September 2007 two further affidavits were filed, one by the appellant sworn 6 September 2007, and one by his solicitor sworn 7 September 2007. Further submissions were heard on Wednesday 28 November 2007.

59 The solicitor's affidavit produced various documents. Correspondence with the Adult Parole Board of Victoria was produced which states that the appellant's earliest parole eligibility date is 1 July 2015 and that his "end date" is recorded as being 14 June 2021. A report by a psychologist, Dr Paul Grech, was produced (and an amending note was subsequently received).

60 The affidavit of the appellant's solicitor also produced a detailed response from the General Manager-Sentence Management Unit of Corrections Victoria to a letter from the appellant's solicitors asking a number of questions concerning the circumstances of the appellant's incarceration. The Corrections Victoria letter and the enclosed material reveals the following:**

(a) The appellant had a maximum (A2) security rating upon reception on 12 July 2005. The stabbing incident occurred on 21 January 2006 at Port Philip Prison. His placements since the date of the stabbing have been "reflective of his security level (maximum), safety and segregation - protection needs".

(b) It is not the case that the appellant has been in management units or other forms of protective custody since January 2006. He has spent periods in mainstream units at the Melbourne Assessment Prison since that time.

(c) The appellant is presently in the Banksia Unit at Barwon Prison. The Corrections Victoria letter says: "Mr Scholes' placement in Banksia Management Unit was seen at the time as the most suitable maximum security placement, given the range of prisoners from whom he required segregation ... A contributing factor was Mr Scholes' behaviour". He is now out of his cell 4 hours a day on average. He has a job as a unit billet. The Corrections Victoria letter also states: "Mr. Scholes did rejoin the mainstream prison population, but his behaviour and prison offences required his separation into a management unit pending investigation, and further impacted his limited placement options."

(d) The appellant is not classified as a protection prisoner. There are a significant number of prisoners from whom he is required to be separated. He is in Banksia at the present time both for his protection and at his request.

61 The Corrections Victoria letter enclosed documentation concerning placement review and decision making discussions involving the appellant between 7 February 2006 and 11 July 2007. Relevantly those records reveal:

(a) The circumstances of the stabbing in January 2006 are a matter of controversy.

(b) There is or was a disputed Governor's disciplinary hearing matter concerning possession of a drug implement, which the appellant claims was an implement for smoking tobacco.

(c) The possibility of movement to Loddon Prison has been raised with the appellant a number of times but he has indicated that he wishes to remain in the Banksia Unit at Barwon Prison. On 20 February 2007 the following is recorded: "It is noted that Grant [a reference to the appellant] is IDU [intravenous drug use] neutral and as such he was told that the Panel are considering a Loddon placement. Grant asked the Panel whether he could remain for a further two months, stating that he settled and commenced employment as the laundry billet, he also stated that in this time his appeal will be heard and he would have also completed the quit program. Grant also wishes to remain so that he can get onto the interferon program and sort out his methadone. The Panel queried his motive to remain given previous discussions whereby he wanted to be cleared, Grant just reiterated that he is settled, enjoys Banksia and wants to sort out these issues first". The issue of moving to Loddon was raised again with him in March and in April and he again expressed the wish to delay the move. In July 2007 the following is recorded: "He is not in a hurry to move to Loddon, as he is productively working with the senior psychologist and wants to ensure that his methadone regime continues to be effective ... He added that he thought that he would be ready to progress to Loddon towards the end of the year".

**62 The circumstances of a prisoner's incarceration are a factor relevant to sentence.[6] The extent to which circumstances such as protective custody or custody in a management unit is to be taken into account in the prisoner's favour depends upon the source of any need for protection[7] and, of course, upon the particular circumstances and likely duration of the relevant arrangements.

63 It is clear from the material that has now been filed that the circumstances of the appellant's custody arrangements - the reasons for them, their nature, and their prospective duration - are complex. He has experienced periods of significant restriction. He is not in solitary confinement 22 to 23 hours a day. His present arrangements are less restrictive than that, and he has indicated a preference to remain where he is.

64 As indicated earlier, the sentencing judge said when sentencing the appellant that he would encounter difficulties in serving his prison term over and above those that would normally be expected. The judge referred to the stabbing incident, referred to the fact it would be necessary to carefully monitor the situation, and said that concerns for the appellant's safety would contribute to the difficulties he experienced.

65 In my view the detailed material which has now been filed confirms the accuracy and the validity of the sentencing judge's observations.**

66 Dr Grech is a clinical psychologist. He saw the appellant on 27 June 2007. According to his report, he did so at the request of the appellant's solicitor "for psychological review...in relation to a County Court Appeal against his sentence in relation to armed robberies and police pursuits". He is not the senior psychologist with whom the appellant is apparently productively working as referred to in the Corrections Victoria material. In his report of 27 June 2007 he expressed the following opinion:

"It appeared to be the case that Mr Scholes was suffering from clinical depression at the time of his assessment with the examiner, notwithstanding his treatment with antidepressant, antipsychotic and other medications. There were also significant residual signs of post traumatic stress disorder (PTSD) emanating from his stabbing in January, 2006, as reflected in his heightened levels of anxiety, recurrent and intrusive distressing recollections of the event, including dreams (although these have been reducing in their frequency) and intense psychological distress and psychological reactivity experienced by him whenever he is exposed to internal or external cues that have symbolised or resembled aspects of the traumatic event. There was evidence of some degree of avoidance of situations associated with the trauma, although his general isolation has been imposed upon rather than chosen by him and there were ample indications of persistent symptoms of increased arousal, including difficulty staying asleep, irritability, difficulty concentrating, hyper vigilance and an exaggerated startle response."

**67 He went on to refer to specific problems identified in testing and to express the opinion that he would require ongoing clinical psychological and psychiatric care and management "to treat his post traumatic disorder and its associated depressive sequelae".

68 The sentencing judge had before her two reports by a psychologist, Ms Sarah Miller. The judge made specific reference to the most recent report, a report of 16 May 2006, in her sentencing remarks. That report also referred to the appellant suffering depressive symptoms and to the psychological effects of the stabbing incident. The report of 16 May 2006 includes the following passage:**

"Mr Scholes has a history of low self esteem and depressive symptoms; however, these problems have been exacerbated because of the grief and loss associated with his brother and ex-girlfriend's deaths. In addition, the impact of his involvement in their deaths has never been addressed.

He also suffers from symptoms of trauma due to a recent stabbing incident at Port Philip Prison. As a result Mr Scholes experiences hyper vigilance, a heightened startle response, and increased anxiety and paranoia about his safety. His time in prison is affected by these psychological symptoms."

**69 As I indicated earlier the sentencing judge accepted those conclusions, accepted that those conditions would continue indefinitely, and said that she had taken them into account.

70 In my view Dr Grech's report deals with the same subject matter as was dealt with by the psychologist reports before the sentencing judge. It is in substance a reconsideration of the same issues, reaching conclusions which, in my view, are not markedly different from those reached in the reports before the sentencing judge and which the sentencing judge took into account.**

**71 The principles governing the admission of fresh evidence on an appeal against sentence were summarised in R v Nguyen,[8] and that summary was repeated in relation to material not dissimilar to the material sought to be relied upon here (concerning issues other than the parole cancellation) in R v Jones.[9] Relevantly for present purposes, the new evidence must relate to events which have occurred since the sentence was imposed and must demonstrate the true significance of facts in existence at the time of the sentence. Evidence is not admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive.

72 The material here concerning the circumstances of incarceration, insofar as it can be said to relate to events which have occurred since sentence at all, does not relevantly demonstrate the true significance of any additional burden suffered by the appellant in relation to his incarceration. Indeed, in my view the new material confirms and validates the observations which the sentencing judge made. My conclusion is that the new material on that issue is not admissible.

73 Similarly, in my view the new material concerning the appellant's psychological condition is not relevantly distinguishable from that which was ruled inadmissible in R v Jones[10]. Like the material there, the evidence upon which the appellant now seeks to rely does no more than show the working out of matters that were, in general terms, recognised and taken into account by the sentencing judge at the time of sentence.[11]

74 In any event, the new material insofar as it deals with issues other than the parole cancellation does not, in my view, demonstrate that any different sentence should be substituted to avoid a miscarriage of justice.**

**75 The appellant was sentenced in the County Court on 19 May 2006. A certificate from the Adult Parole Board of Victoria was tendered before the sentencing judge. That document certified that the appellant was granted parole on 2 July 2003 and that the period of parole was 2 years 8 months and 15 days. The certificate also indicated that the Board had been advised that Mr Scholes had an outstanding Court matter and would await the results of that matter prior to making any further decisions. As indicated earlier, the sentencing judge was not entitled to have regard to the possibility that the Adult Parole Board would take action concerning the appellant's unexpired parole period.

76 After sentence the appellant's parole was cancelled.

77 The further material now filed includes a letter from the Adult Parole Board of Victoria which indicates that Mr Scholes' earliest parole eligibility date is 1 July 2015 and that his "end date" is recorded as being 14 June 2021. These dates are consistent with the cancellation of his parole and the addition of the period of his parole, 2 years 8 months 15 days, to the total effective sentence of 13 years 3 months (allowing for the 318 days served as at 19 May 2006), as is required by s 16(3B) of the Sentencing Act 1991. Section 16(3B) provides that every term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment must, unless otherwise directed by the Court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody on cancellation of the parole order.

78 Whilst cancellation of the parole increases the total term of imprisonment, it does not alter his earliest parole eligibility date, as is confirmed by the Adult Parole Board letter exhibited to the further material. Mr Scholes' earliest parole eligibility date is said in that letter to be 1 July 2015, which is consistent with the minimum term fixed by the sentencing judge of 10 years (allowing for the 318 days served as at 19 May 2006). The cancellation of parole does not extend the earliest eligibility date because the applicant is eligible for parole in relation to the period of parole, 2 years 8 months 15 days, which has been cancelled.

79 The evidence of the cancellation of the appellant's parole and of the consequences of that cancellation are fresh evidence which this Court should receive. The evidence establishes the true significance of the appellant's breach of parole.[12]

80 In the light of this fresh evidence this Court must evaluate the overall criminality involved in all the offences for which the appellant is undergoing sentence and ensure that there is appropriate relativity between the totality of the criminality and the totality of the effective lengths of sentences imposed, including the sentence which derives from the breach of parole.[13]

81 In supplementary submissions filed on behalf of the appellant leave was sought to amend the grounds of appeal so as to specifically refer to the effect of the cancellation of parole since sentence was passed. The Crown consented to leave being granted.

82 In considering totality in this context the Court must take into account the obvious intention of s 16(3B) of the Sentencing Act that, where an offender commits a crime whilst on parole, in the ordinary course of events he will be required to serve the balance of the earlier sentence.[14]

83 The cancellation of the appellant's parole means 2 years 8 months and 15 days, being the unserved portion of his sentences for the culpable driving and other offences are added to his total effective sentence. The effect is his total sentence becomes almost 16 years' imprisonment. If he serves his full sentence he will not be released until he is 49 years 7 months. The cancellation of his parole does not affect the earliest date upon which he will become eligible for parole. On 1 July 2015, his earliest parole eligibility date, he will be 43 years 8 months.

84 Having regard to the circumstances of these offences, and the circumstances of the earlier offences, it does not seem to me that this outcome infringes the principle of totality or creates a position where there is inappropriate relativity between the total criminality and the totality of the effective lengths of the sentences imposed, nor, in the circumstances here, is the total sentence crushing in my view.

85 The new material insofar as it concerns the issue of cancellation of parole is admissible, but in my view it does not alter the outcome.

86 The appeal against sentence should be dismissed.**

[1] DPP v Grabovac [1998] 1 VR 664, 680.

[2] R v Flavall [2006] VSCA 32 at [7].

[3] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 307-8.

[6] R v Bangard [2005] VSCA 313; (2005) 13 VR 146, 149.

[7] R v ZMN [2002] VSCA 140; (2002) 4 VR 537, 543. See now R v Males [2007] VSCA 302.

[11] R v McLachlan [2004] VSCA 87, quoted in R v Jones [2006] VSCA 266 at [29].

[12] R v Alashkar; R v Tayar; R v Tayar [2007] VSCA 182.

At a glance

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Judgment (121 paragraphs)

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Cases Cited (3)