R v Tasker [2003] VSCA 190

7. I agree with Eames, J.A. that Scott Tasker's application for leave to appeal against sentence be granted and that the appeals of both Ian and Scott Tasker be allowed and the appellants re-sentenced in the manner proposed, and for the reasons given, by his Honour.

12. Scott Tasker brings an application for leave to appeal against sentences imposed by a judge of the County Court on 11 December 2002 and his brother Ian Tasker brings an appeal against sentences imposed the same day on a joint presentment with nine counts, six of which were common to both brothers. Ian Tasker was granted leave to appeal against sentence by a judge of this court but the application for leave by Scott Tasker was adjourned to be considered by the court that dealt with his brother's appeal. At the time of sentence Scott Tasker was aged 31 years and Ian Tasker was aged 32 years.

15. Counts 1 and 2 were counts of theft. At some time before March 2002, Scott Tasker was approached by one Mario Theodoulou who invited Tasker to steal a motorboat for him. Theodoulou said he would pay up to $5,000 and gave details of the particular kind of boat that he wanted and advised Tasker of the locations of two such boats. Scott Tasker recruited his brother, Ian Tasker, and a friend, Anne Currie, to assist him in this exercise. The brothers inspected the scene where the two boats were located and concluded that those two boats would be too difficult to steal, but Scott Tasker had located a third boat which was on a trailer and parked on the

roadway outside a house. They resolved to steal that boat and in order to do so they first stole a 1981 model Volvo sedan which had a towbar (Count 1). On the night of 21 and 22 March 2002 they drove the Volvo to the boat, hooked it up and drove away (Count 2). The boat was delivered to Theodoulou, who paid $5,000. The boat was valued at $28,000 and the insurers paid out $21,569 to the owner.

19. As to counts 3 (burglary) and 4 (theft)[1], a week after the first boat was stolen Theodoulou told Scott Tasker that it had proved to be unsatisfactory and he wanted him to obtain another, for which he would pay a further $2,000. Scott Tasker conducted a recognisance and found a boat which was in a driveway/garage of the premises of its owner, behind gates. On the evening of 12 April 2002, Scott and Ian Tasker drove the stolen Volvo to the address, entered the garage, hooked up the trailer and drove off with the boat. They were then paid the $2,000. The value of this boat was $32,000 and it was eventually recovered at the home of Theodoulou. Various accessories and personal items of the owner were not recovered.

22. Counts 5 (burglary) and 6 (theft) were committed about three weeks later. On the afternoon of 17 April 2002, the two brothers entered a garage at premises at Wheelers Hill where they stole tools and other items and they then broke into the house where further items were stolen. In all, goods to a value of $17,000 were stolen.

25. Count 7 was an offence of handling stolen goods brought against Scott Tasker only. In April 2002 he agreed with a friend to sell a stolen television and video recorder in return for which he received a commission of $50.00. He sold the items to Theodoulou for $450.00.

28. Counts 8 (theft) and 9 (damaging property) concern Ian Tasker only. On 29 June 2002, Ian Tasker went to the home of Anne Currie, who believed he was then under the influence of drugs. He demanded that she give him her telephone, which she did, and while there he kicked through the glass front door of her home.

31. Both offenders were arrested and interviewed on 11 July 2002 and made full admissions.

34. The five counts of theft were brought pursuant to s. 74 of the Crimes Act 1958 and carried a maximum sentence of 10 years' imprisonment. The two counts of burglary were brought pursuant to s. 76 of the Crimes Act and carried a maximum penalty of 10 years' imprisonment. The count of handling stolen goods was brought pursuant to s. 88 of the Crimes Act and carried a maximum sentence of 15 years' imprisonment and the count of damaging property was brought pursuant to s. 197(1) of the Crimes Act and carried a maximum of 10 years' imprisonment.

37. On 11 December 2002 the appellant and applicant were sentenced as follows:

Count 1 (Theft) Both offenders were sentenced to 12 months' imprisonment;

Count 2 (Theft) Both were sentenced to 18 months' imprisonment, 6 months of which was ordered to be served cumulatively with the sentence on count 1;

Count 3 (Burglary) Both offenders were sentenced to 6 months' imprisonment, which sentence was made wholly cumulative on the sentences on counts 1 and 2;

Count 4 (Theft) Both offenders were sentenced to 18 months' imprisonment, 6 months of which was made cumulative on sentences imposed on counts 1, 2, and 3;

Count 5 (Burglary) Both offenders were sentenced to 18 months' imprisonment, 12 months of which was ordered to be served cumulatively on the sentences imposed on counts 1 to 4;

Count 6 (Theft) Both offenders were sentenced to 18 months' imprisonment, 6 months of the sentence to be served cumulatively on the sentences imposed on counts 1 to 5.

Count 7 Scott Tasker was sentenced to 6 months' imprisonment on the count of handling stolen property.

Count 8 On the count of theft relating to the mobile phone Ian Tasker was sentenced to 3 months' imprisonment.

Count 9 On the count of damaging property Ian Tasker was sentenced to 7 days' imprisonment.

49. The sentences on counts 7, 8 and 9 were to be served concurrently with all other relevant sentences.

52. The total effective sentence for both offenders was 4 years and the learned sentencing judge imposed a minimum term of 3 years before they became eligible for parole. Pre-sentence detention of one day was declared pursuant to s.18 of the Sentencing Act 1991.

55. The grounds of appeal for Ian Tasker are as follows:

(1) The sentence imposed is manifestly excessive (2) The learned sentencing judge erred in failing to impose different and lesser individual and total sentences upon the appellant than those imposed upon his co-offender having regard to his different antecedents. (3) The learned sentencing judge erred in making orders as to cumulation of sentences which resulted in a total effect sentence which was manifestly excessive. (4) The learned sentencing judge erred in:

(a) finding that because of the appellant's previous criminal record, his plea of guilty could not be taken to indicate much remorse;

(b) limiting the value of the appellant's guilty plea to a willingness to facilitate the course of justice;

(c) failing to place sufficient weight upon the appellant's guilty plea; and

(d) the application of the sentencing discretion to the appellant's guilty plea.

62. The grounds of appeal for the applicant, Scott Tasker, are as follows:

(1) The sentence imposed is manifestly excessive. (2) The learned sentencing judge erred in making orders as to cumulation of sentences which resulted in a total effective sentence which was manifestly excessive. (3) The learned sentencing judge erred in:

(a) finding that because of the applicant's previous criminal record, his plea of guilty could not be taken to indicate remorse;

(b) limiting the value of the applicant's guilty plea to willingness to facilitate the course of justice;

(c) failing to place sufficient weight upon the applicant's guilty plea; and

(d) the application of the sentencing discretion to the applicant's guilty plea.

Pleas of guilty

69. I deal first with the joint complaint that the brothers were denied the full value of their pleas of guilty by the judge's remarks concerning their prior convictions.

72. In sentencing the two offenders, the learned sentencing judge said:

"You co-operated fully with the police and made full written confessions. You both say you are maturing and are less drug dependent. You are entitled to credit for your plea of guilty. It is hard, given your records, to take that plea as indicating any particular remorse, but you are nevertheless entitled to credit for it, as indicating in the words of the High Court `a willingness to facilitate the course of justice'."

76. The phrase "facilitate the course of justice" was taken by his Honour from the joint judgment of Gaudron, Gummow and Callinan, JJ. in Cameron v. The Queen[2] Mr Tehan submitted that there were two errors in the approach taken by his Honour.

79. In the first place, it was submitted that he confined the relevance of the plea of guilty to the value it possessed as facilitating the course of justice. That unduly restricted the value which the offender was entitled to gain by virtue of the plea of guilty. In Cameron the High Court was concerned with a statutory regime which differed significantly from that applicable in Victoria[3]. In the Victorian context s.5(2)(e) of the Sentencing Act required the court to have regard to the plea of guilty whatever may have been its motivation. Mt Tehan submitted that credit ought to have been given to the offenders for each of the factors, at least, identified in the joint judgment in Cameron where their Honours, speaking generally, said that where a plea of guilty is entered "the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice"[4]. In this case, Mr Tehan submitted, Ian Tasker was entitled to credit under all of the headings identified in that passage. Mr Bourke made a similar submission for Scott Tasker.

82. The second error, it was submitted, was that the judge expressly rejected the proposition that the plea was indicative of remorse, and did so because of the prior criminal offences of the brothers. There was no justification, on that account, for denying to the brothers the full value of their pleas of guilty, counsel submitted. Not only was each entitled to have his plea of guilty treated as being some evidence of remorse in itself, but the approach adopted by the judge ignored the fact that there was some positive evidence of remorse in both cases.

85. When interviewed about the burglary of premises at Wheelers Hill, Scott Tasker said that the offence was committed with his brother whilst Scott Tasker was affected by Valium and alcohol and that the decision to enter the house and rob it was one taken by his brother. Scott Tasker said "So, like dickhead, I went in there as well and yep, we proceeded to rob the poor buggers". He later said during his police interview "I feel disgusted in doing that, that burglary at Pride Court. I didn't want to do it and mean like I was happy with just the garage. I do not . . . and I hate entering peoples' houses and devastating the fucking, their safety and the way they feel in their house. I hate doing it. I'd rather take something from the garage than enter the house. On this particular occasion, I was drugged out and an idiot". Additionally, in a medical report from Dr M. Kozminsky, who had treated both brothers for their drug problems over many years, it was reported that Scott Tasker had expressed remorse for the offences.

88. In his record of interview Ian Tasker was asked whether he considered his actions in stealing the boats and other property was dishonest said, "Yeah, definitely" and added "I feel pretty ashamed of it myself, you know, but yeah". Asked his motive for the burglary at Wheelers Hill he said "Money for drugs and, yeah, sick". Of the offences at the home of Ms Currie he said she had been a friend for years and he would not hurt her.

91. Mr Gyorffy submitted that the complaints about his Honour's remarks concerning remorse constitute a misreading of what his Honour said. His Honour was entitled to say that there was little evidence of remorse associated with the pleas, but his Honour said that he was giving credit for the pleas, and did so. The use made of the pleas was not inappropriately confined by his Honour. He submitted that little credit was to be given other than to the extent that the pleas facilitated the course of justice, because this was not a case where the pleas spared witnesses the ordeal of a trial, since the evidence of the civilian witnesses would probably have been uncontroversial.

94. Ordinarily, pleas of guilty are to be taken as evidence of some remorse quite apart from the value they have in saving expense and inconvenience to the community[5], but they would be worthy of a significant sentencing discount even if the only factor worthy of being given particular weight was the avoidance of expense and inconvenience of a trial[6]. In this case they were early pleas of guilty, made in circumstances of full confessions and co-operation with police, and were supported by other evidence (some of which his Honour elsewhere quoted) that suggested positively that the brothers were remorseful. It would be a very unfortunate impression to convey, and one for which there is no legal basis, that the value to be derived from a plea of guilty as an indicator of remorse is reduced or removed entirely if the offender has prior convictions. It is in the interests of the criminal justice system and of the community generally that offenders with a history of prior offending should be encouraged to admit their guilt at the earliest opportunity, where they are guilty, and to then plead guilty.

97. It may be that his Honour's choice of words conveys an unintended impression, but it seems to me that on their face they do indicate that an inappropriate approach was adopted, and the nature of the sentences does nothing to dispel that impression. In my opinion, the judge gave insufficient credit for the pleas of guilty. The entitlement to a discount on sentence for a plea of guilty arises whether or not the offender has prior convictions and irrespective of his motive for the plea[7], and in this case there was no reason why the value of the pleas ought to have been discounted at all, as to any of the relevant considerations.

100. I conclude, therefore, that the grounds of appeal relating to the value attached to the pleas of guilty have been made out for both brothers.

104. Complaint is made by both brothers that the orders of cumulation produced a sentence that was manifestly excessive in each case. It was submitted that no rationale was given by the judge for what appeared to be unusual orders of cumulation.

107. The first complaint made was that six months of the sentence of 18 months for theft of the first boat on count 2 was made cumulative with the 12 months sentence on count 1 for the theft of the car with which to tow it. Mr Tehan submitted that the two offences were merely part of the one incident, but in my view, some modest cumulation was justified and I see no problem in orders of cumulation of those proportions as between counts 2 and 1. They were quite distinct offences, and with different victims. In the case of Scott Tasker the cumulation actually imposed betrays no error, and a similar proportionate extent of cumulation between the offences would be appropriate also in the case of Ian Tasker, although for reasons I will later discuss, I consider that the sentences themselves ought be reduced in his case.

110. Nor, despite arguments to the contrary, do I see any problem in principle in there having been some cumulation between offences which occurred at the same time. Thus, it was appropriate that there be some cumulation as between counts 3 and 4 and also as between counts 5 and 6. As I will later discuss, initially there had been no cumulation ordered as between counts 5 and 6. That was altered when his Honour returned to court to correct what he said was a mathematical error in his sentencing orders.

113. Those internal orders of cumulation as between counts 3 and 4 and then counts 5 and 6 made no difference to the overall total effective sentence but what did make a difference was the orders of cumulation made as to those sentences upon count 1, which was taken as the base sentence for the purpose of cumulation. It was at this level that I consider error intruded.

116. As I have said, I see no problem in cumulating 6 months of the sentence on count 2 with the sentence on count 1. Furthermore, the distinct events which together constituted counts 3 and 4, namely, the stealing of the second boat, also merited some cumulation to the sentences on counts 1 and 2 which were imposed with respect to the events surrounding the stealing of the first boat. But in my view it was very severe to order that portions of both counts 3 and 4 be cumulated with count 1 for that purpose in a way that produced a cumulation of the cumulated sentences of 18 months on counts 1 and 2, by adding a further 12 months of the 18 months total sentences imposed on counts 3 and 4.

119. Likewise, I consider it inappropriate that the separate events surrounding the stealing from the Wheelers Hill home and garage, to which counts 5 and 6 related, produced cumulation orders, separately, for both counts 5 and 6 upon the sentence in counts 1 and 2 and also 3 and 4. In effect, to a combined 12 months cumulation which had resulted from counts 3 and 4 a further 18 months cumulation was added from counts 5 and 6. The cumulation orders as to counts 5 and 6 meant that the total sentences imposed on counts 5 and 6 were cumulated on the other counts.

122. Whilst a sentencing judge must be permitted to tailor orders of cumulation as between counts so as to produce an appropriate sentence the end result must be a sentence which does not offend principles of totality and proportionality[8]. A sentencing judge has a very wide discretion in the approach adopted to sentencing by means of orders as to cumulation and concurrency and an appellate court would not interfere with a sentence unless the disposition chosen by the judge was clearly inappropriate or the end result was a sentence which was manifestly excessive[9]. In the present case the learned sentencing judge did not explain why he chose to make orders of cumulation as he did and, in the absence of explanation, the approach adopted here, seems, with respect, to involve excessive cumulation. The impression that the way the sentence was structured was inappropriate gains some weight when regard is had to the way in which six months on count 6 came to be cumulated on the sentences on count 1 to 5.

125. After sentencing the offenders the judge returned to court, it having been discovered that, as he said, his mathematics had been wrong and that instead of imposing a total effective sentence of 4 years, as he had intended and announced, he had actually imposed a total effective sentence of only 3 years 6 months. The judge remedied that by promptly ordering the cumulation of 6 months of the sentence on count 6 with counts 1 to 5, thus bringing the sentence back to 4 years. That was a somewhat unconventional way to approach the matter and in so doing the judge did not suggest that he had previously formed the view that 6 months, or any time under count 6 should have been cumulated at all. Counts 5 and 6 arose at the same time, and 12 months of the sentence on count 5 had already been cumulated. It is, with respect, inappropriate that, almost as an afterthought, a further 6 months be also cumulated on the other sentences.

128. I am persuaded that the cumulation orders in this case did betray error. Rather than adopt an approach of moderating the sentences imposed on each count and then ordering a measure of partial or even total cumulation upon the moderated sentences, as would have been an appropriate approach[10], his Honour seems not to have moderated the sentences at all but then to have ordered total or very substantial orders of cumulation. In the absence of any explanation for adopting that approach, it is an approach which betrays error, in my opinion. The respective grounds complaining about the orders of cumulation have been made out.

132. The complaint of insufficient disparity advanced by Ian Tasker, as with any complaint of disparity, requires that the failure to accord disparate sentences must be manifest and such as to engender a justifiable sense of grievance in the offender and an appearance of injustice to the objective bystander. See R. v. Taudevin[11]; R. v. Lowe[12].

135. In this case the two offenders received identical sentences on the offences committed together, and the sentences on their individual counts did not produce a longer total effective sentence for either of them. Whilst they committed counts 1 to 6 together there were some significant differences in their respective positions.

138. In the first place, it was Scott Tasker who was approached to commit the first of the offences and it was he who recruited his brother to participate in the crimes. Additionally, there was a significant difference in their prior offending histories.

141. Ian Tasker who was 32 at the time of the offences and sentencing had 17 prior convictions from 7 court appearances, Scott Tasker, although younger by about a year had 99 prior convictions from 13 court appearances.

144. Despite his many appearances Scott Tasker had only been imprisoned on a couple of occasions, with the longest sentence served at any time being 8 months, on one occasion. He had been the frequent beneficiary of leniency by courts, having, by my count, been released on Community Based Orders or wholly suspended sentences or adjourned bonds on 13 occasions and having breached such orders on four occasions. His convictions involve many offences of dishonesty and also multiple drug-related offences consistent with addiction and, additionally, driving offences.

147. Ian Tasker's prior convictions also show many drink driving and drug-related offences, with imprisonment on two occasions; the longest sentence being 3 months. He has had a number of Community Based Orders and wholly suspended sentences, but unlike his brother, had complied with their terms in each instance.

150. Scott Tasker had last been before a court on 24 March 2000 when he was sentenced to one month's imprisonment for theft and other offences, and Ian on 22 August 2001 when he was sentenced to two months' imprisonment for theft and dealt with also for a driving offence.

153. The judge noted that Scott Tasker's record was by far the more serious, but appears to have otherwise made no allowance for that fact when sentencing. It must be presumed that the judge considered that the difference of prior convictions was of no significance. Mr Gyorffy submitted that his Honour would have been entitled to so conclude. He gained some unexpected (but qualified) support for that view from counsel for Scott Tasker, who submitted that whatever sentence Ian Tasker received, Scott Tasker should receive the same. In my view, however, their sentencing records demonstrated a significant difference between them which ought to have been reflected in the sentence imposed on Ian Tasker, especially when coupled with the fact that it was Scott Tasker who brought his brother into the initial offending.

156. There were also some important differences in their antecedents. Although both had a long term history of drug abuse Ian Tasker's involvement with drugs had more excusable origins. A medical report tendered on his behalf showed that he had a serious motor cycle accident when aged 19 and as a result of opiate treatment for a significant closed head injury, which produced significant headaches, he had become addicted to opiates. Additionally as a result of his injuries he suffered depression, hepatitis C and other complaints. He had made many attempts to get off drugs through treatment regimes and although he had often not complied with medication, had been complying since February 2002, and had shown improvements in his situation. He was working full-time and regularly attending his psychologist and taking anti-depressant medication. The doctor reported that all of those interventions were showing fruit, and Ian Tasker appeared to be opiate free. A report from a drug counsellor reported too that Ian Tasker had expressed a desire to change his life and was anxious to rehabilitate himself.

159. The same doctor reported on Scott Tasker and said that he had chronic opiate dependency also and that he too had commenced treatment on many occasions, but without success. He had nonetheless managed to hold a full-time job. He was also reported to be opiate free as at December 2002 and his longstanding depression was being treated with anti-depressants, with good results. The doctor said he was showing significant improvement in compliance with medication and had expressed remorse.

162. Mr Gyorffy submitted that there was really nothing to distinguish the situation of one brother from the other. Both were long time drug addicts with multiple prior convictions who had not successfully responded either to treatment for their drug offending or to leniency from the courts.

165. I can well understand why the learned sentencing judge might have thought that the manner in which they committed their joint offences demonstrated that they were offenders of one mind and character, but I have concluded that there were factors as between two brothers which ought to have been taken into account and which, had they been, would have produced a lesser sentence for Ian Tasker than for his brother. The failure to distinguish between them in sentencing produced a sentence for Ian Tasker which failed to accord appropriate disparity, and the sentence imposed on him was tainted by error on that account.

169. Counsel complained that the total effective sentence and non-parole periods which were fixed were manifestly excessive but there were some limited complaints made as to discrete sentences which were imposed.

172. The sentence imposed on count 7 against Scott Tasker of 6 months' imprisonment for handling was said to be manifestly excessive in itself although no portion of that term was ordered to be served cumulatively. It was submitted by counsel for Scott Tasker that the amount of money involved was small, the property involved being valued at $450 of which Scott Tasker received only $50 as a commission. In my view, however, the circumstances in which this offence occurred were quite serious. It was a serious offence of handling even though the property involved was of small value. The offence of handling as indicated by the maximum sentence which is available to it is a serious offence and in my view having regard to his prior convictions the sentence of 6 months' imprisonment on this count cannot in itself be regarded as manifestly excessive.

175. The sentence on count 8 of 3 months' imprisonment for theft of the mobile phone by Ian Tasker was said to be excessive given that the phone was stolen from a friend and he was drug-affected at the time of the offence. I am not persuaded that either of those matters nor any other matters that have been put to the Court would lead to the conclusion that this sentence was manifestly excessive. The sentence relating to damaging property, on count 9, in my view is not manifestly excessive in itself.

178. As to the total effective sentence and non-parole periods Mr Gyorffy submitted that they were well within range. Mr Gyorffy submitted that these were particularly serious offences of dishonesty in that the burglaries and thefts were committed by persons of mature age, were carefully planned and amounted to contract thefts. These were not opportunistic crimes committed to feed drug habits. Although it was true, as he accepted, that both offenders had long histories of drug misuse, there was no evidence that the crimes were committed for the purpose of obtaining funds to feed a habit. As to that last matter, I note that while it is true that neither brother claimed that his motivation was that he was desperate for drugs and needed money to satisfy that craving, both brothers did spend part of the proceeds on drugs.

181. Mr Gyorffy rejected the contention that was advanced that a non-parole period of three years under a head sentence of 4 years was unusual and in itself manifestly excessive. I agree with Mr Gyorffy that the non-parole period was not set unusually close to the head sentence so as to manifest error. Whether a longer period of parole might have been thought appropriate depended primarily on the assessment made by the sentencing judge of the prospects of parole, as to which opinions may have differed between sentencing judges.

184. One unusual feature of the situations of the two brothers was that despite their long histories of drug addiction they had held down responsible employment for many years. Initially they had worked for their father in his business producing lawn for tennis courts and after the sale of that business they continued to work for the new owners. Very strong character statements were tendered from the Chief Executive Officer of that business and also from a professor who was a family friend and who attested to their capacity for rehabilitation. They were members of a respectable family, their father giving evidence on the plea. In both cases there had been significant gaps between offences of dishonesty which gave some promise for their rehabilitation prospects.

187. Mr Gyorffy submitted that there were limited prospects of rehabilitation for either offender. I do not agree, however, that their prospects for rehabilitation were bleak. His Honour found that neither of them was beyond redemption.

190. Having regard to the fact that I have identified what I consider to have been errors in the sentencing process it will be necessary to re-sentence the two offenders. It is not, therefore, necessary to conclude whether, absent those errors, the total effective sentence was manifestly excessive. However, in exercising my own discretion on re-sentencing I have concluded that a lesser total effective sentence and non-parole period is appropriate in each case.

194. I conclude that leave to appeal against sentence should be granted to Scott Tasker, the appeals of both brothers should be granted, the sentences below should be set aside and new sentences be imposed. Although I have concluded that it was appropriate that the judge imposed some measure of cumulation as between counts 1 and 2 and also as between counts 3 and 4 and counts 5 and 6, I would not adopt that approach upon re-sentencing. Instead, I would propose adopting the approach of cumulating part of the sentence on count 2 with the sentence on count 1 but otherwise only cumulating one of the sentences of counts 3 and 4 and counts 5 and 6 with count 1. The level of cumulation with count 1 in each instance will reflect the fact that I have not, additionally, cumulated as between counts 3 and 4 and 5 and 6.

197. In my opinion, appropriate sentences would be as follows:

Count 1 (Theft) 12 months' imprisonment. Count 2 (Theft) 18 months' imprisonment Count 3 (Burglary) 6 months' imprisonment Count 4 (Theft) 18 months' imprisonment Count 5 (Burglary) 18 months' imprisonment Count 6 (Theft) 18 months' imprisonment Count 7 (Handling) 6 months' imprisonment. I would order that 6 months of the sentence on count 2 be served cumulatively on the sentence on count 1; that 9 months of the sentence on count 4 be served cumulatively on the sentence on count 1; that 12 months of the sentence on count 5 be served cumulatively on the sentence on count 1. That produces a total effective sentence of 3 years 3 months for Scott Tasker. I would fix a non-parole period of 2 years.

202. I turn to Ian Tasker, whose sentences will reflect my conclusion that it is appropriate that his sentence be less than that of his brother.

Count 1 (Theft) 9 months' imprisonment. Count 2 (Theft) 12 months' imprisonment Count 3 (Burglary) 6 months' imprisonment Count 4 (Theft) 12 months' imprisonment Count 5 (Burglary) 15 months' imprisonment Count 6 (Theft) 15 months' imprisonment Count 8 (Theft) 3 months' imprisonment. Count 9 (Damaging property) 7 days' imprisonment. I would order that 4 months of the sentence on count 2 be served cumulatively with the sentence on count 1; that 6 months of the sentence on count 4 be served cumulatively on the sentence on count 1; that 9 months of the sentence on count 5 be served cumulatively on the sentence on count 1. That produces a total effective sentence for Ian Tasker of 2 years 4 months. I would order that he serve 18 months before being eligible for parole.

[1] The return of prisoners incorrectly reverses the counts, but nothing turns on that error. The judge in his sentencing remarks correctly identified the offences. In any event, as will be discussed, I have concluded that this Court should re-sentence the appellants.

[2] [2002] 209 C.L.R. 339, at 346 [22].

[3] See R. v. RND [2002] VSCA 192, at [18].

[5] See Siganto v. The Queen [1998] HCA 74; (1998) 194 C.L.R. 656, at 663-664 {22}.

[6] See R. v. Duncan, [1998] 3 V.R. 208.

[8] See R. v. Lomax [1998] 1 V.R. 551, at 554, per Winneke, P.; DPP v. Grabovac [1998] 1 V.R. 664, at 680, per Ormiston, J.A.

[9] R. v. Mantini [1998] 3 V.R. 340, at 349, per Callaway, J.A.

[10] See R. v. McCorriston [2000] VSCA 200, at [13] per Callaway, J.A.

[11] [1996] VICSC 7; [1996] 2 V.R. 402, at 404

[12] [1984] HCA 46; (1984) 154 C.L.R. 606 at 609-610, 611-613, 623.