R v Van Boxtel [2005] VSCA 175

2 Having had the advantage of reading the reasons for judgment prepared by Callaway, J.A., I agree that the appeal should be allowed in part and orders made as proposed, for the reasons he has given.

3 The appellant, who is now aged 34, pleaded guilty in the County Court to a presentment containing three counts of intentionally causing injury (counts 1, 2 and 13), three counts of threatening to kill (counts 3, 6 and 14), three counts of theft (counts 4, 5 and 9), one count of being a prohibited person in possession of a firearm (count 7), two counts of aggravated burglary (counts 8 and 11), two counts of damaging property (counts 10 and 16), one count of reckless conduct endangering life (count 12) and one count of false imprisonment (count 15). The maximum custodial penalty for aggravated burglary was 25 years' imprisonment. The maximum custodial penalty for the other offences was 10 years' imprisonment, except for being a prohibited person in possession of a firearm, for which it was seven years' imprisonment. The appellant also pleaded guilty to a number of summary offences, namely three charges of breach of an intervention order (charges 7, 22 and 39), two charges of unlawful assault (charges 3 and 8), two charges of prohibited use of a firearm (charges 19 and 25) and one charge of use of a prohibited weapon (charge 6). He admitted 12 previous convictions from four court appearances between November 1988 and October 1993. They included being armed with an offensive weapon, assault, assault occasioning actual bodily harm, criminal damage and unlawfully entering premises. On only one occasion, however, was he sentenced to a term of imprisonment. That was in the Northern Territory in 1988, when a sentence of four months' imprisonment was imposed.

4 After hearing a plea for leniency on his behalf, in the course of which the appellant gave evidence, the learned judge sentenced him, on the presentment, to the following terms of imprisonment:

Count 1 intentionally causing injury 12 months

Count 2 intentionally causing injury 12 months

Count 3 threatening to kill six months

Count 4 theft three months

Count 5 theft three months

Count 6 threatening to kill 18 months

Count 7 prohibited person in possession of firearm six months

Count 8 aggravated burglary three years

Count 9 theft three months

Count 10 damaging property 18 months

Count 11 aggravated burglary five years

Count 12 conduct endangering life five years

Count 13 intentionally causing injury 12 months

Count 14 threatening to kill 18 months

Count 15 false imprisonment four months

Count 16 damaging property seven days

His Honour directed that six months of the sentence imposed on count 2, 12 months of the sentence imposed on count 6, 12 months of the sentence imposed on count 8 and the whole of the sentence imposed on count 11 be served cumulatively upon each other and upon the sentence imposed on count 1. Sentences ranging from 18 months' imprisonment to one month's imprisonment were imposed for the summary offences but permitted to be served concurrently. The total effective sentence was therefore eight-and-a-half years' imprisonment, in respect of which a non-parole period of six years was fixed and a declaration made regarding 449 days' pre-sentence detention.

5 Leave to appeal was granted on 15th April 2005. The grounds were later amended by order of the Registrar. (The appeal is under the old rules, so there was no full statement of grounds pursuant to the new rule 2.09.) Ground 8 was then abandoned. The remaining grounds read:

"1. The individual sentences passed on the respective counts are in all [the] circumstances manifestly excessive.

2. The head sentence and the non-parole period are manifestly excessive.

3. The learned judge gave too little weight to the applicant's prospects for rehabilitation.

4. The learned sentencing judge gave too much weight to general deterrence.

5. The learned sentencing judge gave insufficient weight to the applicant's plea of guilty.

6. The learned judge gave insufficient weight to the circumstances which drove the applicant to commit the offences, in particular the use of drugs.

7. The learned sentencing judge gave insufficient weight to the remorse of the applicant.

. . .

9. In light of the fresh evidence of the significance of a serious neck injury sustained by the appellant prior to being sentenced, the sentencing discretion is reopened and the appellant should be re-sentenced by this Honourable Court.

10. The learned sentencing judge erred in cumulating the whole of the sentence imposed on count 11."

6 I shall first refer to the circumstances of the 24 offences and then to the evidence in support of ground 9. At about 6.45 a.m. on Tuesday 8th May 2001 the appellant drove his car to 9 Griffin Crescent, Port Melbourne. Present at that address were John and Pamela Snowden, their children, Simone and Joel, and Simone's 21 month-old son, Nicholas. Simone Snowden is the appellant's ex defacto partner. Nicholas is the appellant's son. The appellant knocked on the door and spoke to John Snowden. He asked whether Simone was awake as he wanted to take Nicholas for a walk. Mr Snowden went upstairs to see whether Simone was awake. The appellant became agitated and started yelling, "I want my fucking son. Get me my fucking son." Mr Snowden returned to the front door and asked the appellant to leave. He then attempted to show him off the property, but the appellant turned around and said, "That's it. You're gone." The appellant then punched Mr Snowden to the head several times and wrestled him to the ground, before kicking him in the left leg and lower back region, causing bruising (count 1). Mrs Snowden came to her husband's aid and struck the appellant with a baseball bat allowing Mr Snowden to get up off the ground.

7 Simone Snowden then tried to escort the appellant off the premises, but he turned on her and kicked her in the groin (charge 8). The appellant walked across the road to his car, and reached in and took out a black extendable baton. He flicked it open and used it to strike her to the shoulder area several times, causing bruising and welt marks (charge 6). He threatened to return, saying, "You're all gone. I'll be back in the middle of the night." The appellant then got into his car and drove off. Police were called and arrived after the appellant had left the scene. On Wednesday 30th May 2001 he attended the South Melbourne police station and was interviewed in relation to the assaults on John and Simone Snowden. He denied the offences.

8 At around 9.00 p.m. on Tuesday 25th December 2001 the appellant again went to 9 Griffin Crescent. By doing so he was in breach of an intervention order Simone Snowden had taken out on 6th December 2001 (charge 7). She was still living at that address with her parents and brother and the appellant's son. Joel Snowden heard knocking at the front door and saw through the peep hole that the appellant was outside. The appellant smashed a porch light and called out for Simone. Joel opened the front door and spoke to him through the security door. The appellant asked where Simone was and, when Joel said he did not know, the appellant punched the door. He then ran across the road to number 22 Griffin Crescent and climbed a fence into number 24, where Simone's grandparents lived and the family were having Christmas dinner. Joel telephoned his mother at number 24 to warn them.

9 When the appellant knocked at the front door of number 24, it was opened by Michael Snowden, Simone's uncle. The appellant started to push his way in but Simone walked up and asked him what he wanted. The appellant said, "To fucking talk." When Michael Snowden told him not to be abusive, the appellant punched him on the nose. Simone's sister, Julie, then intervened and the appellant told her to get out of the way or he would knock her face. When Scott Fountain, Julie's partner, grabbed hold of the appellant, the appellant said to him, "I know where you live. I'm going to come around and kill you. I've got a gun. I'll shoot you." (count 3).

10 By this time others had come to assist and the appellant was pushed back outside. He pulled a rose bush attached to a garden stake out of the ground and swung it at those around him. Michael Snowden suffered cuts to the face and later had five stitches to his forehead (count 2). Scott Fountain received bruising and pain to his left shoulder (charge 3).

11 The appellant was wrestled to the ground and held until police arrived. He was then taken to St Kilda police station, where he was interviewed. During the interview he admitted that he had attended the two addresses but said that he had been told by Simone that she had revoked the intervention order on the previous Friday. He also denied assaulting anyone, stating that he had knocked on the door and been punched in the head by the person who answered the door. He said he had then been dragged outside and punched and kicked to the head. He denied using the garden stake. He also denied threatening to kill anyone.

12 On Saturday 27th April 2002 the appellant drove with associates Ance Trajkovska, Nigel Wiseman and Colleen Kertland from North Melbourne to an address in Ringwood. Their purpose was to recover a firearm the appellant had previously left with Mr Wiseman, but which had been given to an associate of his called Jesse Baguley. Mr Wiseman also wanted to retrieve some other items of his own. The group arrived at around 7.00 p.m. and Mr Wiseman knocked on the front door. The door was opened by Mr Baguley's defacto partner, Ciel Huntley. The appellant pushed past her and went into the lounge room, where Mr Baguley was seated. The appellant said to him, "Where's my shotty? You fucked with the wrong guy." As he said that, the appellant lifted his top to reveal a firearm secreted in the belt line of his pants. Mr Baguley fetched the sawn-off shotgun from a cupboard and handed it to the appellant (count 7), together with a green army style bag containing ammunition. The appellant then picked up a television from a table in the lounge and told Mr Wiseman to take it out to the car (count 4). The television was the property of the Ministry of Housing.

13 The appellant next approached Ms Huntley, who was holding her one-year-old child. He touched the child's face. She told him not to touch the child. The appellant then lifted his shirt, exposing the handgun to Ms Huntley, and said, "Don't touch me or I'll shoot your kids." When she protested the appellant said, " Shut the fuck up or I'll put a bullet in your head." He then turned to Mr Baguley and said, "Listen man, I've got two kids and I'll put a bullet in both of yours right now." (count 6). The appellant said repeatedly, "Shut the door because what's going to happen in here isn't going to be pretty." Ms Huntley was concerned that the threats would be carried out, so she went out to the back yard with the two children. The appellant took a CD player from the kitchen bench (count 5) while Mr Baguley went to the back yard and helped Ms Huntley pass the children over a neighbouring fence.

14 The appellant returned to the car with Mr Wiseman and instructed Ms Trajkovska to drive back to North Melbourne, where they dropped off Mr Wiseman and Ms Kertland. At about 8.30 p.m. Ms Trajkovska drove the appellant to his home in Flemington, where he took the firearm, television and stereo inside. At around 9.15 p.m., the appellant and Ms Trajkovska returned to the car. The appellant was carrying the green bag containing the shotgun and ammunition. Ms Trajkovska drove the car to an address in Williamstown where the appellant used to live. He instructed her to park the car and wait. He then went to the front door of the house and banged on it until the current tenant, Natalie White, answered it. The appellant entered the house armed with the sawn-off shotgun and proceeded to look inside each of the rooms, while asking the whereabouts of an unknown person (count 8). As he searched, he was saying, "Tell me, you know" and "I don't care who you are. I'm going to kill them." When the appellant reached the kitchen area of the house, he picked up a mobile phone from a bench. He removed the SIM card and the battery but kept the phone (count 9). The appellant then left the house and, upon walking out into the street, he discharged the firearm (charge 19). That caused a car alarm opposite the premises to activate and concerned neighbours came outside to investigate. The appellant got into the car and shouted to Ms Trajkovska, "Don't turn your lights on. Just drive, drive quickly."

15 The appellant directed her to drive the car over the Westgate Bridge and into the Port Melbourne area. At approximately 10.00 p.m. they drove into Griffin Crescent. The appellant asked Ms Trajkovska to slow down. As she did so, he raised the sawn-off shotgun from his left side and aimed it out the window. He then discharged the firearm in the direction of the house at 9 Griffin Crescent (charge 25). By attending at that address the appellant was again in breach of the intervention order (charge 22). At the time of the discharging of the firearm, the premises was occupied by Simone Snowden, her parents and her son, Nicholas. By discharging the firearm in the street, the appellant damaged a Volvo sedan owned by Simone Snowden (count 10). The damage was assessed at $1,083.50. Ms Trajkovska then drove the car out of Griffin Crescent, on to Williamstown Road and towards the South Yarra area, where the appellant directed her to park the car in the carpark of 2 Simmons Street. It was now about 11.00 p.m. The appellant got out of the car and, with the shotgun in his possession, entered the Housing Commission block situated at that address. He proceeded to a flat on the seventh floor occupied by associates of the appellant, Abdul Rizki, Lorna Delainie, Melissa Murphy and Stefano Rizki. Abdul Rizki and Ms Delainie were in one of the bedrooms and Ms Murphy was asleep in the second bedroom. Stefano Rizki was out.

16 Upon entering the premises via the unlocked front door, the appellant proceeded to the first bedroom, where Mr Rizki and Ms Delainie were sitting (count 11). He immediately produced the sawn-off shotgun and began to connect the stock to the barrel of the firearm. He removed a shotgun shell from a belt bag he was wearing and began to load the firearm. The appellant then turned and locked the door, which prevented his victims from leaving the bedroom (count 15). As he did so, the appellant began to ask Mr Rizki why he had "caused trouble with his wife" or what he had done to his wife. The appellant's wife, or ex defacto wife (Simone Snowden), was not known to Mr Rizki.

17 The appellant then removed two shotgun shells from the belt bag. He threw one of the shells on to the floor of the bedroom and said to Mr Rizki, "What did you do to my wife? I'm going to clean you up today. You're finished. I've already seen two people today." He kicked over a small table and moved towards Mr Rizki in a threatening manner. With the firearm pointed at the victim and his finger on the trigger, the appellant said "This is it." (count 14). In fear of his life, Mr Rizki grabbed at the firearm in an effort to deflect it. As he struggled with the appellant, the firearm discharged (count 12). The projectile lodged in a wall between the chair that Mr Rizki had been sitting on and a cupboard.

18 In fear of her life Ms Delainie ran to the door, unlocked it and retreated into Ms Murphy's bedroom. Mr Rizki continued to struggle with the appellant. As the struggle progressed, the appellant freed the firearm from Mr Rizki's grip and began to strike him with the butt of the gun. The blows with the firearm struck the back of Mr Rizki's head. He was struck with such ferocity that the butt of the firearm broke off. The victim was forced on to his hands and knees, at which time the appellant struck him with the steel barrel of the shotgun (count 13) and said, "I'm going to finish you." The appellant then hit him with such force that Mr Rizki "saw stars", but he was able to observe the appellant leave the bedroom and the flat and proceed down the access stairs.

19 A short time later the appellant returned to the vehicle, where Ms Trajkovska was waiting. He had retained possession of the barrel of his firearm, but the butt had been left in the bedroom. As he entered the car, the appellant told her to "drive, drive as fast as she could." When she missed a turn, the appellant punched the windscreen of the car in anger, causing it to shatter (count 16). That damage was assessed at approximately $200. Ms Trajkovska drove the appellant to his home, where he told her, "I don't mean you no harm." At about 4.00 p.m. on Sunday 28th April 2002 the appellant telephoned Ms Trajkovska and told her to come over to his house to be compensated for the damage he had caused to her vehicle the night before. Once there, he handed her the mobile phone that he had stolen from the premises in Williamstown. The appellant and Ms Trajkovska then drove to Chapel Street, Prahran, so that the appellant could explain the events of the previous evening. At 6.34 p.m., when he was seen by police getting out of the car in Chapel Street, he was arrested and was formally interviewed. The appellant denied all of the allegations.

20 On Wednesday 22nd May 2002, whilst on remand at the Melbourne Assessment Centre, the appellant wrote a letter addressed to Simone Snowden. In it the appellant asked her to visit him and send photos to him of herself and their child. The letter was received in the mailbox of 9 Griffin Crescent on Thursday 23rd May 2002. The appellant was again in breach of the intervention order by sending the letter (charge 39). Ms Snowden was frightened by the efforts of the appellant to contact her.

21 Ground 9 is supported by three affidavits, two sworn by the appellant's solicitor and the other affirmed by the appellant. The solicitor's affidavits exhibit a report from Dr Eugenie Tuck, Director of Medical Services, St Vincent's Correctional Health Service, dated 25th March 2004, a further report from Dr Tuck dated 26th May 2004 and a report from Associate Professor Richard Stark dated 7th March 2005. They relate to the effects of an assault on the appellant in prison on 21st March 2003, the consequences of which did not become fully known until after he was sentenced.

22 Dr Tuck said that, as a result of the assault, the appellant suffered a laceration of his scalp, which was sutured. He complained of neck pain and an inability to move his neck, although examination revealed little in the way of disability. An x-ray did show a spinal injury, but it was thought to be old. By the time he was sentenced on 10th July 2003 the appellant appeared to have recovered, but the next day he experienced neck pain, arm pain and an inability to lift his shoulders. A CT scan on 5th August 2003 revealed an unstable fracture involving the C5 vertebra. The appellant then underwent a cervical discectomy and cervical fusion. The operation was successful, so that the injury has not resulted in any serious permanent disability, but the appellant continues to suffer neck pain and stiffness.

23 Professor Stark examined the appellant on 7th March 2005. He thought it very likely that the appellant did sustain a fracture to his C5 vertebra as a result of the assault in March 2003. The appellant's situation at the time of examination was that he had an apparently stable and technically satisfactory cervical fusion, but there were a number of ongoing symptoms, including restriction of the range of cervical movement. The appellant also reported ongoing neck pain and headache which, Professor Stark said, were consistent with the history the appellant gave him. The appellant's symptoms were credible, his presentation was very straightforward and there was no suggestion that he was exaggerating or magnifying the effects of his injuries. Professor Stark endeavoured to make a "whole person assessment" in accordance with the American Medical Association Guides. He concluded that it was more likely that the impairment would be 5% than 15% on the limited information that was available to him.

24 The appellant's affidavit is consistent with the foregoing. He adds that he was not aware that he had suffered any lasting injury until August 2003, after he had been sentenced. He does not depose to any specific way in which the residual symptoms impact on service of his sentence.

25 Apart from arguments based on the structure of the sentence[1], Mr Boyce put ground 9 at the forefront of his submissions. He contended that the evidence in support of that ground should be received either as "evidence of events occurring prior to sentence, as to which it has been held by courts of criminal appeal that, even though the new evidence is not fresh evidence, it may be received on appeal in order to avoid a miscarriage of justice".[2] Alternatively, counsel said, it should be received as evidence of subsequent events "showing the true significance of facts which were in existence at the time of sentence".[3] Reference was also made, in the course of argument, to the possible application, directly or by analogy, of cases where imprisonment has, or is very likely to have, a gravely adverse effect on an offender's health.[4] None of those submissions need be considered in the light of the conclusion that I have reached.

26 Where more than one sentence is imposed, it is preferable to cumulate upon the longest sentence.[5] Where there is no base sentence at all, that error reopens the discretion.[6] In other cases, it depends on whether the sentence works arithmetically and, even if it does, whether the structure impugns the judge's instinctive synthesis. In the present case, subject to one exception, I should have thought that his Honour's failure to cumulate upon the sentence imposed on count 11 did not vitiate the sentence. The sentence works arithmetically and is carefully structured, distinguishing between the different episodes of offending but permitting most of the sentences to be served concurrently in order to comply with the principle of totality.

27 The exception is that the structure of the sentence denies any concurrency to the sentence of 12 months' imprisonment imposed on count 1. That would have become immediately apparent had the judge made the sentence imposed on count 11 the base sentence. His Honour might still have directed that six months of the sentence imposed on count 2 and 12 months of each of the sentences imposed on counts 6 and 8 be served cumulatively, but he is unlikely to have directed total cumulation in respect of the sentence imposed on count 1, notwithstanding the two charges (charges 6 and 8) relating to the same incident. Only one month's imprisonment was imposed on each of those charges. A sentence of 12 months' imprisonment on count 1, in effect wholly cumulative, is clearly inappropriate.

28 We must therefore look at the case afresh, but it by no means follows that a different result will ensue. The evidence in support of ground 9 is admissible for that purpose because we should have regard to the facts as they exist now[7], but we need to consider the way in which the evidence is relevant. Is it that the appellant's residual disabilities will be more burdensome in prison or is it that the burden of serving a prison sentence will be greater for a person with those disabilities?

29 As Coldrey, A.J.A. said in R. v. Boyes[8], the seminal statement on the impact of an offender's ill health upon the duration of a prison term was made by King, C.J. in R. v. Smith[9]. That, too, was a case where it became necessary to reconsider the sentence imposed below in the light of fresh knowledge about the appellant's medical condition. In a judgment in which Cox and O'Loughlin, JJ. concurred, his Honour said[10]

"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." (Emphasis added.)

It has always been recognized that the last sentence of that passage identifies two different ways in which ill health may be a factor mitigating punishment.[11]

30 The evidence in the present case does not disclose "a serious risk of imprisonment having a gravely adverse effect on the offender's health". The question it presents is whether "imprisonment will be a greater burden on the offender by reason of his state of health", i.e. the first, rather than the second, alternative in the last sentence of the passage set out above. The weight of authority, and Victorian sentencing practice, support the view that it is a circumstance of mitigation that a sentence of imprisonment will be significantly more burdensome for a prisoner than for a person in normal health. That applies to both physical and psychiatric illnesses and disabilities.

31 In R. v. Bell[12], for example, Batt, J.A., with whom Phillips, C.J. and Vincent A.J.A. agreed, said that, on the facts of that case, a merciful sentence was called for "because ... imprisonment would be a greater burden upon the applicant than upon the average prison inmate by reason of the applicant's extremely poor health."[13] That was a case of physical disease. R. v. Tsiaras[14] concerned serious psychiatric illness. The joint judgment said[15] that one of the ways in which such illness was relevant to sentencing was that it "may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health". In R. v. Clay[16] the applicant suffered diabetes and kidney disease as well as depression. I said[17] that such ill health "may make the service of a prison sentence harder than for a person not suffering from such disabilities" and that those matters were entitled to appropriate weight. Southwell, A.J.A. agreed in my reasons.[18]

32 It would not be difficult, I think, to find other illustrations[19], so I turn directly to R. v. Boyes[20]. The leading judgment was delivered by Chernov, J.A., with whose reasons Smith, A.J.A. agreed substantially. Coldrey, A.J.A. also agreed but added some comments of his own. Whilst there are parts of both Chernov, J.A.'s and Coldrey, A.J.A.'s reasons that could be interpreted consistently with the traditional view, the burden of them is that the first alternative in King, C.J.'s judgment in R. v. Smith refers only to the possibility that imprisonment will make it more difficult for an offender to cope with his or her illness or disability. Chernov, J.A. gave the example of an offender who had lost one arm. His Honour said:[21]

"[S]uch an offender may have no more difficulty in coping with the consequences of his impairment in prison than outside it, so that his disability would not cause the burden of imprisonment to be greater from his perspective. Relevantly, he could cope with prison life in much the same way as he coped with life outside prison. Compared with ordinary inmates, of course, his burden of imprisonment would be greater, just like his burden of coping with life outside prison with only one arm would be greater by comparison with able-bodied people. In the context of this example, therefore, it does not follow that imprisonment will be a greater burden for him because of his loss of one arm and thus, it would be inappropriate to treat his disability as a mitigating factor." (Emphasis in original).

33 In my respectful opinion, that interpretation of the first alternative in King, C.J.'s judgment in R. v. Smith should not be followed.[22] The first alternative contemplates not that imprisonment will make the offender's ill health a greater burden but that the offender's ill health will make imprisonment a greater burden. The additional burden of imprisonment is then taken into account as a mitigating factor. That is part and parcel of equality before the law. If a one-armed person will, for that reason, find prison life more difficult than a person with both arms, he or she is more severely punished than an able-bodied co-offender if they are given the same sentence. Even emotional stress may be taken into account, with due caution, in that way: for example, a mother separated from young children may find the burden of imprisonment greater on that account.[23] The weight to be given to such mitigating factors is another matter altogether. In some cases, they are of great consequence; in other cases, they make no difference when all the relevant circumstances are taken into account.

34 Should the appellant's residual disabilities, following the operation, make any difference in this case? Mr Trapnell pointed out that he has an apparently stable and technically satisfactory spinal fusion. There is no nerve root or spinal cord dysfunction and no evidence of radiculopathy or other neurological disturbance. Although the appellant does have limited neck movement, there is normal anatomical alignment, judging by the post-operative x-rays, and an estimated whole person impairment of only 5%. The appellant suffers neck pain and headaches, for which analgesic tablets are available in prison.

35 As we are resentencing, the appellant's state of health now is a relevant factor, together with the fact that he was assaulted whilst on remand for these offences and the assault led to an injury requiring a discectomy and cervical fusion. They are mitigating factors, but I am not persuaded that they should lead to our imposing a lesser total effective sentence, or fixing a lower non-parole period, than the learned judge. Subject to rectifying the error to which I referred in [27] above, no different sentence should be passed. That is because the sentences were already moderate for what Mr Trapnell correctly described as an "orgy of offending" and because there was total concurrency in relation to counts 10 and 16, all the summary offences and within each separate episode of offending. The present sentence and the non-parole period take adequate account of the appellant's health, as we now know it to be, the effect of amphetamine on his behaviour (including "ice" ingested with alcohol on 27th April 2002), his early plea of guilty and his remorse and prospects of rehabilitation.

36 Should the other members of the Court agree, I propose orders in accordance with the following minutes:

2. Affirm the individual sentences imposed below.

3. Set aside the directions for cumulation and, in lieu thereof, direct that six months of each of the sentences imposed on counts 1, 2 and 10 and 12 months of each of the sentences imposed on counts 6 and 8 be served cumulatively upon each other and upon the sentence imposed on count 11, making a total effective sentence of eight-and-a-half years' imprisonment.

4. Affirm the non-parole period.

A fresh declaration should be made regarding pre-sentence detention.

I certify that this and the preceding 1715 pages are a true copy of the reasons for judgment of Ormiston, Charles and Callaway, JJ.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 28 July 2005.

DATED the day of 2005.

[1] As it happens, a structural argument succeeds in this case, but such arguments are usually without merit: see R. v. Albanus [2004] VSCA 236 at [9] and [11] and R. v. Ash [2005] VSCA 43 at [30].

[2] R. v. Babic [1998] 2 V.R. 79 at 80.

[3] R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97 at 101. This is one of many cases applying R. v. Eliasen (1991) 53 A.Crim.R. 391. Other authorities are referred to by Chernov, J.A. in R. v. Boyes [2004] VSCA 97; (2004) 8 V.R. 230 at 236 fn. 1.

[4] R. v. Smith (1987) 44 S.A.S.R. 587 at 589.

[5] R. v. MDB [2003] VSCA 181 at [14]; R. v. Nikodjevic [2004] VSCA 222 at [38] and R. v. Heinz; Director of Public Prosecutions v. Heinz [2005] VSCA 124 at [14] and [84] -[ 85].

[6] R. v. Nikodjevic and R. v. Seiler [2005] VSCA 146.

[7] R. v. Carroll [1991] VicRp 87; [1991] 2 V.R. 509 at 511; R. v. Christie [2000] VSCA 183 at [13]; Director of Public Prosecutions v. WJW [2000] VSCA 170; (2000) 2 V.R. 497 at 500 [15] - [16]; Director of Public Prosecutions v. Goldberg [2001] VSCA 107; (2001) 184 A.L.R. 387 at 399 [58] - [59]; R. v. Ilic [2003] VSCA 82 at [11] and R. v. Magner [2004] VSCA 202 at [50].

[8] [2004] VSCA 97; (2004) 8 V.R. 230 at 239 [43].

[9] (1987) 44 S.A.S.R. 587. R. v. Smith was referred to with approval by the High Court in Bailey v. Director of Public Prosecutions [1988] HCA 19; (1988) 78 A.L.R. 116, a case concerning the second alternative referred to below. R. v. Smith itself was a case concerning both alternatives: see the last paragraph of 589.

[10] At 589.

[11] See, for example, R. v. McDonald (1988) 38 A.Crim.R. 470 at 475 and R. v. Morgan (1996) 87 A.Crim.R. 104 at 107. The first is a decision of the New South Wales Court of Criminal Appeal. The second is a decision of this Court.

[12] Unreported, Court of Appeal, 18th August 1997.

[13] At 2. His Honour then referred to four cases and s.5(2)(da) of the Sentencing Act 1991.

[14] [1996] VicRp 26; [1996] 1 V.R. 398.

[15] At 400.

[16] Unreported, Court of Appeal, 7th October 1996.

[17] At 8.

[18] At 12. Brooking, J.A. expressed himself more cautiously about the whole case, but there is no reason to think that his Honour disagreed on the point that is now in issue: see 11 - 12.

[19] In a supplementary submission, filed by leave, Mr Boyce referred to R. v. Norman and Briggs (unreported, Court of Appeal, 17th April 1998). See the reasons in that case of Tadgell, J.A., with whom Ormiston, J.A. agreed, at 16 - 21 and the reasons of Buchanan, J.A. at 1 - 2.

[20] [2004] VSCA 97; (2004) 8 V.R. 230.

[21] At 237 [21].

[22] Mr Trapnell properly conceded that it was difficult to support. We are not bound by R. v. Boyes because of the weight of previous, contrary authority. Special leave was refused on 11th February 2005, but that does not elevate R. v. Boyes to the status of a decision of the High Court. It should also be noticed that special leave was refused because there was no reason to doubt the decision of the Court of Appeal and it was for that reason that there were insufficient prospects of success in either of the proposed grounds of appeal.

[23] See also R. v. Norman and Briggs in the reasons of Tadgell, J.A. at 19 - 20.