Reid (a Pseudonym) v The Queen [2014] VSCA 145

Reid (a Pseudonym) v The Queen [2014] VSCA 145 - VSCA 2014 case summary — Zoe

[87]

[Counsel for the applicant] submitted that where an offender is to be sentenced in respect of an offence which is representative of a number of offences, the sentencing judge is not entitled to impose a sentence in respect of other crimes, but may take such other crimes into account in determining whether or not the offence for which the offender is being sentenced is an isolated offence. He submitted that in sentencing on a rolled-up count the discretion is to be exercised in the same way as it is when a count is treated as a representative count.

...

I do not accept the submission that in sentencing on a rolled-up count the discretion is to be exercised in the same way as when a judge is sentencing on a representative count. It is of course correct that when sentencing on a representative offence the judge is not entitled to impose sentence in respect of other crimes. But in my view, a rolled-up count is entirely different from a representative count. In [counsel for the respondent's] written submissions for the Crown, it was submitted, I think correctly, that rolled-up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purpose of a plea of guilty. If a rolled-up count were not included by agreement with the defence (demonstrated as here by the plea of guilty) the count would be vitiated for duplicity. [Counsel for the respondent] argued that reasons of public policy dictate the use of rolled-up counts on a plea of guilty to avoid burdening the presentment with multiple counts. The practice simplifies the task of the sentencing judge and works to the advantage of the prisoner. In the present case, for example, the filed-over presentment contained count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original presentment. The use of rolled-up counts operates considerably to the advantage of an accused who intends to plead guilty. For in this case on the original presentment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum sentence of 240 years. The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge, but may be thought by an appellant to give him a considerable benefit in return.

[110]

Sentences imposed in 'like' cases provide some indication of the range that is open in the proper exercise of the discretion. They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of 'current sentencing practices' which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences. In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this court. They may however be used in search of unifying principles. That was not the use to which counsel sought to employ them here.

...

A detailed examination of 'like' cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished. Where principles of parity do not apply, they are not to be regarded as some sort of 'benchmark' which is determinative of the sentence to be imposed. To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.

To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a 'like' case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of 'like' cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.

It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in 'micro-detail', as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.

Other jurisdictions have also deprecated the practice of inviting comparisons between the challenged sentence and sentences in other cases. Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range.[51]

[123]

105 DPP v Jones[71] was a Crown appeal where, by a majority,[72] the appeal was allowed and a total effective sentence of 16 years' imprisonment, with a non-parole period of 12 years, was substituted for a sentence of 13 years with a non-parole period of 10 years. There were three victims, being the respondent's de-facto and her daughter and son. With respect to the daughter, there were two representative charges of incest; one of producing child pornography; two representative charges of indecent act with a 16 or 17 year old child under care, supervision or authority; two charges of procuring an act of sexual penetration with a 16 or 17 year old child under care, supervision or authority; and one charge of intentionally causing serious injury. As to the son, there were was one charge of procuring a child under 16 to take part in an indecent act; one rolled-up charge of intentionally causing injury; one charge of intentionally causing serious injury; and one charge of false imprisonment. The children's mother was the victim with respect to two charges of rape; one charge of intentionally causing injury; and one rolled-up charge of intentionally causing serious injury. The offending was 'extremely grave' and 'involved depravity of an almost unimaginable magnitude'.[73] The offending took place in an environment of, and some of the offences directly involved, extreme cruelty and violence. As to the incest offences in involving the respondent's step-daughter, the first offence occurred when she was either 16 or had just turned 17. Two charges were representative counts of incest. The first incident occurred when the respondent took the victim to the lounge room and penetrated her vagina with his penis. She was a virgin and the penetration caused vaginal bleeding and pain. Over the next year, the respondent had sexual intercourse with the victim almost every day, sometimes making her mother watch as he had sex with her in the marital bed. On other occasions, the respondent had sexual intercourse with her in a car when he was supposed to be giving her driving lessons. Over a couple of months, the respondent put his penis in his step-daughter's mouth while in the back seat of the car during the driving lessons or when he was driving her home from school. Once he had her put his penis in her mouth when her mother was present in the marital bed.

[131]

For the reasons which hereafter appear, the following are the relevant matters which should inform a determination of the extent of the discount to be given for a plea of guilty:

1. A discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case.

2. The exceptional case arises where the gravity of the offending conduct is of such an order that no discount from the maximum sentence is appropriate.

3. The strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea.

4. A greater discount for the utilitarian benefit may be justified where the plea involves very considerable savings of costs to the community or where some other very significant benefit can be seen to flow from the plea.

5. It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.

6. Where there is evidence or a submission accepted by the sentencing judge as to the unqualified existence of these subjective criteria, they should be fully reflected in the discount.

7. The utilitarian benefits which flow from the plea may also inform the extent of the discount to be allowed for the offender's willingness to facilitate the course of justice.

8. The weakness of the Crown case, if apparent, may also inform the extent of the offender's willingness to facilitate the course of justice.

9. The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit of the plea and the subjective criteria, unless there is reason to conclude that less than the full discount should be allowed for the subjective criteria.

10. The strength of the Crown case can only support an inference that these subjective criteria played little or no, role in the decision to plead guilty where the state of the contextual evidence on the plea permits such a conclusion.

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