Sayer v The Queen [2018] VSCA 177

CRIMINAL LAW - Appeal - Sentence - Effect of delay - Delay between DNA match linking appellant with offending and charge - Relevance of explanation of delay - Effect of delay on rehabilitation - R v MWH [2001] VSCA 196 considered.

CRIMINAL LAW - Appeal - Sentence - Sex Offenders Registration Act 2004 - Sex offender registration order under s 11 - Whether two-stage test in Bowden v The Queen [2013] VSCA 382; (2013) 44 VR 229 correctly applied in making order - Whether appellant posed real risk to sexual safety - Whether order reasonably necessary to give effect to statutory purpose - Balancing exercise between nature and magnitude of risk and serious consequences for offender required - Child-protection purposes of sex offender registration - Identified risk pertains to offending against adults - Sex Offenders Registration Act 2004 ss 11(2A), 11(3) - Bowden v The Queen [2013] VSCA 382; (2013) 44 VR 229 applied.

1 The appellant is 51 years of age. In late 1984, when he was 17 years of age, he committed three very serious rapes with related offences. The rapes were committed in July, October, and November 1984. Each of them was committed in the course of a burglary.

2 Soon after the third rape, in 1985 and 1986, the appellant was apprehended, charged and eventually sentenced to a term of 10 years' imprisonment with a non-parole period of 8 years for the offences committed in November 1984. He was not identified as the offender, and was not charged, convicted and sentenced for the October 1984 offences until 2008, over 20 years later. For those offences he was sentenced to a term of 7 years' imprisonment with a non-parole period of 4 years. Then, over 30 years after the offences were committed, in April 2015 he was charged with the offences committed in July 1984. It is the sentence that was then imposed upon him for those July 1984 offences by a judge in the County Court on 13 June 2017 which is the subject of this appeal. He was sentenced to a total effective term of imprisonment of 4 years 6 months with a non-parole period of 2 years 6 months.

3 The burden of the appellant's complaint is that the sequence of events outlined has resulted in the imposition of sentences totalling 21 years and 6 months' imprisonment for a series of related offences committed over a five month period when he was a 17 year old. He contends that the sentences imposed upon him on 13 June 2017 should be set aside on the basis that the judge had failed to have proper regard to the relevant periods of delay and had failed to have proper regard to the principle of totality.

4 In addition to the sentence of imprisonment imposed by the sentencing judge on 13 June 2017, she also ordered that the appellant be subject to reporting conditions under the Sex Offenders Registration Act 2004. The appellant contends that that order was made in error and should be set aside.

5 Before turning to the specific issues raised by the appeal, because of the unusual sequence of events whereby offences of a similar type committed over a short period were dealt with separately over a time span of 30 years, it is necessary to review the relevant history.

6 The appellant was born in 1967. The material tendered on the plea, which was accepted by the sentencing judge, reveals that the appellant's early life was characterised by domestic violence from a stepfather, in relation to which he was both a victim and a witness. He was made a ward of the state at 11 years old and from that time he had no contact with his family and had to fend for himself. He suffered sexual abuse. He attended numerous schools and completed such education as he had at boys' homes, including Baltara and Turana. By the age of 15 he was living in a boarding house and was abusing drugs and alcohol.

7 The appellant began a decades-long pattern of offending, principally the theft of motor cars and burglaries, when a 14 year old. He has innumerable convictions for offences of this kind, together with driving and drug offences, up until his last conviction for offences of that kind, which was on 3 May 2011 at the Melbourne Magistrates' Court when he received a term of 6 months' imprisonment for burglary offences committed in 2005.

8 The appellant has spent most of his adult life in prison. In the period between 18 May 1985, when he was 18 years of age, and 1 November 2012, when he was last released from custody before the sentence which is the subject of this appeal, being a total of 27 years and 6 months, he was in the community for approximately 7 years and 6 months and in prison for approximately 20 years.

9 Notwithstanding the appellant's extensive offending over his adult life, his sexual offending was confined to his teenage years. He has not been convicted of any sexual offence committed after 1984, when he was 17.

10 The appellant's first sexual offending occurred on 24 April 1982, when he was 15 years of age. In the company of other boys, who were aged 17, he took part in the rape of another 17 year old boy. He was sentenced to a term of 3 years' detention in a youth training centre for that offending.

11 The appellant then committed the rapes in the course of three burglaries in 1984, to which previous reference has been made.

12 The first burglary and rape was committed on 28 July 1984. Those offences are the subject of this appeal. We will return to the particular circumstances of that offending ('the July 1984 offences').

13 On 23 October 1984, in the course of a burglary, the appellant committed offences of aggravated indecent assault and aggravated rape ('the October 1984 offences').

14 On 3 November 1984, in the course of a burglary, the appellant committed offences of aggravated indecent assault, rape, and attempted aggravated rape ('the November 1984 offences').

15 As indicated, the appellant was arrested shortly after the November 1984 offences. He went to trial on two occasions in relation to those offences. Eventually, on 24 April 1986 in the County Court at Melbourne, he was sentenced to a term of 10 years' imprisonment with a non-parole period of 8 years in relation to the November 1984 offences.

16 The appellant was charged with the October 1984 offences following a DNA match in February 2007. He was sentenced in relation to those offences on 12 December 2008. He was sentenced to a total effective term of imprisonment of 7 years with a non-parole period of 4 years. He was released on parole in 2012. He completed that parole. As indicated earlier, his last convictions for any offences (prior to those the subject of this appeal) were at the Melbourne Magistrates' Court on 3 May 2011 where he was convicted of burglary offences which he had committed in 2005.

17 Evidence given before the sentencing judge, which she accepted, described the appellant's life since his release on parole in 2012. He had formed an apparently stable and supportive relationship, had moved to a rural area to separate himself from negative influences, had engaged in some employment, and had not been involved in any offending.

18 The first DNA match linking the appellant with the July 1984 offences was in 2012, but the definitive DNA match was not obtained until 2014 after a further reference sample had been taken from the appellant. He was charged with the July 1984 offences on 27 April 2015. He pleaded guilty on 9 February 2017. His plea was heard on 31 May 2017.

19 On 13 June 2017 the appellant was duly convicted of the July 1984 offences and sentenced to a term of 2 years' imprisonment on one charge of burglary, and convicted and sentenced to a term of 3 years 6 months' imprisonment on one charge of rape. One year of the term imposed on the burglary sentence was ordered to be served cumulatively upon the rape sentence, resulting in a total effective sentence of 4 years 6 months' imprisonment. The sentencing judge directed that a period of 2 years 6 months be served before the appellant was eligible for parole. As indicated, the sentencing judge also made an order under the Sex Offenders Registration Act 2004.

20 We turn then to the circumstances of the offences which resulted in the sentences now the subject of this appeal, being the July 1984 offences.

21 In the early hours of 28 July 1984, the appellant broke into the complainant's flat in Caulfield. She was alone and asleep in her bed (charge 1, burglary). The appellant threatened to stab her and struck her hard a number of times to the head and neck. As a result of the repeated violent blows, the complainant fell from the bed onto the floor.

22 The appellant removed the complainant's underpants and penetrated her vagina with his penis from behind as she lay on the floor (charge 2, rape). The appellant ejaculated inside her vagina and during the intercourse he said to her 'Feels good, doesn't it?'.

23 The appellant then left the flat and took with him the complainant's purse, keys and a telephone extension cord. The complainant, having thrown a blanket over her otherwise naked body and in significant pain and distress, sought help from a neighbour, whom she told that she had been raped. As a result, 000 was called and police attended.

24 A medical examination of the complainant was conducted at the Queen Victoria Hospital at 3:00 am on 28 July 1984. It revealed extensive fresh bruising around the complainant's right ear, extending to her right lower jaw and onto the right side of her neck, marked bruising in the region of the posterior aspect of her neck, a bruise above her right breast, contusions on her chest and the tips of her elbows and mild bruising and marked tenderness over the region of her left loin and extending to her left lower ribcage.

25 The appellant's fingerprint, or part of it, was located on the balcony of the complainant's flat.

26 Prosecution of the appellant was not regarded as viable at the time of the complainant's statement because of a paucity of evidence. In particular, the fingerprint branch was not willing to give evidence as to a match of what they regarded as a 'partial fingerprint only'. The appellant refused to be interviewed while in custody for unrelated matters, as he was entitled to do at that time.[1]

27 At the time of the medical examination, spermatozoa was observed on a vaginal swab. Urethral and cervical swabs were also taken. DNA analysis subsequently conducted in February 2012 and August 2014 provided 'extremely strong support' for the proposition that the appellant was the source of semen on those swabs.

28 On 16 July 2014, the appellant participated in a recorded police interview. He denied raping the complainant, but admitted to having lived in the same block of flats at the relevant time. He explained the presence of his fingerprint on the balcony as being due to his having lived in the flat below the complainant, and admitted that he had committed burglaries in that block.

29 As indicated, the appellant was charged on 27 April 2015.

30 The sentencing judge set out the circumstances of the offending and the investigation. She described the appellant's other convictions. She noted that there was only one prior conviction relevant to the July 1984 offences (for the aggravated rapes of the older boy in 1982 - the October 1984 offences and the November 1984 offences having been committed after these offences). She set out the principal events concerning the commission, investigation, prosecution and sentencing of the rape and related offences of July, October and November 1984.

31 The sentencing judge said she had 'at best guarded optimism' regarding the appellant's rehabilitation prospects. She stated that she was 'mindful of some protective aspects' that were now in the appellant's life which had been absent in the past, including a supportive partner, employment opportunities and the fact that he was isolated from negative peers as a result of his place of residence. She noted that there had not been any further sexual offending since 1984 when the appellant was 17 years old.

32 The judge noted a number of mitigating factors, including the appellant's troubled childhood, evidence given concerning his medical and mental health, his guilty plea which was relevant both for its utility and as indicating remorse, and his youth at the time of the offending.

33 The sentencing judge referred to the fact that the appellant had completed a sex offenders' treatment program in prison and had gained an insight into the effect of his offending on others. The judge stated that the appellant had made no attempt to shirk responsibility or minimise the seriousness of his offending. She appeared to accept that it was not until he was in prison after his second sentence for sexual offences that he fully realised how serious his offending was.

34 The judge set out in some detail the opinions and conclusions of Ms Carla Lechner, clinical psychologist, who had provided the court with a report dated 26 May 2017. Ms Lechner undertook assessment of the appellant regarding his risk of sexual reoffending. Using the STATIC-99 assessment tool, he fell into a high risk category. Using the SRV-20 assessment tool, together with the STATIC-99 assessment tool, Ms Lechner was of the opinion that, while at face value the appellant presented as a high risk of reoffending, he had not been involved in further sexual offending for over 30 years and, as a result, she was of the view that he would now be of 'low/medium' risk of future sexual offending, with the 'medium' aspect of the risk being connected with violent rather than sexual offending.

35 The sentencing judge addressed the delay between the initial DNA match in 2012 and the institution of the prosecution in 2015. This was a matter counsel for the appellant had relied upon in the plea. The judge observed in that context that the depositional material indicated that during that period additional material and statements were obtained. The judge said that in her opinion the delay did not mitigate 'significantly, rather minimally'.[2]

36 The sentencing judge addressed the issues of specific and general deterrence, and denunciation and just punishment.

37 As mentioned, the judge ordered that the appellant be required to report pursuant to the Sex Offenders Registration Act.

38 We will address in more detail aspects of the sentencing judge's reasons in the context of the particular issues raised on the appeal.

39 The appellant was granted leave to appeal on the following two grounds:

1. The sentencing judge erred by failing to apply s 11(3) of the Sex Offenders Registration Act 2004 when making the sex offender registration order.

Particulars:

(a) Her Honour erred by concluding that 'risk classification is not the only basis' on which the discretion to make an order pursuant to s 11(3) could be exercised;

(b) Her Honour failed to have regard to the serious consequences for the appellant of being required to submit to an onerous registration and reporting regime.

1. The sentencing judge erred in her approach to the consideration of delay in the sentencing task.

Particulars:

(a) Her Honour erred by giving very little weight (in mitigation) to delay because 'additional material and statements were ... being obtained by the prosecution'.

40 The appellant also seeks leave to appeal on the following additional ground:

1. The sentencing judge erred by failing to have proper regard to, and by imposing sentences that offend, the principle of totality.

41 The focus of the appellant's submissions was upon the ground concerning delay and the proposed ground concerning totality and we shall address those grounds first before turning to ground 1.

42 The appellant submitted that the sentencing judge had erred in treating the delay between 20 February 2012, when police first learned of a DNA match linking him to the present offences, and 27 April 2015, when he was charged, as being of minimal weight, and erred by taking into account an explanation for the delay to the effect that police were obtaining other material and statements.

43 The DNA match that was first obtained resulted from cold case investigation of forensic samples held in long term storage. There was evidence at the committal that the Forensic Services Department required a reference sample from the appellant in order to confirm the match, and that this was obtained on 5 August 2014. There appear to have been email communications between forensic and investigating officers during the intervening period.

44 The sentencing judge said the following in respect of the delay during the above period, placing it in the context of the longer period since the offending:

[Defence counsel] referred to the progress of this matter and you ultimately being charged with it. ... You were spoken to by police on [16] July 2014, although you were not charged with any offences until April 2015 ... There had been a significant delay between this offending and you being questioned and then charged with these offences.

... Given the nature of this being a cold case and the DNA match only recently obtained in 2012, that delay is not surprising. You managed to avoid detection for this offending over a considerable time. I do, however, note there had been some delay between the DNA match and you being charged of some three and [a] half years approximately. However, from the depositional material, it would appear additional material and statements were then being obtained by the prosecution. Such a delay does not, in my opinion, mitigate your sentence significantly, rather minimally.

[Defence counsel] submitted that chronology had also led to a loss of concurrency with the 2008[3] offending dealt with at Melbourne County Court on 12 December 2008. In my opinion, in the circumstances of this case and the chronology of it, and subsequent DNA match, such only minimally impacts upon the sentence I could consider appropriate for your offending.

Not surprisingly, [defence counsel] relied on the last five years of your life to the present, where there had been no offending and no court appearances. I accept that that is so and also relevant when assessing your rehabilitation prospects.[4]

45 The appellant contended that the judge was in error in concentrating on the cause of the delay, rather than its impact on the appellant. The respondent did not contest the applicable principles but submitted that delay was a matter of weight for the sentencing judge and that no error had been shown.

46 As Callaway JA explained in R v MWH,[5] the effects of delay may include, in particular, halting or endangering a successful process of rehabilitation:

It is the effects of delay that are important for sentencing. As in R. v. Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed.[6]

47 At the same time, there is no right to an automatic discount in every case of delay. Each case is different. The most that can be said by way of generalisation is that where prosecuting authorities have unduly delayed bringing the matter to court, there is more likely to be a discount.[7]

48 The appellant relied in particular on the period between 20 February 2012, when police first learned of the DNA match linking him to the present offences, and 27 April 2015, when he was charged. The appellant had not offended at all since his release from prison on 1 November 2012 and had embarked successfully on the path to rehabilitation before being charged again. Moreover, the appellant contended that the judge had failed to make allowance for the fact that the delay in charging him meant that he had lost the opportunity of being sentenced while still serving his sentence imposed in 2008, for the second of the three sets of sexual offending in 1984, which would have entailed the opportunity of a sentence at least partly concurrent with that sentence.

49 The sentencing judge's reference to the prosecution obtaining additional material and depositions in the intervening period was not irrelevant. The explanation for the delay went to the question whether it was undue or unfair in the circumstances, and indicated that it was not. Nonetheless, the effects of the delay were what the judge was required to focus on. The appellant submitted that she had overlooked this factor.

50 In our opinion, this ground is not made out. The judge's treatment of the absence of offending in 'the last five years' revealed that she regarded that matter as relevant both to delay and to rehabilitation. Dealing with the two matters together indicated that she had regard to the effect of delay upon the appellant's rehabilitation and did not focus only on the explanation for the delay.

51 Moreover, it cannot be inferred that the sentence itself reveals the error suggested. The sentence, viewed in isolation, is modest given the seriousness of the offending.[8] Indeed, in our view the sentence is explicable only by the most unusual facts that the offences were dealt with over 30 years after they had been committed, in circumstances where two substantial terms of imprisonment had been served in the meantime for similar offences committed at about the same time, and where all the offences had been committed as a 17 year old.

52 The judge's treatment of delay also needs to be read bearing in mind the judge's guarded observations about the appellant's rehabilitation:

Ultimately, I have at best guarded optimism regarding your rehabilitation prospects. Having said that, I am mindful of some protective aspects that are now in your life, and absent in the past, including a supportive partner, employment opportunities and isolation from negative peers through your place of residence.

...

Ms Lechner identified a number of protective factors in your life, such as your long-term relationship, completion of the Sex Offenders Treatment Program and abstinence from substance abuse. I am also aware of these.

But as I have said, ultimately I have guarded optimism regarding your rehabilitation prospects. Your subsequent criminal history gives me little comfort in that regard, however again I note your sexual offending was many years ago.

In sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be. In that regard, I am conscious you have not offended in the past few years and that you have developed a positive life with your current partner.

...

[Defence counsel] conceded your rehabilitation prospects were guarded, however, bearing in mind what was currently in place, she urged I conclude your rehabilitation prospects were good. In my opinion, as I have said, I have concerns about your rehabilitation prospects, given your lengthy and extensive criminal history and of course your relevant sexual offending, although I note no further offending in that regard since 1984. I do also of course note that you have, in the last five years, made some efforts towards your rehabilitation and there have been some positive aspects to your life which, if they continue, provide hope that you will be eventually successfully rehabilitated.[9]

53 We have set these passages out at some length because they reveal not only that the judge was guarded as to the appellant's prospects of rehabilitation but also that she sought to impose a sentence that would enable him to build on the successful steps he had taken towards rehabilitation. In those circumstances, the judge was evidently concerned not to halt or endanger the appellant's rehabilitative progress.

54 The fact that the judge's conclusion concerning the appellant's prospects of rehabilitation was 'guarded' means that the significance of the delay was reduced. Delay will be most unfair and its effects most acute in the case of an offender who is regarded as fully rehabilitated at the time of sentence. That was not this case.

55 In our opinion, it was open to the judge in all the circumstances to regard the impact of the delay as minimal.

56 The appellant's position is not further advanced by reference to the alleged loss of the opportunity for concurrency with the sentence imposed in 2008. As explained below in relation to proposed ground 3, the fact of the earlier sentence fell to be taken into account in any event. This consideration does not affect the conclusion, reached above, that it was open to the judge to regard the impact of the delay as minimal.

58 The appellant seeks leave to appeal on the further ground that his present sentence, considered along with the two other sentences for his sexual offending in 1984, fails to properly give effect to the principle of totality. The appellant relies upon the fact that the three sentences in aggregate amount to a head sentence of 21 years and 6 months, for offences committed as a 17 year old. The appellant repeated the contention, in this context, that he had lost the opportunity of concurrency.

59 The respondent submitted that the totality principle relates only to the sentences being dealt with by the sentencing judge and does not require mitigation of a sentence by reference to previous sentences already served.

60 The appellant relied on the High Court's decision in Mill v The Queen.[10] In that case the offender committed three armed robberies in Victoria and Queensland during a six week period. He was sentenced in Victoria to a term of imprisonment. On his release on parole he was arrested and returned to Queensland where he was convicted and sentenced to a further term of imprisonment, with a recommendation for a shorter than usual non-parole period in recognition of the period he had already served for the Victorian offences. The High Court held that it was necessary to take account of the sentence already served for the purpose of the whole of the second sentence and not only the non-parole period. The Court endorsed the following principles articulated by the New South Wales Court of Criminal Appeal in R v Todd,[11] another case involving offences in two jurisdictions:

it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences. ...

where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.[12]

61 The High Court described the above exposition as reflecting:

a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time.[13]

In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.[14]

63 The Court explained that the proper approach might result in a sentence that fails adequately to reflect the seriousness of the offence:

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.

Without statutory authority, the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody. It is true that the lower head sentence will fail to reflect adequately the seriousness of the crime in respect of which it is imposed. That is unfortunate. However, it is to be preferred to the injustice involved in the imposition of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of State boundaries.[15]

64 It can be seen that the above observations concerned the situation where the fact that offending has occurred in more than one jurisdiction has rendered it impossible to sentence the offender for all the offending on a single occasion. The appellant submitted that the principles nonetheless apply also in a situation where the offending has taken place within a single jurisdiction. He referred to the need for a sentence to be a just measure of an offender's total criminality, consistent with achieving the various objectives of sentencing.[16] It may be noted also that the principles in Todd were expressed to apply where there is a lengthy postponement 'whether due to an interstate sentence or otherwise'. However, the respondent contended that the need for a reduction of sentence in that case arose from discrete considerations of fairness particular to the situation with which the courts in question were faced. Reliance may be placed in that context on the High Court's observation that the law was inadequate 'to cope satisfactorily with the intervention of State boundaries'.

65 The Sentencing Act 1991 does not directly address the present situation. Had the appellant been serving a sentence of imprisonment when he was sentenced for the current offending, s 14(1) would have required the court to fix a new single non-parole period in respect of all sentences to be served or completed. Similarly, s 16 has the effect of requiring the sentencing court to decide the extent to which the sentence imposed is to be served concurrently with an uncompleted sentence. The effect is that the total effective sentence of the offender is necessarily redetermined. The totality principle would have had application in that context, at least if the offences were connected in time and as to their nature.[17] No such process of redetermining the total effective sentence or fixing a single substituted non-parole period is involved in sentencing a person whose prior sentence has already been served. No provision requires that specific account be taken of sentences already served in the manner now contended for by the appellant.

66 Nonetheless, it has become clear since Mill that the principles set out above are not an exhaustive account of the circumstances in which the totality principle applies by reference to previously imposed sentences. As just noted, it may also apply where there is a previously imposed sentence still being served.[18]

67 This Court has not decided whether the totality principle is applicable to the sentencing of a person by reference to other offences for which that person has previously been sentenced, in circumstances where the offender has already served the previous sentence or sentences. In Wright v The Queen,[19] the Court took totality into account in a case of that kind but in doing so proceeded without elaboration on a basis agreed by the parties. We have, however, found assistance in decisions of other intermediate courts of appeal.

68 In R v Bruce,[20] the appellants had previously been convicted of a number of offences related to getting money for their heroin addiction and had served sentences of imprisonment for that offending. The relevant offending for the purposes of the appeal took place earlier but charges were not laid until after the sentences had been served. The sentences that had been served had positive rehabilitative effects on the appellants. It does not appear to have been in issue that the totality principle applied.[21] Doyle CJ (with whom Pryor and Lander JJ agreed) said this, after referring to the serious nature of the offending in question:

However, as is well-established, one has to look at the totality of the punishment imposed, and consider whether, even though justifiable in the abstract, the actual sentence is more than is required for the purposes of punishment and deterrence. The court on numerous occasions has referred to the question of whether the sentence is a crushing one. That is, I consider, another way of stating the same point.

I regard these two cases as very difficult cases. I agree that it is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct. On the other hand, one has to be careful not to simply take a 'bulk discount' approach.[22]

69 Leaving aside whether the totality principle is properly seen as involving only the need to avoid a crushing sentence, this passage represents express acknowledgement of the applicability of the principle where relevant sentences have already been served.

70 The South Australian Court of Criminal Appeal had occasion to revisit the issue in R v Knott.[23] This was a successful Crown appeal. The sentencing judge, faced with another situation in which an offender had previously served a sentence for part of the same course of criminal conduct, determined a notional sentence as though he were being sentenced for the whole offending at one time and then made adjustments to that sentence. The adjustments reflected pleas of guilty, remorse, the totality principle and time spent in custody.[24] These amounts did not involve a simple arithmetical reduction by reference to the length of the prior sentence. The Court (Gray J, with Doyle CJ and David J agreeing) held that the judge had erred by having regard to a notional sentence as though he were being sentenced for the whole offending at one time. Gray J cited the reference in Bruce to making 'some allowance, in a manner in which one cannot be precise' and continued:

The sentencing Judge erred in the application of sentencing principle. The respondent was to be sentenced as at November 2006 with respect to the present offending. It was relevant for the Judge to have regard to events that had occurred since the offending. Those events included the sentence imposed for the 1999 offending. In particular rehabilitation following release on parole was a relevant matter. The approach taken by the Judge involved the fixing of a notional sentence as though the respondent was being sentenced in 1999 and then making adjustments to that notional sentence. As earlier observed that approach was in error.[25]

The Court then went on to resentence the respondent, including by giving 'consideration to the totality principle'.[26] It is not clear from the reasons whether this is a reference to the totality of the offending before the court, or the totality of that offending together with the offending giving rise to the prior sentences. In either event, the Court applied the 'some allowance' approach described in Bruce to the earlier sentence, by whatever name.

71 Knott shows that, to the extent that it can be said that the totality principle applies to cases such as the present, it does so in a very distinct manner. Its application does not proceed by seeking to identify what total sentence would have been imposed had all the offending been before the court at the time when the person was first sentenced and then making adjustments to that sentence. On the other hand, the fact of the sentence and its effects are apt to be highly relevant sentencing considerations.

72 In a further case raising the same issue, the New South Wales Court of Criminal Appeal in Wu v The Queen[27] explained Knott as turning on the 'two tier' nature of the sentence in that case, rejecting a Crown submission that Knott had held that there had been a misapplication of totality principles.[28] The sentence in Wu was set aside as a result of the omission of the sentencing judge to make mention of totality having regard to the earlier sentence, which had already been served. Giles JA pointed out that an offender was not deprived of the right to have the court look at the totality of their criminal behaviour and ask itself what the appropriate sentence for all the offences would be, notwithstanding that the offender had failed to volunteer commission of other offending when first sentenced. Otherwise, there could be conflict with the right to remain silent.[29] In that regard, his Honour expressed disapproval of previous authority expressing a contrary opinion.[30]

73 The totality principle was again applied in a case such as the present by the New South Wales Court of Criminal Appeal in Warwick v The Queen.[31] The reasoning of the Court appears sufficiently from the following passage:

As can be seen from the timeline reproduced above, the present offence (the August 2010 offence) was committed by the applicant about a week before a similar offence (the September 2010 offence). However, because the DNA match was not made until July 2014, the applicant was charged, convicted and served his sentence for the September 2010 offence before he was even charged with the August 2010 offence. Had the DNA match been made earlier he would probably have been sentenced for the August 2010 and the September 2010 offences at the same time and could have expected a degree of concurrency to operate between those offences because they were so similar and proximate in time.

Where, as in the present case, a sentencing judge imposes a sentence on an offender who has already been sentenced by another judge, the second judge must not only regard the first sentence as an appropriate exercise of the first judge's discretion, but must also seek to determine what the overall sentence would have been had the offender been sentenced at the one time for all offences: [MAK [2006] NSWCCA 381; 167 A Crim R 159] at [99] (Spigelman CJ, Whealy and Howie JJ). The difficulty of this task imposes an additional obligation on counsel to provide assistance as to how the principles of totality ought operate in the particular case.

The correct application of the principle of totality serves to remove from consideration arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced later for an offence committed earlier than one for which he has already been sentenced. The totality principle has the effect that, if all other things were equal, the total sentence imposed on the applicant for the August 2010 and the September 2010 offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences.[32]

74 This decision comes closest to endorsing the argument advanced by the appellant in the present case. The Court spoke of the need to determine what the overall sentence would have been had the offender been sentenced at the one time for all offences.[33] However, the Court confirmed that the sentence previously imposed and served was a matter that the sentencing judge was required to take into account as part of the instinctive synthesis.[34] Consistently with Knott and Bruce, that did not require the sentencing court to start by working out what sentence would have been imposed had all the offences been tried together and then making adjustments to that sentence. The Court in Wu did not approach resentencing in that way either.

75 In that respect, the application of the totality principle in circumstances such as the present differs from that undertaken in Mill. The exercise in Mill involved treating the offender as if he had been sentenced for all offending at the same time, leading potentially to an unduly low sentence for the last-sentenced offence. In that way, it entailed a departure from the instinctive synthesis approach.

76 In our opinion, Mill is properly to be distinguished. The deferment of sentence in Mill was caused by the intervention of State boundaries which constituted a legal obstacle to the offender being sentenced on a single occasion. That was not the case here. Here, the deferment was caused by the fact that the appellant was not apprehended in respect of the present offending until he had already served his sentences for other offending. That does not involve unfairness of the kind which led the High Court in Mill to endorse the fixing of a sentence that failed adequately to reflect the seriousness of the crimes in question. There, a legal obstacle precluded the matters being dealt with together. Here, the matters were not dealt with together because the appellant was not apprehended as the perpetrator of the relevant crimes for many years.

77 Accepting that the appellant would in all likelihood have received a lesser total sentence for the 1984 sexual offences had he been sentenced for all of them on a single occasion, to sentence him now as if all crimes were being sentenced together would be wholly unrealistic and contrary to the factual circumstances in which the court is required to sentence.[35] In our view, it is not what the authorities in other jurisdictions require.

78 However, consistently with those authorities, the prior sentences and time spent in custody are part of the appellant's circumstances which were required by the principle of totality to be taken into account.

79 The judge was acutely aware of the relevant sequence of events. She set them out in some detail, and clearly treated them as very relevant matters. Indeed, as we observed earlier, given the very serious nature of the offending, it seems to us the modest sentences imposed are explicable only by reference to these circumstances. However, the issue now raised on appeal was not brought to the sentencing judge's attention, and she did not refer to it in terms in her sentencing remarks. The only express reference to totality appears to have been to note the constraining effect of s 6E of the Sentencing Act 1991 on the principle when sentencing serious sexual offenders.[36]

80 The appellant should have leave to rely upon this proposed ground of appeal. It is arguable that the judge did not adequately address a relevant matter.

81 However, we are unpersuaded that the sentencing judge in fact made any material error in relation to this issue, given the attention which she gave to the relevant sequence of events. Even if it were assumed that she did make a material error, we would not allow the appeal on this ground because we are satisfied that no different sentence should be imposed.[37]

82 Although the appellant was aged 17 at the time of the offending and pleaded guilty, the rape and the related burglary were extremely serious offences. When these offences were committed the appellant already had convictions for sexual offences, albeit in quite different circumstances. This was a terrifying, violent and degrading attack on a woman in her own home in the dead of night. In our opinion, the sentence imposed was moderate. In our view, it necessarily must be seen as principally the product of the appellant's youth at the time of offending, his plea of guilty, his prospects of rehabilitation and the fact that the objectives of specific deterrence and rehabilitation had been already substantially addressed by the intervening sentences.[38] That conclusion involves applying the principle of totality as it operates in cases such as the present.

83 For these reasons, while the appellant should have leave to argue this ground, the ground fails.

84 The Sex Offenders Registration Act establishes a Register of Sex Offenders. It requires certain offenders to report specific personal details for inclusion in the Register.

85 In general terms, a person is a 'registrable offender' under the Act upon being sentenced for a 'registrable offence': s 6. A 'registrable offence' is a Class 1 or Class 2 offence, or an offence that results in the making of a sex offender registration order: s 7(1). The common feature of the offences within the definitions of Class 1 and Class 2 offences is that they are sexual offences against children. An exception is provided for a person who is sentenced for a 'Class 1 or Class 2 offence' (as defined) committed as a child: s 6(3)(a) (this exception encompasses children who have sexually offended against other children).[39]

86 Section 11 extends the scope of 'registrable offenders' to those sentenced for Class 3 and Class 4 offences and in respect of whom a sex offender registration order is made under the section. By virtue of s 8(1) and sch 3, Class 3 offences are essentially offences that involve sexual penetration committed against an adult by a 'serious sexual offender'. By virtue of s 8(2) and sch 4, Class 4 offences are sexual offences of which, generally speaking, penetration is not a necessary element, committed against an adult by a 'serious sexual offender'. A 'serious sexual offender' for these purposes is a person sentenced for at least two offences listed in a schedule to the Act: s 8(3).

87 In summary, those sentenced for sexual offences against children, broadly speaking, are automatically placed on the Register, while other sexual offenders are liable to registration only if they are 'serious sexual offenders' and an order is made under s 11.

88 Section 11 of the Sex Offenders Registration Act provides for a sentencing court to order that certain offenders comply with the reporting obligations of the Act. The effect of such an order, despite that description, extends to prohibiting the person from engaging in child-related work, by virtue of the definition of 'registered sex offender' in s 67 of the Act.

89 Section 11 relevantly provides:

(1) If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.

(2) A court on sentencing a person for a Class 1 or Class 2 offence committed as a child may order that the person comply with the reporting obligations of this Act if, because of section 6(3)(a), the person is not a registrable offender.

(2A) If a court finds a person guilty of an offence committed as a child that is not a Class 1 or 2 offence (including a Class 3 or 4 offence) it may order that the person comply with the reporting obligations of this Act.

(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.

(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.

90 The sentencing judge in the present case said that the rape in this case was a 'Class 1 offence' as defined in the Act. That was not so. The parties were agreed that rape could be a class 1 offence only where it is committed against a child. In cases where rape is committed against an adult by a person who is a serious sexual offender, as defined, it is a 'Class 3 offence': s 8(1). The parties agreed that the present offence of rape constituted a 'Class 3 offence'. Nothing turns on the distinction for present purposes,[40] but the power of the court to make an order arose under s 11(2A) rather than s 11(2) of the Act.

91 The appellant submits that the judge erred in failing to apply s 11(3) of the Act when making the order. He seeks that the order be set aside.[41] He makes two complaints. It is first said that the sentencing judge failed to apply the 'risk' test in s 11(3). It is also submitted that the judge failed to have regard to the serious consequences of registration for the appellant.

92 The operation of s 11(3) was explained by this Court in Bowden v The Queen.[42] The following propositions emerge from that analysis:

(a) The inquiry whether to make a registration order involves a two-stage process.

(b) The first question is whether the court is satisfied beyond reasonable doubt that the person poses a risk to sexual safety as defined.

(c) For the court to be so satisfied, the risk must be real rather than fanciful.

(d) The evaluation of risk is directed to the risk upon the offender's release into the community, assessed by what is presently known.

(e) The second question, which only arises if the court is satisfied that the requisite risk exists, is whether the order should be made in all the relevant circumstances.

(f) The second stage involves balancing the identified risk, having regard to the purpose of the Act, with the restrictions imposed on the offender's right to enjoy freedom and autonomy of action.

(g) The balancing exercise involves considering the magnitude and nature of the risk, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender.

The court should not make a registration order in respect of an offender who has committed a Class 3 or Class 4 offence unless there is no reasonable doubt that the offender poses ... or will pose on release ... a real risk to the sexual safety of one or more persons or of the community.

...

The obligation on the sentencing judge, when exercising this discretion, is to impose the registration obligations under the Act when and to the extent that is reasonably necessary to give effect to the statutory purpose.[43]

94 The sentencing judge made the following remarks in respect of her decision to make an order under the Act:

Turning to the Sex Offenders Registration Act 2004, [defence counsel] submitted relying on the decision of [Bowden], I should not be satisfied that you pose a real risk of further sexual offending, relying as she did upon the report of Ms Lechner and as such, given the onerous nature of the order, I should not, she said, be satisfied beyond reasonable doubt you pose a real risk as defined in Bowden and that the order should not be made.

...

Turning to the sex offenders register, [the prosecutor] submitted considering your history and recent offences involving commission of burglaries as recently as May 2011 and July 2010, that there was a real risk and that categorisation as low to medium was not the end of my analysis of your assessment. I agree.

...

Being mindful of the absence of further sexual offending since 1984, I do however direct you be subject to reporting conditions on the Sex Offenders Register. Rape is a Class 1 offence, risk classification is not the only basis on which such is determined. You have also relatively recently appeared at Court on charges of burglary.

I am satisfied the order should be made and that you have been in custody for in total a very significant period between then and 2011. You will be required to report, pursuant to the Sex Offenders Registration Act for seven and a half years, which is correct.[44]

95 Based upon the judge's reference to risk classification not being the 'only basis' for the decision, and her endorsement of the prosecutor's submission that categorisation of risk as low to medium is not 'the end of [the] analysis', the appellant argued that the judge had failed to apply the first stage of the test.

96 We disagree. The judge referred to Bowden and expressed agreement with the submission that the appellant represented a 'real risk'. There is no reason to think that, in doing so, she misapplied the test regarding risk. The better view is that, as the respondent submitted in this Court, the judge recognised that the classification or categorisation of risk by Ms Lechner was not determinative of the question of risk.

97 The second aspect of the appellant's argument under this ground concerned the balancing aspect of the test. It was submitted that the judge had failed to have regard to the serious consequences for the appellant of making an order.

98 Although the judge referred to Bowden in the context of assessing risk, she did not in terms refer to the second stage of the Bowden test. The prosecutor's submission, which the judge accepted, as to risk not being the end of the analysis might have been read as drawing attention to the two stage nature of the test. But the judge did not refer to any factors that might weigh in the balance on the second stage of the test. Instead, she referred to the more recent burglary convictions as the reason why the 'risk classification' was not 'the only basis' on which the decision depended. That matter weighed against the appellant and is consistent with evaluating risk by reference to considerations going beyond Ms Lechner's opinion under the first limb of Bowden, rather than with a balancing of relevant considerations under the second.

99 Bowden shows that a court deciding whether to make an order under s 11 is required to be satisfied that it is reasonably necessary to do so in order to give effect to the statutory purpose, and that this involves a consideration of the magnitude and nature of the identified risk to sexual safety, including the degree of likelihood of the risk eventuating and the gravity of the harm, to be balanced against the serious consequences for the offender in terms of loss of freedom and personal autonomy. As we have said, although the judge made it clear that she was aware of the Bowden test, there is no indication in the sentencing remarks that the judge undertook this exercise. That does not necessarily reveal error but in the circumstances of this case, which involved unusual considerations relevant to the balancing exercise, it must be concluded that the judge did not properly address the second stage of the test.

100 For that reason, in our opinion, the discretion under s 11 miscarried. The result is that there is an error in the sentence in that respect. It is then necessary for the appellant to persuade the Court that a different 'sentence' should be imposed.[45]

101 In that regard, the appellant submitted that the Court could not be satisfied on either limb of the two stage test. It was said that the Court could not be satisfied beyond reasonable doubt that the appellant poses a risk to the sexual safety of one or more persons or of the community. He was 50 years old when sentenced and his sexual offending all occurred more than 30 years ago when he was 17 years old. He is remorseful and finds his sexual offending abhorrent. He has completed a sex offenders program. Before being sentenced, he had lived in the community for five years without offending in any way. He has moved away from negative influences, has had periods of stable employment, and has been in a long-term relationship. He has ceased using drugs. Ms Lechner has assessed him as a 'low/medium' risk of reoffending, emphasising that the 'medium' aspect of the risk does not relate to sexual offending.

102 In our opinion, the evidence establishes that the risk the appellant poses to the sexual safety of the community, in light of the above matters, might properly be seen as low. However, we would not regard it as fanciful. Nor did Ms Lechner use that kind of language. Given the serious and repeated nature of the appellant's offending, albeit as a child, and the relatively limited time he has spent in the community since, the risk he presents to sexual safety as defined must be regarded as real. As the prosecutor submitted at the plea hearing, one aspect of that risk is that the appellant has committed burglaries more recently than 1984, and his sexual offending in 1984 took place in that context.

103 In relation to the second stage of the test, the Court in Bowden referred to the need to balance the serious consequences for an offender of submitting to the registration regime.[46] Contrary to the literal terms of s 11, those consequences are not confined to the reporting requirements. Section 67(1) provides that a person subject to a sex offender registration order is a 'registered sex offender' and therefore prohibited by s 68 from applying for or engaging in child-related employment, which is broadly defined.

104 The onerous nature of registration appears, not only from the prohibition on child-related employment, but also from the obligation to report an extensive range of matters on an annual basis including the name of each child with whom the offender has contact (ss 14(1)(e), 16(1)) and that child's age, residential address and telephone number or the location where the contact takes place (s 14(1)(ea)) and details of affiliation with any club or organisation that has child membership or child participation in its activities (s 14(1)(g)). Changes to reported personal details must themselves be promptly reported (s 17), as must the person's intended absence from Victoria (s 18), any change of travel plans while out of Victoria (s 19), their return to Victoria and any decision not to leave Victoria after having previously advised to the contrary (s 20).

105 It is necessary to apply the balancing test with the objects of the Act in mind. Section 1 states the purposes of the Act. They include: to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details in order to reduce the likelihood that they will reoffend and to facilitate the investigation and prosecution of any future offences they may commit; to prevent registered sex offenders from working in child-related employment; and to provide for the making of prohibition orders to prevent registrable offenders from engaging in certain conduct. The last of these purposes is served by pt 4A of the Act. A prohibition order may be made if a registrable offender has engaged in behaviour, having regard to which a court is satisfied that the offender poses a risk to the sexual safety of one or more persons or of children or the community generally and that making the order will reduce that risk: s 66I(1).

106 It can be seen, consistently with the analysis of the Court in Bowden, that the making of an order under s 11 is by no means automatic. The Act operates generally to require registration of sexual offenders against children and provides for registration also of other sexual offenders only where the sentencing court so orders. This helps place the balancing exercise in context.

107 The difference in treatment of offenders against children and other offenders is significant when considering the purposes of the Act. In particular, the purpose of preventing offenders from engaging in child-related employment is plainly aimed at protecting children from sexual offending and therefore most appropriately served by registration of offenders against children. Again, the focus of several of the reporting obligations is on the protection of children from sexual offending. The risk identified by the respondent in the present case is not that the appellant might offend against children but that he might offend against an adult, for example in the course of committing a burglary. The child-protection purposes of the Act are not necessarily served by making an order in the case of an offender against adults. It is also relevant to bear in mind that the protection of children from those who work with them is further addressed by the Working with Children Act 2005.

108 In the present case, the primary interest to be served under the Act by the making of an order under s 11 would therefore be to reduce the likelihood that the appellant will reoffend and to facilitate the investigation and prosecution of any future offences he may commit. An order would also enable a future application to be made for a prohibition order, should that be necessary. That would itself serve the purpose of reducing the likelihood of re-offending.

109 This is a very unusual case. The appellant is now aged 51. He has not offended sexually since 1984 when he was aged 17. He has not been convicted of any offences since 2011 and he complied with his parole after his release in 2012. The time that has passed since the sexual offending, and the appellant's age at that time, suggest a lesser risk of further sexual offending and this is borne out by Ms Lechner's opinion.

110 The outlook with respect to non-sexual offending is of more concern. It is not altogether clear that this is a factor relevant to the exercise of the discretion to make an order under s 11. The purpose of the Act articulated in s 1 refers to 'certain offenders who commit sexual offences' but also uses general language: 're-offend' and 'any future offences'. There is a strong argument that these latter expressions are references to sexual offences only, given the former expression and the subject matter of the Act as revealed by its operative provisions and confirmed by its title. However, it may be assumed for present purposes that the risk of non-sexual offending may bear on the discretion. That matter tends in favour of making an order in the present case, given the appellant's very extensive criminal record. But the weight to be accorded to that factor is again moderated by the appellant's record since 2012 and his changed circumstances since that time.

111 It is clear from Bowden that the burdens of registration are only to be imposed on an offender when and to the extent that is reasonably necessary to give effect to the statutory purpose.

112 Having identified error in the sentence, the Court must dismiss the appeal unless satisfied that a different sentence should be imposed: s 281. The Court is then required to set the sentence aside and either impose the sentence that it considers appropriate (whether more or less severe) or remit the matter to the originating court: s 282(1).

113 We are persuaded that the order made should be set aside. We consider that the application for a sex offender registration order should be remitted to the County Court to be heard by a different judge. Oral evidence was given on relevant issues before the sentencing judge. We do not have the sentencing judge's analysis of that evidence in the relevant context. Indeed, we do not have the sentencing judge's express consideration of any of the relevant factors in the balancing exercise required by the second stage of the Bowden test. Nor were these matters (including the features of the legislation canvassed above) the subject of full argument in this Court. We have concluded that we do not have adequate material before us to properly assess the second limb of the Bowden test.

114 We will allow the appeal on ground 1. The order made under s 11(3) of the Sex Offenders Registration Act should be set aside and the application for a sex offender registration order should be remitted to the County Court to be heard by a different judge. It will be a matter for that judge, assuming that the application proceeds to hearing, whether either limb of the Bowden test is satisfied on the material then before the court.

115 Leave to appeal should be granted on ground 3. The appeal on ground 1 should be allowed but the appeal on the remaining grounds should be dismissed.

[1] Crimes Act 1958 ss 460(4), 460(7).

[2] DPP v Sayer [2017] VCC 753 [65] ('Sentencing Remarks').

[3] This appears to be a reference to the sentencing in 2008 for the second of the rapes that the appellant committed in 1984.

[5] [2001] VSCA 196.

[6] Ibid [18] (citations omitted). See also R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 399-400 [32]-[36] (Maxwell P, Chernov JA and Habersberger AJA agreeing).

[7] R v Nikodjevic [2004] VSCA 222 [22] (Ormiston JA, Callaway and Vincent JJA agreeing); DPP v Bales [2015] VSCA 261 [29] (Osborn, Kaye and McLeish JJA).

[8] That is so, even though the appellant was 17 years old at the time of the offences and the maximum penalty for rape was then 10 years' imprisonment.

[9] Sentencing Remarks [30], [53]-[55], [86].

[10] [1988] HCA 70; (1988) 166 CLR 59 ('Mill').

[11] [1982] 2 NSWLR 517, ('Todd').

[12] Mill [1988] HCA 70; (1988) 166 CLR 59, 64, 65-6 quoting Todd [1982] 2 NSWLR 517, 519-20 (Street CJ, Moffitt P and Nagle CJ at CL agreeing).

[13] Mill [1988] HCA 70; (1988) 166 CLR 59, 66.

[16] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 61 [61]-[62] (Redlich JA, Coghlan and Macaulay AJJA agreeing); see also Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8 (McHugh J), 340-1 (Kirby J) ('Postiglione').

[17] Postiglione [1997] HCA 26; (1997) 189 CLR 295, 308-9 (McHugh J) (referring to s 19AD of the Crimes Act 1914 (Cth)); R v Mangelen [2009] VSCA 63; (2009) 23 VR 692, 697 [28] (Redlich JA, Ashley JA agreeing); Contin v The Queen [2012] VSCA 247 [52]-[68], [74]-[76] (Weinberg JA, Buchanan JA agreeing); McCartney v The Queen (2012) 38 VR 2, 20 [92]ff; Morgan v The Queen [2013] VSCA 33; (2013) 40 VR 32, 48-56 [65]-[107] (Maxwell P, Weinberg and Priest JJA) ('Morgan'); R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, 183 [99] (Spigelman CJ, Whealy and Howie JJ) ('MAK').

[18] Ibid. It is not necessary to consider here whether it applies in cases where the offending in question is not 'closely related in time and character': Morgan [2013] VSCA 33; (2013) 40 VR 32, 48-56 [65]-[107] (Maxwell P, Weinberg and Priest JJA).

[19] [2009] VSCA 27 [19], [32], [46] (Maxwell P, Neave and Weinberg JJA). See also R v Pollock [2012] QCA 231 [16]-[19] (Muir JA, White JA and Philippides J agreeing).

[20] (1998) 71 SASR 536 ('Bruce').

[23] [2007] SASC 74; (2007) 169 A Crim R 291 ('Knott').

[27] [2011] NSWCCA 102; (2011) 211 A Crim R 88 ('Wu').

[28] Ibid 99 [50] (Giles JA, RS Hulme and Adams JJ agreeing).

[30] See ibid 96 [37], 99 [54], citing R v Webster [2005] NSWCCA 110 [32]-[33] (Hoeben J, Giles JA and Johnson J agreeing) and R v Kay [2004] NSWCCA 130.

[31] [2016] NSWCCA 183 ('Warwick').

[32] Ibid [30]-[32] (Adamson J, Payne JA and RA Hulme J agreeing).

[33] The authority cited for the proposition, MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159, did not involve prior sentences already served.

[34] Warwick [2016] NSWCCA 183 [33].

[35] See, eg, Warwick [2016] NSWCCA 183 [33].

[36] Sentencing Remarks [82]. The appellant was sentenced as a serious sexual offender because he had been convicted of '2 or more sexual offences for each of which he ... [had] been sentenced to a term of imprisonment': Sentencing Act 1991 s 6B(2).

[37] Criminal Procedure Act 2009 s 281(1)(b).

[38] We note again that the maximum penalty for rape was then 10 years' imprisonment.

[39] Section 6(3)(a) has subsequently been repealed. The same exception is now contained within the definition of 'registrable offence' in s 7(1)(a)-(b).

[40] As the appellant was a child when he committed the present offence of rape, he could not have been a 'registrable offender' other than by order under s 11 of the Act. See [85] above.

[41] The order is a 'sentence' for the purposes of the Criminal Procedure Act 2009: s 3, paragraph (c) of the definition.

[42] [2013] VSCA 382; (2013) 44 VR 229, 236-9 [30]-[42] (Redlich and Coghlan JJA and Dixon AJA) ('Bowden').

[43] Ibid 238 [38], 239 [42]. While the first of these paragraphs refers only to Class 3 and Class 4 offences, s 11(3) applies to any order made under s 11, which also provides for an order in respect of Class 1 or Class 2 offences committed as a child: s 11(2). As mentioned above, that is not this case because rape committed against an adult is not a Class 1 offence.

[44] Sentencing Remarks [85], [90], [96]-[97]. The period of seven and a half years is provided by statute: see s 34(1)(c)(i) and (4)(a) of the Act, read with s 35(2).

[45] Criminal Procedure Act s 281(1), read with the definition of 'sentence' in s 3.

[46] Bowden [2013] VSCA 382; (2013) 44 VR 229, 239 [42] (Redlich and Coghlan JJA and Dixon AJA).