Thomas v The Queen [2020] VSCA 107

1 On 20 February 2019, the applicant was sentenced in the County Court at Melbourne for four offences committed, as part of one episode, in 1986. The details of the sentences are set out in the table below.

(s 77 of the Crimes Act 1958)

(s 75A of the Crimes Act 1958)

(s 46(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980)

9 years and 9 months' imprisonment with a non-parole period of 7 years and 3 months

2 No pre-sentence detention was ordered because when he was sentenced, the applicant was serving another sentence. On 23 August 2016 in the District Court at Brisbane, the applicant was sentenced to a total effective sentence of nine years and six months' imprisonment, with a non-parole period of two years and nine months. By the time the applicant was extradited to Victoria for the Victorian offences, he had served three years, 11 months and three days of his Queensland sentence. His non-parole period had expired one year, two months and six days prior to his extradition. Despite being recommended to parole[1] at the expiry of his minimum term, the applicant was denied parole in Queensland and remained imprisoned, pending his extradition to Victoria to be dealt with on the charges the subject of this application for leave to appeal against sentence.

3 The judge ordered that the Victorian sentence, which commenced on 20 February 2019, be served concurrently with the balance of the Queensland sentence. It follows that the applicant will be eligible for parole in Victoria four years and six months after 20 February 2019. By that stage, the applicant will have been in custody for eight years, five months and three days.

4 The applicant's Victorian sentence will expire seven years and eight months after 20 February 2019.[2] By that stage, his Queensland sentence will have expired by eight months.[3]

5 The combination of the Queensland and Victorian sentences results in an overall total effective sentence of 11 years, seven months and three days, with an effective non-parole period of eight years, five months and three days.[4]

6 The applicant has raised a single ground of appeal:

Ground 1: The sentencing judge erred by failing to have proper regard to the:

1. Non-parole period fixed as part of the Queensland sentence (imposed on 23 August 2016) that the applicant was serving;
2. Direction made by his Honour Judge Reid (on 23 August 2016) as to when the applicant was to be eligible for parole;

1. Practice that that non-parole period and direction represented; and

1. Had been eligible for parole from 14 December 2017;
2. Had not been granted parole on that date because of this offending;
3. Could not have had the period of time from 14 December 2017 to 20 February 2019, a period of 1 year 2 months 6 days, reckoned as pre-sentence detention when this sentence was imposed.

7 The applicant complained that the effective non-parole period was 73 per cent of the overall total effective sentence. The applicant submitted that her Honour failed to reflect the Queensland non-parole period in the Victorian sentence, which combined with the Queensland sentence to result in the overall effective sentence.

8 We shall set out the background to both sets of offending.

9 The applicant pleaded guilty to 121 property related offences, involving 51 commercial properties. These offences were committed between November 1999 and August 2000. He also pleaded guilty to five similar offences committed between September 2003 and July 2005. The Queensland offending involved a string of burglary offences committed upon small commercial premises, including petrol stations, convenience stores and community clubs. The total losses, including property damage, was in excess of $849,000. Of this sum, property stolen was in the range of half a million dollars. The offences were usually committed with a co-offender and were committed apparently in a professional manner, including the disabling of security systems and phone lines.

10 The applicant was arrested in July 2001, received bail in October 2001, and at some stage before sentence, absconded. In 2016, Judge Reid, when sentencing the applicant, recited a most unfortunate history of childhood deprivation and abuse, including sexual abuse, and of prior criminal offending. The judge was impressed by the applicant's endeavours to rehabilitate between 2005 and 2015 when he was finally arrested. He had obtained work and provided for his wife, three sons and stepdaughter. The judge noted that since 2005, the applicant had not offended against the criminal law and a treating psychiatrist, Dr Wendell Rosevear, described his rehabilitation as 'remarkable and inspirational'. Personal references were tendered, attesting to the dramatic change in the applicant's life.

11 The co-accused, with a lengthy but less serious criminal history, was sentenced to eight years and six months' imprisonment with parole eligibility after two years and eight months. He was sentenced for the same 1999 and 2000 offending, but not the 2003 to 2005 offending. He was also sentenced in 2015. It is apparent from the sentencing remarks that his Honour paid particular regard to principles of parity.

12 As we have said, on the Queensland offending, the applicant was sentenced to nine years and six months' imprisonment, and a minimum term before parole eligibility was set at two years and nine months. Expressed as a percentage, the minimum term was 29 per cent of the head sentence.

13 The victims, TM and LK, had been friends for many years. On 6 June 1986, TM invited LK to her house in Preston for coffee. As the women were drinking coffee, the then 20 year old applicant entered the house through the back door. He was masked, and carried a blue sports bag and a double barrelled shotgun (charge 1 - aggravated burglary). He pointed the gun at the women and said, 'This is a hold up. Where are the drugs?' Both women began screaming and crying. TM stated that there were no drugs. The applicant waved a gun in the faces of both women and said, 'Money. I want money, jewellery.' The women became hysterical.

14 The applicant forced the women to go to various rooms in the house and empty drawers. At gunpoint, he robbed TM of bank notes from her purse. He discovered TM's savings in a book on a shelf in the lounge room. He took it, again at gunpoint (charge 2 - armed robbery). LK begged the applicant not to kill them. He said, 'I'm not the killing type.'

15 The applicant ordered the women into TM's bedroom, again at gunpoint. He demanded that TM produce stockings, which she did. He made LK tie TM's legs together. TM was left lying face down on the floor with her hands tied to a bedside table. She thought she would be killed. The applicant put the shotgun to her head many times and told her to be quiet (charge 4 - false imprisonment).

16 Having immobilised TM, the applicant directed LK to a spare room. At gunpoint, she was made to undress and to tie her legs together with stockings. She pleaded with the applicant not to kill her. He tied her wrists to the bed legs, undid his pants, pulled her towards him and raped her (charge 3 - aggravated rape).

17 The applicant told LK, 'Don't get up now, wait five or 10 minutes and don't call the police.' The applicant pointed the gun at LK again and repeated, 'Don't get up yet and don't call the police.' He then left the house.

18 The police were called, samples were taken from LK and her clothing was lodged with the Forensic Science Laboratory. No offender was found for three decades. Both victims were terrified.

19 In 2010, a forensic sample taken from the applicant was placed on a national DNA database. Inexplicably, the investigation was not re-opened until February 2014, despite the applicant being forensically linked to the offending in 2010. Ultimately, the applicant was apprehended in Queensland on the Queensland matters in June 2015. He was interviewed in 2015 about the Victorian offending and denied all knowledge of the incident. He indicated that he would plead guilty in July 2018.

20 The applicant admitted a long criminal history, although most offending occurred after the charges the subject of this application for leave to appeal. He had prior convictions for burglary and theft. Subsequent to the 1986 Victorian offending, he incurred numerous criminal convictions, amongst other matters, for stealing with actual violence whilst armed; breaking, entering and stealing; and supplying a dangerous drug. He spent years in prison between 1991 and 2005.

21 The prosecutor on the plea tendered a victim impact statement from LK. The prosecutor explained her instructions that the delay from 2010 (the DNA linkage) to 2015 was the consequence of the applicant's endeavours to evade Queensland police. The prosecutor accepted that the realistic delay was from the applicant's arrest in 2015 to his being charged in 2017, during which period he was sentenced for the Queensland offending and his prisoner transfer to Victoria was effected.

22 The prosecutor conceded the rape offence was opportunistic, as opposed to premeditated, and she accepted that the applicant was genuinely remorseful. The prosecutor submitted the offending was 'high end serious', and general deterrence was an important consideration.

23 The prosecutor submitted that, whilst there should be some concurrency, it should not be total, as these were discrete, if connected, very serious offences.

24 On the plea, the applicant's counsel made the following observations and submissions:

• In November 2018, the applicant was aged 53. He was 20 years old at the time of the Victorian offending.
• At the time of the plea, he was serving the Queensland sentence.
• The offending is serious and warrants imprisonment, however, any term of imprisonment and non-parole period should be moderated to reflect powerful personal mitigating factors and the principle of totality.
• The transcript of the Queensland plea, and psychiatric and psychological reports tendered on that plea were tendered on the Victorian plea.
• The applicant was the victim of appalling childhood trauma, including witnessing and being subjected to domestic violence. He was repeatedly raped by a neighbour as an eight year old.
• He is dyslexic and was educated to Year 7.
• He left home at 14 years old after his mother's death from cancer.
• He has had a long history of substance abuse.
• While he has a long criminal history, there have been no other examples of sexual offending.
• Since the early 2000s, the applicant has significantly rehabilitated, abstained from drugs and alcohol since 2005, raised four children to be law abiding citizens and has not offended since July 2005.
• The applicant conceded that the Victorian offending was serious, and denunciation and just punishment are important sentencing considerations.
• The applicant has no memory of the offending and pleaded guilty on the strength of the DNA evidence alone.
• There was an early plea of guilty.
• There was no factual challenge to the allegations.
• There was a significant utilitarian benefit to his plea.
• He is profoundly remorseful.
• He was a very young offender when the offences were committed.
• His criminal history, up until the time of offending, was limited.
• Whilst the applicant absconded in 2004 or 2005 to avoid being dealt with on the Queensland offences, he did so to care for his children and there was no further offending after July 2005.
• He has used his time productively in custody. He will soon commence an engineering degree at Queensland University.
• There are several periods of delay: from the offending to the plea date (32 years); from the date of the DNA match linking the applicant to the offending to the date charged (seven years and four months); from the date of the first interview to the charge (two years and four months); and the delay in the applicant being transferred to Victoria to have this matter dealt with.
• Totality should be addressed through a significant measure of concurrency between the offences on the indictment themselves, and between the Victorian offending and the Queensland offending.
• State boundaries meant that the applicant was unable to be sentenced for all of his offending on a single occasion, and so lost the benefit of concurrency which otherwise might have been granted.
• Section 16 of the Sentencing Act 1991 ('Act') created a default position that sentences are to be served concurrently.
• The court is required to set a new non-parole period under s 14 of the Act. The overall sentence and non-parole period should reflect the applicant's significant rehabilitation.

25 The applicant tendered a bundle of character references on the plea, together with a bundle of prison certificates. A letter from Dr Rosevear was tendered. It was in similar terms to the letter he prepared for the Queensland offending.

26 In comprehensive submissions, the applicant's counsel painted a compelling picture of the applicant's unfortunate background and criminal history. She emphasised the importance of the principle of totality and urged moderation of the new non-parole period that must be imposed.

27 The plea proceeded over three days and her Honour conscientiously invited submissions as to how the principle of totality applied to the complex sentencing issues before her. These are spelt out in her Honour's reasons for sentence.

28 Her Honour set out the background to the offending. She commented that the applicant's then youth had 'some relevance to an assessment of [the applicant's] moral culpability'.[5] She considered, however, that given the applicant was nearly 21 years old and given the gravity of the offending, the primacy usually afforded to youth must take a backseat in the sentencing mix.[6]

29 The judge considered there must be 'a degree of cumulation'[7] imposed on each of the charges before her, given their 'distinct nature'.[8] Her Honour observed that the applicant's offending against LK had stayed with her on a daily basis for 30 years.[9]

30 Her Honour described the four-year delay between the DNA linkage and the reopening of the investigation as 'somewhat disturbing and inexplicable'.[10]

31 The judge accepted that this was an early plea of guilty, which had utilitarian value and evidenced genuine remorse.[11] General deterrence, specific deterrence, punishment, denunciation and protection of the community all needed to be given weight in the sentence. Her Honour was mindful, however, that 'one of the primary sentencing principles to be applied to [this] case is the one of totality'.[12] Her Honour stated that principle accurately.

32 The judge then set out the applicant's background in detail, including his 'horrific upbringing',[13] his criminal history (both before and after the Victorian offending), his family relationships, his history of avoiding police detection and his rehabilitation since 2005.

33 Her Honour set out the Queensland offending in similar terms to paragraphs 9 to [14] of these reasons.14 She referred to the psychiatric report of Dr Rosevear and a psychological report prepared by Mr Damien Thomas. Both of these reports spoke in positive terms about the applicant[15]s rehabilitation,15 as did a numbe[16]of written references.16 Her Honour was satisfied that the applicant's prospects for r[17]abilitation were good.17

34 The judge referred to the principles set out in Mill v The Queen.[18] She accepted that the proper approach was to ask

what would be likely to have been the effective head sentence imposed if the applicant had committed all ... [of the] offences ... in one jurisdiction and had been sentenced at one time?[19]

35 The judge accepted that there 'should be some cumulation to reflect the seriousness of [the] offending in 1986'.[20] She then said:

In my view the correct approach is still to consider what would have been an appropriate total sentence, both head sentence and minimum term, for the offending in both Queensland and Victoria, and then for this court to impose a sentence which is consistent with that determination. That is, the court may be placed in circumstances where it is necessary to impose a disproportionately lenient sentence in order to avoid a total sentence across both states which is disproportionate. It requires an assessment of the overall or total criminality.[21]

36 Her Honour noted there was no temporal or circumstantial connection between the Queensland offences and the Victorian offences,[22] and that the applicant avoided detection for years.[23] She noted, however, that state boundaries meant that the applicant was unable to be sentenced for all of his offending at the one time, and therefore, had lost the benefit of concurrency that might otherwise have been allowed.[24] She then referred to cases relied upon by the applicant,[25] and one relied on by the prosecutor,[26] which her Honour, correctly in our view, found of limited assistance.

37 The judge then referred to delay. Her Honour was not prepared to take into account the period between 2010 and 2015 when the applicant was actively avoiding police,[27] but did take into account the delay between 2015 and 2018 as a mitigating factor.[28]

38 Her Honour noted that it was common ground that the Queensland sentence could be treated as a Victorian sentence, and any sentence imposed by a Victorian court could be ordered to be served cumulatively or concurrently with the Queensland sentence.[29]

39 The judge recited the basic purposes of sentencing as punishment, denunciation, protection of the community, and general and specific deterrence.[30] She stated that the sentence imposed must give weight to totality and that it ought not be 'crushing' in its effect.[31] She said:

Having carefully considered the submissions made by both parties I am of the view that this offending is simply so serious that in order to properly represent it in your history, your victims, the very separate nature of the offending and deterrence both specific, and particularly general, that there does need to be some interference with your current sentence. Significant weight will attach to your plea of guilty, totality and your extended period of reformation.[32]

40 Her Honour then imposed the sentences set out in paragraph 1 of these reasons. As we have observed in paragraph 5, the new overall total effective sentence was 11 years, seven months and three days, with an effective non-parole period of eight years, five months and three days.

This application

The applicant's submissions

41 In short compass, the applicant recited his Queensland and Victorian sentencing history. He contended (correctly) that his overall total effective sentence on both sets of offending was 11 years, seven months and three days, with a minimum period before parole eligibility of eight years, five months and three days. It follows that the effective non-parole period is 73 per cent of the overall total effective sentence, as compared to the 29 per cent figure imposed in Queensland alone. He submitted that this analysis 'goes some way towards illuminating his complaint'. In oral argument, the applicant clarified that the application for leave to appeal was concerned only with the minimum term to be served before parole eligibility. He contended that at 73 per cent of the overall total effective sentence, it was manifestly excessive, particularly when regard was had to the uplift from 29 per cent, which was part of the Queensland sentence and thus should have been reflected in the overall sentence.

42 He observed that Queensland appeared to be the only state in Australia that allowed offenders to serve an entire sentence on parole and that as a matter of practice, non-parole periods in Queensland seem to be much lower (relative to the head sentence) than is the practice in Victoria.

43 The applicant submitted that '[d]ifficulties arise' with applying the principles set out in Mill when offences are committed in different jurisdictions which have different sentencing practices.

44 The applicant submitted that it was necessary for the sentencing judge to assess what would have been an appropriate sentence (including an appropriate non‐parole period), having regard to the jurisdiction in which the offences were committed. Thus, in determining the appropriate sentence, her Honour was (as a matter of fairness to the applicant) required to consider the following:

(a) the non‐parole period fixed as part of the Queensland sentence (being two years and nine months);

(b) the direction made by Judge Reid as to when the applicant was to be eligible for parole (being on 14 December 2017);

(c) the practice that that non‐parole period and direction represented; and

(d) the fact that the applicant:

(i) had been eligible for parole from 14 December 2017;

(ii) had not been granted parole on that date because of the Victorian offending; and

(iii) could not have had the period of time from 14 December 2017 to 20 February 2019, a period of one year, two months and six days, reckoned as pre‐sentence detention when the Victorian sentence was imposed.

45 The applicant further submitted that these considerations were particularly relevant to the determination of the non‐parole period that fell to be fixed as part of the Victorian sentence.

46 The applicant contended that these considerations were not taken into account when the Victorian sentence was imposed.

47 The respondent submitted that the principle of totality required the sentencing judge to consider:

(a) the likely head sentence that would have been imposed if the applicant had been sentenced for all of the offences on the one occasion;

(b) the fact that the non-parole period for the Queensland sentence had expired at the time the applicant was sentenced in Victoria;

(c) the fact that an order had been made recommending his release on parole in Queensland; and

(d) the period of imprisonment served between 14 December 2017 and 20 February 2019 that could not be counted as pre-sentence detention but only taken into account in the R v Renzella sense.[33]

48 The judge clearly understood the principles in Mill, and the role of totality and the interstate sentence in the exercise of her sentencing discretion.

49 The total effective sentence and effective non-parole period are well within the appropriate range for the overall criminality of both sets of offending. Both sets of offending were very serious, and the sentence imposed for the Victorian offending was modest and can only be readily understood if the sentencing judge has moderated the sentencing purposes to give effect to the principle of totality.

Analysis

Grounds 1(a)-(d)(ii) - Manifest excess and the non-parole period

50 Grounds 1(a)-(d)(ii) complain that the sentencing judge failed to have any or sufficient regard to the low non-parole period set for the Queensland offending. We consider that the applicant has failed to establish this. The Queensland offences were committed against commercial properties between 13 and 19 years after the Victorian offending. The Victorian offending was not only of an entirely different character but, in our view, it was objectively far more serious than the Queensland offending. This is not to downplay the seriousness of the Queensland offending; it was serious enough in its own right. But the Victorian offending was, as the applicant's counsel properly acknowledged, extraordinarily grave.

51 The judge correctly identified the sentencing task that confronted her, and asked herself the correct question: 'what would likely have been the effective head sentence if the applicant had committed the Victorian offending and the Queensland offending in one jurisdiction and been sentenced at one time?'

52 It is plain that the Queensland sentence imposed a relatively heavy head sentence but a much lower minimum term than would ever be imposed in this state. No doubt the applicant's efforts at rehabilitation over the decade from 2005 influenced the sentencing judge in Queensland on this issue.

53 In R v Mangelen,[34] this Court set out the development of the totality principle to extend the ambit of it to the applicant's situation, where there is an overlap between a fresh sentence imposed during the currency of an existing sentence:

Historically, the principle of totality had been applied in circumstances where an offender fell to be sentenced for multiple offences to ensure that the aggregation of the sentences was a just and appropriate measure of the offender's criminality. The ambit of the principle was extended to apply where the offences upon which the offender must be sentenced overlap with or will be cumulative upon an existing custodial sentence. In both of these situations, the principle requires the court to consider the total criminality involved in all of the offences for which the offender is to be sentenced and the offences for which the offender is currently serving a sentence. The court must evaluate the overall criminality involved in all of the offences so as to ensure that there is an appropriate relativity between the totality of the criminality and the totality of the effective length of the sentences to be and which have been imposed. If the total sentence is an unjust or inappropriate measure of the total criminality involved, the sentence which the offender is required to serve will be moderated so that the aggregate of sentences imposed by reason of cumulation is not greater than any sentence required to fulfil the totality principle. The principle is to be applied to both the fixing of the head sentence and the non-parole period.[35]

54 For all the complexity of the powerful sentencing factors that pull in differing directions, and for all the complexity of the applicant's numerical analysis that we have set out earlier in these reasons, the question asked by grounds 1(a)-(d)(ii) is disarmingly simple: is the overall total effective sentence of 11 years, seven months and three days, with a minimum term before parole eligibility of eight years, five months and three days, unjust or an inappropriate measure of the total criminality involved?

55 In our view, notwithstanding the powerful evidence of reformation, the overall total effective sentence is extremely modest. Indeed, we consider that if the Queensland sentence were disregarded completely, an appropriate sentence for the Victorian offending would be in the range of the overall total effective sentence. We repeat that this was extraordinarily grave offending.

56 It is clear that her Honour was mindful to temper the actual total effective sentence imposed (seven years and eight months) so as to give effect to the principle of totality, so that an appropriate 'overall' sentence could be achieved.

57 We consider that the judge took pains to articulate her understanding of the principles in Mill and then invited further written submissions on her view that the Queensland total effective sentence was insufficient to reflect the overall criminality and, in fact, convened a further hearing on this issue. During that hearing, the applicant's counsel specifically accepted that it was open to the judge to 'interfere with the [Queensland] head sentence'.

58 The judge's comprehensive sentencing remarks demonstrate a complete understanding of the principle of totality. If we may say so respectfully, her Honour's remarks are a model of balance and clarity.

Ground 1(d)(iii) - Notional pre-sentence detention

59 Ground 1(d)(iii) asserts that her Honour did not take into account a period of one year, two months and six days, which was said to be effective pre-sentence detention. This period refers to the notional earliest release date on parole in Queensland, which was 14 December 2017, and 20 February 2019, which was the actual date of sentence in Victoria. The applicant contends that he would have been released on parole on 14 December 2017 but for the fact that the Victorian proceedings were hanging over his head and, thus, whilst the period of 14 months and six days was time served under the Queensland sentence, the applicant ought be accorded credit for it in the Victorian sentencing exercise.

60 In our view, it cannot be said that the judge overlooked this aspect when considering the overall effect of the applicant's sentence. She acknowledged in the sentencing remarks that the applicant had served the minimum term of his Queensland sentence as at 14 December 2017.[36] Whilst there is no further reference to this Renzella type allowance in the sentencing remarks, in discussion, however, her Honour was clearly aware of how the applicant argued this contention and took pains to understand it. Towards the end of the second day of the plea hearing, the following exchange occurred between the prosecutor and the judge:

COUNSEL: So, your Honour, that is the submission on behalf of the prosecution. That's the appropriate way your Honour should proceed in terms of sentencing. I agree with what your Honour has said in terms of the [pre-sentence detention] relevant to the Queensland sentence, [the] original Queensland sentence. It's relevant only to that, and your Honour can't take that into account, only in a Renzella type manner, but not as, strictly speaking, [pre-sentence detention] for that reason I've already submitted, that is, that it's not [pre-sentence detention] that has been accrued here in Victoria, and the legislation doesn't permit that. It's relevant as Renzella type.

HER HONOUR: In theory that would impact on the sentence I might otherwise fix.

COUNSEL: Well, potentially. It's a matter for your Honour, yes, that's right.

HER HONOUR: And it would impact down.

COUNSEL: Yes, that is correct. I would agree with that assessment. But there are many factors, your Honour, that your Honour has to take into account. Many. It's not a simple exercise at all.

61 The applicant has failed to demonstrate that the judge did not take this one year, two months and six days of asserted effective pre-sentence detention into account in the applicant's favour. The transcript is replete with references to it and the extremely modest head sentence evidences that her Honour sensibly moderated the Victorian sentence to reflect all of the matters that weigh in the applicant's favour, while not losing sight of the objective seriousness of the applicant's offending.

[3] The Queensland sentence will expire on 23 February 2026.

[4] These figures are agreed between the parties.

[5] DPP v Thomas (Unreported, County Court of Victoria, Judge Gwynn, 20 February 2019), [34] ('Reasons').

[18] [1988] HCA 70; (1988) 166 CLR 59 ('Mill').

[25] Sayer v The Queen [2018] VSCA 177; Rootsey v The Queen [2018] VSCA 108.

[26] DPP v Henderson [2016] VCC 144.

[29] Ibid [97]. See Prisoners (Interstate Transfer) Act 1983 (Vic) ss 25, 27, 28.

[33] [1997] 2 VR 88 ('Renzella'). In this case, this Court adopted the view that if an offender who spent time on remand receives a non-custodial sentence and falls to be sentenced again in another case, some or all of their time on remand may be taken into account to reduce their sentence. See also Warwick v The Queen (2010) 201 A Crim R 580.

[34] [2009] VSCA 63; (2009) 23 VR 692.

[35] Ibid 697 [28] (citations omitted).