Thornton v The Queen [2021] VSCA 39

CRIMINAL LAW - Appeal - Sentence - Applicant and co-accused assaulted and raped victim in prison - Applicant convicted of intentionally causing serious injury and rape - Total effective sentence 9 years 6 months' imprisonment with non-parole period of 6 years 9 months - Whether judge failed to take into account delay in mitigation - Whether judge erred in considering erroneous factor in sentencing - Whether judge impermissibly sentenced applicant for an uncharged offence - Whether sentence, non-parole period and order for cumulation manifestly excessive - No reasonably arguable error in sentencing discretion - Leave to appeal refused.

PRACTICE AND PROCEDURE - Miscalculation in declaration of period reckoned as already served under s 18 Sentencing Act 1991 - Pre-sentence detention recorded as 295 days instead of 325 days - Order for correction to pre-sentence detention period - Sentencing Act 1991 s 104A(5A).

1 The applicant was charged on indictment with one charge of intentionally causing serious injury and one charge of rape. After a trial in the County Court, the applicant was found guilty of both charges. His co-offender, Stephen Down ('Down') was convicted of one charge of recklessly causing serious injury and one charge of rape.

2 After a plea that was presented on his behalf, the applicant was sentenced to a total effective term of 9 years and 6 months' imprisonment, with a non-parole period of 6 years and 9 months. That sentence was constituted as follows:

Causing serious injury intentionally, s 16 Crimes Act 1958

Rape, s 38(1) Crimes Act 1958

3 The applicant seeks leave to appeal against the sentence on the following grounds:

Ground 1: The sentencing discretion miscarried as a result of delay not being taken into account as a matter of mitigation.

Ground 2: The learned sentencing judge erred in sentencing on the basis that failure to use a condom reflected a complete disregard for the physical welfare of Mr Duncan in terms of the possibility of sexually transmitted disease.

Ground 3: The learned sentencing judge erred in aggravating the sentence imposed by reference to an aggravated burglary with which the applicant had not been charged or convicted.

Ground 4: The sentences imposed on charges 1, 3, the order for cumulation, the total effective sentence and non-parole period are all manifestly excessive.

4 The offences were committed by the applicant and Down on 11 February 2017, while they both were serving sentences of imprisonment at the Hopkins Correctional Centre in Ararat. The victim of the offences, Simon Duncan ('Duncan'),[1] who was 37 years of age at that time, was also serving a sentence of imprisonment at that centre.

5 In the afternoon on that date, Duncan, having received a visit from members of his family, proceeded to make his way to a cottage within the prison complex to visit some friends. As he was doing so, the applicant spoke to him, and asked if he had brought any tobacco into the prison, tobacco being a contraband item within the prison complex. Duncan responded that he had not brought any tobacco into the prison. Duncan then entered the cottage, sat on a couch and turned the television on.

6 About ten minutes later, the applicant and Down entered the cottage. Duncan was then sitting on the couch watching the television. About thirty seconds later, the applicant struck him on the face with a frozen water bottle. In response, Duncan turned around to face him. The applicant then struck Duncan at least four times with the frozen water bottle. The applicant told Duncan to clean himself up. and pushed him to the kitchen, where Down gave him a tea towel to wipe his face. Duncan then made his way to the door of the unit. However, Down intercepted him, grabbed him and pushed him back into the lounge room. At that point, the applicant commenced punching Duncan with his fists some five or six times to the face. Down became involved and threw a number of punches at Duncan. In doing so, Down put his hand on Duncan's shoulders and pushed him towards the couch.

7 At that point, the applicant said something like 'Help me JD, I want to fuck him'. Duncan was then pushed half bent over the armrest of the couch. Down still had one hand on Duncan's shoulder and the applicant was behind Duncan, who was passing in and out of consciousness. While Down held Duncan's shoulder, the applicant pulled Duncan's pants down and sexually penetrated his anus against his will. Duncan believed that, in doing so, the applicant first used his hand and then his penis to penetrate him. In his evidence, Duncan said that the applicant was pushing himself onto him trying to get his penis inside him. Duncan said that he thought that the applicant penetrated him with his penis, but he also said (in his evidence) 'It may have been his hand. I believe it was his penis'.

8 Having penetrated Duncan, the applicant kept pushing himself onto Duncan for about thirty seconds. During that time, Down steadied Duncan with his hand on his shoulder. Eventually Down removed his hand from Duncan's shoulder and Duncan was able to move away from the couch. Shortly after, the door of the unit opened and other prisoners returned. Duncan was taken to the bathroom and cleaned up.

9 Duncan was subsequently conveyed to the Ararat Hospital for assessment and treatment. He was then transferred back to the prison. Some days later, he was conveyed to St Vincent's Hospital in Melbourne where he underwent treatment for his injuries. Those injuries included a number of complex facial fractures involving Duncan's left eye, cheekbone and nose. Those fractures required surgical intervention, in which plates and screws were inserted into his bone, with consequent scarring to his face. In addition, Duncan lost a number of teeth as a result of the assault. In his victim impact statement, Duncan described the heavy emotional and psychological toll that the assault and rape inflicted on him. Unsurprisingly, as a consequence, he has suffered anxiety and depression and post-traumatic stress disorder. A number of medications have been prescribed for him, and he has engaged with a counsellor.

10 The applicant has a long criminal history dating back to September 2003, when he was 18 years of age. Most of his previous convictions were for offences of dishonesty. However, they did include three convictions for resisting police, one conviction (in October 2008) for recklessly causing injury, one conviction (in July 2012) for unlawful assault and two previous convictions for armed robbery.

11 In January 2016, he was sentenced by the Melbourne County Court on charges that included armed robbery, resisting an emergency worker on duty, theft and possession of a drug of dependence to 3 years and 4 months' imprisonment with a non-parole period of 2 years and 6 months. On 1 March 2016, he was convicted on charges, including twenty-five charges of theft and ten charges of obtaining property by deception, to an aggregate of 22 months' imprisonment. On 31 May 2016, he was sentenced by the Melbourne County Court, on one charge of armed robbery, two charges of theft, one charge of possessing a controlled weapon without excuse, and one charge of criminal damage, to a total effective sentence of 3 years and 4 months' imprisonment, 2 years and 4 months of which were to be served concurrently with the current sentence he was then serving. A new non-parole period of 2 years and 9 months' imprisonment was fixed.

12 At the time of his sentencing in August 2020, the applicant had been in custody since 2015.

13 The applicant was born in July 1985. His parents separated when he was an infant, and he and his brother remained with their mother. The applicant was raised in a positive home environment. His mother re-partnered, and the applicant had a good relationship with her partner.

14 The applicant completed Year 10 at school. Following that, he had a number of different forms of employment, although they were each for a relatively short period of time. He last worked in 2012.

15 The applicant started smoking marijuana at about the age of 14 years. He commenced using ecstasy, methylamphetamine and amphetamine at about the age of 15 or 16 years. At the age of 18 years, he commenced using benzodiazepines on a regular basis, often taking more than he had been prescribed. The applicant had a number of previous relationships, but he did not have any children.

16 In 2012, the applicant underwent a neuropsychological assessment by Mr Martin Jackson, a consultant clinical neuropsychologist. Mr Jackson then found the applicant to have a low average intelligence. Mr Jackson considered that he had suffered a mild hypoxic brain injury caused by his long years of drug use.

17 In July 2020, Mr Jackson conducted a further neuropsychological assessment of the applicant. On that occasion he found that the applicant's cognitive skills were in the average range or better. He considered that the reason for the applicant's improvement on that assessment, when compared to the previous assessment, was that he had been abstinent from drugs for about five years during the time in which he had been incarcerated. Mr Jackson stated that the applicant did not have a neuropsychological condition that would substantially reduce his culpability for his offending. Further, he did not have a neuropsychological condition which would result in him being subjected to significantly more than the ordinary burden of imprisonment. Mr Jackson observed that the routine and structure of prison would in fact assist the applicant with his mild memory difficulties.

18 In his reasons for sentence,[2] the judge stated that he was satisfied to the requisite standard that the applicant went to the cottage in which Duncan was then located with an agreed intention 'at the very least' to assault Duncan.[3] The judge further found that the applicant's intention quickly escalated, upon his entry to the room, to an intention to seriously injure Duncan, when the applicant acquired the frozen water bottle from Down who had moved to the kitchen area and obtained it for him. The judge described the applicant's assault on Duncan as vicious, sustained and brutal.[4] His Honour then stated:

Whilst Mr Duncan was coming in and out of consciousness, and after unsuccessfully attempting to escape, you then brutally raped your substantially incapacitated victim, by anally penetrating him with either your hand or your penis. In these circumstances, I regard your role in relation to both the infliction of serious injury and in relation to the rape, to be extremely prominent and significant, and therefore your level of culpability to be high.[5]

19 In assessing the gravity of the offence of intentionally causing serious injury to Duncan, the judge had regard to the significant injuries sustained by Duncan, and the fact that Duncan was targeted by both the applicant and Down. In addition, a weapon, in the form of a frozen water bottle, was used in the course of the assault, and Duncan was struck several times with it. The fact that the assault occurred in company increased Duncan's sense of powerlessness and was, in the view of the judge, a significant aggravating factor.[6]

20 In respect of the charge of rape, the judge noted that the fact that the offence occurred in company accentuated the degree to which Duncan was powerless to prevent the rape occurring, and that that represented a significant aggravating factor.[7] The judge further concluded that it was a significant aggravating factor that Duncan was raped in circumstances in which he had been brutally assaulted by the applicant and Down, rendering him substantially incapacitated, passing in and out of consciousness, with significant physical injuries.[8]

21 The judge then observed (in a passage which is the subject of ground 2):

There is no evidence that a condom was used, reflecting a complete disregard for the physical welfare, in terms of the possibility of sexually-transmitted infections, shown to Mr Duncan.[9]

22 The judge was satisfied that the rape was not premeditated, and that it lasted thirty seconds, and therefore it was not a 'sustained attack'. Further, no weapon was used and there was no evidence of violence or threats of violence in the course of the rape. Nor was there evidence of humiliation or degradation over and above that which was consequent on the rape itself.[10]

23 The judge concluded that the rape must be viewed as a 'serious example of the crime of rape' for the reasons he had expressed.[11]

24 The judge then summarised the relevant matters relating to the applicant's background. He noted that the improvement in the applicant's cognitive functioning and abilities provided the basis for 'some degree' of optimism in relation to the applicant's rehabilitative prospects.[12] The judge also noted that the applicant had been doing his best in the difficult circumstances in prison that have resulted from the COVID-19 pandemic, working as a billet, and participating in some art-related activities.[13]

25 In conclusion, the judge noted that it had been accepted on behalf of the applicant that no mitigatory allowance should be made by virtue of the well-established mental impairment principles.[14] The absence of any previous convictions of the applicant for sexual offending lessened the degree to which the principles of specific deterrence and community protection applied. On the other hand, the applicant's criminal history did involve matters of violence which increased the need for specific deterrence and community protection. The judge also considered that the applicant's moral culpability for the offence of intentionally causing serious injury was informed by his criminal history of violence, and that any assessment as to his rehabilitative prospects must take that factor into account. The judge regarded the applicant's prospects of rehabilitation as being 'very guarded'.[15]

26 The judge further stated (in a passage which is relevant to ground 4):

Having considered this matter, notwithstanding the fact that the rape occurred very shortly following the serious assault on Mr Duncan, it represents distinct and considerably escalating criminality. Subject to the overarching principle of totality and the need to avoid a crushing sentence, in my view, significant cumulation is warranted, and indeed required, as between the two charges in relation to which you both fall to be sentenced.[16]

27 In support of ground 1, counsel for the applicant noted that Duncan first complained to the police on 11 April 2017, and he made a formal statement on 21 April 2017. However, the filing hearing did not take place until 18 June 2018, and no explanation was given for the delay between the complaint and the charge. Following that, a further eighteen months passed until the trial, and a further six months lapsed between the verdict and sentence. In that respect, it was acknowledged that some of the delay in the sentencing of the applicant was due to the applicant seeking time to obtain further expert evidence.

28 Counsel submitted that during the period of delay, between the offence and the applicant's trial, the non-parole period and total effective sentence, of the sentence imposed on the applicant on 31 May 2016, expired. As a result, the applicant lost the opportunity to seek parole, and he also lost the opportunity for there to be any concurrency between the sentence that he was then serving and the present sentence. In that respect, it was noted that at the time of the offence in the present case, there was approximately two years and nine months remaining on the applicant's existing sentence. Thus, it was submitted, the lost opportunity for concurrency was significant.

29 Counsel acknowledged that on the plea, the applicant did not refer to the delay, but he did rely on the principle of totality. It was submitted that the delay in this case was a 'powerful mitigating feature' and the failure of the judge to take it into account as a mitigating circumstance produced a substantial unfairness to the applicant.

30 In response, counsel for the respondent noted that, on the plea, it was not submitted that the judge should take the period of delay into account. Nevertheless, it was submitted, the judge was aware of the fact of the delay, and his Honour took it into account as part of the instinctive synthesis.

31 Counsel for the respondent submitted that the delay in the case did not result in any unfairness to the applicant in the manner contended under ground 1. First, it was noted that counsel for Down had informed the judge that his client had become ineligible for parole on the sentence he was then serving, because of the charges in the instant case. In the plea made on behalf of the applicant, his counsel did not demur from that proposition. Counsel for the respondent submitted that, in any event, once the applicant determined to contest the charges against him, he effectively extinguished the opportunity for anything except the most modest form of concurrency in the sentence. Even if the hearing had been heard expeditiously, any opportunity for concurrency was not substantial. It was further submitted that any delay after trial was due, in large measure, to the applicant seeking time to obtain a psychological report, which he ultimately did not rely on, and then applying to further adjourn the plea to obtain an updated neuropsychological report.

32 The question of the relevance of delay in the sentencing synthesis has been discussed in a number of authorities. In short, there is no hard and fast rule that in each case delay must be taken into account as a mitigating factor. Rather, ordinarily, where the prosecution has unduly delayed bringing the matter to court, it is more likely that the delay will be taken into account in mitigation of sentence.

33 In R v Nikodjevic,[17] Ormiston JA (with whom Callaway and Vincent JJA agreed) stated the relevant principles in the following terms:

Delay in sentencing, nevertheless, may be otherwise significant if the delay has occurred between the detection and charging of an offender and the time of sentencing, where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time, or where that person had chosen to reorganise his or her life upon an acceptance of guilt for the matters charged. Thus it is put forward not infrequently as a factor to be considered in the case of first offenders who have committed serious offences, for which they may feel uncertain whether they will be required to serve any term of imprisonment at all. The truth of the matter, however, is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to circumstance. One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount, without the need to have regard to its particular consequences.[18]

34 In similar terms, in Sayer v The Queen,[19] Whelan and McLeish JJA stated:

... 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.[20]

35 In the present case, counsel acting for the applicant, on the plea, did not submit that the period of delay, between the commission by the applicant of the offence, and sentence, should be taken into account as a mitigating circumstance. Nor was it submitted that any aspect of that delay was due to the conduct of the prosecuting authorities. In his sentencing reasons, the judge noted the applicant's criminal history, and that he had spent nearly all of the previous eight years (apart from some twelve months) in prison.[21] His Honour noted that the applicant had spent 295 days in custody in relation to the instant matter,[22] thus recognising that part of the period, between the laying of the charges, and sentence, were spent by the applicant completing the previous sentence imposed on him in May 2016. In a different context, the judge referred to and acknowledged the principle of totality.[23]

36 Taking those matters into account, it may be safely concluded that in formulating the sentences in the present case, the judge was fully aware that the applicant had already spent a substantial period of time in prison. As I will discuss, the sentences imposed on the applicant, for each of the two charges, were well within range. In a broad sense, I do not consider that it could be reasonably submitted that the judge, in determining the sentences to be imposed on the applicant, did not properly take into account that the sentence that he was to impose on the applicant would add to the substantial period of incarceration which the applicant had already served in relation to his previous sentences.

37 The applicant has submitted that the delay, in the resolution of the charges against him, deprived him of the opportunity to be granted parole in respect of the sentence that he was then serving. However, as submitted by the respondent, it was not the period of delay that precluded the applicant being granted parole. Rather, the applicant became ineligible for parole as a result of the charges brought against him for the instant offending.

38 The second effect of the delay, relied on by the applicant, is that he thereby lost the opportunity for part of the sentence, to be imposed on him, to be served concurrently with the sentence that he was then serving. According to the submissions made on behalf of the applicant, at the time that he committed the instant offences (February 2017), there was a period of approximately two years and seven months remaining on the applicant's existing sentence. It would seem that that sentence was due to expire on 20 September 2019. In the present case, the jury returned its verdict in early February 2020. If, hypothetically, the charges against the applicant had been resolved twelve months earlier, at the time of verdict he would have had some seven months left to serve on the sentence imposed on him in May 2016. After verdict in the instant case, there was a delay of some six months until sentence. Most of that period, it would seem, was due to the request by the applicant for time to enable him to obtain a psychological report and an updated neuropsychological report.

39 Thus, if hypothetically, the case had been disposed of one year earlier, at the time of sentence, the applicant would have had, at most, one or two months left to serve in respect of the sentence imposed on him in May 2016.

40 Further, the offending in this case was particularly serious. It was committed at a time when the applicant was already serving a term of imprisonment for serious criminal offences. In those circumstances, it is most unlikely that any substantial order for concurrency would have been made in favour of the applicant in respect of the sentences which he was then serving.

41 For those reasons, ground 1 is not reasonably arguable.

42 Accordingly, I refuse leave to appeal on ground 1.

43 In support of ground 2, it was submitted that the evidence did not permit a conclusion as to whether the applicant had penetrated Duncan with his penis. In those circumstances, it was submitted that the judge erred in assessing the gravity of the offending by taking into account that the applicant did not use a condom at the time that he penetrated Duncan. It was submitted that the judge's reference, to the failure of the applicant to use a condom, meant that he sentenced the applicant on the basis that his conduct had exposed the complainant to the risk of transmission of a sexual disease associated with unprotected penile penetration.

44 In response, counsel for the respondent commenced by noting that the judge found that the applicant had penetrated Duncan either with his hand or his penis. Counsel noted that in the course of the plea, counsel for Down filed supplementary submissions, which accepted that the absence of a condom was an aggravating factor. It was further submitted that it is not apparent that the judge, by referring to the failure of the applicant to use a condom, intended to limit his observation to penile penetration. In any event, counsel submitted that if the passage in the judge's reasons revealed an error, no different sentence should be passed, in view of the seriousness of the rape charge on which the applicant was convicted.

45 I am not persuaded that ground 2 is reasonably arguable. I am of that view for two reasons.

46 First, contrary to the concession made by the respondent, a plain reading of the judge's sentencing remarks reveals that his Honour must have been satisfied that the applicant penetrated Duncan's anus with his penis. In summarising the offending, the judge noted:

According to Mr Duncan, he believes that you used your hand first, and then your penis to penetrate him against his will. You were pushing yourself onto Mr Duncan, trying to get your penis inside him. According to Mr Duncan, you did get your penis inside him, though in evidence before the jury, Mr Duncan said 'It may have been his hand. I believe it was his penis'.[24]

47 Notwithstanding the judge's reference to Duncan's reservation, his Honour proceeded, in the passage which is the subject of ground 2, to note that there was no evidence that a condom was used, reflecting a complete disregard for the applicant's physical welfare, in terms of the possibility of sexually transmitted infections.[25] Taken together, those two passages from the reasons reflect that the judge was satisfied that the applicant did penetrate Duncan with his penis.

48 Such a conclusion was supported by the evidence. In evidence in chief, Duncan said that he believed the applicant used his hand first and then 'I believe he used his penis'. He then described how the applicant was 'pushing himself onto me'. When asked what the applicant was doing, Duncan responded, 'He was trying to get his penis inside me'. Significantly, he was then asked whether the applicant got his penis inside him. To that question, Duncan responded: 'He did, yeah'. When asked how did he know it was the applicant's penis, Duncan replied: '... it may have been his hand. I believe it was his penis'. In cross-examination, Duncan was challenged on the basis that he did not mention anything in his police statement about being penetrated with 'a finger'. Relevantly, for the purposes of ground 2, in cross-examination counsel put to Duncan, and Duncan agreed, that in the police statement he had said that he was penetrated 'with a penis or something like a penis'.

49 For those reasons, it is sufficiently plain that the judge, based on the jury's verdict, concluded that the charge of rape, on which the applicant was convicted, constituted penile, and not digital, rape.

50 Further, and in any event, if the judge did proceed on the erroneous basis that the failure of the applicant to use a condom reflected a complete disregard for the physical welfare of Duncan, I consider that if leave to appeal were granted on that basis, the Court of Appeal would be likely to dismiss the appeal on the basis that no different and lesser sentence would be warranted. The judge correctly concluded that the rape was accompanied by two other serious factors. First, the offence was committed by the applicant in company in circumstances in which Duncan was powerless to prevent the rape. Secondly, the rape followed the brutal assault inflicted on Duncan by the applicant and Down, the consequence of which he was substantially incapacitated at the time of the rape. Those two factors, taken together, fully justified the judge's conclusion that the rape '... must be viewed as a serious example of the crime of rape'.[26]

51 It follows that leave to appeal on ground 2 must be refused.

52 Under ground 3, counsel for the applicant noted that the prosecution case at trial had been that the applicant had formed an intention to assault Duncan before he entered the cottage. However, the applicant was not charged with or convicted of aggravated burglary. In those circumstances, it was submitted that the judge was obliged to avoid including in the sentence 'a component referable to the entry, aware Mr Duncan was present, with intent to assault'. It was submitted that, in concluding that he was satisfied to the requisite standard that the applicant arrived at the cottage with an agreed intention at least to assault Duncan, the judge failed to comply with the principle stated by the Court of Appeal in R v Newman,[27] namely, that it is impermissible to sentence an offender for an uncharged offence that is of equal or greater gravity than the offence for which the offender stands to be sentenced.

53 In response, counsel for the respondent submitted that the passage in the judge's reasons does no more than reflect a finding that the assault was attended with a level of premeditation. In those circumstances, it was submitted, that finding was entirely appropriate because it was relevant to the commission of the offence. The judge did not sentence the applicant on the basis that he had committed an aggravated burglary. The offending did not occur in Duncan's residence, and there was no evidence that the applicant and Down trespassed when they entered the cottage.

54 In my view, ground 3 is without substance. The finding by the judge, that the assault was premeditated, and that the applicant had formulated the intention to assault Duncan before he entered the cottage, was directly relevant to an assessment of the gravity of the offending. The finding by the judge did not involve his Honour taking into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[28] As counsel for the respondent has correctly pointed out, there is no evidence that the applicant and Down entered the cottage as trespassers. The evidence given by Duncan was that he did not consider himself in a position to either permit or deny access to the applicant and Down. He said that when they entered the cottage, he did not pay much attention to them, but rather he ignored them. Accordingly, it is not reasonably arguable that the judge, in concluding that the offence by the applicant of intentionally causing serious injury was premeditated, took into account as a circumstance of aggravation facts which could have constituted the commission by the applicant of an offence that was of equal or greater seriousness, namely aggravated burglary.

55 For those reasons, I would refuse leave on ground 3.

56 Counsel for the applicant submitted that, in view of the following factors, the sentence imposed on charge 1 (intentionally causing serious injury) was manifestly excessive: the weapon that was used (a frozen water bottle) was not an intrinsically dangerous object such as a gun or knife; the judge was unable to conclude that the applicant intended to cause really serious or maximum possible injury; although the applicant had an extensive criminal history, it was principally for offences of dishonesty rather than offending involving violence.

57 Counsel contended that the sentence imposed on charge 3 (rape) was also manifestly excessive in view of the following circumstances: the rape was not premeditated, it was not for a sustained period, and there was no violence, humiliation or degradation over and above that which is inherent in the offence. No threats or weapons were used in the course of the rape.

58 Counsel further contended that the order for cumulation was manifestly excessive. It was submitted that the offending was part of a single short episode. The rape was not premeditated and it did not involve violence beyond that which is inherent in the offence.

59 Finally, it was submitted that the total effective sentence and the non-parole period were each manifestly excessive. The applicant had been in continuous custody since 16 July 2015. The sentence that was being served by the applicant while he was on remand for the current sentence, and the total time that the applicant had and would spend in custody, were circumstances which were required to be taken into account in the application of the principle of totality.

60 In response, counsel for the respondent noted that the offending was brutal and sustained, the victim was outnumbered, and was rendered defenceless throughout the incident. Most of the matters relied on by the applicant under ground 4 involved the absence of aggravating factors, rather than circumstances of mitigation. The applicant had a lengthy previous criminal history that included offences of violence. The offending occurred in a prison setting which aggravated its seriousness. It was submitted that the two year period of cumulation was moderate in the circumstances, because the two offences were of a distinctly different character.

61 For the foregoing reasons, it is not reasonably arguable that the sentence imposed by the judge was wholly outside the range of sentences available to the judge.[29]

62 Each of the offences were committed by the applicant in circumstances of particular gravity. The assault, which constituted the intentional infliction of serious injury to Duncan, was premeditated. The applicant used a weapon to perpetrate the assault, striking Duncan on about four occasions to the face with a hard frozen bottle. The injuries sustained by Duncan were serious, requiring surgical intervention. At the time of the assault, Duncan was, to all intents and purposes, defenceless and vulnerable. He was outnumbered by the applicant and Down.

63 The rape committed by the applicant was particularly serious. At the time Duncan was barely conscious, defenceless and powerless. He was in a physically depleted state, and was being held down by Down while the applicant raped him. The judge correctly considered that the fact that the offence was committed in company, and the fact that Duncan was raped in circumstances in which he was vulnerable as a consequence of the injuries inflicted on him by the applicant, were important aggravating factors. The judge correctly considered the offence to be a serious example of the crime of rape.

64 At the time of the offences, the applicant was serving a term of imprisonment for serious criminal offences. In those circumstances the sentencing purposes of specific deterrence and protection of the community, including other prisoners, were required to be given particular weight. In addition, the offending was of the kind which required appropriate weight to be attributed to the sentencing purposes of general deterrence and denunciation. It was important that the sentence imposed by the judge made it plain to others, and particularly other prisoners, that if they misconducted themselves in a like manner, they would face the prospect of the imposition of significant periods of further imprisonment over and above the term for which they were then incarcerated. It is only by such sentences that the Court can ensure that offenders who are incarcerated conduct themselves in accordance with the law, and that other persons who are incarcerated are protected from the type of offending that was perpetrated by the applicant in this case.

65 In those circumstances, the sentences imposed on the two charges in respect of which the applicant was convicted were, in my view, well within the range of sentencing options available to the judge. Further, it was entirely appropriate for the judge to direct that two years of the sentence, imposed on the charge of intentionally causing serious injury, be cumulated on the sentence imposed on the charge of rape. While the two offences were committed in the same episode, nevertheless they were two separate offences. The cumulation of two years' imprisonment was, in my view, quite moderate in the circumstances of the case.

66 For the foregoing reasons, I do not consider that any of the four grounds contained in the application for leave to appeal are reasonably arguable. It follows that the application for leave to appeal must be refused.

67 In the submissions filed on behalf of the applicant, it is noted that the declaration by the judge of 295 days pre-sentence detention is incorrect, and that there were in fact 325 days between the lapse of previous sentences and the date of sentence in the present case. In the submissions filed in response, counsel for the respondent accepts that the declaration of 295 days is incorrect, and consents to a correction being made to the pre-sentence declaration, pursuant to s 104A(5A) of the Sentencing Act 1991, so that it properly records that a declaration be made that the applicant has served 325 days of sentence at the time of the original sentencing. Accordingly, I shall make an order to that effect.

[1] To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the victim's name.

[2] DPP v Thornton [2020] VCC 1214 ('Reasons').

[17] [2004] VSCA 222.

[18] Ibid [22]; DPP v Bales [2015] VSCA 261, [29] (Osborn, Kaye and McLeish JJA).

[19] [2018] VSCA 177.

[27] (1997) 1 VR 146, 150-1 (Winneke P).

[28] R v De Simoni (1981) 147 CLR 383, 389; [1981] HCA 31 (Gibbs CJ).

[29] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).