Zhao v The Queen [2018] VSCA 267

1 After a trial in the County Court in September 2017, the appellant, now aged 27, was convicted of five charges of rape, and one charge of sexual assault. The convictions related to offending that took place on two separate occasions, the first on 31 October 2015 (charge 2) and the second on 22 November 2015 (charges 3 to 7). On both of those occasions, the victim was the same young woman, NL.

2 The appellant was sentenced as follows:[1]

Rape [s.38(1) of the Crimes Act 1958]

Sexual Assault [s.40(1) of the Crimes Act 1958]

Rape [s.38(1) of the Crimes Act 1958]

Rape [s.38(1) of the Crimes Act 1958]

Rape [s.38(1) of the Crimes Act 1958]

Rape [s.38(1) of the Crimes Act 1958]

Other relevant orders: forensic sample pursuant to s.464ZF, disposal order, declaration pursuant to s6F of the Sentencing Act 1991 that appellant was sentenced as a serious sexual offender on charges 4, 5, 6 and 7.

3 The appellant initially sought leave to appeal on one ground only:

Ground 1 - That the individual sentences imposed on each of the six charges and the orders for cumulation between those sentences are manifestly excessive, resulting in a total effective sentence and a non-parole period that is manifestly excessive.

Particulars

1. The Learned Sentencing Judge failed to give sufficient weight to the Applicant's status as a foreign national for whom imprisonment will be more burdensome than for someone not facing probable deportation and incarceration in a location isolated from family support;
2. The Learned Sentencing Judge failed to give sufficient weight to the Applicant's previous good character;

1. The Learned Sentencing Judge failed to give sufficient weight to the Applicant's 'reasonable' prospects of rehabilitation;

1. The Learned Sentencing Judge failed to give sufficient weight to current sentencing practices.

4 The application for leave to appeal was heard by Tate JA. During the course of argument, her Honour granted leave to add a second ground of appeal, alleging specific error. That ground was in the following terms:

Ground 2 - The Learned Sentencing Judge, in imposing sentence upon charges 3-7, the Applicant being sentenced as a 'serious sexual offender' on charges 4-7, failed to accord any, or sufficient, weight to the principle that the offences the subject of these charges fell within the one incident or episode or transaction.

5 Tate JA considered both grounds 1 and 2 to be reasonably arguable. Accordingly, on 19 February 2018, her Honour granted the application for leave to appeal.

6 In the course of the hearing before this Court, the appellant foreshadowed that he would seek leave to amend his grounds of appeal by adding a further ground. That proposed ground is in the following terms:

Ground 3 - There has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the Appellant) by reason of the effect of the new evidence, namely, the fact that the Appellant will now be deported from Australia at the conclusion of his service of the custodial sentence imposed.

7 The 'new evidence' to which this proposed further ground relates is set out in an affidavit sworn by Anthony Hargreaves, the appellant's solicitor. Mr Hargreaves deposed that on or about 25 September 2018, he discovered from discussions with his client that, as far back as 31 January 2018, the appellant had received a letter from the Department of Home Affairs, informing him that his student visa was cancelled, as a result of his having failed what is described as the 'character test', pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 27 September 2018, Mr Hargreaves received a copy of the letter. According to his affidavit, this was the first that he knew of the cancellation of his client's visa.

8 The letter informed the appellant that he had 28 days within which to seek revocation of the cancellation, and Mr Hargreaves said that he understood that no such representation had been made to the Minister. Accordingly, the appellant's visa remains cancelled, and he is presently 'an unlawful non-citizen' of this country, within the meaning of that term in the Migration Act 1958 (Cth).

9 In ordinary circumstances, it would follow that were the appellant not serving a term of imprisonment, he would be put into immigration detention pending his removal from Australia.

10 On 31 October 2015, NL was at a café, talking with the appellant on 'WeChat', an online chat platform. By arrangement, the appellant collected her from the café. He invited her to accompany him to his apartment in Hawthorn in order to help him 'tidy up'. She initially said no, but later agreed after he assured her that he would not do anything to her, and again told her that it was just to help him 'tidy up the apartment', with 'no bad intentions'.

11 Once at the apartment, the appellant and NL shared a meal. Whilst watching television, he made her perform oral sex on him, ejaculating into her mouth (charge 2 - rape). It seems that he apologised to her immediately thereafter.

12 About three weeks later, on the morning of 22 November 2015, the appellant again contacted NL. He told her that he wanted to see her in order to give her something. He also suggested to her that she might want to be part of a business promotion that he was organising. When he arrived at her place, however, she refused to let him in.

13 Later that evening, the appellant arranged to meet NL and her friend at a restaurant in Chinatown. He collected both of them from the restaurant at about 10.30pm, and then dropped the friend off at her home.

14 The appellant told NL that he wanted to talk to her. He drove back to his apartment, and they both went upstairs. They then argued for some time, apparently because she would not agree to be his girlfriend.

15 NL asked the appellant to drive her back to a friend's place on Little Collins Street. They got back into his car, but continued to argue. The appellant suddenly turned the car around and drove back towards his apartment. She asked him to stop the car, and let her out, but he refused to do so.

16 Once they arrived in the carpark of his apartment building, the appellant forced NL out of the car. He then physically 'pulled' her, against her will, up to his apartment.

17 Once inside, the appellant pushed NL onto his bed and attempted to remove her clothing. He reached into her clothes and touched her breast (charge 3 - sexual assault). He then inserted his fingers into her vagina (charge 4 - rape). She kept saying 'no', and was screaming. According to NL, she slapped him and he slapped her back. She then bit his shoulder. She continued struggling, and screaming. He put a pillow over her face in order to silence her.

18 At one stage, the appellant took photographs of her with his phone. She tried, unsuccessfully, to grab his phone from him. He then pushed her back onto the bed and inserted his penis into her vagina (charge 5 - rape). He did not use a condom. He next penetrated her mouth with his penis (charge 6 - rape). Finally, he again penetrated her vagina with his penis (charge 7 - rape). This time, however, at her request, he used a condom.

19 The appellant then went into the bathroom. NL got partly dressed and ran next door to a neighbour's apartment. The police were called.

20 The appellant's defence at trial, which the jury clearly rejected, was that he at all times reasonably believed that NL had consented to sexual activity with him.

21 Counsel who appeared on behalf of the appellant on the plea dealt first with his client's personal circumstances. He was born in Fujan, China. He had first come to this country in 2007, aged 17, and had studied for a year before returning to China. He came back to Australia at the age of 19, and completed a Banking and Finance degree at Monash University. At the time of his offending, he was enrolled in, and had completed one semester of, a Master's degree in Banking and Finance at the Holmes Institute.

22 The judge was told that the appellant's parents lived in China. He was on a student visa at the time of the offending, and had intended, for some time, to become a permanent resident of this country. It was submitted that as a result of his having been convicted of these offences, it was likely that he would be deported, once he had completed whatever term of imprisonment might be imposed. The judge was asked to take this into account by way of mitigation.

23 The appellant had a solid work history. He had been employed throughout his time in Australia at various cafes and restaurants, and had run his own food delivery business for some three years.

24 It was submitted that, so far as the objective gravity of this offending was concerned, none of the offences should be regarded as being at the highest end of the range. Unlike some other cases, the appellant had not intended to degrade or humiliate NL, and had used only relatively moderate force to overcome her resistance.

25 In relation to charge 2, it was accepted that there was an element of breach of trust involved. That was because the appellant had persuaded NL to come back to his apartment, by specifically assuring her that she would be safe.

26 As regards the individual charges arising out of the second incident on 22 November 2015, it was submitted that these involved 'middle range' examples of rape. It was noted that the offending giving rise to charges 3 to 7 all took place at the same time, and at the same place. For that reason alone, it was submitted that these offences warranted substantial concurrency. It was acknowledged, however, that there could be some cumulation between charge 2 and the other charges.

27 It was submitted that, at the age of 26, the appellant was still a relatively young man. It was said that he had strong prospects of rehabilitation. It was further submitted that he would spend his time in prison as a foreign national, completely separated from his family. That would make imprisonment particularly burdensome for him.

28 Finally, it was noted that the appellant had no criminal history of any kind and that there were no outstanding matters alleged against him. A number of character references were tendered. Nonetheless, it was of course conceded that a term of imprisonment, coupled with a non-parole period, was inevitable.

29 The prosecution submitted that charge 2, on its own, involved serious offending given that it arose in circumstances where NL had been detained in the appellant's apartment.

30 In relation to charges 3 to 7, it was submitted that there had been a degree of force used. NL had been slapped, 'manhandled', detained against her will, and subjected to a number of separate acts of penetration. Importantly, this second set of offences involved at least some degree of premeditation.

31 The prosecution submitted that charge 2 should be viewed as being at least mid-range, in terms of objective gravity, and that charges 3 to 7 should be regarded as being somewhat more serious than that. It was noted that the appellant had shown no remorse.

32 As regards general sentencing principles, it was submitted that there should be a significant degree of cumulation between charge 2 and charges 3 to 7. In addition, there should be some cumulation within at least several of the charges arising out of the second group of offences. Specifically, it was conceded that charge 7 could be seen as a 'continuation of charge 5', though the exact meaning of that concession was never fully explained.

33 It was acknowledged that the appellant would be isolated from his family. However, it was submitted that he appeared to be well integrated into the community, and knew a lot of people in this country. It was accepted that he had at least reasonable prospects of rehabilitation.

34 With regard to the serious sexual offender provisions in Part 2A of the Sentencing Act 1991, the prosecution made it clear that it did not seek a disproportionate sentence under s 6D(b) in order to protect the community.

35 After summarising the facts surrounding the commission of these offences, the judge noted some of the features associated with the appellant's background. She accepted that as a result of these offences, it was 'highly likely' that, at the expiration of his term of imprisonment, he would be deported to China, having regard to his then current visa status, which as we have said, was that of a student.

36 The judge noted that counsel who appeared on the plea had submitted that the likelihood of deportation was a matter to be taken into account by way of mitigation. She further noted that counsel relied upon the fact that any custodial term would be particularly onerous, so far as the appellant was concerned, given his lack of family ties in this country.

37 Her Honour said that she was mindful of the decisions relevant to the prospect of deportation as a mitigating factor. She did note, however, that the appellant's visa status was yet to be finally determined at that stage, and referred to several authorities on that subject.[2]

38 The judge also referred to the appellant's concern about being deported, thwarting his desire to remain in Australia, and how this too would make imprisonment more burdensome.

39 Her Honour noted the appellant's good work record, and referred to the various character references that had been tendered on the plea. All of these suggested that the appellant was hardworking, smart and honest.

40 The appellant's teachers expressed surprise at his offending, noting that he had previously been helpful and respectful. His parents both had health issues. It was clear that he had grown up in a stable family environment, and had received a good education. He was popular at school, and a good sportsman. He had also excelled as a pianist.

41 Regarding the offences that took place on the second occasion, the judge noted that each of them 'occurred in close proximity in time'.[3] She also noted that counsel had urged substantial concurrency in relation to those charges, based upon what she described as totality and proportionality, but being mindful of s 6E, and what the High Court said about its legislative precursor in R H McL v The Queen.[4]

42 Next, the judge referred to NL's victim impact statement. She accepted that the victim had suffered considerably, not just emotionally, but also financially. NL had been unable to continue her studies for a time, and delayed her graduation for a year. She suffered from ongoing anxiety and insomnia. She also found it difficult to trust people.

43 The judge observed that each of charges 2 to 7 were sexual offences for the purposes of Part 2A of the Sentencing Act. Accordingly, having been sentenced to a term of imprisonment on charges 2 and 3, the appellant fell to be sentenced as a 'serious sexual offender', as defined in s 6B(a), on the remaining charges.

44 This meant that both ss 6D and 6E were applicable when sentencing the appellant on charges 3 to 7. Accordingly, her Honour was required to regard the protection of the community as the principal purpose for which these sentences were to be imposed, within the meaning of s 6D(a). It also meant that she could, if she considered it necessary to do so, impose a disproportionate sentence. However, the prosecution had not sought the exercise of that particular power. Her Honour said that she did not consider it appropriate to exercise it in order to achieve that protective purpose.

45 The judge then referred to authority on the subject of cumulating sentences imposed upon a serious sexual offender, in addition to R H McL. She referred to Gordon v The Queen[5] and Director of Public Prosecutions v Hopson,[6] to which we shall shortly return.

46 Finally, and immediately before sentencing the appellant, her Honour said:

When sentencing you I take into account the principles of totality and proportionality, mindful also of R H v McL and the authorities to which I have previously referred.

I am conscious also when sentencing you that Charges 3, 4, 5, 6 and 7 occurred on the same occasion and within a relatively short period of each other. As such, consideration must be given to totality.

I declare I have sentenced you as a serious sexual offender on Charges 4, 5 6 and 7 and I direct that be entered into the records of the Court.[7]

47 The written case in support of ground 1 asserted that there were 'very substantial matters in mitigation' that had to be taken into account. These included the appellant's previous good character, his concern about his likely deportation[8] which would make imprisonment more burdensome, and his reasonable prospect of rehabilitation.

48 It was further submitted in support of ground 1 that her Honour had been provided with statistics produced by the Sentencing Advisory Council regarding rape.[9] For the five year period ending in 2014, the median length of individual sentences for that offence was five years. The median non-parole period for rape was four years.

49 As regards the charge for sexual assault, the statistics indicated that only 28 per cent of all sentences imposed for that offence in the County Court involved terms of imprisonment. The median length of those sentences, when they were imposed, was one year and six months.

50 It was submitted that only 12 of the 208 sentences imposed for rape in the five years prior to 2015-2016 exceeded the term of 13 years and six months that the appellant received in this case. It was further submitted that each of the individual sentences for rape imposed upon him in this case, ranging between 7 and 8 and a half years, was manifestly excessive.

51 Further in support of ground 1, it was submitted that the sentence of 18 months' imprisonment on charge 3 for having touched NL's breast, was also manifestly excessive.

52 In addition, it was separately submitted in support of ground 1 that the orders for cumulation that were made were manifestly excessive. This was particularly so with regard to the amount of cumulation ordered in relation to charges 3, 4, 6 and 7. Each of these offences occurred in the course of a single episode, or incident. While some degree of cumulation may have been warranted between those particular charges, it was submitted that there ought to have been significantly more concurrency, based upon both the principle of totality, and the fact that all these offences formed part of a single episode.

53 In support of ground 2, the appellant's written case noted that when imposing sentence upon a 'serious sexual offender' for a 'relevant offence', regard had to be had to whether the 'relevant offence' had been committed within the same incident, episode or transaction as the other offences for which the offender was to be sentenced.

54 It was submitted that, as a matter of construction, s 6E had to be understood against the background that the 'same episode' principle still had an important role to play in determining the extent of any cumulation ordered. In oral argument, counsel referred to R v G D Carson,[10] a decision of this Court to which we shall later return.

55 Counsel further supported ground 2 by reference to s 6D(a), which requires a sentencing judge, when sentencing a serious sexual offender, to treat the protection of the community as the principal purpose for which sentence is to be imposed. It was submitted that, self-evidently, the magnitude of the risk posed by an offender will be greater where he or she has offended on separate, and unconnected, occasions, rather than as part of a single episode.

56 In that regard the appellant was not to be treated as though, for example, he was a serial rapist. The objective gravity of his offending was far less than that of someone who offended repeatedly at different times, in different places, and against different victims. In such a case, a sentencing judge would naturally give much greater weight to the presumption in s 6E in favour of cumulation.

57 It was submitted that the fact that offences 3 to 7 all took place at the same time, at the same place, and involved the same victim, meant that less weight should be accorded to s 6E than might otherwise be the case.

58 It was next submitted that s 6E may moderate, but does not 'set at nought', the principle of totality. This requires the judge to stand back and have regard to the entirety of the criminality in relation to the offences for which sentence is to be imposed. The judge must take a last look in order to ensure that the total effective sentence is not disproportionate to the gravity of the offending as a whole. Counsel relied upon Gordon and Hopson in support of that submission, while recognising that her Honour had specifically referred to these cases in her sentencing remarks.

59 It was submitted that although the judge had articulated the relevant principles correctly with regard to totality, she had failed to apply them properly, having regard to the orders for cumulation that were made.

60 As regards proposed ground 3, the new evidence ground, it was submitted that once it became certain, rather than merely likely, that the appellant will be deported after he has served his term of imprisonment, it must follow that his situation has changed. His knowledge of the fact that he will certainly be deported makes his time in custody more burdensome than her Honour would have anticipated when she sentenced him. We are no longer in the realm of conjecture as to his future. His student visa having been cancelled, we now know that he will be deported, and that his aspiration to become a permanent resident will never come to fruition.

61 In addition, there was tendered during the course of oral submissions, without objection, correspondence passing between the appellant's legal representatives and the Parole Board. The exchange of correspondence had been initiated by Mr Hargreaves who had sought information as to whether the fact that the appellant faced deportation might have an impact upon his prospects of parole.

62 The key correspondence in question consisted of an email, dated 22 May 2018, from the Adult Parole Board to Mr Hargreaves, responding to his query. In that email, it was stated:

Recently, due to a range of issues, the Board has reviewed its decision-making process on deportation for prisoners with a parole period. The difficulty in monitoring prisoners placed in immigration centres or overseas are some of the reasons why the Board has reviewed its decision-making for deportation.

The Board considers each case carefully, looking closely at the nature of offending, the risk of future offending, and public expectations about prisoners completing their sentence with some form of supervision whether in custody or the community.

While every matter is considered on its merits, the Board is now less inclined to grant parole to a prisoner who is to be deported on release from prison. There have, nevertheless, been occasions when, in the circumstances presented to it, the Board has granted parole knowing the prisoner will be deported on release from prison.

63 Subsequently, in response to a request by Mr Hargreaves for further clarification regarding the appellant's situation, the Parole Board drew attention to its Parole Manual, which is available on its website. In particular, the relevant passages in the manual to which Mr Hargreaves' attention was drawn commenced:

Prior to 2017, in cases where a prisoner was subject to deportation, it was common for the Board to grant parole on or soon after the expiry of the prisoner's non-parole period.

64 The manual then referred to the decision of the High Court in R v Shrestha,[11] where that Court first emphasised that a prisoner released on parole was still serving a sentence of imprisonment. The Court went on to say that release on parole provided for mitigation of the sentence in favour of rehabilitation through conditional freedom. This was usually subject to supervision and the undertaking of rehabilitative programs.

65 The manual, having discussed Shrestha, went on to say that it was now understood that the past practice of the Board could not easily be reconciled with the very nature of parole as set down by the High Court. Accordingly, the position that would now prevail was that, in many cases, it would not be appropriate for a prisoner facing deportation to be granted parole on or soon after his or her earliest eligibility date.

66 This last passage was qualified by noting that each case would be considered on its own merits. No explanation was provided as to how this particular qualification was likely to be applied in practice.

67 Section 5(2AA) of the Sentencing Act provides that a court, in sentencing an offender, must not have regard to any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind.

68 Accordingly, the legislation requires a sentencing judge to assume, when imposing sentence, that the offender will serve each and every day of the total effective sentence. The possibility, or even likelihood of parole, is to be disregarded.

69 In many cases, the reality is quite different. A prisoner with an expectation that he or she will be granted parole is often more interested in the non-parole period than the head sentence.

70 Nonetheless, it was submitted in support of this proposed ground that the evidence concerned the recent change in practice, on the part of the Parole Board, making it less likely that parole will be granted for anyone subject to deportation, was a matter that should be taken into account. At the very least, the knowledge that there was little, if any, likelihood that the appellant would be granted parole, meaning that there was a high probability that he would have to serve his entire total effective sentence, would itself make his term of imprisonment more burdensome. It was submitted that this should now be taken into account, both as vitiating the original sentence, and by this Court in the event of any resentencing.

71 It should be noted that we were not provided with any information as to what would happen to the appellant should he in fact be granted parole. As an unlawful non-citizen, he would presumably be taken into immigration detention. We do not know whether he would be kept in such detention for the entirety of the period of his sentence, or whether he would be deported while still serving the part of his sentence that remained, albeit on parole. Nor do we know whether any such consequences would flow from executive action or the operation of statute.

72 It is convenient to deal first with the respondent's submission with regard to ground 3. It was accepted that this Court should grant leave to add proposed ground 3. Indeed, the concession went further. It was conceded that the new evidence regarding the cancellation of the appellant's student visa was material, and should be received.

73 It was further conceded that this new evidence had the effect of vitiating the exercise of the sentencing discretion below. The appellant should therefore be re-sentenced by this Court on all charges.

74 The respondent accepted that, particularly having regard to the new evidence, the total effective sentence of 13 years and six months was manifestly excessive. That was broadly consistent with the respondent's position on the leave application before Tate JA, where it was acknowledged that this sentence was, at the least, 'very severe'. It was submitted, however, that it would not necessarily follow from the concession as to the total effective sentence that the non-parole period was also excessive.

75 Turning to ground 1, it was again and separately conceded by the respondent that the sentence of 18 months on charge 3 was manifestly excessive. So too, it was acknowledged, was the order that six months of that sentence be cumulated upon all other sentences. The effect of these concessions was ultimately acknowledged to be that the non-parole period of eight years could not stand.

76 As regards the current sentencing practices for rape, it was submitted that neither the cases relied upon by the appellant, as appropriate comparators, nor the sentencing snapshot for rape, to which her Honour referred, suggested that any of the individual sentences imposed for that offence, had been wholly outside the range. It was noted that the appellant had stood his trial, and had shown no remorse.

77 The respondent referred to four recent cases in which sentences for rape had come before this Court. Two of these involved sentences imposed after trial,[12] and the other two after pleas of guilty.[13] While it was true that in none of these cases had any individual sentences for rape exceeded six years, and in one of them a total effective sentence of four and a half years had been imposed, they did not support the contention that the sentences of seven, eight and eight and a half years were outside the range.

78 Finally, with regard to ground 2, it was submitted that charges 4, 5, 6 and 7, all involved different forms of penetration, and therefore warranted some cumulation. As regards charge 5, this had the additional aggravating feature of unprotected penile intercourse.

79 Nonetheless, having regard to all of the earlier concessions made, it was acknowledged that this appeal should be allowed and the appellant re-sentenced.

80 We accept the concessions made by the respondent, and consider that this appeal must be allowed.

81 We have read with some care Tate JA's reasons for granting leave to appeal. Her Honour described the total effective sentence of 13 years and six months as very stern. Counsel for the respondent had replied 'no argument from me, your Honour'. Nor would we cavil at that description.

82 It is instructive to note that the transcript of the leave application continues as follows:

HER HONOUR: Particularly when the bulk of the charges, five of the charges, all occurred within a single incident and both incidents related to the same victim and although the single incident was a protracted one, it nevertheless did occur within, as it were, a limited time frame.

...

HER HONOUR: I take it, then - - -

COUNSEL FOR THE RESPONDENT: I'm a bit conscious I've been criticised twice this week by this Court for being extraordinarily lenient so I'm trying to stiffen up a bit but I do hear what your Honour has to say.

HER HONOUR: So if one would record the Crown's position as opposing leave, continuing to oppose leave, but - - -

COUNSEL FOR THE RESPONDENT: Does not regard the application as hopeless, readily concedes that the sentence is very stern indeed. At the end of the day, the real point of manifest excessiveness - I understand the arguments my friend seeks to make but that's the real point, at the end of the day.

HER HONOUR: But it's, in part, a question that the new point is really a question of trying to explain how it is that the judge arrived at such a hefty sentence.

COUNSEL FOR THE RESPONDENT: I understand what your Honour's saying.

HER HONOUR: And whether there really was a failure to - particularly with respect to an appreciation of the principle of totality in the circumstances.[14]

83 Dealing first with ground 1, we are firmly of the view that the sentence of 18 months' imprisonment on charge 3 was manifestly excessive. The offence consisted of touching NL's breast, seemingly seconds, before penetrating her. The act of touching was a prelude to what was about to take place. In any event, on that basis, it should have been viewed as part and parcel of a single ongoing episode.

84 Indeed, we expressed some surprise, during the course of oral submissions, that the prosecution had seen fit, in the particular circumstances of this case, to include charge 3 on the indictment. Common sense would suggest this was unnecessary and inappropriate. It was also likely to complicate the already difficult task of sentencing in a way that was technically, and legally, valid.

85 Equally, the order cumulating six months of the 18 month sentence imposed on charge 3 on the base sentence and all remaining sentences, cannot be justified.

86 Plainly, the individual sentences imposed on the charges of rape were severe, and the total effective sentence of 13 years and six months was 'very stern, or 'hefty' as Tate JA observed. It is unnecessary to determine whether any of them viewed individually were manifestly excessive, since we have already concluded that the total effective sentence met that description.

87 With regard to ground 2 we note that by reason of the orders made for cumulation, the base sentence of eight years and six months on charge 5 has had added to it, when one cumulates the sentences on charges 3, 4, 6 and 7, some 42 months. That brings the total sentence for the five offences committed on 22 November 2015, to a total to 12 years. That total is, in our view, manifestly excessive. We would so hold irrespective of the 'new evidence' led in support of ground 3.

88 It should be noted that it is at least questionable whether s 6E, on its proper construction, required any significant cumulation on charge 3, given that the offending in question took place before the appellant formally qualified as a serious sexual offender. Moreover, s 6D(a) had no application to charge 3.

89 With respect to the judge, whose reasons for sentence are expressed in admirably clear terms, and are well-constructed, we consider that there has been too much cumulation, notwithstanding the operation of s 6E. The error, if it is to be specifically designated, lies in failing properly to apply both the principle of totality, and the approach to be taken to the 'one episode principle'.

90 We are fortified, to some degree, in that view by the position taken by the prosecution on the plea to the effect that the offending giving rise to charge 7 should be described as a 'continuation' of the offending giving rise to charge 5. If that be so, it is hard to see why a further 12 months should be cumulated upon the already stern sentence imposed on charge 5.

91 The difficulties that have arisen in this case represent a continuing problem for sentencing judges, and for this Court. There are ongoing tensions between the requirements of s 6E and, in particular, the principle of totality.

92 In R H McL, the High Court made the following observations with respect to s 16(3A) of the Sentencing Act 1991 (that section being the predecessor to s 6E):

The need for judges not to compress sentences is especially important where the accused person is a 'serious sexual offender' within the meaning of s 16(3A) of the Sentencing Act, and similar provisions. Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[15]

93 In Gordon, Redlich JA made the following comments, which were repeated and endorsed by the Court in Hopson, about the operation of s 6E alongside the principle of totality:

A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s 6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s 6E should override the principle of totality. However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s 6E and the principle of totality.[16]

94 It follows from these statements of principle that s 6E and totality both apply, but that the full effect of totality is to be somewhat reduced, in order to give proper effect to the legislative intent manifested in the section.

95 As noted earlier, counsel for the appellant relied, in his submissions before this Court, upon Carson. This was an early decision of the Court of Appeal concerning the operation of the legislative precursor to s 6E. It involved a Crown appeal against sentence in a case concerning a series of sexual offences upon a 12 year old boy. Remarkably, in terms of current sentencing practice, the respondent received a wholly suspended term of imprisonment.

96 The offending in question took place on two quite separate occasions, some months apart. The first three offences took place at the one time in March 1994, and the last two, at the one time later that same year.

97 The Court of Appeal, comprising Charles JA, Crockett and Southwell AJJA, noted that under the relevant provisions, after the passing of sentences of imprisonment on the first two counts, the respondent became a 'serious sexual offender' within the meaning of that term in the statute.

98 In dismissing the Crown appeal, the Court had this to say:

The first two offences of oral penetration were committed consecutively but during one incident. So also were the offences in counts 5 and 6. While the law is, as has been said, that upon the passing of two sentences of imprisonment for such offences the offender falls to be sentenced as a 'serious sexual offender', it is not without some significance to acknowledge that these were really not four incidents on only two occasions. The respondent's conduct would be regarded more seriously if there had been four such incidents.[17]

99 The point of principle enunciated above is important. Section 6E must, of course, be given its proper effect. At the same time, and balanced against the presumption that it mandates in favour of cumulation, a sentencing judge should not put entirely to one side the approach usually taken to the commission of several offences as part of a single episode. In addition, as set out in Gordon and Hopson, a sentencing judge should not set at nought the requirements of totality. The balance is difficult to strike, but that is a product of the legislative requirement that is in place.

100 If in Carson, there were, in effect, two incidents of offending which were properly to be viewed as such, and not as four separate acts of penetration, the same is true of the offences that took place on 22 November 2015, in the present case. That tends towards greater concurrency than would be the case if these were separate offences committed on different occasions involving different victims.

101 Part of the problem in this case, and many others involving s 6E, lies with the modern practice of charging every act of sexual offending, and particularly sexual penetration, as a completely separate offence, and then sometimes adding to them what are by comparison relatively minor charges, such as sexual assault. [18] The more such charges there are, the more difficult becomes the task of accommodating the competing principles to which the cases set out above refer.

102 For the reasons set out above, we would set aside the sentences imposed below, and re-sentence the appellant as follows:

• Charge 2 - 7 years' imprisonment (9 months cumulative).
• Charge 3 - 3 months' imprisonment (wholly concurrent).
• Charge 4 - 6 years' imprisonment (6 months cumulative).
• Charge 5 - 7 years and 6 months' imprisonment (base sentence).
• Charge 6 - 6 years' imprisonment (6 months cumulative).
• Charge 7 - 7 years' imprisonment (3 months cumulative).

103 The new total effective sentence is therefore nine years and six months. We would fix a non-parole period of six years and six months.

104 We would otherwise affirm all other orders made below.

[1] The appellant was acquitted on charge 1, which was a charge of sexual assault.

[2] Rooney v The Queen [2017] VSCA 275; Schneider v The Queen [2016] VSCA 76; Konamala v The Queen [2016] VSCA 48.

[3] DPP v Zhao [2017] VCC 1708 [65] ('Reasons').

[4] [2000] HCA 46; (2000) 203 CLR 452 ('R H McL').

[5] [2013] VSCA 343 ('Gordon').

[6] [2016] VSCA 303 ('Hopson').

[8] The term 'likely' has been superseded by the certainty that now exists that the appellant will be deported, having regard to the 'new' evidence placed before this Court, and discussed under proposed ground 3.

[9] Sentencing Advisory Council, Sentencing Snapshot No 207: Rape (May 2017).

[10] (Unreported, Victorian Court of Appeal, Charles JA, Crockett and Southwell AJJA, 6 October 1995) ('Carson').

[11] [1991] HCA 26; (1991) 173 CLR 48 ('Shrestha').

[12] Kalofolias v The Queen [2017] VSCA 308 and Shrestha v The Queen [2017] VSCA 364.

[13] Matheas v The Queen [2017] VSCA 330 and DPP v Davis [2017] VSCA 341.

[15] [2000] HCA 46; (2000) 203 CLR 452, 476-7 [76] (per McHugh, Gummow and Hayne JJ) (emphasis added).

[16] Gordon [2013] VSCA 343 [74] (emphasis added).

[17] Carson (Unreported, Victorian Court of Appeal, Charles JA, Crockett and Southwell AJJA, 6 October 1995), 7 (emphasis added).

[18] This practice arose out of a series of cases that established that where a number of criminal acts occur in close temporal proximity to one another, a sentencing judge cannot take into account any act which occurred prior or subsequent to the specific acts which constituted the elements of the offence for which the offender has been charged or convicted. See R v Newman & Turnbull [1997] 1 VR 146 and R v De Simoni (1981) 147 CLR 383.