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Supreme Court of Victoria |
Last Updated: 25 May 1998
No. 131/1996
No. 334/1996
JUDGES: PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A.
WHERE HELD: Melbourne
DATE OF HEARING: 12 March 1998
DATE OF JUDGMENT: 14 May 1998
CATCHWORDS: Criminal Law - Indecent assault - Absence of timely complaint - Statutory warning to be balanced by direction to consider delay. Crimes Act 1958, s.61. Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 applied.
Criminal Law - Indecent assault - Absence of motive of complainant to lie - Need for direction if absence of motive to lie is raised by the prosecution.
Palmer v. The Queen (1998) 151 A.L.R. applied.
Criminal Law - Sentence - Whether applicant a 'serious sexual offender'. Crimes Act 1958 ss.3, 39.
R. v. Dowlan (1997) 92 A.Crim.R. 305 applied.
APPEARANCES: Counsel Solicitors
For the Crown Mr G.R. Flatman, Q.C. P.C. Wood, Solicitor
and Mr J.D. McArdle for Public Prosecutions
For the Applicant Mr S. Gillespie-Jones John A. Clements Pty.
PHILLIPS, C.J.: In my opinion the application for leave to appeal against conviction should succeed, as should the application for leave to appeal against sentence touching presentment Z494. I publish my reasons.
CHARLES, J.A.: I agree. I publish my reasons.
BUCHANAN, J.A.: I agree. I publish my reasons.
PHILLIPS, C.J.: The orders of the Court are:
Presentment No. ZA585: The application for leave to appeal against conviction is granted, the appeal treated as instituted, heard instanter and allowed. The convictions sustained in the court below by the applicant are quashed and the sentences imposed thereon set aside. The Court directs that a new trial of the applicant be had.
Presentment No. Z494: The application for leave to appeal against sentence is granted, the appeal treated as instituted, heard instanter and allowed. The sentence imposed on the applicant in the court below is varied so that on each count he is sentenced to be imprisoned for eight months, making for a total effective sentence of 8 months. The cumulation directions in the court below are set aside.
131/96
334/96
JUDGES: PHILLIPS, C.J., CHARLES and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATE OF HEARING: 12 March 1998
DATE OF JUDGMENT: 14 May 1998
CATCHWORDS: Criminal Law - Indecent assault - Absence of timely complaint - Statutory warning to be balanced by direction to consider delay. Crimes Act 1958, s.61. Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 applied.
Criminal Law - Indecent assault - Absence of motive of complainant to lie - Need for direction if absence of motive to lie is raised by the prosecution. Palmer v. The Queen [1998] HCA 2; (1998) 151 A.L.R. 16 applied.
Criminal Law - Sentence - Whether applicant a 'serious sexual offender'. Crimes Act 1958 ss.3, 39. R. v. Dowlan (1997) 92 A.Crim.R. 305 applied.
APPEARANCES: Counsel Solicitor
For the Crown Mr. G.R. Flatman, Q.C. P.C. Wood, Solicitor for
Mr. J.D. McArdle Public Prosecutions
For the Applicant Mr. S. Gillespie-Jones John A. Clements Pty.
___________________________________________________________________________________
GT:SC V.G.R.S. 9603 2404
PHILLIPS, C.J.: I have had the benefit of reading the judgment of Buchanan, J.A. in draft form. I concur in the conclusions His Honour has reached and I would subscribe to his reasons therefor.
I certify that this is a true copy of the reasons for judgment of Phillips, C.J. of the Court of Appeal (Phillips, C.J., Charles, J.A. and Buchanan, J.A.) of the Supreme Court of Victoria delivered on 14 May, 1998.
DATED the day of 1998.
Associate
CHARLES, J.A.: I agree with Buchanan, J.A. that the application for leave to appeal against conviction should be granted, for the reasons given by his Honour.
The Crown accepted that the applicant's appeal against the sentence imposed on 31 December 1996 in the County Court at Bendigo (presentment Z494) should succeed, and that the applicant should be re-sentenced by this Court. Since this Court is, in the circumstances, unable to make a declaration under s.18 of the Sentencing Act 1991, and the sentences we impose will therefore take full effect from the date of the appeal, it is necessary, in order to achieve concurrency with the sentences imposed on 21 July 1995, to impose sentences much lower than those I would otherwise have thought appropriate. Accordingly I agree with the sentences proposed by Buchanan, J.A. and for the reasons given by him.
I certify that this is a true copy of the reasons for judgment of Charles, J.A. of the Court of Appeal (Phillips, C.J., Charles and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on 14 May 1998.
DATED the day of 1998.
.........................
Associate
BUCHANAN, J.A.: The applicant seeks leave to appeal against his conviction at the County Court at Bendigo on 20 June 1996 of four counts of indecent assault upon girls under the age of 16 years and against the sentence imposed upon him in respect of those convictions. The applicant was acquitted of two further counts of indecent assault. The counts on which the applicant was convicted were that between 1 January 1973 and 30 June 1975 he indecently assaulted the first complainant on two occasions and that between 20 August 1982 and 6 September 1982 he indecently assaulted the second complainant on three occasions.
The first complainant was the daughter of the applicant's cousin and treated the applicant as her uncle. The applicant regularly acted as the baby-sitter of the first complainant and her sister, who was the complainant in a count of which the applicant was acquitted. The first complainant's evidence was that on an occasion when she was between five and eight years of age she was sitting on the applicant's knee watching television. She said that the applicant put his hand under her dress and stroked her vaginal area over her underpants. She said:
"After he did it, I didn't feel comfortable with him doing it, so I moved his arm around and I think I said something like 'Don't' or something like that and then he put his arms back on my lap and then he put his arm under my dress again and did it again and I think I moved his arm away again and I'm not sure what happened, whether I got off, or whether he just stopped."
The counts concerning the first complainant were based upon these two episodes of stroking.
The applicant is the uncle of the second complainant. When the second complainant was 10 years of age she stayed at the house where the applicant lived with his wife and 10 year-old stepdaughter. The second complainant and the stepdaughter slept in single beds in the same bedroom. The second complainant said that on the first night the applicant entered the bedroom to say goodnight to the girls. The applicant sat on the second complainant's bed. While he talked to both girls with the light off, he put his hand down the sheet and down her underpants "... and he was fiddling around and he was putting his fingers in and out of my vagina and this went on for, I'd say, 15 to 20 minutes." The applicant then removed his hand, kissed her goodnight on the cheek, kissed his stepdaughter goodnight and left the room (count 4). The next night the same events occurred (count 5). The second complainant said:
"The third night the same thing happened. I'm not sure whether I stayed there three nights or two nights, I can't remember that. I can remember I definitely - it definitely happened on two occasions and I remember it happened every night that I was there, so I'm not completely sure that I - whether or not I stayed three nights or not."
As the second complainant could not swear positively to the third occasion, the learned trial judge directed an acquittal on the third of the charges in respect of the second complainant.
The first complainant apparently made no complaint about the applicant's conduct until about 1993. She said that she did not tell her parents after the event occurred, and indeed had forgotten it until about 1993. No evidence was elicited before the jury as to when the second complainant first made any complaint of the applicant's conduct. However, in his address to the jury, the prosecutor referred to the complainants keeping the events constituting the offences secret until the 1990s, and in his address counsel for the applicant referred to the lack of complaint. In his charge to the jury the learned judge also appears to have assumed no complaint was made by either of the complainants at the time the offences were alleged to have occurred. He said:
"Some point was made by the defence, in this case, about the failure of the three young girls to complain to any third party when the alleged events occurred. As a matter of law, I must tell you that failure to complain does not necessarily mean that the facts alleged are untrue. There may be good reasons why a victim of a sexual assault does not complain. In the end, it is for you to say whether the delays of the three complainants, in bringing their grievances to the attention of the authorities significantly affect their credibility."
The applicant did not enter the witness box. The only evidence led on behalf of the applicant was that of the applicant's wife, who said that she could not remember the second complainant staying at the applicant's house.
The applicant contended that the learned judge ought to have told the jury that absence of timely complaint was relevant to the credibility of the complainants and was a fact to be considered in evaluating their evidence. The point was advanced as a particular of the ground of appeal that the verdicts were unsafe and unsatisfactory. His counsel said that the learned judge should have balanced the comments that failure to complain did not necessarily mean that the facts alleged were untrue and there might be good reasons for absence of complaint with a direction that the jury could take into account the fact that the complainants had not complained at the earliest reasonable opportunity. In Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460, at p.465, Barwick, C.J. described the steps a judge should take where the evidence established delay in making complaint in these terms:
"It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given."
In 1991 s.61 of the Crimes Act 1958 was enacted. The section provides that where delay in complaint is raised, the trial judge must warn the jury that delay does not necessarily indicate that the allegation is false, and is to inform the jury that there may be good reasons why a victim of a sexual assault may hesitate to complain about it. In Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427 the majority of the High Court said that the purpose of s.61 was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses, but rather to correct what had previously been a standard practice whereby juries were instructed that complainants of sexual misconduct were specially suspect and delay in complaining invariably critical. The jury was to consider the possibility of good reasons for the absence of complaint, but they were also to weigh the significance of the delay. Balanced directions required both matters to be put to the jury in an appropriate case. Their Honours referred to the statement of principle by Barwick, C.J. in Kilby v. The Queen, and said, at pp.448-9:
"Provisions such as s.61(1)(b) of the Act are not, in their terms, addressed to a fundamental operation of the balance suggested both by common sense and by the decision of this Court in Kilby. ...
That this is the correct construction of s.61(1)(b) is confirmed both by the obvious relationship between the two sub-paragraphs within it and also by the expressed provisions of s.61(2) by which there is reserved to the judge the entitlement to make any comment 'that it is appropriate to make in the interests of justice'. Such interests obviously focus attention upon the facts of the particular case. The reservation of such an entitlement to comment makes it plain that the abiding judicial duty to assist the jury in the weighing of the potential significance of delay in complaining, in the circumstances of the particular case, remains."
In the present case the learned judge gave the warning and information required by s.61(1). The delay before complaint was made was significant, and in my opinion the jury ought to have been instructed as to the use they could make of it in assessing the credibility of the complainants. Without such instruction the earlier remarks required by the Act were likely to lead to an unbalanced view of the relevance of the delay. Did the learned judge give sufficient instruction as to the use that could be made of the delay by stating, "In the end, it is for you to say whether the delay of the three complainants, in bringing their grievances to the attention of the authorities, significantly affects their credibility"? In my opinion he did not. Preceded as it was by the warning and the information required by s.61(1), I think the statement was likely to have been understood as a direction that it was for the jury to determine the effect of the delay having regard to the warning and the information, and was not an instruction to view the delay itself as possibly bearing adversely upon the credibility of the complainants.
The applicant also contended that the trial miscarried because in weighing the credibility of the evidence of the complainants, the jury was invited to conclude the evidence ought to be accepted because the complainants had no motive to lie.
In his address to the jury the prosecutor placed considerable emphasis on the absence of any motive of the complainants to give false evidence. In the course of a concise address he said:
"Most of all, what you have got to ask yourselves is this I suppose, and my learned friend will make some suggestion maybe, about what motive they had, what motive they have to lie, individually or collectively? I mean, it's been put to each of them, 'Look, you've discussed this matter with your friend and the family have fallen out. You don't like him.' All of them said (a) 'You're right, I don't like him because of what happened to me years ago. No there is no bun fight animosity between the families, just not there.'
...
These are women who have kept this so-called secret for years and years, and you ask yourselves what motive have either one of them and collectively, to lie and come along to this court, go through all this, go to the police, go through all this, what motive just to nail that man? I mean, what has been put forward as to why they should do that?
...
As I say, you ask yourselves what motive had they individually or collectively for lying, and put us all, you and me, and everybody through all this. Why would they make false allegations, what is their motive? And the answer is, there isn't one, ...
And you'll keep, I suggest, coming back to this question, why? Why, why, why, would they make it up? Why, why, why? What's their motive? And there isn't one, because they're telling the truth.
...
And what we say to you again, and I pride myself in not repeating myself at all, but definitely not too often, you'll come back to that question and ask yourselves what motive have they got?"
In his charge the learned judge contented himself with paraphrasing the addresses of counsel. He said:
"The Crown relied on the truth and accuracy of the complainants and asked what possible motive the girls could have had to tell these stories, as mature women, if they are not true.
...
On the question of the motive of the girls, he (defence counsel) pointed out there is no obligation by the defence to show any motive. There may be a motive here, but the accused would not know about it. The Crown has to prove its case beyond reasonable doubt and if there is some hidden motive, then he must take that possibility into account. He pointed out the fact that the girls admitted that they disliked the accused and that could play some part in the stories they have told."
In Palmer v. The Queen [1998] HCA 2; (1998) 151 A.L.R. 16, the High Court considered the effect of cross-examination of the appellant, who was charged with a number of sexual offences against a child under the age of 16 years, as to whether the complainant had any motive to make up her allegations. The majority of the Court concluded that the cross-examination was not permissible and, as the directions given by the trial judge did not neutralize the prejudicial effect of the cross-examination, ordered a new trial.
Brennan, C.J., Gaudron and Gummow, JJ., at p.21, cited the following statement by Sperling, J. in R. v. E. (1996) 39 N.S.W.L.R. 450, at p.464 of the reasons why the question "Why would the complainant lie?" ought not to be asked:
"To ask, 'Why would he or she lie?' in such a case is to invite the jury to speculate to what might be possible motives for lying and to assess their likelihood. That is not to try the case on the evidence, but to speculate concerning unproven facts. The absence of evidence of a motive for lying and of a plausible explanation for lying is not proof that there was no motive for lying. Yet to pose the question at all is to give legitimacy to that method of reasoning and to that conclusion ...
Secondly, the question is unfair to the accused. How can the accused or his counsel be expected to see into the mind of the complainant, and be held accountable for failing to discern whatever motive there may be for a false story? ...
Thirdly, the effect of the question is to reverse the onus of proof. The question implies that, unless the jury is satisfied that the complainant is a liar, they should accept the complainant's evidence and convict."
Their Honours said that the third effect might be countered by an appropriate direction from the trial judge. Their Honours said, at p.21:
"If credibility which the jury would otherwise attribute to a complainant's account is strengthened by an accused's inability to furnish evidence or a
motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell, J. in the case cited by Wills on Circumstantial Evidence where his Lordship acknowledged that proof of the motive to lie weakened a complainant's credibility. The correct view is that absence of proof of motive is entirely neutral."
In the present case the applicant did not give evidence, but the question was placed at the forefront of the case by the prosecutor in his address. As the New South Wales Court of Criminal Appeal said in R. v. F. (1995) 83 A.Crim.R. 502, the question is never the central theme of criminal trials. At pp.511-2, Gleeson, C.J., speaking for the Court, said of the question:
"That is a question, often left unspoken, which usually hovers over cases of this nature ... While that question, sometimes spoken, sometimes unspoken, is often of great practical importance, it is never 'the central theme' of a criminal trial. At a criminal trial the critical question is whether the Crown has proved the guilt of the accused person beyond reasonable doubt. Just as the law does not require the Crown to prove a motive for the criminal conduct of the accused, the law does not require the accused to prove a motive for the making of false accusations by a complainant."
Here the question was a central theme of the Crown case, and in my view the mere repetition of the question and the response of defence counsel by the learned judge did not dislodge the question from its prominent position. Indeed his remarks may have been treated by the jury as approval of this state of affairs.
The applicant's counsel did explore the existence of a motive for the complainants to lie by suggesting in the course of cross-examination that they disliked the applicant. The following exchange took place between the applicant's counsel and the first complainant:
"There came a time when you didn't like Mr. Hewitt?---That's correct.
And you can't say why it was that you didn't like him, can you?---No, I can't.
You can't say that it had anything to do with these allegations can you? ---At the time, no I can't - couldn't.
...
Your family and the Hewitts, have not enjoyed friendly relations for a long time, have they?---What do you mean 'have not enjoyed friendly relations'? They ... friends.
They haven't seen eye-to-eye, haven't got on well?---They've always got on well.
They regularly visit each other over the years, is that what you're saying?---They don't regularly visit each other, over the years, only because they lived pretty far away from each other, but they've been friends for a long time."
Like questions were put to the second complainant as follows:
"Your family and Hewitt's family had a bit of a falling out, didn't they?---Well, it might have been with my parents that they had a falling out - it was nothing - I didn't know anything about it, I was only young.
Your family and the Hewitts have disliked each other for a long time, I suggest, haven't they?---I don't think it's dislike. I think it's probably they didn't have a lot in common. My Mum didn't really - we didn't see Jon a lot when we were little - we saw him a lot because he lived with his mother and my Mum went and visited their mother.
But your mother is his sister, isn't it?---Yes that's correct.
And they didn't get on, did they?---No, not really, or they didn't have much in common.
Well, you know they didn't get on. That's why you didn't see each other?---I do know now that I'm an adult, but when I was younger I didn't."
Counsel for the respondent submitted that those questions justified the prosecutor posing the question "Why would the complainants lie?". I do not agree. In my view the questions entitled the prosecutor to do no more than seek to rebut the existence of the motive suggested by the defence or eliminate or reduce its influence. To respond to the suggestion of a particular motive to lie with the question "Why would the complainant lie?" is to suggest that if the jury rejects the defence suggestion, it is to be concluded that because no credible motive has been put forward, the complainant's evidence should be accepted. That is at odds with the correct view that the absence of proof of motive is entirely neutral.
In R. v. Uhrig, N.S.W. Court of Criminal Appeal, 24 October 1996, unreported, at pp.16-17, Hunt, C.J. at C.L. said:
"What this Court said in R. v. F and in R. v. E should not be interpreted as excluding arguments being put to the jury, by either counsel or the judge, relating to the validity of the motive to lie which has been asserted in relation to a witness in a particular case. That is so notwithstanding that there is no requirement for the accused to prove such a motive, although in many such cases where the evidence of that witness is vital to the Crown case it will be appropriate for the judge to direct the jury that, even if they reject the motive to lie put forward by the accused, that does not mean that the witness is necessarily telling the truth, and to emphasise that the Crown must still satisfy them that the witness is telling the truth."
It was contended on behalf of the Crown that posing the question "Why should the complainants lie?" by the prosecutor and the lack of an appropriate direction from the judge had no adverse effect as the question itself was irrelevant. It was submitted that there was no issue at the trial as to the truth of the complainant's evidence. The only issue was as to the accuracy of the evidence. As the prosecutor's question was only relevant to rebut an attack on the veracity of the complainants, it could be disregarded in the absence of such an attack. Accordingly, it was said, there was no miscarriage of justice.
In my opinion it cannot be concluded that the jury ignored the question posed on several occasions by the prosecutor and repeated by the learned judge because the jury realized that the question was irrelevant. There was a significant danger that the jury would accept and act upon the complainants' evidence because they could discern no motive on the part of the complainants to lie, without drawing any distinction between truth and accuracy.
In this context counsel for the Crown pointed out that defence counsel at the trial took no exception to that part of the charge dealing with the question "Why should the complainants lie?" Counsel in this court relied upon the failure to take exception as an indication that the question had no real significance at the trial. I do not accept that the question was regarded as insignificant. The prosecutor sought to
make much of it and the learned judge accorded it more than passing attention in his charge. I think the lack of exception is to be attributed to the fact that the decision in R. v. Palmer was yet to be handed down when the trial was held and until then the dangers inherent in the question "Why should the complainant lie?" were not always appreciated.
For the foregoing reasons I am of the opinion that the trial miscarried. I would grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter, allow the appeal, quash the convictions and direct that there be a new trial.
The applicant also sought leave to appeal against the sentence imposed on 31 December 1996 in the County Court at Bendigo upon his conviction on three counts of indecent assault on a girl under the age of 16 years (presentment Z494).
The applicant pleaded guilty and was sentenced to be imprisoned for a term of 18 months on each of the first two counts and to 30 months on the third count. It was ordered that six months of the second and third counts be served cumulatively upon each other and upon the sentence imposed on the first count, making a total aggregate sentence of 30 months. It was further ordered that the aggregate sentence be served cumulatively upon the sentence the applicant was then undergoing. The applicant's current sentence was one of 60 months with a minimum term of 45 months, which had been imposed on 21 July 1995, and which the applicant is still serving, on three counts of rape of the complainant the subject matter of the present charges.
The complainant was aged between five and six years at the time the offences the subject matter of the first two counts were committed. The applicant was well known to her for he lived in a caravan in the grounds of the house in which the complainant lived. The counts were treated as representative of like offences. The offence the subject matter of the first count comprised the applicant placing his fingers in the complainant's vagina and rubbing his penis up and down her vagina. The second count involved the applicant touching the complainant's vagina while reading her bedtime stories. The third count took place when the complainant was between the ages of 14 and 15 years and concerned the applicant placing his fingers in the complainant's vagina for some 15 minutes.
The learned trial judge treated the applicant as a serious sexual offender on the basis that the counts were "sexual offences" within the meaning of s.3 of the Sentencing Act 1991. Section 3 provided that "sexual offence" meant an offence against a repealed provision of the Crimes Act 1958 which could have been charged as an offence against s.39 of the Crimes Act 1958 where the offence was attended by one of a number of specified aggravating factors. Under s.39 the Crown was required to prove absence of consent by the victim. After the sentence was imposed this Court's decision in R. v. Dowlan (1997) 92 A.Crim.R. 305, was delivered. The Court held that offences against repealed provisions of the Crimes Act which did not require the Crown to prove absence of consent by the victim could not have been charged as an offence against s.39. As the Crown was not required to prove absence of consent, the plea of guilty did not involve an admission of absence of consent. Similarly, the applicant in the present case pleaded guilty to counts laid under a repealed provision of the Act which did not require proof of absence of consent by the victim. Accordingly, it was accepted by the Crown that the appeal against sentence should succeed and the applicant should be re-sentenced by this Court.
The finding that a person is a "serious sexual offender" had drastic consequences, which explain the sentences imposed upon the applicant in the present case. Section 10 of the Sentencing Act at the time of the imposition of the sentences provided that consequent upon the finding a sentencing judge was not required to take the abolition of remissions into account. Section 5A of the Sentencing Act required the judge when sentencing for a sexual offence consequent upon the finding to regard the protection of the community from the offender as the principal purpose for which the sentence was imposed and the judge might, so as as to achieve that purpose, impose a sentence longer than that which was proportionate to the gravity of the offence having regard to its objective circumstances. So, too, sentences imposed for sexual offences consequent upon the finding were to be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed unless the Court otherwise directed. See s.16(3A).
The applicant is aged 45 years. His state of health is extremely poor. He is an insulin-dependent diabetic. He has suffered gangrene, which resulted in the amputation of two toes, emphysema, diabetic nephritis, arterio-sclerosis and Klinefelter's Syndrome. At the date of the offences the applicant had no prior convictions. The applicant pleaded guilty, thereby saving the State the expense and trouble of a trial and the complainant the ordeal of giving evidence. The learned judge rejected the contention that the plea of guilty was evidence of remorse, but the plea is still entitled to consideration as saving time and expense. Indeed, s.5(2)(e) of the Sentencing Act 1991 requires the Court to have regard to the plea. See R. v. Duncan, Court of Appeal, unreported, 26 May 1997, per Callaway, J.A.
Section 16(1) of the Sentencing Act provides:
"(1) Subject to sub-section (1A), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment or detention in a youth training centre imposed on that person, whether before or at the same time of that term."
Sub-section (1A) provides that sub-s.(1) does not apply to a term of imprisonment imposed, inter alia, on a serious sexual offender for sexual defence. In a case such as the present, to which sub-s.(1) applies, there is a statutory presumption or prima facie rule that the sentences be concurrent. See R. v. Mantini, Court of Appeal, unreported, 24 July 1997. In the present case I do not think good reason to direct cumulation has been disclosed. None was advanced by the Crown.
In my opinion the learned judge ought not to have directed cumulation of the sentences. In order to achieve the result that would have been produced if the learned judge had not directed cumulation, I would alter the individual sentences to 8 months, and I would set aside the directions for cumulation in respect of the counts themselves and the existing sentences imposed on 21 July 1995, with the consequence that the applicant will be released upon the expiration of the term of those existing sentences. As the sentence we impose will take effect from the date of the appeal, in order to achieve an appropriate result in this case I consider it necessary to impose individual sentences which are much lower than those I would otherwise deem proper.
I certify that this and the preceding 12 pages are a true copy of the reasons for judgment of Buchanan, J.A. of the Court of Appeal (Phillips, C.J., Charles and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on 14 May 1998.
DATED the day of 1998.
.........................
Associate
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