Gordon v The Queen [2013] VSCA 343 (13 December 2013)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

JOHN GORDON (a pseudonym)	Applicant

v

THE QUEEN	Respondent

JUDGES	ASHLEY, REDLICH JJA and LASRY AJA
WHERE HELD	Melbourne
DATE OF HEARING	7 November 2013
DATE OF JUDGMENT	13 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 343
JUDGMENT APPEALED FROM	R v Gordon (a pseudonym) (Unreported, County Court of Victoria, Judge Wilmoth, 7 December 2012)

CRIMINAL LAW – Application for leave to appeal against sentence imposed in December 2012 – Sexual offences – Serious sexual offender – Applicant under sentence imposed in November 2011 for similar offending – Part cumulation of sentences, and part cumulation of total effective sentence upon total effective sentence earlier imposed – New overall head sentence of 19 years and 6 months imprisonment – New non-parole period of 15 years imprisonment, to commence December 2012 – Non-parole period effectively 16 years and one month – Whether judge erred by discounting utilitarian value of guilty plea because of gravity of offending – Non-exceptional case – Whether new head sentence and/or new non-parole period infringed totality principle – Whether judge erred by stating that regard had to ‘principle of totality in order to avoid a crushing sentence’ – Relationship between totality principle and s6E, Sentencing Act 1991 – Whether new non-parole period manifestly excessive – Correct concession by Crown that non-parole period proportionately too great – Other errors inconsequential – Application granted – Appeal allowed in part – Appellant re-sentenced in respect of non-parole period only.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann	James Dowsley & Associates

For the Crown	Mr C Carr	Mr C Hyland, Solicitor for Public Prosecutions

1 John Gordon,[1] (conveniently, ‘the applicant’) having pleaded guilty to three charges of sexual penetration of a child under 10, was sentenced in the County Court on 7 December 2012 to five years’ imprisonment on each charge. Two years of the sentence on each of Charges 2 and 3 were cumulated on each other and on the sentence on Charge 1. The total effective sentence was thus nine years’ imprisonment. The applicant was then serving a total effective sentence of 14 years and six months imprisonment for other sexual offences. In respect of that sentence, imposed on 9 November 2011, the judge had fixed a non-parole period of 11 years imprisonment. The judge on 7 December 2012 cumulated five years of the sentence which she imposed on the sentence which the applicant was then undergoing. The overall total effective sentence thus became 19 years and six months’ imprisonment. The judge fixed a new non-parole period of 15 years’ imprisonment, to commence on 7 December 2012 — that is, the date on which she sentenced the applicant. Because the applicant had by then been under sentence of imprisonment for a little more than a year, the sentence in substance amounted to a total effective sentence of 19 years and six months’ imprisonment, with a non-parole period of 16 years and one month.

2 Because there had been a period of pre-sentence detention, between 8 July 2010 and sentence on 9 November 2011, the applicant’s earliest release date is presently 5 August 2026. Assuming his survival, he will then have been in continuous custody for about 16 years. Having been born on 22 June 1951,[2] he will then be aged just over 75. His total effective sentence will expire in January 2030. He will then be aged about 78½.

3 Now the applicant seeks leave to appeal; and, if leave is granted, that the appeal be allowed and he be re-sentenced. He relies upon these grounds:

4 The offending occurred between 1985 and 1988, when the applicant was aged between 34 and 37. The victim, a boy, was aged between 4 and 7, and was the son of the applicant’s then partner.

5 The three charges were representative, and involved similar conduct. The applicant would enter the complainant’s bedroom, and wake the boy. He would take the complainant to the bathroom, and when they had undressed, would make him bend over the bath and then anally penetrate him. The offending was accompanied by threats of harm to others and harm to the complainant if he disclosed what had happened. The offending was alleged to have taken place repeatedly, at times on a weekly basis. The complainant eventually made a complaint in May 2009. The applicant was arrested in July 2010. He denied offending, but eventually pleaded guilty.

6 The applicant has a long history of offending, and has spent much time in prison. In November 2011, he estimated that he had spent 25 years in prison. His first conviction was as long ago as 1966 when, assuming that he was born in 1951, he would have been aged about 15. Of particular historical relevance are — (1) a conviction in 1980 for indecent act upon a child under 16; (2) convictions for detention for the purposes of sexual penetration, indecent assaults with aggravating circumstances and multiple rapes, the subject of an appeal to the Court of Criminal Appeal in early 1989; and (3), convictions for multiple rapes, threat to kill and indecent act with a child under 16, the subject of an appeal against sentence to the Court of Appeal in July 2005. The first group of those offences attracted, on appeal, a sentence of imprisonment for 9 years with a 6½ year minimum, and the second, a sentence of imprisonment of eight years with a 6½ year minimum.

7 The applicant was not deterred from sexual offending. He committed many acts of sexual penetration of different kinds against two young sons of a man whom he has met in prison, and befriended, and indecent acts involving those children. The period of offending was between October 2005 and June 2009. It was for those offences that the applicant was sentenced to a total effective sentence of 14 years and six months imprisonment with a non-parole period of 11 years, in November 2009.

8 Bearing in mind that the offending with which the Court is now concerned took place between 1985 and 1988, it can be seen that the applicant has a shocking history of sexual offending, often involving young children, and of both sexes. It began in about 1980, and continued almost until he was arrested in July 2010. Put another way, it began when he was in his early thirties and was still continuing nearly 30 years later. Moreover, consideration of the reasons of the Court of Appeal delivered on 20 July 1995 reveals that the applicant committed serious sexual offences at least once whilst on parole. At least as early as 1995, in an appeal dealt with by this Court, he was described as ‘not a good candidate for rehabilitation’. In 2011, the sentencing judge said, in my opinion very generously, that there was ‘little before [him] to suggest that there is any great likelihood’ of the applicant’s eventual rehabilitation.

9 Assuming that the applicant was born in June 1951, he was aged 61 when sentenced for the instant offences. He had two siblings, but had not had contact with either of them for many years. He was single, but had been in one relationship out of which a son had been born. He had not had any significant contact with the boy - now a man. His education had been minimal. Much of his adult life had been spent in goal. When not imprisoned, he had engaged in manual work, in jobs of relatively short duration. His health, it was said from the Bar table, was now compromised. He suffered from hepatitis C, diabetes and had cardiac problems; and had been diagnosed with depression in 2012. According to the report of the psychologist, Dr King, he had suffered and continued to suffer from a serious mental illness. Of the psychologist’s report, more later.

10 According to his counsel below, the applicant was now resigned to remaining in prison until his death.

11 For the reasons which follow, I would grant the application for leave to appeal. I would allow the appeal on Ground 3, and impose a shorter non-parole period. I would dismiss the appeal so far as Grounds 1 and 2 are concerned, because any errors which appear from the judge’s Sentencing Remarks have not persuaded me that any different sentence should be imposed.

13 Applicant’s counsel submitted that the proportionate gap between the head sentence and the new non-parole period was too small. That was so despite there being no exact yardstick for determining an appropriate non-parole period. Acknowledging his client’s appalling history of sexual offending, and the judge’s particularly bleak view of the applicant’s prospects for rehabilitation, counsel nonetheless submitted that the non-parole period was too great. He observed that, towards the end of the non-parole period set by the judge, his client would be a quite elderly man in poor health.

14 Counsel for the Crown, in written submissions, conceded that there was ‘great force’ to the applicant’s submission that the new non-parole period was manifestly excessive. He drew attention to the applicant’s age, pointing out that the non-parole period was likely to represent a high proportion of the life that the applicant has yet to live.

15 In oral submissions, counsel adhered to the concession that the non-parole period had been set too high.

16 This is not the occasion to restate the principles which must guide the imposition of a non-parole period. I do, however, remind myself of two considerations which are pertinent in the present case. First, the proportionate gap between head sentence and non-parole period is likely to be the less where a long sentence is imposed.[3] Second, the age of the person to be sentenced may be relevant - as where the accused is elderly, and a sentence might well mean that he or she will spend all or much of his or her likely remaining years in custody.[4]

17 The prosecutor below proposed a new head sentence of 20-22 years, with a new non-parole period of 15-16 years commencing at date of sentence. In substance, the judge acceded to the latter submission, but not the former. That operated to reduce the suggested gap between head sentence and non-parole period.

18 At one stage in argument, I was attracted to the idea that the judge had intended to impose a non-parole period of 15 years beginning in November 2011 (which would have involved fixing a new period of a little less than 14 years to commence on 7 December 2012), but that she had then made a mistake in fixing a 15 year period to commence on that later date. On reflection, that seems not to have been the case. Rather, it appears that the judge acceded, as I have said, to the Crown’s submission with respect to the non-parole period. It seems to have been her Honour’s intention that in substance the non-parole period should be a little over 16 years - that is, the 15 years that she fixed, and the 13 months which the applicant had served between November 2011 and sentence in December 2012.

19 Of course, the judge was not obliged to accept either aspect of the Crown’s submissions. But they were, in my opinion, rational; and they add some support to my assessment that in all the circumstances of the matter the gap between the head sentence and the new non-parole period was impermissibly short.

20 I propose that, in lieu of the non-parole period which the judge fixed, a new non-parole period be fixed, the effect of which would be that 14 and-a-half-years imprisonment be the minimum term served, calculated from 9 November 2011.

21 The applicant is now aged 62. It was said by his counsel below, without demur by the Crown, that he suffers health problems. They include hepatitis C, diabetes and cardiac disease. They require treatment. There is nothing, however, which indicates that they could not be appropriately treated in a prison environment.

22 Before sentence, a clinical psychologist, Dr Michael King, subjected the applicant to certain testing; and then expressed the opinion that the applicant had a serious mental disorder which had been overlooked by mental health professionals in the past. The doctor (not of medicine) opined that the applicant had likely been suffering from psychotic illness, and required psychiatric treatment and medication. Most likely, the psychologist opined, ‘this many (sic) suffers from a psychosis and is unable to control his behaviour’. The specific diagnosis was ‘psychotic depressive disorder combined with a personality disorder which in this case includes a morbid interest in illicit classes of pornography’.

23 The self-report which Dr King obtained from the applicant was extraordinarily brief and incomplete.

24 Dr King’s opinion that the applicant’s life was compatible with psychosis and an inability to control his behaviour was not attached to the present offending; or, indeed, to any particular offending.

25 There was, in my view, every reason for the Crown to have cross-examined Dr King. But that did not happen, and his opinion was before the judge below, for whatever it was worth.

26 The judge said this about matters relied upon by the applicant in mitigation of sentence:

27 In this Court, the focus of counsel’s submission was upon what the judge said about the mitigating impact of the applicant’s plea of guilty. The plea had utilitarian value, counsel contended, unaffected by the gravity of the offending.[5]

28 Counsel submitted also that his client’s health problems, both mental and physical, were important mitigating factors that should have been given significant weight. Further, the applicant’s mental problems should have been seen as linked to his offending, this calling Verdins [6] into play. Again, the applicant’s imprisonment, by reason of his physical and mental disabilities, would be the more burdensome. But the judge had accorded the disabilities little weight as mitigating circumstances - because, as she said, the offending was extremely serious.

29 Counsel for the Crown submitted, first, that no attempt was made on the plea to relate the offending to the applicant’s asserted mental illness. There had been no occasion for the judge to mitigate sentence on the basis of any reduction in moral culpability.

30 In my opinion, that submission should be accepted. This Court has repeatedly made it clear that the first proposition in Verdins [7] cannot be called in aid absent evidence to link the impairment with the offending. It was not for the judge to speculate, the more so in the context of Dr King’s generalisation.

31 Counsel for the Crown next submitted that the correct understanding of what the judge said at [16] in her Sentencing Remarks (see [26] above) was that the plea of guilty, focussing upon its utilitarian value as a mitigating circumstance, carried little weight — not that this was to be said of both the applicant’s assumed health problems and the guilty plea generally. Although the matter is not quite clear, I consider that the Crown’s submission is the more likely meaning of what her Honour said. In my opinion, it most satisfactorily explains the individual sentences and the orders for cumulation which the judge imposed.

32 The question remains whether it was correct for the judge to say that the guilty plea carried little mitigatory weight, with respect to its utilitarian value, because of the ‘extreme seriousness’ of the offences. It is a question which should be answered, although any assumed diminution in the weight attached by the judge to the utilitarian value of the plea, if erroneous in principle, would not lead me to conclude that any different sentence should be imposed.

33 Counsel for the applicant relied upon Phillips v The Queen,[8] and R v Duncan[9] as authorities for the proposition that the discount for a guilty plea should not be undervalued because the offender is charged with a very serious offence. He submitted that his client’s guilty plea had significant utilitarian value. Its lateness — it was made on the first day of trial and witnesses must have prepared to give evidence — was not relevant.

34 Counsel for the Crown submitted that in some exceptional cases, when the offending is extremely serious, a sentencing court may attach no weight at all to the utilitarian value of a guilty plea. He cited Phillips. That submission was correct.

35 Counsel then submitted that there must be less exceptional cases which, though warranting some discount for the utilitarian benefit of a guilty plea, warrant a lesser discount than that which would otherwise be allowed. It was, in effect, a submission which envisaged a sliding scale, according to which the extent of discount for the utilitarian value of a guilty plea would move in inverse ratio to the severity of the offending.

36 The law in this State with respect to the mitigatory effect of a plea of guilty is as described by Redlich JA and Curtain AJA (with whom Maxwell P agreed and Harper JA substantially agreed) in Phillips. Their Honours summarised the matter this way.

37 No submission was made for the Crown below that the seriousness of the applicant’s offending made this one of those exceptional cases where no mitigatory weight should be accorded to the utilitarian value of the applicant’s plea of guilty; and the judge did not accord it no weight.

38 The question is then whether it accords with principle for a judge to accord less mitigatory weight than the judge would otherwise do to the utilitarian value of a plea of guilty because the applicant’s offending was very grave, though not so grave as to obliterate any allowance for the utilitarian value of the plea.

39 It was recognised by Redlich JA and Curtain AJA in Phillips that the utilitarian value of a guilty plea could be minimised, though not obliterated, in particular circumstances.[11] But their Honours, having the opportunity to describe those circumstances, did not advert to the gravity of the offending - although that was the one circumstance which was identified as having the capacity to obliterate the giving of any weight to the utilitarian value of a guilty plea. This, I consider, should be regarded as a significant, and intended, omission.

40 I am concerned that sentencing should not become an impossible burden for sentencing judges. It will become so if every pronouncement by the High Court, or this Court, or a court of similar jurisdiction, is subjected to word by word analysis, first by counsel and then by judges, in an endless exercise of over-conceptualising the instinctive synthesis which results in sentence.

41 The mitigatory effect of a guilty plea - a matter to which, though not expressed by statute in the language of mitigation, a judge must have regard in sentencing an offender - is only one of a number of factors which must be brought to account in imposing sentence. Already, by authority, the utilitarian value of such a plea, and the value of subjective criteria,[12] if present, require separate consideration. Already, by authority, circumstances pertaining to the utilitarian aspects of a plea have been identified which may bear upon the presence of subjective criteria.[13] Already, by authority, rare circumstances have been identified in which the utilitarian value of such a plea may be obliterated. Against that already highly conceptualised background, I would reject the Crown’s invitation to add yet another layer of learning with respect to the mitigatory impact of a plea of guilty. To do so would not be a logical extension of Phillips; and to do so is unnecessary. For to say that, with very rare exceptions, there will always be utilitarian value to a guilty plea, which goes in mitigation of sentence, is not to say that the value will be a constant from one case to another.

42 It may be that the judge was simply trying to convey the point which I have just made in the impugned passage in her remarks. But arguably she was in error. That said, I repeat my opinion that the assumed error does not persuade me that any different sentence should be imposed.

43 Counsel for the applicant argued Grounds 2 and 3 together. But I have dealt discretely with Ground 3.

44 Counsel readily conceded the ‘extreme seriousness’ of the offending. He conceded also that the judge had to ‘significantly increase’ the head sentence which had been imposed in November 2011 in order to reflect the instant offending and the victim. He accepted, also that the judge was ‘alive to totality’. But he submitted that the judge had erred in two ways in the following passage in her Sentencing Remarks:

45 Counsel identified the two errors as follows: first, the judge said that she ‘tempered’ the principle of totality ‘by the fact that you continued to offend in the same manner’. Second, the judge said that she took into account ‘the principle of totality in order to avoid a crushing sentence’.

46 The second of the asserted errors only attracted attention in the course of oral argument. When raised by the Court, it was, correctly, common ground between counsel that totality and the need to avoid a crushing sentence are discrete, not associated, concepts. Once totality has been considered, a question which the judge will ask himself or herself, specifically where the head sentence proposed is very long, is whether the sentence is ‘crushing’.[14]

47 In the event, the judge’s remark was incorrect. It is noteworthy that the error did not find its way into either counsel’s written or oral submissions. It was only identified as an error when Redlich JA drew attention to what the judge had said. Error it was. But it appears to me very clear that it could not have led to an increase in the total effective sentence beyond what it would otherwise have been; and the same observation applies to the new non-parole period which the judge fixed.

48 That takes me to the first of the alleged errors. Applicant’s counsel submitted that in arriving at the new total effective sentence, and in fixing the new non-parole period, the judge had not given sufficient account of totality. The applicant was elderly, had health problems, had already endured a difficult time in prison, and would find future imprisonment particularly burdensome. A head term of 19½ years’ imprisonment should have been seen as an order dealing with a significant part of the applicant’s remaining life. The applicant had pleaded guilty, and the judge had found remorse to be present. Further, the applicant had already been sentenced for the subsequent offending which was dealt with in November 2011, for which reason application of the totality principle should not have been ‘tempered’ by that offending. In all, ‘the application of the totality principal [had] been tempered to an inappropriate degree.’

49 Counsel for the Crown submitted that the judge brought to account all the factors which could run in mitigation of sentence. No complaint could be legitimately made as to the cumulation of five years’ imprisonment on the sentence imposed in November 2011. The applicant had in fact committed like offences subsequently. He fell to be sentenced as a serious sexual offender. The totality principle could only apply in limited fashion in such a case.[15]

50 I consider that it is relevant to note the way in which the prosecutor relied upon other offending of which the applicant had been convicted — that is, including the subsequent offending which was dealt with in November 2011. The prosecutor submitted that – (1) it bore on the applicant’s prospects of rehabilitation, which he contended were ‘non-existent’; (2) subsequent offending showed the applicant to be still a danger to the community - that being a relevant sentencing consideration; and (3) the offending dealt in 2011 was relevant to totality because the judge had to address the whole of the offending conduct the subject of sentence in 2011 and the subject of the sentence which her Honour was called upon to impose.

51 In submitting that the totality principle should be ‘tempered somewhat by the fact that there has been continued offending over the years’, the prosecutor referred to Johnson [16] and to RH McL. The latter authority, he said, ‘summarise[d] the principles which [he] had been articulating.’

52 In my opinion, the judge’s reference in her Sentencing Remarks to the totality principle being ‘tempered’ by the subsequent offending needs to be understood in context. It appears to me that her Honour was saying no more than the subsequent offending was relevant to totality for the three reasons to which the prosecutor had referred. There was nothing erroneous in saying that. There was such relevance.

53 That leaves only this question for consideration: did the sentence which her Honour imposed, absent error in approach, nonetheless impermissibly infringe the totality principle? In my opinion, the answer to that question – I put the new non-parole period to one side – is definitely ‘no’.

54 The applicant fell to be sentenced, on all three changes, as a serious sexual offender. That had two significant aspects.

55 First, the principal purpose for which sentence was to be imposed was protection of the community.[17]

56 That consideration, despite the applicant’s age, was understandably thought by the judge to be of significance. She observed that:

57 The applicant, having sought to rely on the psychologist’s report, could hardly complain that the judge relied upon it in that way.

59 Section 6E inverts the presumption of concurrence established by s 16(1) of the Act. It is the exception set out in s 16(1A)(c).

60 Section 6E is not, however, expressed in the same language as the exceptions dealt with by s 16(1A)(b) and (d); as to which, respectively, see s16 (3) and (3B). In those situations, a sentence must be served cumulatively ‘unless otherwise directed by the Court because of the existence of exceptional circumstances’. That terminology surely underscores the force of the reversal of the presumption of concurrence in the circumstances to which it applies. By contrast, the language of s 6E - like its legislative predecessor, the now-repealed s 16(3A) - requires the judge to take a starting point in favour of cumulation, but otherwise preserves the judge’s discretion. The judge may ‘otherwise direct.’ It is precisely the same situation, in reverse, that empowers a judge to ‘direct otherwise’ in a case in which the presumption of concurrence applies.

61 Both counsel referred the Court to a passage in the judgment of McHugh, Gummow and Hayne JJ in RH McL. In that case, an appeal against conviction on some counts only succeeded. The Court of Appeal quashed the convictions on those counts and ordered a retrial. In reliance on s 569(1) of the Crimes Act 1958, it re-sentenced the appellant to higher sentences on the remaining counts. In the result, the total effective sentence remained the same. The question in the High Court was whether s 569(1) had authorised the Court of Appeal to resentence the applicant so as to impose a new head sentence. By majority, the High Court answered that question ‘yes’.

63 No doubt because, as their Honours said, the interrelationship between s 16(3)(A) of the Act and the totality principle did not arise in that appeal, they did not explain what they meant when they said that ‘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.’[18] No subsequent case in the High Court has illuminated what was meant. In the meantime, more than a decade has passed, and the interaction between s 6E of the Act (as it now is) and the totality principle has been dealt with pragmatically by sentencing judges, and by this Court, case by case.

64 Counsel referred us to a number of instances where RH McL has been cited in this Court - often, but not always, in the context of an appellant complaining that the extent of cumulation was too great.[19] In only one of those cases had the sentencing judge ordered total cumulation; and in that case, this Court did not interfere with the head sentence.[20] In the other cases, by and large, it was enough for the Court to say that the presumption in favour of cumulation, and a modified role of the totality principle, sufficiently explained and justified what the sentencing judge had done.

65 In my view there is no occasion, in this case, to investigate the question left open by the High Court in RH McL in the passage noted at [63] above.[21] That is so for two reasons.

66 First, in my view the individual sentences which the judge imposed on the applicant and the orders for cumulation, were modest. A nine year head sentence, in all the circumstances of the offending and the offender, was merciful. Then, as to cumulation of five years of the head sentence on the sentence which the applicant

was already serving, anything less would have been derisory. There had to be substantial cumulation, even assuming that s 6E of the Act had not existed and that totality fell for consideration in the context of a presumption of concurrence. Thus, s 6E apart, I would not regard the cumulation now under discussion as infringing totality.

67 Second, in those circumstances, the applicability of s 6E simply underlines the modest nature of the order for cumulation of five years of the head sentence on the sentence which the applicant was then serving.

68 I agree with Ashley JA that leave should be granted on ground 3, the appeal allowed and the new non-parole period fixed which his Honour proposes. I also would refuse leave to appeal on the other grounds. I agree with Ashley JA that despite such errors as have been made out there are no reasonable prospects that different sentences would be imposed.

Whether the discount for a plea of guilty is to be reduced as the objective gravity of the offence increases?

70 As to ground 1, what was said at [36] of the joint reasons in Phillips v The Queen,[22] in which I participated, to the effect that in an exceptional case the gravity of the offending conduct may be of such an order of seriousness that no

discount from the maximum sentence is appropriate, does not support the submission that the extent of the discount to be afforded an offender for the utilitarian benefits of a plea of guilty, will vary according to the objective gravity of the offence. The exceptional case of which we spoke, of which there are but a few instances over many years, was one where no mitigating factors would reduce the sentence, the conduct being so grave.

71 I agree with Ashley JA that the suggestion by the Crown that the sentencing judge should vary the discount to be allowed for a plea of guilty, according to some sliding scale of the objective gravity of the conduct has no place in the instinctive synthesis. Quite apart from the further complexity which such an approach would add to the sentencing process, it would be contrary to the underlying rationale of the principle which is intended to encourage guilty offenders to acknowledge their guilt, whatever their degree of criminality. Its effectiveness would be undermined were it the case that the more serious the conduct, the smaller the reduction in the sentence for the utilitarian benefits of the plea.

72 Thus, although these sexual offences involved penile anal penetration of a relatively young child and were thus of a very grave order, the sentencing judge was in error to reduce the mitigatory weight of the plea because of the seriousness of the offence.

73 As to ground 2, although the concept of a ‘crushing’ sentence is often discussed in the same context as the principle of totality, they are discrete questions.[23] A sentence may be crushing though it not necessarily infringe the principle of totality. I agree with Ashley JA that the sentences cannot be characterised as crushing.

74 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.

75 The Crown, quite understandably, did not submit that the sentencing judge was in error in ordering only partial cumulation of these offences, as to significantly increase the orders for cumulation may have produced a crushing sentence. That said, when regard is had to the very serious nature of the applicant’s conduct, the orders for cumulation were, as Ashley JA has observed, of a modest order, reflecting a considerable level of leniency in the application of s 6E and the principle of totality. The complaint as to the orders for cumulation was without merit.

76 I have had the benefit of reading in draft, the reasons of Ashley JA. I agree with his Honour that leave to appeal should be granted, on ground 3, and the appeal should be allowed with a different non-parole period to be fixed as his Honour proposes. I also agree the appeal should otherwise be dismissed.

^[2] That is the date of birth recorded by the judge on the Court Record in December 2012. But the Victoria Police Criminal History Report records his date of birth variously as 22 June 1950 and 22 June 1951.

^[12] The presence of remorse, acceptance of responsibility, and willingness to facilitate the course of justice.

^[14] See the discussion of totality and a crushing sentence by Redlich JA in Azzopoardi v The Queen (2011) 35 VR 43, 63 [69].

^[21] Redlich JA considerably explored the question, in the context of s16(3B) of the Act, in DPP v Johnson (2011) 35 VR 25, 38-41 [59]-73].

Supreme Court of Victoria - Court of Appeal

Gordon v The Queen [2013] VSCA 343 (13 December 2013)