Hesketh v R

1. [1]

   BELL P: On 18 March 2020, Mr Dylan Hesketh (the Applicant) entered pleas of guilty before Grant DCJ (the sentencing judge) on the following two counts:

2. [2]

   The first count (the discharge offence) carried a maximum penalty of 25 years’ imprisonment with a standard non-parole period of nine years; the second count (the wounding offence) carried a maximum penalty of seven years’ imprisonment with a standard non-parole period of three years.

3. [3]

   The Applicant was sentenced to an aggregate term of imprisonment of 11 years, commencing on 19 August 2018, with a non-parole period of seven years and six months. The Applicant’s sentence expires on 18 August 2029, and he will be eligible for parole on 18 February 2026. The sentencing judge applied a discount of 25%, accounting for the Applicant’s early guilty plea pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act).

4. [4]

   The indicative custodial sentence in relation to the discharge offence was ten years with an indicative non-parole period of seven years. The indicative sentence in relation to the wounding offence was three years’ imprisonment with an indicative non-parole period of two years. The effective or notional accumulation of those indicative sentences resulted in an increase of the “head sentence” in respect of the discharge offence by one year and the non-parole period by six months.

5. [5]

   Notwithstanding that he had pleaded guilty to the wounding offence, the Applicant sought to appeal against his conviction on this count, and also sought leave to appeal against his sentence for the wounding offence. The following grounds were advanced:

6. [6]

   By Ground 3, the Applicant sought leave to appeal against the aggregate sentence on the basis that it was manifestly excessive.

7. [7]

   Grounds 1 and 2, and the principal focus of argument on appeal, had at their core the fact that the discharge and wounding offences both involved the same act, namely the discharge of a firearm, although the offences involved different legal elements.

8. [8]

   Of relevance to the Applicant’s argument was s 21A of the CSP Act, subsection 1(a) of which provides that:

9. [9]

   The relevance of these sub-sections of the CSP Act was that, by s 21A(2)(g), the sentencing judge was able to deal with the consequences of the discharge of the firearm even though the fact of wounding was not an element of the discharge offence. This led to the argument that the Applicant had been doubly punished for what was in substance the one act.

10. [10]

    In other words, the whole of the criminality of the wounding offence was subsumed by the conviction in respect of the discharge offence. This was said to be contrary to the settled principle of the common law that an offender should not be punished twice for the same, or substantially the same, act. [1] As such it was submitted that the conviction for the wounding offence should be quashed, just as the Victorian Court of Appeal, in R v Sessions, [2] quashed a conviction for recklessly causing serious injury on the basis that the criminality involved in that offence had been wholly subsumed by the charge of rape to which the offender had pleaded guilty. The Applicant’s contention was that the sentence exceeded what was “a just and appropriate measure of the total criminality involved”. [3]

11. [11]

    Alternatively, it was put that there should have been no notional accumulation of the sentences for the separate offences and that the sentence for the wounding offence should have been wholly concurrent with that for the discharge offence. As will be seen, there is a conceptual flaw in this contention given that the sentence imposed was an aggregate sentence.

12. [12]

    The Crown, in answer, contended that the sentencing judge had deliberately differentiated the two offences in his remarks on totality, [4] that his Honour had only taken the wounding into account in relation to the wounding offence and that the present case was quite unlike Pearce in that there were no common or overlapping elements of the two offences charged. The Crown contended that s 21A(4) of the CSP Act, which provides that the Court is “not to have regard to any aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so”, was a basis for distinguishing Sessions, and that the rule against double punishment precluded the sentencing judge from taking into account the wounding for the purposes of passing sentence in respect of the discharge offence.

13. [13]

    Before turning to a more detailed consideration of the arguments advanced by the Applicant, it is necessary to set out a brief summary of the relevant background facts and the approach of the sentencing judge.

Background and proceedings on sentence

1. [14]

   Having entered pleas of guilty on both counts, the Applicant was sentenced on the basis of a statement of agreed facts. Relevantly, these facts were as follow:

2. [15]

   At an early stage of the proceedings on sentence, on 18 March 2020, the sentencing judge raised the interrelated issues of double punishment and totality as follows:

3. [16]

   The risk of double punishment was also raised by Mr Fokkes (who appeared for the Applicant in the proceedings on sentence) in the course of argument as to the objective seriousness of the offences:

4. [17]

   The focus of the proceedings on sentence then turned to matters including the subjective circumstances of the Applicant, aggravating factors and the principles of sentencing for violent offences involving unlicensed firearms.

Remarks on sentence

1. [18]

   The sentencing judge’s remarks commenced with a recital of the relevant maximum penalties and standard non-parole periods for the two offences charged. His Honour acknowledged that he was to “steer by”, but “not aim for” the maximum penalties and standard non-parole periods, in view of their status as “important guideposts in the assessment of sentence”.

2. [19]

   His Honour then turned to consider aggravating factors under s 21A(2) of the CSP Act, accepting that the Applicant’s offending conduct was aggravated, per s 21A(2)(j), by his being subject to a “community correction order” at the time of the shooting. The location of the shooting, in the driveway of the victim’s home, was held to be another aggravating factor: see s 21A(2)(eb). The sentencing judge, when identifying aggravating factors, did not refer to s 21A(2)(g) of the CSP Act, [5] although his Honour did refer to the Victim Impact Statement of Mr Hughes.

3. [20]

   When discussing the objective seriousness of the offending conduct, the sentencing judge made the following observations:

4. [21]

   After discussing the Applicant’s subjective circumstances, remorse, prospects of rehabilitation, a Bugmy [6] submission (which was rejected), the principle of parity and special circumstances, the sentencing judge then addressed the principle of totality. Under that sub-heading, his Honour said:

5. [22]

   This passage from the remarks on sentence does not support the Applicant’s submission that his Honour made no distinction between the two offences.

6. [23]

   Of some further relevance to the issues sought to be raised on appeal was the particular emphasis that was placed by the sentencing judge, in the context of the discharge offence, on the fact that the Applicant had possession and made use of a firearm. His Honour referred to and quoted the observations of Rothman J in R v Campbell; R v Smith [7] that:

7. [24]

   His Honour then proceeded to nominate the indicative sentences for the discharge and wounding offences before imposing the aggregate sentence. As noted earlier in these reasons, [8] there was a relatively small degree of notional accumulation.

Consideration

1. [25]

   The principle against double punishment is easy enough to state but perhaps more difficult to apply. In Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ observed that there is “a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act”. [9] The generality of that observation is important and much will turn on what is understood by “the same act” because, as Gleeson CJ observed in Environment Protection Authority v Australian Iron & Steel Pty Ltd, “[t]o assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts”. [10]

2. [26]

   In Pearce there was a degree of refinement of the generality of the statement made in Hoar, although the plurality said that it was not necessary for them to decide whether the principle against double punishment was “properly to be characterised as good sentencing practice or as a positive rule of law”. [11] The refinement was to focus on common elements of multiple offences charged.

3. [27]

   Pearce relevantly involved convictions for malicious wounding or infliction of grievous bodily harm with intent to do such harm under s 33 of the Crimes Act 1900 (NSW) and for the offence under s 110 of the Crimes Act of breaking and entering a dwelling house and while therein inflicting grievous bodily harm upon any person. In Pearce the plurality observed, in a passage relied upon by the Applicant, that:

4. [28]

   Their Honours also said that:

5. [29]

   The plurality in Pearce did not indicate whether or not the double punishment which they held to have been imposed in that case meant that no conviction should have been entered in respect of one of the offences (and the conviction on that count quashed) or the circumstances in which a concurrent (or partially concurrent) sentence would be appropriate.

6. [30]

   As to the former matter, the position may be contrasted with the approach taken by Hayne JA (as his Honour then was) in Sessions, who held that a conviction on a count of recklessly causing serious injury, to which the offender had pleaded guilty, should be quashed because the very act of conviction involved an element of double punishment for the offence of rape to which he had also pleaded guilty and accordingly been convicted. [14] Sessions has been explained as a case where the whole of the offender’s criminality was encompassed in one charge. [15]

7. [31]

   As to the latter matter, namely concurrency or cumulation of sentences, the plurality in Pearce suggested that, at least in the circumstances of that case, “to make the sentences … wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count”. [16] The matter was simply remitted “to be dealt with consistently with the reasons for judgment of this Court”. [17] By way of contrast, in Nguyen v The Queen, [18] a case in which the appellant had pleaded guilty to charges of manslaughter and wounding with intent to cause grievous bodily harm in respect of the same victim on both counts, five members of the High Court, in two separate judgments, acknowledged that it was open to the sentencing judge to impose wholly concurrent sentences provided that the criminality of both offences for which the appellant was sentenced was appropriately reflected in the sentence for manslaughter. [19]

8. [32]

   In Johnson, a 2004 decision of the High Court, the appellant was charged and convicted on two counts of attempting to obtain possession of quantities of two prohibited drugs (ecstasy and cocaine) on a single occasion by going to a hotel room to collect and pay for the drugs. The two counts were as follows:

9. [33]

   The appellant had been sentenced in respect of the two offences, with the sentence for the second offence reduced on account of the “totality principle”. [20] The plurality in the High Court observed that:

10. [34]

    The plurality was critical of the observation of Malcolm CJ in the Western Australian Court of Criminal Appeal that the application of the principle against double punishment as articulated in Pearce (set out at [27] above) would obscure the sentencing process [22] because of his Honour’s assessment that:

11. [35]

    The plurality in the High Court held that “proper regard” had not been had to “the commonality of elements of the offences”. [24] The Court did not, however, identify what the common elements of the two offences were. If, by using the expression “elements of the offences”, their Honours were referring to those matters which needed to be proved beyond reasonable doubt to establish the appellant’s guilt in respect of each offence charged, it is, with respect, difficult to understand what those common elements were. [25] More likely, in my view, is that their Honours were using the expression in an extended sense to refer to common conduct which went towards establishing the different elements of the two offences, being the matters referred to in the passage extracted at [33] above. As such, their Honours were highlighting an aspect of the totality principle as adopted in Mill, which requires the sentencing court, in cases of multiple offences, “to look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences”. [26]

12. [36]

    Part of this task is to ensure that the criminality involved in a particular act is not given disproportionate weight because it is a common feature or underlying fact, component or element of multiple offences when looking at the matter, as Pearce requires, as one of common sense and not semantics. Both Johnson and Nguyen illustrate the plurality’s concern in Pearce to avoid double punishment applies even where there are not common elements in a series of offences in the strict sense, but also where offences are “inextricably linked” by common facts. [27]

13. [37]

    What I take, therefore, from Johnson and its treatment of Pearce is that a sentencing court, and an intermediate appellate court reviewing a sentence, must not overlook or underplay the significance of common aspects of an offender’s conduct when the offender is found guilty of, or pleads guilty to, multiple offences to which that common conduct has contributed. This is so as to ensure that the offender is not sentenced in a way that is disproportionate to the totality of his or her criminality. Johnson points up an overlap, at least, between Pearce’s concern with the avoidance of double punishment and the totality principle. [28] The totality of criminality involved in the commission of multiple offences is likely to be lower the greater the overlap or commonality of conduct in relation to the separate offences found to have been committed. That does not mean that two or more offences will not have been committed and should not be the subject of sentence where the offences have different elements.

14. [38]

    As Gleeson CJ observed in EPA, “it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct”. [29] A corollary of this is that the fact that the same set of underlying acts may contribute to or relate to more than one offence does not mean that the offender is necessarily being punished twice when sentenced for the different offences. Decisions such as Pearce, Johnson, Nguyen and R v Hilton [30] (in this Court and applying Pearce) mean, however, that where there is a commonality of underlying facts, there may be a high degree of, or even complete, concurrency where separate sentences are being imposed or, where an aggregate sentence is being imposed, there may be no, or only a modest degree, of notional cumulation, reflecting the extent of the commonality of the underlying conduct. [31]

15. [39]

    To make this observation is to echo the frequently cited statement of Howie J in Cahyadi v The Queen: [32]

16. [40]

    Neither Pearce nor any other High Court authority holds that, where two or more offences are charged, the fact that the conduct that establishes one offence may also establish the commission of another offence means that a conviction achieved in respect of one of those offences should be quashed, cf Sessions. The position may be different where the second offence is merely an aggravated form of the first [33] or where its prosecution would have amounted to an abuse of process. [34]

17. [41]

    Nor does any High Court authority suggest that the prosecutorial discretion in the formulation of charges should be confined to constrain the charging of offences which entail underlying conduct of an offender which is common to more than one of the offences charged. As the plurality in Pearce observed, “[t]he decision about what charges should be laid and prosecuted is for the prosecution”. [35] That important principle is subject, of course, to cases where a charge is held to amount to an abuse of process. [36]

18. [42]

    Returning to Pearce, the offences charged in that case overlapped in terms of their elements, using that term in a technical sense, in that both of the counts charged had in common the infliction of grievous bodily harm. Nahlous was a case where an offence which included the element of a sale was held necessarily to involve the obtaining of a financial gain, being the other offence charged. As such, the “receipt offence” was subsumed by the more serious “sale offence” [37] and there was no separate act of criminality. [38]

19. [43]

    Priovolidis v R [39] provides a valuable explanation by Gleeson JA (with whom Price J and Hidden AJ agreed) of what his Honour described as the “common element” principle “identified in Pearce” and “reiterated in Johnson”. [40] His Honour said that:

20. [44]

    Gleeson JA went on to observe that “the existence of overlapping elements between the two offences does not in and of itself engage the double punishment principle described in Pearce. A closer examination of the facts is required.” [42] His Honour framed the critical issue in that case as “whether the applicant’s driving on 21 August 2015 is, properly viewed, a single act or episode (as the applicant contended) or two separate and discrete acts giving rise to two separate offences (as the Crown contended).” [43] The applicant in Priovolidis had been charged with two offences: one, under s 51B(1) of the Crimes Act, of failing to stop when he should have known the police were in pursuit and driving in a manner dangerous to others; and the other, under s 52A(4), of aggravated dangerous driving occasioning grievous bodily harm.

21. [45]

    By a close and careful analysis of the facts, Gleeson JA demonstrated that although the two offences occurred as part of the same sequence of events and within a 10-minute period of each other, it was nonetheless clear that the two offences were separated in time and space, each occurring at different points in time and at different locations on the single journey. His Honour’s analysis of the sentencing judge’s remarks on sentence also disclosed that, although early aspects of those remarks could be taken to refer to the offending globally, they showed that the sentencing judge treated the two offences separately [44] such that there was no common element and, on proper analysis, they did not arise from a single episode or incident.

22. [46]

    Unlike Priovolidis, it is far more difficult in the present case to conclude that the two offences to which the Applicant pleaded guilty did not arise from a single episode or incident. To use the language of the plurality in Johnson, the two offences to which the Applicant pleaded guilty “had much in common”. [45] So also, in the language of Bell and Keane JJ in Nguyen, [46] the Applicant’s liability for the discharge offence was “inextricably linked” to the wounding offence.

23. [47]

    On the other hand, it must also be observed that, other than in the extended sense in which the plurality in Johnson appears to have used the expression “elements of the offences”, the two offences to which the Applicant pleaded guilty contained quite different elements. Thus, it was not an element of the discharge offence that the discharge of the firearm in fact wound anyone. Conversely, whereas wounding was an essential element of the wounding offence, that wounding was not required to be caused by the discharge of a firearm. Such wounding may be by other means such as, for example, glassing or hitting. Further, it was not an element of the wounding offence (under s 35(4) of the Crimes Act) that the wounding amount to grievous bodily harm. [47] Additionally, the discharge offence required intent to cause grievous bodily harm whilst the mental element of the wounding offence was recklessness as to causing actual bodily harm. [48]

24. [48]

    The two offences to which the Applicant pleaded guilty also have quite different emphases. The seriousness of the discharge offence derives in part from the necessary possession of the firearm itself, a matter to which the sentencing judge gave particular attention in his sentencing remarks. [49] The wounding offence, on the other hand, is what has been described as a “result offence” where, generally speaking, the degree of seriousness of the offence will significantly depend upon the seriousness of the wounding. [50]

25. [49]

    Although there were no common legal elements of the two offences to which the Applicant pleaded guilty in the same, direct way in which there were in Pearce, the discharge of the firearm was an explicit element of count 1 and was also that which caused an essential element of count 2, namely the wounding, to occur. To that extent, there were common elements of the two offences although, unlike in Pearce, the overlap was less direct.

26. [50]

    The sentencing judge analysed the two offences as involving different elements notwithstanding a degree of overlap. This is most clearly seen in the passage from the remarks on sentence set out above [51] including the reference to Pearce. It may also be seen in the third of the paragraphs set out at [20] above where his Honour said that the Applicant was “to be sentenced for his actions of discharging a firearm with intent to cause grievous bodily harm and reckless wounding.” [52] This sentence appears in the same paragraph of the sentencing remarks in which the sentencing judge expressed the view that the Applicant’s conduct was “slightly below the mid-range” of objective seriousness. Contrary to a submission made on behalf of the Applicant, in context, this description was not global but applied equally and distributively to the conduct which comprised the two offences.

27. [51]

    To the extent that there was overlap or a common factual substratum between the two offences, it is reasonable to infer that this was reflected in the relatively small degree of notional accumulation in the two indicative sentences. That represented the sentencing judge giving effect to the totality principle and thereby addressing the vice of double punishment.

28. [52]

    This analysis of the remarks on sentence is reinforced by the interactions between the sentencing judge and counsel for both the Crown and the Applicant which have been extracted above. [53] The sentencing judge was evidently acutely conscious of the commonality of the act and facts underlying the two offences charged.

29. [53]

    True it is that the sentencing judge could and arguably should have had regard to the seriousness of the injury sustained by the victim as an aggravating factor for the purposes of sentencing in relation to the discharge offence. [54] Had he done so, that would certainly have supported the argument that the criminality in respect of the wounding offence was “encompassed in” or subsumed by the punishment meted out for the discharge offence. Although wounding was not an element of the discharge offence, it was an “incident” of it, and was therefore “relevant and necessary” to be fully taken into account for sentencing purposes, to adopt the useful language of Simpson AJA in dissent in Baradi v The Queen. [55] But the sentencing judge appeared, in the passage of his remarks extracted at [21] above and in his interactions with counsel, to have been at pains to confine an assessment of the wounding to his consideration of the wounding offence. And in referring to aggravating factors in his remarks on sentence, his Honour did not refer to s 21A(2)(g) of the CSP Act. [56] This may well have been, as counsel for the Crown submitted, because his Honour was concerned not to engage in double punishment.

30. [54]

    For the above reasons, Grounds 1 and 2 are not made out. Both offences contained different elements and the sentencing judge conscientiously considered the criminality attaching to each [57] as well as properly having regard to the principle of totality. To the extent that there was underlying factual commonality, the sentencing judge, conscious of Pearce and of not imposing punishment that was disproportionate to the overall criminality involved in the two offences, was astute not to engage in this vice. So much was reflected in the small degree of notional accumulation allowed in the aggregate sentence.

31. [55]

    There is a further difficulty with Ground 2 which, it will be recalled, was that “the Sentencing Judge erred by not making the sentence for Count 2 wholly concurrent with count 1.” This ground overlooks the fact that an aggregate sentence was imposed and that, other than notionally and by reference to the indicative sentences, it makes no sense to speak of concurrency where an aggregate sentence has been imposed.

32. [56]

    Even if an aggregate sentence had not been imposed, however, it would not, in my opinion, have been either necessary or appropriate for the sentencing judge to have made the two indicative sentences notionally concurrent unless he had fully taken the wounding into account in fixing a notional indicative sentence for the discharge offence. For the reasons I have given above, I do not consider that his Honour did this.

33. [57]

    Attention is now turned to the third ground of the appeal, namely the claim that the aggregate sentence imposed was manifestly excessive.

Manifest excess

1. [58]

   Although Ground 3 is expressed in terms that the aggregate sentence imposed was manifestly excessive, it was put in written submissions that the indicative sentence for the discharge offence was manifestly excessive. This suffers the same vice as has been noted above in relation to Ground 2. As R A Hulme J observed in JM, [58] “indicative sentences recorded in accordance with s 53A(2) [of the CSP Act] are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence”. Moreover, even if the indicative sentences (or one or more of them) are assessed as being excessive, it does not necessarily follow that the aggregate sentence is excessive. [59]

2. [59]

   The principles governing an appeal against sentence on the ground of manifest excess are well established [60] and were recently summarised by this Court in Singh v R: [61]

3. [60]

   Focussing only, as the Applicant’s submissions did, on the indicative sentence in respect of the discharge offence, the argument was that the sentencing judge’s assessment of the objective seriousness of the offence as slightly below the mid-range indicated a starting point of less than 12.5 years’ imprisonment (given that the maximum sentence was 25 years) from which a 25% discount was required for the early guilty plea in addition to an allowance of reduction for what the sentencing judge found was the Applicant’s remorse. It was contended that this should have led to a lower indicative sentence than 10 years’ imprisonment. But this submission ignored a number of serious aggravating factors which have been noted above. [62] When those matters are taken into account, coupled with the need for specific and general deterrence, the indicative sentence for the discharge offence cannot fairly be characterised as manifestly excessive.

4. [61]

   The Applicant’s submissions, moreover, failed to address whether or not the aggregate sentence was manifestly excessive, other than simply asserting that because the indicative sentence for the discharge offence was manifestly excessive, it followed that the aggregate sentence was as well. That does not follow, as was pointed out in JM.

5. [62]

   Ground 3 of the appeal should also be rejected.

6. [63]

   It follows that the Applicant’s appeal against his conviction for the wounding offence should be dismissed, as should his application for leave to appeal against his sentence. Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal against conviction.

   2. (2)

      Dismiss the appeal against conviction.

   3. (3)

      Dismiss the application for leave to appeal against sentence.

7. [64]

   PRICE J: I agree with Bell P and the orders that the President proposes.

8. [65]

   HAMILL J: I have had the considerable advantage of reading the draft judgment of Bell P. I agree with the orders proposed by the President and generally with his Honour’s reasons. His Honour sets out the facts and circumstances of the incident giving rise to the charges, and the course the case took in the District Court. I gratefully adopt his Honour’s careful survey of the relevant case law.

9. [66]

   With the benefit of legal advice, the applicant pleaded guilty to two offences arising out of precisely the same physical act, that is, the discharge of a shortened .22 calibre rifle while it was aimed at, or in the direction of, the victim, Michael Hughes. By his plea to the first count, the applicant admitted that he fired the gun with the specific intention to inflict grievous bodily harm. By his plea to the second, he admitted that he wounded the victim and that he acted recklessly (as to the infliction of actual bodily harm, a mental element that can be established by proof of intention) [63] . The first count did not require proof of injury, although the consequences of the discharge could be taken into account in deciding the appropriate penalty, [64] provided that process did not involve the applicant being punished for a more serious offence, or for an aggravated form of the offence, than that to which he pleaded guilty. [65]

10. [67]

    This is not a case where the two offences merely arose out of the same course of conduct or series of events. In this case, there was one single act. That fact lay at the heart of the applicant’s complaint and his contention that his conviction for reckless wounding should be set aside or, if that submission is not accepted, that the sentencing Judge was obliged to impose a sentence where there was no actual or notional accumulation at all. His argument was that he was punished twice for the same conduct or offence.

11. [68]

    I have hesitated in rejecting the applicant’s contentions, largely because of the similarity between the circumstances of his case and the Victorian case of R v Sessions [1998] 2 VR 304, and the approach taken by Hayne JA (as his Honour then was) in that case. However, I have concluded that Bell P is correct, that the applicant’s arguments cannot succeed, and his appeal must be dismissed.

12. [69]

    There is no doubt that a single act can give rise to more than one offence. A not uncommon case is where a single act of violence, gross negligence or dangerous driving causes the death or serious injury of more than one person. [66] As Hayne JA acknowledged in R v Sessions at 308:

13. [70]

    His Honour referred to the judgment of Humphreys J in R v Thomas [1950] 1 KB 26, to “standard texts” on criminal law, and to some older cases. Unless the case is one that falls within principles governing an autrefois plea, res judicata or double jeopardy, the prohibition is on “double punishment” for the same offence. The judgments of Hayne JA in R v Sessions and the President in the present case demonstrate that some of the distinctions and lines of demarcation are very fine and, perhaps at times, illusory. [67]

14. [71]

    As the President’s judgment shows, none of the High Court authorities in this area justifies the conclusion that the applicant’s conviction on the second count should be quashed.

15. [72]

    Because of the applicant’s substantial reliance on the decision in R v Sessions, it is worth identifying the basic facts of that case, the two charges there under consideration, and the reasons for the conclusions of the Victorian Court of Appeal. The appellant was charged with the rape of a child by inserting his finger into the child’s vagina. This single act caused severe internal injury to the child. The Victorian Director of Public Prosecutions thought it necessary to add a count of recklessly causing those serious injuries to “put the accused on notice that it was alleging that the relevant reckless intention accompanied the act of rape”. [68]

16. [73]

    In R v Sessions, Hayne JA said at 309 that “sometimes the search is described as being for the gist or gravamen of the two offences under consideration”. The separate judgment of Eames AJA shows that the real issue that arose by the addition of the reckless infliction of injury charge in the presentment charging rape concerned the mental element of the two offences. There was no issue that the sentencing judge was required to take the injury into account in sentencing for the offence of rape under the relevant legislation. The Director sought to justify the addition of the second count to establish that the appellant acted recklessly. However, Eames AJA held that the “sentencing Judge would have been entitled to take into account on the offence of rape the fact that the accused had a reckless disregard for the fact that serious injury could be caused to the victim.” [69] Hayne JA, with whom Batt JA agreed, held at 314 that these were “not considerations sufficient to warrant the laying of two charges as was done in this case” and the practice of “laying two charges … is a practice firmly to be discouraged.”

17. [74]

    Upon a review of the record of the proceedings in the applicant’s case, including the exchanges during oral argument and parts of the sentencing judgment, [70] the decision in R v Sessions is readily distinguished. Putting aside the statutory framework applying in Victoria, a matter discussed at some length by both Hayne JA and Eames AJA, the gravamen of the first count against the present applicant was the discharge of the firearm with the specific intention to inflict grievous bodily harm. The gravamen of the second count was the infliction of the injury. It is true that both offences were established by the same single act and that the intention accompanying the second count (recklessness) was wholly subsumed by the mental element required for the first (specific intention).

18. [75]

    While it may have been possible to take account of the injury in punishing for the more serious count without breach of the principle in The Queen v De Simoni, the record establishes that the sentencing Judge did not do so. When he identified the aggravating features of the case under s 21A(2), his Honour did not refer to the seriousness of the injury or to s 21A(2)(g). [71] Apart from recounting the victim impact statement and the agreed facts, no substantial reference was made to the injury. There is nothing to suggest the injury was taken into account in assessing the objective seriousness and appropriate sentence for the offence of discharging the firearm with intent. The transcript of the exchanges with counsel suggests the opposite.

19. [76]

    The very modest amount of notional accumulation, which is transparent from the individual indicative sentences and the aggregate sentence, [72] also supports the conclusion that there was no aspect of double punishment. The small degree of notional accumulation reflected the fact that the second count specifically encompassed the wounding, whereas the first count did not. As Judge Grant put it in his sentencing judgment, under the heading “Totality”

20. [77]

    His Honour then said it was necessary that there be some accumulation but only in accordance with principles of totality and proportionality and the High Court’s decision in Pearce v The Queen. [74] Bell P has discussed the operation of that decision at [26]-[29]. It is apparent, by the sentencing Judge’s reference to Pearce v The Queen, that he did not fall into error by punishing the applicant twice for the same offence or conduct.

21. [78]

    I repeat my concurrence with Bell P that neither ground 1 (an appeal against conviction) nor ground 2 (an application for leave to appeal against sentence), each of which was predicated on the assertion of double punishment, can be sustained.

22. [79]

    As to ground 3, the aggregate sentence was a severe one, particularly considering the 25% reduction to the indicative sentence to reflect the utilitarian value of the pleas of guilty. However, the offences were extremely serious, and the sentence is not one that can properly be described as manifestly unreasonable or excessive, or plainly wrong or unjust.

23. [80]

    For those additional reasons, I agree with the orders proposed by Bell P.