Director of Public Prosecutions v Johnston [2004] VSCA 150

5. From these sentences and orders the DPP has appealed on the sole ground that the sentence imposed is "manifestly inadequate" but refers in his particulars to contentions that the learned judge failed adequately to reflect the gravity of the offences, that he failed to take into account or sufficiently to take into account aspects of general and specific deterrence, that he gave too much weight to mitigatory factors, that he gave insufficient weight to lack of remorse, that he gave insufficient weight to the serious effects upon the victims of the offences, that he gave insufficient weight to the planning and premeditation of the offences and, finally, that he gave insufficient weight to the fact that there was a "real risk" in the judge's stated view that the respondent would in the future become "involved in further offending of this type".

The facts giving rise to and surrounding the commission of the offences

9. Before examining further the ground and particulars relied upon and the opposing contentions put in relation to this appeal, it is both desirable and necessary to set out some detail of what occurred on the day in question, 15 June 2001, when all four offences took place. They grew out of an industrial dispute, conceded by the prosecution to have been genuine, between, on the one side, two unions, the Australian Manufacturing Workers Union ("AMWU"), of which Mr Johnston was the Victorian State Secretary, and the Electrical Trades Union, and, on the other side, Johnson Tiles Pty. Ltd. ("Johnson Tiles") and its management. Somewhat over a month earlier Johnson Tiles announced that it had decided to reorganise its operations and in particular to make redundant some 80 employees and staff, all with the intention of "out-sourcing" the work performed by those employees to persons on the books of another company, Skilled Engineering Pty. Ltd. ("Skilled Engineering"), which Johnson Tiles intended should provide casual or part-time staff in their stead. There had been a number of meetings between the unions and the companies but at one of them Mr Johnston said there would be "trouble" and that the AMWU would set up a picket line outside Johnson Tiles. On 8 June 2001 29 maintenance workers were in fact made redundant and immediately thereafter a picket line was put in place. A few days later a further threat was made by the respondent to Mr Triggs, the State Manager of Skilled Engineering, and on 14 June Mr Johnston told Mr Tony Fitzgerald, the National Industrial Relations Manager of Skilled Engineering, that they would "just have to kick the shit out of Skilled then". It was on the same day that members of the union had a meeting, which the learned judge was satisfied that Mr Johnston did not attend, but at which they agreed on a plan to invade the Johnson Tiles' factory at Bayswater. There they would try to identify staff from Skilled Engineering who were taking the place of the sacked maintenance workers, and then to photograph them as being "scabs" and put their photographs on what was to be called a "shame board".

12. Although Mr Johnston had not been present at that time, the learned judge was satisfied beyond reasonable doubt that by the following morning he was well aware of the plan to enter Johnson Tiles' premises and to photograph the people out-sourced by Skilled Engineering. In the event, by the time he addressed those union members who had assembled outside the factory at 7.30 a.m., he had a balaclava and a camera for the purpose of the incursion. Moreover, in the course of his address, he knew enough of the plan to tell the unionists they would go in a side entrance and would then "take photos of the scabs". Thereafter, a considerable number of the group, including Mr Johnston, put on their balaclavas and went to Johnson Tiles' north gate where bolt-cutters were used to cut the chain and open the double gates to the factory. Although the judge was satisfied that there was no agreement beforehand to damage property or to assault persons in the factory, we are by no means so confident of the latter finding because of the union members' plan to take the photographs and the manner in which that was ultimately achieved. The workers from Skilled Engineering were singled out and some of them were forced to have their photographs taken against their will. Some were held against a wall and others had their faces forcibly lifted to face a camera; others had their hair pulled back so their faces could be photographed. Some of them were pushed to the ground, abused verbally and otherwise pushed around. Although wearing a balaclava the respondent was identified by one of the victims by reason of his voice and his red whiskers protruding from underneath the balaclava. The judge was satisfied that on occasions the respondent took a number of the photographs. His Honour likewise found that the staff from Skilled Engineering were subjected to "a terrifying experience by aggressive, abusive men", who used threatening language and described some of them as "fucking scabs". In the course of this melée, although not planned in the first place, some damage was caused by the pulling out of electrical wires and the smashing of tiles, leaving total damage estimated at some $4,200. All this was the subject of count 1, the count of affray.

15. In the course of these events Mr Johnston threatened one of those present, Claude Ceccomancini, who was a manager with Skilled Engineering present on the day. While attempting to take a photograph of him, Mr Johnston confronted him and shouted: "I know who you are, you are a fucking dead man". He repeated the threat adding that he knew where he lived. Not surprisingly Mr Ceccomancini was frightened by these threats. The threatening acts causing this immediate fear were the subject of count 2, a count alleging common assault upon Mr Ceccomancini. It is, however, not being contended that the circumstances arose outside the course of the affray, except to the extent that specific fear was caused by the nature of the threats. Nor has it been suggested that the sentence of three months on that count is necessarily manifestly inadequate, nor that it should be dealt with otherwise than by a wholly concurrent sentence.

18. These incidents at the Johnson Tiles' factory at Bayswater seemed to come to an end shortly after Mr Johnston had said to the group: "Is everyone right to go?" He then participated in giving directions to union members to go to Skilled Engineering, whose premises were in Box Hill. They met at the Whitehorse Plaza at about 9 a.m. The respondent seemed still to be one of those in charge as he again asked if all were ready and the group then moved towards Skilled Engineering's premises. Most of the group went to the front door and forced an entry to the premises, which was an office building housing mainly administrative staff. Although some union members were still wearing balaclavas, Mr Johnston had taken his off by the time he entered. On this occasion the group were not interested so much in the individuals present as in the carrying out of what the judge called an "unbridled rampage" inside. Filing cabinets were upturned, computers were thrown to the floor and damaged, files and papers were strewn around, pictures were taken off the walls and smashed, a drinking fountain was torn from the wall, furniture was up-ended and several glass doors or partitions were broken. At one stage a fire extinguisher was set off spraying acrid powder into the air over some of the staff present. The staff were left in what has been described as "stunned amazement" but eventually moved towards the foyer area. Several of them were upset and scared and one in particular, who was five months pregnant at the time, was particularly scared because she believed she was breathing in the contents of the fire extinguisher and was worried as to its possible effect thereafter on her child. Several staff needed counselling later. The total amount of damage was calculated as amounting to $44,560.18, which was the amount awarded in the compensation order. Ultimately the union members left. Again it seemed that Mr Johnston was in charge as he was heard to say: "That's it, we're out of here", wishing the unhappy staff at Skilled Engineering "a nice day". Shortly afterwards he again telephoned Mr Triggs asking him whether he was ready to negotiate, although pretending that he had had a cold and had just woken up.

21. From these matters the learned judge was able to conclude beyond reasonable doubt that Mr Johnston was -

"... the leader of the invading group in respect to each incident. I am satisfied beyond reasonable doubt that you were personally involved in both incidents and that you were in a responsible position as Secretary of the Union and in that position you were, had you wished, in a position to stop what was going on. You did nothing to stop what was going on at either premises. Indeed, I am satisfied beyond reasonable doubt that you encouraged and incited a number of activities at each location."

26. It should be understood that Mr Johnston did not admit responsibility or participation in these events until a very late stage in the proceedings, indeed on the day on which his trial was listed for hearing. When he was first arrested a few weeks after the events and interviewed by the police on 6 July 2001, he remained mute throughout the interview. He was not the only person charged in relation to these events and nearly a year before his plea, in July 2003, some sixteen other members of the union had pleaded guilty to either one or two counts of unlawful assembly.[1] The same judge heard the pleas of these other union members, none of whom seems to have had prior convictions, and he adjourned the proceedings in all of the cases upon an undertaking by the offender to be of good behaviour for periods varying between twelve and thirty months, and imposed fines on them at the same time varying from $1,000 to $3,000. It should be noted that detailed argument subsequently took place on Mr Johnston's plea before his Honour that the rules as to parity should be applied so as to reduce significantly the sentence that might properly be imposed on him. At one stage counsel even suggested that the issue of parity should be resolved first before the rest of the plea was heard, but the learned judge rightly rejected that submission and heard a plea based on all relevant matters. However, in his sentencing reasons his Honour rejected the parity arguments, saying that they had no foundation and putting forward some eleven different factors for rejecting them, including the nature of the unlawful assembly in each case and the fact that Mr Johnston both incited and was the leader of each invasion onto the subject premises. Rightly, in our opinion, no such argument was pressed at the hearing of this appeal.

29. In the absence of a plea last year, a contested trial was listed for May of this year. On the date fixed for the trial the respondent pleaded to a slightly modified presentment in which a count of issuing threats to kill was reduced to the count of common assault, but it was not suggested in argument before this Court that the plea had been delayed for that reason. Naturally, his delay in pleading guilty cannot be considered as an aggravating factor, but it may well, as will be seen later, be treated as a reason for treating the mitigatory effect of his plea as in part lessened.

32. Although the learned judge said that Mr Johnston had "no significant prior convictions", that is correct only to the extent that none of the offences could be characterised as very serious. They all, however, had some element of a breach of public order. Of the eight matters admitted by him, which were dealt with on four previous occasions in Magistrates' Courts, the first related to events in October 1993 leading to convictions for "discharging a missile to injure another and for depositing litter", for which he was fined. Of these convictions Mr Johnston said, in a less than informative unsworn statement handed up at the plea hearing, that they arose out of a throwing of an egg at the former Premier which hit a fellow worker but that he "wore this charge", whatever that may connote. In November 1995 he was convicted and fined for possession of a dangerous article, which in the same statement Mr Johnston said was a chair leg found under a seat in his car, but one may doubt that that was the whole story. Thirdly, he admitted that in 1996 he had been convicted of using indecent language in a public place, resisting a police officer in the execution of his duty, hindering police and refusing to give his name and address, for each of which he was fined $250. He alleges that these were "payback for [a] picket line", which had taken place earlier in the day and which had led to a heated exchange that night. Again one may doubt that what appears in the unsworn statement sets out the whole of the circumstances. Finally, he admitted to having been convicted in October 1997 for trespassing on Commonwealth land and being fined for that offence, which he said related to a "trespass at a demonstration in Canberra". Whatever be the full circumstances, it was again a public order offence, albeit of a minor kind.

35. As to other matters personal to the respondent, he was born on 7 November 1956 and thus was 44 years old at the time that the offences took place. He was then, as already stated, the State Secretary of his union. (He was 47 when he was sentenced this year.) From his statement one may gather that he had had a "pretty happy, ordinary childhood", during which his father had worked hard, first as a builder and then in a number of office jobs, while his mother had worked part-time in a kindergarten. The family had moved from Maribyrnong to Balwyn from which he attended Trinity Grammar School from the age of about 11 until he had left school after completing Year 11 at about the age of 16 or 17. There can be no doubt from what the respondent himself says that his parents were determined to provide for him well and to give him a good education.

38. After leaving school Mr Johnston went to a technical college for a short time, and then took a number of short-term jobs eventually leading him to working in metal fabrication both at factories and on construction sites up to about 1980. He was then engaged by Commonwealth Aircraft Corporation as an aircraft welder, where he became one of a number of shop stewards and eventually a member of the State Council of the AMWU. After being made redundant by that corporation, he worked briefly on construction sites before commencing full-time work for the AMWU in 1990. He was a union organiser for a number of years, before being elected as Assistant State Secretary in 1998 and as State Secretary in 2000.

41. The respondent was married in 1980 and the three children of the marriage are now young adults. Two daughters still live with him but he separated from his wife in 1994 and was later divorced. A good relationship with his former wife has led to his making a substantial contribution to the children's upbringing that continues to the present day. The learned judge found that the respondent had contributed to the community in a number of ways, in particular in activities associated with the Keilor Little Athletics Club and the Keilor Park Football Club. His Honour likewise found that he devoted most of his working life to the union movement for the betterment of its members and that he had contributed to the community by fundraising for many social issues, in particular relating to East Timor; that he had sacrificed his own financial interests to achieve his ambitions to help unionists and others less fortunate than him; that he had paid the price of personal relationships in order to achieve his objectives; that he had made other substantial contributions to the community and that he lived a modest life consistent with his exercising responsibility as a single parent for the upbringing of his children. A considerable number of people regarded him as a worthy citizen and there were a significant number of character references tendered on his behalf. These matters were each treated as factors in his favour by the learned judge, but his Honour added, in addition, several other factors, such as his plea of guilty, his absence of "significant" prior convictions, that there were no other criminal matters pending from 2001 to the present day, that the offending occurred "in the course of a genuine industrial dispute" (although we would cavil at the use of the words "in the course of") and that, as is the fact, he had lost his position as State Secretary of the AMWU as a result of his criminal offending. One should add, although it was not suggested it was relevant to the sentence imposed by the judge or to the present appeal, that he has subsequently lost his membership of that union for other reasons.

44. Otherwise both the facts surrounding the offences and the circumstances relating to Mr Johnston are very comprehensively set out in the learned judge's sentencing reasons. There is only one question of fact that needs to be examined further, largely because of the way in which the argument has been put on behalf of the respondent in this Court. It has been contended that there was "some evidence of the respondent's remorse which was unchallenged", notwithstanding that the learned judge had concluded that in his opinion "you have not shown any remorse for your criminal conduct", other than that which might be inferred from his plea of guilty.

47. The difficulty has arisen in this way. On the third day of the plea hearing a considerable number, ten at that stage, of character statements and references were filed with the Court, which eventually became Exhibit 4. In one such statement Senator Marshall, a Victorian senator, stated that he had been told that the respondent had pleaded guilty to serious charges and had "stood up and owned up for his crimes, for he knows that he did the wrong thing on this occasion" and that he had overstepped the mark. He continued by saying: "I know he is genuinely remorseful for these unfortunate events." In another statement, Roderick Kelly, an industrial relations practitioner, concluded his statement by saying that he was at a loss to understand why Mr Johnston had acted in the manner he did, "which lead [sic] me to believe that it was some form of aberration of [sic] which he now profoundly regrets". Finally, a Father Giacobbe stated that he had known Mr Johnston for over 20 years but he had been notified by him a few months earlier that he was going to court. He said: "Craig expressed embarrassment and remorse over the incident." When he asked Mr Johnston why he had not contacted Father Giacobbe earlier, the respondent had replied that "he was ashamed to canvass my support", but in Father Giacobbe's view "this is a unique and isolated instance in terms of Craig's prevailing disposition".

50. It was these passages which have been relied on in this appeal as supporting the contention that the judge reached the wrong conclusion on the issue of remorse. However, what occurred on the hearing of the plea, after these statements were tendered, points in a different direction. At the time they were tendered defence counsel (who was not counsel who appeared on this appeal) said that he understood that the makers were not required for cross-examination but were present in court. The judge remarked that counsel had not put on behalf of his client, "understandably, in view of the materials and what's transpired", that Mr Johnston was remorseful or contrite. His Honour was referring not only to the oral submissions up to that time but also to a detailed written outline of argument on the plea that had also been handed up that morning. The judge then said to counsel that, nevertheless, a number of the witnesses had spoken about the respondent's "remorse and embarrassment for having become involved in this exercise". His Honour commented that there was no evidence in any of the materials about that as far as he was aware and it seemed "that to suggest that your client is remorseful, in view of the way the matter has been run and been presented, is something that's not open on the material". Counsel responded by conceding that it was "certainly not open on the depositional material and insofar as it is open it's based on the opinion of witnesses, whatever weight that carries". The judge persisted in enquiring as to whether he had put the submission anywhere, to which counsel responded by saying that he was "not making it remorse in the usual way but I mean, the plea of guilty itself can include an element of remorse ...".

53. After a brief discussion of other matters the learned judge then returned to the issue by saying:

"Well, I just thought that I don't want to be confronted with somebody making an issue that there was evidence of remorse which I have ignored, and it seems to me that if it's been put as a matter of law that I'm entitled to take into account - of course I can't use the lack of remorse as an aggravating factor but it loses the benefit which is available to people who are remorseful, who demonstrate genuine remorse."

His Honour then repeated that, as he understood it, "that submission is not made on his behalf by you". Counsel again said "No, what is made is that the plea of guilty includes an element of remorse and certainly we've conceded that this conduct was wrong, it went too far and so on. [H]e concedes that and those concessions are made throughout the submission ...". Counsel continued by saying that it was certainly not their position that what the respondent did was justified or appropriate and "so that's not his position". Counsel concluded his response by saying:

"It's to the contrary, and it's throughout ... our submissions are based upon instructions and the instructions are that this went too far. It shouldn't have happened." (Emphasis added.)

The discussion continued as to whether Mr Johnston maintained that he was justified in what he was doing to which counsel replied that his conduct could be explained without being justified. After a further exchange counsel repeated:

"We're not saying the conduct was legal. He's pleaded guilty and we're not saying it's appropriate. We're saying it was inappropriate conduct that went too far. Now that's said throughout the submission."

Again the discussion reverted to the nature of the industrial dispute and the extent to which it went beyond that which was justifiable with counsel arguing that the context should be taken into account but that the respondent was not now contending that it was in fact justified. Counsel reiterated that by reason of the fact that he had pleaded guilty the respondent had admitted that he had gone too far but that it was submitted that everyone "got carried away in the heat of the moment and these wrong decisions were made and we concede that".

62. We would observe that counsel's concessions seem to have been very carefully expressed and repeated, doubtless upon instructions, and that counsel never appeared thereafter to change the submission on the respondent's behalf so as to include any argument based on remorse. It was not surprising, therefore, that counsel for the prosecution, when asked to respond, made no comments on the issue, nor at any time did he seek to test what the character witnesses had said in the statements to which we have referred.

The sentencing judge's reasoning and conclusions

66. The learned judge's sentencing reasons comprehensively set out and summarised the relevant factual matters and then sought in detail to deal with various contending arguments and to reach conclusions on them. We need not repeat in this judgment any more of the factual matters than those we have already described but it is necessary to deal with the judge's reasoning towards his ultimate sentences.

69. As to the factual matters, we have already set out in paragraph [7] the judge's conclusions that Mr Johnston was personally involved in both incidents, that he was in a responsible position as secretary to stop what occurred if he had wished and that he had encouraged and incited several of the activities carried out by the union members at each site. We have already briefly dealt with the judge's conclusions for rejecting the plea of parity, as appear at the end of paragraph [8]. Again we have set out in paragraph [13] the judge's conclusions as to a considerable number of factors in the respondent's favour.

72. His Honour then proceeded to deal with the submissions made on behalf of Mr Johnston, although we will not repeat conclusions already stated. It was argued that the earlier threats made by the respondent were part of normal industrial relations, unrelated to the incidents, but his Honour was satisfied beyond reasonable doubt that, when Mr Johnston had stated his intention to "kick the shit out of Skill", he had meant (broadly) what he had said and that he carried out his threat, as was demonstrated by what in fact occurred at both premises. It was also argued that the wearing of balaclavas was intended to conceal the identity of the leaders and not to cause terror, in fact resulting in only momentary distress, but his Honour was likewise satisfied that their use had the dual purpose of not merely disguising the wearers but "also to intimidate and cause fear in the minds of those who were confronted". As to the contention that the additional charges were part and parcel of the principal offences of affray, so that there should be no cumulation, the judge agreed that the respondent should not be subjected to double punishment, but in respect of the count of criminal damage the court was entitled to take account of the seriousness of that count, as it carried a higher maximum penalty, and that he and others had caused over $44,000 worth of damage, so providing "a basis for some cumulation". Certainly counsel had conceded that the additional offences had aggravated the conduct which was the subject of the two affray counts. In dealing with the respondent's guilty plea counsel had submitted that he was entitled to a discount and the judge said that, as already noted, he had not shown any remorse for his criminal conduct and that his plea was entered at the eleventh hour, so not being "indicative of contrition or remorse". The judge was prepared to treat it as an indication of his willingness to accept responsibility for his conduct and to facilitate the course of justice. Counsel had submitted that the intention of entering Skilled Engineering was to occupy the premises but that the events inside "erupted spontaneously", with the occupants being told to stay out of the way to avoid harm. The judge, however, was satisfied beyond reasonable doubt that, although there was no intent to harm those persons, a number of employees were in fact "terrified and traumatised" by those events. The judge noted that counsel had not submitted that the respondent was entitled to any discount for delay in sentencing, doubtless, we would infer, because of his earlier attitude to pleading guilty.

75. The judge then turned to counsel's submissions as to the effect of the nine victim impact statements. Counsel maintained that the events had caused only momentary distress and some victims were not concerned for their own safety. This submission the learned judge rejected, referring to certain specific statements by the victims, for example, the statement of one secretary that she had suffered nightmares and had images of hooded persons, and to that of another who had been constantly on edge when dealing afterwards with any union matters. His Honour referred to the pregnant woman who had panicked because of the possible effects of the fire extinguisher discharge, which led to her needing counselling. Finally, the judge referred to an employee of Johnson Tiles who had stated that it was a terrifying and intimidating experience to see the group in balaclavas yelling and physically abusing people, so that she could not sleep properly afterwards for some time.

78. His Honour then proceeded to set out eighteen matters that he regarded as significant for sentencing purposes, some of which were favourable and some unfavourable to the respondent. They may be summarised as follows: (1) the conduct arose in the course[2]

of a "genuine industrial dispute"; (2) there were two separate invasions of premises; (3) the guilty plea; (4) Mr Johnston was party to the agreement to identify and photograph the workers from Skilled Engineering; (5) he led the invading party; (6) he and others wore balaclavas; (7) there was no intention to assault[3]

or cause damage at Johnson Tiles; (8) Mr Johnston and others "engaged in acts of thuggery" there; (9) he assaulted Mr Ceccomancini by threats; (10) his actions there caused fear and terror to those present; (11) he was involved in organising people to go to Skilled Engineering and to enter the premises by force and to cause damage inside; (12) he led the group who carried out the damage to the property there; (13) there was no agreement to hurt staff at Skilled Engineering, though the effect was traumatic; (14) the offence of criminal damage is serious and that in his Honour's view Mr Johnston's "conduct is at the higher end of that type of offence that comes before the court"; (15) both specific and general deterrence were significant matters; (16) at 47, with no significant prior convictions, the respondent faced imprisonment for the first time; (17) the character references; and (18) the respondent's dedication to the union movement and his contributions to the community.

85. Thereafter, after stating that relevant considerations in a case such as the present included the seriousness of the offences and the respondent's culpability for them, as well as his personal circumstances and the prospects of rehabilitation, the learned judge concluded:

"On the materials available to me I have determined that you have the capacity to be a useful and contributing member of the community and have been throughout your life. However, it is clear from the materials that you are committed to your views and there is a real risk in my view that you will in the future become involved in further offending of this type. You have demonstrated a willingness to step over the line as to what is proper and acceptable behaviour by a unionist or trade union official. You, personally, must be deterred from offending in a similar manner again in the future." (Emphasis added.)

Then, after referring again to general deterrence as a significant matter, the judge continued by stating that the case involved two invasions "by numerous men, some hooded" at the first premises and by a substantial group at the other premises, which were "an infringement [of] the right of persons to go about their employment in a safe and secure and peaceful environment". His Honour said that those who were minded to carry out invasions of workplaces and commit offences, as the respondent had done, resulting in citizens "being terrorised in [their] the workplaces, must expect that the courts will denounce such conduct" and impose appropriate punishment. Finally, without further discussion, the judge stated that a term of imprisonment should be imposed but that he had been persuaded by all the materials that that term should be wholly suspended and that an appropriate fine should also be imposed.

91. As earlier stated, there is a single ground of appeal, that of manifest inadequacy, supported by a series of particulars, essentially four items to which the learned judge gave undue weight and four items to which he gave too little weight. It was made clear that the appeal went to all aspects of the sentence, the individual terms imposed, the total effective sentence imposed (implicitly criticising the insufficiency of cumulation) and the decision wholly to suspend the sentence. (It should be noted, again, that no particular attack was made on the sentence on the assault count and in addition no attack was made on the $10,000 fine, though it was conceded that, if re-sentencing involved the imposition of a term to be served in custody - i.e. in this case, no or no full suspension - the imposition of a fine would then no longer be appropriate.) In the end, therefore, the principal attacks were on the claimed inadequacy of the terms on counts 1, 3 and 4 and on the total effective term and on the decision to suspend that sentence in the circumstances of the case. It should be noted at this stage that, whatever may be said as to the suspension of the term of twelve months in fact here imposed by the judge, different considerations may well be relevant to a decision to suspend, if the proper sentences to be served are to be significantly longer. For this purpose, notwithstanding what had been said about the Western Australian legislation in Dinsdale v. The Queen[4], it is necessary in this State, by reason of the provisions of s.27 of the Sentencing Act 1991, and in particular sub-ss.(1) and (3), to determine in the first place what would be an appropriate term of imprisonment if it in fact is not to be suspended. That does not mean, of course, that this Court is not obliged to consider all relevant sentencing dispositions as set out in s.7 of that Act and in particular that referred to in sub-s.(1)(c). The Court must necessarily have regard also to the principles laid down in s.5 of the Act and in particular sub-s.(4) of that section.

94. Further, insofar as this is an appeal brought by the DPP, we may first acknowledge the restrictions placed on the Court's power to allow such an appeal and on the manner of its exercise, if allowed, by reason of the interpretation placed by the High Court and this Court on sections permitting Crown appeals. As recently as a few months ago, the High Court reiterated that the principles relating to prosecution appeals, as stated by this Court in R. v. Clarke[5], were "not in dispute": see GAS v. The Queen; SJK v. The Queen[6].

97. We were asked to restate those principles, if only to ensure that all the restrictions were taken into account. Having regard to recent endorsement of Clarke in the High Court, it is unnecessary to do so, except to state some of the principal considerations relevant to this appeal. It is, of course, well understood that Crown appeals should be brought only in "rare and exceptional" circumstances to establish some "point of principle"[7]. The latter expression must be considered in its general sense and not in the technical sense of requiring restatement of some specific principle of the law.[8] This may be gathered, clearly enough, from proposition 2[9] in Clarke, where some six alternative and non-exhaustive bases for intervention are stated, only two of which refer directly to issues of legal principle: see paras.(a) and (b) of proposition 2. Counsel for the respondent at first urged the Court that it could find manifest inadequacy only where it "must be such as to constitute error of principle" but he later properly conceded that the use of "must" was an overstatement. Proposition 2(a) in Clarke is merely one example of the rare and exceptional cases justifying intervention. Equally the jurisdiction is enlivened where "idiosyncratic views" of particular judges need to be corrected (proposition 2(d)), or when it is necessary to ensure uniformity in sentencing (proposition 2(f)). Arguably more relevant to this appeal are two other alternative bases for exercising jurisdiction, namely, where it is necessary to establish and maintain "adequate standards of punishment" (see proposition 2(c)), and where it is proper to correct a sentence which is "so disproportionate to the seriousness of the crime as to shock the public conscience": (proposition 2(e)).[10]

100. Needless to say, however, it is necessary to keep in mind other aspects of the accepted principles. In the first place, it is not merely a question of concluding that a sentence is insufficient; it must be such as to establish clear and egregious inadequacy. Secondly, where a sentence has been suspended, weight must be placed on the fact that a judge has chosen, as here, to exercise his discretion to suspend the whole sentence and it is the exercise of that discretion that must be shown to be manifestly erroneous if the discretion is to be exercised differently (or not exercised) on appeal.[11] Finally, the Court is bound by authority to apply the well-recognised concept of "double jeopardy" in two ways to this sentence and to this appeal. The respondent is seen to have been at risk twice of serving a term in custody, inasmuch as the sentencing judge decided that the respondent should not be required to serve any of his term in actual custody. Secondly, if the Court feels itself impelled to re-sentence, the range for appropriate sentences is limited by the need, in an ordinary case of this kind, to impose only a moderately increased sentence, again because of the risk faced twice by the respondent.[12]

103. Although the matter argued concentrated on the ground relied upon, namely manifest inadequacy, some legal and more general issues arose in the course of argument that may conveniently be dealt with at this stage.

106. In the first place, issues arose as to what precisely were the acts which constituted the various offences charged, the related acts which could be taken into consideration and the extent to which it was necessary to make the sentences in part or in whole concurrent. Over the centuries the ancient offence of affray has evolved and been expressed in different ways. There was no dispute that it could now be carried out on private premises as well as in public places: see R. v. Button[13], so there is no need to examine and differentiate between what occurred outside on the pavement and what occurred inside the premises invaded by Mr Johnston and his fellow union workers. Nor is it necessary to consider whether those invading the premises intended to engage in fighting with the Skilled Engineering workers at the first premises and with its staff at its office in Box Hill. It is difficult to believe that no violence was intended at the first premises inasmuch as the union members intended to take photographs of the workers with or without their consent, but there seems no reason to believe that there was any intention to fight with the staff at Skilled Engineering's office, for their intention plainly enough was only to cause damage to office property and the like. Nevertheless it was not suggested that the kind of violent incursion which took place at the latter premises, involving deliberate but haphazard and violent damage to property, could not constitute an affray. As Lord Hailsham said in R. v. Taylor[14] "It is not necessary to prove a reciprocity of blows".[15]

109. In each case there seemed little dispute as to the final necessary element required for each affray count, namely that a considerable number of people at both Johnson Tiles and Skilled Engineering's premises were likely to be terrified by what the respondent did and what he encouraged his fellow union members to do. What is required is that the degree of violence "must be such as to be calculated to terrify a person of reasonably firm character".[16] That was explained to mean (by use of the word "calculated") that the violence must be such as "might reasonably be expected to terrify".[17] It is unnecessary to reach a conclusion on the question, but it seems that, although affray in a public place may be established by showing that members of the public might be present and reasonably likely to be terrified, on the other hand, where the offence is charged in relation to private premises, there must be shown to be some persons actually present who would be likely to be terrified by the melée in which the offender participated. Here there was no dispute that there were considerable numbers of people present at each site, Mr Johnston's plea of necessity conceding that there were numbers of people likely to be terrified in the accepted sense.

112. One moves therefore to the second count of assault where the necessary elements are well-known. In the present case it was only the events relating to Mr Ceccomancini that were made the subject of a separate count of common assault. It seems that the reason for there being that single count was the nature of the threats made, which meant that it was conceded that the nature of the attack on Mr Ceccomancini in which Mr Johnston participated, although it did not involve any direct violence (or "battery") of the victim, nevertheless caused him to apprehend immediate and unlawful violence. It can be seen that the nature of the fear or apprehension is therefore more specific than that required for affray.

115. Finally under count 4 Mr Johnston pleaded to a charge of intentionally and without lawful excuse damaging office equipment belonging to Skilled Engineering. This is the most serious of the charges, at least in terms of the prescribed maximum penalty but in addition the judge likewise viewed it, not only as serious, but also "at the higher end of that type of offence". Nevertheless the Court must recognise significant overlapping elements of the conduct relied on for this count as compared with the conduct relied on to establish count 3, alleging the second charge of affray. The violent infliction of the property damage should be seen as largely that relied on to show the kind of violence forming an element of the affray under count 3. There is, however, a relevant difference in intent and purpose, in the case of the affray, the striking of terror into the office workers, and, in the charge of intentionally causing damage, the specific intent to cause damage to the property of another person. Thus a degree of concurrence is called for but there is no reason to ignore the different purposes served by the two offences. The actual causing of damage with intent is properly to be recognised under count 4, inasmuch as the actual outcome of the affray under count 3 should be seen as additional to the events, especially the terror, which constituted the affray itself.

119. Although many of the matters raised in the course of argument were essentially matters of emphasis, as they frequently are in cases alleging manifest inadequacy or excess, a few not unimportant factual matters remained in dispute.

122. The first disputed issue was the matter of remorse, to which we have made detailed reference earlier: see paras.[14] to [18]. Counsel for the respondent contended that, although counsel at the sentencing hearing had not put any submissions based on any alleged remorse by Mr Johnston, nevertheless there was evidence contained in the three character references which the judge should have relied upon to find that in fact there was remorse. This might appear to raise again the difficult question of the judge's responsibility to find facts not directly relied on in the course of a plea. It is not necessary to canvass the relevant authorities (none of which was cited) as to the well-recognised power of a judge to make findings based on the evidence for the purpose of sentencing an offender. This is not a case where the judge has reached a conclusion contrary to any submission made on behalf of the respondent, nor was there any failure to draw counsel's attention to the possibility that a particular fact-finding might be made contrary to a concession by the prosecution or based on any fact not relied on in the course of the plea. More importantly, it does not appear that counsel then appearing for Mr Johnston made any concession that is now said to have been based on counsel's misunderstanding of the relevant factual materials or upon a misunderstanding of counsel's instructions, which occasionally occurs and must be established by appropriate evidence.

125. Here every document now relied upon by counsel on this appeal was delivered to the judge on the morning when the discussion took place. The documents were in fact marked as exhibits shortly before the precise nature of the submission was sought by the judge. As appears above, armed with that material counsel clearly chose not to put any argument based on Mr Johnston's remorse. The judge, a very experienced criminal lawyer, was acutely conscious of the decision then being made, so that he repeated his enquiry of counsel in the terms appearing at the beginning of paragraph [17] whereby he wished to avoid the possibility of it being said later that he had failed to take into account the relevant evidence of remorse. It is, however, counsel's response to that questioning and his submissions immediately thereafter that made it perfectly clear what Mr Johnston was conceding and what he was not conceding. Counsel had the opportunity to change the stance being taken on behalf of Mr Johnston but chose deliberately not to put any plea based on remorse other than that which flowed from the plea of guilty. Likewise he had the opportunity to state, even though it did not appear in Mr Johnston's written statement, that he had instructions that his client was remorseful. In fact he stated precisely what his instructions were and they were only that Mr Johnston conceded that his conduct was inappropriate and that it went too far. It was clear that that was the limit of his instructions and there could have been no doubt in the minds of either counsel or judge that those instructions did not include any claim of remorse or contrition.

128. In those circumstances and in the absence of any claim of error or misunderstanding on the part of counsel, we do not think it is open to Mr Johnston to claim remorse. Counsel, apparently for good reason, refrained from relying on the three somewhat vaguely worded statements upon which counsel now rely on this appeal. In our opinion the judge was correct in his findings on this issue of remorse and it cannot be said now that the evidence to which we have referred should have been accepted, having regard to the failure to rely on remorse during the course of the plea by Mr Johnston's own counsel, except to the extent that it flowed from his guilty plea. Counsel's direct instructions at the time must have been contrary to any such claim.

131. A not unrelated factual issue was a claim that the sentencing judge had made a mistake in concluding that there was "a real risk" that Mr Johnston "will in the future become involved in further offending of this type". Naturally an erroneous finding on the issue of remorse may have borne on this conclusion also but the judge had properly rejected that contention. It seemed open then to the judge to deal with the conventional issue as to the possibility of reoffending by reaching the conclusion he did as to the risk of further offending arising out of industrial disputes. The judge was entitled to take account of the fact that, although not serious, the majority of Mr Johnston's previous convictions arose out of public order offences and that the two incursions which he was involved in leading on 15 June 2001 were each deliberate and serious examples of breaches of public order. Having regard to the very qualified admission of wrongdoing and the absence of any true remorse, there would seem to be a strong basis for finding that there was a "real risk" of the relevant kind. Indeed one of counsel's submissions on this appeal was that "the respondent was committed to his views". Not only was there evidence to support that contention, but it pointed strongly to the possibility that he might in future be engaged in similar industrial disputes which might get out of hand in the way that the disputes with the two companies did on this occasion. At the time of sentencing the appellant was only 47, still apparently fit and still working in the same kind of occupation which he had followed for many years. Although his conviction for these offences makes him ineligible to hold any statutory office in a union, it does not prevent him from being a shop steward, or generally from participating in any industrial dispute. (It seems now that he is no longer a member of the AMWU but that does not prevent him from joining another union and certainly does not prevent him from taking part in industrial agitation.) Reliance was placed on the fact that he had not been in trouble for the three years since the offences took place but, although that is to be commended, it would not inhibit him in the years ahead from participating in industrial action which might get out of hand. In the absence of remorse we consider the judge's finding was clearly open to him. Moreover we do not accept the contention that the words "real risk" was intended to indicate that it was probable that he would be involved in such offending, only that there was a significant possibility.

134. Further, the respondent contended on a number of occasions that the offence took place in the course of a genuine industrial dispute. The assertion seems to confuse and conflate two different matters. The first, which need not be disputed in the light of the judge's findings, was that there was a dispute between members of the union and the particular employers up to that time which could be characterised as genuine in that they had real differences over the use of non-union labour. One might fairly say that the demonstration outside the gates of the two premises was part of that dispute, albeit that a number of members of the union had pleaded guilty to unlawful assembly at that stage. Nor need it be denied that that dispute led Mr Johnston and his fellow union members to decide to invade the two premises and causing the affrays upon which he has been convicted. It is another thing altogether to say that the offending occurred "in the course of a genuine industrial dispute". The dispute existed, doubtless, but the four offences cannot be excused by saying that they took place in the course of the dispute because, even by Mr Johnston's own admissions, the later events were inappropriate and "went too far". In short the dispute could have been genuinely pursued without the need for the criminal incursions onto the two premises which took place. The dispute may have provided the occasion for the criminal behaviour but not, in our view, any justification.

137. There is one other question of fact which appears, at least in part, to be in dispute, namely the extent to which the harm caused at each of the two factories was premeditated. The contention that it was not might appear to be supported by the judge's finding at one stage that there was "no pre-planning for violence and damage at Johnson Tiles", although he made no such finding with respect to the invasion of Skilled Engineering's premises. The finding of "no pre-planning", we believe, flowed out of his earlier finding that there was "no agreement ... to damage property or assault persons in Johnson Tiles". If by that the judge meant only that there was no intention to cause injury to people at Johnson Tiles or to damage any property there, then such a finding was consistent with the evidence. But the later statement seems not to have been so carefully expressed. The affray was planned, and indeed one of the essential characteristics of affray is violence, though not directed, necessarily, at causing injury to specific individuals. Nor can it be said that the plan was merely to walk on to the premises, shout a few slogans and then leave again. The first step was clearly the cutting of the chains at the front gate and the intention was certainly to cause fear. Although there was no intent to cause injury, there was an intention to assault a considerable number of people in that it was planned by all, including Mr Johnston, that certain people, being "scab" workers, would be forced to have their photographs taken and in that activity, having regard to the relationship of the parties, neither Mr Johnston nor his fellow unionists could have contemplated ready acquiescence. Thus, to the extent that they were to be forced to have their photographs taken, there would clearly have been some assaults, albeit of a technical kind. On the other hand we would not conclude that it was planned that there should be any battery or other kind of injury, or that there should be any injury to property at Johnson Tiles.

140. Still less could it be denied that there was an intention to cause damage at Skilled Engineering. There was no other purpose to the invasion of Skilled Engineering's premises for, as seems to have been conceded in the respondent's favour, the object was not to injure any of the staff there but merely to show displeasure by wreaking the havoc which the union members did when they went through the offices. To that end there was a deliberate affray and one might have thought that those responsible, including Mr Johnston, would have anticipated that their activities were likely to cause much fear and apprehension amongst the employees present, but the plea was conducted upon the basis that no direct harm to those employees was specifically intended.

143. Moreover, we do not accept the contention that Mr Johnston's part was limited and that he had no significant responsibility for the planning of the two raids. It may be conceded that he was not present at the meeting the day before but there cannot be the slightest doubt that he knew of that plan the next day, for he was at the site early in the morning, and that, if he was not the prime leader, he was at least a leader who took a significant part in causing the affray at Johnson Tiles. Moreover, although it may not have been shown that Mr Johnston gave the first "order" to move to Skilled Engineering's premises, he was certainly present, understood what was to happen, took part in the incursion and was clearly, as the judge found, one of the "leaders". As the judge found, he encouraged and incited a number of activities at each premises and, as secretary of the union, he was in a position to stop what was going on. That he was well aware of what was intended can be demonstrated from the facts that he turned up early in the morning with both a balaclava and a camera, essential for the first incursion, and that thereafter his leadership activities showed that he had a full understanding as to what was to occur at both premises. To say that there was no premeditated violence or causing of fear can easily be rebutted by reference to his role and in particular to the use of balaclavas by him and his fellow union members for the purpose of that first attack. Although arguably intended in part to prevent identification, the use of balaclavas in such a context is shared only with common criminals such as armed robbers and thus inevitably likely to strike fear into those affected.

147. As we have said before, two questions are raised by this appeal: the first, whether the sentences, including the total effective sentence, were manifestly inadequate in themselves; and secondly, whether the decision to suspend the whole of the effective term was manifestly inappropriate. An answer to the first question may well resolve this appeal, for if the base sentence, including the component sentences, was manifestly inadequate then the hypothesis upon which the sentencing judge suspended the sentence no longer stands, and the issue as to suspension arises afresh in the context of what the proper terms, and total effective term, should be. On the other hand, if the Court is not satisfied that the relevant terms were manifestly inadequate, for example, if they were thought to be within range, there will still remain a question whether, applying the accepted tests in cases such as Clarke, the decision to suspend the total effective sentence wholly was such that it can be described as so improper as to render the ultimate sentence as manifestly inadequate.

150. For these purposes the DPP pointed to certain aspects relating to the gravity of the offences which were said to demonstrate that general deterrence had been given insufficient weight. This was said to be supported by four considerations which showed that four aspects of the sentencing exercise had been given insufficient weight, namely the gravity of the offences, the need to give effect to general deterrence, the failure to give sufficient weight to the serious effect on the victims and fourthly, the insufficient weight given to premeditation and the planning of the offences. In addition, three aspects of the sentencing process were given insufficient weight, according to the Director, namely the excessive weight given to mitigation, and the insufficient weight given to the absence of remorse, to specific deterrence and to the likelihood of reoffending. It was also contended that excessive weight was given to mitigation.

153. As to matters of aggravation we are persuaded that the judge gave insufficient weight to the gravity of these offences generally, so much so that, unless there were mitigating circumstances out of the ordinary, the sentences imposed were in themselves manifestly inadequate. It is, nevertheless, preferable to return to this general issue after dealing with the specific matters of complaint. As to general deterrence, a similar conclusion might fairly be drawn, unless there be significant mitigating factors, and likewise as to specific deterrence there seems to be nothing to have prevented that from properly being reflected in the sentences, unless, of course, there were powerful mitigating circumstances. Again those issues are of such generality as to make it desirable to defer final consideration of them.

156. Turning then to the specific matters relied upon by the appellant as aggravating circumstances, the first was a failure to give sufficient weight to the serious effect of the offences upon the victims. There is no doubt that the learned judge referred in some detail to the effects of the various offences on the victims at both premises and, in particular, recounted in detail (over several pages) the stated recollections of those people. There can be little doubt that his Honour saw those experiences as "traumatic", as he expressly described the effect on the staff at Skilled Engineering, and that he saw the invasion of Johnson Tiles as causing "fear and terror in those present". It is hard, therefore, to see why such light sentences were imposed, unless there were countervailing circumstances.

159. Secondly, it has been argued that the judge gave insufficient weight to the fact that all offences, especially the two offences of affray and the criminal damage offence, were planned and premeditated. There is some substance in this complaint inasmuch as the judge was inclined to downplay the extent to which Mr Johnston and his fellow union members had taken into account beforehand the potential harm to the people in the two premises. In the first place there can be no doubt that both the respondent and his many colleagues had clearly in mind to strike fear into the hearts and minds of those who had been engaged by Johnson Tiles and who had been hired out by Skilled Engineering. As already noted there could be little doubt, for example, that the wearing of balaclavas might in most cases cause their victims great apprehension. Moreover, the scheme to photograph them must have been designed to leave them fearful as to what the union members, including Mr Johnston, would do subsequently to those workers. One must concede, however, that the judge was satisfied, to the requisite standard, that there was an intention on the part of Mr Johnston and his colleagues to intimidate and cause fear. On the other hand, the light sentences imposed would appear on the surface to reflect a failure to take into account all relevant circumstances such as this specific and very serious aspect unless there be countervailing considerations in favour of the respondent. Likewise Mr Johnston's intended actions directed at Skilled Engineering ought to have been perceived by him and his group as likely to cause fear, albeit that their primary concentration and purpose was to destroy office furniture and fittings. Whatever they had hoped the staff would do in reaction to this, they surely could not have thought that those staff would not have been terrified at least in the first place by the noisy and marauding tactics of the invading group. Although recognised by the learned judge, Mr Johnston's appreciation of potential terror appears, at least at first blush, not to have been reflected in the sentences.

162. The Director's arguments then concentrated on the judge's alleged giving of excessive weight to mitigating factors such as the absence of "significant prior criminal convictions". We are not persuaded that in themselves any of those convictions was very serious but to describe them as without significance places insufficient weight on their true relevance in the present context. Though leading to small penalties, they all evidenced an unwillingness to comply with the ordinary legal precepts of behaviour in public places and a preparedness to breach the law when it suited Mr Johnston to do so. The present set of charges arose in a far more serious context but the earlier offences cannot be considered, as the judge tended to view them, as having no bearing on an overall assessment of Mr Johnston's character. The same might be said of the judge's reference to the events occurring in the course of a genuine industrial dispute, about which we have already made comment.

165. We have likewise discussed the judge's finding as to the "real risk" that the respondent would in the future become involved in further offending of this type so that, by concluding that the judge had not misstated the degree of risk, it is not possible to say that the judge reached a wrong finding in relation to this factor, but it is another question whether he placed incorrect weight on it.

168. If there was a failure by the judge in his assessment of the respondent, it was, in our opinion, that he placed too much significance on the various factors which may be said to have demonstrated his good behaviour and concern for others in the past. It is not that the judge's findings were incorrect: it is rather that he gave too much weight to them having regard to the nature of the present offending. Many offenders can claim to have had an exemplary past but it does not follow, when found guilty of serious breaches of the law, that they should be treated as persons deserving of slight punishment where serious offences have been committed deliberately, in circumstances where the offender ought to have had a clear apprehension of likely harm to others. In the present case there is nothing to suggest that Mr Johnston suffered from any defect in intelligence; rather he seems to have been sufficiently successful in his union career to have reached the top ranks of the Victorian branch of a very significant union. Nor did he claim that circumstances were such that he was unable to comprehend the nature of his offending or the potential for harm to others. It is not often that persons of intelligence come before the courts charged with serious offences but, when they do, there is little basis for saying that specific deterrence is irrelevant to them, unless there be quite exceptional contrary factors.

171. For the respondent it was argued, in reliance on the authorities already cited (see paras [26] to [28), that the Court should only increase the sentences if rare and exceptional circumstances had been demonstrated, more especially as the respondent was placed in double jeopardy of serving a term of actual custody. Thus it was said that these sentences did not satisfy those stringent tests for showing manifest inadequacy and that, even if they did, the Court should refrain from interference.

174. Specifically it was contended that this was not a case where general deterrence was of special significance, more especially as it had not been relied upon below. Whether or not it was mentioned, it would not, in our opinion, be a fatal error for we cannot assume, having regard to the manner in which pleas are conducted, that any concession was thereby made by the prosecution. The most that can be argued is that the judge did say he had considered that factor, so that it cannot be assumed that he placed inadequate weight on it. Again it is another question whether the sentences imposed demonstrated the contrary.

177. Again it was argued on behalf of the respondent that the harm actually resulting from these offences was not premeditated. We have analysed this issue in some detail already, but the contention was that Mr Johnston did not set out to cause the specific harm in fact suffered. Emphasis was placed on his absence from the meeting on the day before. The argument concentrated on the invasion of the Johnson Tiles premises, for there could be no argument but that the purpose of the second incursion was to damage furniture and other property of Skilled Engineering - indeed the emphasis was on the accepted absence of any intention to injure any individuals at its offices. The respondent's argument seemed to concentrate on the absence of any specific proof of any intention to strike fear or terror into the minds of those present. It may be observed that that a reasonable expectation of such terror is an element of each count of affray, but the argument assumed that nothing of that kind was contemplated, at least in the original planning.

180. Naturally the respondent's case placed weight on the various factors accepted as going to mitigate Mr Johnston's criminal responsibility. Again the argument tended to concentrate on the disputed issues such as remorse and the nature of the industrial dispute. They have each been examined in detail already. In particular it was contended that, whatever be the proper bounds of behaviour in such disputes, at least it could be said that Mr Johnston had a genuine belief in the righteousness of his cause and that of his fellow union members, so that the fact that it "got out of hand" could not detract from that genuineness. It was an explanation without being a justification.

183. Finally it was said, as again noted earlier, that there was nothing to suggest that Mr Johnston would offend again in the future, because of his demonstrated capacity to be a "useful and contributing member of the community". These factors were said to have formed a solid basis for the judge to take a lenient view of the offending and, in particular, to have justified full suspension of the whole sentence of imprisonment.

187. We must now express our conclusions in this complex case. Despite the many issues raised, the sentences pronounced below, with the possible exception of that on the assault count, must be seen as manifestly inadequate. None of the many factors relied upon, most of which were disputed only as to their significance, could justify imposing such low sentences for affray and intentionally causing damage. In particular, the latter sentence of four months, imposed for the planned damage to Skilled Engineering's offices, is not only totally insufficient, but is moreover inconsistent with the affray sentences, in that by comparison the sentence is far less than ought to have been given for a deliberate and planned causing of damage and for an offence carrying double the relevant maximum penalty. Whatever sentence might have been given for a casual or impetuous act or one in which the offender played only an inconsequential part, no such claim could be made by Mr Johnston. Moreover it was quite inconsistent with the judge's own characterisation of the offence as both serious and at "the higher end" of the scale of seriousness. The term of four months was not further explained and is not, in our opinion, remotely commensurate with the seriousness of the offence, whatever be the respondent's other virtues. Mr Johnston was one of the ringleaders, not surprisingly having regard to his post as Secretary of the Victorian branch of the AMWU, the destruction was not only planned but wanton, and it could have been expected to and did create shock and fear to innocent employees.

190. The latter factor, though relevant to count four, was properly to be considered once only, for the purpose of the relevant count of affray. On each count of affray it was that factor which took the case out of the ordinary, so that we again think that each of the terms imposed on counts 1 and 3 was manifestly inadequate. We may observe that this shows again how insufficient the sentence on the fourth count was. But the factor primarily to be considered in cases of affray is the degree of terror likely to be imposed on casual bystanders or on those carrying on their ordinary affairs nearby.

193. Turning specifically to the first count of affray, that in our opinion was the more serious example of the offences described by counts 1 and 3. It was more serious, in terms of the law of affray, because there can be no doubt that it was intended to strike fear and terror into the hearts and minds of at least those workers at Johnson Tiles whose services were being supplied by Skilled Engineering. Mr Johnston and his colleagues were determined to photograph these so-called "scabs" in order to shame them, to expose them to ridicule and to cause them to fear for their own safety should they continue working there. The respondent and a considerable number of union members whom he led chose deliberately to wear masks to hide their features and he must have been aware that this would heighten this feeling of apprehension. Not only that, but the manner of entry and the photographing of the Skilled Engineering workers must have been seen as likely to cause terror to others working at Johnson Tiles. The facts speak for themselves.

196. It is necessary to ask why such a low sentence was imposed for this count of affray. No direct reasons were given by the learned judge and one must conclude that either he thought the nature of the offending was slight or that Mr Johnston's personal attributes were such as to justify a significant lessening of what otherwise should have been imposed, or a combination of the two. There does not, however, appear to be any true justification for a term of only six months' imprisonment.

199. Again there seems to be no justification for the imposing of so low a sentence as was imposed on the respondent for count 3, i.e. eight months for the affray at Skilled Engineering. Doubtless there was an intention to cause a great deal of damage and necessarily Mr Johnston and his colleagues must have contemplated that the office staff would have been not merely inconvenienced but frightened by the marauding group that entered the premises. It is the latter element, the causing of terror and fright, which is essential, but that was inadequately reflected in the term of eight months' imprisonment.

202. Accordingly, giving full weight to the principles applicable to Crown appeals and also to the factors which can properly be taken into account in favour of Mr Johnston, we are clearly of the opinion that the various sentences, including the total effective sentence, were inadequate and manifestly so. Moreover the imposition of the fine of $10,000 did not make them adequate.

205. Furthermore we do not believe that it was appropriate for the judge to suspend the whole of Mr Johnston's sentence. Each of the respondent's acts in perpetrating the four offences was deliberate and the consequences must largely have been contemplated by him. He was a leader of each incursion, he has proffered no excuse except that "it got out of hand", he has shown no proper remorse and so he must face the consequences of his acts on the day. These were no idle, casual, impetuous acts, nor were they to be explained by any event or illness, save that he perceived them to be part of his union's dispute and battle with Skilled Engineering, in particular. There can be no justification for the offences, looked at as a whole, nor could Mr Johnston's belief in the union's case properly be a basis for wholly suspending the sentences imposed. Nor, again having regard to the deliberate but wanton nature of the acts charged, could his personal circumstances or characteristics properly found the suspension. Of course, we do not know how the judge would have resolved this issue if more substantial terms had been imposed. Nevertheless we should commend the judge for his careful exposition of the facts and issues: regrettably it has been his conclusions and ultimate reasoning with which we disagree.

208. We therefore turn to what this Court should now do.[18] In the first place it is necessary to determine the individual sentences which should be imposed and the total effective sentence which should result from proper orders for cumulation. We do so having regard not merely to the many factors already described, including those personal to Mr Johnston, but to the accepted precepts of "double jeopardy" which constrain appellate courts in resentencing. On the first count of affray at Johnson Tiles, which we believe (for reasons stated) to be the more serious, we consider that a term of twenty-one months' imprisonment should be imposed. On the second count of common assault we would not alter the term presently imposed of three months, light though it is, having regard to the DPP's concession. On the third count, the count of affray at Skilled Engineering, we consider that a term of eighteen months' imprisonment should be imposed, for reasons already stated. Finally, on count 4, that relating to the intentional causing of damage to property at Skilled Engineering, we consider that a term of two years' imprisonment should be imposed, for reasons likewise already explained.

211. As to cumulation, the issue of totality must here especially be taken into account. Proper allowance must be made for the fact that all offences formed part of one episode of offending, albeit a lengthy episode, occurring at different places and affecting different groups of people. For that reason we would not cumulate on the sentence on count 4 any part of the sentence on count 2 and would cumulate only three months of the sentence on count 3, but we would cumulate six months of the sentence on count 1. Perhaps that insufficiently recognises the varying factors, but no greater cumulation should here be ordered. Consequently the total effective sentence should now be two years and nine months. We add, lest it be misunderstood in some quarters, that more severe sentences would properly have been imposed by a sentencing court at first instance and possibly greater cumulation orders made, though the principles in R. v. Grabovac[19] should be observed. Moreover, as already mentioned, it is no longer appropriate (if it ever was) to impose any fine.[20]

214. Finally, we come to the difficult issue of suspension. We are very conscious of the discretion exercised by the judge and of the choice of penalty made by him, and in particular, that to fail to order full suspension will result in Mr Johnston serving some period in actual custody in circumstances where he has been at liberty since being sentenced. However, it must be noted that the sentences we intend to pronounce are substantially greater than were imposed in the County Court, so that one cannot be certain whether the judge would have suspended the whole or part of a more lengthy sentence. We have said the judge was wrong in the first place, but the issue now for this Court is whether we should make any order for full or partial suspension. There is much to be said for the view that suspension is not appropriate if the judge, as here, perceives a real risk of reoffending. We do not disagree with that assessment of the risk, but, nevertheless, having regard to the double jeopardy precept, we believe it desirable that we should, but only in part, follow that course again. It should not be taken that it would have been a desirable or appropriate course for a judge at first instance. However, having regard to all relevant factors, we would require Mr Johnston to serve nine months in custody, suspending the remaining two years for a period of two-and-a-half years. We are fully conscious that a decision to require Mr Johnston to serve part of his term in actual custody may be misunderstood, but the seriousness of the offences charged in counts 1, 3 and 4 and the deliberate and wanton manner in which they were committed, has made that decision inevitable in all the circumstances.

217. We therefore would allow the appeal, set aside the sentences including the fine and resentence the respondent in the manner just described.

[1] In fact only three of the group pleaded to two counts of unlawful assembly, the remaining thirteen pleading to a count relating to the events at Johnson Tiles.

[2] Note again our disagreement with this characterisation of the offences: see the end of para.[[].

3] Again note our disagreement with this finding: see para.[[].

4] [2000] HCA 54; (2000) 202 C.L.R. 321.

[5] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[6] [2004] HCA 22 at para.[14]; [2004] HCA 22; 78 A.L.J.R. 786 at 790.

[7] See proposition 1 in the judgment of Charles, J.A. at 522.

[8] See Everett v. The Queen [1994] HCA 49; (1994) 181 C.L.R. 295 at 300.

[11] Cf. Dinsdale v. The Queen, but having regard to the differences in legislation between Western Australia and Victoria.

[12] As to these aspects, see again Dinsdale, passim.

[14] [1973] A.C. 964 at 986.

[15] It should be noted that in all other States, apart from South Australia, the offence of affray has been redefined by statute.

[16] R. v. Taylor at 987 per Lord Hailsham, as applied in Attorney-General's Reference (No. 3 of 1983) [1985] 1 Q.B. 242 esp. at 246 and 249 per Lord Lane, C.J.

[17] R. v. Taylor at 987; Attorney-General's Reference (No. 3 of 1983) at 246.

[18] We have tried to set out the major issues raised, but for the purpose, in particular, of resentencing we have also taken into account the many other matters raised which it is impracticable to repeat in this judgment.

[19] [1998] 1 V.R. 664.

[20] For obvious reasons the compensation order should stand.