DPP v B W [2007] VSCA 171

Court of Appeal (Vic)|2007-08-31|Before: BUCHANAN JA and KAYE and WHELAN AJJA

Criminal law - Sentencing - Aggravated burglary and indecent assault - Director's appeal - Sentences of nine months' imprisonment on each, one wholly suspended and one to be served by intensive correction, manifestly inadequate - In the particular circumstances not so disproportionate as to warrant appellate intervention - Double jeopardy - Overarching discretion not to intervene exercised.

**1 I have had the considerable advantage of reading the draft reasons for judgment prepared by the other members of the Court. I agree with them as to the disposition of the appeal.

2 I share their Honours' view that the individual sentences and the order that they be wholly suspended have led to manifestly inadequate punishment for crimes involving the invasion of the home and person of the victim. In the circumstances which now obtain, however, I think that a different sentence should not be passed. The respondent is at liberty. For the second time he faces the prospect of the imposition of a custodial sentence to be served immediately. The mitigating factors catalogued by the sentencing judge are exceptional. In my view it is appropriate that this Court's discretion to dismiss the appeal, notwithstanding the inadequacy of the sentence, should be exercised.**

**3 I accept and adopt the statement of background facts and circumstances contained in the judgment of Whelan AJA.

4 In this case her Honour, the sentencing judge, was faced with a particularly difficult sentencing dilemma. On the one hand, the offending to which the respondent had pleaded guilty was particularly serious. The offences of aggravated burglary, and of indecent assault, are serious criminal offences. There were a number of aggravating circumstances attaching to the commission of both offences. The victim was asleep at the time the applicant entered the house and assaulted her. The assault was disgusting and degrading. The offences occurred in what should have been the security of the victim's own home. The applicant took advantage of his previous knowledge of the layout of that house in order to gain entry to it and to perpetrate the assault. The nature of the indecent assault was such as to debase and humiliate the victim, and as a consequence she has suffered ongoing trauma and stress.**

**5 Ordinarily, it would be expected, as a matter of course, that such offending could only result in the imposition of substantial terms of immediate imprisonment. In such cases the requirements of general deterrence, and of the adequate and proper denunciation by the Court of the offending conduct, could only properly be met by such a sentence.

6 On the other hand, there were strong mitigating circumstances as found by the sentencing judge. The catalogue of violent cruelty, and of physical, sexual and mental abuse, perpetrated on the respondent during his childhood, was nothing short of horrific. It is unsurprising that her Honour was satisfied that the psychological evidence revealed that the respondent's conduct had a link with the traumatic and extraordinary circumstances of his childhood. Thus counsel for the Crown, on the plea, appropriately recognised the exceptional nature of the background circumstances of the respondent, and acknowledged that he obviously had "some severe mental problems". No doubt it was that consideration which led counsel, at the first hearing date of the plea, to acknowledge that "all sentencing options are open", including a community based order.

7 Similarly, on the appeal before us, counsel for the Director correctly acknowledged that the background circumstances of the respondent, and in particular the sexual abuse that he suffered as a child, were relevant to the moral culpability to be ascribed to his offending in this case.[1] Counsel realistically acknowledged that this was an unusual case. He further accepted, correctly, that at the time of the offending the respondent's judgment had been adversely affected by the combined effects of alcohol, mental illness, and his background of sexual abuse.

8 It is also significant that, notwithstanding the respondent's previous criminal history, his antecedents do not include any sexual offences. There is no suggestion that the respondent has a proclivity to any such conduct. Indeed Dr Grech's view is to the contrary.

9 Such, then, was the dilemma confronting the sentencing judge. As noted by Whelan AJA, her Honour is very experienced in sentencing matters. In particular, her Honour has substantial experience in sentencing offenders whose lives have been affected by disturbing and traumatic experiences in their early years. The reasons for sentence were thorough, carefully considered and well balanced. At no time did her Honour lose sight of the gravity of the offending, or of the effect of that offending on the unfortunate victim. It is clear that her Honour arrived at the sentences, which she imposed on the respondent, after giving the matter careful and thorough consideration.

10 The question then is whether, in those circumstances, the sentences imposed on the respondent were manifestly inadequate. The test for determining that question is that stated by Whelan AJA. It is important to bear in mind that the question is not whether this Court, or any member of it, would have reached a different conclusion, and imposed different sentences, than were imposed by her Honour. Rather, it must be shown that the sentences imposed on the respondent, in all the circumstances, were so manifestly inadequate that this Court can infer that, in a relevant respect, the exercise by her Honour of the sentencing discretion fell into error.

11 Just as the determination of the sentence by her Honour was a difficult question, so too is the question which we must decide in this case. The starting point, of course, is that the offences themselves were serious. On the other hand, as I have stated, the mitigating circumstances outlined by Whelan AJA were very strong. The effect of those mitigating circumstances were to reduce (but not eliminate) the degree of moral culpability attaching to the offending. Also, in accordance with the principles outlined by this Court in R v Verdins,[2] the psychological condition suffered by the applicant at the time of the offending, and as found by her Honour, was such as to require a degree of appropriate moderation of the need for the sentences to fulfil the requirements of general and specific deterrence. It is also clear, in the circumstances of this case, that a proper exercise of the sentencing discretion requires the Court to pay proper attention to the need, in the interests of the community, for the respondent to be properly rehabilitated.

12 Nevertheless, and notwithstanding the powerful mitigating circumstances in this case, I have reached the conclusion that the sentences imposed by her Honour were manifestly inadequate. I have reached that conclusion for two main reasons. First, in my view, the sentences of nine months' imprisonment for each of the two offences, and in particular the indecent assault, were manifestly inadequate. Notwithstanding the strong mitigating circumstances of the case, I am of the view that those sentences could not, on any view, adequately reflect the Court's denunciation of the offending, nor could they act as a general deterrent. In my view, sentences in the order of 18 months each, with a total effective sentence of two years' imprisonment, were called for in all the circumstances to fulfil those sentencing functions. Further, and secondly, I am of the view that the total suspension of the terms of imprisonment imposed on the respondent had the result that the sentences were manifestly inadequate. With a degree of hesitation, I have come to the conclusion that the only fitting sentence which should have been imposed in this case would have involved some term of custodial sentence, albeit that such a term could, properly, have constituted but a minor proportion of the term of imprisonment imposed. In other words, I am of the opinion that the sentencing judge ought to have imposed a term of imprisonment, the majority, but not the whole, of which might have been suspended.

13 In view of those conclusions, the difficult question for this Court is what ought to be done by way of disposition of the appeal. As outlined by Whelan AJA, in a case such as this, the principles of double jeopardy are important. Those principles are often referred to on Crown appeals, and in this case they assume central importance. This is the second occasion on which the respondent, while at liberty, has had to confront the prospect of the immediate imposition of a custodial sentence, in respect of the same offences. In the meantime, the respondent has been in the community and has re-ordered his life. If, as required, the concept of double jeopardy is to be given real content, then the effect of that principle must be to significantly reduce the immediate sentence of imprisonment which would otherwise be required to be imposed on the respondent.[3] In addition, the respondent has already served one month of his Intensive Corrections Order, which, under s 19(5) of the Sentencing Act, constitutes a sentence of imprisonment. Any term of imprisonment now imposed on the respondent would have to give credit for the one month already served.

14 As I have already stated, in my view the appropriate sentence in this case would have been the imposition of a sentence of two years' imprisonment, but with the majority of that sentence suspended. When the principles of double jeopardy are applied to such a sentence, the result is such that, if this Court were now to impose a term of immediate imprisonment on the respondent, it could only be of a very short duration. It is at this point that the question of the exercise of the overriding discretion of the Court,[4] on a Crown appeal, assumes significance. In my view there are overwhelming reasons to exercise that discretion in favour of the respondent in this case. First, on the evidence which was before the sentencing judge and before this Court, I do not consider that, on any view, it could be expected that a short term of imprisonment would have any beneficial effect in rehabilitating the respondent, or in deterring him from committing the same type of offence again. Rather, and importantly, I consider that such a term of imprisonment might have the potential of significantly undermining the important steps which the respondent has already taken to address his underlying problems and thus to reform himself. Secondly, the imposition of such a small term of imprisonment would be ineffectual to vindicate the requirements of general deterrence and denunciation. In the end the imposition of such a short term of imprisonment would, in the scheme of things, be meaningless, and would act in a manner which would be detrimental to the primary**

**15 On any view, this is a most unusual case. The circumstances, set out in the evidence, accepted by the Crown, and of which the sentencing judge was properly satisfied, are most exceptional. Those circumstances are such to satisfy me that, notwithstanding my conclusion that the sentences imposed by her Honour were manifestly inadequate, nonetheless any disposition arrived at by this Court should not be such as to require the immediate incarceration of the respondent.

16 This Court then is left with two alternative courses by which to dispose of the appeal. First, it might allow the appeal on both counts, and substitute wholly suspended sentences of longer duration than nine months. Alternatively it might simply dismiss the appeal. In my view the latter is more preferable, since it would leave intact the Intensive Corrections Order made in respect of the indecent assault charge. For the reasons expressed by Whelan AJA, that Order is an important aspect of both the punitive and rehabilitative sentences imposed by her Honour.

17 Accordingly I agree that, in the exercise of this Court's discretion, the appeal should be dismissed.**

**18 This appeal concerns a man who was, in his childhood, subjected to sexual and other abuse, and who has, as an adult, pleaded guilty to offences in which he subjected his former girlfriend to an incident involving similar humiliation.

19 The sentencing judge found that as a boy he was abused by both his father and his older sister. One thing his older sister did was to force him to perform cunnilingus on her.

20 For approximately five years prior to September 2005 the respondent was in a**

relationship with the woman who is the victim of the offences now the subject of this appeal.

**21 About three weeks prior to 10 September 2005 she terminated the relationship. On 10 September 2005 at approximately 4.00 am the respondent entered this woman's home through a window without permission. She awoke to find him performing cunnilingus on her. He left upon her confronting him and some time later apologised for his actions.

22 He was initially charged with rape and with other offences. On 20 November 2006 he pleaded guilty to one count of aggravated burglary and one count of indecent assault. He was sentenced by a judge in the County Court who has had extensive experience in criminal law. Her reasons for sentence reveal a most thorough and careful consideration of the respondent's background and of the circumstances of these offences. She sentenced him to be imprisoned for a term of nine months on the aggravated burglary charge. She wholly suspended that sentence for a period of three years. On the indecent assault charge she sentenced him to a term of nine months' imprisonment and ordered that that sentence be served by way of intensive correction in the community.

23 The Crown has appealed these sentences on the grounds that they are manifestly inadequate.

24 Before the sentencing judge a summary of the circumstances of the offences was tendered, as was a victim impact statement, a reference from the respondent's employer and two psychiatric reports. The sentencing judge heard oral evidence from one of the psychologists.

25 It was not suggested before this Court that any of the sentencing judge's conclusions as to the circumstances of the offences, the respondent's background, or the psychiatric issues relevant to him, were incorrect.**

**26 The respondent was born in 1965. According to the account of his past given to the psychologists, his childhood was marked by abuse perpetrated upon him by his father and by his older sister. He initially left home at around the age of 12 as a result of the abuse to which he was subjected. The abuse he suffered was both physical and sexual. His father was a violent alcoholic. Amongst other things, he subjected him to violent and terrifying punishments. His older sister, who was herself abused by their father, ordered the respondent to perform acts of oral sex upon her from the time he was about six or seven years of age. If he refused she would complain about him to their father and he would be subjected to violent retribution. The pattern of behaviour constituting this particular abuse involved a demand for oral sex as a means whereby the respondent was to convey an apology or contrition for acts of perceived wrongdoing towards her.

27 The respondent is an intellectually gifted person. As a boy he won a scholarship to a major private boys' school. He found he could not fit in to that environment and he left school at age 13. Between the ages of 13 and 21 he worked in a number of different jobs.

28 The respondent has a large number of prior convictions which he admitted upon his plea.

29 The admitted prior convictions begin in 1982 when the respondent was 17 years of age. He appeared in Court on three occasions on charges of theft and similar offences and was dealt with by way of fines.

30 The respondent went through about a decade of alcohol and drug abuse. This is reflected in his criminal history. Commencing in 1988, over about ten years he was convicted of a number of offences including many offences of possession and use of drugs, offences involving assaulting police and resisting police, offences of trafficking in drugs, a large number of offences for handling stolen goods, and one offence of causing injury recklessly. His convictions for offences concerning the possession and use of drugs continued until 1997 when he was 32 years of age.

31 Since 1997 the respondent has been convicted of driving a motor vehicle whilst his licence was suspended in March 2000 for which he was sentenced to a term of imprisonment of one month, and he was convicted in June 2002 of offences of behaving in an offensive manner in a public place, using indecent language in a public place, assaulting or resisting or obstructing a person acting in aid of a police officer in the lawful execution of duty, and resisting a police officer in the lawful execution of duty, for which he was sentenced to pay an aggregate fine of $1,500.

32 The respondent has been sentenced to terms of imprisonment which have been wholly suspended on two prior occasions. The first was in July 1989 when he was charged with offences of possession and use of amphetamine and assaulting and resisting a police officer. The second was in December 1990 when he was charged with trafficking in a drug of dependence, handling stolen goods, causing injury recklessly and a number of other charges.

33 The respondent was married for approximately 13 years. He and his wife separated in 2001. He has a son from that marriage who is now 15 years old. He sees his son regularly and contributes to his maintenance.

34 The reference from the respondent's current employer spoke of him in very positive terms.**

**35 The respondent was involved in a relationship with the victim, who for the purposes of these reasons I will refer to as Ms X, for several years prior to September 2005. The respondent describes this as an "on and off" relationship. One feature of the relationship, at least for a period of time, was that the respondent would climb through a window to enter Ms X's home. He would do that with what the sentencing judge described as Ms X's implicit permission. Approximately a year prior to September 2005 Ms X told the respondent that he was not to enter through the window any more. In a record of interview with the respondent in relation to the offences the subject of this appeal, he agreed that he had been told not to enter that way, although he disagreed with the suggestion that he had been forbidden to so enter a year before and suggested that it was a few months earlier.

36 On approximately 20 August 2005 Ms X terminated the relationship upon learning of the respondent's involvement with one of her friends on an earlier occasion. The respondent did not see or speak to Ms X between the conversation in which she terminated the relationship and the night upon which the offences occurred.

37 On Friday 9 September 2005 the respondent worked until midnight and then went out drinking.

38 At approximately 4.00 am on Saturday 10 September, Ms X was at home asleep in her bed. Her 13 year old son was asleep beside her. The respondent entered Ms X's home through the window. In his record of interview the respondent said Ms X had told him that she did not want to see him and he acknowledged that he did not knock on the door because she probably would not have opened it.

39 Ms X awoke when she felt something rubbing in between her legs. She sat up and leaned forward and could see a shadow in front of her. She grabbed the person by the shoulders and asked who it was. The respondent replied and she recognised his voice. He then walked out the front door and Ms X followed him and observed him walking to his car. Approximately ten minutes later Ms X received an SMS message from the respondent. The message read:**

40 Ms X sent back a message suggesting that the police would not like that. Shortly afterwards she received a phone call from the respondent on her landline. He apologised. He tried to explain himself. After that conversation Ms X received a further SMS message that read:

"I'm so sorry. I will do anything for you to make it up to you. I've always told you how much I love being with you. I really am so terribly sorry. I wish I could take it all back."

**41 In his record of interview the respondent maintained that he had not at any time realised that Ms X's son was in the bed.

42 The police attended the respondent's premises that same morning (Saturday 10 September 2005). A record of interview was conducted that morning in which the respondent gave no comment responses. A search warrant was executed on the respondent's premises during that day and his mobile phone and two mobile phone bills were seized. On Tuesday 13 September 2005 the respondent returned to the police station voluntarily. A further record of interview was conducted in which the respondent made detailed admissions.

43 Ms X has prepared a victim impact statement. That statement indicates that as a result of this incident she has become nervous, anxious, angry and depressed. The victim says:**

"He has made me a mess, I've lost all function of living in the outside world. I'm having really bad nightmares and can't sleep normally."

"I am very scared to sleep, especially at night as the assault happened at night when I was asleep."

"I'm frightened all the time that he will come back."

44 As the sentencing judge observed, there is no doubt that the experience of being assaulted in this way in the middle of the night whilst asleep in one's bed would be terrifying. The sentencing judge rightly pointed out that the added humiliation of such a vile invasion of Ms X's home and person made this an extremely serious set of circumstances.

Proceedings against the respondent, events whilst proceedings were pending, the plea hearing and the sentence

**45 On 20 March 2006 the respondent was committed to stand trial on a charge of rape and other charges.

46 In about April or May 2006, about eight months after the offences, the respondent was diagnosed with bipolar disorder and was prescribed medication for that condition and for depression.

47 In July 2006 the respondent commenced consulting Ms Syndon Barabash, a counselling psychologist and family therapist. In a report tendered to the sentencing judge Ms Barabash spoke positively of the respondent's attitude to treatment and suggested that the respondent is now prepared to work on a "deeper therapeutic level to ensure his life will more permanently change".

48 As indicated, the respondent had been committed for trial on a charge of rape and on other charges. On 20 November 2006 a presentment was filed at the County Court charging the respondent with aggravated burglary and indecent assault. The respondent pleaded guilty to those charges.

49 On 11 December 2006 the respondent was referred to the clinical psychologist, Dr Paul Grech. Dr Grech had three consultations with the respondent for a total of approximately five hours. He was provided with a psychological report by Ms Barabash and reviewed more than 50 pages of medical documentation concerning his prior medical history. Dr Grech also spoke to the respondent's general practitioner and to Ms Barabash.

50 The plea hearing began on 19 January 2007 and then resumed on 25 January 2007 to hear oral evidence from Dr Grech. On 25 January counsel for the Crown made a submission that "all sentencing options are open because of his background" and went on to say "that a community based order for an extended period of time might be satisfactory and suit the requirements of the law, as may be an intensive corrections order".

51 The matter was listed again on 31 January 2007 at the request of the Crown. On that occasion counsel for the Crown indicated that the offences were such as ought to attract an immediate custodial term and that "a suspended sentence would be outside the range". Whilst this was characterised by counsel as clarification of the Crown's position, it seems to me it was a change in position.

52 On 7 February 2007 the sentencing judge sentenced the respondent to nine months' imprisonment on each of the charges. The sentence on the aggravated burglary charge was wholly suspended for a period of three years. The sentence on the indecent assault charge was ordered to be served by way of intensive correction.

53 As I indicated previously, the sentencing judge's reasons for these sentences were detailed and comprehensive. Her Honour expressly referred to the respondent's apology for his actions, his full admissions, the maximum penalties for the offences, the effect on the victim, the seriousness of the circumstances, the respondent's prior convictions and personal circumstances, the psychological evidence, the expressions of remorse, the respondent's guilty pleas, the respondent's moral culpability in the circumstances and his prospects of rehabilitation, the issues of both general and specific deterrence, the need for denunciation of conduct of this kind, and the need for protection of the community.

54 Her Honour was of the opinion that it was appropriate to moderate general and specific deterrence to take into account the impact of the respondent's own childhood abuse and the respondent's previously undiagnosed and untreated bipolar disorder.

55 Both Ms Barabash and Dr Paul Grech expressed positive opinions in relation to the respondent's prospects of rehabilitation.

56 Dr Grech addressed the respondent's childhood history at length. He reported that he presented as a "genuine victim of sexual and physical abuse during childhood". Dr Grech conducted a comprehensive cognitive appraisal involving IQ and other tests and concluded that for someone who had not completed high school the respondent's intellectual capacity "could almost be considered to be freakishly high". Dr Grech concluded:**

"Somewhat contrary to what may reasonably appear to objective outsider observers as an intrusive, fear provoking, and, at the very least a presumptuous, if not arrogant act, the examiner's perspective of the defendant's behaviours is more benign against the context of an increasingly large body of knowledge of the range of sexual offending and determinations of sexual offence risk".

**57 Dr Grech said there was no evidence to support the contention that the respondent harboured ill-will towards the victim or intended to hurt or scare her. He expressed the opinion that his "errant actions are best understood in the context of his childhood sexual abuse, the specific patterns of behaviour that were reportedly a feature of his former relationship with the victim and his reported drunkenness at the time of the commission of the offences". Dr Grech expressed the opinion that the respondent was now "appropriately addressing" underlying issues that contributed to his offending and in that context he referred to his medication for bipolar disorder. He expressed the view that he is most unlikely to re-offend.

58 There are some aspects of the tendered reports from Ms Barabash and from Dr Grech which are not positive. It seems that the respondent told Ms Barabash that whilst he had had the intention of giving oral sex to the victim "he did not do this and left". Ms Barabash then reports that the respondent described the victim as "vindictive and spiteful". Similarly, Dr Grech reports that the respondent denies serious wrongdoing and is preoccupied with "the victim's agenda". Dr Grech expresses the view in his report that this attitude is not helpful.

59 A pre-sentence report was obtained, as provided for by s 19 of the Sentencing Act 1991. The report concluded that the respondent was suitable for an intensive correction order. The report was very positive in relation to his attitude on interview. The report did note that given his full time employment and his weekly visits with his son it was thought that he "would find it extremely difficult to complete the required 12 hours per week of community work".**

**60 By a notice of appeal dated 5 March 2007 the Director of Public Prosecutions appeals against each sentence on the ground that it is manifestly inadequate.

61 The DPP's submission on appeal was simple. It amounted to this. The sentences do not reflect the objective seriousness of the offending and the need for general and specific deterrence and denunciation. It was submitted that the sentences are so disproportionate to the seriousness of the crimes as to shock the public conscience and that this Court needs to intervene.

62 The respondent's submissions referred to the authorities concerning appeals on sentence by the Director of Public Prosecutions and addressed the sentencing judge's reasons in detail. It was submitted that given the unusual circumstances present here, all properly considered by the sentencing judge, the sentences on both counts were not outside the range which was properly open. It was submitted that it was quite appropriate for the sentencing judge to moderate considerations of general and specific deterrence given the respondent's impaired mental functioning consequent upon his most disturbed and unhappy personal background. Reliance was placed on the Court's discretion not to intervene even if the sentences were manifestly inadequate. As a fall back position, it was submitted that even if the appeal was allowed, in these most unusual circumstances any increased sentences of imprisonment should be wholly suspended.**

63 The Court was taken to, or was referred to, a number of authorities. There was no relevant controversy as to the legal principles applicable. It seems to me that the relevant principles are as follows:

A DPP appeal should not be brought unless the sentence reveals such manifest inadequacy as to constitute error in principle.[5]
Manifest inadequacy alone will not be sufficient to warrant appellate intervention. The inadequacy must be clear and egregious. The sentence must be so disproportionate to the seriousness of the crime as to shock the public conscience and undermine public confidence in the ability of the Courts to play their part in deterring crime.[6]
On a DPP appeal the offender is exposed to sentencing on a second occasion for the same crime. This is often referred to as double jeopardy. It has two consequences. First, because the offender is exposed to double jeopardy the appellate court must exercise restraint and has an overarching discretion not to interfere even where manifest inadequacy is present. Second, if the appeal is allowed any different sentence to be imposed must allow for the double jeopardy to which the offender is exposed.[7]
Where an offender has not been incarcerated the threat of an immediate custodial sentence exacerbates the element of double jeopardy attendant upon DPP appeals.[8]
The Court must first determine the appropriate sentence without regard to the manner in which the sentence is to be served. A sentencing judge ought not to tailor the sentence to be imposed according to the manner in which he or she considers the sentence should be served.[9] Thus, it would be wrong for a sentencing judge to first determine that the appropriate course was an intensive correction order and a suspended jail sentence and to then tailor the terms of the sentences so as to enable that outcome to be achieved.
An offender's impaired mental functioning has potential relevance to sentencing in at least the following six ways:

(ii) it may have a bearing on the kind of sentence to be imposed,

(iii) general deterrence may be moderated or eliminated,

(iv) specific deterrence may be moderated or eliminated,

(v) it may mean the sentence will weigh more heavily on the offender,

(vi) there may be a risk that imprisonment will have an adverse effect on the offender's mental health.[10]

64 Pursuant to s 19(4) of the Sentencing Act 1991, an intensive correction order cannot be made if the aggregate period of imprisonment imposed in respect of all offences in the same proceeding exceeds one year.

**65 It seems to me that the submission made by the DPP that these sentences failed to appropriately reflect the objective seriousness of the offending must be accepted. The respondent has entered a woman's house by stealth in the dead of night in circumstances where, although he had previously had a relationship with the woman, he had been told not to enter the house that way before the relationship terminated, he knew that the relationship was terminated as far as she was concerned, he knew that she did not want to see him, and he believed she would not have opened the door to him. He has then indecently assaulted her whilst she slept. The sentences are manifestly inadequate notwithstanding the mitigating circumstances.

66 As indicated earlier, that conclusion is not in itself sufficient to warrant intervention. Intervention on a DPP appeal is warranted only where the sentence is so disproportionate as to shock the public conscience and undermine public confidence in the ability of the Courts to play their part in deterring crime. Even then, the appellate court has an overarching discretion not to intervene.

67 Notwithstanding my conclusion as to the inadequacy of the sentences I have concluded that this Court should not intervene. In the very unusual circumstances of this case I do not consider that what her Honour has done is so disproportionate to the seriousness of the crimes as to shock the public conscience and undermine public confidence in the ability of the Courts to play their part in deterring crime. I also consider that this is a case where the Court should exercise its overarching discretion not to intervene.

68 The reasons why I have reached this conclusion are as follows.

69 First, it is impossible to ignore the striking link which exists between the abuse to which the respondent was himself subjected as a child and the offending conduct here.

70 Second, whilst the respondent has a poor criminal history, he has no prior history of sex offences.

71 Third, the offences occurred whilst the respondent's bipolar condition was untreated. The evidence of Dr Grech indicates that it was undiagnosed, or that no definite diagnosis had been made.

72 Fourth, the sentencing judge undertook an extensive plea hearing and clearly gave most careful thought to how best to both protect the community and enhance the action already taken by the respondent to address his psychological problems. The sentencing judge was most mindful of the effect of these offences upon the victim. There are unusual mitigating factors here which the sentencing judge set out in full and which I will not repeat.

73 Fifth, the sentencing judge has by her sentences produced a position whereby the respondent is to be subjected to the strict regime of an intensive correction order for nine months, and to have a jail term of nine months effectively hanging over his head for three years. If the sentences are increased to an aggregate period beyond one year, as is inevitable if the appeal is allowed, an intensive correction order will not be open. Under the intensive correction order the respondent is required, amongst other things, to attend a specified community corrections centre for 12 hours a week, to do unpaid community work, and to undergo such psychological, psychiatric, drug or alcohol treatment as is directed by the regional manager. If the Court intervenes now this regime will be lost. It is most important from the point of view of the community and from the point of view of the victim, as well as from the point of view of the respondent himself, that the respondent continues the treatment for his psychological conditions which he has now embarked upon. Her Honour's sentences will encourage that to occur. The sentences are manifestly inadequate, but to intervene now will, it seems to me, be likely to produce more harm than good in this important respect.

74 Finally, the double jeopardy consideration is important.

75 The respondent pleaded guilty in November 2006. Immediate incarceration was an imminent prospect from that point onwards. His plea hearing occurred over two days in January 2007. At that stage the Crown submitted that all options, including intensive correction and a suspended sentence, were open. The Crown then arranged for the matter to be re-listed on a third date and informed her Honour of a different position.

76 In the course of the plea hearing her Honour made it clear that she considered that the offences were of such a character that "immediate imprisonment is the starting position". Her Honour did order a pre-sentence report on 25 January 2007, which might have been taken as a precursor to an intensive correction order given the provisions of s 19 of the Sentencing Act 1991, but when doing so she said that she had not determined upon that course. "Far from it", she observed.

77 Two weeks after the third date of the plea hearing her Honour sentenced the respondent.

78 One month later, on 7 March 2007, the respondent was served with the DPP's notice of appeal. On the hearing of the appeal this Court was told that during that one month period the respondent had attended as required pursuant to the intensive correction order. This Court was also told that upon notification of the appeal the order would have been suspended under s 24 of the Sentencing Act 1991.

79 The hearing of the appeal took place on Tuesday 7 August 2007, some five months after service of the notice of appeal. This Court was told the respondent had continued to work with the same employer who had given him the positive reference tendered to the sentencing judge, and that he had been promoted.

80 In the circumstances outlined, my sixth and final reason is the fact that to now impose immediate incarceration on the respondent would be to visit upon him a greater punishment than would have been the case if that sentence had been imposed at the outset.

81 The circumstances of this case were aptly described by her Honour as most unusual. In these most unusual circumstances it seems to me that the Court should not intervene.**

[1] See R v AWF [2000] VSCA 172; (2000) 2 VR 1, [34] (Chernov JA).

[2] [2007] VSCA 102 esp, [20].

[3] See DPP (Vic) v Leach (20030 [2003] VSCA 96; 139 A Crim R 64, 74-5 (Eames JA).

[4] R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA); DPP v Josefski (2005) 13 VR, [64] (Chernov JA); DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3 (Redlich JA).

[5] DPP v Bright [2006] VSCA 147, [10].

[6] DPP v Bright [2006] VSCA 147, [10].

[7] DPP v Bright [2006] VSCA 147, [10].

[8] DPP v Coffey [1999] VSCA 146, [37].

[9] DPP v Bright [2006] VSCA 147, [27] and ss 19(3) and 27(3) of the Sentencing Act 1991.

[10] R v Verdins [2007] VSCA 102.

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