DPP v C P D [2009] VSCA 114

Court of Appeal (Vic)|2009-05-28|Before: MAXWELL P, REDLICH JA and ROBSON AJA

CRIMINAL LAW - APPEAL - SENTENCE - Director's appeal - Sexual penetration of child under 10 - Indecent act with a child under 10 - Victims three and six respectively - Total effective sentence of two years six months, with a non-parole period of 15 months - Whether manifestly inadequate - Significance of admissions - Significance of representative counts - Sentencing range - Current sentencing practices - Appeal allowed - Resentenced to six years' imprisonment and a non-parole period of four years.

CRIMINAL LAW - SENTENCE - Sexual penetration of child under 10 - Adequacy of current sentencing practices - Whether consistent with statutory maximum - Discretion to impose a sentence higher than current practice - (2008) 18 VR 391 - (Vic) , (b).

1 This appeal by the Director of Public Prosecutions concerns sentences imposed for serious sexual offences against two very young girls, one aged six, the other aged three. The respondent ('CPD') pleaded guilty to two counts of sexual penetration of the three year old girl and two counts of sexual penetration of the year old. One of the sexual penetration counts in each case was a representative count. CPD also pleaded guilty to a representative count of committing an indecent act with the six year old girl, in that he made her touch his penis. He also pleaded guilty to one representative count of committing an indecent act with the three year old girl, in that he touched her vagina.

2 The maximum penalty for sexual penetration of a child under 10 is 25 years' imprisonment. The maximum penalty for committing an indecent act with a child under 16 is 10 years' imprisonment. The total effective sentence imposed for all six offences was two years and six months, and the non-parole period fixed was one year and three months.[1]

3 The Director has appealed to this Court on the ground that the sentence is manifestly inadequate. He challenges the individual sentences for the separate counts, the orders for cumulation, the total effective sentence and the non-parole period.

4 In our view, for reasons which follow, the sentence imposed on CPD was manifestly inadequate, to the extent that error of principle is disclosed.[2] The appeal must therefore be allowed.

5 We would resentence CPD to a total effective sentence of six years with a minimum term of four years. This sentence is arrived at after making the conventional reduction for double jeopardy where a person is resentenced following a successful Crown appeal. As explained in paragraph [69] below, we are also constrained, by considerations of fairness to CPD, to resentence him consistently with current sentencing practices.

6 The Crown's submission emphasised the large discrepancy between the sentences here imposed and the maximum penalty of 25 years for the offence of sexual penetration of a child under 10.[3] When, at the Court's request, counsel for the Director identified what was said to be the sentencing range appropriate to the case, the range put forward for the penetration offences still bore little apparent relationship to the maximum (see Table B). The range advanced was said, however, to be constrained by current sentencing practices.[4] (It should be noted that the sentences specified in the Director's submission on range were not adjusted to take into account the discount which this Court would allow on account of double jeopardy, should the appeal succeed.)

7 The Sentencing Act 1991 (Vic) requires the sentencing court to have regard both to the applicable maximum penalty and to current sentencing practices for the offence. The same applies to this Court, both in deciding whether (in the case of a Crown appeal) the sentence is manifestly inadequate and, if the discretion is reopened, in resentencing.[5] As explained in R v AB (No 2),[6] however, the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum. Where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences.[7]

8 We have collected together in Tables A, C and D statistics and appeal decisions which give an indication of current sentencing practices for this offence. When regard is had to the statutory maximum penalty of 25 years' imprisonment, a real question arises as to the adequacy of current sentencing for this offence.[8]

9 That question was not ventilated in this appeal, however. Counsel for the Director argued the ground of manifest inadequacy solely on the basis of current practices. As the Court pointed out during the hearing of the appeal, if the Director wishes to agitate that question in a future appeal, the notice of appeal will need to make clear how the question arises, and the Court will need to be provided with proper materials to enable the issue to be determined.

10 CPD is now 42. He turned 38 during the period of offending against the two girls. He had met their parents at parenting classes in 1996. They became good friends and, on occasions, CPD would babysit the children of the family.

11 The conduct covered by the representative counts (sexual penetration and indecent act) occurred in the period 1 January - 31 December 2004, at the family's home. CPD stayed there from time to time. He knew the girls 'felt safe' with him. He was a trusted friend of the family.

12 In the case of both the six year old victim ('J') and the three year old victim ('T'), the representative count of sexual penetration involved CPD penetrating the victim's vagina with his tongue. In relation to J, as already mentioned, the representative count of indecent act involved J being made to touch CPD's penis. In his interview with police, CPD confirmed that he had ejaculated on J. In relation to T, the representative count of indecent act involved CPD touching her vagina with his hand.

13 In relation to each victim, there was also a single, discrete, count of sexual penetration. In the case of J, it was lingual penetration; in the case of T, digital. These offences were committed while the girls were staying at CPD's home. CPD was then looking after the girls at their parents' request, after their mother had had to go to hospital urgently because of bleeding in the course of her final pregnancy.

14 Each of the girls had, to CPD's knowledge, been sexually abused previously by another man. As will appear, this resulted in both girls acting out sexualised behaviour. CPD's knowledge of the prior abuse 'generated an image in his mind' and, according to the expert evidence, CPD acted on the 'sexual impulses generated by the image in his mind.' [9]

15 The sentencing judge described the offences as 'extremely serious'. Her Honour went on:

Ordinarily in cases such as this, principles of general deterrence, denunciation, condemnation and protection of the community are dominant sentencing factors. In addition, there are a number of aggravating factors. Specifically:

(1) The girls were either violated in their own home or at your home when you were in a position of trust, standing in the shoes of a parent or guardian.

(2) Both girls were extremely young. J was six, going on seven, and T was three, going on four.

(3) You knew the girls had been previously sexually abused and that they were vulnerable. They were acting out sexualised behaviour and you took advantage of that for your personal sexual gratification.

None of these findings was disputed on the appeal. Senior counsel for CPD conceded, in particular, that he could not challenge the finding that CPD knowingly took advantage of the girls' vulnerability.[10]

16 Her Honour then turned to consider the effect of the offending on the victims. A victim impact statement had been prepared for each of them by one of the foster parents with whom they had been staying since they disclosed the offending in early 2007. The judge described as 'quite disturbing' the statement filed on behalf of the six year old victim. Her Honour summarised its content as follows:

J fears that you will come and find her and commit further offences against her. She is now aged 10 and suffers extreme anxiety. She takes anti-depressant medication. She has difficulty relating to other children and acts out inappropriate sexualised behaviour. She has trouble sleeping at night. She needs to be closely monitored and supervised at school for her own sake and for the protection of other children from her. In assessing the impact of your offending on J, I cannot ignore the fact that you were not the first to sexually assault her and that she was already acting out sexualised behaviour before you committed these offences, as I have already said. It is impossible to disentangle the effect your conduct has had on her. Nevertheless, I am satisfied that your conduct materially contributed to her current problems.

17 Her Honour also described as 'disturbing' the contents of the statement made on behalf of the three year old victim, which she summarised as follows:

T is now aged 7. She too suffers from anxiety and finds it difficult to relax outside her home. She has difficulty maintaining friendships and despite being scared about sexual matters, is displaying a preparedness to offer sexual favours to her carers to gain privileges. In assessing the impact of your offending on T, I cannot ignore the fact that you were not the first to sexually assault her and that she too was already acting out sexualised behaviour before you committed these offences. It is impossible to disentangle the effect your conduct has had on her. Nevertheless, I am satisfied that your conduct materially contributed to her current problems.

18 It is, indeed, deeply disturbing that children so young should have already had to endure such suffering and should have had their emotional development so seriously compromised. The effect on the victim, particularly in offences of this kind, is recognised as a significant sentencing consideration. In DPP v DJK,[11] which concerned sexual offences against a child, Vincent JA spoke of the important part played by victim impact statements in achieving

what might be termed social and individual rehabilitation ... of those persons who have sustained loss and damage by reason of the commission of an offence. ...

The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.

Eames JA agreed that, in sentencing, the interests of the victims and the consequences to them of the criminal conduct were matters of particular importance.[12]

19 Each of the victims made a video taped ('VATE') statement to police. The statements were in evidence before the sentencing judge.[13]

20 At the time of her interview, J was aged nine. She told the police officer interviewing her that CPD had put his penis in her vagina and had ejaculated. She said this had happened both at her own house and at CPD's house. She described CPD as having made her touch his penis. 'He just grabbed my hand and put it on there'. Twice in the interview, J said that CPD had told her not to tell anyone about what had happened.

21 At the time of her interview, T was aged six. She said CPD had pushed his penis into her vagina in a way which was painful. She said this happened 'lots of times'. She had told him not to do it but 'he never stopped'. She described CPD having come in while she was in the bath and having put his finger into her vagina. This was at CPD's house.

22 These allegations were taken up with CPD in the formal record of interview. The following exchanges are relevant:

... Now, in 2004, going back two a bit years ago, [J has] alleged that you've touched her and sexually assaulted her at her ... farmhouse, where she was living with her mum and dad.
Right.
35 What - what do you say about that?
Yeah, possibly, yes.
36 What do you mean, "possibly, yes"?
Well, I did I think, yeah.
37 Alright. What - what did you do - can you tell me what you

... touched her, licked her, maybe ejaculated on her, stuff like that, yeah.
38 Okay. I'll - I'll go through it. [J has] stated that you've

squeezed and pushed your - your penis into her vagina. What do you say about that?

Never - that - that never act - , never actually went in.
39 Didn't go in? Did - - - ?

40 Did you attempt and try and put it in?
No, 'cos she was - - -
41 She was what?
No, didn't want - didn't want to, and I said, "Yeah, alright, okay." That was as far as it went.
42 Okay. Did you put your fingers in her vagina?
Um - - -
43 Or finger?
Just - just tried - you know, just touched her like that, yes, but - - -
44 Yes.
Yep. But then she said, "It hurts" so I just - - -
45 Took it out?
Took my hand away.
46 Okay. And then did you perform oral sex on her - like, give

Yes.
47 What - what - can you explain what you would do then?
No, I can't really.
48 Okay.
Yeah.
49 I'll put to you that you - you've put your head under the blankets, alright, and you licked her on the vagina.
Yes, ... ... yeah.
50 Okay. And had you asked her to touch you on the penis?
Yes. Alright, yeah.
51 Okay. And did you ejaculate or come on J?
Yes, I have.

23 When asked how many times he had 'done this to J', CPD answered, 'A few times'. Later in the interview, CPD said that he thought the oral penetration had taken place around five times at J's house, and 'once or twice' at his own home.

24 In relation to T, CPD admitted that he had touched her 'once or twice'. Asked whether he had digitally penetrated her, he said, 'didn't really want to try too much, though. She was - yeah - didn't want to do it.' He admitted he had licked T on the vagina. When asked how often this had occurred, CPD said he could not remember. When asked whether he had told either of the girls not to tell anyone else, CPD answered, 'Not really, no.'

25 CPD was originally charged with eight counts of sexual penetration of a child under 16, and four counts of committing an indecent act with a child under 16. At the committal, which proceeded by way of hand up brief, CPD reserved his plea in relation to each charge. In the event, as noted earlier, CPD pleaded guilty to four counts of sexual penetration and two counts of indecent act. Counts of penile penetration which had originally been laid were dropped as part of the negotiations leading to CPD's pleas of guilty. (This fact was - inappropriately - relied on by the Director in his written submission as reducing the mitigating effect of CPD's admissions. When questioned by the Court, counsel for the Director properly acknowledged that it was irrelevant to the appeal).

26 Defence counsel on the plea laid particular emphasis on the fact that CPD had 'confessed to crimes which ... were not complained of by the victims'. This was a matter to which the sentencing judge paid particular attention in her sentencing remarks. In relation to count 2, her Honour said, 'This crime only came to light because you frankly confessed to police what you had done'.[14] In relation to count 4, her Honour said, '[t]he evidence against you comes entirely from your Record of interview and guilty plea.'[15]

You have avoided the cost and inconvenience of a Special Hearing. You have spared these young children the inconvenience, embarrassment and ordeal of giving evidence at such a hearing;
You have avoided the cost of a trial and spared other witnesses the inconvenience and ordeal of giving evidence at trial.
There is true value in your pleas:

- Both VATE interviews are somewhat vague and lacking in detail. I have already identified the charges in respect of which no complaint was made (counts 2, 3, 4 and 5);

- I have also specifically identified the counts in respect of which there was no evidence in the depositions to prove penetration occurred (counts 2, 3 and 5). These charges only came to light because you made a full confession to police;

- Had you not cooperated with police and made the admissions that you did, it is unlikely that you would have faced any more than the two charges based on the complaints contained in the VATE interviews;

- The outcome of any jury trial can never be assumed, particularly taking into account where the victims are of such a tender age and where the principal allegations are vague;

- But for your admissions in the Record of Interview, the girls' evidence, such as it was, was uncorroborated.[16]

...

28 This aspect of the case was at the forefront of the submissions made on CPD's behalf on the appeal. It was submitted for CPD that he had -

(a) admitted offences in respect of which no evidence, apart from his admissions in the record of interview, stood against him. (This was a reference to counts 2, 3, 4 and 5, and the characterisation of counts 1 and 4 as representative counts); and

(b) offered to plead guilty to offences of sexual penetration in circumstances where there was no evidence at all sufficient to prove that penetration had occurred. (This was a reference to counts 2, 3, and 5, and to the characterisation of counts 2 and 5 as representative counts).

In the face of no relevant evidence, the respondent chose to expose himself to a maximum penalty of 25 years' imprisonment on Counts 2, 3 & 5 ... and aggravation in penalty due to the status of Counts 2 & 5 as representative counts.

An offender will be entitled to a substantial discount in sentencing in circumstances where because of his co-operation with police he has divulged offences that would otherwise have likely been kept hidden. Such confessions are entitled to be viewed as a sincere attempt on the offender's part to rehabilitate himself. The community benefits not only in having the offending brought out in the open; the community is also protected by the appellant's recognition of his problem and sincere resolve to seek reform in the face of extreme personal cost.

In support of this submission, reliance was placed on what was said by Street CJ in R v Ellis,[17] and by Kirby J in AB v The Queen[18] ('AB') and in Ryan v The Queen.[19]

30 Senior counsel for CPD argued that CPD's pleas of guilty were of 'profound significance', for two reasons. The first was that 'this man prosecutes himself'. Secondly, it was said, there are serious delays in criminal matters coming on for trial in the County Court, such that a plea of guilty should be viewed as of great benefit to the system of criminal justice as a whole. On both grounds, senior counsel submitted, CPD had been entitled to 'really big discounts', totalling at least 50 per cent. The entitlement to such a large discount should be seen as explaining why 'on their face these are very light sentences'.

31 In our view, this submission overstated the position in several important respects. First, this was not a case where the offender had come forward voluntarily to disclose offences which would otherwise have been unknown. Rather, CPD made his admissions only after being required by police to attend for a formal interview and to respond to the serious allegations which the victims had made in their VATE interviews.[20] Though he denied one form of vaginal penetration (penile), he admitted another (lingual).

32 Secondly, as appears from the extract set out above,[21] CPD admitted having attempted penile penetration of J: '... never actually went in ... [J] didn't want to ...'. Moreover, he admitted digital penetration of J to the point where she said 'It hurts', at which point he desisted. Likewise, CPD said that he had tried to penetrate the younger girl, T, with his finger, but he 'didn't really want to try too much [because] she ... didn't want to do it'.[22] He stopped doing it when she said no. None of these matters was the subject of a count to which CPD pleaded guilty, but they give important context to his denials as well as to his admissions.

33 Thirdly, the characterisation of count 1 as a representative count did not, as the submission for CPD contended, rest on CPD's admissions. On the contrary, as the prosecution's opening pointed out, J's answers in the VATE interview made clear that the conduct had occurred on more than one occasion, both at J's parents' house and at CPD's house. Fourthly, the significance of the admissions had to be balanced against the fact that count 6 was established by T's specific allegation of digital penetration in the bath, as to which CPD made no admission.

34 The argument based on the desirability of reducing delays in the County Court relied on what the New South Wales Court of Criminal Appeal said in Winchester,[23] as follows:

[L]eniency is afforded ... as a result of purely utilitarian considerations ... in order to encourage early pleas of guilty so that the criminal list is more expeditiously disposed of and so that other cases, in which there is a genuine issue to be determined, will be brought on for hearing without delay.[24]

What their Honours were saying here is, however, no different in substance from the conventional formulation of the 'utilitarian' advantages of a plea of guilty, that is, that the plea of guilty saves the State (in its judicial arm) the time and cost of the conduct of a trial. One probable consequence of time being saved is that other trials will start sooner. These are important considerations, and the sentence discount must reflect their importance, but we reject any suggestion that the sentence discount for a guilty plea should increase as the criminal lists grow longer.

35 It was undoubtedly the case that CPD's admissions and his plea of guilty entitled him to a significant sentencing discount. But, for the reasons we have given, we reject the proposition that he was entitled to 'really big discounts' of at least 50 per cent.

36 As already noted, four of the six counts for which CPD was sentenced were representative counts. The judge made the following relevant comments:

Count 1 (indecent act): 'Although it is not clear on precisely how many occasions this happened ... you told police in your Record of Interview that it had happened "a few times, maybe"';[25]
Count 2 (sexual penetration): 'The Crown alleges that this activity took place on more than one occasion but the evidence is far from clear';[26]
Count 4 (indecent act): '... you told police it happened once or twice, "but I think that's about it". On the material before me I can be satisfied beyond reasonable doubt that in addition to the occasion pleaded, there was only one further such episode.';
Count 5 (sexual penetration): 'It is not clear if in fact this occurred on more than one occasion and, if so, on how many such occasions. ... Your counsel has specifically conceded on your behalf that this happened on more than one occasion.'[27]

37 Counsel for the Director submitted on the appeal that it was an 'aggravating' feature that these were representative counts. Counsel for CPD, on the other hand, argued that CPD was able to call in aid in mitigation the fact 'that very few other occurrences of offending ... turned counts 1, 2, 4 & 5 into representative counts.'

38 With respect, neither of these contentions was correct. As recent decisions of this Court have made clear, the fact that a count is a representative count has a twofold relevance to sentencing. First, it is to be understood as the absence of a mitigating factor, in the sense that a plea of guilty to a representative count prevents the defendant from claiming 'any leniency that might have been permitted on the basis that the offence was an isolated event.'[28] Secondly, the sentencing court must look at the conduct represented by the count in order to judge the offending in its full context, 'which is likely to bear upon matters such [as] extent of culpability, need for specific deterrence and prospects of rehabilitation.'[29]

39 In The Queen v CJK,[30] Warren CJ (with whom Vincent and Neave JJA agreed) summarised her conclusions in these terms:

In my view, it is appropriate to be cautious about the use of terms such as aggravating in sentencing. I do not consider that representative counts should be seen as aggravating per se; nor should the representative nature lead to an inappropriate sentence. However, a sentencing judge is permitted to look to the whole picture, including the conduct which is represented in the count. In light of that conduct, the sentencing judge imposes the appropriate and just sentence in all the circumstances. If those circumstances render the offence more serious and lead to a higher sentence than would otherwise have been imposed in the absence of the representation, then it is not unreasonable or erroneous to observe it as an aggravating feature, even if only 'colloquially'. However, it would be desirable to avoid the expression in the context of sentencing on a representative count.

40 Warren CJ noted the following statement by Nettle JA in Director of Public Prosecutions v EB:

[The relevant counts] were representative counts which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count. Admittedly, that notion is not without its conceptual difficulties because of the principle that a prisoner is not to be punished for uncharged acts. But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a representative offence is likely to attract a greater sentence than an isolated offence. [31]

Her Honour also pointed to the relevance of the impact on victims.

Due to their representative nature, the impact of the offending upon the victim of the representative count is highly likely to be greater than for the victim of a single but comparable count. Each case will turn on its own facts. That said, there are sound policy reasons for a judge when sentencing to look at the "whole picture" of the offending represented in the representative count to ensure the impact on the victim of that count is adequately reflected in the sentence imposed.[32]

41 To the extent that the sentencing decision is influenced by the nature and extent of the represented conduct, it is both necessary and desirable that the judge 'identify some level of detail of the conduct represented by the count ... so that the "whole picture" can be seen.'[33] Plainly enough, however, how much a sentencing judge will be able to ascertain about the 'full circumstantial context' will depend on the material before the court. On a plea, the Crown summary will typically function as a statement of agreed facts which will both describe and confine the context for this purpose.

42 In this case, in respect of each of the four representative counts the Crown summary adopted the same short form of words: 'This happened on more than one occasion. Refer to the prisoner's Record of Interview Q & A ... .' On the plea, there was no elaboration of this assertion by the prosecutor and no challenge to it by defence counsel.

43 The sentencing judge correctly stated the applicable principles. She then said:

I have already referred to the deficiencies in the Crown case concerning the extent of your conduct represented by those counts. I am not satisfied beyond reasonable doubt that the acts the subject of these counts were committed on more than one other occasion.[34]

That conclusion was not challenged on the appeal. Nor could it have been, given the brevity of the Crown summary on the point.

44 But it is not a finding which assists CPD, in our view. That he sexually penetrated each of the girls on more than one occasion seems to us only to underline the seriousness of CPD's conduct. Likewise the fact that he committed an indecent act with each of them on more than one occasion. In other words, far from desisting after his first act of sexual abuse of one of the girls, CPD went on to abuse that girl on three more occasions and abused her sister on four other occasions. It is relevant to note here the admission made by defence counsel, recorded by the sentencing judge, that CPD committed all of these crimes for his own sexual gratification.

45 On the plea, and in the reasons for sentence, reliance was placed on the opinions expressed by a forensic psychologist, Ms Elizabeth Warren, in a report prepared for CPD's solicitors. Ms Warren recorded that CPD had been expelled from high school in Year 10. He was then transferred into special school education until he turned 16. Intellectual testing showed him to be of 'low average' IQ, ranked at the 21st percentile:

The result indicates a specific relative literacy deficit whereby he had a limited vocabulary range and some difficulty with expression of ideas. However, his overall comprehension was reasonable and well sufficient for everyday functioning.

He married, but cohabited for only eight months and was subsequently divorced. He had subsequent relationships, but none subsisted at the time of the offending.

46 According to Ms Warren's report, CPD gave the following account of the offending:

[CPD] made ... ready acknowledgements of his sexual behaviour towards the 2 young girls during this assessment. He further discussed how the children had been previously similarly ill-treated some months previously when the father of the children had befriended a man and invited him to stay with the family for a few weeks. During those few weeks this man apparently sexually assaulted the children as disclosed by the children to [CPD] and their parents. [CPD] stated the man who assaulted the children subsequently died by suicide completed by gassing.

[CPD's] assault to the children began some time after he began staying most weekends with the family. He had known the children since they were born from association with their parents when they met at parenting classes. He described how the children would "... do a run through to my bedroom, it started with tickling then extended to the sexual. I didn't hurt them physically but I broke their trust, they had known me since they were born, I feel sick and what I did was sick. I've had death threats in my unit and been hit several times around the ear. I'll start a sex offender course when I get to Ararat, the former molester gassed himself, the kids are getting counselling."

The psychological mechanism by which he progressed to sexual behaviour was grounded in his knowledge of the recent abuse to the children, which generated an image in his mind, combined with the children demonstrating some sexualised behaviour as often occurs in children who have been abused. Rather than inhibit his sexual impulses generated by the image in his mind, when the physical proximity to the children increased, he acted on those impulses. There are no indications of chronicity or longevity of aberrant desire towards children, but the time span of his offending and his behaviour does warrant diagnosis of paedophilia with criteria of behaviour involving sexual activity with a prepubescent child over a period of at least 6 months. The behaviour can cause distress to the perpetrator but not always, in this case he was disturbed by his actions.[35]

48 As to the risk of CPD re-offending, Ms Warren said:

As can be seen from information in the above report, this man has several characteristics that typically predict further offence, either sexual or generic. He has had episode - although not repeating - of major mental illness of severe depression. He has relationship problems as defined by difficulty forming and maintaining stable intimate relations. He has past non-violent offending and his post release plans while not unrealistic in the short term are dependent upon the health and acceptance of his mother, both currently in place but not necessarily reliable in the longer term. Telephone discussion with his mother provided some helpful information confirming some early learning difficulty that led to the special school placement although she stated could not recall any other details given the length of time that had elapsed.

Positive aspects are that there was a decade without offending from 1995 onwards, and his connections to the community are reasonable in the form of his bingo which provides satisfying social outlet for him - he is not isolated. He is keen to begin treatment aimed at increasing his insight into his behaviour and preventing any recurrence. He denies any ongoing felt desire or attraction towards young people, in this case female. His risk of re-offence could be reduced by a period of post release supervision with periodic follow up for some years. Other helpful circumstances to reduce recidivism are connection with a peer support group that can provide valuable support and supervision with potential to detect and treat via group support - alternatively report to those that could intervene, if there is observed to be any lapse in stability.

He impresses as with a cognitive appreciation of the wrongness of his behaviour towards the children but some lack of emotional connection or empathy. This could be a useful aspect of focus in sex offender therapy.

I accept the expert opinion of Ms Warren. I am satisfied that whilst you do pose a moderate risk of re-offending, these risks can be mitigated to a large degree because you acknowledged your wrongdoing and because of your positive attitude towards treatment and therapy. I am satisfied that you do have the intellectual capacity to benefit from treatment and programs that you will undertake while in custody, thereby reducing the risk of your re-offending.[36]

This was, with respect, an exemplary risk assessment. Quite properly, her Honour did not focus on the diagnosis of paedophilia, a diagnostic label which by itself provides little or no assistance to a court.[37] Instead, she based her assessment on what the expert evidence showed about the actual risk of re-offending which CPD presented.

50 The sentencing judge was satisfied that CPD was 'truly remorseful' for his conduct. In addition to the pleas of guilty and the admissions, her Honour considered the following conduct as evidencing remorse:

You fully co-operated with police and readily admitted what you had done, although you could not recall committing Count 6, although you pleaded guilty to it;
In your Record of Interview you told police that you knew what you had done was wrong and was "sick". Further, you told police: "I am very sorry it ever happened. I wish it never happened": (See Question and Answer 183);
You wrote a letter of apology to the victims which you sent to your solicitor, Mr Timms. The letter was apparently lost in the mail, but it arrived in time to be tendered as exhibit 2 on your behalf at the further plea hearing on 11 April. In that letter you apologised to the children and admitted that you should never had done what you did. You acknowledged that you betrayed a trust and that this made you sick to your stomach. You said you will never forgive yourself and that no-one hates you more than you do.
In her report dated 22 March 2008, Elizabeth Warren, forensic psychologist, notes that you have felt guilty and ashamed about your conduct and were disturbed by your actions, although she noted some lack of emotional connection or empathy: See Exhibit 1.

51 Counsel for the Director did not challenge this aspect of her Honour's conclusions.

52 Counsel appearing for the Director on the appeal opened their submissions on manifest inadequacy by drawing attention to the large discrepancy between the sentences here imposed and the maximum penalty of 25 years for the offence of sexual penetration of a child under 10.[38] This is the highest fixed maximum provided for by the Crimes Act 1958 (Vic).[39]

53 Counsel for the Director pointed out that the sentence of 18 months (for each of the representative counts of sexual penetration) constituted only six per cent of the maximum; and the sentence of 15 months (for each of the discrete counts of sexual penetration) constituted only five per cent of the maximum. The total effective sentence of 30 months' imprisonment for all six counts was only 12 per cent of the maximum available for a single count of sexual penetration. This demonstrated, so it was submitted, that the sentences imposed on CPD were 'out of whack' with the statutory maximum.

54 The fixing of such a high maximum reflects the community's abhorrence of sexual crimes against children. (The maximum penalty was increased in 1997 from 20 to 25 years). In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:

The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.[40]

55 In 1993, Marks J in R v Sposito[41] said:

A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.

56 Subsequently, in R v Wakime,[42] Winneke P referred to 'the tide of community anger and resentment towards crimes which involve the despoliation of children.'[43] Then in R v WEF[44] his Honour said:

This Court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.

In DPP v VH,[45] Callaway JA (with whom Buchanan and Eames JJA agreed) said that 'the sexual abuse of children by persons in a position of trust is intolerable.'

57 The Director's submission relied on statistics published by the Judicial College of Victoria showing that the median custodial sentence for the offence of sexual penetration of a child under 16 was around two years and six months in each of the five years 2001-2 to 2005-6. But the JCV statistics included - without differentiation - sentences imposed for this offence where the victim was aged between 10 and 16, for which the maximum is 10 years or 15 years.[46] As a result, these statistics were of little assistance on this appeal. Fortunately, however, the Sentencing Advisory Council has published separate sentencing statistics for the offence of sexual penetration where the victim is under 10.[47] The key figures are set out in Table A at the end of this judgment. The utility of aggregate statistics is, inevitably, limited by the absence of information about the individual sentencing decisions, as to whether the sentenced person had pleaded guilty or not guilty and whether there were other mitigating or aggravating features which affected the sentence.

58 The contention on a Director's appeal that a sentence is 'manifestly inadequate' is a contention that the sentence imposed was outside the range of sentences reasonably open to the sentencing judge in dealing with a particular offender for the particular offences.[48] The written submission filed on behalf of the Director did not, however, address the issue of the range open to the judge in the sentencing of CPD. Accordingly, early in the hearing of this appeal the court requested counsel appearing for the Director to identify the range applicable to the case.

59 After an adjournment, senior counsel for the Crown made submissions about the appropriate range for the individual counts, the total effective sentence and the non-parole period. For ease of comparison, we have prepared a table which records the various elements of that submission next to the corresponding elements of the sentence imposed by the judge (see Table B).

60 An examination of that table reveals immediately that, even allowing for a significant discount for CPD's plea of guilty and admissions, the sentencing ranges put forward by the Crown for the sexual penetration offences bore little apparent relationship to the maximum penalty of 25 years. When this was pointed out by the Court, senior counsel for the Crown did not demur but said that the Crown regarded itself as constrained in making submissions on range by current sentencing practices for this offence.

'Current sentencing practices' for sexual penetration of a child under 10

61 Table A sets out sentencing information taken from the Sentencing Advisory Council's Sentencing Snapshot No 33 (October 2007). The figures for 2006-07 and 2007-08 have been supplied to the Court by the Council in advance of the forthcoming publication of an updated Snapshot.

62 We have already referred to the well-recognised shortcomings of aggregate statistics. The information in Table A nevertheless permits certain conclusions to be drawn with reasonable confidence. First, most sentences for individual counts of penetration of a child under 10 appear to fall somewhere between 1 and 6 years. The mid-point (whether average or median) is 3 to 4 years. The heaviest recorded sentence for a single count is 6 years and 6 months. Self-evidently, a statistical range with an upper limit of (say) 7 years is difficult to reconcile with the statutory maximum of 25 years.

63 Secondly, even by current sentencing standards the sentences imposed on CPD for the individual counts of penetration were very low. The sentences of 1 year and 6 months for each of the representative counts of lingual penetration, and of 1 year and 3 months for each of the discrete counts of penetration, sit at the bottom end of the statistical range.

64 These conclusions are confirmed by recent decisions of this Court, which we have reviewed for this purpose. Table C summarises appeals against sentence for sexual penetration of a child under 10. The highest sentence for a single count is eight years.[49] Table D summarises appeals against sentence for incest.[50] (In our view, the offence of incest may be viewed for present purposes as being cognate with the offence of sexual penetration of a child under 16, at least where (as here) the offender holds a position of trust and has responsibility for looking after the victim(s). As Batt JA said in R v VZ,[51] incest 'involving breach of trust and dereliction of protective duties ...'.)

65 In our view, for a person convicted of these offences in these circumstances to be eligible for parole after only 15 months, and to be subject to a head sentence of only 30 months, is an outcome 'so disproportionate to the seriousness of the crimes as to shock the public conscience ...'.[52] As we said earlier, CPD was entitled to a significant discount for his pleas of guilty and for the admissions he made in the police interview. But, making due allowance for these significant matters of mitigation, the sentence was lower than could reasonably be justified even within the limits of current sentencing practices.

66 The sentence simply did not reflect the gravity of CPD's offending nor the separate criminality constituted by the offending against two victims. Nor did the sentence take sufficient account of either general or specific deterrence or of the need for public denunciation of child sexual abuse. This offending had, in our view, significant aggravating features. First, the girls were extremely young, and therefore highly vulnerable. Secondly, CPD abused his position as a trusted friend and carer. Had he not been in that position, he would never have had the opportunity to use the girls for his own sexual gratification. Thirdly, he took advantage of the girls' inappropriate sexualised behaviour, itself the result of the previous sexual abuse of which CPD was fully aware.

67 It follows that the sentencing discretion is re-opened, and this Court must resentence CPD. This is a fresh exercise of the sentencing discretion and, like the sentencing judge, we are bound by s 5(2) of the Sentencing Act 1991 (Vic) to have regard both to the statutory maximum penalties and to current sentencing practices.

68 As we have said, on the information contained in Tables A, C and D current sentencing practices for sexual penetration of a child under 10 appear difficult to reconcile with the high maximum set by Parliament. It may be that sentencing courts have not responded to the 1997 increase in the maximum from 20 to 25 years. If that were so, it would follow from the decision of this Court in R v AB (No 2)[53] that in resentencing we would not be constrained by current sentencing practices. If the matter were fully argued on proper material, this Court may conclude, having regard to the increased maximum and other relevant considerations, that a departure from current sentencing practices was required.

69 But there is another critical factor which would, in any case, preclude this court from disregarding current sentencing practices in resentencing CPD. CPD pleaded guilty to these counts. His decision to plead guilty was, it must be assumed, a decision based on an assessment of the likely penalty which would be imposed for the offences. That assessment would inevitably have been based on current sentencing practices in the County Court. It would work a great injustice if this Court were to inflict on CPD, on a Director's appeal, a higher sentence than he could reasonably have anticipated when considering whether to plead guilty or contest the charges. As a matter of basic fairness, therefore, we must resentence CPD consistently with current sentencing practices, making the conventional reduction for double jeopardy.

70 Taking these matters into account, we will resentence CPD as set out in Table E. The total effective sentence will be 6 years. We will fix a non-parole period of 4 years. The directions for partial cumulation take into account, as did the sentencing judge, that CPD falls to be sentenced in respect of counts 3-6 as a serious sexual offender.[54] (The sentence on count 1 is higher than the sentence on Count 4 because the representative nature of count 1 did not depend on CPD's admissions. Likewise, the sentence on count 6 is higher than the sentence on count 3 because count 6 did not depend on CPD's admissions.[55])

CURRENT SENTENCING PRACTICES AND THE STATUTORY MAXIMUM

71 As we have said, it is axiomatic that every sentencing judge - and this Court when it is resentencing - must have regard to the maximum penalty for the offence in question. The maximum penalty is the first in the list of matters which, under s 5(2) of the Sentencing Act 1991 (Vic), the sentencing court is commanded to take into account.

72 The second item in that list is 'current sentencing practices'. There is nothing in s 5(2) which suggests that, where current sentencing practices are out of step with the maximum fixed by Parliament, current practices must prevail. On the contrary, the maximum is Parliament's specification of the parameters within which sentencing for the particular offence must occur. As this Court has held in R v AB (No 2)[56] and in Director of Public Prosecutions v OJA,[57] the statutory requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences when due regard is given to the maximum sentence and other considerations.

73 Sentencing judges are not to be criticised for paying careful attention to current sentencing practices. Not only are they bound by statute to do so but they are naturally concerned to ensure consistency of sentencing from one case to another.[58] After all, the first of the stated purposes of the Sentencing Act 1991 (Vic) is 'to promote consistency of approach in the sentencing of offenders.'[59] Consistency in sentencing is a hallmark of the rule of law.[60]

74 But the significance of the decision in R v AB (No 2)[61] is that a sentencing judge who concludes - as Nettle JA did in that case[62] - that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while giving due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness associated with a plea of guilty, discussed above).

75 In The Queen v AB,[63] Nettle JA (sitting as a trial judge) concluded that sentencing practices for manslaughter had not changed to take account of the 1997 increase in the maximum penalty from 15 years to 20. In his reasons for sentence, his Honour said:

The last of the sentencing considerations to which I am bound to have regard is current sentencing practice, and it is a factor about which views are likely to differ. Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years' imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed ten years and were frequently less, although there were cases in which they ranged as high as 13 years.[64] Following the increase in the maximum to years to 20 years' imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.[65]

For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose. Since the maximum sentence is now 20 years' imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.[66]

76 In dismissing an appeal against the sentence of 15 years' imprisonment, this Court (Warren CJ, Maxwell P, Redlich JA) said:

The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed.[67] It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.[68] Recently, in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v R,[69] where the majority said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[70]

In some cases - and the present is an example - a tension may arise between "sentencing practices" and other matters specified in s 5(2). Another example is where different charges could appropriately have been laid for the same offending conduct and, though the offender is charged with an offence carrying the higher maximum sentence, the statutory maximum of the lesser punitive regime has guided the sentencing court.[71]

As appears from the passages set out above, the trial judge paid close attention to current sentencing practices, including 'the utility of current sentencing trends'. His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased.[72] This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.

How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing[73] but was obliged to give effect to Parliament's decision to increase the maximum penalty.[74] As the maximum sentence is reserved for the worst sort of cases - and this was one - the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by AB.[75]

77 What precisely is meant by 'current sentencing practices' and how are they to be ascertained? In DPP v BGJ,[76] Eames JA (with whom Buchanan AP and Vincent JA agreed) used the phrases 'current sentencing practices' and 'today's sentencing standards' interchangeably. In our view, the phrase 'current sentencing practices' in s 5(2) means, in the context of a particular sentencing task, the approach currently adopted by sentencing judges when sentencing for the particular offence. That is, the inquiry is directed particularly, but not exclusively, at the kinds of sentences imposed in comparable cases.

78 The identification of current sentencing practices for an offence will usually require consideration both of relevant sentencing statistics for the offence and of sentencing decisions in comparable cases. Both the utility and the limitations of sentencing statistics have long been recognised. The importance of comparable cases as a guide to current practice is well illustrated by the decision of this Court in Director of Public Prosecutions v OJA ('OJA')[77]

79 In that case, Nettle JA (with whom Ashley and Redlich JJA agreed) was dealing with sentences imposed for incest. His Honour said:

Although the maximum sentence for incest is 25 years' imprisonment, current sentencing practice is to impose individual sentences of considerably less than that.[78]

To illustrate current practice, his Honour then referred (by way of example) to the decisions in DPP v DJS,[79] R v Taylor[80] and R v DH,[81] noting in each case the essential facts and circumstances and the sentences imposed. After referring to a number of other sentencing decisions 'that might also be considered to be relevant', his Honour concluded that:

[A]n individual sentence of six years' imprisonment is towards the upper end of the range for counts of incest, even after the increase in the maximum penalty to 25 years' imprisonment, and certainly fairly within the range mapped out in DJS.[82]

Like the present case, OJA was a Crown appeal. As in the present case, the Crown in OJA did not argue that the current level of sentencing needed to be increased but submitted that the sentences imposed were manifestly inadequate having regard to current sentencing practices.

80 Nettle JA went on to make a number of other comments about 'current sentencing practices' which are pertinent to the present enquiry. His Honour said:

I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to "current sentencing practices" is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.

Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.

Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low. [83]

81 The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. The need for consistency of sentencing - which is in part achieved by the giving of appropriate weight to current sentencing practices - does not deny the discretion to impose a sentence which is higher than current practice, where the maximum penalty or other considerations indicate that such a course is appropriate.

Table A: Sexual penetration of a child under the age of 10

Principal Sentence (individual sentence imposed for a single count)

Table B**: Crown range compared to actual sentence passed**

Table C: Sexual penetration of a child under 10 (appeal decisions)

Martin Francis Flynn (1993) 68 A Crim R 294

R v Czerniawsky [1995] VSC 43

R v Begg 1997 (unreported, Supreme Court of Victoria, Court of Appeal, 1 July 1997)

R v W E F [1998] 2 VR 385

R v Giordano [1998] 1 VR 544

R v O'Rourke [1998] VSC 255

R v Eaton [1998] VSC 316

R v SSG [1998] VSCA 94

R v Arundell [1998] VSCA 102

R v SBL [1998] VSCA 144

4 (counts 2, 3 and 5); 3 (count 4). Counts 2, 3, and 5 were rep counts

R v DLM [1999] VSCA 6

R v MJ [2000] VSCA 66

R v Dennis [2000] VSCA 81

R v Vella [2001] VSCA 174

R v Garrat [2002] VSCA 160

R v CVP [2002] VSCA 193

Appeal allowed and sentence lowered. Conduct involved incest.

DPP v DJS [2003] VSCA 9

Offender was natural father and step-father. 'Sexual depravity of the highest order deserving condign punishment' [5].

DPP v DJK [2003] VSCA 109

Victim(s) were step-brother of the offender. Such conduct viewed as 'gravely serious' [26].

R v Dent [2005] VSCA 42

DPP v Byrnes [2005] VSCA 63

R v Bowdler [2005] VSCA 246

R v Doran [2005] VSCA 271

R v JMA [2007] VSCA 105

R v NVD [2007] VSCA 230

* Victim under 10 years old for some or all of the offending.

[1] The individual sentences and the orders for cumulation are set out in Table B below.

[2] See Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542-3 (Redlich JA).

[3] [52]-[53] below.

[5] [67], [68] below.

[7] [68], [71]-[74]below.

[8] [62], [68] below.

[10] See further [47] and [48] below.

[11] DPP v DJK [2003] VSCA 109 [17]-[18].

[13] Evidence Act 1958 (Vic) s 37B.

[14] _R v C_PD (Reasons) (Unreported, County Court of Victoria, 21 April 2008) [8].

[20] As to the significance of this distinction, see for example: Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129; (2007) 172 A Crim R 181, 192, 193-4, 202; R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152, 153, 159-60.

[21] See [22] above.

[23] (1992) 58 A Crim R 345, 350 (Hunt CJ, with whom Smart and Grove JJ agreed).

[24] This statement was cited with evident approval by the High Court in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111, 148 fn 89.

[25] R v CPD (Reasons for Sentence) (Unreported, County Court of Victoria, 21 April 2008) [7].

[28] Director of Public Prosecutions v McMaster [2008] VSCA 102; (2008) 19 VR 191, 202 (Ashley JA); The Queen v CJK [2009] VSCA 58 [43] (Warren, CJ) citing DPP v EB [2008] VSCA 127 [13] (Nettle JA).

[29] Director of Public Prosecutions v McMaster [2008] VSCA 102; (2008) 19 VR 191, 202.

[31] [2008] VSCA 127 [15] (emphasis added, citations omitted).

[32] The Queen v CJK [2009] VSCA 58 [62].

[33] R v RGG [2008] VSCA 94 [25] (Lasry AJA, with whom Ashley AJA agreed) (emphasis added).

[34] R v CPD (Reasons for Sentence) (Unreported, County Court of Victoria, 21 April 2008) [30].

[36] R v CPD (Reasons for Sentence) (Unreported, County Court of Victoria, 21 April 2008) [47].

[37] Cf R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 272.

[38] Crimes Act 1958 (Vic) s 45 (2)(a).

[39] The same maximum is provided for rape, armed robbery, aggravated burglary and trafficking in a commercial drug of dependence.

[40] R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 4.

[41] (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Marks, Hampel McDonald JJ, 8 June 1993) 5. See R v Ware [1997] 1 VR 647, 653 (Hedigan AJA).

[43] See also The Queen v RTG [2004] VSCA 89 [20] (Chernov JA).

At a glance

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Cases Cited (12)