DPP v Derby [2007] VSCA 92

3 I regret that I find it necessary to reach a different conclusion from Vincent JA and Kellam AJA. Undoubtedly arson is a very serious offence, one which often places people at the risk of death or serious injury. I agree with their Honours that denunciation and general and specific deterrence would normally require a significant period of imprisonment to be imposed for such an offence.

4 However, it is apparent from his reasons that the sentencing judge took account of the severity of these offences and that he weighed this very carefully against the other matters he was required to take into account under the Sentencing Act 1991. It is not contended that there is any specific error in the reasons of the learned sentencing judge.

5 Having regard to the restraint which this Court must exercise in deciding whether a sentence is manifestly inadequate, I would be reluctant to find that his

Honour erred. Although general and specific deterrence were important considerations in sentencing the respondent for these offences, his Honour was also entitled to give considerable weight to the personal circumstances of the applicant to which Kellam AJA refers. The respondent was a youthful first offender who was remorseful about his offending and who confessed his guilt a short time after the offences occurred. His Honour decided that the respondent's difficulties in dealing with his anger and his overall rehabilitation would be best served by the imposition of an intensive corrections order. The order was designed to reduce the chance that the respondent would re-offend by requiring him to participate in programs which deal with his anger and his problems with alcohol. The protection of the community is best served by a person being rehabilitated. In this case the intensive corrections order was designed to achieve that purpose.

6 Finally, even if the sentence was manifestly inadequate, I would not impose a different sentence on the respondent, having regard to the principle of double jeopardy. The respondent is halfway through the period of his intensive corrections order. He has undertaken 12 hours per week of community work in addition to his paid work, has successfully completed a 44 hour course of cognitive reasoning to help him cope with anger management and has undertaken a course related to alcohol abuse. To impose a custodial sentence now would be unnecessarily harsh and could have the effect of extinguishing the respondent's prospects of rehabilitation.

7 I would therefore dismiss the appeal.

8 On 4 September 2006 the respondent pleaded guilty in the County Court at Bendigo to two counts of arson.

9 On 17 November 2006 the respondent was sentenced in the County Court at Melbourne to imprisonment for a period of 12 months in respect of each count,

producing a total effective sentence of 12 months' imprisonment. It was ordered that the period of imprisonment be served by way of intensive corrections order. In addition, the Court declared the respondent to be a serious arson offender within the meaning of s 6B of the Sentencing Act 1991, ordered forensic procedures under s 464ZF(2) of the Crimes Act 1958 be undertaken and made orders for compensation in favour of the victims of the two arsons.

10 The Director of Public Prosecutions contends that the sentence imposed upon the respondent is manifestly inadequate. It is argued that the sentence fails to reflect adequately the gravity of the offences, fails to take into account sufficiently, or at all, the aspect of general deterrence, gives too much weight to factors going to mitigation and insufficient weight to the maximum penalties applicable to the offence of arson. It is further contended that the sentence imposed gives insufficient weight to the effect of the respondent's offending upon the victims.

11 The circumstances of these offences may be stated briefly. The respondent had met a young woman to whom I shall refer as "AP", in late 2005 and commenced to see her regularly throughout December of 2005. At the time AP was 21 years of age. On the evening of 31 December 2005 the respondent and AP met and then attended at a Bendigo hotel. The respondent stayed at the hotel until closing time at 3.00 am. In the course of the evening AP received a number of phone calls from a male friend and she and the respondent parted during the early morning of 1 January 2006. The respondent described himself as being "very intoxicated" at the time the hotel closed. He left the hotel in search of AP but was unable to find her. He tried to contact her by mobile telephone but became increasingly agitated when she did not respond. Eventually she sent him a text message telling him to go home. This upset him. He started walking to AP's home hoping that she might be at home. As he walked his anger increased because of her apparent rejection of him. He sent her a text message saying "Goodbye to your window - say goodbye to your window. If you're not at home, you'd better get home". He arrived at AP's home at approximately 4.00 am. Upon arrival he smashed the window next to the front door of her home with his right foot. The respondent told police that he then decided to stay at her home until she returned to explain that he would pay for the damage to the window. He had cut his foot in the course of smashing the window and had wrapped a towel around his foot.

12 He slept for a while but upon waking took a towel from the kitchen and lit it and threw it on to AP's bed. It is apparent that he did this in a state of anger over his perceived rejection by AP. To spread the fire he picked up the towel and moved it to the curtains and the floor in the bedroom. He then proceeded to light curtains in the kitchen and bathroom. The smoke and flames became very hot and he could no longer breathe and he left the premises through the front window that he had broken previously. He informed police that before he left he threw AP's cat out of the flat but the cat ran back inside and was subsequently incinerated.

13 The respondent then went to a nearby telephone box and dialled 000 saying he needed the Fire Brigade. The CFA arrived shortly afterwards and put out the fire.

14 The respondent remained at the scene until the CFA and police attended. When first spoken to by police the respondent denied having anything to do with the fire. However soon afterwards he admitted his responsibility. A tape recorded interview between police and the respondent took place at 10.00 am on 1 January 2006. In the course of that interview he made full and complete admissions about his responsibility for the fire.

15 The fire completely destroyed the unit in which AP lived as a tenant. It also caused damage to the ceiling cavity of the adjacent unit. The quantum of damage to the unit tenanted by AP was estimated by its insurer as being $95,100. The damage to the adjoining unit was likewise estimated as being $12,946. AP lost personal property valued in the sum of $18,573. It is apparent that the loss she suffered and in particular, the circumstances in which she suffered such loss, were most traumatic for her. Her victim impact statement refers to her deeply felt loss of independence and her feelings of fear and lack of safety. She said, "I am afraid that I might never get back to living independently as I do not feel like I could trust people enough to live alone again". It is reasonable to infer that these feelings of lack of trust will be reflected in her capacity to engage in future relationships.

16 Having pleaded guilty to two counts of arson before the judge, a plea was conducted on behalf of the respondent on 4 September 2006. At the conclusion of the plea his Honour considered it appropriate to obtain a pre sentence psychiatric report. The report was obtained and further submissions were made before his Honour on 13 November 2006 by counsel for the respondent and by counsel for the prosecution. Counsel for the respondent contended that an appropriate sentence was a sentence of imprisonment to be served by an Intensive Correction Order. The prosecution contended that the offences called for an immediate term of imprisonment to be served by the respondent.

Personal circumstances of the respondent

17 Material before his Honour demonstrated that the respondent had just turned 24 years of age at the time of the commission of the offences, having been born on 2 December 1981. No prior convictions were alleged against him. The respondent was educated to Year 10 level. At the time of sentencing he was a single man employed as a process worker and a part time delivery driver. The sentencing judge had a letter of reference from the respondent's employer who described him as being a "reliable, hard working and punctual individual". The sentencing judge had before him a report from the Bendigo Health's Psychiatric Services which revealed that the respondent had self referred to that service in February of 2006 after experiencing depressive features including suicidal ideation. He was diagnosed as suffering from a borderline personality disorder and histrionic personality disorder. In addition his Honour had before him a psychological report prepared by a psychologist Anne Davidson on 13 October 2006. This report was in response to his Honour's request for a psychological assessment and pre sentence report. That report referred to a history that the respondent had commenced to drink alcohol when he was aged 15 and continued to drink heavily by binge drinking on weekends until he was 21 years of age. The respondent has not been a user of drugs. Ms Davidson did not conclude that the respondent met any recognised criteria to be diagnosed as suffering from a major mental illness. However, in her opinion, his behaviour did meet criteria for a borderline personality disorder. Anger assessment and his own self reporting indicated to her that the respondent had not learned to express his anger appropriately or assertively and became passive and withdrawn when angry. However, in the past he had smashed his own property when overwhelmed with anger. Ms Davidson formed the view that:

"The index offence appeared to be precipitated by a combination of long-standing difficulties with rejections and failed relationships, problems with emotional regulation, and heightened anger, which were exacerbated on the night of the evening by the effects of excessive alcohol consumption. The alcohol further reduced Mr Derby's ability to monitor and control intense emotion. Unfortunately, the outcome has been these very serious offences, which he has neither tried to minimise nor justify. Mr Derby does not demonstrate antisocial attitudes and his expressions of remorse appear genuine and deeply felt."

18 Ms Davidson concluded that anger regulation was a significant problem for the respondent and required treatment intervention. Likewise she considered that the respondent required counselling to understand the effect of alcohol intoxication.

19 The history obtained by Ms Davidson, as well as the circumstances of the offence, provide clear support for her conclusion that anger control has been a significant problem for the respondent. The lack of control over his emotions has been associated particularly with the respondent's relationships with young women. He described to Ms Davidson a pattern of "intense involvement" with women whom he described as treating him "like crap". When these women have talked about having other relationships he has responded with "extremely dramatic emotional outbursts when the women invariably terminated the relationships". On several occasions the respondent has harmed himself by cutting or stabbing himself. The psychologist reported that in one particularly intense relationship approximately three years ago the respondent became very angry and stabbed himself in the stomach in front of a young woman "to teach her a lesson".

20 The relationship with AP had been of relatively short duration. He met her through an internet dating site and had been going out with her for less than a month prior to the commission of the offence. It would appear that AP did not want the level of commitment in the relationship that the respondent sought. The psychologist's report obtains a history that earlier in the day of the offence the respondent had arrived home angry having smashed the windscreen of his car. According to the respondent's father it later transpired that the respondent had smashed it in anger after having been told by AP that she did want to continue the relationship. The conclusion of the psychologist was that the offence appeared to be precipitated by a combination of longstanding difficulties with rejections and failed relationships, problems with emotional regulation, and heightened anger, which were exacerbated on the night of the evening by the effects of excessive alcohol consumption.

The crime of arson

21 Arson is a serious crime carrying with it a maximum penalty of 15 years' imprisonment. The destruction of a home by arson carries with it great risks for nearby buildings, their occupants, and those members of our community who put themselves at risk by serving in emergency services. This is a serious example of the offence. In his rage the respondent burned a two bedroom unit rented by AP and thereby destroyed all of her personal property within the unit. In addition, the fire spread to the adjacent unit which fortunately was unoccupied by its elderly tenant on the night of the fire. Winneke P (as he then was) stated in R v Mazur[1] that "Courts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate".

22 In Mazur the respondent had been convicted of the arson of a restaurant business which was owned by him. The damage caused by the fire was great and there was material which suggested the value of the damage to be approximately $450,000. The respondent was a man with no prior convictions. He had a good work record, and was aged 49 years at the time of the offence. It is unclear from the report the actual sentence that was imposed, but it is clear that a sentence of imprisonment which had been imposed was regarded as being appropriate in all the circumstances of that case. Apparently an application for leave to appeal sentence was withdrawn in the course of the hearing of the application. Nevertheless, Brooking JA took the opportunity to state that an earlier decision of the Court of Criminal Appeal in Perrone,[2] where the imposition of a fine in a bad case of arson survived a Director's appeal, was not a correct decision. He then said:[3]

"To say this is, of course, not to touch the proposition, accepted in Perrone, that in cases of arson a custodial sentence is not inevitable. That proposition requires no authority to support it."

The respondent relies upon this latter statement. However, this statement does no more than state the obvious, which is that each case must depend on its own circumstances.

23 As Murphy J said in R v Halden,[4] when speaking of the offence of property damage:

"It is a crime which may be committed in a very wide range of circumstances. The property damaged may vary from a book to a mansion, and no doubt the penalty to be imposed will be tempered according to the nature of the property and the damage done.

The penalty may also vary according to the circumstances in which the crime is committed ... ".

24 Nevertheless, a review of the authorities demonstrates, as stated by Winneke P in R v Mazur that a sentence of immediate imprisonment has been regarded as being appropriate for offences of arson except in exceptional circumstances. In R v Martin and Cowman,[5] two co-offenders had committed an armed robbery on a husband and wife and then burned down their house causing a loss of over $400,000. Each of the co-offenders pleaded guilty and one was sentenced to five years' imprisonment and the other to three and a half years' imprisonment on the count of arson. Leave to appeal was refused.

25 In DPP v Woodward,[6] the respondent was charged with offences of burglary and two counts of arson. He pleaded guilty and was sentenced to three years' imprisonment on each of the counts of arson. He had numerous prior convictions for four burglaries and two prior convictions for arson. The two counts of arson arose in relation to a dispute about money. The first arson involved the lighting of clothes and the placing of them on lawn nearby to a building. The second arson involved the lighting of clothes in a room in a house which resulted in a loss of property valued at $10,000. The Court of Appeal (by a majority) increased the sentence on the second count of arson to four years' imprisonment.

26 In DPP v Boutrous,[7] the respondent pleaded guilty to one count of aggravated burglary and one count of arson and had been sentenced to two years' imprisonment on the count of arson. The DPP appealed. The offence was said to be the product of a domestic upset which had occurred in the respondent's family as a result of which he committed the offences to seek revenge against a particular member of his family. The respondent set fire to a building in Flinders Lane, Melbourne, owned by that family member. The amount of damage caused amounted to $1.3 million. Both Crockett J and O'Bryan J stated that they regarded the sentence imposed as lenient but that the mitigating factors in that particular case were such that the sentence was not manifestly inadequate.

27 In the matter of R v Johnson,[8] the applicant, who was aged 24 at the time of the offence, was convicted by jury on a count of arson. He was sentenced to two years and nine months' imprisonment with a non-parole period fixed at 18 months. The applicant was found guilty of setting fire to a milk bar which caused just under $30,000 damage. The evidence was that the applicant set fire to the premises in order to make an insurance claim. The applicant had no relevant prior convictions and had a good work record. The Court reduced the sentence on the count of arson to 18 months' imprisonment with a non-parole period of nine months.

28 In R v Glavocih,[9] the applicant, who was an intellectually handicapped person, was presented before the County Court on two charges of arson, the first involving a church whereby damage estimated at $10,000 was caused, and the second involving damage to a scout hall where damage was estimated to be approximately $140,000. Intellectual testing had revealed the applicant to have a full scale IQ of 56 by reason of the intellectual impairment of the applicant. The sentencing judge placed him on a bond to be of good behaviour upon a number of conditions. In particular he was required to reside at an accommodation centre which had been proposed by the author of a justice plan which had been provided to the sentencing judge. In due course, the applicant was brought back before the sentencing judge for breach of bond and the sentencing judge sentenced the applicant to a term of one year's imprisonment in respect of the first count of arson, and a term of two years' and nine month's imprisonment in respect of the second count of arson. He fixed a minimum period of 18 months before the applicant should be eligible for parole. The Court of Criminal Appeal quashed the sentence and re-sentenced the applicant to be imprisoned to the rising of the Court. He had served 10 months' imprisonment at that time. Beach J said:

"As I have already stated, the offences were serious offences. They would ordinarily merit stern punishment. However, there are powerful considerations that both extenuate and mitigate these particular offences, and that is the mental impairment suffered by the applicant."

29 In referring to whether it was appropriate to release the applicant on a good behaviour bond, Beach J said:

"In my opinion, that is not appropriate in the present case. For my part, I would sentence the applicant to a term of imprisonment. However, the applicant now has served a term of imprisonment, the bulk of which is referable to these offences, of approximately ten months."

30 In DPP v Bright,[10] the respondent pleaded guilty to arson of property of his de facto wife. He was sentenced to 12 months' imprisonment, six months of which was to be served in custody and six months to be served in the community under a combined custody and treatment order. The Director of Public Prosecutions appealed against the sentence.

31 The circumstances of the offence were that the respondent set fire to a house occupied by a woman with whom he had had a de facto relationship. Chernov JA said:[11]

"The offence of arson is a very serious offence as is reflected in the maximum custodial sentence of 15 years that has been prescribed for it by Parliament. Importantly, the offending here was grave - it was a serious example of the crime of arson, having profound consequences for innocent victims. This Court has recently emphasised that those apprehended for this offence must generally expect to receive a stern sentence of imprisonment. ... Not only is the offence serious as I have mentioned and the offending grave, but the sentencing principles of general and specific deterrence and denunciation were of considerable importance in the sentencing disposition."

32 Bright was re-sentenced to a term of imprisonment for three years and six months.

33 In DPP v Ralph,[12] the DPP appealed a sentence of two years' imprisonment with a non-parole period of nine months which had been imposed on the respondent. The circumstances in that case were similar to those in Bright in that the respondent burned down a house which was owned by his partner. The arson took place in circumstances where the respondent's partner had told him that their relationship was at an end. The appeal was allowed and a sentence of 3 years and six months was imposed. In that case, Winneke P said:[13]

"In my opinion, and notwithstanding Mr Priest's eloquent submissions, this is a case in which the Court is required to intervene in order to maintain the appropriate standards to which I have referred. Arson is a serious crime in this State's calendar, which not only has the capacity to severely impact upon the sense of security of its immediate victims, as occurred in this case, but also is destructive of the sense of safety and security of those who are indirectly affected by it, as likewise in this case were the neighbours. This crime was, I think, a serious example of its type. It was committed for no better reason than to exact revenge upon the person who had demonstrated loyalty to the respondent and restraint in the face of his unacceptable habits. The fact that he was inebriated cannot excuse his conduct. This was not a sentence which could be characterised as merely 'lenient'. It was, in my view manifestly inadequate to meet the wanton circumstances of the offending. If it is permitted to stand, it will, in my view, set an inappropriate precedent for the crime of arson of property in this State. I am therefore of the view that the sentence ought to be set aside and the respondent re-sentenced for his offending."

34 True it is that each case must be considered in the light of the circumstances applicable to it. True it is also that each of the cases referred to above differed from the case now before us in both the circumstances of the offence, and in the personal circumstances of the offender. Nevertheless, it is clear that this Court has stated consistently that arson is a serious crime indeed, and that circumstances which justify other than an immediate custodial sentence will be rare.

Submissions of the Director

35 Of course the submissions of the Director are to be considered in the light of the principles to be applied to an appeal by the Director. Those principles are clear and are set out in a number of authorities including DPP v Whiteside and Dieber,[14] and R v Clarke.[15]

36 The argument advanced by the Director is that the imposition of a 12 month sentence of imprisonment on both counts of arson which were before the sentencing judge, was manifestly inadequate. It is submitted that this is particularly so in circumstances whereby the respondent fell to be sentenced as a serious arson offender on Count 2, thus triggering the application of ss.6D and 6E of the Sentencing Act 1991.

37 In DPP v Bright,[16] Redlich JA (with whom Chernov and Vincent JJA agreed) said:

"An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being 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 the commission of crimes'."

The submissions of the respondent

38 The respondent submits that it is apparent that the sentencing judge considered carefully all relevant sentencing considerations in what was a difficult sentencing task. Indeed, the respondent submits that the Director was constrained to argue that factors relevant to sentence were given inappropriate weight because it is apparent that the judge did give appropriate consideration to all necessary matters. It is argued that it is clear that the judge had regard to the seriousness of the offence, the maximum penalties for arson as a reflection of seriousness, specific and general deterrence and the requirement for appropriate punishment as well as the "profound effect" upon the principal victim. On the other hand, it is submitted that the judge also had regard to the absence of prior convictions, the fact that consumption of alcohol by the respondent was not mitigatory and the psychological and emotional problems suffered by the respondent. In particular, the judge made specific findings that the respondent was a "young first offender" and that he suffered genuine remorse. The necessity to discount the sentence by reason of an early plea of guilty, together with the respondent's good prospects of rehabilitation and low chances of re-offending were all matters given consideration by his Honour. It is argued that the fact that the judge concluded that the "only appropriate sentence for such serious offending is one of imprisonment" reflected his Honour's view of the nature of the offence, but that it is also clear that the issue of rehabilitation, which his Honour considered to be most significant, would be addressed best by placing the respondent upon an intensive corrections order.

39 It is submitted that it is apparent that the sentencing judge's intention was to promote the rehabilitation of the respondent and that, in all the circumstances of the offence, and the respondent's personal circumstances, it was open to his Honour to regard the prospects of rehabilitation as being of great, if not primary importance.

Conclusion

40 In the circumstances of this case I do not find the Director's submission that the fact that the respondent fell to be sentenced as a serious arson offender on Count 2 thus triggering the applications of ss.6D and 6E of the Sentencing Act to be a compelling argument. The circumstance whereby the presentment contained two counts was that the respondent lit one fire which spread from the place where he lit it through the roof to an adjoining unit which shared a party wall with AP's unit. Whilst it is true that there were two separate owners of the units, the two counts of arson resulted from the one criminal act. I observe that it is not contended by the Director that there should have been cumulation of part or all of any count upon the other, but he does rely upon the fact that by reason of conviction on a second count, the respondent became a serious arson offender. Notwithstanding that statutory requirement it is clear that his Honour did not consider it necessary to pass an increased sentence upon the respondent for the protection of the community pursuant to s.6 of the Sentencing Act.

41 There is no doubt that the conduct of the respondent called for the imposition of a sentence of imprisonment. Nevertheless, there were some mitigating factors. The actual lighting of the fire was not premeditated and carefully planned as many arsons are. Having started the fire, the respondent took the step of telephoning the emergency response authorities. Although for a brief time the respondent was not forthcoming to police about his involvement he made a complete and remorseful confession to police within hours of the offence.

42 The respondent had no prior convictions and there was evidence before his Honour that the respondent had gained insight into the fact that he had a problem with alcohol. The pre-sentence report before his Honour contained the following statement:

"Mr Derby presents with a sound level of insight into his current offending behaviours and underlying criminogenic needs. Following the commission of his current offence, he self-initiated interventions with psychological services, and by all accounts, appears genuine in his efforts to address these issues. He also acknowledges his need to engage with additional interventions to address his misuse of alcohol, and articulated plans to do so in the near future. He further expressed an appropriate level of empathy and an acute awareness of the impact of this offence on the victim."

43 Clearly, his Honour was troubled by the issue of rehabilitation and the need to balance that sentencing principle with the other necessary principles of general deterrence and just punishment in particular. He obtained upon his own motion, both a pre-sentence report and a psychological report prior to proceeding to sentence.

44 At the conclusion of the plea and in addressing counsel for the respondent he said:

"I also seek a report as to his suitability on an intensive corrections order but you should tell him very very clearly that it is merely an option that I am considering and that he should not think that it is the only option that will be available to me, much will be dependent on what is contained in the reports when I receive them."

45 It is clear that his Honour gave careful attention to the issue of rehabilitation. However, making all due allowance for that issue, and for the other mitigating factors relevant to the circumstances of the respondent, I am nevertheless satisfied that the sentence was manifestly inadequate to such an extent as to require this Court to intervene, and that this appeal should succeed. This crime, as I have said, was a serious example of a serious crime. It was committed for no better reason than that the respondent, in his anger and resentment at being rejected by a young woman, sought to exact revenge upon her. Although I accept that his decision to set fire to his victim's home was not pre-meditated, the fact is that the respondent had ample time to reflect upon his state of anger. He last saw AP at approximately 3 a.m. Thereafter he decided to walk to her house. As he was walking he sent her text messages by mobile phone. In particular he sent her a text message to the effect that she "had better get home" because he was going to smash her windows. Although there is, as I have said, no reason to say that he planned to commit an arson, he nevertheless held the intention to cause some damage to AP's home. As he said to police in relation to the smashed window; " When I kicked out at it I was intending to smash it because I was upset at AP". Having smashed a window of her home and having entered her home, he did not reflect on what he had done, but to the contrary, he waited some considerable time before committing the arson. He told police that he drifted off to sleep and when he awoke he was "in a real rage". He then went to the kitchen and took a tea towel from the oven, lit it with a cigarette lighter and walked into AP's bedroom where he threw it on the bed. He told police that he saw the bed start to catch alight. This did not deter him from then moving the lit tea towel "either onto her curtains or onto the floor". The respondent told police that he then walked out into the kitchen where he set fire to one of the curtains with a cigarette lighter. That curtain caught fire. Undeterred by the growing conflagration the respondent then walked to the bathroom where he set fire to the curtains there.

46 It is apparent that, notwithstanding his subsequent expression of remorse, specific deterrence remains as an important sentencing principle in sentencing the respondent as does general deterrence. Regrettably, it is far from uncommon that one party in a domestic, or other relationship, as here, takes out their anger, resentment and frustration upon the other party by destruction of property. Those who do so, particularly by fire, should be under no illusion other than that they will face salutary punishment.

47 In all the circumstances, the sentence imposed by the sentencing judge failed sufficiently to take into account the sentencing principles of general and specific deterrence and denunciation. In my opinion, a sentence of 12 months' imprisonment is manifestly inadequate taking into account all relevant mitigatory and other factors. It may be that the sentencing judge fixed 12 months as the appropriate sentence, taking into account the manner in which he proposed that the sentence was to be served, that is by intensive corrections order, which of course has a maximum term of 12 months. If so, his Honour was in error, as there must first be a determination as to what is the appropriate sentence before consideration is given to the manner in which it is to be served.[17]

48 In all the circumstances, I see no alternative but to allow the appeal. That requires consideration of the appropriate sentence to be imposed. The respondent has now served a period of six months of his intensive corrections order and as we are informed, has complied with all requirements of the order. He has also complied with the requirements of a compensation order to pay AP the sum of $100 per month. These are powerful factors to be taken into account in relation to the principle of double jeopardy which applies in this case. Nevertheless, and taking full cognisance of the principles of double jeopardy, it appears to me that the appropriate sentence to be imposed is one of two years' imprisonment on each count, to be served concurrently. That makes a total effective sentence of two years' imprisonment. I would direct that the respondent not be eligible for parole before he has served a minimum of 12 months' imprisonment. I would otherwise confirm the ancillary declaration and orders made by the sentencing judge.

[1] [2000] VSCA 111; (2000) 113 A Crim R 67 at 74.

[2] (1989) 43 A Crim R 366.

[3] R v Mazur [2000] VSCA 111; (2000) 113 A Crim R 67 at 74.

[4] [1983] 9 A Crim R 30 at 38-39.

[5] Supreme Court of Victoria Court of Appeal (unreported) 3 March 1997.

[6] Supreme Court of Victoria Court of Criminal Appeal (unreported) 5 October 1988.

[7] Supreme Court of Victoria Court of Criminal Appeal, (unreported) 1 August 1989.

[8] Supreme Court of Victoria Court of Criminal Appeal, (unreported) 11 February 1993.

[9] Supreme Court of Victoria Court of Criminal Appeal, (unreported) 5 September 1991.

[10] (2006) 163 A Crim R.

[11] At p.540.

[12] [2004] VSCA 158.

[13] At [12].

[14] [2000] VSCA 142; (2000) 1 VR 331.

[15] [1996] VICSC 30; [1996] 2 VR 520.

[16] [2006] VSCA 147; (2006) 163 A Crim R 538 at 542.

[17] DPP (Vic) v Bright, p.547.