1 This is an appeal by the Director of Public Prosecutions against sentences imposed for conspiracy. In addition to the conventional ground of a Director's appeal, that the sentences were manifestly inadequate, the Director contends that the sentencing judge misdirected himself by holding that, as a general rule, the sentence imposed for an offence of conspiracy to commit an offence should be less than the sentence which would have been imposed had the planned offence been committed.

2 The specific ground raises an important issue of principle. For reasons which follow, we have concluded that his Honour did misdirect himself. There is no principle of law that the sentence for conspiracy to commit an offence should be less than the sentence which the completed offence would have attracted. The conspiracy offence is directed at a different mischief - the making of an agreement to act unlawfully - and the sentencing court must assess the degree of criminality, and the moral culpability of the individual conspirators, accordingly. The Court must take into account not only what was done by the particular defendant but also the scope and duration of the conspiracy as a whole and everything done in furtherance of it.[1]

3 It was conceded by senior counsel for the respondent that, were the Court to uphold the specific ground, the ground of manifest inadequacy must inevitably succeed. This concession was properly made. We will allow the Director's appeal and resentence the respondent.

4 The respondent pleaded guilty in the County Court to one count of conspiracy to handle stolen goods (count 1) and one count of conspiracy to commit robbery (count 2). He was sentenced to one month's imprisonment on count 1 and two years' imprisonment on count 2, the sentences to be served concurrently. Twelve months of the term of two years' imprisonment was suspended for a period of two years.

5 The facts are not in dispute, and were conveniently summarised by the sentencing judge as follows:[2]

In August 2008, you met with a co-offender, Robert Rosner ('Rosner'), and an undercover police officer to plan and organised to steal 'shippers' or boxes of cigarettes from Linfox Transport ('Linfox'), your then employer. The cigarettes were to be sold to Morad Zeitoune ('Zeitoune'), a distributor of various goods, including cigarettes and tobacco products.

On 29 August 2008, you met with Rosner, Zeitoune and the police officer, who had obtained three shippers of cigarettes, which were handed to Zeitoune. The cigarettes had been obtained by the undercover officer who indicated they had been stolen from Linfox.

Zeitoune paid the sum of $2,650.00 for the goods, of which you retained $1,000.00. The cigarettes had a wholesale value of $4,500.00 (Count 1). At this time, you discussed with Zeitoune and Rosner the prospect of the provision of further stolen cigarettes.

In October 2008, you went to a number of meetings with Zeitoune and Rosner whereby a plan was formulated to hijack a Linfox cigarette truck, and steal the cargo of cigarettes. It was agreed that a truck driven by a person capable of being easily overpowered would be hijacked. Rosner would assault and render unconscious the driver and disconnect the global positioning system ('GPS') attached to the truck, to avoid detection. This was to be undertaken at a location along Ferntree Gully Road, Notting Hill. It was proposed that the driver would be struck again if necessary, his mouth and hands taped and that he would be thrown out of the truck at some subsequent point. The truck would then be delivered to a location by Rosner, and associates of his, and the cigarettes would be there transferred to another truck provided by Zeitoune.

You provided Rosner with knuckle dusters, a balaclava and black stocking, and wire cutters in order to cut the wires attaching the GPS to the truck.

The meetings in respect of which this conspiracy was hatched, occurred on a number of occasions in October and November 2008.

Unknown to you, Rosner had confessed to Linfox, and the police, his part in an earlier unrelated theft of cigarettes and co-operated with the authorities by disclosing the plans which led to these charges. In fact many of the meetings referred to were tape-recorded by Rosner, and the police were aware of details of the proposed robbery.

On 26 November 2008, a truck containing a cargo of cigarettes was driven by Rosner from Linfox's premises to a location where you and Zeitoune waited. Rosner gave the impression that the truck had been hijacked as planned and boxes of cigarettes were loaded into Zeitoune's van. At that point, the police arrived and you, Rosner and Zeitoune were arrested. The truck contained cigarettes with a wholesale value of $1,233,691.89.

It is not clear from the evidence before me as to the precise sum you were to receive for your part in the venture. Zeitoune was to pay yourself and Rosner the sum of $617,000. It is reasonable to assume you expected to receive some hundreds of thousands of dollars. Further, it was proposed to hijack the truck, owned by one Amarinder Singh Brar, with a value of approximately $80,000 (Count 2).

6 The particulars to the ground that the sentences were manifestly inadequate allege that the sentencing judge:

(i) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(ii) failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character;

(iii) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(iv) failed to have sufficient regard to the maximum penalty prescribed for the offence;

(v) failed to have sufficient regard to the nature and gravity of the offence;

(vi) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offence, as evidenced by the following:

1. the fact that the offender was the primary mover in the conspiracy in that he played a substantial role in its initiation;

2. the reason for the offending was wholly or substantially one of greed;

3. the plan to attack and render unconscious the driver of the truck and to disconnect the global positioning system (GPS) attached to the truck to avoid detention;

4. the plan to strike the driver again if necessary and to tape his mouth and hands and throw him out of the truck at some subsequent point;

5. the offender providing the necessary instruments for the planned robbery such as knuckle dusters, a balaclava, and black stocking, as well as wire cutters in order to cut the wires attached to the GPS to [sic] the truck;

6. the wholesale value of the goods to be stolen was $1,233,691.89;

7. the offender was to receive an unknown share in the sum of $617,000 in exchange for the stolen goods;

(vii) gave too much weight to mitigating factors concerning the offender, in particular the early pleas of guilty and the offender's lack of recent prior convictions;

(viii) failed to have sufficient regard to the aggravating features of the offending, in particular the breach of trust that resulted in offending against his employer.

Specific error in distinguishing between conspiracy to commit offence and actual commission of offence

7 As noted earlier, the Director advanced a ground of specific error contending that the sentencing judge erred in distinguishing, for the purpose of sentencing, between conspiracy to commit an offence and the actual commission of that offence. At the Court's request, counsel for the Director filed a detailed supplementary submission setting out the common law authorities and statutory provisions relied on to support this contention. We have found the submission of considerable assistance in the preparation of these reasons.

While admitting the charges are serious, [defence counsel submitted that] there was a distinction between criminal offences which took place, and those in respect of which persons conspired to offend. In the present case, your counsel submitted there were no overt criminal acts, and aside from the loss of $4,500 in cigarettes in respect of the first count, there was no other loss caused, and importantly, no victim of the offences.

Mr Sullivan submitted that in a number of cases considered in the Victorian Court of Appeal, sentences of significantly less severity were imposed in respect of charges relating to conspiracy to commit armed robbery, as opposed to charges of commission of armed robbery. He submitted thus, that given both charges relate to conspiracy, a lesser sentence ought be imposed than had the charges been, respectively, handling stolen goods or robbery.

...

It is said on your behalf that there was no actual crime committed and no victim involved. The charges involve conspiracy rather than the commission of actual criminal offences. I accept those submissions, and accept that in a general sense, a sentence ought be less than that which would have been imposed had the proposed robbery taken place, the driver of the van assaulted as planned and the stolen cigarettes provided to Zeitoune.[3]

9 Until the introduction of the Crimes (Conspiracy and Incitement) Act 1984, the penalty for conspiracy in Victoria was at large. Now, where the object of the conspiracy is to commit a substantive offence, the maximum penalty is the same as that fixed for the commission of the substantive offence.[4] Hence, the offence of conspiracy to commit robbery attracts the maximum fixed for the offence of robbery, 15 years' imprisonment.[5]

10 The maximum penalty fixed by statute shows Parliament's view of the objective gravity of the offence.[6] By force of s 5(2)(a) of the Sentencing Act 1991 (Vic), the maximum penalty is a consideration to which regard must be had in determining the appropriate sentence.[7] The Director therefore contended that, to start from the position that the offence of conspiracy was somehow a lesser offence than the substantive offence in question, when Parliament had fixed the same maximum penalty, was directly contrary to the prescription in the Act. Moreover, the Director submitted, it was incorrect to state as a general rule that a sentence for the offence of conspiracy to commit an offence would be less than that which would have been imposed if the intended offence had in fact been committed.

11 Senior counsel for the respondent countered by submitting that his Honour had not applied a general principle but had merely been addressing the circumstances of this case. The respondent also submitted that the sentencing judge was entitled to take into account that the 'robbery' was a 'police ruse effected by Mr Rosner's deceit', with the consequence that there was no actual victim. When looking at the nature and gravity of the offence, the court must have regard to the impact of the offence on any victim and the damage resulting from the offence, in accordance with s 5(2) of the Sentencing Act 1991 (Vic). Hence it was said that, as a matter of common sense, the sentencing judge was correct in stating that the respondent should receive a more lenient sentence than if he had taken part in an actual robbery.

12 We do not agree that his Honour's observations meant only that, in the particular circumstances of the case, the offence was less serious than if the robbery had been committed. It is clear, in our view, that his Honour accepted defence counsel's submission that conspiring to commit an offence was necessarily less serious than if an 'actual crime' had been committed. Unfortunately, the sentencing judge did not have the assistance of a legal submission to the contrary from the prosecutor.

13 Counsel for the respondent submitted in the alternative that, ordinarily in cases where the object of the conspiracy was the commission of a substantive offence, a lesser sentence than that for the commission of the substantive offence was required unless the substantive offence was completed. In oral argument, he acknowledged that he could cite no authority to support such a general rule but submitted that it was 'a matter of logic and commonsense'. He equated conspiracy with attempts to commit a crime, which attract a lower statutory maximum than the completed offence.[8]

14 The assertion that there could be such a general rule misapprehends the seriousness with which the law views the crime of conspiracy. Conspiracy is an inchoate offence. The offence lies not in the overt acts themselves, injurious though they may be to an ordered society, but in the anterior agreement to commit them.[9] It is the agreement of a number of persons to carry into effect the unlawful purpose in combination which is of the essence of the crime.[10] The offence of conspiracy is complete once there is agreement between two or more persons.[11] It is a continuing offence[12] so long as there are two or more parties to it intending to carry out the design.[13]

15 The charge of conspiracy is brought because 'criminal action organised, and executed, in concert is more dangerous to society than an individual breach of the law'.[14] The crime of conspiracy was described in Hawkins' Pleas of the Crown as follows: 'All confederacies whatsoever, wrongfully to prejudice a third person, are highly criminal at common law.'[15]

16 The essential feature of the offence of conspiracy is the agreement between two or more persons to commit the crime, sometimes referred to as the element of 'concert'.[16] It is this element which differentiates the offence of conspiracy to commit a substantive offence from the offence of attempting to commit the substantive offence, and from the substantive offence itself. The element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so. There is said to be a 'dangerousness' inherent in the plotting, 'either because several may achieve what an individual would find difficult or impossible, or because other

16 criminal plans may emerge from the group.'[17] (The present case exemplifies the last point, as the second conspiracy emerged following the completion of the first.) As Lee J stated in R v Shepherd, 'men acting in combination to achieve unlawful ends present a far greater evil and danger to the community than do the acts of individuals acting alone to achieve their nefarious ends.'[18]

17 The extent of the offender's participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender's degree of criminality.[19] The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed. The sentencing judge therefore needs to assess, for the purpose of sentencing the individual conspirator, the 'content and duration and reality' of the conspiracy, and what is actually done in transaction of it, as well as the role of the offender before the court.[20]

18 It is an error to equate conspiracy to commit an offence with an attempt to commit that offence. A comparison of s 321 (conspiracy) and s 321N (attempt) shows that the elements of the two offences are quite different. More relevantly for present purposes, whereas the maximum penalty for conspiracy is the same as the maximum for the substantive offence, s 321P of the Crimes Act 1958 (Vic) expressly fixes a lower maximum for an attempt than for the substantive offence.

19 If the conspiracy is to commit a number of offences, the court must take into account the number of offences which are the subject of the conspiracy and have regard to the maximum penalty that can be imposed in respect of each of those offences.[21] Hence in some circumstances, although not the present, the continuation of the conspiracy may result in the conspiracy being viewed as more serious than the relevant substantive offence.[22]

20 Before statute intervened to fix maximum penalties for conspiracy, the principle at common law was that the penalty for conspiracy to commit an offence should not in general exceed the maximum penalty for the commission of that offence.[23] In R v Narula & Ors,[24] the offenders were convicted of conspiracy to traffick in heroin and were sentenced to 13 years' imprisonment. It was an offence at common law and carried no prescribed maximum penalty. The substantive offence of trafficking in heroin was punishable by 15 years' imprisonment. In re-sentencing the offenders to 11 years, the Full Court applied the principle stated in Verrier and Hoar that no greater penalty should normally be imposed than would be imposed for the substantive offence.[25]

21 In none of the cases which discuss this principle is it suggested that a conspiracy is to be treated as a lesser offence than the substantive offence the object of the conspiracy. For example, in R v Ferman & Stoforo[26] this Court rejected a submission that a sentence on a count of conspiracy was manifestly excessive because the duration of the conspiracy was short and the agreement not implemented. The Court said:

It is clear, however, on the unchallenged findings of the sentencing judge, that the conspiracy continued until the offenders were apprehended by the police. Up to that point it was the intention of Ferman to return to the house and implement the plan, in other words, to enter the house and steal any money that may have been in it. It is important to recognise that the applicant was charged with conspiracy to commit aggravated burglary and not with aggravated burglary, and that he pleaded to that charge. The offence carries a maximum penalty of 25 years' imprisonment, and in the circumstances of this case, the sentence imposed by his Honour was well within the range that was open to him.[27]

Plainly, the Court in Stoforo did not consider that a lesser penalty should be imposed for conspiracy to commit aggravated burglary than would have been imposed had the substantive offence been committed. Exceptionally, the element of concert may justify a more severe penalty for conspiracy than for the substantive offence.[28]

22 Where, as in the present case, the commission of the substantive offence is prevented by police intervention, this will not ordinarily reduce the objective gravity of the crime or result in mitigation of penalty.[29] Nor will the conspiracy be rendered the less heinous because, unbeknown to the conspirators, the planned offence is unlikely to be carried out to completion.[30] Particularly where the conspirators have in furtherance of their agreement undertaken all of the steps necessary to accomplish the objective, there is no reason in principle why the inchoate offence should attract a lesser penalty than the substantive offence.

23 It follows that the sentencing judge erred in law by approaching the question of sentence on the basis that, as the robbery was not in fact committed, a penalty less than that appropriate for the substantive offence should be imposed.

24 As noted earlier, senior counsel for the respondent conceded that, if the Court upheld the Director's ground of specific error regarding the judge's approach to sentencing for conspiracy, the Court must inevitably come to the conclusion that the sentences were manifestly inadequate. This concession followed senior counsel's earlier submission (made in defence of the judge's view that the conspiracy to rob was less serious than the completed robbery would have been) that the sentence for 'a robbery of this kind' would have been likely to be five years' imprisonment with a non-parole period of three years. For reasons which follow, the concession was rightly made.

25 The sentencing judge rightly described the conduct the subject of count 2 as representing 'a significantly more serious escalation in criminal offending' as compared with the behaviour the subject of count 1.[31] The conspiracy involved careful and sophisticated planning as to how to hijack the truck, dislocate the GPS, and subdue the driver. The planning also encompassed the distribution of the stolen goods. In addition to the matters particularised in support of the ground, the Director correctly emphasised the respondent's active and significant role. He had taken part in numerous meetings to plan the crime. It was he who had suggested rendering the driver unconscious; identified the particular truck and driver as the target; and supplied materials to be used in the robbery.

26 Immediately prior to the respondent's arrest, he believed that the agreement had been implemented and successfully completed.[32] In short, he had done all he could to ensure that the substantive offence was committed. As stated earlier, the seriousness of the respondent's criminality is not reduced either because the conspiracy was defeated by the intervention of police or because there was no real prospect that the substantive offence would have been committed.[33] It was a very serious example of the offence of conspiracy to commit robbery.

27 Counsel for the Director also submitted that it was an aggravating feature of the offending that the respondent had breached the trust reposed in him by Linfox as a longstanding sub-contractor. The respondent's counsel submitted that, as he was neither an employee nor a bailee, there could have been no breach of trust. Counsel did, however, accept that the respondent had utilised 'inside information', available to him only because of his working relationship with Linfox, and that he had 'betrayed the confidence' that the contractor had placed in him. These concessions were rightly made. Such considerations bore directly upon the respondent's moral culpability.

28 It is necessary for this Court to intervene to correct the view which the learned sentencing judge was persuaded to apply to the crime of conspiracy and to ensure that adequate standards of punishment for this crime are maintained. The sentence imposed on count 2 was only a very small proportion of the maximum penalty of 15 years' imprisonment for the offence of conspiring to commit robbery.[34] As we have explained, there was no basis for imposing a lesser sentence for the conspiracy to rob than would have been required for the substantive offence of robbery. That being so, it is plain that the sentence of two years' imprisonment (12 months of which was suspended) for count 2 was manifestly inadequate. The sentence was so disproportionate to the seriousness of the crime as to shock the public conscience.[35] It did not satisfy the need for general deterrence and denunciation.

29 As the common law requirements for the bringing of Crown appeals are amply satisfied,[36] it is unnecessary to determine whether the abolition of double jeopardy by s 289 of the Criminal Procedure Act 2009 has relieved the Director of the obligation to comply with those requirements.[37]

30 Whatever view may be taken of the effect of s 289 on the question whether a Crown appeal should be allowed, it cannot be doubted that s 290(3) of that Act requires this Court, when re-sentencing an offender, to make no allowance for the principle of double jeopardy in fixing the new sentence.

31 The respondent was born in Hungary. He was aged 53 years at the time of the offending and 55 years at the time of sentencing. He came to Australia in 1979. After separating from his wife in 1999 the respondent entered into another relationship which lasted five years. When each relationship ended, there was a property settlement. On the second occasion the respondent had to pay his former partner $70,000 after distribution of assets. The respondent is now in another relationship and is the sole provider for his present partner and her six year old son. It was accepted by the sentencing judge that the property settlements had substantially depleted the respondent's assets and that his present financial circumstances had contributed significantly to his decision to commit these crimes.

32 Counsel for the respondent relied upon several matters in mitigation. The respondent pleaded guilty at the earliest opportunity. He had one prior conviction in 1997, of being in possession of property, namely an engine, suspected of being stolen or unlawfully obtained (he claimed he did not know that it was stolen). He was sentenced by the Magistrates' Court at Ringwood to pay a fine of $750. The respondent had a 'long and strong' history of employment. His prospects for rehabilitation were good. Specific deterrence did not assume great importance, as his Honour found that he was 'unlikely to re-offend'.

33 The Crown had submitted on the plea that a head sentence in the range of four years and six months' imprisonment to five years and six months' imprisonment, with a non-parole period of three to four years, was appropriate. During oral argument, counsel for the Director stated, with his customary fairness, that the range proposed by the Crown on the plea had been a little high. He submitted that the correct range was a total effective sentence of four years to four years and six months' imprisonment, with a non-parole period of two years to two years and six months.

34 We note in passing that the identification of such a narrow range will rarely constitute compliance with this Court's decision in R v MacNeil-Brown; R v Piggott.[38] The range identified in a Crown submission should mark out the boundaries within which (according to the submission) the sentencing discretion can lawfully be exercised. In any case where the likely sentence is four years or above, it would be most unusual for the area of reasonable difference in opinion to be as confined as six months. The narrower the 'range' put forward by the Crown, the more nearly the Crown's submission will resemble a contention as to what the actual sentence should be. A contention of that kind would, of course, be wrong in principle and directly contrary to the decision in MacNeil-Brown. No submissions having been addressed to these issues, however, we say nothing further about them.

35 We would allow the appeal, and re-sentence the respondent to six months' imprisonment on count 1 and four years' imprisonment on count 2. We would order that two months of the sentence on count 1 be served cumulatively on count 2 making a total effective sentence of four years and two months' imprisonment. We would fix a non-parole period of two years and six months. Had the respondent not pleaded guilty and been convicted after trial, we would have imposed a total effective period of imprisonment of five years and four months, with a non-parole period of three years' imprisonment.

[1] See [17] below.

[2] DPP v Fabriczy (Unreported, County Court of Victoria, Judge O'Neill, 27 April 2010), [3]-[11].

[4] Crimes Act 1958 (Vic) s 321C(1)(c). (Special provision is made in the case of murder and treason: s 321C(1)(ba).)

[5] Crimes Act 1958 (Vic) s 75(2).

[6] R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 403.

[7] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 550, 554_; DPP v DDJ_ [2009] VSCA 115; (2009) 22 VR 444, 460.

[8] See Crimes Act 1958 (Vic) s 321P(1)(a).

[9] DPP v Bhagwan [1972] AC 60, 79 (Lord Diplock).

1. [10] R v Ongley (1940) 57 WN (NSW) 116, 117 (Jordan CJ); Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 334 (Deane J); Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 364 (Young CJ, O'Bryan and Tadgell JJ).

[11] R v Hoar [1981] HCA 67; (1981) 148 CLR 32, 38 (Gibbs CJ, Mason, Aickin and Brennan JJ); Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 327, 334; Kamara v DPP [1974] AC 104, 119.

[12] Truong v R [2004] HCA 10; (2004) 223 CLR 122.

[13] DPP v Doot [1973] AC 807, 823 (Viscount Dilhorne); R v G, F, S and W (1974) 1 NSWLR 31, 43-4.

[14] DPP v Doot [1973] AC 807, 817-8 (Lord Wilberforce); R v Wasson [2004] NSWCCA 200, [21].

[15] William Hawkins, Pleas of the Crown, 1716-21 (1973) vol 1, 190.

[16] Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 364 (Young CJ, O'Bryan and Tadgell JJ).

[17] M Goode, Criminal Conspiracy in Canada, applied by the Federal Court in R v Hoar and Noble [1981] FCA 20; (1981) 34 ALR 357, 364.

[18] R v Shepherd (1988) 37 A Crim R 303, 313.

[19] Marie, Chitrizza and Casagrande (1983) 13 A Crim R 440; Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 365; Shepherd (No 2) (1988) 37 A Crim R 466, 478; Gillies, The Law of Criminal Conspiracy , 2nd ed (1990) 254-5); R v Koh [2001] NSWCCA 324.

[20] R v Kane [1975] VicRp 64; [1975] VR 658, 661, applied in Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 6.

[21] Verrier v DPP [1967] 2 AC 195.

[23] Verrier v DPP [1967] 2 AC 195; R v Morris [1951] 1 KB 394; R v Blamires Transport Services Ltd [1964] 1 QB 278; R v Field [1963] 3 All ER 269; R v Hoar [1981] HCA 67; (1981) 148 CLR 32.

[24] [1987] VicRp 55; (1986) 22 A Crim R 409.

[25] Ibid 430; see also R v Shepherd (No 2) (1988) 37 A Crim R 466, 478.

[26] [1999] VSCA 76.

[27] Ibid [29] (Chernov JA with whom Tadgell and Ormiston JJA agreed).

[28] R v Hoar [1981] HCA 67; (1981) 148 CLR 32, 38; Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 6.

[29] Ansari v R [2007] NSWCCA 204 (Howie JA).

[30] Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362, 364.

[31] DPP v Fabriczy (Unreported, County Court of Victoria, Judge O'Neill, 27 April 2010) [45].

[32] Truong v R [2004] HCA 10; (2004) 223 CLR 122.

[33] R v Wasson [2004] NSWCCA 200.

[34] Crimes Act 1958 (Vic) ss 75(2) and 321C(1)(c).

[35] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 234 (referred to with approval in Carroll v The Queen [2009] HCA 13; (2009) 254 ALR 379, 381) where Deane and McHugh JJ referred to Isaac J's statement in Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230, 248; _Won_g v R [2001] HCA 64; (2001) 207 CLR 584, 591-2 (Gleeson CJ).

[36] R v Clarke [1996] VICSC 30; [1996] 2 VR 520; DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538.

[37] This Court (constituted as a Bench of five) has recently heard argument on that important question, and reserved its decision.

[38] [2008] VSCA 190; (2008) 20 VR 677 ('MacNeil-Brown').