DPP v Galea; DPP v Mosut [2000] VSCA 87

10. Carlino had been introduced to Galea on 20 July 1998, by an informer. As a result Galea agreed that he would, on 22 July, supply Carlino with one ounce of heroin for $7,000. This transaction in fact took place shortly after midday on 22 July, 27.9 grams of powder changing hands, the heroin being about 70% pure. At the time of this transaction Galea agreed to supply Carlino with a further ounce of heroin later the same day, again at a cost of $7,000, and this further transaction in fact took place, 27.7 grams of powder being supplied, the heroin being of the same degree of purity.

13. The third transaction was that which led to count 2, Galea supplying Carlino on 28 July with a quantity of ecstasy capsules (supposedly 162 in number) for $4,050, representing $25 per capsule. It was later found that only 151 capsules had been supplied, a total of 30 grams of substance, the ecstasy being about 70% pure.

16. The fourth and last transaction concerned a very large quantity of heroin. It had been arranged during the meeting on 28 July and in a series of subsequent telephone conversations that Galea would supply Carlino with 35 ounces of heroin at a price of $6,500 per ounce. After lengthy and warily conducted preliminaries, Galea was arrested at a time when he was expecting to hand over the heroin immediately in exchange for $250,000 which had been brought to the scene and which he had counted. It was the respondent Mosut who had brought the heroin to the scene. Carlino had been allowed to feel the packages containing it as a preliminary to the contemplated exchange of cash for drugs. Mosut had retained possession of the heroin. He had driven off in a car with it and thrown it out of the car shortly before his arrest. The substance in one of the two packages weighed 447.6 grams and the heroin was about 60% pure. The substance in the other package weighed 527.9 grams and the heroin was about 50% pure. Thus the total amount of the substance containing heroin which was handed over in the two transactions on 22 July and was ready to be handed over on 29 July was 1031.1 grams and the approximate total quantity of pure heroin was 570 grams. The three transactions were relied on in support of count 1. The prescribed commercial quantities at the time were 500 grams of substance and 250 grams of heroin.

19. Mosut was Galea's accomplice in relation to the intended sale of 35 ounces of heroin for $250,000 on 29 July. He was not shown to have been connected with the two sales of heroin made by Galea on 22 July or the sale of ecstasy made by Galea on 28 July. Mosut was charged with one count of trafficking in a commercial quantity of heroin on 29 July 1998. After a contested committal and a trial which ran from 29 June 1999 to 6 July 1999 he was convicted. The trial judge heard a plea on his behalf on the same day as that on which he heard the plea on behalf of Galea, and sentenced both prisoners on 15 December. Mosut, like Galea, was sentenced to five years' imprisonment. In the case of Mosut one year of that sentence was made concurrent with the sentence he was undergoing and a new non-parole period was fixed, being the period ending on 21 November 2003. A declaration of 112 days' pre-sentence detention was made; I shall say more of that declaration later. The quadruplicate relating to Mosut, broadly reflecting the indorsement on the presentment, wrongly records two declarations: "that a new minimum time before the prisoner becomes eligible for parole be reduced by two months" and "that this sentence is to commence on 21/1/2002". This is misleading. The supposed declarations are really no more than parts of the reasons for sentence. As to the first, the judge said only that he would reduce the non-parole period he would otherwise have fixed by two months to allow for the four month delay in the hearing of the plea. As to the second, the judge was observing that the sentence of three years nine months passed on 21 December 1998 would expire on 20 January 2002 in view of the declaration of 244 days' pre-sentence detention made at the time of that sentence.

22. Galea was 30 at the time he was sentenced. He admitted 38 previous convictions, having been before the court on twelve occasions between 1987 and 1997. None of the convictions was for a drug offence. The judge described the previous convictions as not of much significance for his purposes. Whether this view should be accepted depends on what the judge was seeking to convey by it. In my opinion the prior convictions were a matter which had to be given some weight in sentencing. While some of them could be ignored, others were not without significance. The convictions for dishonesty included convictions for theft, burglary, forgery, handling and obtaining property by deception. Between 1992 and 1997 Galea had been sentenced to imprisonment on half a dozen occasions. He had over the years been shown a good deal of leniency by means of a variety of dispositions, including in more recent times a number of suspended sentences. His Honour mistakenly believed that all of the prior convictions had been sustained in the Magistrates' Court.

25. At the time of committing the present offences Galea was on bail on a charge of armed robbery. The significance of the fact that an offence is committed while on bail has recently been considered by this Court in R. v. Basso and Frazzetto[1]. His Honour was referred by counsel to s.16(3C) of the Sentencing Act 1991, whereby a sentence of imprisonment for an offence committed while on bail must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed, whether before or at the same time as the sentence in question. Galea was not undergoing some other sentence when he was dealt with on 15 December 1999, so that this provision applied only to the two sentences of imprisonment passed on that date. His Honour directed that those two sentences be served concurrently, giving as his reason that the trafficking in ecstasy was in reality part of the ongoing trafficking in drugs of dependence committed between 22 and 29 July.

28. Mosut admitted ten previous convictions from six court appearances between 1985 and 1992. These included convictions of theft, handling and unlawful possession. Much more importantly, his convictions included trafficking in heroin (sustained in 1988 and resulting in a fine), possession of heroin (sustained in 1990 and resulting in a suspended sentence of one month's imprisonment), trafficking in heroin (sustained in 1992 and resulting in a sentence of four months' imprisonment) and possession of heroin (sustained in 1992 and resulting in one month's imprisonment). Moreover he was at the time of the present offence on bail on a charge of trafficking in heroin, to which he pleaded guilty and for which he had been sentenced before being dealt with for the present offence. That sentence, imposed on 21 December 1998, was one of three years and nine months' imprisonment, with a non-parole period of one year and nine months and a pre-sentence detention declaration of 244 days. That offence was evidently committed between about June 1997 and November 1997, in which latter month Mosut was arrested. Central to that trafficking business was a so-called "safe house", rented in the name of a relative of Mosut's and used by Mosut, not as a residence, but as a place for the preparation of high grade heroin for sale. The judge sentencing Mosut on 15 December 1999 was told by the Crown prosecutor that the declaration made at the time of the sentence passed on 21 December 1998 by his Honour Judge Jones brought to account all pre-sentence detention, Mosut having been a prisoner serving a sentence since 21 December 1998. The first statement was incorrect, but it was not challenged by Mosut's counsel. His Honour on 15 December 1999 declared Mosut to be entitled to the benefit of 112 days' pre-sentence detention.

31. After much travail, counsel for Mosut and counsel for the Director are in agreement that Mosut was arrested on 18 November 1997 in respect of the offence for which Judge Jones sentenced him ("the earlier offence") and released on bail on 16 June 1998, by which date he had been in custody for 210 days, that custody being referable solely to the earlier offence; that Judge Jones was erroneously told by counsel, on 18 December 1998, that the period of custody was 241 days; that, in sentencing on 21 December 1998, his Honour added the intervening three days to arrive at 244 days (the period he declared); that Mosut was arrested on 29 July 1998 in relation to the present offence and was thereafter continuously in custody until the time of Judge Jones's sentence on 21 December 1998; that at a status hearing on 6 August 1998 the bail granted in respect of the earlier offence was revoked, with the result that from 6 August 1998 until 21 December 1998 Mosut's detention was doubly warranted; that the period of pre-sentence detention that should have been declared by Judge Jones was 347 days (210 days between arrest on 18 November 1997 and release on bail on 16 June 1998 and 137 days between revocation of bail on 6 August 1998 and sentence on 21 December 1998); that the actual declaration of 244 days made by Judge Jones left a balance of 103 days; that the balance of 103 days was a period of doubly warranted detention which, not having been declared as served under the sentence for the earlier offence, fell to be declared when Mosut was sentenced for the present offence (compare Sentencing Act, s.18(2)(d)); and that the declaration of 112 days actually made on 15 December 1999 was accordingly correct (the 103 days undeclared balance plus the nine days between the arrest on 29 July 1998 and the revocation of bail on 6 August 1998).

34. As regards the circumstances of the offenders in respects other than those already mentioned, Galea is dyslexic and largely unable to read or write. He has had a variety of jobs. He has a de facto wife, with whom he has lived for some years, together with her child and two other children which she has had by him. There was no suggestion that he was a drug addict or even a user. While in prison he had completed a number of courses, a circumstance which impressed the judge favourably. He had suffered a head injury in a car accident at the age of ten. A psychologist who reported on him for forensic purposes in 1992 recommended that a neurologist be asked to determine whether his difficulties in reading and writing, headaches and memory problems had an organic basis, but it seems that a neurologist was never asked to assess him. According to a psychiatrist, Dr Walton, who provided the psychiatric report requested by the judge, Galea showed quite markedly deficient literacy and numeracy skills and some memory impairment. He was also said to be disoriented in time. But Dr Walton described him as fundamentally a man of normal intelligence. Dr Walton was supplied only with the presentment and further presentment: he had no other documentary material and so all he had to go on was what he was told by Galea. This is unfortunate, and it put Dr Walton in a difficult position. Steps should have been taken to ensure that appropriate material was made available to the person preparing the report: compare what is said in the Victorian Sentencing Manual[2] about the provision of materials to assist the author of a report. The report was bespoken in the present case before the hearing of the plea and this limited the available material, but something in addition to the presentment and further presentment should have been sent.

37. We of course have, as had the judge, a great deal of material showing what Galea said and did in his dealings with the covert operative. None of this voluminous material suggests a person disoriented in time. Dr Walton put forward a number of opinions about motivation, culpability and other matters. Some at least of these views commended themselves to the judge. It is a question whether Dr Walton would have formed those views if he had had the benefit of the large quantity of material showing what Galea had said and done in his dealings with Carlino. Dr Walton adopted Galea's explanation of his trafficking as based on a desire to accommodate his friend (the informer who had introduced him to Carlino) by obtaining drugs for Carlino because he felt indebted to the friend.

"In your discussions with K. [the informer] and Carlino you were led to believe that Carlino was in a position to help you gain employment as a truck driver, and then dealing in drugs was discussed. You agreed to obtain drugs for sale to Carlino, no doubt in the hope that Carlino would in due course help you to obtain employment, and also because you felt some obligation towards K. for the assistance he had given to your de facto wife."

44. Specific error in the finding of facts is not alleged by the Director in his appeal against the sentence passed on Galea. In view of this, that appeal is to be approached on the basis of the judge's finding set out above.

47. I return to the respondent Mosut. Here the judge relied heavily on findings made by Judge Jones, who had sentenced the prisoner twelve months earlier for another serious trafficking offence. Unlike Galea, Mosut was said to be an addict. The judge's findings in relation to Mosut, made by him by adopting the findings made twelve months earlier by Judge Jones, included findings that Mosut had come to Australia from Romania as a refugee at the age of 26; that he was married, with two children; that he had been in regular employment since arriving in Australia and had eventually set up his own business as a cleaner; that he had started using cannabis in 1985 and later used heroin and was using it at the time of the 1997 offence; that he was a person of normal intelligence; and that he had attended drug and alcohol programs while in prison awaiting trial for the 1997 offence. The judge noted that since his arrest in July 1998 Mosut had completed two courses in prison and said that he also took into account the delay of about four months between readiness to make a plea for leniency and the hearing of the plea.

50. As I have said, Dr Walton had only the presentment and further presentment and what he was told by Galea. Accordingly he did not have the report of Mr Joblin, dated 17 July 1992, or the report of Dr Byrne, dated 1 December 1989, which were both placed before the judge. He had only what he was told by Galea together with what he described as his own "simple clinical testing", which was said to show some memory impairment, significant cognitive deficit and disorientation in time. Dr Walton referred to a head injury sustained by Galea in a car accident at the age of ten. He said:

"In my opinion Mr Galea's cognitive problems are not satisfactorily explained simply on the basis of his being ill-educated. I have relatively little information to hand but it would seem that the incident of head injury when he was around 10 years of age very likely has left him with a degree of persisting brain injury. ... Mr Galea certainly seems not to have been motivated towards his involvement in drug trafficking because of any personal difficulties with substance abuse. Rather this man seems to have acted out of a misguided sense of obligation to his friend and I believe it is a reasonable proposition that this cognitively impaired man has a limited capacity for consistently exercising proper social judgement, which ought to be regarded as a mitigating factor. ... Given the probability that this man is actually brain injured and, furthermore, that it is my view that the brain injury does have some significance in relation to his offending, I believe Mr Galea would be a candidate for at least partial escaping of general deterrent aspects of sentencing. While he is cognitively impaired, that is not so severe such that specific deterrent aspects of sentencing would be lost to him. As indicated above, there are continuing rehabilitative issues to be addressed. Mr Galea thoroughly castigates himself in relation to his ill-considered conduct which has led to his current charges and, while on the basis of his past history he would have to be regarded as at some risk of reoffending, it would seem unlikely that he might be tempted precisely towards drug trafficking again."

54. I must say I find it difficult to see how Dr Walton, on the material available to him, was able to form the view that it was probable ("very likely") that brain damage had been sustained. The judge quoted the last paragraph which I have set out from Dr Walton's report and said that he accepted the views there expressed and framed his sentence on the basis of them. The judge had, as I have said, material that was not before Dr Walton, and, as I have also said, the notice of appeal does not attack the findings of fact made by the judge. In these circumstances, we must proceed on the basis of the judge's finding that some brain damage had been sustained when Galea was a child and that there was in consequence some impairment of cognition. But it is necessary to consider the whole of Dr Walton's opinions which the judge said he accepted, and it is necessary to consider these opinions against the background of the conduct of the plea and the evidence led in the course of it.

57. As regards Dr Walton's opinions, he has, as psychiatrists and psychologists so often do, proffered a view on the application of the principles of sentencing by suggesting that Galea "would be a candidate for at least partially escaping a general deterrent aspect of sentencing". In the next sentence Dr Walton concedes that the cognitive impairment "is not so severe such that specific deterrent aspects of sentencing would be lost to him". Consideration of specific deterrence may raise two questions: whether there is a danger of re-offending and whether the offender is a person likely to respond to a deterrent. Anyone given and taking the opportunity, denied to Dr Walton, of reading the transcripts of the recorded conversations and the other evidence of Galea's dealings with Carlino, including, to give one example only, the evidence that Galea searched Carlino, looking for a hidden recording device, would have no doubt at all that Galea was a proper subject for specific deterrence so far as his own likely response is concerned. The evidence shows that he was at all times very well aware of the need to escape detection, that he feared detection and that he took many precautions to escape it. On the material before the sentencing judge it would have been fatuous to suggest that he was not a proper subject for specific deterrence so far as his own likely response was concerned. As regards the danger of his re-offending, it may be noted that the last sentence of Dr Walton's report accepts that he stood in need of deterrence. As regards general deterrence, the words used by Dr Walton, and adopted by the judge, were that he "would be a candidate for at least partial escaping of general deterrent aspects of sentencing" (my emphasis). Dr Walton's "at least partial" phrase was relied on during the plea, counsel inviting the judge to give "little weight, if any" to general deterrence. If Dr Walton's words are to be taken literally, as they presumably are - and the judge was invited on the plea to take them literally - then the view is being expressed and adopted that it is arguable that "this cognitively impaired man" with his "limited capacity for consistently exercising proper social judgment" is a person in the sentencing of whom considerations of general deterrence should play no part at all. Such a view is, with respect, quite insupportable.

60. I need not mention any of the many authorities dealing with the circumstances in which general deterrence as a sentencing consideration will be affected by the offender's mental state (an expression I use in a wide sense). It is enough to consider what the materials disclose in the present case. One begins with the paradox to be found in Dr Walton's report itself. His suggestion that Galea "has a limited capacity for consistently exercising proper social judgement, which ought to be regarded as a mitigating factor" and allow him to escape, if not entirely, then at least in part, the general deterrent aspects of sentencing, is to be read in conjunction with his opinion that Galea arranged to supply one kilogram of heroin "despite his considerable reservations" and his further opinion (expressly accepted by the judge) that Galea "thoroughly castigates himself in relation to his ill-considered conduct which has led to his current charges". These two observations of Dr Walton are difficult to square with the idea that the offender's capacity for exercising proper social judgment was significantly limited. The same may be said of Dr Walton's taking note of the fact that Galea "actually morally disapproves of drug taking". It is difficult to see how profound remorse can be shown by a person whose ability to exercise "proper social judgement" is so limited as to lessen, if not remove altogether, the weight to be given to general deterrence. And the judge was told by Galea's counsel on the plea that he was remorseful, that he "does accept full responsibility for what happened" and that he now says, "I feel ridiculous, stupid. I've let me wife and my family down". According to counsel on the plea, his client was sufficiently mindful of the niceties to ask her to tell the judge, first, that he was wearing dark glasses for his dyslexia and did not mean any disrespect to the court by wearing them and, secondly, that he wished to apologise to the court and to Mosut for any inconvenience caused as a result of his having said that he wanted to change his plea. Sensibility of this kind does not sit well with Dr Walton's view about proper social judgments. Counsel called Galea's de facto wife with a view to establishing through her evidence that he was sorry for what had happened and was embarrassed. Again the suggestion is one of remorse and sensibility. In his reasons for sentence the judge said that he accepted that Galea was extremely remorseful and took full responsibility for his actions.

63. In all these circumstances, and in particular having regard to the judge's own findings, it seems to me impossible to say that this was a case in which both specific and general deterrence were to be given less than normal weight by reason of the offender's mental, psychiatric or psychological state. The great importance of general deterrence as a sentencing consideration in most cases of drug offences has been accepted as long as our society has been plagued by them.

66. His Honour accepted and acted upon the view that Galea, being cognitively impaired by reason of brain damage, had a limited capacity for consistently exercising proper social judgment, so that he should escape, in part at least, the general deterrent aspect of sentencing. But other statements in the psychiatrist's report on which the judge acted, the conduct of the plea by counsel for Galea, evidence led in support of the plea and the judge's own findings combine to contradict the assertion of inability to exercise proper social judgment. I think that the judge's reasons show that he did fail to give appropriate weight to general deterrence and in addition suggest that he did not give appropriate weight to specific deterrence. The only reference by the judge to general deterrence in either of his two sets of reasons is to be found in his adoption of Dr Walton's view about at least partial escape.

69. The principles on which the Court acts in considering Director's appeals are too well established and too well known to require mention, as are the authorities which lay down and illustrate them.

72. In neither case does the Director attack any of the judge's findings of fact. In Galea's case the notice of appeal alleges that the head sentence passed on each count is manifestly inadequate, saying that in imposing those sentences and fixing the non-parole period the judge -

"(a) failed to adequately reflect the gravity of the offences generally and in this case in particular; (b) failed to take into account or sufficiently to take into account the aspect of general deterrence; (c) failed to take into account or sufficiently to take into account the aspect of specific deterrence; (d) gave too much weight to factors going to mitigation; and (e) failed to sufficiently take into account the fact that the present offences were committed while the Respondent was on bail for other matters including Armed Robbery."

76. In Mosut's case the Director says that both the head sentence and the non-parole period are manifestly inadequate. The ensuing particulars are, with appropriate modifications, the same as those employed in Galea's case, with the difference that they say in addition that the judge gave too little weight to the respondent's prior convictions.

79. The Crown relies, as it did before the judge, on the recent decision of this Court in R. v. Berisha, Elmazovski and Rizmani[3], a case of trafficking in a commercial quantity of heroin, where sentences of ten years with a non-parole period of seven-and-a-half years and eight years with a non-parole period of six years on three first offenders, one of whom had pleaded guilty, were upheld and observations were made about the approach of the courts to offences of this kind. More recently, in R. v. Mandala[4] Winneke, P. referred to Berisha and endorsed the views there expressed about the need to impose penalties which will have a strongly deterrent effect.

82. The Crown sought to complain of the total concurrency directed in relation to the two sentences imposed on Galea. But, the direction for total concurrency not having been challenged by the notice of appeal, the Court ruled that the sentence could not be attacked as regards that direction. I say no more about concurrency at this stage, although if the appeal succeeds and substituted sentences are passed on Galea it will be necessary for this Court to form its own view on the matter of concurrency. This is accepted.

85. The "status" of ecstasy in relation to other drugs was considered by Winneke, P. in R. v. Carey[5] and by Batt, J.A. in R. v. Zehavi[6]. In both cases what was said may be regarded as having been said on behalf of the Court. In the second of these cases Batt, J.A. said at [17] (speaking of importation), "The fact that the drug in question was ecstasy rather than heroin does not palliate the offence much, if at all ...". See too what was said by Winneke, P. in R. v. Mandala[7], where the drugs imported were ecstasy, methylamphetamine and amphetamine, and note the remarks of Tadgell, J.A. in the same case.

88. The notice of appeal in each case refers to some five or six matters, each the subject of a lettered sub-paragraph. So it is said that the judge failed to take into account sufficiently or at all the aspect of general deterrence. I have already said that the judge's reasons seem to me to show that he did err in this respect. But the notice of appeal seems to me to treat the need for general deterrence as a particular of the ground of manifest excess rather than allege specific error in the reasons for sentence. In these circumstances specific error in the reasons cannot be used to bring down the sentence but can be used to explain how it is that the judge came to pass too lenient a sentence if the Court considers that manifest inadequacy is shown.

91. The sentences passed on Galea on both count 1 and count 2 are to my mind such as to reveal error in principle. The judge cannot, in passing a sentence of only five years for the trafficking in heroin, have had proper regard to the large quantity - more than double the commercial quantity - of heroin involved and its value (of which estimates were provided), the maximum sentence provided by the legislature and the extreme importance of general deterrence in crimes of this kind. Nor do I think that his Honour can have directed himself properly as regards the significance of the fact that these offences were committed while the offender was on bail, and moreover on bail in respect of an extremely serious charge. His Honour did refer to the fact that the offences were committed while on bail, and to s.16(3C) of the Sentencing Act, but there is nothing in the reasons for sentence dealing with Galea to suggest that his Honour thought that the fact that an offence had been committed while on bail was significant except in relation to its attraction of the provisions of s.16(3C). (In the course of sentencing Mosut, his Honour made passing reference to the fact that he had been on bail at the time of committing the offence, and referred to the effect of s.16(3C), but again nothing in the reasons suggests that the fact that the offender was on bail was treated as relevant in any other way.)

94. Galea was sentenced to one year's imprisonment on the count of trafficking in ecstasy, the available maximum being 15 years. He had, it will be recalled, agreed to supply 200 capsules but in fact supplied only 151, representing that the bag handed over contained 162. In my view the sentence passed for trafficking in ecstasy was, like the heroin sentence, so inadequate as to require appellate intervention having regard to the principles on which this Court acts in deciding whether to intervene on a Director's appeal.

97. I think his Honour was led into error by acting on the suggestion of Dr Walton that Galea "would be a candidate for at least partial escaping of general deterrent aspects of sentencing". I have no doubt that the judge erred specifically in this regard, but, specific error not being alleged in the notice of appeal, I mention the matter only as providing an explanation of the passing of manifestly inadequate sentences on Galea.

100. The sentence passed on Mosut is in my view also so inadequate as to call for appellate intervention. In imposing a sentence of only five years his Honour has failed to take properly into account the quantity of heroin involved - almost double the commercial quantity - and its value, the maximum sentence and the need to deter would-be traffickers in general and the respondent in particular. The respondent had, among his other convictions, a number of drug offence convictions, including two convictions for trafficking in heroin. He was on bail on a further charge of heroin trafficking when he committed the present offence, and that further offence was itself a serious one, resulting in a head sentence of three years and nine months; Judge Jones spoke of quite a sophisticated operation, reflecting considerable criminality. This emphasised the need for specific deterrence. The sentence of five years passed on Mosut was quite outside the range and reveals error in principle. While specific error is not raised in the notice of appeal, the reasons for sentence concerning Mosut dwell on suggested mitigating circumstances and make no mention of deterrence, general or specific. The explanation of the manifest inadequacy may be that the judge became preoccupied with what he saw as mitigating circumstances.

103. I would allow each appeal. Galea should be resentenced to seven years' imprisonment on count 1 and 18 months' imprisonment on count 2. Twelve months of the sentence on count 2 should be directed to be served concurrently with the sentence on count 1, giving a total effective sentence of seven years six months. I would fix a non-parole period of five years and make a pre-sentence detention declaration of 664 days.

106. I have been persuaded by Mr Priest's submission that the head sentence passed on Galea for trafficking in heroin should differ from that passed on Mosut.

109. Mosut should be sentenced to eight years' imprisonment, of which one year should be directed to be served concurrently with the sentence for the earlier offence, and a new, single non-parole period expiring on 21 December 2005 should be fixed. Pre-sentence detention of 272 days should be declared.

112. These proposed sentences have been reduced to reflect the fact that these are Director's appeals.

116. I have had the advantage of considering Brooking, J.A.'s reasons and conclusions. I agree with both, and the orders proposed.

[1] [1999] VSCA 201

[3] [1999] VSCA 112

[4] [1999] VSCA 159

[5] [1998] 4 V.R. 13 at 17-18

[6] [1998] VSCA 81

[7] [1999] VSCA 159 at [23] and [24]