DPP v Gray [2005] VSCA 267

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 This is an appeal by the Director of Public Prosecutions against sentences imposed on 14 June 2005 by a judge of the County Court sitting at Bendigo. The respondent had pleaded guilty to two counts of intentionally causing serious injury, both offences occurring on 14 January 2005 at Bendigo.

2 The respondent, who was then aged 39 years, had attended by taxi at the home of the two victims, Craig Branson and Allen Bleasdale, at about 9 p.m. The respondent was in the company of a friend, Jason Austen. Both Austen and the respondent were drunk. Branson was aged 24 years, was of diminutive stature and suffered an intellectual disability, the precise extent of which was not made clear during the proceedings, but was significant enough for the investigating police to video tape their interview with him and to utilise the assistance of a social worker, known to the victim, in its conduct. A reading of the transcript of that interview suggests that the intellectual impairment was moderate. Bleasdale was aged 38 years and suffered schizophrenia. Both victims knew the respondent and were fearful of them. Bleasdale told police that the respondent, when drunk, took pleasure in assaulting people.

3 The respondent ordered the two victims to get into the taxi with himself and Austen. Neither of the victims had the opportunity to change clothes and Bleasdale was dressed in underpants and a t-shirt when he left the house. The taxi driver later told police that the respondent and Austen were aggressive towards the two men, who seemed to him to be frightened. The respondent complained to them that he had not been repaid a debt.

4 After collecting alcohol on the journey the group was delivered by the taxi at the residence of the respondent and Austen, and upon entry the respondent commenced to assault the two victims with his fists, punching them to the head and body. Branson said he was first slapped, but then punched two or three times, with the respondent demanding that he pay him $20 owed by him for cannabis. The respondent then punched Bleasdale in the face a number of times.

5 The respondent thereupon argued and fought with Austen, at one point kicking him in the face, but then returned his attention to the original victims, punching them, in turn, with a clenched fist. Branson told police that he was punched to the head and face around 20 to 30 times.

6 At this point the respondent used a metre-long steel bar to assault both victims. Bleasdale used his left arm to protect his head from blows delivered whilst he was seated. He was also struck on the leg. In all, he was struck with the bar about 10 times, he said. Branson was then struck by the bar a number of times and he, too, used his arm to protect his head. He also claimed that he was struck about 10 times with the bar.

7 The respondent put down the bar and continued to punch the victims, then used a full bottle of bourbon to strike Branson to the head two or three times, causing lacerations to his head. The respondent then punched Bleasdale. Bleasdale was bleeding and the respondent told him to go outside rather than bleed on the carpet. Once outside Bleasdale escaped from the scene and made his way to a friend's house. The respondent and Austen then assaulted Branson by holding him in a chair and punching him with clenched fists. As Austen punched Branson the respondent assaulted Branson with a deodorant can and also sprayed some of the contents of the can into Branson eyes. Eventually Branson escaped the premises, with the assistance of Austen, and walked to his home where he was later joined by Bleasdale. The two men then went to Bendigo Hospital for treatment for their injuries.

8 On observation by an investigating police officer, Bleasdale had a swollen elbow and swelling and broken skin to his left forearm and was bleeding from a cut to his left eye. Later, examination at hospital by a medical practitioner disclosed that Bleasdale had superficial lacerations to his left eyebrow and his left elbow, a tender, swollen elbow, with reduced range of movement, and a tender left forearm.

9 The police officer noted that Branson's face was swollen and both eyes were swollen and blackened. His nose had been bleeding and he had a large cut to the rear of his head, approximately 6 centimetres long. He had a number of other cuts and abrasions to the top of his head and he also had cuts and abrasions and swelling to his right forearm. No medical report was tendered concerning the injuries to Branson.

10 In submissions on the appeal Mr Tehan submitted the Court ought be cautious about accepting the accounts of the victims as to the number and severity of the blows they were struck, given that the objective signs of injury were much less severe than might have been anticipated having regard to the victims' descriptions of the assaults. I agree that some caution is required in that respect, but it was accepted by the pleas of guilty and in submissions to the judge that that both victims suffered serious injury. Mr Tehan accepted that to be so but submitted, correctly in my view, that the injuries actually sustained were in the lower range of serious injuries with which this Court is commonly concerned. Neither of the victims suffered fractures and neither was admitted to hospital.

11 There were no victim impact statements in this case. I will not speculate as to why that might be so, but it was not disputed that two victims had been terrified by the events.

12 In submissions on sentence counsel then appearing for the respondent described his client as a long-term recovering alcoholic but submitted that he had taken significant steps to deal with his alcoholism. Counsel advised the judge that upon being released on bail on 17 January 2005 the respondent had complied with a condition of bail that he not consume any alcohol whatsoever. Also, whilst on bail, he had successfully completed a day rehabilitation programme with the Salvation Army which occupied six weeks. He had reported to Bendigo Police Station twice a week without giving any indication that he had been consuming alcohol. In addition, counsel tendered a report from the respondent's medical practitioner, together with a psychiatric report. I will refer to those reports later.

13 Counsel submitted to the judge that an Intensive Correction Order would be the appropriate sentencing disposition. An Intensive Correction Order can be applied only where a sentence of not more than 12 months' imprisonment was to be imposed[1]. The prosecutor submitted that it was a case which demanded a sentence of immediate imprisonment, but he made no comment as to the appropriateness of there being a twelve month ceiling on the total effective sentence of imprisonment that the judge might impose.

14 The respondent admitted 25 previous convictions from 16 court appearances. Among his prior convictions were the following: convictions in June 1987 for robbery and for causing injury intentionally, for which he was sentenced to a total effective sentence of three years and six months' imprisonment with a minimum of two years and six months; a conviction for criminal damage in July 1987, for which he was sentenced to two months' imprisonment; convictions in 1994 for assault with a weapon and breach of conditions of an intervention order, for which he was sentenced to imprisonment of five months on each count, three months of which was suspended for 12 months; in June 1995 he was convicted of assault with a weapon and other counts and on the assault count was sentenced to nine months' imprisonment, wholly suspended for a period of 12 months; in April 1999 he was convicted of causing injury recklessly and was sentenced to six months' imprisonment to be served by way of Intensive Correction Order; in February 2001 he was sentenced to seven days' imprisonment for breaching the terms of an intervention order, which sentence was suspended for three months.

15 In response to counsel's contention for an ICO, the judge said that he proposed to have the respondent assessed for a Combined Custody and Treatment Order. He then addressed the respondent, pointing out that whilst it did not follow that he would necessarily make such an order, if he did then its terms would mean that he would be dealt with by having his substance abuse "attacked relentlessly", both in custody for six months and then in the community for six months. These remarks were made towards the close of the proceedings on 8 June 2005 and the judge announced that the respondent would be bailed to appear the next morning at 10.30 a.m. No protest was made by the prosecutor that a Combined Custody and Treatment Order was inappropriate in this case. On the following morning the judge announced that an appointment had been made that day for an assessment to be conducted with respect to a Combined Custody and Treatment Order and the prosecutor again made no comment as to that course. At 2.15 that afternoon the judge advised counsel that the report had not been completed and that he would "deal with it" at a time and date stated. At the appointed time, 14 June 2005, and without calling for further submissions, nor being requested to permit same, his Honour then imposed sentence on the respondent.

16 On count 1 his Honour announced that the respondent would be convicted and sentenced to three years' imprisonment and that the imprisonment "will be suspended for 30 months for three years". On count 2 his Honour announced that the respondent would be convicted and sentenced to a 12 month combined Custody and Treatment Order. His Honour then commented:

"You understand that with a combined Custody and Treatment Order you do six months in custody with treatment and then six months in the community, and that is why I have tailored the other sentence: suspended it - so, on it you will get out after six months. They will be concurrent. Do you understand that?"

17 The Return Of Prisoners signed by his Honour in this case wrongly records that the sentence on count 1 was wholly suspended. It is agreed by counsel appearing before us, however, that his Honour intended to suspend only 30 months of the sentence of three years' imprisonment on count 1.

18 The Director appeals the sentences, contending, first, that the sentences imposed on counts 1 and 2 were contrary to law, in that they were imposed in breach of s.18Q(5) of the Sentencing Act 1991. Alternatively the Director contended that the sentence imposed on each count was manifestly inadequate, a range of particulars being stated both as to matters of aggravation that were said to have been given too little weight and as to a range of mitigatory factors that were said to have been given too much weight. No complaint was made in the grounds of appeal as to the failure of the judge to impose some measure of cumulation between the two sentences.

The interpretation of s.18(Q)(5).

19 Mrs Quin, counsel for the Director, contended that the terms of s.18Q(5) when read with sub-s.1, make it abundantly plain that where, as in this case, an offender was being sentenced for more than one offence the total effective sentence of all offences could not exceed 12 months' imprisonment if a Combined Custody and Treatment Order was to be available to be imposed on any count. The sentence imposed in this case exceeded that limit, by virtue of the sentence of three years' imprisonment imposed on count 1. Accordingly, the sentences imposed on both counts were invalid.

20 Section 18Q(1) and 18Q(5) read as follows:

"18Q. Combined custody and treatment order

(1) If a person is convicted by a court of an offence and the court -

(a) is satisfied that drunkenness or drug addiction contributed to the commission of the offence; and

(b) is considering sentencing him or her to a term of imprisonment of not more than 12 months; and

(c) has received a pre-sentence report -

the court, if satisfied that it is desirable to do so in the circumstances, may impose a sentence of imprisonment of not more than 12 months and order that no less than 6 months of that sentence be served in custody and the balance be served in the community on the conditions attached to the order.

...

(5) If the offender is convicted of more than one offence in the same proceeding the court may only make a combined custody and treatment order if the aggregate period of imprisonment imposed in respect of all the offences does not exceed 12 months."

21 Critical passages of the language used in s.18Q are similar to those employed in s.27, when referring to suspended sentences (and likewise in s.19(4), which deals with intensive correction orders). Thus, in s.27(2) it is provided that the court may only make an order suspending a sentence of imprisonment "if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is convicted of more than one offence in the proceeding ... does not exceed three years ...".

22 Mr Tehan submitted, however, that s.18Q should be interpreted as having the same effect as the then applicable terms of s.36(1) and s.36(2), which relate to community based orders, as those provisions were interpreted in R. v. Young[2], by Crockett and Ashley, JJ. Section 36(1) then and now provided, inter alia, that a community based order could be made only if the offender had been convicted "of an offence or offences punishable on conviction by imprisonment ...". The language of s.36(2) has been amended since that decision, but s.36(2) at the time when Young was decided read:

"A court may make a community based order in respect of an offender in addition to sentencing the offender to a term of imprisonment of not more than three months."

23 In Young the sentencing judge, dealing with 13 counts of deception, imposed twelve concurrent sentences of 18 months' imprisonment which he ordered wholly suspended and on one count imposed a community based order for two years. Crockett and Ashley, JJ. held[3] (Nathan, J. dissenting) that the reference to "a term of imprisonment" in s.36(2) related only to any sentence or sentences imposed on counts on which a community based order was to be imposed. None of those counts could involve a sentence of more than three months' imprisonment. Their Honours held, however, that that did not preclude sentences being imposed on other counts in excess of three months' imprisonment, when on those counts it was not intended that a community based order would apply.

24 Crockett and Ashley, JJ. found it unnecessary to decide a second question, as to whether the phrase "to a term of imprisonment" could apply to a wholly suspended sentence. Mr Tehan accepted, and did not seek to argue otherwise, that the Court was bound to interpret that phrase as it had been interpreted when applied to s.27, namely, that whether or not all or part of the sentence was suspended it was the sentence imposed before suspension that constituted the "term of imprisonment" under the Act. He submitted, however that, as in Young (for a Community Based Order), a sentencing judge could structure the sentences on multiple offences so that a CCTO applied to only some of them, and on other counts sentences in excess of 12 months could be imposed.

25 In my opinion, no guidance is obtained by the decision in Young. The language of s.36(2) as it then appeared[4] is quite different from that employed in s.18Q and, in particular, s.36(1)(a) expressly referred to the making of "a" Community Based Order in respect of an offender where it had convicted the offender of "an offence or offences" punishable on conviction by imprisonment (or a fine of more than five penalty units). Thus, it was open to be interpreted that by s.36(1)(a) it was intended that a CBO could apply to a number of offences, provided that on none was the offender first required to serve more than three months' imprisonment. The rationale it may be thought was that a Community Based Order did not lend itself to being delayed unduly before coming into operation, but a delay of three months while an actual terms of imprisonment was experienced was not inconsistent with the objectives of the CBO.

26 Nowhere in s.36 does the language employed in s.18Q(5) appear, namely "if the aggregate period of imprisonment imposed in respect of all the offences does not exceed [three/twelve months]". That phrase lends itself to interpretation as being a reference to a total effective sentence.

27 Mrs Quin submitted that it has never been doubted that the aggregate period of imprisonment referred to in s.27(2) relates to the total effective sentence of all offences dealt with by the sentencing court and that interpretation should be given to the words in s.18Q(5). That argument gains support from the explanatory memorandum to the Sentencing and Other Acts (Amendment) Bill which introduced s.18Q to the Sentencing Act 1991. The memorandum contains the following statement:

"Where an offender is being sentenced in relation to a number of offences, a CCTO may only be made where the total effective sentence or aggregate sentence that the court proposes to impose, does not exceed 12 months' imprisonment. A CCTO is regarded as a sentence of imprisonment for the duration of the order, which includes the period when the offender is released into the community." [Emphasis added].

28 In my view, the plain intent of s.18Q is that a Combined Custody and Treatment Order can only be imposed in circumstances where the total effective sentence for all offences does not exceed 12 months' imprisonment.

29 The sentences, here, having created a total effective sentence of three years' imprisonment the order was contrary to the Act, and the sentencing discretion is reopened. It is strictly unnecessary, therefore, to consider the alternative ground of appeal as to the sentences being manifestly inadequate since the court is obliged to exercise its own discretion in imposing sentence, in any event. Nonetheless, it is appropriate to have regard to the sentences imposed in the court below, since this is a Director's appeal and it would be inappropriate, in my opinion, to impose an increased sentence in the exercise of our own discretion if the re-sentencing flows merely by virtue of an incorrect interpretation of s.18Q but when the sentence imposed by the judge was otherwise within range. In my opinion, however, an examination of the sentence discloses that it was not within range.

30 The sentencing remarks of the learned sentencing judge were brief. It is plain, however, that his intention was, as he said during submissions, "to break the institutional cycle and the problem about alcohol". That is a laudable objective, but it seems tolerably clear that his Honour recognised that but for the desire to achieve that result through a CCTO the sentence on count 2 would have been greater than that which he in fact imposed.

31 His Honour described the offending conduct as amounting to "animal lawlessness". His Honour said that the respondent:

"Showed a total indifference to human life and that seems to have been a prevailing characteristic of your life. You are only 39 and have filled your life with anti-social behaviour, constructed upon violence and substance abuse. You have indeed led a very destructive and self-destructive existence."

32 Whilst there is force in Mr Tehan's contention that the injuries suffered are not consistent with the victims having received the number and ferocity of blows that they recalled, his Honour's description of the savagery of the assault is close to the mark. Given the respondent's history of prior offending, and notwithstanding the mitigatory factors to which I will refer, it is really impossible to accept that a sentence of 12 months' imprisonment (with six months, only, to be served) was within range on count 2. Indeed, his Honour's sentence on count 1 and his remark that he had "tailored" the sentences to allow him to impose a CCTO is tacit recognition of that fact.

33 There were however, mitigatory factors which merited close consideration by his Honour and by this Court on re-sentencing. His Honour noted that the respondent's offending against the law commenced 31 years previously and he had been in custodial situations for 13 years altogether. He accepted that the respondent had lived a very dysfunctional life. His Honour was properly concerned that the respondent was close to being institutionalised.

34 The sentencing discretion having now been reopened Mr Tehan sought leave, which was granted, to supplement the material which was placed before the judge with additional evidence, filed by way of affidavit, concerning the progress of the respondent and his attempts to wean himself off alcohol since he was released on bail with respect of these offences. I will turn to that new material, shortly.

35 In his report tendered before the judge the respondent's medical practitioner, Dr Chris Daw, stated that the respondent was suffering chronic Hepatitis C and had suffered depression and asthma. He had sustained injuries in a motor cycle accident in 1992, suffering both back and neck injuries which led to pain in his legs, poor mobility and pain generally. He had a long history of alcoholism but Dr Daw described many occasions where he had attempted to abstain from alcohol. He had received psychological and psychiatric assistance from time to time. He experienced chronic pain and suffered mood swings and depression.

36 Dr Daw noted that when he saw the respondent on 3 May 2005 he was undertaking drug and alcohol counselling with the Salvation Army and was continuing to take anti-depressant medication. Dr Daw reported that the respondent had greatly reduced his alcohol intake and was actively seeking drug and alcohol counselling. He was in continuing pain and Dr Daw thought it unlikely that his various medical problems would be resolved in the foreseeable future.

37 A psychiatric report by Dr Allen Jager said of the respondent that he had a very unstable development history and had been the subject of violent assaults by his stepfather after his parents divorced when he was aged seven years. He had very limited schooling, and criminal conduct started at the age of eight. He had been educated only to year 9 and had been unemployed for 17 years. He had been on a disability pension for the last eight years. He had four children from three different partners, had abused alcohol from the age of nine and, later, drugs, including marijuana and amphetamines, and had abused prescription tablets from the age of 18. He had attempted suicide by various means. Dr Jager diagnosed him as having conduct disorder and anti-social personality disorder and as being poly-substance dependent.

38 In the report prepared for the Combined Custody and Treatment Order the author of the report, Sue Hill, proposed that if the court made such an order the respondent would be given semi-intensive drug and alcohol programmes in prison and would then be required to attend residential rehabilitation, upon release, for a period of three to six months and would also receive individual drug and alcohol counselling as soon as his residential treatment was completed. She opined that after 25 years of excessive alcohol consumption "a sustained period of remission could only be claimed if Mr Gray was able to abstain for at least 12 months or longer".

39 The material that was before the judge as to the prospects of rehabilitation of the respondent has been supplemented by a body of fresh evidence placed before this Court on the appeal. Given that it will be necessary to re-sentence the respondent the court has received that material.

40 Among the fresh material is the respondent's affidavit dated 2 November 2005 in which he deposes to the programs he has undertaken while in custody and the benefit he has derived from them, in particular the drug and alcohol and anger management courses. He has remained abstinent from alcohol or illicit drugs. He states that upon release he wishes to continue contact with the Salvation Army Bridge Program. The respondent's mother in her affidavit, deposed that after his arrest and release on bail he remained alcohol free, with noticeable benefits in his demeanour. She deposed to his determination to overcome his alcohol addiction and his keenness to participate in rehabilitation programs upon release.

41 Mr Gary Taylor the Senior Alcohol and Other Drugs counsellor at the Salvation Army Bridge Program at Bendigo swore two affidavits. He deposed that the respondent had been active and showed positive desire to overcome alcohol when he attended the program in prison. As to future programs, should the respondent be released on 13 December 2005, as his present sentence dictates, he would not be able to join any new group program until the last week of January 2006. He was making enquiries as to the respondent's possible participation in a residential rehabilitation program run over 16 weeks with The Basin Rehabilitation Centre in suburban Melbourne. In a second affidavit sworn 14 November 2005 he deposed that the intake worker at The Basin had informed him that the respondent could be admitted to that centre provided there was a request made from the Australian Community Support Organisation (ACSO). As to that prospect we have an affidavit from the respondent's solicitor Mr Timms and a Drug and Alcohol Assessment Report from Mr Mark Tatti of Community Offenders Advice and Treatment Service (COATS).

42 Mr Timms deposes that Jane Morton of Australian Community Support Organisation Community Offenders Advice and Treatment Service ("ACSO COATS") advised that the assessors at the Basin "will not assess or make plans to admit the Respondent into the centre until he is released". The tentative date at which he could enter the residential program, if approved, would be 28 December 2005.

43 In his report, Mr Tatti, the Senior Clinician, recommended that upon his release the respondent attend for individual counselling at the Salvation Army centre in Bendigo under Gary Taylor. As to residential programs, he said "It is further advised that Mr Gray may be considered suitable for a residential Rehabilitation Program by his drug and alcohol counsellor if this regime is considered appropriate at a later stage".

44 Although the report of Mr Tatti notes the willingness of the respondent to continue counselling with Mr Taylor and notes too his remorse for these offences, the report falls short of advising that the respondent will be accepted into the residential rehabilitation program and that upon release his rehabilitation would depend on his participation in ongoing counselling with Mr Taylor.

45 The new material tendered on behalf of the respondent lends support for Mr Tehan's submission that the respondent is making particular effort to seize the opportunity given to him by the judge to deal with his alcohol and drug problems. His efforts merit praise and encouragement, but the fresh material does not persuade me that this is an appropriate case to take the exceptional course of not intervening with a six month's sentence which is manifestly inadequate, having regard to the offences committed.

46 Mr Tehan submitted that even if we concluded that the sentences imposed below were manifestly inadequate this would have been an appropriate case for the Court to exercise the residual discretion it undoubtedly has on a Director's appeal[5] not to intervene notwithstanding that sentencing error had been established. Similar considerations should guide the court when re-sentencing, he submitted. Counsel submitted that the efforts made by the respondent in undertaking counselling and alcohol treatment programs and his abstinence from alcohol pursuant to what he believed to be his sentence should not be undermined by a heavier sentence. He submitted, too, that the prosecutor in the court below failed to argue that the judge had no power to impose a CCTO and failed to contend that in any event a sentence of 12 months' imprisonment would be manifestly inadequate for the case.

47 Mr Tehan referred to R. v. Casey and Wells[6]. It is relevant to the question whether to allow a Director's appeal that the prosecutor failed to make appropriate submissions which would have avoided sentencing error. In this case, however, I doubt that the judge would have been dissuaded from his course had counsel made such submissions. It was very much at the judge's initiative that a CCTO was under consideration, at all, and his Honour was obviously convinced that his interpretation of s.18Q was correct. Neither before nor after receiving the report did he invite the prosecutor to make any submissions as to the appropriateness of such an order, and commenced his sentencing remarks on the resumed hearing without any discussion about the report. Whilst it would certainly have been better had counsel sought to disabuse the judge of the correctness his interpretation of the section or the appropriateness of his proposed order (assuming that counsel was aware of the terms of s.18Q(5)), I am not persuaded that his efforts would have avoided the course that was taken.

48 Full weight must be given to the efforts at rehabilitation being undertaken by the respondent. Furthermore, although we are strictly not concerned with the question of manifest disparity between the sentences on the two counts (since the failure to comply with s.18Q requires that the sentences be set aside and the respondent be re-sentenced) full weight must also be given to the factor of double jeopardy on a Director's appeal. Even so, the disparity between the two sentences simply cannot be allowed to stand. In so concluding, I accept that the conduct in count 2 did not continue as long as that embraced by count 1, and the vulnerability of the victim was also not as great as in count 1, but in my view there was otherwise little difference between the seriousness of the conduct under each count.

49 It is also not appropriate that having regard to his prior convictions the period actually served in custody by the respondent for this offending conduct, on two counts carrying a 20 year maximum sentence of imprisonment, be only six months' imprisonment.

50 It is unfortunate that the treatment regime under s.18Q is limited to cases where a total effective sentence of no more than 12 months' imprisonment is imposed. His Honour was undoubtedly correct in concluding that it would be in the interests both of the respondent and, in the long term, of the community, that powerful encouragement be provided for the respondent to overcome his addictions. The power of a sentencing court is, however, very limited in seeking to attain that objective, in circumstances such as these where the offences are of such seriousness. In proposing that the respondent be re-sentenced to a longer term of actual imprisonment I recognise that it involves the removal of an order that compelled the respondent to continue a treatment and counselling regime after his release from prison, whereas the order I will propose does not entail any similar element. Hopefully, there will be continuing programs available to the respondent as part of the correctional regime.

51 In proposing that a parole period be fixed, and that it be an unusually lengthy one - having regard to the seriousness of the offences and the antecedents of the respondent - the Court can give emphasis to rehabilitation under the supervision and support of the Parole Board.

52 I have concluded that, having regard to the fact that the Director's grounds of appeal did not expressly complain about its absence, an order for cumulation should not be made. It otherwise would have been appropriate to order some degree of cumulation[7]. The sentence that I propose gives particular weight to the factor of double jeopardy, in that respect.

53 I propose that on count 1 the respondent be re-sentenced to 3 years' imprisonment and on count 2 to two years and six months' imprisonment, thus producing a total effective sentence of three years' imprisonment. I would direct that the respondent not be eligible for parole until he has served 12 months of that sentence of imprisonment.

54 I have had the advantage of reading in draft the reasons for judgment of Eames, J.A.

55 I agree with respect with his Honour's construction of s.18Q of the Sentencing Act 1991. For the reasons which his Honour gives the section makes clear that that a combined custody and treatment order may only be made where the total effective sentence imposed on all counts of which a prisoner is convicted in the one proceeding does not exceed 12 months. It follows that it was not open to the sentencing judge in this case to make a combined custody and treatment order and thus that the appeal should be allowed.

56 I have more doubt about the total effective sentence of three years imprisonment and non-parole period of 12 months to which Eames, J.A. proposes that the respondent be re-sentenced. On any analysis it is an extraordinarily lenient sentence for two counts of intentionally causing serious injury in the circumstances recorded in Eames, J.A.'s judgment; even giving full weight to the principle of double jeopardy as it applies in Crown appeals and to the ameliorating considerations which plainly apply.

57 In the end, however, I have come to the view that such if any chances of rehabilitation as the respondent may have left to him are heavily dependent upon him continuing with the programme of detoxification and rehabilitation to which he has applied himself since the time of his arrest. The sentence and non-parole period proposed by Eames, J.A. are evidently adapted to that end. And, therefore, in the special circumstances of this case, I am disposed to agree with them.

58 I agree with Eames, J.A., for the reasons which His Honour gives, that the appeal should be allowed and the respondent re-sentenced as is proposed.

[1] See s.19(4) Sentencing Act 1991.

[2] (1995) 81 A.Crim.R. 70.

[3] At 72-3.

[4] Following the decision in Young, s.36(2) was amended to add after the final words "more than three months" the additional words "provided that the sentence of imprisonment is not ordered to be served by way of Intensive Correction Order ... or ... is suspended in whole or part". The amendment was made by s.18 of Act No 48 of 1997).

[5] See DPP v. Leach [2003] VSCA 96; (2003) 139 A.Crim.R. 64, at 74.

[6] (1986) 20 A.Crim.R. 191, at 195-6; see too Malvaso v. the Queen [1989] HCA 58; (1989) 168 C.L.R. 227 at 233; Everett v. The Queen [1994] HCA 49; (1994) 181 C.L.R. 295, at 305.

[7] It is to be noted, however, that no submission was made on behalf of the Director either to the judge or to the Court of Appeal that Part 2A of the Sentencing Act 1991 applied or should be applied in this case.