DPP v Josefski [2005] VSCA 265

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

1 I have had the considerable advantage of reading in draft the judgment of Chernov, J.A., in which the circumstances of the case and the arguments on the appeal are fully described, and the concurring judgment of Callaway, J.A., which contains a valuable restatement of the principles governing the fixing of a non-parole period and the review of that decision by an appellate court.

2 Callaway and Chernov, JJ.A. would dismiss the appeal in respect of the sentence on count 3 (conspiracy to pervert the course of justice) but would uphold the appeal in respect of the non-parole period which, in their Honours' view, should be increased from 10 months to 18 months.

3 I agree that the appeal in relation to count 3 should be dismissed, for the reasons which their Honours give. I have, however, reached a different conclusion in relation to the non-parole period. For the reasons which follow, I would dismiss that part of the appeal also.

Crown appeals: the cardinal rule

4 This is an appeal against sentence by the Crown. As has often been said, Crown appeals on sentence fall into a very special category. The cardinal rule, as repeatedly stated in this Court, is that -

"an appeal by the Crown should be brought only in 'the rare and exceptional case'... to establish some point of principle."[1]

5 In 1977_,[2]_ Barwick, C.J. formulated the rule as follows:

"... An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons."[3]

6 In 1994[4], the High Court reaffirmed the "rare and exceptional" test, explaining that there were "strong reasons" underpinning its stringency:

"An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed."[5]

7 The High Court had earlier said that a Crown appeal was -

"contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy."[6]

8 As recently as 6 October 2005, McHugh J noted in York v R[7] that -

"Since the conferral on the Crown of rights of appeal against sentences, appellate courts have been much influenced in their approach to such appeals by the principle of double jeopardy."[8]

9 As Kirby, P. explained in Cooke v Purcell,[9] the principle against double jeopardy has a basis different in kind from the related rules which promote finality of litigation, such as res judicata and issue estoppel:

"The principle at stake in the development of the 'double jeopardy' rule is grounded in something more fundamental than the prevention of re-litigation or the promotion of finality of proceedings. It is based, ultimately, upon a perceived principle fundamental to civil rights."[10]

10 In Cooke, Kirby, P. cited the following passage from the decision of the Canadian Supreme Court in Cullen v The King,[11] (written at a time when Canada had no Charter of Rights). Rand, J. said:

"At the foundation of the criminal law lies the cardinal principle that no man shall be placed in jeopardy twice for the same matter and the reasons underlying that principle are grounded in deep social instincts. It is the supreme invasion of the rights of an individual to subject him by the physical power of the community to a test which may mean the loss of his liberty or his life; and there is a basic repugnance against the repeated exercise of that power on the same facts unless for strong reasons of public policy."[12]

11 What is involved in a Crown appeal against sentence is not a true "double jeopardy". But, as Kirby, P. said in R v Hayes[13] -

"... in a practical sense, there is a species of double jeopardy. The prisoner's liberty, pocket and reputation are put in jeopardy both before the sentencing judge and before the appellate court... In addition, the prisoner suffers the anxiety and stress caused by the situation of uncertainty arising from the delay in resolving his or her position."

12 As the Full Court of the Federal Court said in R v Tait and Bartley[14]-

"A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs, J. in Whitaker v The King[15]). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

13 It is the common law's abhorrence of double jeopardy which explains why a Crown appeal on sentence should only occur in the "rare and exceptional case". In Clarke,[16] this Court restated the cardinal rule and the reasons for it, before setting out six sets of circumstances in which this Court's intervention at the instance of the Crown might be required, as follows:

(a) where a sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle;[17]

(b) to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;[18]

(c) to establish and maintain adequate standards of punishment for crime;

(d) to correct idiosyncratic views of individual judges as to particular crimes or types of crimes;

(e) to correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;[19]

(f) to ensure, so far as the subject-matter permits, that there would be uniformity in sentencing.[20]

14 Nothing said in Clarke suggests that the description of these categories was intended to detract from the stringency of the cardinal rule. Indeed, the frequency with which the rule has been cited in this Court confirms that it is the governing principle. For example, in DPP v Whiteside and Dieber,[21] Winneke, P. said, after referring to Griffiths, Malvaso, Everett and Clarke,

"Those authorities make it clear that the court's jurisdiction under s.567A of the Crimes Act to interfere, at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned, or such inadequacy as is indicative of error or departure from principle: R v Dodd[22]."[23]

15 I have restated these well-known principles for the same reason that I referred to them in open court at the commencement of the hearing of this appeal. There is - as there should be - lively public interest in and debate about the sentencing decisions made by courts. These are matters of concern both to persons directly involved in and affected by a criminal proceeding, and to the wider community. It is important, therefore, that the exceptional character of a Crown appeal be clearly understood. Both the DPP, and this Court, are constrained by the principles to which I have referred.

"To establish some point of principle"

16 As already noted, a Crown appeal should be -

"a rarity, brought only to establish some matter of principle".

17 In Everett, the High Court explained that "matter of principle" in this context must be understood as -

"encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick, C.J. [in Griffiths] saw as constituting 'error in point of principle'."[24]

18 The full passage from the judgment of Barwick, C.J. in Griffiths is as follows:

"Inadequacy of sentence... is not satisfied by a mere disagreement by the Court of Appeal with the sentence actually imposed. It means, in my opinion, such inadequacy in the sentence as is indicative of error or departure from principle. ... Gross departure from what might in experience be regarded as the norm may be held to be error in point of principle."[25]

19 In Clarke, this Court said that a Crown appeal might properly be brought -

"where a sentence reveals such manifest inadequacy in sentencing standards as to constitute error in principle".[26]

20 In Johnston,[27] this Court, having referred to Clarke and Everett, said:

"It is not merely a question of concluding that a sentence is insufficient; it must be such as to establish clear and egregious inadequacy".[28]

The present case

21 The Director's submission in the present case was that -

"the individual sentences, the total effective sentence and the non-parole period imposed in this case [were] all manifestly inadequate."

22 The submission referred to categories (a), (b), (c) and (e) from Clarke, but did not seek to show why this was a "rare and exceptional" case, nor why the sentence exhibited -

"such manifest inadequacy as to constitute error in principle".

23 At the conclusion of his written outline, the Director summarised his submission as follows -

"[T]he sentence imposed indicates that his Honour must have... given too much weight to mitigating factors and insufficient weight to the gravity of the offending and available maxima. The sentence also indicates that his Honour had insufficient regard to the effect of the offending on the family members of the deceased."

24 The test of manifest inadequacy is to be determined by examining the sentence imposed in the light of all the circumstances. As Phillips, C.J. said in DPP v Devaldez[29] (dealing with a "manifest inadequacy" ground couched in identical terms to Ground 1 in the present case) -

"In the resolution of such a ground it is well-established that one identifies the relevant circumstances and then looks at the face of a sentence. It then appears manifestly inadequate or it does not."[30]

25 Chernov, J.A. has given detailed reasons for concluding that the sentence on count 3, while more lenient than that which his Honour would have imposed, was within the range of sentences that were available to the learned trial Judge. As stated earlier, I respectfully agree with those reasons and with that conclusion.

26 As to the non-parole period, the Director argued that a period of 10 months was "unacceptably low". When asked by me to specify - if he could - the minimum below which it would have been unreasonable for any sentencing judge to do, the Director nominated 13.5 months.

27 The determination by this Court as to whether a sentence is manifestly inadequate or manifestly excessive does not involve the application of mathematical formulae. It is very much a matter of impression and, of course, of experience. I recognise that the two other members of this Court, both experienced in deciding Director's appeals, have concluded that the non-parole period fixed in this case was manifestly inadequate. Giving full weight to their Honours' reasons for so concluding, I have nevertheless come to a different conclusion, one factor being the response by the Director to my question.

28 Speaking for myself, I see no reason why, on a Director's appeal, the Court ought not invite the Director to nominate what he considers to be the limits of the appropriate sentencing range for a given case. I accept that it may not always be possible to provide a definite response to such a question and it is of course ultimately for the Court, not counsel, to decide these issues. Having had the benefit of the Director's response to my question and of his submissions generally, I find myself unpersuaded that the non-parole period which was fixed in this case was "of such manifest inadequacy" as would constitute error in principle on the part of the trial Judge. This is particularly so given that any new non-parole period fixed by this Court would need to provide "an adequate discount" to reflect the exposure of the respondent to double jeopardy.[31]

29 It is a matter of regret that the trial Judge, in the course of sentencing remarks which were otherwise full and clear, gave no reasons for his decision to fix the non-parole period at 10 months. The failure to give reasons for an unusually low non-parole period invites appellate scrutiny, as Callaway, J.A. has once again had to point out.

30 As has so often been said, clear explanation of sentencing decisions is essential. Self-evidently, such explanation enables those directly involved in or affected by the case - and also the wider community - to understand the steps in the reasoning process by which the particular conclusion was arrived at. In the absence of an explanation from the Judge, others - including this Court - have no alternative but to speculate.

31 I am not persuaded, however, that the absence of reasons in this case should be taken as reflecting sentencing error. Had it fallen to me to fix the non-parole period, I would probably have fixed a longer period. But, as the authorities make clear, such a difference of view is not enough to warrant appellate intervention.

32 The matters relied on by counsel for the respondent as providing a reasonable justification, or a rational explanation, for the Judge's decision to fix the non-parole period at 10 months are fully set out in the judgment of Chernov, J.A. In my opinion, those matters are capable of providing a reasonable justification, and a rational explanation, for the decision arrived at by a very experienced trial Judge. The advantages of the trial Judge in a case such as this are, in my view, very considerable. As Barwick, C.J. noted in Griffiths,[32] those advantages were admirably described by Isaacs, J. in Whitaker v The King.[33] Although what was there said referred to sentencing after a trial, rather than (as here) after a plea of guilty, the considerations are similar.

"The just sentence to be passed on an offender after an open trial depends, or may depend, on many considerations not apparent or available to the Court of Appeal. The condition and appearance of a prosecutor who has been assaulted or robbed, his manner of giving evidence, the demeanour of witnesses, the prisoner's conduct in Court, the impression produced by the words, the behaviour or the personal appearance of the accused, the "atmosphere", as it may shortly be called, of the trial, are or may be of very great worth in estimating the appropriate penalty for the crime. The printed reproduction of the formal documents and other evidence, charge, verdict, and possible further statement of the convicted person, may most inadequately convey the real or full import of the proceedings."[34]

33 If further explanation were required for his Honour's decision to fix the non-parole period at 10 months, it may be found in the exercise of mercy. As Eames, J.A. said in DPP v Leach[35] -

"It is particularly important that this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped. That, after all, may be a decision which redounds very much to the benefit of the community.

Thus, I acknowledge the very important right of a sentencing judge to extend leniency in a case which seems to him or her to be appropriate, and to do so even if it is difficult to identify precisely what it is about the offender which leads to that conclusion." (emphasis added)

34 The latter remark picked up what was said by King, C.J. in R v Osenkowski,[36] that there always remains a place for the exercise of mercy and leniency -

"when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform."[37]

35 The choice of non-parole period cannot, in my view, be said to reflect any failure of the trial Judge to appreciate the gravity of the offences. On the contrary, his Honour identified, in clear and emphatic terms, the seriousness of what had occurred and the importance of general deterrence. The Judge denounced the respondent's conduct as "disgraceful, dishonourable and unacceptable", noting that it was -

"of great importance that motorists realise that they have [a] duty to anyone injured by their driving, whether by their fault or not, to stop and render assistance."

"If an appeal to common humanity and decency falls on the deaf ears of some, then perhaps the knowledge that to break the law in this way will result in appropriate punishment will deter them. That message should be clearly promulgated."

Consideration of the impact on the family of the deceased

37 One of the great difficulties of this case is that the anguish experienced by the family was the consequence of the tragic death of their son and brother. This was reflected in the victim impact statements. But, as the sentencing Judge said -

"That death, and the loss which followed it, were not suffered as a direct result of the offences before me. To that extent I cannot take into account the material in the victim impact statements."

38 As noted above, one of the "particulars" of manifest inadequacy relied on by the Director was that the sentencing Judge -

"gave insufficient weight to the effect of these offences upon the family members of the deceased person."

39 As I read the sentencing Judge's remarks, however, his Honour was acutely aware of the effect of the offending on the deceased's family:

"[The victim impact statements] also deal with the consequences of your failure to stop and render assistance and of your conspiracy to prevent discovery and proof of the truth. Your behaviour in that regard and its consequences, which are a direct result of these offences, are relevant considerations. The pain and sense of loss suffered has been prolonged and intensified, as the father of the deceased says, and for some years. I do not detail the relevant material here but I have studied the victim impact statements and the effect of your offending in respect of the matters before me has been profound."

40 I have read the victim impact statements myself. His Honour's

characterisation of their content seems to me, with respect, to be entirely accurate. The members of the victim's family have been profoundly affected by the respondent's conduct. I am satisfied that his Honour took those consequences into account, as he was bound to do,[38] in arriving at his decision.

CALLAWAY, J.A.:

41 I agree with Chernov, J.A.

42 Sentencing judges often say that they welcome statements of principle by the Court of Appeal. In R. v. VZ[39] Batt, J.A. and I tried to provide some assistance in relation to non-parole periods.[40] Phillips, C.J., who dissented, went out of his way to endorse what we had said on that subject.[41] The case was not reported for some time, but it is now in the authorised reports.

43 No single judgment can state the whole law on a subject like non-parole periods and judicial statements are not like a code. They do not freeze the common law or inhibit its further development and they are not to be construed like statutes. Nevertheless the following propositions may be derived from R. v. VZ:

1. When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given.

2. A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive.

3. Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny.

4. The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner's

rehabilitation through conditional freedom.

5. The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release.

6. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case.

7. It follows from 5 and 6 that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.

8. All the relevant factors have to be taken into account. They are many and varied, but they include -

(a) that a non-parole period has a penal element;

(b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and

(c) that the prisoner's prospects of rehabilitation are almost always a significant consideration.[42]

44 R. v. VZ has often been applied, for example in R. v. Pope[43], R. v. Harkness & Ors[44] and R. v. Barnes.[45] Those cases, including the footnotes to the judgments, amplify and add to the propositions summarised above.

45 A very short non-parole period relative to the head sentence invites scrutiny. It may be justified by special factors, as in R. v. Tsiaras[46] and R. v. Bullen[47]; but on some occasions it suggests that too little weight has been given to mitigating factors in determining the head sentence or that too much weight has been given to them in fixing the non-parole period.

46 In the former case the judge may have overlooked that a head sentence must be imposed on the basis that the prisoner may have to serve every day of it. No account is to be taken of the possibility, or even the likelihood, of executive action in the form of release on parole.[48] In the latter case, of which the present is an example, the judge may have given insufficient weight to the penal aspect of the non-parole period or to the need not to undermine the sentencing objectives sought to be achieved by the head sentence.

Postscript

47 Since writing the above I have had the advantage of reading in draft the reasons for judgment prepared by the learned President. I have considered the matter again, but I am still persuaded that a non-parole period of ten months, in relation to a head sentence of 27 months, in all the circumstances of this case, including an absence of remorse, was manifestly inadequate and calls for appellate intervention even on a Crown appeal. If necessary, I would say that the inadequacy discloses error of principle and that that view is reinforced by the learned Judge's reference to R. v. Krasnov and Shlakht[49].

48 I think it would have been better if the Director had asked leave not to respond to the question from the Bench about figures. It is quite possible to submit that a sentence, or a non-parole period, is manifestly excessive or manifestly inadequate without specifying the outer boundaries. Like Chernov, J.A., I am not at all sure that it is possible to specify those boundaries. I am quite sure that, in most cases, it is unnecessary, and undesirable, for counsel to do so. I would reserve for

another day the question whether an exception should be made for Crown appeals.[50] At present I am unpersuaded.

49 That having been said, the Director's response constituted, at most, a concession that a 50 per cent non-parole period would not have been manifestly inadequate. If that concession be accepted, and the Court is under no obligation to do so, the comparison to be made is not between 13.5 months and the ten months fixed by the Judge, but between the kind of non-parole period that the Court considers should have been fixed and the non-parole period that was fixed. The difference between the 18 months proposed by Chernov, J.A., after allowing for double jeopardy, and the ten months fixed below strongly supports his Honour's conclusion that the non-parole period was manifestly inadequate.

50 On 30 March 2005, the respondent and his parents were presented in the County Court at Melbourne on three counts, the first two of which alleged respectively that, on 14 July 2002, the respondent failed to stop his motor vehicle after it was involved in an accident that resulted in the death of James Donnelly, and that he failed to render assistance after the accident. Count 3 alleged that, between 14 July 2002 and 22 October 2002, the respondent and his parents agreed to provide false information to the police in an attempt to pervert the course of justice. Each of the accused pleaded guilty. The respondent admitted two court appearances. In respect of the first - in the Magistrates' Court on 29 November 2003 - he was sentenced to a fine, without a conviction being recorded, for using a drug of dependence. The second appearance was in the Magistrates' Court on 1 September 1995 and resulted in his being convicted for driving a motor vehicle at an excessive

speed whilst having a blood alcohol content in excess of the prescribed limit.

51 It is relevant to note that at the date of sentencing the maximum custodial sentence prescribed for the offences that were the subject of counts 1 and 2 was two years. More recently, however, the maximum custodial penalty for offending conduct such as that committed by the respondent was increased to ten years.[51] As to the offence that was the subject of count 3, the maximum custodial sentence is 25 years,[52] although it should be noted that the Victorian Parliament Law Reform Committee, in its final report of June 2004, recommended that the maximum custodial period for that offence be reduced to 15 years.[53]

52 After hearing pleas in mitigation made on behalf of the respondent and his parents, the learned sentencing Judge sentenced the respondent on 11 April 2005 to the following terms of imprisonment: 12 months on each of counts 1 and 2 and 15 months on count 3. His Honour ordered that the sentences imposed on counts 1 and 2 be served concurrently and that the sentence on count 3 be served cumulatively upon the sentences imposed on the other counts, thereby imposing a total effective sentence of 2 years and 3 months' imprisonment. His Honour also ordered that the respondent serve a minimum of 10 months' imprisonment before becoming eligible for parole and that his driver's licence be cancelled and he be disqualified from obtaining a licence for 3 years. Each of the respondent's parents was sentenced to 9 months' imprisonment, wholly suspended. I mention for completeness that each of the respondent's other co-offenders - Agostino Carideo and Kymon Mitsilias, to whom further reference will be made later - also pleaded guilty on that day to one count of perjury and was fined $3,000 without conviction.

Circumstances of offending

53 The circumstances of the offending were these. In the early hours of Sunday 14 July 2002, James Donnelly, a 20 year-old university student, was walking home from a party in Camberwell in an easterly direction on the northern footpath of Canterbury Road. It was ascertained later that he then had a blood alcohol reading of 0.21 per cent and there were traces of marijuana in his body. At some stage, he moved into the northern gutter of Canterbury Road, approximately 45 centimetres from the kerb. At about the same time, the respondent, who was then aged 30 years, was driving his dual cabin utility vehicle along Canterbury Road, also in an easterly direction. He was on his way to a friend's house in Doncaster. Not far from the intersection of Canterbury Road and Victoria Street, his vehicle struck the deceased from behind at an estimated speed of not less than 43 k.p.h. The impact forced the deceased's body into the air for a considerable distance, ultimately striking a metal pole. He died at or very shortly after the incident. The street was well lit. There were no skid marks on the road surface in the vicinity of the accident, but, because the road was wet, the police could not determine whether the respondent's car had applied its brakes prior to the collision. The respondent did not stop after the collision. This conduct formed the basis of counts 1 and 2 on the presentment. There were no witnesses to the accident and it was not until approximately half-an-hour later that two pedestrians discovered the body of the deceased on the footpath near the north-western corner of the intersection of Canterbury Road and Victoria Avenue. His Honour noted, however, that there was no evidence that, had the deceased received medical treatment immediately or shortly after the collision, he would have survived; his injuries were such that death was inevitable. The learned Judge was nevertheless satisfied that the respondent knew at once that he had at least seriously injured the deceased and knew within a day or two that he had died.

54 The material before the court established that the respondent had been drinking alcohol on the previous evening, but the precise quantity of it was not known. Nevertheless, there was evidence before his Honour that, at approximately 6 p.m. on the Saturday evening, the respondent had been drinking alcohol with his brother-in law. The material also showed that during the rest of the evening he drank a further three to four stubbies of beer and that by midnight he was a "bit tipsy". The respondent's exact movements after midnight, however, were unknown.

55 After the accident, the respondent drove home. He told his brother-in-law, with whom he was living at that time, that he had hit a car. On the following day, he took his vehicle to his cousin's panel beating workshop and left it there to obtain a quotation for repairs. He told his cousin that the car was involved in an accident.

56 In the early hours of 14 July 2002, the police attended the scene of the accident where they located a concentration of paint scrapings, pieces of black plastic and tiny pieces of indicator lens, all of which appeared to come from the one motor vehicle. On 16 July 2002, the police released, through wide media coverage, a description of the vehicle they were seeking in relation to the collision. On the following day, the respondent removed his vehicle from the panel beating shop and, with the help of two friends, repaired the damage and disposed of the damaged parts at a waste transfer station. He told one of the helpers that his vehicle was damaged when it hit a parked car.

57 As the learned sentencing Judge noted in his sentencing remarks, "[t]hereafter the police embarked on a protracted, tedious and involved operation to identify the vehicle and its driver. It is a tribute to their thoroughness and persistence that they finally identified the car and then [the respondent] as its driver". After exhaustive enquiries, the police established that the respondent had sought parts for his vehicle from a wrecking yard for a model and colour of vehicle consistent with that involved in the accident. On 16 August 2002, the respondent was arrested. He was formally interviewed by the police in relation to "the offence of culpable driving and a hit and run collision in which someone had died" but, after having consulted a solicitor, made "no comment" answers. The police also executed a search warrant at the respective premises of the respondent's parents and sister. At his sister's house, police located and seized the respondent's car and various car parts. The respondent was, however, released without charge later that day.

58 During September and October 2002, the police used listening devices and telephone intercepts to obtain information that showed that the respondent had told his parents that he was the driver of the car that hit James Donnelly. The evidence gathered by police also disclosed that the three of them effectively agreed to provide false and misleading information to the police in order to avoid the respondent being prosecuted in relation to the accident. The material showed that the respondent provided specific instructions to his parents as to what they should say to the police if questioned. For example, the respondent effectively told his father to tell the police that he did not discuss his affairs with him, that he knew nothing about the accident and that, at the relevant time, the respondent was not even living at home. It can be assumed, particularly given the pleas of guilty by the respondent's parents, that their claims to the police in October 2002 that they did not know anything about the accident were untrue.

59 On 24 July 2003, the respondent was again arrested, as were his parents. He was interviewed but again gave mostly "no comment" answers. The respondent was then charged with a number of offences arising out of the accident, which included the three charges to which he eventually pleaded guilty, as well as a charge of culpable driving. After a contested committal proceeding that lasted 10 sitting days, on 15 June 2004, the magistrate discharged the respondent on the charge of culpable driving but ordered that he stand trial on a number of counts, including the three in question. Not long thereafter, however, the respondent was served with notice of trial directly presenting him on two counts, namely, one count of culpable driving and one count of conspiracy to do acts tending and intended to pervert the course of public justice. Following a directions hearing, the matter was listed for trial on a presentment that was amended so as to allege against the respondent only the three counts in question.

60 I mention for completeness that the respondent had also told two of his friends, Agostino Carideo and Kymon Mitsilias, about his involvement in the accident and the three essentially agreed to say nothing to the police about the matter. On 16 October and 22 October 2002 respectively, each of Carideo and Mitsilias falsely told the police that he had no knowledge of the incident. Each pleaded guilty, as I have said, to one count of perjury and was sentenced as I have described.

61 In the course of the hearing of the plea in mitigation made on the respondent's behalf, his Honour received a report, and heard sworn evidence, from Jeffrey Elwood Cummins, a forensic psychologist, who said that, following the accident, the respondent had developed an "adjustment disorder." His Honour did not accept, however, that the disorder was "severe or anything like it" and noted that it was essentially brought about by the respondent's own behaviour.

Director's appeal

62 By notice filed on 4 May 2005, the Director appealed against the sentences imposed by the learned sentencing Judge pursuant to s.567A of the Crimes Act 1958 on the ground that they are manifestly inadequate. At the hearing before us, however, the Director did not press the claim that the sentences on counts 1 and 2 are manifestly inadequate, but argued for such error in relation to the sentence on count 3 and the non-parole period.

63 In dealing with the Director's case, it is necessary to bear in mind the principles governing such an appeal, more particularly the limitations that operate on this Court's power in dealing with it. As Kirby, J. said in Dinsdale v. The Queen[54], appeals by the Director against sentence are "in a class somewhat different from that of an appeal against sentence by a convicted offender" essentially because of the operation of "time honoured concepts" such as double jeopardy. Thus, his Honour noted, "it has sometimes been said that, as a 'matter of principle' such appeal should be a comparative rarity. ... The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains." And as was noted by this Court in Director of Public Prosecutions v. Johnston,[55] the High Court in GAS v. The Queen[56] recognised that the restraining principles governing Crown appeals are not in dispute and are set out in R. v. Clarke.[57] There is no need to restate them here. I only mention that in an appeal such as the present, the Director must satisfy the Court that the impugned sentence is so disproportionate to the seriousness of the crime that it is apparent that an error, albeit one that might be incapable of being identified with precision from the reasons, must have been made by the sentencing Judge. In this respect, Kirby, J. explained in Dinsdale[58]:

"... it will sometimes not be possible to identify, with exactness, [a specific] error ...; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court will be able to infer that, in some unidentified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court's authority to intervene will derive from a conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise of powers of the primary judge has miscarried."

Similarly, Winneke, P. in Director of Public Prosecutions v. Gardner and Coates[59] said that a conclusion that a sentence is manifestly inadequate "does not depend upon attribution of specific error; nor does it admit of much amplification".[60]

64 That there is a public interest in ensuring that plainly inadequate sentences are corrected on appeal has been recognised by McHugh, J. in Everett v. The Queen,[61] where his Honour said that inadequate sentences are "likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes." Nonetheless, it is well-settled that the Court has an over-riding discretion to reject a Director's appeal notwithstanding that error has been shown in the original sentencing process.[62]

65 Thus, the essential question for resolution in this appeal is whether the sentence imposed on count 3 or the non-parole period is clearly outside the range of sentences open to the sentencing Judge in the exercise of sound discretionary judgment.[63] And as I have noted, this question does not admit of much elaboration.

Sentence on count 3

66 The Director submitted that the offending conduct that constitutes the basis of count 3 is a very serious example of the crime. The respondent's conduct was clearly designed, said the Director, to conceal from the authorities his role in the accident and involved him in corrupting his parents by tutoring them to lie to the police, which they did through misplaced loyalty to their son. Mr Coghlan also argued that, even if one was to assume that the maximum custodial sentence for the offence was 15 years (as is recommended by the Victorian Parliament Law Reform Committee), and not 25 years, such a sentence would nevertheless show that Parliament considered the offence to be a very serious one. In the circumstances, said the Director, the impugned sentence of 15 months' imprisonment is unacceptably low.

67 It is convenient to mention at this point two recent cases that dealt, respectively, with the offences of attempting to pervert the course of justice and conspiracy to attempt to pervert the course of justice, to which the respondent pleaded guilty, namely, Director of Public Prosecutions v. Aydin and Kirsch[64] and R. v. Aydin; R. v. Flett.[65] Both cases involved Ali Aydin ("Aydin") who was, at the relevant time, an articled clerk and was supervised in his work by the older Helmut Kirsch, a former law clerk. In the first case, Aydin sought to induce an informant to reduce charges against his client and not oppose bail that was sought by him. He threatened the informant with financial ruin and disclosure of his address to a known violent criminal if he did not accede to the requests. In the second case, Aydin made monetary offers to a member of the police force to induce him to act fraudulently so as to assist Aydin's client in the forthcoming prosecution against him. In the first case, Aydin was sentenced to 12 months' imprisonment in respect of the charge of attempting to pervert the course of justice. On the Director's appeal, the Court re-sentenced him to two years' imprisonment. In the second case, Aydin was sentenced to five years' imprisonment for conspiracy to attempt to pervert the course of justice. He successfully appealed and was re-sentenced to two years' imprisonment. The appeals were heard together and the Court's order for cumulation in respect of the abovementioned sentences resulted in the imposition of a total effective sentence of three years' imprisonment. It ordered that a period of 22 months' imprisonment be served before Aydin could be eligible for parole.

68 In the first of the Aydin cases, Callaway, J.A., whilst acknowledging the importance of a maximum penalty prescribed by Parliament for the offence, cautioned[66] that it is necessary to bear in mind in the sentencing process that the maximum is prescribed for the worst class of the offence in question. Further, whilst recognising the importance of the maximum penalty for sentencing purposes and the provisions of s.5(2)(a) of the Sentencing Act 1991, his Honour said[67] that, nevertheless, it would be wrong to assume

"... that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale. There are too many other relevant factors, including the circumstances of the instant offence and matters personal to the offender. Even more fundamentally, the worst classes for which a penalty of 25 years' imprisonment is prescribed are, by their very nature, far removed from the circumstances with which the judge is then concerned."

69 In order to meet the argument that was advanced by Mr Croucher, for the respondent, that the impugned sentence was within the relevant range having regard to those imposed in Aydin in respect of conduct that was significantly more reprehensible, the Director sought to distinguish those cases from the present. In each of the Aydin cases, said Mr Coghlan, the criminal conduct of Aydin did not impede the prosecution of the principal offender. Here, on the other hand, said the Director, but for persistent work by the police, the respondent's involvement in the accident may never have been uncovered and, in any event, his unlawful agreement with this parents, which he had instigated, resulted in a considerable period of delay before those who were entitled to know the circumstances of the accident - the deceased's parents and others close to him as well as the police - learnt of at least some of the relevant circumstances pertaining to the fatal accident. Furthermore, said the Director, unlike Aydin, the respondent tutored his parents to mislead police in order "to save his own skin".

70 Mr Croucher submitted that the impugned sentence was within range and he relied on the following matters in support of his claim. First, he pointed to the sentences imposed in the Aydin cases, as I have already outlined. Counsel then emphasised that the offence was committed in the context of a family environment in which the respondent understandably sought the assistance of his parents. Counsel also argued that undue regard should not be had to the maximum custodial sentence and further submitted that it is clear enough from his Honour's sentencing remarks that he recognised the seriousness of the offence and that the sentence is explicable, at least in part, by the necessity to ensure parity with the sentences imposed on the respondent's parents.

71 It is plain enough, I think, that the offence that is the subject of count 3 is a very serious offence. That Parliament regards it as such is, as I have said, apparent from the maximum custodial sentence it has prescribed for it[68] and there are very good reasons, I think, for so treating it. It is directed to conduct that strikes at the heart of the administration of justice. And, as Young, C.J. said in R. v. Kellow and Townsend[69], "[p]ublic confidence in the administration of justice is vital to the welfare of society". Other authorities have also recognised that conspiracy to pervert the course of justice is a serious offence.[70]

72 Further, there is no doubt that the respondent's offending conduct was of a very serious kind. The respondent effectively procured his parents' agreement to mislead the police in order to prevent charges being laid against him. In the process of doing so, he exploited the affection of his elderly and vulnerable parents. Moreover, the ramifications of the respondent's unlawful conduct were considerable. Not only were his parents corrupted, as I have said, but, importantly, his conduct also resulted in the deceased's parents and others who were close to the deceased spending what must have been an agonisingly long time in ignorance of the relevant circumstances of the young man's death. It also meant that the police had to conduct a lengthy and sophisticated investigation, at considerable expense to the public purse, in order to establish the respondent's connection with the accident.

73 It is true that, on its face, the criminal conduct by Aydin was significantly more reprehensible than that of the respondent, but it does not follow that the sentences imposed in those cases should be regarded as any sort of a yardstick for present purposes and it is plain that the Court in those cases did not intend that to occur. Those sentences were determined having regard to the applicable circumstances, including Aydin's personal situation. This Court has made it plain on numerous occasions that sentences imposed in other cases, albeit in relation to the same offence, are of little assistance in determining the appropriate sentence in the particular case.[71] Having said that, however, some regard must be paid to the sentences recently imposed in Aydin given that courts should strive for uniformity in sentencing.[72] It is also necessary to bear in mind, in this case in particular, that the sentence should not be "driven" by the maximum custodial penalty prescribed by Parliament.

74 Furthermore, in considering the degree of the respondent's criminality in the offending, it is not irrelevant that such conduct evolved, rather than being a premeditated course of behaviour. I think that there is some force in Mr Croucher's submission that it was understandable, but not excusable, that the respondent would turn to his parents for support, notwithstanding that, in doing so, he persuaded them to act unlawfully. Moreover, all that his parents could have told the police about the accident was that the respondent was the driver of the vehicle that hit and killed James Donnelly. The material does not show that the parents were told any more than that by the respondent, or that they otherwise knew of particulars of the incident which, if disclosed to the police would, or might, have led to more serious charges being pressed against the respondent. It is also important to recognise that the respondent was, of course, entitled to maintain his right to silence, as he did, and that such conduct cannot be treated as an aggravating factor for present purposes.

75 I consider that, although the respondent was deserving of a more severe sentence on count 3 than that which was imposed by his Honour, in all the circumstances, I am not persuaded that the impugned sentence is plainly outside the range of sentences that were available to his Honour. Consequently, I would not uphold the Director's challenge in respect of the sentence on count 3.

Non-parole period

76 On the other hand, I consider that the non-parole period fixed by his Honour is plainly outside the relevant range. I have come to this view for the following reasons.

77 In his sentencing remarks, his Honour relevantly said: "In all the circumstances, and bearing in mind the principles in Krasnov's case,[73] I fix a non-parole period of ten months." No explanation, however, was otherwise given for fixing this period. It was argued by the Director that this period is less than half of the head sentence and is plainly unusual. In those circumstances, it was claimed, it is clear from the case to which his Honour referred - Krasnov[74]- that it was incumbent on his Honour to have given reasons for adopting such a course. It was argued by Mr Coghlan that, in the absence of stated reasons, or reasons that may be discerned from the circumstances of the case justifying a plainly disproportionate non-parole period, it must be regarded as manifestly inadequate.

78 As Callaway, J.A. noted in the course of the hearing of this appeal, Krasnov makes it plain that, when a sentencing judge imposes a sentence, including a non-parole period, that is, in relevant respects, unusual, one would ordinarily expect reasons to be given for such a course and, although mere failure to do so does not inevitably bespeak error,[75] it does warrant close scrutiny.[76] In Krasnov, the sentencing judge gave no reasons for fixing a non-parole period of 14 years in respect to a sentence of 16 years imprisonment. The appellate court could not discern from the circumstances of the case a good reason for such a non-parole period. It concluded that his Honour relevantly erred, and it re-sentenced the offender to 16 years' imprisonment with a non-parole period of 11 years. In not unlike circumstances, the majority in R. v. VZ[77] reduced a non-parole period of six-and-a-half years imposed in relation to a head sentence of 8 years' imprisonment to five-and-a-half years in respect of the same head sentence. In both cases, as I have said, it was considered that the non-parole period was out of the ordinary and there were no circumstances that could be discerned warranting the fixing of such a period.

79 In considering whether a non-parole period is plainly outside the range, it is also necessary to bear in mind the underlying purpose of this aspect of the sentence. In R. v. Brazel,[78] Callaway, J.A. explained[79] that the non-parole period is:

"the minimum time that the judge determines that justice requires a prisoner to serve having regard to all the circumstances of his offence, that it is the public interest that is primarily to be served and that the non-parole period requires discrete consideration having regard to all the relevant factors, including the fact that it has a penal element and that general deterrence should not be undermined by an unduly short non-parole period."[80]

In R. v. VZ,[81] after noting that a non-parole period cannot be fixed unthinkingly by taking any specific period off the head sentence, his Honour went on to say:[82]

"In a [serious incest] case such as this the non-parole period must not be such that the applicant is not justly punished for his criminal conduct and it must not undermine general deterrence or make the denunciatory effect of the head sentence a mockery."

These considerations, I think, also apply here. The offences in question were very serious, calling for just punishment and denunciation by the court. Moreover, the principle of general deterrence was, as I have said, of significance in the sentencing disposition.

80 Mr Croucher pointed to the following matters that he said justified the impugned non-parole period.

(a) First, it was said that the respondent pleaded guilty to the charges at the first reasonable opportunity, doing so very shortly after the culpable driving charge was withdrawn and, therefore, was entitled to have that matter taken into account for sentencing purposes, including the fixing of the non-parole period. It was said that, from a forensic point of view, the respondent could not have been expected to plead guilty to the offences in question while the charge of culpable driving was hanging over his head. But, as the Director pointed out, when the Magistrates' Court effectively dismissed the charge of culpable driving at the end of the committal hearing, the respondent nevertheless refused to acknowledge his guilt for the three offences in question. In the circumstances, I do not accept that the respondent pleaded guilty to the offences at the earliest reasonable opportunity. It does not follow, of course, that he is not entitled to an appropriate sentencing discount on account of his pleas of guilty.

(b) Secondly, said Mr Croucher, the respondent had only limited prior convictions. In particular, the more relevant of his prior convictions - that is, driving with a blood alcohol concentration over the prescribed limit and driving at an excessive speed - occurred five years before the fatal accident. In my view, although the prior convictions were "limited", those imposed in respect of driving offences were relevant for the purpose of the sentencing disposition, including the non-parole period.

(c) Next, counsel pointed to his Honour's finding that the respondent was unlikely to reoffend and that he has never before been subject to a custodial sentence.

(d) Mr Croucher then argued that, because the total effective sentence was relatively short, it was appropriate that there be a greater disparity between it and the non-parole period than might otherwise have been the case, particularly where the respondent's prospects of rehabilitation are very sound, as his Honour accepted was the case. I find this submission difficult to accept. As a matter of logic, there is no basis for such a claim. The relative shortness of the total effective sentence, by itself, cannot be a reason for the imposition of a non-parole period that is substantially less than one-half of such a head sentence, absent reasons for such a course. Moreover, where a relatively short total effective sentence is the product of the sentencer according weight to relevant mitigatory factors, there is less reason to fix an unusually short non-parole period.

(e) Mr Croucher next pointed to his Honour's finding that the respondent left the scene of the accident because he panicked, being concerned that if he stopped he would be wrongly charged with a serious offence. Although I do not construe his Honour's sentencing remarks as producing such a finding, I accept for present purposes that his Honour was prepared to assume those matters in the respondent's favour for sentencing purposes. His Honour also accepted, as was contended on behalf of the respondent, that his deceitful conduct, which implicated his parents, evolved rather than being a premeditated course of behaviour.

(f) Counsel further said that yet another reason justifying the short non-parole period was that the respondent would expect greater hardship in custody than would the ordinary prisoner because greater attention would be paid to him by his fellow prisoners and the prison authorities on account of the publicity that his sentence received. But, as the Director pointed out, much of the publicity had not taken place at the time of sentence. Such a matter, however, would have to be taken into account on any re-sentencing of the applicant.

(g) Counsel also said in support of his claim that the respondent was emotionally and psychologically unwell and that his Honour accepted this situation. But as I have noted, his Honour, rightly, I think, did not place much weight on the evidence on this issue.

(h) Mr Croucher further submitted that another reason for the unusual length of the non-parole period was the need to maintain some parity with the sentences imposed on the respondent's parents. But there was plainly a qualitative difference between the two sets of sentences, bearing in mind that the respective circumstances of the offending and of the offenders were materially different.

81 It is true that some of the matters mentioned by Mr Croucher point to a non-parole period that might be at the lower end of the scale, particularly his Honour's findings that the respondent is unlikely to re-offend and that he has a sound work history. But overall, I consider that the reasons put forward by Mr Croucher do not explain or justify the unusually low non-parole period fixed by his Honour and I cannot discern for myself, from the circumstances of the case, any such reason. Moreover, I am of the view that, given the serious nature of the offending conduct and the absence of remorse on the part of the respondent, the impugned non-parole period is not reflective of just punishment, condemnation by the court of the offending conduct or the proper operation of the principle of general deterrence. Consequently, I consider it plain that his Honour's discretion in fixing the non-parole period has miscarried, thereby enlivening this Court's jurisdiction in respect of that aspect of the sentence. In the circumstances, and bearing in mind the principle of double jeopardy, I would uphold the Director's appeal and increase the non-parole period to 18 months.

Addendum

82 Since writing my above reasons, Maxwell, P. has provided me with his draft reasons for judgment in this appeal. I have reviewed my reasons in light of what the learned President has written, but remain of the view that there was relevant error in the determination of the non-parole period as I have explained.

83 I would only add this. Although I am conscious that the learned President confined his reliance on what the Director said as to the shortest non-parole period that would not have been unreasonable in the circumstances, I consider that, ordinarily, there is difficulty in the Court relying on outer parameters of a notional sentence put forward by counsel in response to a request for such information by the Bench for the purpose of determining whether a sentence is plainly wrong. An analysis that is based on such material may run counter to the principles underlying the instinctive synthesis approach adopted by this Court.[83] Moreover, reliance by the Court on such material may lead to the risk of sentencing appeals being unduly concerned with sentences that were imposed in other, allegedly similar, cases. Ordinarily, if counsel were asked to formulate, in arithmetical terms, what he or she considered to be the range of sentences that was properly available to the sentencing Judge, or what was the upper or lower limit of such a range, the response would necessarily be based, either on counsel's subjective views - which would not assist the Court - or on sentences imposed in other cases. And in respect of the latter position, this Court has said, on numerous occasions, that, ordinarily, "it is of little utility ... to seek to attack a sentence imposed in one case by reference to penalties imposed by courts in differing circumstances in other cases."[84] In any event, I consider that, in the circumstances of this case, in order to determine whether the non-parole period is plainly inadequate, the relevant comparison is not between the 10 months fixed by his Honour and the 13.5 months nominated by the Director, but between the 10 months and the period which, in broad terms, would have been appropriate absent an adequate discount to take account of the operation of the principle of double jeopardy.[85]

[1] R v Clarke [1996] VICSC 30; [1996] 2 VR 520 at 522. In recent years in Victoria, Crown appeals have been brought, and have succeeded, with increasing frequency: see Richard Edney, "The rise and rise of Crown appeals in Victoria" (2004) 28(6) Crim L J 351.

[2] Griffiths v R [1977] HCA 44; (1977) 137 CLR 293.

[3] At 310.

[4] Everett v R [1994] HCA 49; (1994) 181 CLR 295.

[5] At 299.

[6] Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234, cited in Clarke loc. cit.

[7] [2005] HCA 60.

[8] At [33].

[9] (1988) 14 NSWLR 51.

[10] At 55-6.

[11] [1949] SCR 658.

[12] At 668.

[13] (1987) 29 A Crim R 452 at 469 - cited in Cooke v Purcell at 58.

[14] (1979) 46 FLR 386 at 388-9.

[15] [1928] HCA 28; (1928) 41 CLR 230 at 248.

[16] At 522.

[17] Citing Everett at 300.

[18] Citing Griffiths at 310.

[19] Citing, in relation to (c), (d) and (e), R v Osenkowski (1982) 30 SASR 212 at 212-3; (1982) 5 A Crim R 394.

[20] Citing Everett at 306.

[21] [2000] VSCA 142; (2000) 1 VR 331.

[22] (1991) 57 A Crim R 349 at 351 per Gleeson, C.J., Lee, C.J. at CL and Hunt, J.

[23] [2000] VSCA 142; (2000) 1 VR 331 at 335-6 (emphasis added). See also DPP v. Aarons [1999] VSCA 71; [1999] 3 VR 150 at 155 per Chernov, J.A.; DPP v Doncon [2003] VSCA 103 at [11] per Callaway, J.A.; DPP v. Johnston [2004] VSCA 150; (2004) 10 VR 85 at 96 per Ormiston, Batt and Chernov, JJ.A.

[24] At 300.

[25] At 310; see DPP v Johnston [2004] VSCA 150; (2004) 10 VR 85 at 96.

[26] At 522 (emphasis added).

[27] supra.

[28] At [96] (emphasis added).

[29] [2003] VSCA 29; (2003) 141 A Crim R 11.

[30] At 17 per Vincent, J.A. (and Cummins, A.J.A. agreed).

[31] DPP v BAB [2002] VSCA 93 at [3] per Callaway, J.A.

[32] At 310.

[33] supra.

[34] At 248-9.

[35] [2003] VSCA 96; (2003) 139 A Crim R 64 at 74.

[36] supra.

[37] At 212 (emphasis added); see also DPP v Rzek [2003] VSCA 97 at [33] per Eames, J.A.

[38] cf. DPP v DJK [2003] VSCA 109 at [15]- [16] and [24] per Vincent, J.A., and [27] per Eames, J.A.

[39] [1998] VSCA 32; (1998) 7 V.R. 693.

[40] At 696 [10], 697 [12]-[15], 698 [18] and 700 [22]-[23].

[41] At 694 [3].

[42] Rehabilitation achieved and in prospect is relevant to the head sentence as well as the non-parole period, but it is often given additional weight in fixing the latter. Another factor may be ill health: see R. v. VZ at 698 [18].

[43] [2000] VSCA 108; (2000) 112 A.Crim.R. 588 at 589 [1], 596 [27]-[29] and 598 [31] and [32].

[44] [2001] VSCA 87 at [1], [2] and [22]-[25].

[45] [2003] VSCA 156 at [22]- [23], [25] and [31]-[35].

[46] [1996] VicRp 26; [1996] 1 V.R. 398 at 401.

[47] [2005] VSCA 206 at [16]- [19].

[48] Re Jackson [1997] 2 V.R. 1 at 3. That common law principle is now reinforced by s.5(2AA)(a) of the Sentencing Act 1991.

[49] (1995) 82 A.Crim.R. 92.

[50] See [22] above.

[51] See s.5(1) of the Road Safety (Further Amendment) Act 2005.

[52] See s.320 of the Crimes Act 1958.

[53] Victorian Parliament Law Reform Committee, Administration of Justice Offences, Final Report June 2004.

[54] [2000] HCA 54; (2000) 202 C.L.R. 321 at 340-1.

[55] [2004] VSCA 150; (2004) 10 V.R. 85 at 96.

[56] [2004] HCA 22; (2004) 217 C.L.R. 198 at 204.

[57] [1996] VICSC 30; [1996] 2 V.R. 520 at 522-523 per Charles, J.A. with whom Winneke, P. and Hayne, J.A. agreed. See also Lowndes v. The Queen [1999] HCA 29; (1999) 195 C.L.R. 665; Dinsdale v. The Queen [2000] HCA 54; (2000) 202 C.L.R. 321; DPP v. Whiteside and Dieber [2000] VSCA 142; (2000) 1 V.R. 331 at 335-336 per Winneke, P; and DPP v. Clarke [2005] VSCA 2 at [15] per Nettle, J.A.

[58] At 340. Citations omitted.

[59] [2004] VSCA 119 at [24].

[60] Also see, for example, DPP v. Devaldez [2003] VSCA 29; (2003) 141 A. Crim. R. 11 at [27] per Phillips, C.J., with whom Vincent J.A. and Cummins A.J.A. agreed.

[61] [1994] HCA 49; (1994) 181 C.L.R. 295 at 306.

[62] See Clarke at 522 per Charles, J.A.

[63] DPP (Cth) v. Trainor [2000] VSCA 249 at [17] per Batt, J.A.

[64] [2005] VSCA 86.

[65] [2005] VSCA 87.

[66] At [9].

[67] At [11].

[68] The position in that regard would not be much different in substance if one assumed that the maximum penalty was 15 years' imprisonment as is recommended by the Law Reform Committee of the Victorian Parliament.

[69] Unreported, Court of Criminal Appeal, 17 August 1979.

[70] See, for example, R v. Walsh [2002] VSCA 98; (2002) 131 A. Crim. R. 299; R v. Giang [2001] NSWCCA 276; R v. Reading [1998] VSCA 37; and R v. Healy, Unreported, 4 August 1997, Victorian Court of Appeal.

[71] See, for example, Burnett v. R. (1993) 70 A. Crim. R. 469 at 475 per Coldrey, J.; R v. King (1998) 99 A. Crim. R. 288 at 291-292 per Hunt, C.J. at CL; and R v. Boaza [1999] VSCA 126 at [44] per Winneke, P.

[72] See R v. Carey [1998] 4 V.R. 13 at 18 per Winneke, P.

[73] This was a reference to R. v. Krasnov and Shlakht (1995) 82 A. Crim. R. 92.

[74] See also, R v. VZ [1998] VSCA 32; (1998) 7 V.R. 693.

[75] For the reasons explained by Callaway, J.A. in R. v. Bernath [1997] 1 V.R. 271 at 278.

[76] See also R v. VZ [1998] VSCA 32; (1998) 7 V.R. 693 at 697 per Callaway, J.A.

[77] [1998] VSCA 32; (1998) 7 V.R. 693.

[78] [2005] VSCA 56.

[79] At [24].

[80] See also R. v.VZ at 694 per Phillips, C.J., 697 to 698 per Callaway, J.A. and at 700 per Batt, J.A.

[81] At 697.

[82] At 698-699.

[83] See, for example, R. v. Williscroft [1975] VicRp 27; [1975] V.R. 292 at 300 per Adam and Crockett, JJ.; R. v. Young [1990] VicRp 84; [1990] V.R. 951 at 955-961 per Young, C.J., Crockett and Nathan, JJ. See also Wong v. The Queen [2001] HCA 64; (2001) 207 C.L.R. 584 at 611-612 per Gaudron, Gummow and Hayne, JJ; Johnson v. The Queen [2004] HCA 15; (2004) 78 A.L.J.R. 616 at 623 per Gummow, Callinan and Heyden, JJ., with whom Gleeson, C.J. agreed; and Markarian v. The Queen [2005] HCA 25.

[84] See, for example, R v. Boaza [1999] VSCA 126 at [44] per Winneke, P. See also, R. v. Carey [1998] 4 V.R. 13 at 18 per Winneke, P.; R. v. Bernath [1997] 1 V.R. 271 at 276-7 per Callaway, J.A. See also, R. v. Burnett [1993] 70 A. Crim. R. 469 at 475 per Coldrey, J.

[85] See D.P.P. v. BAB [2002] VSCA 93 at [3] per Callaway, J.A.