DPP v Josefski [2005] VSCA 265

DPP v Josefski [2005] VSCA 265 - VSCA 2005 case summary — Zoe

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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.

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(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

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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]:

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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

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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.

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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:

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(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.

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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]

At a glance

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Before

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Judgment (82 paragraphs)

Parties

Cases Cited (9)