DPP v Joyce [2007] VSCA 215

2 This is a Crown appeal against a sentence of five years' imprisonment, with a non-parole period of three years, imposed on the respondent on 3 May 2007, on pleading guilty to one count of intentionally causing serious injury.**

**3 The respondent was born on 20 July 1983. At the time of commission of the offence on 20 November 2005, he was 22 years of age, and had been living for the better part of three years in a flat in Footscray, in an on-again off-again relationship with the 20-year-old female victim of the offence. He and she had separated in about September 2005 and she had moved back to live with her mother in Williamstown. On 3 October 2005, he was convicted of unlawfully assaulting her and placed on an undertaking to be of good behaviour. Thereafter there seems to have been something of a rapprochement.

4 On Friday 18 November 2005, they attended a hotel in Williamstown together, and although it is said that the respondent had no recollection of it, he and four other drinkers together consumed a slab of beer. He woke the next morning in a car, with his head against the steering wheel, with beer spilt over him, and aware that the vehicle had been moved from where he last recalled it being the previous evening. He was alone and felt confused and, despite calls to friends by mobile telephone, he was unable to ascertain what had taken place the previous evening.

5 By the early evening of Saturday 19 November 2005, he had managed to locate the victim at the home of one of her friends. He became angry because he had contacted the friend earlier in the day and she had misdirected him to his victim's mother's house. He attempted to ascertain what had happened the previous evening, but the victim said that she could not recall. He and she then travelled by train together into Newport, and, after they had 'snorted' some amphetamine and drunk some beer, they ate at around 8 pm and then remained at the hotel drinking until closing time. During the course of the evening there was an argument when the victim received a telephone call from another man. It appears to have provoked jealousy on the part of the respondent.

6 After leaving the hotel at around 3 am on Sunday 20 November 2005, the respondent and the victim travelled by taxi back to the victim's mother's flat in Williamstown. The respondent kept drinking, at first one or two cans of bourbon and coke, and then three or four glasses of Moselle. The victim also had something to drink, but rather less. At some point another male arrived and offered 'stamps' (which may have been LSD trips) but the respondent refused the offer and with some difficulty managed to persuade the other man to leave.

7 At a later point, the victim went upstairs to feed her mother's cat. Until then, there had not been any arguments or other suggestion of trouble. But as the victim knelt at the cat's bowl placing food into it, the respondent came up from behind her with a metal tube, which he had retrieved from the place where the victim's mother kept it behind the front door for protection, and struck the victim to the back of the head with the tube. She called out: 'What are you doing, what are you doing?' but he continued to strike her, possibly as many as ten times, as she endeavoured to cover herself with her arms. Some blows landed on her arms and some on the side of her head, and the force of the blows sent her on to her backside and she sat in that position. The respondent then took up a cord from a PlayStation controller and wrapped it around the victim's neck from behind and commenced to strangle her, until she could not breathe and lapsed into unconsciousness.

8 Upon regaining consciousness, the victim found that she was on the other side of the room, lying on the floor, with the respondent holding her in a bear hug, saying: 'Oh, no, what have I done?' He then picked her up and carried her into her sister's bedroom and got her some water to drink. She was frightened and shaking and could not call for help. Her voice was very low and there was blood coming through her hair and clothes and on the floor of the room. Her eyes were badly bloodshot.

9 It was the habit of the respondent and the victim to visit the respondent's grandparents on Sundays for tea. On that day, however, the respondent telephoned his grandparents at about 10 am and said that they could not come because the victim was sick. During the day the victim tried to sleep but she could not. She got up at about 6 pm and the respondent drove her to his flat in Footscray. She did not want her mother to see her in the physical state she was in. The respondent offered to take her to hospital, but she declined. At that stage she had no sense that she had been as badly injured as she was.

10 The victim did not go to work during the next week. She found that she could not get ready. Her body was shaking and she was having difficulty brushing her hair and putting on her clothes. Then, on Thursday 24 November 2005, she went to the Western General Hospital at 10.18 pm and gave a false history of having fallen from the Williamstown pier and being found by her boyfriend. The doctor in the emergency department who examined her saw signs of recent injury, including haemorrhages in her eyes, three scalp lacerations and bruising to her hands, left shoulder and arms. Remarkably, however,[1] he did not call the police and he discharged her without further examination. She returned to the respondent's flat.

11 On Friday 25 November 2005, the respondent telephoned the victim's mother and told her that the victim was sick and would not be able to attend to the mother's banking as she usually did of a Friday. He also told her that he would feed her cat and that the victim's eyes were very red because she had gone swimming while wearing contact lenses. The victim's mother thought that to be odd, because she did not believe that the victim wore contact lenses, but the respondent visited her that night and told her all was well.

12 During the week one of the victim's friends spoke to the victim by telephone and noticed that the victim was speaking in a strange voice. She arranged for the victim to come over to her, which she did late on Sunday 27 November 2005. It was apparent then that the victim was in an altered state. She was moving very slowly and was wearing sunglasses. Once the glasses were removed, it could be seen that her eyes were completely red. In unusually slow speech, she described what had happened, but she said that she did not want to go to the police. The friend therefore, telephoned the victim's mother and related the story to her. The victim's mother had only just returned to her flat after being away for the week. When she returned she discovered blood on the floor and observed that the walls had been washed, and that the PlayStation cord had been wrapped up and put away in a different location. The next day she visited her daughter's friend and saw her daughter. She was shocked by her appearance. Her eyes were red and she was acting strangely and staggering around as if drunk. She had a mark around her neck, but she told her mother that she had already been to hospital.

13 The victim went home to her mother's flat that day. It was apparent that there had been a significant change in her behaviour. She was quiet and required assistance with toileting, dressing and showering. She was complaining about her leg. But again, remarkably, nothing was done about it at that stage.

14 The next week her mother took her to a doctor who called for scans and sent her to the Royal Melbourne Hospital. She was seen in the emergency department. Upon examination, it was observed that she had a tremor on her right hand side, a shortened stride, reduced arm swing and a number of symptoms such as soft voice and slowness of movement. A MRI scan showed brain injury caused by deprivation of oxygen. She was admitted to the neurology ward and further testing disclosed cognitive deficits in most domains. Those findings were consistent with a hypoxic incident as related to the history. The diagnosis was one of hypoxic brain injury resulting in a condition similar to Parkinson's Disease. The police were then called in.**

**15 The respondent was arrested on 18 December 2005 and charged with attempted murder. But he was released on bail on 19 December 2005 and on that day assessed as suitable to participate in the CREDIT/Bail Support Program. Thereafter, he remained in the program until he was sentenced. According to the coordinator of the program, the respondent made a conscious effort to bring about positive lifestyle changes by attending all scheduled appointments as well as drug and alcohol counselling on a regular basis. He indicated at an early stage that he was prepared to plead guilty to the count of intentionally causing serious injury. Once committed on that count, he made a formal offer so to plead.

16 The psychiatric assessment carried out by the consultant psychiatrist, Dr Lester Walton, disclosed that the respondent was born in Sunshine and raised in Braybrook. He was educated to part way through Year 11 of secondary school and then began and completed three years of a four-year TAFE course in painting, decorating and signwriting. But he dropped out of that course to go labouring, because he wanted the money, and thereafter worked as a general labourer, forklift driver, picker, packer, container loader and storeman.

17 The respondent's mother is 49 years old and a drug user and has been convicted of assault and burglary. The respondent told Dr Walton that he recalled that when he was five or six years of age one of his mother's partners threw him violently on a couch. It is said that his mother could not cope with parental responsibilities, although the respondent has a 14-year-old half-sister who lives with his mother. But in any event, the respondent was brought up by his grandparents who lived close by to his mother and such contact as he now has with his mother is characterised by frequent arguments. The respondent's father is aged in his mid-forties but separated from his mother when the respondent was six months old. He now lives in Queensland where he conducts a panel-beating business and has since remarried and has another child from that marriage. Recently, he has shown an interest in establishing a closer relationship with the respondent and would like him to move to Queensland and work with him in his business.

18 The respondent was introduced to alcohol at the age of 14, at which time he also began to smoke marijuana. By 15 he was 'chroming' and by 17 he had indulged in 'magic mushrooms'. At the age of 18 he began to use amphetamine by nasal inhalation and that corresponded with an increase in alcohol consumption. After meeting the victim, he began to drink alcohol to excess, and then, after losing his job, he began to indulge in increasing amounts of ecstasy. He told Dr Walton that in the lead-up to his attack on the victim he was in the habit of getting intoxicated at least three times weekly, and typically used amphetamine in parallel. He also used more potent versions of 'ice' on two occasions and ordinary amphetamines on a more regular basis, typically taking three or four 'points'.

19 Dr Walton reported, however, that the respondent was of normal intelligence, not hallucinating, and without deluded ideas. He said that there are no other signs of psychosis. According to Dr Walton, the reasons for the respondent's attack on the victim were obscure, although it was possible that there may have been some overflowing of anger from the confusing circumstances leading up to the incident. Dr Walton reported that there was some possibility of drug and alcohol induced automatism, and that the offending consisted of relatively simple behaviour, which was well within the range of an automaton, and he reported a dense amnesia for the relevant period. The respondent, however, accepted that he was responsible for what he had done to the victim and said that, 'I have a violent temper.'

20 Dr Walton opined that the respondent was properly described as substance dependent and troubled by his early life experiences. That led to some blighting of personality development but not to a point where a label of personality disorder would be applied. In Dr Walton's opinion, the respondent did not require psychiatric treatment, but he had been usefully engaged in a drug rehabilitation program and would benefit from an anger management program. Dr Walton advocated a sentencing disposition which would encourage the respondent to maintain his ambitions to achieve a drug free existence. It was also noted that in the year leading up to sentencing the respondent had entered into a relationship with another woman and that she was expecting to bear his child in June 2007.**

21 Meanwhile, things had not progressed at all well for the victim. The tremor in her right hand had resolved, but had been replaced by a chorea (which is an irregular and involuntary contraction of muscles) in the right hand and right limb. There are mild to moderate disabilities in a number of other areas. Her gait is significantly slowed and she has a mild to moderate hyperphonia. It has not responded significantly to speech therapy and has left her with a voice that cannot be heard in noisy public places. She has a mild to moderate dystonia of her upper and lower limbs on both sides, which involves an involuntary posturing of those areas with pain and cosmetic impact. The fine motor functions in her hands have been impaired. There have also been cognitive dysfunctional deficits in attention and executive action. There exists a real possibility that the dystonia will progress over the years. It may develop into a severely disabling condition. The slowness in the victim's gait and hand movements, known as Bradykinesia, has responded poorly if at all to medication. The brain injuries which the respondent inflicted on her have forever and profoundly affected her employability and social function. In her victim impact statements, she laments that she can no longer go jogging, due to the risk of falling. Her right hand is weak and her left hand is stiff. She has trouble finding the words with which to express herself and trouble pronouncing the words once she finds them. It is difficult for her to concentrate and her voice lacks volume, and although she is working hard to overcome those problems, she fears that they may be permanent. Her life has changed dramatically. She has lost her self confidence and she is having difficulty obtaining a full-time job. She is self-conscious because she perceives that people stare at her appearance and the way that she walks. Her difficulty in speaking and her soft voice, which people have trouble hearing, leave her frustrated and angry. She can no longer participate in sport, particularly swimming, which she used to love. There are days when she feels so down and depressed that she cannot bear to leave the house.

22 The Director recognises the exceptional nature of a Crown appeal against sentence[2] but submits that the sentence of five years' imprisonment with a non-parole period of three years is so manifestly inadequate as to constitute error in principle. He contends that a significantly greater sentence was called for in order appropriately to reflect the devastating effect of the offence on the victim and to satisfy the needs of general and specific deterrence, denunciation and community protection. Counsel for the Crown submits in support of that contention that the offence was significantly aggravated by a number of features, including that:

(a) The offence was unprovoked, vicious and sustained on a defenceless and unsuspecting young woman.

(b) The offence was committed in the victim's home in breach of the trust which she reposed in the victim as her friend and sometime lover after forgiving him for the assault which he had earlier committed on her.

(c) The offence was committed while the respondent was the subject of the undertaking to be of good behaviour in respect of his earlier unlawful assault on the victim.[3]

(d) The offence appears to have been motivated by anger caused by jealousy.

(e) The offence involved a degree of premeditation, in that the metal bar was kept by the victim's mother by the front door for protection and therefore the respondent must have gone and got the bar before proceeding upstairs to beat the victim.

(f) The offence has caused the victim extremely serious injuries with permanent profound disabling consequences.

**23 Counsel for the Crown also points to the fact that the respondent has 28 prior findings of guilt from seven court appearances between March 2001 and October 2005, including nine dishonesty offences, two minor drug offences, nine street-type offences, six offences of damaging property, one prior finding of guilt for resisting arrest, and the offence of unlawful assault on the victim for which he was sentenced in October 2005, and in respect of which he was still bound by the bond of good behaviour at the time of the subject offence.

24 As a separate or alternative basis of appeal, the Crown seeks leave to argue that the judge committed a specific sentencing error by taking into account in mitigation of penalty a speculative possibility that the respondent 'may well have been able to argue automatism as a defence',[4] and that the respondent 'may well have had a defence of automatism available to [him].'[5] Counsel for the Crown accepts that those were matters which might properly have been taken into account on the question of remorse,[6] but he submits that it was impermissible for the judge to treat them as a separate mitigating circumstance, given that by pleading guilty to the offence the respondent admitted committing conscious, voluntary and deliberate acts with the intention of causing the victim serious injury. Alternatively, it is said, the prominence which the judge gave the matter betokens error of principle.**

**25 Counsel for the respondent contends that the Crown is constrained by its notice of appeal to the single ground of manifest inadequacy, of which the particulars given are that in 'imposing a head sentence of five years with a non-parole period of three years imprisonment', the judge failed to reflect the gravity of the offence (generally and in particular); failed to take into account general deterrence and specific deterrence; and failed to take into account the maximum penalty and the respondent's prior relevant criminal history. Further, in counsel's submission, it is apparent that the sentencing judge considered each of the matters embraced by the particulars and, in any event, that the relevant inquiry is not whether the Crown has demonstrated that one or other particular is made out, but rather whether the Crown can demonstrate manifest inadequacy, and the something more which is needed for appellate intervention. Counsel for the respondent contends that a sentence of five years' imprisonment with a non-parole period of three years is plainly not manifestly inadequate but is exactly what the prosecutor asked for - a substantial, immediate term of imprisonment.

26 As to the alternative ground, counsel for the respondent submits that there is no power for the Director to amend a notice of appeal against sentence and even if there were, it is evident that it has not been exercised in the manner and form required.**

**27 It is convenient to deal first with the question of whether the Director should be given leave to amend. In my view he should not be.

28 Under s 567A(1), notice of appeal may only be given where the Director is 'satisfied that an appeal should be brought in the public interest'.[7] Section 567A(2) of the Crimes Act 1958 then provides that:**

(2) Where the Director of Public Prosecutions desires to appeal to the Court of Appeal under subsection (1) or (1A) he shall cause notice of appeal setting forth the grounds thereof to be given to the respondent by serving upon him notice in writing signed by the Director of Public Prosecutions personally of his intention to appeal to the Court of Appeal pursuant to the provisions of this section and setting forth the grounds of the appeal.

**29 Section 567A(3) further provides that any such notice of appeal 'shall not be given under sub-s (2) more than one month after the passing of the sentence without first obtaining the leave of the Court of Appeal so to do.'[8]

30 Counsel for the respondent argues that it is not open to grant the Director leave to amend because the Director has not signed a notice in writing setting forth the proposed ground, nor signified that an appeal based on the ground should be brought in the public interest.

31 I reject that submission. In my view sub-ss 567A(2) and (3) are restricted in their operation to the initiation of an appeal. Once the appeal has been initiated in accordance with those provisions, as it was in this case, I consider that questions of amendment are governed by the Criminal Appeal Rules. To adopt and adapt the reasoning of the High Court in a different (but analogous) context in David Grant v Westpac Banking Corporation,[9] sub-ss (2) and (3) provide for a time limit and method of initiation which are 'essential integer[s]' in the Director's right of appeal or, to put it another way, the time in which such an appeal is to be initiated and the method of initiation are of 'the essence of the provision[s].'[10] But once such an appeal has been so initiated, the scheme of the legislation appears to be that procedural regulation of the appeal, including amendment, is governed by the rules.[11]

32 I am not disposed, however, to grant the leave to amend which is sought. As counsel for the respondent points out, there is no evidence as to why the proposed ground was not included in the original notice of appeal. Counsel for the Crown offered some suggestions from the Bar table. But suggestions from the Bar table are not evidence, and they are certainly not an adequate substitute for an affidavit in support of leave to amend. In future, if leave to amend is to be sought, the application should be made in proper form. Further, and in any event, I think that the application to amend is without merit. Contrary to the Crown's submissions, the sentencing judge did not treat the matter of alcohol or drug induced automatism 'as a separate mitigating circumstance'. His Honour simply made an observation, which was evidently based in Dr Walton's report, that the respondent had pleaded guilty, even though he 'may well have been able to argue automatism as a defence'.[12] That goes to the respondent's remorse and the prospects of rehabilitation. There may perhaps be something in the point which was advanced in argument that the respondent gave one version of his recollection to Dr Walton, so as to create the false impression that he was suffering from the dense amnesia which is a precondition of automatism, and a very different version through his counsel on the plea. But, for reasons which will appear, I need not stay to consider that possibility.**

**33 I turn to the adequacy of the sentence, and observe at the outset that the judge paid close attention to all of the relevant sentencing considerations. As counsel for the respondent observes, his Honour's focus on them is exemplified by exchanges with defence counsel in the course of the plea. In the course of argument, his Honour referred to the dictates of specific[13] and general deterrence;[14] the fact that youth and prospects of rehabilitation[15] would be afforded less weight by 'reason of the gravity of the offence[16] and maximum penalty';[17] the respondent's prior criminal history;[18] and the nature and seriousness of the complainant's injuries.[19] His Honour also expressly referred in his sentencing remarks to the serious injuries suffered by the complainant;[20] the respondent's willingness to plead guilty at an early stage;[21] his guilty plea and 'sense of remorse';[22] his participation in the CREDIT Bail Program and attempts at rehabilitation;[23] the need for specific and general deterrence;[24] the maximum penalty prescribed;[25] and the need for 'stern punishment' and denunciation;[26] consistent with the respondent's relative youth.

34 Unquestionably, the sentencing judge in this case was faced with a difficult task. This was a serious example of a serious offence in relation to which general deterrence is ordinarily regarded as the principal sentencing consideration. It was aggravated by the respondent's consumption of alcohol, knowing, as I take him to have known, that drink made him ugly and violent.[27] As against that, the respondent was a relatively young offender from a disadvantaged background, who had shown by his plea of guilty and otherwise that he was genuinely remorseful, and was taking steps to overcome his alcohol and drug dependence. There was also the risk to which Dr Walton referred in his assessment that the longer the sentence imposed on the respondent, the less may be his motivation to continue with his efforts towards rehabilitation. It is clear that his Honour strove to balance those competing considerations as part of his sentencing synthesis. In those circumstances, it is not enough to warrant appellate intervention that some other judges might have taken a different view.[28] A Crown appeal against sentence should not be allowed unless the sentence is so manifestly inadequate as to shock the public conscience.[29]**

**35 In my view, however, this case does demand appellate intervention. The respondent's attack on the victim was an appalling crime. It was attended by all of the aggravating circumstances to which the Crown refers. It was productive of horrendous consequences and the victim will suffer from them for the rest of her life.[30] The community expects that such offences will be met with stern punishment.[31] With all respect, a sentence of five years was in my view manifestly inadequate.

36 It is true, as counsel for the respondent contends, that it would be wrong to allow the 'catastrophic and permanent consequences' of the offence to swamp all other considerations. They are one among a number of considerations which fall to be balanced as part of the sentencing synthesis. But lest there be any doubt about it, in my view, in this case, the effects on the victim bulk large.[32]

37 It is also true, as counsel for the respondent contends, that the respondent's plea of guilty does not necessarily imply that the respondent intended to cause the injuries suffered by the victim. In point of principle, the respondent may be taken to have admitted intentionally causing serious injury, but not necessarily to intentionally causing the injuries which the victim suffered.[33] In reality, however, in this case, that point is bereft of substance. For assuming an adult offender, an absence of psychosis and an ordinary degree of intelligence (all of which may be assumed in this case because of the respondent's age and Dr Walton's psychiatric assessment), it is impossible to suppose that a man who bashes a young woman over the head many times with a metal tube, and throttles her with an electric flex cord, does not intend to cause her the gravest injuries. It would be different if the offender were acting as an alcohol or drug induced automaton.[34] But that is not this case.

38 The maximum sentence for intentionally causing serious injury is 20 years' imprisonment and so, as has been observed in other cases, the worst instances of the offence are likely to attract sentences of upwards of 15 years. This crime was not amongst the worst instances of the offence, but, in some respects, it was not all that far from it. Leastways, I cannot think how else to describe an unprovoked, armed**

ambush by a man of his young female partner, in her own home, after she has forgiven him his earlier assault on her and put her trust in him, and which is so ferocious that it leaves her irreparably maimed. Despite the plea of guilty and the other significant mitigating circumstances, the sentence needs to be increased.

39 The principle of double jeopardy limits the increase in the sentence which this Court may impose.[35] We are not free to impose as large a sentence as should properly have been imposed at first instance. But even allowing for that limitation I consider that anything less than a sentence of six years' imprisonment would be manifestly inadequate. The non-parole period needs also to be increased. Three years is too small a proportion of a head sentence of six years, although I bear in mind the need to maintain the respondent's motivation to improve. Given his age, and the need to encourage his rehabilitation, I think that a non-parole period of four years would be enough.

**40 In the result, I would allow the appeal, quash the sentence passed below and re-sentence the respondent to a term of six years' imprisonment, with a non-parole period of four years.

43 The orders of the Court will accordingly be as follows:**

The sentence passed below is set aside and in lieu thereof the respondent is sentenced to be imprisoned for a term of six years.

A period of four years is fixed before the respondent is to be eligible for parole.

It is declared that 168 days is to be reckoned as time served pursuant to the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.

A certificate under s 15 of the Appeal Costs Act is granted to the respondent.

[1] For reasons which have not been explained.

[2] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10] and [11] (Redlich JA).

[3] R v Tahche (1992) 62 A Crim R 75; R v Hall (1994) 76 A Crim R 454.

[7] Crimes Act 1958, s 567A(1).

[8] Crimes Act 1958, s 583; Supreme Court (Criminal Appeal) Rules 1998, Rule 2.13.1(5).

[9] [1995] HCA 43; (1995) 184 CLR 265, 271.

[10] Gordon v Tolcher [2006] HCA 62; (2006) 81 ALJR 507; 231 ALR 582, 589 [37], concerning the time limit imposed by s 588FF of the Corporations Act 2001 (C'th).

[13] Sentencing Act 1991, s 5(1)(b).

[14] Sentencing Act 1991, s 5(1)(b).

[15] Sentencing Act 1991, s 5(2)(g).

[16] Sentencing Act 1991, s 5(2)(c).

[17] Sentencing Act 1991, s 5(2)(a).

[18] Sentencing Act 1991, s 5(2)(f).

[19] Sentencing Act 1991, ss5(2)(daa) and (db).

[27] R v Bradley (1980) 2 Cr App R (S)12; R v Tucker and Lewis (1989) 43 A Crim R 377; R v Martin [2005] VSC 497; R v Redenbach (1991) 52 A Crim R 95, 99; see also R v Sebalj [2006] VSCA 106 [14] (Vincent JA).

[28] Lowndes v R [1999] HCA 29; (1999) 195 CLR 665, [15].

[29] DPP (Vic) v Josefski [2005] VSCA 265; (2005) 158 A Crim R 185, 187 [4]-[20] (Maxwell P); DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10]-[11] (Redlich JA).

[30] Sentencing Act 1991, s 5(2)(daa).

[31] R v Williscroft [1975] VicRp 27; [1975] VR 292, 300; R v Robinson [1975] VicRp 81; [1975] VR 816, 829.

[32] Sentencing Act 1991, ss 5(2)(daa) and 5(2)(db).

[33] DPP (Vic) v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 527 [11] and 528 [15] (Redlich, JA) citing DPP v Economedes (1990) 58 A Crim R 466, 469; R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 103 (which were cases of recklessly causing serious injury).

[34] R v Keogh [1964] VicRp 52; [1964] VR 400, 401; R v Hayood [1971] VicRp 93; [1971] VR 755, 759.

[35] The Queen v Griffiths [1989] HCA 39; (1989) 167 CLR 372, 383 (Deane, J); Anderson (1987) 32 A Crim R 146, 151 (Kirby P); R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles, JA); Director of Public Prosecutions v VH [2004] VSCA 180, [14] and [26]; Director of Public Prosecutions (Vic) v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, 589 [29](Callaway JA).