Court of Appeal (Vic)|2010-12-17|Before: WARREN CJ, MAXWELL P, ASHLEY, REDLICH and WEINBERG JJA

DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis [2010] VSCA 350 (17 December 2010)

WARREN CJ, MAXWELL P, ASHLEY, REDLICH and WEINBERG JJA

R v Kontoklotsis (Unreported, County Court of Victoria, Judge Howie, 30 April 2010)

CRIMINAL LAW - Appeal - Sentence - General principles - Crown appeal against sentence -Abolition by Parliament of double jeopardy as a factor to be taken into account by Court in Crown appeals against sentence - Interpretation of ss 287, 289 and 290 of the Criminal Procedure Act 2009 - Breadth of Court's residual discretion to dismiss Crown appeals - Whether Director of Public Prosecutions' role in 'filtering' Crown appeals affected by amending legislation.

CRIMINAL LAW - Appeal - Sentence - Crown appeal against sentence - Joint offenders - Unprovoked attack on restaurant patrons by three off-duty security officers - Charges of affray, recklessly cause serious injury and intentionally cause injury - Bogtstra and Kontoklotsis sentenced to terms of imprisonment of nine months and 12 months respectively to be served by way of Intensive Correction Order - Karazisis sentenced to total effective term of two years and four months' imprisonment with non-parole period of 12 months - Whether sentences manifestly inadequate - Appeals against sentence in cases of Bogtstra and Kontoklotsis dismissed - Appeal against sentence in case of Karazisis allowed - Weight to be given to extent of victim's injuries - Karazisis re-sentenced to total effective term of three years and eight months' imprisonment - Non-parole period of one year and ten months fixed.

1 We have had the considerable advantage of reading in draft the joint reasons for judgment of Ashley, Redlich and Weinberg JJA. We agree with the disposition of the appeals which their Honours propose, for the reasons which they give. Subject to one matter, we are also in agreement with the conclusions reached by the majority as to the abolition of 'double jeopardy' and with their reasons.

2 We have, however, reached a different conclusion regarding the relevance of double jeopardy as a consideration affecting the exercise by the Director of Public Prosecutions ('the Director') of his statutory right to bring an appeal against sentence. For reasons which follow, we have concluded that Parliament intended to remove double jeopardy as a consideration for the Director, just as it has been removed as a consideration for this Court.

3 We begin with the history of the development of Crown appeals in Victoria, which provides useful context.

Development of 'double jeopardy' in Crown appeals

4 The right of an offender to seek intermediate appellate review of sentence was a creation of statute. It dates back to the beginning of the last century. The right of the Crown to seek such review was established later, but has existed in Australia since 1924.[1] In Victoria, it has existed since 1970.

5 The introduction of rights of appeal against sentence led to the development of jurisprudence, at both a State and Commonwealth level, regulating how and when such appeals should be allowed. The touchstone of this jurisprudence is the 1936 High Court decision in House v The King,[2] which established that an appellate court might re-sentence an offender where the exercise of the original sentencing discretion was shown to have miscarried, whether because of specific error or because the 'plainly' erroneous nature of the sentence under review enabled error to be inferred.[3]

6 Between the decision in House[4] and the late-1970s, the High Court was reluctant to develop a general jurisprudence with respect to sentencing, expressing the view that such matters were properly the preserve of State and Territory courts.[5] Those States in which Crown appeals against sentence were permitted developed their own jurisprudence with respect to such appeals. Whilst mention was occasionally made[6] of what would now be referred to as 'double jeopardy' (in the relevant sense), that principle played no special part in the appellate review of sentences challenged in Crown appeals. It was simply one of a number of discretionary factors taken into account by the court when deciding whether or not to re-sentence an offender once error had been identified.

7 In Victoria, a right to appeal against sentence was first conferred upon the Crown in 1970. The first case to consider that statutory right was R v Butler.[7] In that case, the Crown successfully argued before the Full Court that, having regard to the 'striking similarity' of the language used in the sections establishing offender and Crown appeals respectively, the same 'established principles' as set out in House[8] were to be applied in determining error in both types of appeal.[9] This approach was followed in this State throughout the 1970s.[10]

8 From the late 1970s, however, the High Court once again began to develop sentencing jurisprudence. It is from this general, national, jurisprudence that the modern concept of (sentencing) double jeopardy derives. In a series of decisions, the High Court raised the threshold which Crown appeals had to pass before an appellate court could be persuaded that the sentencing judge had fallen into error. The development of this jurisprudence was sparked by the comments of Barwick CJ in 1977 in R v Griffiths,[11] to the effect that Crown appeals should be a 'rarity, brought only to establish some matter of principle',[12] and by his earlier comment in 1971 in Peel v The Queen,[13] that such appeals 'cut across time honoured concepts of criminal administration'.[14]

9 The phrase 'double jeopardy' appears to have entered the jurisprudence of Crown appeals in R v Tait.[15] In that case, the Full Federal Court (Brennan, Deane and Gallop JJ) agreed with the Victorian Supreme Court in R v Butler,[16] in holding that appellate intervention depended - alike for Crown appeals as for offender appeals against sentence - upon the identification of error. Adopting Barwick CJ's comments, the Court emphasised that 'a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence'.[17] 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"'.[18]

10 A few years later, in Malvaso,[19] Deane and McHugh JJ adopted the statements of Barwick CJ with regard to Crown appeals. Their Honours explained that courts should ensure the rarity of such appeals through the imposition of a higher threshold of error than was the case in offender appeals:

That statement of the rare circumstances in which an appeal by the Attorney-General against sentence can be justified should, in our view, be expanded by the inclusion of express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which Barwick CJ saw as being "error in point of principle". Otherwise, it should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country.[20]

11 The minority view of Deane and McHugh JJ in Malvaso[21] was adopted by a majority of the Court in Everett v The Queen.[22] In so doing, the majority emphasised that the rarity of such appeals was directly related to double jeopardy:

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. That being so, a "court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified". In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:

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.

The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle".[23]

12 The High Court's decisions in Malvaso[24] and Everett,[25] and their emphasis on double jeopardy and rarity, occasioned a shift at the State appellate level away from treating Crown and offender appeals as subject to the same principles for the purposes of identifying error.[26] As set out in R v Clarke,[27] and later in DPP v Bright,[28] such appeals were now subjected to a more stringent analysis at the stage of identifying error, rather than simply at the stage of deciding whether a different sentence should be imposed.

13 As the reasons of the majority demonstrate, however, the enactment of the Criminal Procedure Act 2009 ('the Act') means that double jeopardy considerations have no longer any role to play at any stage of the appellate consideration of a Director's appeal against sentence.

14 There was some discussion in the course of argument about how the abolition of double jeopardy, so far as it affected the approach of this Court to Director's appeals, was intended to affect (if at all) the exercise of the Director's right of appeal. Although it is unnecessary for the purposes of these appeals to resolve the question, we think it appropriate to state our views.

15 For reasons which follow, we consider that the removal of the double jeopardy constraints on the power of this Court in dealing with a Director's appeal was intended to remove - and necessarily had the effect of removing - the like constraints on the Director's exercise of the right to bring such an appeal. This conclusion follows from the language of the Act and reflects the legislative intention which that language conveys. It also follows from the authorities, which show that the constraints on the Director have existed because - and only because - of the self-imposed constraints on the appellate court.

16 Dealing first with the statute, the Director has a statutory right under s 287 of the Act to appeal if he/she

(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and

(b) is satisfied that an appeal should be brought in the public interest.

The language of subparagraph (a) mirrors the language of s 289(1), which requires the Court of Appeal to allow the Director's appeal

if the DPP satisfies the Court that:

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

17 Thus the question which the Director must now ask himself under s 287(a), in deciding whether or not to bring an appeal, is precisely the question which the Court of Appeal will have to ask itself, under s 289(1), if the appeal is brought. As the latter provision makes clear, it is for the Director to satisfy the Court of Appeal, first, that there is an error in the sentence imposed and, secondly, that a different sentence should be imposed.

18 As we have said, and as the reasons of the majority make clear, the double jeopardy considerations were developed and applied by appellate courts in addressing those very questions: was there a sentencing error and, if there was, should a different sentence be imposed? Now, however, double jeopardy considerations are excluded from the Court's consideration of those questions.

19 It would, in our view, run directly contrary to this statutory scheme for the Director to continue to have regard to any of the double jeopardy considerations in deciding whether or not to bring an appeal. The Director is entitled - indeed, bound - to approach the s 287(a) question in the same way as this Court is bound to approach the s 289(1) question, that is, without regard to the double jeopardy considerations. Parliament has quite deliberately removed the double jeopardy fetters on the appellate consideration of Director's appeals. It can hardly have been intended that the Director remain subject to those fetters in deciding whether to bring such an appeal.

20 Our conclusion reflects what we regard as the clear legislative intent expressed by the removal of double jeopardy from the purview of the Court of Appeal. As the Explanatory Memorandum to s 289 makes clear, that removal has been effected because 'double jeopardy' was regarded as distorting sentencing by interfering with the Court's ability to provide guidance on sentencing to lower courts, and as unduly subordinating the public interest in 'adequate punishment':

Consideration of double jeopardy is removed because it interferes with a central function of DPP appeals which is to provide guidance for lower courts on sentencing. Further, the inconvenience and trauma of re-sentencing a person is not the only matter relevant to such policy issues. Rather, the interests of the community in seeing adequate punishment given for criminal offences is an overriding policy consideration.[29]

21 It would be contrary to that clear policy to have a position where the Court was no longer able to consider double jeopardy, but the Director was mandated to do so when considering whether to bring an appeal. First, this would perpetuate the distortion sought to be removed, in that (ex hypothesi) appeals which otherwise would have been successfully brought before the Court would not be brought; and secondly, it would ignore the primacy which the legislature has given to 'adequate punishment' over the 'inconvenience and trauma' attending Crown appeals for the offender concerned.

22 As to authority, it is clear that the constraints on the bringing of a Crown appeal have always been a mirror image of the constraints on the appeal court in considering such an appeal. Again, this is hardly surprising. When the courts declared that only Crown appeals having a 'rare and exceptional' character would be entertained, it naturally followed that the Crown was expected to bring forward only those appeals which could be said to exhibit that character. These were simply two sides of the one coin.

23 Thus it was that the double jeopardy principle received its clearest expression in the High Court in cases where the Crown required leave to appeal against sentence. It was expressed as a principle of judicial restraint in the grant of leave. The majority in Everett[30] (Brennan, Deane, Dawson and Gaudron JJ) said:

a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case ... [A] "court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified". [31]

Obviously enough, the Crown in deciding whether or not to seek such leave had to consider whether it could 'discharge the onus of persuading' the appeal court that the case was within the 'rare and exceptional' category.

24 The same constraint was held to operate in Victoria, although there has never been a requirement of leave.[32] And, for the very same reasons, the constraint on the appeal court operated as a constraint on the Director. Thus, in R v Diep,[33] the Victorian Court of Criminal Appeal referred to Everett[34] and Malvaso[35] and said:

The necessity for the grant of leave creates a filtering process. Not many applications for leave will survive that process. If they do they will be exceptional cases when dealt with on their merits. In this State leave of the court is not a prerequisite to an appeal. The filtering process is performed by the Director of Public Prosecutions himself. He is unable to appeal to the Full Court unless first of all he considers that a different sentence should have been passed and he is satisfied that an appeal should be brought in the public interest. See s 567A(1) of the Crimes Act 1958 (Vic). His state of satisfaction that there has been compliance with these requirements is invariably recorded in his notice of appeal. It may thus be expected that those appeals actually prosecuted before the Full Court by the Director will be "exceptional". However, they will include those of which it can be said that the sentence passed was manifestly inadequate.[36]

25 In other words, the 'filtering' which the Director was required to carry out was a reflex of the then-applicable double jeopardy constraints which the appeal courts themselves had imposed on Crown appeals.[37] The converse must also be true. Once those constraints on the power of the appeal court have been removed, there is no basis for treating the Director's exercise of the right of appeal as still subject to them.

26 Now, as previously, the Director's right of appeal depends upon his assessment of two distinct matters. The first is his determination that there was error and that a different sentence should be imposed. Those are the issues to which double jeopardy was, but is no longer, relevant. The second is his satisfaction that it is in the public interest to appeal. Now, as previously, that question turns on other considerations.

27 On 17 March 2010, the respondents, Nathan Karazisis, Mark Bogtstra and Konstantinos Kontoklotsis, each pleaded guilty in the County Court at Melbourne to one count of affray (count 1) and one count of intentionally causing injury (count 3).

Karazisis also pleaded guilty to one count of recklessly causing serious injury (count 2).

Total effective sentence: 9 months to be served by way of Intensive Correction Order

Total effective sentence: 12 months to be served by way of Intensive Correction Order

29 The Director of Public Prosecutions now appeals against the individual sentence imposed on each respondent on each count, and against the total effective sentence in each case.[38] In relation to Karazisis, the Director appeals against the non-parole period of 12 months and, in relation to Bogtstra and Kontoklotsis, he appeals against the orders that their sentences be served by way of Intensive Correction Order. All of these sentences are said to be manifestly inadequate.

30 These appeals have been heard by a specially constituted court of five because they raise, for the first time, a number of questions regarding the interpretation to be given to certain provisions of the Act. Since 1 January 2010, these new provisions have governed the conduct of Crown appeals against sentence in this Court.

31 Before we turn to the merits of the appeals, it is necessary to deal with these questions of interpretation.

32 Prior to the Act coming into force, Crown appeals against sentence were governed by s 567A of the Crimes Act 1958. That section conferred upon the Director and, by virtue of s 68(2) of the Judiciary Act 1903 (Cth), the Commonwealth Director of Public Prosecutions, a right of appeal against any sentence imposed on a person convicted on indictment. The right was conditioned upon the Director forming the view 'that a different sentence should have been passed', and also 'that an appeal should be brought in the public interest'.

33 The legislature viewed this as so radical a departure from long-standing practice that the Director was required personally to sign the notice in writing of his intention to appeal, which would set forth the grounds of the appeal.[39] The matter could not be left to a Crown prosecutor, no matter how senior.

34 Under the provisions of the Crimes Act 1958, as they then stood, the Court's power to interfere with a sentence imposed at first instance was contained in s 567A(4). That sub-section read as follows:

Upon an appeal under sub-section (1) the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe and including a sentence within the meaning of this section) in substitution therefore as it thinks ought to have been passed.

35 In this State, Crown appeals against sentence have always, since their introduction, been thought to raise considerations different from those presented in appeals by convicted persons. Crown appeals were described as cutting across 'time-honoured concepts of criminal administration',[40] because such appeals were understood to put in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal'.[41]

36 Over time, there developed a body of principle which suggested that such appeals should only be brought in 'rare and exceptional' cases.

37 In Clarke,[42] one of the two leading cases on the subject in this State, Charles JA (with whom Winneke P and Hayne JA agreed) said of Crown appeals:

The relevant rules may be stated in the following propositions:

An appeal by the Crown should be brought only in "the rare and exceptional case" ... to establish some point of principle. The reason is that such appeals "represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy"...
Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle ...; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons ...; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience ...; (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing ...
A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact ...

When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.
An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.[43]

These principles are unquestionably part of the law of this State; see R v Boxtel [1994] VicRp 54; [1994] 2 VR 98 per Crockett and Hampel JJ at 104; and R v Vallis [1996] VicRp 18; [1996] 1 VR 269 in which the authorities were examined by this court. It is important, however, in the application of these principles, to bear in mind what King CJ said in R v Osenkowski (1982) 30 SASR 212. Osenkowski at 212-13:

[P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, 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.[44]

39 The propositions set out above have been cited with approval, on countless occasions, by intermediate appellate courts throughout this country. They largely replicate the discussion of the principles underlying Crown appeals by the New South Wales Court of Criminal Appeal in R v Allpass.[45] The High Court has cited both Clarke[46] and Allpass[47] with apparent approval.[48]

40 In Bright,[49] the second of the leading Victorian cases on this subject, Redlich JA summarised the approach which both this, and other, appellate courts had generally taken to Crown appeals since their introduction. His Honour said:

A number of the principles which govern appeals by the Director of Public Prosecutions are set out in R v Clarke and Director of Public Prosecutions (Vic) v Johnston. One is that an appeal should not be brought unless the sentence reveals such "manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle". An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be "clear and egregious", the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and "undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes". When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondent's exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a "rare and exceptional" character which calls for restraint, even where manifest inadequacy may be present, the Court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the Court's determination of whether this Court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy.[50]

41 In its written submissions filed in support of these appeals, the Crown took issue with the reference in Bright[51] to 'manifest inadequacy alone' being insufficient 'to warrant appellate intervention'. The Crown also challenged the stipulation that '[s]omething more'[52] would be required to ensure that prosecution appeals did not unduly circumscribe the sentencing discretion of judges. It was submitted that these additional glosses upon the propositions laid down in Clarke[53] were unwarranted, and imposed an unjustifiable burden upon the Crown in relation to the hearing of such appeals.[54]

42 The decisions of this Court in both Clarke[55] and Bright[56] were heavily influenced by the observations of Barwick CJ in Griffiths.[57] The Chief Justice made it plain that, in his view, a Crown appeal should be brought 'only to establish some matter of principle', and to afford an opportunity to the appellate court to lay down principles for the governance and guidance of sentencing courts. He considered that 'error in point of principle' could include a '[g]ross departure from what might in experience be regarded as the norm ...'. [58] In Everett,[59] the High Court specifically endorsed Barwick CJ's statement of principle in Griffiths.[60]

43 Ever since the decision in Griffiths,[61] this Court, and its predecessor, have approached Crown appeals upon just this footing. The question asked has been whether, notwithstanding the constraints traditionally applied to Crown appeals, the sentence imposed at first instance revealed 'such manifest inadequacy'[62] as to warrant appellate intervention.

44 In Malvaso,[63] Deane and McHugh JJ, in their joint judgment, described 'the kind of manifest disparity or inconsistency in sentencing standards' to which Barwick CJ had adverted in Griffiths[64] as constituting 'error in point of principle'.

45 Subsequently, in Everett,[65] the question agitated was whether the sentence imposed revealed the 'type of manifest inadequacy' which would justify appellate intervention.[66] Everett,[67] adopting the language of Deane and McHugh JJ in Malvaso,[68] further explained the reference to 'matter of principle' as

encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in principle".[69]

46 The key provisions which now govern Crown appeals in this State are set out in Division 3 of Part 6.3 of the Act. Section 287, which confers power upon the Director to bring an appeal against sentence, is in the following terms:

The DPP may appeal to the Court of Appeal against a sentence imposed by an originating court if the DPP -

(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and

(b) is satisfied that an appeal should be brought in the public interest.

47 Section 289 confers upon this Court the power to entertain a Crown appeal, and provides as follows:

(1) On an appeal under section 287, the Court of Appeal must allow the appeal if the DPP satisfies the court that -

(a) there is an error in the sentence first imposed; and

(b) a different sentence should be imposed.

(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.

(3) In any other case, the Court of Appeal must dismiss an appeal under section 287.

48 Section 290 provides for the orders that can be made in the event that an appeal is allowed. It provides as follows:

(1) If the Court of Appeal allows an appeal under section 287, it must set aside the sentence imposed by the originating court and impose the sentence, whether more or less severe, that it considers appropriate.

(2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.

• whether the element of double jeopardy has been removed entirely as a relevant principle in Crown appeals;

• if so, whether its removal as a constraint upon Crown appeals has any effect upon other factors traditionally viewed as limiting the scope of such appeals; and

50 Conceptually, a Crown appeal has traditionally given rise to three separate questions which, for convenience, can be described as 'stages'. First, the Court considered the nature of the sentencing error in order to determine whether it

satisfied the common law requirements, summarised in Clarke[70] and Bright,[71] which were intended to ensure that such appeals should be 'rare and exceptional', and did not unduly circumscribe the sentencing discretion.[72] Secondly, even if the error met those requirements, the Court would consider whether, for reasons of principle or because of discretionary considerations, it should decline to intervene because it did not consider that a different sentence should be imposed. For example, the Court would exercise what it regarded as an overriding, or residual, discretion not to intervene where it did not consider that there was a sufficient difference between the sentence imposed at first instance, and any sentence it regarded as appropriate.[73] Thirdly, if the Court did intervene, because it was a Crown appeal the Court would impose a lesser sentence than it would otherwise have imposed, which was generally toward the lower end of the appropriate range.[74]

51 Underlying the common law requirements relevant at the first stage is what might be termed 'the rationale' of double jeopardy. At the second and third stages, however, double jeopardy would operate as a discrete sentencing principle. At the third stage, its application would result in a reduction of the sentence to be imposed. At the second stage that result would be taken into account in determining whether the Court should intervene at all. So it can be seen that double jeopardy operated either as a rationale, or as a sentencing principle, at each stage of the Court's determination of an appeal.

Summary of the effect of the new statutory regime

52 We should briefly state our conclusions as to the effect of the new regime. The Act addresses each of the stages at which double jeopardy has been regarded as a relevant consideration. Section 289 is concerned with when this Court must allow an appeal. In that sense, s 289(1)(a) addresses the first stage of the process. It eliminates double jeopardy when considering whether there has been sentencing error. Section 289(1)(b) relates to the second stage. It removes double jeopardy as a discretionary consideration when the Court determines whether it is satisfied that a different sentence should be imposed. It must be remembered that, in that context, the Court has always had a residual discretion to refuse to intervene even if sentencing error has been shown. That residual discretion survives, despite the fact that double jeopardy has been removed as one of the bases upon which it can be exercised.[75]

53 The third stage, when the Court has determined to intervene and impose a different sentence, is addressed in s 290(3). That sub-section removes the application of the principle of double jeopardy from the fixing of the sentence. It was not suggested on the appeal that double jeopardy now has scope for operation when, having allowed a Crown appeal, the Court must determine the sentence to be imposed. There are again discretionary considerations, other than double jeopardy, which may affect the sentence which the Court considers 'appropriate'.

54 This construction is supported by the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009. Section 289(2) was amended by the substitution of the words 'whether an appeal should be allowed' for the words originally enacted, 'whether there is error in the sentence imposed'. The purpose of this change in wording was to emphasise that the Court of Appeal is to disregard double jeopardy when considering first the question of error, and secondly, whether it is satisfied that a different sentence should be imposed.[76] Parliament has made clear its intent that double jeopardy is to be eliminated at both the first and second stages when the Court considers whether an appeal should be allowed.

55 In a supplementary note filed after the hearing of the appeal, the Director submitted that the reason for the amendment to the wording of s 289(2), as evidenced by the Explanatory Memorandum to the amending legislation, was to render that section 'workable' by making it applicable to the consideration required at s 289(1)(b), because double jeopardy 'has no part to play in determining whether there is an error in the sentence first imposed'. That submission cannot be sustained. It is directly contrary to the intended effect of the amendment as expressed in the Explanatory Memorandum, which was that 'the application of subsection (2) is broadened so that it applies also to when the Court of Appeal is considering whether a different sentence should be imposed'.[77]

56 As we have said, the approach which this Court is to follow on Crown appeals is now governed by a series of new provisions. As the question of how these provisions should be interpreted does not depend upon the correctness or otherwise of what the Court has previously said regarding the approach that should be taken to Crown appeals, the Crown did not pursue its initial submission to the effect that this specially constituted court should overrule Bright.[78]

The extent of the continuing obligation of the Director

57 Even a cursory reading of s 287 makes it clear that the right conferred upon the Director to appeal against sentence is conditioned upon his being satisfied of three distinct matters, namely, that there was an error in the sentence imposed; that a different sentence ought to have been imposed; and that it is in the public interest that an appeal be brought.

58 In our view, the general principles discussed in both Clarke[79] and Bright[80] continue to inform the Director's decision whether or not to commence an appeal pursuant to s 287 of the Act. That is to say, the new regime does not do away with the need for the Director to be personally satisfied that the case possesses those qualities which bring it within those circumstances contemplated in Clarke[81] and Bright.[82]

59 Section 287(a) provides that, before initiating an appeal, the Director must consider that there is an error in the sentence imposed and that a different sentence should be imposed. The language appears at first glance to mirror the test which governs the determination of Crown appeals pursuant to s 289.

60 There is, however, a significant difference. Section 287 focuses upon the Director's state of mind. Section 289 is concerned with the Court's satisfaction that the relevant conditions are met. It is only in relation to that latter consideration that the element of double jeopardy has specifically been removed.

61 It seems to us that s 287 should be interpreted expressio unius. The express abolition in ss 289 and 290 of double jeopardy as a relevant factor when considering Crown appeals against sentence stands in stark contrast with the omission of any such abolition in s 287.

62 In addition, we note that the legislative precursor to s 287, namely s 567A(1) of the Crimes Act 1958, has been the subject of judicial consideration. In Diep,[83] the Court of Criminal Appeal noted that, in this State, leave of the Court is not a pre-requisite to a Director's appeal. It added, however, that '[t]he filtering process is performed by the Director of Public Prosecutions himself'.[84] The Court went on to say that it might thus be expected that the Director would not initiate an appeal to this Court unless, in accordance with those common law constraints traditionally recognised, the circumstances were 'exceptional'.[85]

63 It is one thing to impute to the Parliament an intention to alter the outcome of Crown appeals, which the new provisions clearly manifest. It is altogether another to impute to the Parliament, as well, an intention to increase the frequency with which such appeals are initiated.

64 It is a well accepted canon of statutory interpretation that, where a provision has been the subject of judicial consideration, and the provision is subsequently re-enacted,[86] it will normally be assumed that the interpretation accorded to it by a court is intended to persist.

65 That conclusion is further supported by other principles of statutory interpretation. For example, in Coco v The Queen,[87] Deane and Dawson JJ said:

a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear.[88]

66 In DPP v Garde-Wilson,[89] Bongiorno AJA (with whom Maxwell P and Ashley JA agreed) made essentially the same point. His Honour said:

In Williams v R Dixon J described the statutory conferral of a prosecution power of appeal against a sentence passed by a trial court as being "a marked departure from the principles theretofore governing the exercise of penal jurisdiction." Barwick CJ in Peel v R described the procedure as cutting across "time honoured concepts of criminal administration". Similar sentiments have been expressed by the High Court and this court on many other occasions: see Whittaker v R; R v Tait; Griffiths v R; Malvaso v R; Everett v R; R v Clarke.

It can thus be confidently stated that a Crown right of appeal against sentence or against acquittal - is "contrary to fundamental principle" or "a departure from the general system of law"; phrases used by O'Connor J in Potter v Minahan where his Honour expressly approved a passage from the fourth edition of Maxwell on Statutes in the following terms:

... It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.[90]

67 Save to the extent that double jeopardy is removed from the Court's consideration by s 289(2) and s 290(3), Parliament has not, in our opinion, evinced an intention to abolish or modify the constraints which courts of the highest authority in this country have always applied to Crown appeals against sentence. There is no basis for reading into s 287, which concerns the Director only, a similar abrogation of what we would regard as 'a fundamental common law right'[91] embedded in not just the principle of double jeopardy, but a host of allied protections.

68 Had Parliament intended to require the Director to disregard double jeopardy when considering the matters set out in s 287(a), or perhaps as importantly, the requirement in s 287(b) that he be satisfied that an appeal should be 'brought in the public interest', it would, in our view, have been expected to have said so.

69 Section 287 is, as we have noted, aimed squarely at the Director and appears not to have any direct application to the task that confronts this Court. Nonetheless, the respondents contended that the approach which this Court should take towards Crown appeals should be informed, to some degree, by the requirement in s 287 that the Director be satisfied that an appeal should be brought 'in the public interest'.

70 We regard that submission as problematic. It is not supported by the language used in any of the key provisions and it is difficult to reconcile with the structure of the division within which those provisions appear. No mention is made of the 'public interest' being a relevant consideration in s 289, which is the provision directed to the manner in which the Court must approach the determination of Crown appeals.

71 In stark contrast with the power conferred upon the Director, there are only two conditions, and not three, identified in s 289, that must be satisfied if an appeal is to be allowed. These are first, that the Court is persuaded that there is an error in the sentence imposed; and secondly, that a different sentence should be imposed. Once these two requirements are met, the legislature tells the Court that it 'must' allow the appeal. If either of these two requirements are not met, the Court is told that it 'must' dismiss the appeal.

72 To the extent that double jeopardy has, in the past, provided the rationale for the approach taken by this Court in determining whether appealable error was disclosed, that is no longer the case. As will become evident, that is consistent with the approach taken by the New South Wales Court of Criminal Appeal, in its recent decision in R v JW,[92] to the analogous provisions in that State eliminating double jeopardy as a sentencing consideration in Crown appeals.

The continued existence of the residual discretion in determining whether to intervene (stage 2) and in fixing a different sentence (stage 3)

73 It was common ground on the appeal that s 289 preserves the residual discretion of this Court to order that a Crown appeal be dismissed notwithstanding sentencing error having been shown to the extent that there is some basis, other than double jeopardy, upon which that discretion can be exercised. That is reflected in s 289(1)(b) which requires that the appeal be allowed if the Court is satisfied 'that a different sentence should be imposed'. By its very nature, that state of satisfaction presupposes that the Court retains a good part of its residual discretion, well recognised since the introduction of Crown appeals against sentence, to conclude that, even though sentencing error has been demonstrated, a different sentence should not be imposed. The Court will then, pursuant to that residual discretion, dismiss the Crown appeal.

74 The residual discretion has, historically, been exercised on a number of different bases. The point was made in R v Boxtel,[93] where the Court spoke of Crown appeals giving rise to considerations that were not present in appeals against sentence brought by convicted persons. The Court referred to Crown appeals as cutting across 'time-honoured concepts of criminal administration'.[94] Plainly, a Crown appeal has never been regarded as simply the mirror image of an appeal by a convicted person.

75 The Crown did not contend before us that s 289 removed any aspect of the Court's residual discretion to dismiss a Crown appeal other than that which stemmed from double jeopardy. That concession was, in our view, rightly made. The requirement in s 289(1)(b) that the Court be satisfied that a different sentence should be imposed serves to preserve a good part, at least, of the residual discretion of this Court. Parliament would have used quite different language had it determined to remove this quite fundamental discretion. In particular, it would not have been necessary for the Parliament to have singled out, as it did, the element of double jeopardy as a factor that was to be disregarded in considering whether an appeal should be allowed.

76 The fact that double jeopardy was singled out in that way provides textual support for the conclusion that other aspects of the residual discretion were not intended to be removed at the second stage.

77 A similar conclusion must be drawn with respect to the sentencing discretion when the Court, at stage 3, determines to impose a different and 'appropriate' sentence. Section 290 provides that, in the event that a Crown appeal is allowed, this Court must set aside the sentence imposed by the originating court, and impose the sentence, whether more or less severe, 'that it considers appropriate'. The Court is, once again, when exercising that power, enjoined to ignore any element of double jeopardy. Critically, however, the Court is not prevented from taking into account any other factor that it regards as relevant to the task of re-sentencing an offender whose original sentence has been found to be inadequate.

78 As we have indicated, the Crown readily conceded that, under the new provisions, this Court retains a residual discretion to dismiss a Crown appeal, notwithstanding it being satisfied that there is error in the sentence first imposed, and that a different sentence is warranted. What can no longer be taken into account in the exercise of that residual discretion, as a result of the enactment of the new provisions, is 'any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed'.

79 Although the Crown accepted that the Court retained this residual discretion to dismiss a Crown appeal, its primary position seemed to be that the scope of that discretion was extremely limited. It acknowledged, for example, that the Court could dismiss an appeal, in the exercise of discretion, if the prosecutor below had either led the sentencing judge into error, or failed to do what was reasonably to be expected to prevent the judge from falling into such error. During the course of oral argument, the Crown seems to have shifted its position somewhat, and accepted that the discretion might not be so narrowly confined.

80 The Crown submitted, however, that the elimination of double jeopardy as a relevant consideration meant that the scope of the residual discretion had been severely diminished. It submitted that most, if not all, of the factors identified in both Clarke[95] and Bright[96] as constraints upon Crown appeals, stemmed from the doctrine of double jeopardy. Accordingly, these sentencing principles could no longer be taken into account. In particular, it was submitted that Crown appeals should no longer be approached on the basis that, speaking normatively, they ought to be 'rare and exceptional'.

81 The Crown sought to support its submissions largely upon the basis of the recent decision of the New South Wales Court of Criminal Appeal in JW[97] which dealt with an amendment to the law relating to Crown appeals brought about in New South Wales by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW). That Act inserted a new s 68A into the Crimes (Appeal and Review) Act 2001 (NSW) in the following terms:

(1) An appeal court must not:

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of an element of double jeopardy involved in the respondent being sentenced again.

(2) This section extends to an appeal under the Criminal Appeal Act 1912 and accordingly a reference in this section to an appeal court includes a reference to the Court of Criminal Appeal.

82 The reasoning of the New South Wales Court of Criminal Appeal in JW,[98] which was followed in R v Carroll[99] and DPP (Cth) v De La Rosa[100] is, at the very least, highly persuasive as to the construction to be accorded to the equivalent Victorian provisions. Both sets of provisions refer to the element of double jeopardy and, under ordinary principles of precedent, that expression should be given the same meaning in this State as in New South Wales.

83 There are differences between the wording of s 68A, and the language used in ss 287, 289 and 290 of the Act. Relevantly, however, the provisions seem to us to be essentially indistinguishable.[101] The impetus for the introduction of these provisions appears to have been a meeting of the Council of Australian Governments ('COAG') held on 13 April 2007, at which it was agreed that the various State and Territories would implement the recommendations of the Double Jeopardy Law Reform COAG Working Group on double jeopardy law reform, prosecutions appeals against acquittals, and prosecution appeals against sentence.

84 JW,[102] like the present case, was a decision of a specially constituted court of five. Spigelman CJ (with whom all other members of the Court agreed regarding the discussion of general principle) delivered the principal judgment. The Chief Justice provided a most comprehensive discussion of the history of Crown appeals against sentence, and the general principles that governed their determination. More specifically, his Honour focussed upon double jeopardy, insofar as it operated as a constraint upon such appeals.

85 Spigelman CJ concluded that the expression 'any element of double jeopardy' in s 68A(1) was intended to refer to 'the distress and anxiety of facing sentence a second time',[103] and nothing more. His Honour noted that the Crown had originally argued that a far wider range of matters fell within the concept of double jeopardy. In the Crown's original submission, these included damage to reputation, legal costs, hardship to third parties, the completion by the respondent of the sentence imposed, his/her imminent release from custody, any delay by the Crown in lodging its appeal, and errors by the prosecutor during the course of the plea that may have led the sentencing judge into error.

86 Had the Crown's original submission been maintained, and accepted as correct, there would, of course, have been virtually nothing left of the Court's residual discretion in relation to Crown appeals. The elimination of the element of double jeopardy, so construed, from consideration by the Court in dealing with a Crown appeal would have stripped the discretion of any meaningful content.

87 In any event, the Crown in JW[104] eventually resiled from its original submission and accepted that the element of double jeopardy, to which s 68A referred, should be confined to 'distress and anxiety'. Indeed, the Crown went further. Its position, as ultimately articulated, was that 'anxiety and distress' could still be relevant to the exercise of the Court's discretion, when considering what might constitute an appropriate sentence, in a re-sentencing exercise, even after the enactment of the new provision. For example, 'anxiety and distress' could provide a significant indication that considerations of personal deterrence might not be of great importance in the particular case.

88 Having accepted the Crown's submission regarding the meaning to be given to double jeopardy in the context of s 68A, Spigelman CJ went on to consider what changes, if any, the new provision had made to some of the classical statements of general principle regarding Crown appeals.

89 For example, Spigelman CJ noted that, in Griffiths,[105] Barwick CJ had stated that an appeal by the Attorney-General under s 5D of the Criminal Appeal Act 1912 (NSW) should be a 'rarity', brought only to establish some matter of principle.[106] The issue which concerned Spigelman CJ was first, whether, in the light of s 68A, the idea that Crown appeals should be a 'rarity' constituted a sentencing principle relevant to Crown appeals and secondly, whether, if so, that principle was grounded in double jeopardy.

90 Spigelman CJ correctly, with respect, expressed doubts as to how the notion that Crown appeals should be a 'rarity' could, in any practical sense, be deployed as a sentencing principle. His Honour posed the question how the Court could possibly determine that, in some quantitative manner, Crown appeals had become too frequent, and should therefore be discouraged. He noted that, in R v Holder & Johnston,[107] Street CJ had specifically rejected the idea that courts should adopt a posture of discouraging the bringing of Crown appeals. In that case, however, somewhat curiously, that observation followed almost immediately after Street CJ had said that courts were 'understandably more ready to ascribe error where the ground is manifest excess than where the ground is manifest inadequacy'.[108]

91 In considering whether the idea that Crown appeals should be 'rare and exceptional' continued to have any currency after the enactment of s 68A, Spigelman CJ observed that, once an error in the House[109] sense had been demonstrated by the Crown, the result had to be that an offender had not been sentenced according to law. In his Honour's view, that meant that, prima facie, it was

the duty of the Court of Criminal Appeal to set aside that sentence, and re-sentence the respondent appropriately.

92 Having given this matter careful consideration, Spigelman CJ concluded that s 68A, upon its proper construction, removed at least one central component of the restraint typically shown by appellate courts in dealing with Crown appeals, namely the need to approach them through the prism of their having to be 'rare and exceptional'. To the extent that the 'rare and exceptional' criterion had existed and operated as a sentencing principle, it derived solely from double jeopardy, and could therefore no longer be justified. Other aspects of the residual discretion, separate and distinct from 'anxiety and distress', were not necessarily affected.

93 The decision in JW[110] was subsequently considered, and apparently endorsed, by another court of five in Carroll.[111] There, the issue was whether, having regard to the fact that there had been a remitter by the High Court before s 68A came into operation, the new provision had retrospective effect. There was also a constitutional issue as to whether s 68A infringed the principles laid down in Kable v DPP (NSW).[112] The validity of the section was upheld.

94 In De La Rosa,[113] yet another specially constituted court of five approved of the reasoning of Spigelman CJ in JW.[114] The Court endorsed Spigelman CJ's conclusion that s 68A, upon its proper construction, precluded reliance upon the element of 'anxiety and distress' to which all respondents to a Crown appeal are presumed to be subject. It also prevented the Court from having regard to the frequency of Crown appeals as a sentencing principle both in relation to the exercise of discretion not to intervene on the basis of such 'anxiety and distress', and by reducing the sentence

which it otherwise believed to be appropriate on the basis of such 'anxiety and distress'.

95 The position in New South Wales therefore is that s 68A operates to prevent consideration being given to the 'anxiety and distress' presumptively faced in all cases by those who are respondents to Crown appeals. However, it does not preclude the Court from having regard to such 'anxiety and distress' insofar as it provides a significant indication that considerations of personal deterrence are not to be given significant weight.

96 Part of the difficulty presented by the new provisions lies in the fact that the term 'double jeopardy' has so often been used in different ways.[115] The rule against double jeopardy, in its strict sense, operates predominantly to protect not just the accused, but the legal system itself. By preventing 'harassment and inconsistent results',[116] the rule promotes confidence and respect in the court system.[117] Moreover, the rule conserves scarce judicial resources and court facilities.

97 What is particularly interesting is that the rule, as traditionally understood, had almost nothing to say about sentencing. The explanation may be historical. There was, from the time of its creation, a power in England, in the Court of Criminal Appeal, to increase a sentence when the accused sought to have the sentence reduced. That power was seldom, if ever, exercised.[118] Until relatively recently, the Crown had no right, in that country, to institute an appeal against sentence. It seems that there was no particular demand for the creation of such a right. The indications are that this had nothing to do with double jeopardy, but reflected a widely held belief that the introduction of Crown appeals 'would be a complete departure from our tradition that the prosecutor takes no part, or the minimum part, in the sentencing process'.[119]

98 Right from their commencement, the view was taken in England, and in this country, that Crown appeals were in some way special, and should not be too readily entertained. That reticence finds its source in history and tradition. It extends far beyond any rule of double jeopardy, howsoever it be defined.

99 We find it unnecessary to determine whether the term 'double jeopardy' in both ss 289 and 290 is to be confined to 'anxiety and distress', in the sense spoken of in JW[120] or whether that term has any wider import. Whatever its scope, its removal as a rationale, or sentencing principle, to be taken into account by this Court does not otherwise diminish the scope of the residual discretion.

100 That residual discretion is perhaps of uncertain width. It is impossible to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case. What is clear is that it survives the enactment of the new provisions. In the exercise of that discretion, the Court can dismiss a Crown appeal even where a sentence fixed below is shown to be affected by error in

the House[121] sense, and the Court is satisfied as well that a different sentence ought to have been passed.

101 What has changed, as a result of the new provisions, is that the Court can no longer have regard to double jeopardy when considering whether to dismiss an appeal in the exercise of its residual discretion. Arguably, that means that the Court cannot have regard to what, in New South Wales, has been described as presumptive 'anxiety and distress', in determining whether to dismiss an appeal. Moreover, the Court cannot have regard to such anxiety and distress when considering what sentence to impose after it has determined that a Crown appeal should be allowed.

102 The new provisions also make it clear that the residual discretion to dismiss a Crown appeal can no longer be exercised on the basis that, if the Court were to proceed to re-sentencing, it would in any event arrive at a sentence close to that imposed at first instance because the Court would necessarily be giving a 'discount' for double jeopardy.

103 However, as one learned commentator has pointed out,[122] there remain many reasons, apart from double jeopardy, why, as a matter of discretion, this Court would conclude that, despite error having been established and being satisfied that a different sentence ought to have been passed, a Crown appeal should be dismissed.

104 Among the factors that might be relevant to the exercise of the Court's discretion to dismiss an appeal, despite inadequacy of sentence having been demonstrated, are delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.

105 It is not difficult to see how factors such as these, and perhaps a number of others, might be regarded as justifying such a course in any given case. It is important to note that they are all far removed from double jeopardy, certainly in the sense in which that term is now understood in the context of the new provisions.

106 Where there has been a significant delay between the sentencing of an offender, and the hearing of the Crown appeal against that sentence, the Court will generally take that into account in determining both whether to allow the appeal and, if so, in re-sentencing. There are sound reasons for this.

107 Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand. When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed. A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.

108 Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent. If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the Court will be reluctant to disturb that situation. The same is true where there has been a significant deterioration in the respondent's health, or mental well-being, in the period between his/her having been sentenced and the hearing of the appeal. Particularly, in a case not involving criminality of the highest order, the Court may take the view that it would be unfair and inappropriate, to intervene merely to mark the Court's disapproval of the sentence originally imposed.[123]

109 Parity can also operate as a constraint upon a Crown appeal against sentence. It sometimes happens that the Crown elects to appeal against the sentence imposed upon one offender, but not another. In the same way as want of parity can require a court to moderate a sentence that it would otherwise consider appropriate, it may act as a limiting factor when the Crown challenges the adequacy of just one of a number of sentences. In such circumstances, a sentence which is regarded as inadequate might still be permitted to stand.

110 It has been suggested that the principle of totality is another factor that might lead to a Crown appeal being dismissed in the exercise of the Court's residual discretion. Totality ordinarily comes into play when an offender is to be sentenced on multiple counts, though the principle is broader than that. It may be that a sentence imposed for a specific offence, one among many, is regarded when viewed in isolation as manifestly inadequate. It does not follow that a Crown appeal directed at that particular sentence will necessarily succeed. It may be apparent that the sentence fixed in relation to that particular offence has been adjusted downwards in order to avoid a total effective sentence that could be regarded as 'crushing'. That would be one way in which the principle of totality could be invoked, though it is not the approach that should ordinarily be taken.[124] In such circumstances, the Court might well exercise its discretion to dismiss an appeal brought against that individual sentence despite the fact that, considered in isolation, the sentence is plainly inadequate.

111 The next potentially relevant factor in the exercise of the residual discretion is rehabilitation. Crown appeals are not intended to detract, in any way, from the importance of this vital sentencing factor. The importance of rehabilitation in the case of young offenders, in particular, has been emphasised many times.[125]

112 Rehabilitation has always been regarded by this Court as an important factor in determining whether to interfere with a sentence that was designed to enhance its prospects. This applies as well to custodial sentences which are ordered to be served in less punitive ways than actual imprisonment. For example, an offender who has been sentenced to a term of imprisonment, to be served by way of an Intensive Correction Order, may already have completed a good part of that sentence by the time the Crown appeal is heard. That is plainly a matter to be accorded considerable weight in determining whether the Court should, in the exercise of its residual discretion, dismiss such an appeal. Rehabilitation will also play its part in the sentencing discretion in the event that the Court resolves to intervene and impose a different sentence.

113 In that regard, it should be noted, as one commentator has said, that:

...when an offender appeals against an allegedly excessive sentence the court concerns itself almost exclusively with circumstances presented to the trial judge whereas when the Crown appeals the court also shows great interest in what has happened since imposition of sentence. To this extent the review of a lenient sentence is in some ways analogous to choice of a sentence following breach of a bond or of a probation order ...[126]

114 In other words, a Crown appeal does not require the appellate court to put itself back in the position of the original court at the moment of conviction. The appellate court must deal with the offender in the light of the circumstances which exist at the hearing of the appeal, and not those which existed when the offender was first convicted.

115 Finally, as the Crown readily conceded in this proceeding, the Court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the Court adequately.[127] For example, the Crown will not ordinarily be permitted to

put submissions on appeal that were not advanced below.[128] Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be within the range reasonably available to the sentencing judge.[129] The right given to the Crown to appeal against sentence is not designed to permit it to raise, for the first time, matters that should have been ventilated at first instance. As will be seen below, an illustration of the operation of this discretionary constraint arose in this case.

116 Before this Court, the Crown sought to rely upon the prevalence of the type of offences committed by each of the respondents, and drew upon statistics showing the number of occasions that such offences have come before the courts in recent years. There is no doubt that the prevalence of an offence is a consideration which may have a bearing on general deterrence and denunciation when sentencing in a particular case.[130] But unless such a sentencing consideration inhered in the issues before the sentencing Court,[131] procedural fairness would have required that notice be given of an intention to rely upon that consideration so that an opportunity was afforded to the respondent to make submissions in that regard.[132]

117 In the present case, neither the prosecution nor the sentencing judge, at any stage during the course of the plea, adverted to prevalence as a relevant sentencing issue. This Court must act with caution before permitting the Crown to advance a submission on appeal which was not advanced before the sentencing judge.[133]

118 As the question of prevalence was not the subject of full argument before us, this is not the occasion to consider whether the statistics presented were a sufficient means by which that feature could be established, or whether the prevalence of this offending so inhered in the matters before the sentencing judge that it did not need to be the subject of any notice, either on the plea or in the grounds of appeal. Accordingly, we need not finally determine whether the Crown should be permitted to advance such an argument on the appeal, despite its not having been raised at first instance.

119 It follows that, in our opinion, save for the abolition of the element of double jeopardy as a factor that can be taken into account in dealing with Crown appeals, the new provisions do not interfere in any way with the Court's residual discretion to dismiss such appeals, even if satisfied that the sentence below was inadequate. Nor, save for the abolition of double jeopardy, do these new provisions interfere with the Court's discretion in imposing a fresh sentence if the appeal is allowed. That conclusion derives both from the construction of the Act, and the long tradition in the common law of viewing Crown appeals as fundamentally different from appeals by convicted persons.

120 The notion that Crown appeals should be 'rare and exceptional' no longer applies as a sentencing principle to which this Court must have regard. The legislature, by excluding double jeopardy from consideration by the Court has placed the sole responsibility with the Director for ensuring that Crown appeals are only instituted in those circumstances which meet the criteria for such appeals. As we have said, the principles which lie at the heart of the double jeopardy rule continue to have operative force. Those principles are to be taken into account by the Director in determining whether it is truly in the public interest for an appeal to be brought. The filter has shifted from the Court, to the Director, who must, in accordance with the Act, turn his mind to the considerations which lie at the heart of double jeopardy as part of the requirement that he have regard, when deciding whether to institute an appeal, to whether it is really in the public interest to do so.

121 Importantly, as the New South Wales Court of Criminal Appeal observed in Allpass:[134]

If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.[135]

122 That statement remains as true today as it was when it was first made. It provides a powerful reason why, notwithstanding the enactment of the new provisions, Crown appeals are likely to continue to be relatively infrequent, and subject to particular discretionary obstacles which the Crown must overcome.

123 In short, we do not accept that all Crown appeals, to which the new provisions apply, being appeals against those sentences imposed on or after 1 January 2010, are to be determined on the same basis as appeals by convicted persons against their sentences. A Crown appeal against inadequacy of sentence is not to be regarded as simply the other side of the coin, as compared to an offender's appeal against manifest excess.

124 Under s 289(1)(a), the Director must satisfy this Court that 'there is an error in the sentence first imposed'. The error almost always asserted on a Director's appeal, either as the sole or as the primary ground of appeal, is that the sentence was 'manifestly inadequate'.

125 Like the ground of 'manifest excess' in prisoner appeals against sentence,

manifest inadequacy falls into the last category of error identified in House,[136] as follows:

It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[137]

126 In its unanimous decision in Carroll v The Queen,[138] the High Court (Gummow, Hayne, Crennan, Kieffel and Bell JJ) set out this passage from House[139] and said:

The director's allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was "manifestly inadequate", was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.[140]

127 In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[141] As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.[142] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

128 The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[143]

129 Having considered the general principles which now pertain to Crown appeals in relation to sentences imposed on or after 1 January 2010, it is necessary to turn to the appeals currently before this Court.

130 The offending took place at approximately 5:30am on Monday 13 July 2009, at the Hungry Jack's Restaurant in Chapel Street, Prahran. All three respondents had been out all night. They had earlier been working as security guards, and then continued on to a nightclub. All three respondents had consumed alcohol during the night.

131 The following sequence of events was captured by CCTV cameras inside the Hungry Jack's store. James Mitchell, the victim of count 3, was seated at a table with five others in the centre of the dining area. Karazisis and Kontoklotsis were seated at a table to the left, against the wall. A group of three young females and one young male were seated at the table next to them along the same wall. Luke Adams, the victim of count 2, and another male, were seated at a table on the other side of those young females, also against the wall.

132 Bogtstra arrived and approached the table where Karazisis and Kontoklotsis were seated. Immediately after he arrived, Bogtstra turned and left the premises through the front door. Karazisis followed Bogtstra, leaving Kontoklotsis at the table. Approximately 30 seconds later, the females at the table next to the respondents left the restaurant through the front door, just as Bogtstra and Karazisis came back in through the same door. Mitchell gestured towards the females as they walked out the door.

133 Very soon after, Kontoklotsis approached Mitchell and seemed to engage in conversation with him. Bogtstra then also approached Kontoklotsis and Mitchell, and immediately punched Mitchell to the head. Karazisis was, by this time, standing behind Bogtstra.

134 Mitchell stood up and began to grapple with Bogtstra. As they were wrestling, they moved to the entranceway. At this time, and without any apparent provocation, Karazisis grabbed the young man sitting to Mitchell's right in a choke hold around his neck. Also at the same time, Kontoklotsis attacked a third male who had been seated at Mitchell's table, and who was trying to assist the man being held in the choke hold.

135 At about this time, Adams came from across the room to assist his friend Mitchell. As he passed Karazisis, Karazisis released his choke hold on the young man, and followed Adams towards Mitchell and Bogtstra.

136 Again without any apparent provocation, Kontoklotsis turned on the man who Karazisis had just released from the choke hold, and threw a number of punches at him. Kontoklotsis then went to the assistance of Bogtstra who had only just managed to get Mitchell to the ground. Bogtstra and Kontoklotsis continued to rain down blows upon Mitchell while he was on the ground.

137 While this was happening, Karazisis had followed Adams to the entranceway where, still without any provocation, he grabbed Adams from behind and began punching him to the head. The CCTV footage indicates that Karazisis punched Adams to the head approximately six times.

138 Karazisis then held Adams in a choke hold for approximately 15 seconds, during which time Adams lost consciousness. Karazisis released his hold, letting go his right arm first, and then, almost immediately, his left arm as well. Adams fell heavily, and face-first, onto the floor.

139 Karazisis then backed out of the entrance. He returned almost immediately and began stomping on Mitchell, who was still on the floor under attack from Bogtstra and Kontoklotsis. The sentencing judge found that both Karazisis and Kontoklotsis appeared to have stomped on Mitchell. Bystanders were able to move the respondents and Mitchell out of the entrance and onto the street, and the affray continued.

140 Adams was, at that time, unconscious on the floor with a pool of blood clearly visible around his head. The police arrived soon after and the respondents left the scene.

141 All three respondents were identified and search warrants were executed at their respective homes. All three made no comment records of interview.

142 It should be noted, for the sake of completeness, that we have recounted the events of the affray, and the two assaults, in considerable detail. It is the fact, however, that the entire incident, from the time Bogtstra threw the first punch at Mitchell, to the time the offenders left the restaurant, took only about 40 seconds.

143 Adams was admitted to the Alfred Hospital on the morning of the offending, 13 July 2009. He was diagnosed as having sustained a 'closed head injury', which a computer tomography (CT) scan revealed to be a left frontal parietal haemorrhage (bleeding in the skull). He also had a pneumocranium (air in the skull, suggesting a fracture) and a depressed and comminuted fracture of the left orbital roof/floor of the anterior cranial fossa, as well as fractures of the right and left frontal sinus. He had also sustained a laceration to the forehead which had to be sutured and, subsequently, left a sizeable and unsightly scar.

144 On 15 July 2009, some two days after he was admitted to hospital, Adams was discharged to the care of his parents. He continued to have treatment for his injuries for some months thereafter.

145 On 17 July 2009, Adams was seen by Dr Darren So, a Clinical Forensic Medicine Registrar at the Victorian Institute of Forensic Medicine. Dr So had seen the CCTV footage, and had been given access the Alfred Hospital records.

146 In his statement, Dr So specifically referred to the technique that had been used by Karazisis on Adams as similar to a choke hold using a Judo technique called 'shime-wiaza'. That hold causes unconsciousness by applying pressure to one of the two carotid arteries that pass through the neck to supply blood to the brain. The amount of pressure needed was said to be small, approximately 250 mmHg for ten to 20 seconds.

147 Dr So said that Judo practitioners generally performed that technique safely. That was because it was carried out in a controlled and supervised environment, with personnel trained in both the technique of the hold, and the recognition of unconsciousness. Importantly, it was inflicted upon 'co-operative opponents'. Where those factors were missing, for example, when law enforcement officers applied choke holds to control agitated persons, Dr So stated that 'the technique is dangerous and fatalities are known to have occurred'.

148 Dr So concluded that Adams had been placed in such a choke hold, and that this had resulted in him losing consciousness. He said that, based on his observations of the CCTV footage, Adams had been released in such a way that he fell from standing and hit the left side of his head on the ground. That caused him to sustain a fracture of the skull and bleeding within the brain. Dr So's opinion was that a head injury of that kind was both dangerous, and life-threatening.

149 The Crown, in its opening on the plea, drew to the sentencing judge's attention a statement from one Jeremy Ta'Kody. Ta'Kody was, at the relevant time, a professional martial arts instructor at the Malvern Martial Arts Centre. He identified Karazisis as one of his students. He said that Karazisis had been trained in Jiujutsu and in mixed martial arts techniques. Included within that training had been the application of 'strangulation techniques', designed to cause submission, or bring about loss of consciousness in the opponent.

150 According to Ta'Kody, students were continually reminded that the use of such techniques should be confined to life-threatening self-defence, or martial arts competition. Ta'Kody added that Karazisis had participated in classes where various strangulation techniques were taught, and would have been fully aware that the technique would lead to loss of consciousness. On viewing the CCTV footage, he indicated that it showed Karazisis applying a strangulation technique known as a 'back choke' or 'v-choke' to Adams.

151 Returning to the effect that Karazisis' assault had upon Adams, there was evidence that he attended the Faciomaxmillary Review Clinic on a monthly basis for the following three months. At his attendance on 21 August 2009, it was noted that his face was of symmetrical appearance. He had originally been diagnosed with lip ptosis of his upper lip (lip drop), however, by August this had spontaneously improved.

152 Adams also attended the Ophthalmology Outpatient Clinic on 3 August 2009. By that time, his eyesight had nearly returned to normal.

153 In addition, Adams attended the Neurosurgery Outpatient Clinic on 25 August 2009. In the early days, after he was assaulted, Adams had complained of 'severe head pains, dizziness, blurry vision and a lack of balance and mobility'. By late August, those symptoms had abated. However, he still had some swelling and ptosis of the left eye. The medical opinion, in August 2009, was that he still faced a small risk of suffering seizures. He attended the Clinic again on 20 October 2009 and, by that stage, was told he could resume driving.

154 In his victim impact statement, Adams described how he had been grabbed from behind, in a headlock, and choked into unconsciousness. The next thing he could remember was waking up on the concrete floor, while his friend, Mitchell, held his head and tried to stop the bleeding. He had no memory of anything else until he woke up in the emergency ward at the hospital.

155 Adams said that he was worried, at the time, as to whether he had sustained an injury to his brain. He was also worried about his appearance, and how the injuries that he had suffered would affect him in the future. He said that he could remember his eye being closed in, and being concerned about whether or not his eyesight would be permanently affected.

DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis [2010] VSCA 350

At a glance

Court

Decision date

Before

Source

Judgment (378 paragraphs)

DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis [2010] VSCA 350 (17 December 2010)

Legislation Cited (7)

Cases Cited (28)