DPP v King [2008] VSCA 151

SENTENCING - Crown appeal - Culpable driving - Manifestly inadequate - Gravity of offences - Denunciation and deterrence - Offender suffered serious brain injury - Merciful sentence - Appeal dismissed.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 The facts of the appeal are conveniently laid out in the reasons of Redlich JA which I gratefully adopt.

2 I agree with the remarks of his Honour concerning the admissibility of the blood analysis. I re-emphasise that the admissibility issue ought to have been resolved both before the plea and, also, on its status as an aggravating factor of the offending.

3 Turning to the sole ground, ground 3, as to manifest inadequacy, as observed by the sentencing judge, this was a serious case of culpable driving. I observed in DPP v Johnstone[1] that:

Tragically, cases of culpable driving continue to come before the Courts. The profile and numbers of young drivers coming before this Court may indicate that the authorities responsible for educating the community as to the consequences of culpable driving are not succeeding ...

Culpable driving constituted by negligence consists of driving involving 'such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, involving such a high risk that death or serious injury would result, that the driving merited criminal punishment.' The maximum penalty of 20 years' imprisonment for culpable driving reflects the gravity of the view taken by Parliament in relation to the offence of culpable driving. In turn, the courts have reflected the seriousness of the offence by the imposition of longer terms of imprisonment as 'the community will not tolerate the taking of human life by acts of gross negligence.' The courts have also recognised that the circumstances of culpable driving will vary and courts should take account of the individual circumstances of each case. With respect to cumulation, it is important that each death be adequately recognised, in both the overall sentence and the non-parole period.[2]

4 As Redlich JA has described, we are constrained in our task. In my view, whilst the sentence is surprisingly lenient if compared with the general approach of the Courts,[3] it does not cross the threshold of disproportionality so as to evoke

shock.[4] I form this view upon consideration of all relevant sentencing factors including the mitigating factors of the applicant. They are the injuries and suffering of the applicant including both psychological and physical disabilities he will carry for life, a permanent reminder and punishment for his offending; the rendering of his term of imprisonment thereby more onerous; his significant and ongoing remorse and suffering from having killed his close friend; the delay in the applicant's disposition causing him to suffer the anxious burden of the prosecution and appellate processes; his good prospects for rehabilitation; and, importantly, his relative youth.

5 Notwithstanding my remarks in DPP v Johnstone[5] concerning the warranting of stern sentences in culpable driving cases, the mitigating factors combined with the fact that this was a Director's appeal, lead me to reject ground 3.

6 I agree with Redlich JA that the sentence was lenient. It was merciful in all the circumstances.

7 For the reasons stated I would dismiss the appeal.

8 This is an appeal against sentence by the Director of Public Prosecutions. On 3 October 2007 the respondent pleaded guilty in the County Court to one count of culpable driving causing death (count 1)[6] and one count of reckless conduct that placed others in danger of serious injury (count 2).[7] The respondent was sentenced to three years and eight months' imprisonment on count 1 and 12 months' imprisonment on count 2. It was ordered that two months of the sentence on count 2 be served cumulatively upon the sentence on count 1, making a total effective sentence of three years and 10 months' imprisonment. A minimum term of one year

and nine months' imprisonment was fixed before the respondent would be eligible for parole. The respondent's driver's licence was also cancelled and he was disqualified from obtaining a driver's licence for four years commencing on 25 August 2005.

9 The Director has appealed against the sentence on three grounds. The first ground is that the sentencing judge erred in ruling that evidence of the respondent's blood alcohol concentration, based upon an analysis of a blood sample taken at a hospital following the respondent's culpable driving, was inadmissible. The Director contended it should not have been excluded as a sentencing consideration. The second ground is that the exclusion of the respondent's blood alcohol concentration led to the sentencing judge imposing a sentence which was manifestly inadequate. The third ground is that the sentences passed on each count, the order for partial cumulation, the non-parole period and the licence disqualification period were each manifestly inadequate.

10 On Friday 3 December 2004 at approximately 6.15 pm the respondent was driving a white VN Holden Commodore sedan in Cordite Avenue, Maribyrnong when the collision occurred. Shortly before the collision in Cordite Avenue the respondent was observed by a witness, Ms Andrea Deale, driving his vehicle out of the McDonalds Restaurant on Military Road, Avondale Heights. The witness said that the respondent was seen to do a burn-out and accelerate heavily away. The witness drove off in the same direction as the respondent's car and saw the respondent's vehicle stationary at some traffic lights. At that point she saw the respondent's car repeatedly brake and accelerate causing the rear of the respondent's car to go up and down.

11 Further down the road the witness observed the respondent's vehicle pass a Nissan vehicle. The respondent put his arm out of the window of his vehicle and abused the driver of the Nissan vehicle. The respondent passed the Nissan vehicle and swerved in front of it before accelerating quickly away. The respondent then drove his vehicle quickly up behind another vehicle travelling in the same direction. He swerved around this vehicle to the left without indicating and accelerated away to a very high speed, estimated by the witness to be 170km/h.

12 The witness continued to observe the respondent's vehicle as it travelled to a dip in the road that was followed by a bend to the right. Ms Deale lost sight of the respondent's vehicle as it went over the crest of a hill, having formed the view that the respondent's vehicle would not be able to get around the bend at the speed at which it was travelling. When the witness drove over the crest and into Cordite Avenue, Maribyrnong she observed the respondent's vehicle was stationary on the wrong side of the road. It had been involved in an accident with a blue Holden Commodore sedan.

13 The vehicle with which the respondent collided was driven by Mr Leonardo Cogliolo who had his two year old son restrained in a car seat in the back of the car. He was waiting at a red light at the intersection of Cordite Avenue and Central Park Avenue. When the lights changed to green he proceeded through the intersection travelling west into Cordite Avenue. Mr Cogliolo was travelling along Cordite Avenue at about 45-50 km/h when he observed the respondent's vehicle coming over the rise, appearing to be airborne and he estimated the speed to be between 160-180km/h. When he first saw the respondent's car it was on the correct side of the road, but the respondent appeared to lose control and then skidded sideways across onto his side of the road towards his vehicle. He braked heavily and closed his eyes just before the point of impact. Mr Cogliolo heard a loud crunching noise, followed by the noise of his son screaming. He said there was blood everywhere and he was bleeding from his arm.

14 There was significant damage to both vehicles involved in the collision which made it clear there had been a very substantial impact. As a result of the collision Joshua Minato, the 20 year old front seat passenger in the respondent's vehicle, received a fatal head injury and died at the scene of the collision. Toxicological analysis of his blood revealed a blood alcohol concentration of 0.140%. In addition Mr Cogliolo received injuries as a result of the collision but they were of a relatively minor nature. His son Luca had some minor bruising but was otherwise uninjured. Both Mr Cogliolo and his son have made full recoveries. The respondent was taken to the Royal Melbourne Hospital following the collision with serious injuries. He arrived at hospital at 7.27 pm.

15 Observations by investigators at the scene revealed the presence of tyre scuff marks in the form of a yaw mark, commencing on the northern side of Cordite Avenue. The yaw marks travelled in a curved path over onto the westbound lanes consistent with the respondent's vehicle travelling sideways. The opinion of a reconstruction expert, Senior Constable Urquhart from the Major Collision Investigation Unit, was that the respondent's vehicle had been travelling at a fast rate of speed when he oversteered to the right. The respondent's vehicle then commenced to rotate in a clockwise direction across Cordite Avenue before colliding with Mr Cogliolo's vehicle. A reconstruction conducted by Senior Constable Urquhart led him to believe the respondent's vehicle was travelling at a minimum of 137km/h in a 60km/h zone. A mechanical examination of the respondent's vehicle revealed no mechanical fault that could have caused or contributed to the accident.

16 The respondent was taken by ambulance to the Royal Melbourne Hospital. He was unconscious on arrival. Pursuant to s 55B of the Road Safety Act 1986 (Vic) and reg 205 of the Road Safety (General) Regulations 1999 (Vic), a blood sample was taken from the respondent by a doctor at the hospital. As required under the regulation, three separate samples of blood were taken. One sample of the respondent's blood was provided to the requesting member of the police force. Due to the respondent's medical condition the doctor placed the respondent's sample in his shoes with his personal belongings as permitted under reg 205(3)(c) of the Road Safety (General) Regulations 1999 (Vic). According to the analysis of the respondent's blood, he had a blood alcohol concentration of 0.184%.

17 The respondent remained in the Royal Melbourne Hospital for three weeks after the collision and then spent approximately four months in the Ivanhoe Private Rehabilitation Hospital. At some point of time after the accident and before the respondent left hospital, a police officer took his belongings, including the shoes containing the blood sample. The sample was later discovered by the police informant on or about 29 March 2006 in the exhibit room of the Major Collision Unit.[8] The trial judge recognised that the misplacement of the sample was 'through inadvertence rather than any calculated act of misconduct'.[9] The respondent obtained an expert opinion from a forensic toxicologist to the effect that this blood sample, due to the circumstances of its storage, was no longer of any evidential value as it was no longer possible to accurately determine the amount, if any, of alcohol present in the blood at the time of its extraction.[10]

Culpable driving count alleged offence was committed in two specified and/or alternate ways

18 Culpable driving causing death is an offence which may be committed in four specified ways.[11] The Crown alleged that the respondent's driving involved two forms of culpable driving. Both were specified in the count alleging the offence.[12] The count alleged that the respondent drove the said motor vehicle 'negligently and/or whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the said motor vehicle'.

19 At a directions hearing the Court was informed that the respondent was prepared to plead guilty to culpable driving negligently (s 318(2)(b) of the Crimes Act

1958 (Vic)) but not to driving whilst under the influence of alcohol (s 318(2)(c)).[13] He disputed the latter form of the culpable driving count and foreshadowed an argument that the blood alcohol analysis was inadmissible. It was agreed that at a future date the trial judge would hear a pre-trial argument as to the admissibility of the analysis.

20 On the day of the trial it was still the respondent's intention to plead guilty but contest the admissibility of the analysis. The prosecutor submitted that despite the form of the presentment, the question should be resolved after the respondent was arraigned. With the apparent concurrence of the respondent's counsel, the trial judge was persuaded to defer ruling upon the question until after plea. The trial judge had the respondent arraigned before hearing the argument.[14] The respondent then pleaded guilty to both counts on the presentment. Count one was still expressed as culpable driving by negligence 'and/or' driving whilst under the influence of alcohol. The trial judge in her subsequent ruling referred to the respondent's position in these terms: 'the accused has pleaded guilty to each count on the basis of the speed at which his vehicle was travelling, but disputes that he was under the influence of alcohol.'[15]

21 After the respondent had pleaded guilty to both counts, the parties called evidence relevant to the admissibility of the blood alcohol analysis.

22 Following submissions, the trial judge ruled that the analysis was inadmissible. Her Honour, in the exercise of her discretion, excluded the evidence of the respondent's blood alcohol concentration on the basis that it would be unfair to admit the evidence and to do so: 'would render the trial unfair in circumstances, where the [respondent] has been divested of a tool fundamental to the proper testing of the prosecution case in relation to the blood alcohol concentration.'[16]

The requirement of an unequivocal guilty plea

23 Both parties and the trial judge understood the respondent's guilty plea to the alternative of driving under the influence of alcohol to be conditional upon a finding that the blood alcohol analysis was admissible. Hence the reference by the trial judge to its admission rendering the trial unfair. But there could only be one effective plea to the count of culpable driving.[17] The sentencing judge was under a duty to ensure the respondent's plea was unequivocal.[18] While the presentment remained in that form, the admissibility of the analysis had to be resolved before the plea was taken or a plea of not guilty should have been entered.[19]

24 Alternatively, the prosecution could have filed over a new presentment at the commencement of the trial which excluded reference to driving while under the influence of alcohol. That was the course that had been suggested at the first mention. It would have eliminated the requirement of a ruling on the admissibility of the analysis before the plea and removed any ambiguity concerning it. On the plea in mitigation, the prosecution would not have been precluded from relying upon the respondent's alcohol consumption as relevant to and as an aggravating circumstance of the respondent's negligent driving.[20] The sentencing judge would then have been called upon to determine whether the analysis was admissible as an aggravating circumstance. An erroneous ruling as to its admissibility could then have been the subject of a Crown appeal against sentence.

The competency of grounds one and two on a Director's appeal against sentence

25 The appellant submitted under cover of grounds 1 and 2 that the trial judge had erred in excluding the blood alcohol analysis and as a consequence the sentence was manifestly inadequate. We raised with the parties during oral argument, the question whether these grounds of appeal concerning the admissibility of the analysis might be incompetent on a Director's appeal against sentence. It appeared to members of the Court that the parties had agreed at trial that if the analysis was ruled inadmissible, the respondent was to be treated as having pleaded guilty only to culpable driving by negligence. The sentencing judge had given effect to the parties' intention and had treated the conviction as confined to culpable driving by negligence and had sentenced him accordingly. The respondent eventually submitted that the challenge by the Director to the ruling on the admissibility of the analysis related to the nature of the respondent's conviction for culpable driving and was not a matter that could be raised on a sentencing appeal.[21] In reply senior counsel for the Director intimated that he would like time to consider the Director's position. Some days after the appeal had concluded counsel filed a written notice on the Director's behalf withdrawing the first and second grounds of the appeal. It is therefore unnecessary to express any concluded view as to whether the grounds were competent on a Director's appeal against sentence.

Ruling on the evidence of the respondent's blood alcohol concentration

26 It is unnecessary to resolve grounds one and two but it should not be assumed that the trial judge was necessarily correct in exercising her discretion to exclude the blood alcohol analysis on the ground of unfairness. Her Honour concluded that the respondent was deprived of the opportunity of conducting his own analysis of his blood sample because his sample, which had been placed with his personal property had inadvertently been taken by the police. It does not appear that there was any failure to comply with the Act and regulations as the sample had, in accordance with the required procedure, been placed with the respondent's belongings. In any event, want of compliance with the statutory regime relating to offences such as those under s 49 of the Act would not ordinarily result in the prosecution being precluded from reliance upon a blood alcohol analysis or other proof that a driver's judgment was relevantly impaired by alcohol, for offences such as culpable driving, negligently causing serious injury, manslaughter and murder.[22] But there was nothing to indicate that the sample, had it been left at the hospital with his clothes, would have been discovered at any time before the respondent left hospital some five months after the accident. I do not stay to further consider whether it was an appropriate case for the exercise of the discretion.

27 In support of the sole ground ultimately relied upon that the sentence was manifestly inadequate, the appellant argued that the sentence failed to adequately reflect the gravity of the offences or take into account the need for public denunciation of offending of this nature or sufficiently take general and specific deterrence into account. It was further submitted that the sentencing judge gave too much weight to factors going to mitigation and insufficient weight to the aggravating factors involved in the respondent's offending.

28 The driving in this case was, in my view, a serious instance of culpable driving. This was recognised by her Honour in her sentencing remarks in which she said:

I regard this as a serious example of this type of offending. Your conduct cannot be described other than as outrageous. The speed at which you were travelling in the circumstances of this case made disaster, in my view, virtually inevitable. You showed no regard for other road users and your driving was observed to be erratic, dangerous and at a grossly excessive speed over a considerable distance.[23]

29 As one would expect, the respondent's actions had a devastating effect on the family of the deceased. This was apparent from the victim impact statements tendered in evidence at the trial. The families of all those who were involved in the accident have suffered physically and emotionally.

30 There are a number of mitigating circumstances that call for particular consideration. The respondent suffered extensive injuries as a result of the collision including: a traumatic subarachnoid haemorrhage, a fractured skull and pelvis together with various other injuries. Due to pressure on the respondent's brain following the accident a bifrontal craniotomy was performed. On 23 December 2004 the respondent was transferred to rehabilitation and then re-admitted for further surgery in late January 2005. In August 2005 a neurosurgeon, Mr Lo, performed a bifrontal tie-mesh cranioplasty and a scalp reconstruction on the respondent. The respondent has been left with a diffuse head injury, impairment to his intellectual skills (both verbal and non-verbal), an ankle injury and weakness on his left side, especially in his arm. He is required to use splints and other aids to facilitate movement, create stability and prevent his hand from developing a claw. In sum, the respondent has been left with physical disabilities that he will carry with him for the rest of his life and which the sentencing judge noted will make his time in prison more onerous.

31 Her Honour found that the respondent who was only 21 at the time of the offence, had expressed and demonstrated real remorse in relation to his actions. The respondent had no prior convictions and was of good character. The respondent pleaded guilty at an early stage in the proceedings saving the time and expense of a trial and the witnesses the ordeal of giving evidence. There was almost three years' delay between the respondent's offending and his sentencing. During this period the respondent completed a Diploma in Building at Northern Metropolitan Institute of TAFE. He had undertaken part-time work as an estimator in addition to continuing with his rehabilitation. The sentencing judge was of the opinion that the prospects of his rehabilitation were good.

32 In order for the Crown to succeed it must establish that the 'sentence is so inadequate that it plainly demonstrates serious error in sentencing principle, thereby re-opening the sentencing discretion to be exercised by this Court'.[24] 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'[25] or 'involve a gross departure from what might in experience be regarded as the norm'.[26] In dealing with the principles relating to a Crown appeal in DPP (Vic) v Bright, it was observed that:

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.[27]

33 There are other constraints on the way in which this Court may interfere with a sentence on a Crown appeal.[28] I refer again to a passage from DPP (Vic) v Bright in which it was said:

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.[29]

34 In R v Ciantar[30] the principles which apply in sentencing in cases of culpable driving were said to be clear, the court referring with approval to the following passage from DPP (Vic) v Gany:

Serious driving offences frequently involve offenders who are of generally good character and who have excellent prospects for reformation. No-one likes sending such people to gaol but there has been much publicity about the consequences for those who choose to drive their motor vehicles in a criminally negligent or reckless manner causing serious injury or endangering other members of the public. This Court has said on numerous occasions, frequently when dealing with offences of culpable driving and negligently causing injury, that those who put lives at risk through grossly negligent driving can expect to receive heavy penalties influenced by the sentencing principle of general deterrence. In such circumstances, sound prospects of rehabilitation will not lead to any significant amelioration of the prominence of general deterrence in the sentencing process. Denunciation and general deterrence must be at the forefront of the sentencing synthesis.[31]

35 Having regard to those principles and sentencing practice[32] and taking into account all of the mitigating circumstances found by the sentencing judge I am of the view that the sentences imposed on counts 1 and 2, and the non-parole period were extremely lenient.[33] But the task of the sentencing judge was particularly onerous. The offences committed by the respondent were of their nature very serious and would ordinarily call for condign punishment. But there were factors which militated powerfully in mitigation of penalty. Justice tempered by compassion required that the severe and permanent injuries sustained by the respondent in this act of criminality should 'be regarded as some punishment for that criminality.'[34]

The injuries thus bore upon the weight to be given to both general and specific deterrence. The respondent's injuries would make his time in prison more burdensome for him than for other prisoners.[35] Those injuries weighed heavily in her Honour's instinctive synthesis.

36 Crown appeals should not be allowed to unduly circumscribe the place in the sentencing process for the exercise of compassion. Having regard to the overarching discretion which requires this Court to make due allowance for the principle of double jeopardy[36] and the powerful mitigatory circumstances here present, I have with some hesitation, concluded that the circumstances do not warrant the intervention of this Court to increase the sentence imposed.

38 For the reasons given by Redlich JA, I agree that the appeal be dismissed.

[1] [2006] VSCA 281; (2006) 16 VR 75.

[2] Ibid [14]-[15] (citations omitted). See also appendix 1 in that judgment for other relevant cases.

[4] See judgment of Redlich JA and the authorities cited at [32].

[5] [2006] VSCA 281; (2006) 16 VR 75.

[6] Crimes Act 1958 (Vic) s 318. The maximum penalty for culpable driving causing death is 20 years' imprisonment.

[7] Crimes Act 1958 (Vic) s 23. The maximum penalty for reckless conduct that placed others in danger of serious injury is 15 years' imprisonment.

[8] Transcript of Proceedings, R v King (Unreported, County Court of Victoria, Judge Hannan, 1 October 2007) 85.

[11] Crimes Act 1958 (Vic) s 318(2)(a)-(d). Section 318(3) requires the form of culpability charged under s 318(2) to be specified.

[12] R v Beach (1994) 75 A Crim R 447.

[13] It is acceptable practice by the prosecution to express a count or counts on a presentment of culpable driving in the alternative as they did in this case. Pursuant to Presentment r 5(1) of the Crimes Act 1958 (Vic) (Schedule 6). See R v Horvath [1972] VicRp 60; [1972] VR 533; R v Beach (1994) 75 A Crim R 447, 452-3 (Phillips CJ, Vincent and Teague JJ).

[14] See above [8]. Crimes (Criminal Trials) Act 1999 (Vic) s 5(5)(b)-(d).

[15] Transcript of Proceedings, R v King (Unreported, County Court of Victoria, Judge Hannan, 1 October 2007) 84 lines 17-21.

[17] R v Hazeltine [1967] 2 QB 857.

[18] Maxwell v The Queen (1996) 184 CLR 501, 511 (Dawson and McHugh JJ) citing William Hawkins, Pleas of the Crown (8th ed, 1824 vol 2) 466; R v Jerome and McMahon [1964] Qd R 595; P Foster (Haulage) Ltd v Roberts (1978) 67 Cr App R 305; R v Clayton (1984) 35 SASR 232; Marlow v The Queen [1990] TASSC 7; [1990] Tas R 1. It would seem that the references in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 302 (Barwick CJ), 317 (Jacobs J), 334 (Aickin J) suggesting that a court is not obliged to accept a plea of guilty, envisage these circumstances.

[19] Maxwell v The Queen (1996) 184 CLR 501, 513 (Dawson and McHugh JJ).

[20] R v Horvath [1972] VicRp 60; [1972] VR 533, 537 (Winneke CJ, Little and Stephen JJ); R v Wright [1999] VSCA 145; [1999] 3 VR 355.

[21] Crimes Act 1958 (Vic) s 567A.

[22] See Road Safety Act 1986 (Vic) s 58; DPP (Vic) v Foster; DPP (Vic) v Bajram [1999] VSCA 73; [1999] 2 VR 643, 661-2 (Winneke P); The Queen v Ciantar [2006] VSCA 263; [2006] 16 VR 26, 30 (Warren CJ, Chernov, Nettle, Neave and Redlich JJA); DPP (Vic) v Cummings [2006] VSC 327; (2006) 46 MVR 84, 96-7 (Kellam J); DPP (Vic) v Colbey [2006] VSC 357; (2006) 166 A Crim R 85, 95-6 (Redlich J). See also, Furze v Nixon [2000] VSCA 149; [2000] 2 VR 503, 512 (Phillips, Batt and Buchanan JJA) (while a certificate is not conclusive proof, it 'remains as prima facie evidence').

[23] R v King (Unreported, County Court of Victoria, Judge Hannan, 1 October 2007) 11.

[24] DPP (Vic) v Bright [2006] VSCA 147; [2006] 163 A Crim R 538, 540 (Chernov JA).

[26] Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 310 (Barwick CJ). See also DPP (Vic) v Johnston [2004] VSCA 150; (2004) 10 VR 85, 96 (Ormiston, Batt and Chernov JJA); DPP (Vic) v Oversby [2004] VSCA 208.

[27] DPP (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA).

[28] See R v Ciantar [2006] VSCA 263; (2006) 16 VR 26; DPP (Vic) v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, 530 (Redlich JA).

[29] [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA). See also Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227; DPP (Vic) v Scott [2003] VSCA 25; (2003) 6 VR 217, 225 (Vincent JA); DPP (Cth) v Gaw [2006] VSCA 51.

[30] [2006] VSCA 263; (2006) 16 VR 26.

[31] DPP (Vic) v Gany [2006] VSCA 148; (2006) 163 A Crim R 322, 333-4 (Chernov, Vincent and Redlich JJA).

[32] Sentencing Act 1991 (Vic) s 5.

[33] See, for example, the cases considered in R v Martin [2007] VSCA 291, [53].

[34] R v Barci and Asling (1994) 76 A Crim R 103, 104 (Southwell, Hampel and Hansen JJ).

[35] R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258.

[36] DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, [24].