DPP v Oksuz [2015] VSCA 316

CRIMINAL LAW - Sentence - Crown appeal - Residual discretion not to intervene - Factors relevant to exercise of discretion, including totality and parity principles and fault on the part of the Crown - Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 applied - Appeal allowed - Respondent resentenced to 4 years' imprisonment for attempting to pervert the course of justice producing new total effective sentence of 5 years and 6 months' imprisonment with non-parole period of 3 years and 6 months.

CRIMINAL LAW - Sentence - Crown appeal - Court's power to adjust a manifestly inadequate individual sentence if the total effective sentence unaffected - DPP v Hudson (2010) 30 VR 610 applied; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 considered.

CRIMINAL LAW - Sentence - Crown appeal - Totality principle and s 16(3B), (3C) of the Sentencing Act 1991 - Current offences committed on parole - Sentence for cancelled parole completed at time of sentence for current offences - Morgan v The Queen (2013) 40 VR 32 applied, Koumis v The Queen [2013] VSCA 47 considered.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 I have had the advantage of reading in draft the reasons of Kyrou JA and agree that both the individual sentence imposed on the charge of attempt to pervert the course of justice and the total effective sentence are manifestly inadequate. I agree with Kyrou JA that the appeal should be allowed and the respondent resentenced on the charge of attempt to pervert the course of justice to a term of imprisonment of four years. I would also make the orders for cumulation that Kyrou JA proposes so as to produce a total effective sentence of five years and six months imprisonment with a non-parole period of three years and six months.

2 I have also had the benefit of reading in draft the reasons of Croucher AJA. He agrees that the sentence imposed on the charge of attempt to pervert the course of justice is manifestly inadequate and has concluded that, despite a perceived tension between DPP v Hudson[1] and Green v The Queen,[2] the appeal should be allowed and the respondent resentenced on that charge.

3 I wish to add some reasons of my own to those of Kyrou JA.

4 I turn first to the consequence of the conclusion shared by all members of the Court that the sentence imposed on the charge of attempt to pervert the course of justice is manifestly inadequate. There are, in my respectful opinion, no discretionary reasons which could justify a refusal to intervene. The sentence imposed was derisory, it being egregiously disproportionate to the respondent's degree of criminality. A different sentence should be passed, being one that correctly reflects the objective gravity of the circumstances of that offence.

5 The adequacy of an existing total effective sentence or the likely impact of the increased individual sentence do not provide a justification to refuse to intervene to impose an appropriate individual sentence. The respondent's argument to the contrary must be rejected. The proper process for applying the totality principle is to determine first what is an appropriate and proportionate sentence for each individual offence when viewed in isolation. Whether a change to the individual sentence on appeal would result in an increase or decrease in the total effective sentence does not materially inform the question whether an individual sentence should be altered, unless it is concluded that the principle of totality could not be satisfied without imposing an artificially low individual sentence. It is only after determining the appropriate individual sentence or sentences, that a judge will look at what the total effect of the sentences would be and adjust that total effect to what is considered to be 'just and appropriate' in all the circumstances.[3] It is only after it is concluded that on appeal a new sentence should be imposed, that an assessment of the appropriate total effective sentence is undertaken, informed by the new sentence.

6 In Hudson,[4] the Court rejected the argument that there should be no adjustment of an individual sentence that was manifestly inadequate if it would not affect the total effective sentence. The Court said:

Counsel for the applicant argued that this error was not sufficient to justify this court's interference on a Crown appeal. Initially, the applicant submitted that this was because it was an 'error of no consequence', because in any event the total effective sentence was unaffected. That submission should be rejected. No authority was cited to support the proposition that this court is unable to intervene on a Crown appeal unless the error has produced an error in both the individual and the total effective sentence. The considerations of equality before the law, consistency and the maintenance of sentencing standards, pertinent to offender appeals, require sentencing judges to pass appropriate sentences on individual counts, even if the total effective sentence will not be affected. Those considerations are also germane to a Crown appeal.[5]

7 This was not a case in which the sentencing judge deliberately fixed an 'artificially light' sentence of the kind with which Ormiston JA was concerned in Grabovac.[6] Neither was it suggested on the appeal that the principle of totality could not be satisfied without imposing an artificially low individual sentence. The principle is not relevant to the Court's determination of whether the sentence should be adjusted.

8 I am with respect unable to agree with Croucher AJA that there may be a tension between the decision in Green[7] and the decision of this Court in Hudson. In Green the majority of the High Court allowed an appeal from the New South Wales Court of Criminal Appeal which had increased the appellant's sentence so as to create an unjustifiable disparity with a sentence imposed on a co-offender. French CJ, Crennan and Kiefel JJ also found that there were discretionary reasons why the Court of Criminal Appeal should not have intervened:

... Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D [of the Criminal Appeal Act 1912 (NSW)] be served by allowing the appeal? If the result of doing so would be a sentence 'adequate' on its face, but infected by an anomalous disparity which is an artefact of the Crown's selective invocation of the Court's jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski,

the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong. [8]

9 In R v Borkowski,[9] a Crown appeal had been dismissed, which if allowed, would have created a disparity with the sentences imposed upon co-offenders whose circumstances were relevantly similar. The majority in Green held that Borkowski should not have been overruled. The remarks in R v Borkowski and their endorsement in Green were made with reference to how the principle of parity may enliven the residual discretion in Crown appeals to prevent re-sentencing which would create an unjustifiable disparity with a co-offender's sentence that the Crown had not challenged. In circumstances where there are reasons to decline to intervene on a Crown appeal, there is still an educative benefit in appellate courts identifying sentencing errors of principle. But nothing said in Green casts any doubt on the correctness of the approach in Hudson that a conclusion that the total effective sentence should not be altered provides no basis for the exercise of the residual discretion to decline to intervene on an individual sentence which is egregiously disproportionate to the objective gravity of the offence.

10 The judge made some error or errors of principle which cannot be identified in arriving at a grossly inadequate sentence. The inadequacy of the sentence is so marked that it must be corrected to maintain public confidence in the criminal justice system. The task now falls to this Court to impose a sentence that properly reflects the applicant's degree of criminality, gives effect to general and specific deterrence and protection of the community and makes due allowance for matters personal to the respondent. The sentence proposed by Kyrou JA serves to ensure there is consistency in the application of principle and appropriate uniformity in sentencing standards for this offence.

11 Next it must be recognised that the sentence on the charge of blackmail was extremely lenient. This was a very serious example of the offence that would have justified a sentence well in excess of that imposed. Allowing the sentencing judge the great latitude of discretion that is required, I think the sentence, by the barest of margins, fell within the available range. It was, as Croucher AJA acknowledges, a particularly 'nasty' blackmail. This form of blackmail - involving a threat of serious physical harm - is a particularly serious form of this offence. The gravity of the offence was increased because the threats were largely directed at the victim's son in prison. The respondent made clear to the victim, Frank Fusca, that he had criminal associates in prison who would carry through with the threat that Frank's son would be stabbed in prison. It was not in issue on the plea that the respondent had such contacts within the prison that he could call upon. These threats were repeated over some weeks. The respondent produced a gun during one of the visits and displayed it in a threatening manner. Thus the victim feared for his personal safety and had little or no ability to offer protection to his son. He viewed the threats so seriously that he engaged someone to protect himself. His protector, one Randall, was eventually shot. The shooting was the subject of the respondent's charge of reckless conduct endangering life.

12 There was in my respectful view little that could be said by way of mitigation, the respondent having a serious criminal history and prospects of rehabilitation that were guarded. As Kyrou JA has set out, the respondent only indicated his willingness to plead guilty to the charge of blackmail during the pre-trial directions. Until then, as evidenced by the charge of attempt to pervert the course of justice, the respondent was seeking to conceal this conduct committed shortly after his release on parole and whilst on bail. The respondent had used his contacts within the prison system for the purpose of passing a false statement, prepared by him, to Frank Fusca intending that Frank would in effect withdraw his allegations of blackmail against the respondent. The respondent again used his contacts in the prison system to pressure Patrick Fusca, who was on remand, to have his father Frank withdraw his statement against the respondent.

13 I turn then to the conclusion that a new total effective sentence was necessary to reflect the respondent's overall criminality.

14 The sentence on the charge of attempt to pervert the course of justice would become the base sentence, as it is the largest sentence. In order to satisfy the principle of totality, the amount which is ordered to be cumulated from the blackmail sentence must then be such as will, when added to the base sentence and the order for cumulation on the sentence for reckless conduct endangering life, be sufficient to reflect the overall criminality of the respondent. Having regard to the gravity of the blackmail offence, the order of 6 months cumulation did not result in a total effective sentence that adequately reflected the totality of the respondent's criminality. The total effective sentence fell well short of an effective sentence that would reflect the totality of the respondent's criminality for three very serious offences.

15 The respondent's contention that to increase the order for cumulation on the blackmail sentence or the resulting total effective sentence would create a disparity with the sentence imposed on Mr Demirbas for intentionally causing serious injury, is, with respect, without any substance.

16 Mr Demirbas was sentenced to five-and-a-half years' imprisonment on a plea of guilty to intentionally causing serious injury, an offence which carries a maximum penalty of 20 years' imprisonment.

17 The Crown having elected to accept a plea to a lesser offence in respect of the same incident, the respondent was sentenced to three years' imprisonment on a plea of guilty to reckless conduct endangering life, an offence which carries a maximum penalty of 10 years' imprisonment. Under the agreed facts on the plea the Crown relied upon all three shots that were fired by Demirbas, that the second and third shots were fired after the respondent remarked 'look he's not even afraid of the gun' and relied upon the injuries sustained by the victim. The sentencing judge however made clear during the plea that he would not sentence the respondent for the latter two shots or their consequences, as they were fired by Demirbas with an intent to seriously injure. Although the prosecutor did not agree that the second and third shots should be disregarded, it was not in dispute that his Honour sentenced the respondent only for the first shot discharged.

18 The Crown has not appealed against that sentence, and it therefore need only be said that the sentencing judge adopted an unduly favourable view of the facts in disregarding the second or third shot and their consequences as the risk associated with such conduct had eventuated.

19 The respondent contends that though Demirbas was not indicted on a charge of blackmail, it is apparent from the reasons of the judge who sentenced Demirbas, that he treated the blackmail as part of the context in which Demirbas fell to be sentenced for the offence of intentionally causing serious injury.[10] The respondent argues that the blackmail offence formed a component part of Demirbas' five-and-a-half-year sentence on the charge of intentionally causing serious injury. Thus it is said that the parity principle is enlivened between the Demirbas sentence and whatever combined sentence is fixed for the respondent on the charges of conduct endangering life and blackmail.

20 That submission, with respect, should be rejected. The judge sentencing Demirbas recognised that the blackmail provided the context in which the shooting arose. It is another thing altogether to suggest that the sentence included a component for the offence of blackmail with which Demirbas was not charged. The experienced judge said and did nothing in sentencing Demirbas that would indicate that he was being punished on the charge of intentionally causing serious injury for the offence of blackmail. It would have been remarkable had the judge so approached the sentencing task. The lenient sentence imposed on Demirbas for deliberately shooting Randall, did not support the suggestion that the blackmail was treated as a circumstance of aggravation. The principle of parity did not arise between the sentence for Demirbas and the respondent's sentence for blackmail.

21 The sentencing judge recognised that the sentences on the three primary offences of blackmail, reckless conduct endangering life and attempt to pervert the course of justice had to be imposed against a background of the respondent having served, since his incarceration on 6 December 2012, six months of the cancelled parole on the restored burglary sentence and 12 months (including the parole period) of the affray sentence. That said, the primary offences were all committed in breach of parole and bail. As stated by McHugh, Gummow and Hayne JJ in R v RHMcL,[11] the scope for applying the totality principle must be more limited when provisions such as ss 16(3B) and 16(3C) of the Sentencing Act apply so as to give

effect to the legislative policy inherent in those provisions.

22 The residual ground of error in House v The King[12] has been made out as to both the individual sentence on the charge of attempt to pervert the course of justice and the total effective sentence. The total effective sentence was, as the Crown submits, egregiously inadequate to reflect the respondent's total criminality. As there are no countervailing discretionary considerations which would warrant the Court declining to intervene, the Court should correct the errors of principle in order to ensure uniformity in sentencing standards, consistency in the application of principle and provide guidance to sentencing judges.

23 On 22 September 2014, in the County Court of Victoria, the respondent (aged 29) pleaded guilty to charges 1 to 5 on Indictment C13408411.1b and on 24 September 2014, he pleaded guilty to charges 1 and 2 on Indictment C13408411.1c. Following a plea on 10 October 2014, Judge Dean sentenced him on 20 October 2014 as follows:

Blackmail [Crimes Act 1958 s 87]

Reckless Conduct Endangering Life [Crimes Act 1958 s 22]

Possessing a drug of dependence [Methylamphetamine] [Drugs, Poisons and Controlled Substances Act 1981 s 73]

Attempt to pervert the course of justice [common law]

5 years 6 months with a non-parole period of 3 years 9 months

24 I will refer to the blackmail charge, the reckless conduct endangering life charge ('RCEL charge') and the attempt to pervert the course of justice charge ('APCJ charge') collectively as 'the Subject Charges'.

The following components of the sentence passed below are manifestly inadequate:

(a) the individual sentence on Charge 5 (Attempt to Pervert the Course of Justice) on Indictment No C13408411.1b;

(b) the individual sentence on Charge 1 (Blackmail) on Indictment No C13408411.1c;

(c) the total effective sentence; and

(d) the non-parole period.

Particulars

In fixing the sentence set out above ... the sentencing Judge -

(a) failed to have sufficient regard to the applicable maximum penalties;

(b) failed to sufficiently deter other persons from committing offences of the same or similar nature;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the respondent engaged;

(d) failed to have sufficient regard to the nature and gravity of the offences and failed to fix a sentence commensurate with the characterisation of the offending as a 'serious course of conduct' and the attempt to pervert the course of justice as 'serious';

(e) failed to have sufficient regard to the aggravating features of the offending;

(f) gave excessive weight to the principle of totality;

(g) gave excessive weight to factors in mitigation including the respondent's family background and circumstances, guilty plea, and prospects of rehabilitation; and

(h) erred in setting a non-parole period of only two years, which was only half the total effective sentence.

(a) whether the individual sentence for the APCJ charge was manifestly inadequate;

(b) whether the individual sentence and order for cumulation for the blackmail charge were manifestly inadequate;

(c) whether the total effective sentence was manifestly inadequate, particularly having regard to the totality principle;

(d) whether the non-parole period was so low as to indicate sentencing error; and

(e) whether, in the event that this Court determines that there is sentencing error, it should exercise its residual discretion to dismiss the appeal, particularly having regard to:

(i) observations made by the judge and the prosecutor during a pre-trial hearing on 23 September 2014;

(ii) the application of the parity principle to the sentence imposed on the co-offender, Burhan Demirbas; and

27 For reasons that follow, I would allow the appeal and resentence the respondent.

28 Since the preparation of these reasons, I have had the advantage of reading in draft the judgments of Redlich JA and Croucher AJA. I agree with the additional reasons given by Redlich JA for allowing the appeal and resentencing the respondent.

29 Between mid-October and late-November 2012, the respondent and Mr Demirbas, demanded recovery of an alleged debt for $7,000 by threatening Frank Fusca. The debt was allegedly owed by Frank's son, Patrick Fusca. Patrick had been incarcerated for unrelated matters on 7 October 2012.

30 Approximately one week after Patrick was incarcerated, the respondent and Mr Demirbas attended Frank's house - which was a corner property - to speak with Frank and his brother, Dominic Fusca. They demanded that Frank pay them the alleged debt which they said was owed because they had been supplying drugs to Patrick. They stated to Frank that, because Patrick was in prison, Frank would have to pay the debt. The respondent stated that he 'knew people inside' and threatened to have Patrick stabbed in prison if the debt was not paid. He then produced a handgun and displayed it to Frank and Dominic in a threatening manner. Frank and Dominic told the respondent that they would 'try and get some money together'.

31 A few days later, the respondent and Mr Demirbas had another meeting with Frank and Dominic at Frank's house. During this meeting, Frank explained that he would not be able to pay them any money. Dominic said he could give then $700 immediately, however, both the respondent and Mr Demirbas demanded full payment of the debt. Dominic believed that the respondent was carrying a firearm in his pocket during this meeting.

32 Further demands for payment of the debt by phone calls and text messages were made in the following weeks. On one occasion, the respondent telephoned Frank and threatened that Patrick was going to 'cop' it in prison if the debt was not paid. On another occasion, Mr Demirbas telephoned Frank and threatened that he was going to 'bash his head in' due to the unpaid debt.

33 Due to these threats, Dominic arranged for Kalston Randall to move in with Frank in order to provide some protection.

34 At approximately 7pm on 30 November 2012, Mr Demirbas and an unidentified male attended at Frank's house. Mr Randall answered the door. At Mr Demirbas's request, Mr Randall followed him around the corner where the respondent was waiting in a car. He exited the car and stood next to Mr Demirbas and then stated, 'Show him'. Mr Demirbas then produced a semi-automatic handgun from a bag he was carrying and stated, 'See you'll get this. Tell Frank he owes us. Tell him it's now eight grand.' Mr Randall responded along the lines of, 'You're not getting shit'.

35 Mr Demirbas then fired a warning shot into the fence of Frank's property. Mr Randall walked towards Mr Demirbas and stated that Frank would not be paying him any money. The respondent stated, 'Look, he's not even afraid of the gun'. Mr Demirbas then shot Mr Randall in his left foot and, when Mr Randall continued to advance towards him, shot him in his lower pubic region.

36 The respondent, Mr Demirbas and the unidentified male then hurriedly left the scene in the car.

37 Mr Randall was subsequently taken to hospital. As a result of the gun shots he suffered a penetrating pelvic injury, and consequently underwent surgery to divert bowel movements and drain his bladder by inserting a catheter to allow it to heal. He also suffered a superficial graze to the top of his left foot. He required major abdominal surgery to restore continuity of the bowel. He has since made a satisfactory physical recovery but has significant scarring.

38 On 6 December 2012, the respondent was arrested in a car park while he was in his girlfriend's car. The car was searched and the following items were located inside the respondent's backpack:

(a) two snap-lock bags each containing approximately 1 gram of a brown crystal substance and a snap-lock bag containing approximately 1 gram of a white crystal substance;

(b) a box containing drug paraphernalia, including two ice pipes; and

39 A search warrant was subsequently executed at the respondent's residence where three 50 ml vials labelled Stanozolol were located.

40 On 6 December 2012, the respondent was charged with blackmail (charge 1 on Indictment C13408411.1c), reckless conduct endangering life (charge 2 on Indictment C13408411.1c) and intentionally causing serious injury in relation to the shooting of Mr Randall. He was remanded in custody.

41 Between 14 January 2013 and 28 February 2013, the respondent attempted to have Frank retract his statement which incriminated the respondent and sign a new statement which exonerated the respondent. He did so by arranging for a fellow prisoner, Paul Azzopardi, to send a letter to his father, Tony Azzopardi, which was intended to then be given to Frank. The letter was sent in Paul's outgoing mail to avoid the authorities linking it to the respondent. It was intercepted by officers of the Prison Intelligence Office, who retained a copy of it, while the original was sent to Tony.

42 The letter contained a pro forma witness statement, which had been handwritten by the respondent, with blank spaces for names to be inserted. The statement relevantly provided:

1. (space left) had nothing to do with any debt. It was between (space left) my son, Me and my brother. He came past our house on 2 occasions but remained in our driveway while we spoke in the garage. He never produced a firearm or threatened us in any way. None of the text msg's sent were from (space left). (space left) never blackmailed me or my brother, never tried to stand over us. I don't know (space left) very well but he didn't do any of the things I previously said he did in my last few statements. I never spoke to (space left) over the phone, only ever saw him on 2 occasions, he shook our hands and walked to the driveway. His friend did all the talking, not (space left).
2. I apologize for writing a incorrect statement, I wasn't myself at the time, family issues, drug problems.

43 Handwritten instructions by the respondent were provided which suggested the names of five different criminal defence solicitors that could assist in drafting an alternate exculpatory witness statement.

44 On 31 January 2013, the police brief of evidence was served on the respondent. It contained the witness statements of Mr Randall, Frank and Dominic which implicated the respondent. Key witness statements from the police brief of evidence were subsequently provided to Tony.

45 The respondent used his contacts within the prison system to pass messages onto Patrick with the intention of pressuring him into asking Frank to withdraw his statement against the respondent.

46 In a number of telephone calls with his fiancé, Emine Kaya, the respondent sought to have Ms Kaya contact Tony in order for him to pressure Frank to change his statement. On a further occasion, the respondent said to Ms Kaya, 'So message him. Just say, "Hi, how you goin?" Say, "Serks wanted to know if you received his letter." Just make sure you check it. It's important.' On another occasion, he said, 'Can you message him and say Serks said, like urgently, "Have you got his letter?"... Say, like, - that his solicitor is constantly putting pressure ah, for the thing - um for the paper'. On a further occasion, he said, 'That letter - he would have received that today. If you were to urgently get a copy of that letter and give it to Red, that would be really good. Has what they should be exactly saying'.

47 A number of telephone calls were also recorded between Paul and Tony in which they discussed having the evidence against the respondent altered. On one occasion, the following exchange was recorded:

Tony: Yeah. Dominic come ... with me ... He come and bounce with me.

Paul: Yeah.

Tony: You know, tried to play mister fuckin' heavy on the phone ... I put his straight back in his fuckin' box ... I just said 'Listen cunt. Do this easy. Do it your way. Do it however you want. I don't really give a fuck. But, at the end of the day, you and your brother better come see me, 'cos I need to talk to youse ... I wanna tell you something here and now. Shut your fuckin' mouth.'

Respondent's criminal history and other relevant events

48 Before considering the respondent's personal circumstances, it is necessary to set out details of other offences committed by him and the sentences imposed for those offences. This is because those details are relevant to the application of the totality principle upon which the respondent relied in relation to the total effective sentence and the exercise of this Court's residual discretion.

49 The respondent has a significant criminal history - approximately 60 prior convictions or findings of guilt from about nine appearances in court. The majority of these were drug, deception, traffic, theft or burglary offences, some of which involved criminal damage.

50 On 18 June 2008 and 4 March 2010, the Magistrates' Court found that the respondent breached the conditions of two separate community based orders.

51 On 20 May 2009, Judge Pilgrim made an order sentencing the respondent to a total effective sentence of 18 months, which was wholly suspended for 30 months, for one charge of burglary, one charge of theft and two charges of handling stolen property.[13] The respondent had pleaded guilty to those charges.

52 Within 'a month or five weeks of the [suspended sentence] being imposed', the respondent committed 'a number of offences which were capable of having a term of imprisonment imposed' and thus breached Judge Pilgrim's order.[14]

53 On 16 February 2011, the respondent and three friends were involved in an affray near a tennis club where adults and children were playing, in the course of which he produced a handgun. The other participants in the affray were the father and brother of a former girlfriend of the respondent. The respondent was arrested on 3 April 2011 and was found to be in possession of one gram of ecstasy. He was charged with the offence of affray and the offence of possessing a drug of dependence. He was granted bail on 21 April 2011 after spending 18 days in custody.

54 On 29 August 2011, before Judge Gullaci, the respondent pleaded guilty to breaching Judge Pilgrim's order of 20 May 2009, resulting in the making of an order on that day which restored the 18 month sentence and fixed a non-parole period of 12 months.[15]

55 Having served the non-parole period in Judge Gullaci's order of 29 August 2011, on 28 August 2012, the respondent was released on parole. Between mid-October 2012 and 30 November 2012, while the respondent was on parole and on bail in respect of the affray and possession charges, he committed the blackmail offence and the reckless conduct endangering life offence ('RCEL offence'). Following his arrest for the blackmail and RCEL offences on 6 December 2012, his parole was cancelled on 7 December 2012. He then served a 'parole sentence' of 6 months' imprisonment until 6 June 2013.

56 On 17 October 2013, the respondent pleaded guilty to the charge of affray and the charge of possessing a drug of dependence. On 23 October 2013, he was sentenced by Chief Judge Rozenes to 12 months' imprisonment with a non-parole period of 6 months on the affray charge and was fined $500 on the possession charge.[16] He was not granted parole and consequently served the entirety of that 12 month sentence in custody. Having served 18 days of pre-sentence detention, the respondent's sentence concluded on 4 October 2014.

57 On 20 October 2014, Judge Dean sentenced the respondent to a total effective sentence of 4 years with a non-parole period of 2 years. Having regard to the pre-sentence detention of 154 days between 7 June 2013 and 22 October 2013 and 4 October 2014 until 20 October 2014, the head sentence will expire on 15 May 2018 and the respondent will be eligible for parole on 15 May 2016.

58 In summary, the respondent's history of incarceration between 29 August 2011 and his sentence for the Subject Charges on 20 October 2014 is as follows:

(a) he was in custody from 29 August 2011 until 28 August 2012 on the sentence imposed by Judge Pilgrim which was restored by Judge Gullaci;

(b) he was on parole and on bail from 28 August 2012 until he was arrested on 6 December 2012 for the blackmail and RCEL charges;

(c) he was on remand from 6 December 2012 until 20 October 2014 when he was sentenced for the Subject Charges; and

(d) of the period of 683 days that he spent in custody between 6 December 2012 and 20 October 2014:

(i) six months were attributed to the 'parole sentence', covering the period from 7 December 2012 until 6 June 2013;

(ii) 154 days were attributed to pre-sentence detention for the Subject Charges, covering the period from 7 June 2013 until 23 October 2013 and 4 October 2014 until 20 October 2014; and

(iii) 12 months (less 18 days pre-sentence detention served from 3 April 2011 to 21 April 2011) were attributed to the affray conviction, covering the period from 23 October 2013 until 4 October 2014.

59 The respondent was born in Turkey and migrated to Australia with his family at the age of four. As a child, he had an abusive relationship with his father, which has since improved. His parents divorced when he was 24 years of age.

60 He left school in year 11 to pursue a career in soccer. He excelled at soccer and represented Australia in the Under 17 World Championship. He was contracted to play for a professional soccer team in the Victorian Premier League at the age of 15. He also attended Australian soccer team training camps and, between the ages of 15 and 18, travelled to various countries to try out with a number of professional clubs. However, injuries interrupted his soccer career and by the age of 23 he was unable to compete at a professional level.

61 The respondent worked in his father's cabinet-making business from time to time after he left school.

62 The respondent's drug use started at around the age of 18 to 19, after he sustained injuries and had time to himself. At around the age of 22 to 23, he commenced a relationship with an older woman who was a heavy ice user. At around this time, his drug use escalated. This in turn led to his criminal offending.

63 A number of character references were tendered at the plea from his friends, family and fiancé. His older sister's former husband, who owns an engineering business, stated that he would provide the respondent with employment upon his release from custody.

64 A report by Dr Aaron Cunningham, forensic psychologist, was tendered. Dr Cunningham assessed the respondent at Port Philip Prison on 3 October 2014. In his report, Dr Cunningham opined that the respondent suffered from an Adjustment Disorder with mixed anxiety and depressed mood which was precipitated by witnessing the shooting of Mr Randall and being incarcerated in solitary confinement for three months in 2011.

65 At the time of the plea, the respondent was engaged to Ms Kaya. During his period of imprisonment, he received visits from her and his family. A urine screen indicated that he had been drug free during his time in prison.

Pre-trial hearing, plea and sentencing remarks

66 Judge Dean conducted a pre-trial hearing over 3 days commencing on 22 September 2014.

67 On the first day of that hearing, the prosecutor, Mr Gibson, filed two indictments - Indictment C13408411.1a and Indictment C13408411.1b. The charges contained in Indictment C13408411.1b are set out in the table at [23] above. The respondent pleaded guilty to all of those charges on that day.

68 The charges contained in Indictment C13408411.1a were the subject of discussion during the second day of the pre-trial hearing on 23 September 2014. They were a charge of blackmail and three alternative charges relating to the shooting of Mr Randall, namely, an intentionally causing serious injury charge, a recklessly causing serious injury charge and a reckless conduct endangering life charge. The judge asked Mr Gibson what sentence had been imposed on Mr Demirbas. Mr Gibson indicated that Mr Demirbas had been sentenced to 6 years' imprisonment with a 3 year non-parole period 'on a plea to intentionally cause serious injury'.[17] The judge inquired as to whether this was the only charge for which Mr Demirbas was sentenced, to which Mr Gibson responded: 'One count but the blackmail was part of the ... [s]urrounding facts and part of the narrative'.[18]

69 The following exchange between the judge and Mr Gibson then took place:

HIS HONOUR: Why did [Mr Demirbas] get such a disparate minimum term?

MR GIBSON: I don't know.

HIS HONOUR: Has he got criminal history?

MR GIBSON: He's got a criminal history, not as -

HIS HONOUR: Similar to -

MR GIBSON: Not as extensive as this accused.

HIS HONOUR: But he's the principal offender.

MR GIBSON: He is the principal offender.

HIS HONOUR: So on a plea (indistinct) get less.

MR GIBSON: Well he's got a more extensive criminal history.

HIS HONOUR: Yes but you get less.

MR GIBSON: On -

HIS HONOUR: He's not the principal offender.

MR GIBSON: Your Honour's right, on - could I say -

HIS HONOUR: Generally -

MR GIBSON: Well generally speaking, I mean as we know and Your Honour notes -

HIS HONOUR: I mean you can't get into it but if the matter resolved -

MR GIBSON: If the matter resolved -

HIS HONOUR: If Mr Oksuz pleaded to the same thing that Mr [Demirbas] pleaded to then all things being equal Mr Oksuz would receive a lesser penalty than Mr [Demirbas].

MR GIBSON: All things being equal.[19]

70 Mr Gibson then drew attention to the 'lateness' of the respondent's plea as a factor that was relevant to his sentencing disposition. The following exchange then took place:

HIS HONOUR: Yes. I've never been terribly troubled by pleas that are entered at the last minute.

MR GIBSON: No -

HIS HONOUR: I mean if ever there was a good argument that a complex trial has been avoided it's when the trial is just about to start.

MR GIBSON: Absolutely and before witnesses are called. But I mean obviously if someone puts their hand up at a committal mention before there's a contested committal.

HIS HONOUR: Well maybe.

MR GIBSON: I mean that's a matter that goes in favour of the accused and -

HIS HONOUR: Yes it might bear on all this.

MR GIBSON: An earliness of plea is one of the relevant sentencing factors, I keep seeing that in submissions at the Court of Appeal -

HIS HONOUR: And this is going to be a difficult trial.

MR GIBSON: Sorry?

HIS HONOUR: This is going to be a difficult and complicated trial so Mr Oksuz would obviously be entitled to [a] considerable discount.

MR GIBSON: We would be the first to admit the utility of any plea of guilty Your Honour.[20]

71 After a brief adjournment, counsel for the respondent, Mr Saunders, indicated that his client had heard some of what the judge had previously said about 'the discount for a plea of guilty' and required a further adjournment to confer with his counsel.[21] The hearing was adjourned until the next day.

72 The charges having been settled between the parties, on the third day of the pre-trial hearing on 24 September 2014, Mr Gibson filed Indictment C13408411.1c and the judge consequently stayed Indictment C13408411.1a. The charges contained in Indictment C13408411.1c are set out in the table at [23] above. The respondent pleaded guilty to those charges on that day.

73 At the plea on 10 October 2014, the Crown tendered a prosecution opening which became Exhibit 1. Paragraph 24a, which was obviously inserted into the document after it was first prepared, stated the following:

On the 7th May, 2013 Police were contacted by the solicitor for the [respondent], Mr Adrian LEWIN. Mr Lewin told D/S/C Peita MEASHAM that he had been instructed by the [respondent] that the firearm was still hidden at [a particular address]. This was the former residence of the co-accused, DEMIRBAS. Police were further advised that the firearm was secreted under the sink in the laundry and they may need to lift some tiles in order to find it.

74 The prosecution opening, which was read out on the plea, stated that the basis of the RCEL charge was that the respondent acted, on a complicity basis, with Mr Demirbas who produced the handgun and discharged shots in the direction of Mr Randall. The prosecution acknowledged that the charge to which the respondent pleaded guilty did not involve him sharing, or having imputed to him, the same intent as Mr Demirbas, who had pleaded guilty to a charge of intentionally causing serious injury. [22]

75 The judge stated that the respondent's guilty plea had spared the community the cost and inconvenience of a complex trial and that, to some degree, this was evidence of his remorse. His plea of guilty was taken into account in mitigation of sentence.[23]

76 The judge described the respondent's criminal history as 'extensive' and observed that he had breached a number of sentencing dispositions ordered to facilitate his rehabilitation.[24] He also noted that, in this case, the respondent's offending occurred shortly after he was released from prison on parole.[25]

77 He described the respondent's offending as a serious course of conduct that took place against a background of drug-related activities. He characterised the respondent as acting, in effect, as a stand-over man, with no regard for the persons he was threatening. He observed that the production and potential use of a handgun in a public place was a serious offence. He also described the attempt to pervert the course of justice as a serious example of that offence.[26]

78 The judge referred to the need to punish the respondent for his conduct and to impose a sentence that was 'calculated to deter [him] and others from offending in this way'.[27] He stated that protection of the community was a relevant sentencing consideration in this case.[28]

79 In respect of the respondent's personal circumstances, the judge accepted that his development was disrupted as a result of his father's abuse.[29] He also accepted that the respondent suffered from depression and anxiety.[30] He accepted, on the basis of the character references tendered, that the respondent had a number of positive qualities and observed that he was in a stable relationship and had family support.[31] Notwithstanding this, the judge stated that any realistic assessment of the respondent's prospects of rehabilitation had to be guarded because it was dependent upon him remaining drug free and disassociating himself from persons engaged in drug-related crime.[32]

80 The judge stated that he had 'particular regard' to the principle of totality and the fact that the respondent had been in custody since 6 December 2012. The judge also stated that he had regard to the sentence imposed on Mr Demirbas.[33]

81 Before turning to the grounds of appeal, reference must be made to the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury in relation to the shooting of Mr Randall. That sentence is said to be relevant to the parity principle upon which the respondent relied in relation to the blackmail and RCEL offences and the exercise of the Court's residual discretion.

82 Mr Demirbas (then aged 26) pleaded guilty to one charge of intentionally causing serious injury and three charges of trafficking in a drug of dependence. The prosecution opening, under the heading 'Background', set out the circumstances of the blackmail offence committed by the respondent and Mr Demirbas between mid-October and late-November 2012. The description of this offence was in almost identical terms to the description of the blackmail offence in the prosecution opening read out on the plea of the respondent.[34]

83 Mr Demirbas was sentenced by Judge Smallwood to 5 years and 6 months' imprisonment for the charge of intentionally causing serious injury and 9 months for each of the three charges of trafficking. It was directed that 6 months of the sentence imposed on one of the trafficking charges be served cumulatively, making the total effective sentence 6 years. A 3 year non-parole period was fixed.[35]

84 In imposing this sentence, Judge Smallwood referred to the circumstances of Mr Demirbas's offending. Before setting out the details of the shooting of Mr Randall on 30 November 2012, he stated:

The circumstances of the offending are that you were known to the victim. The victim had been engaged, it would seem, by a man called Frank [Fusca] to protect him from what were at least perceived as serious threats from you and others. The threats were over [an] amount of money said to be owing by Frank [Fusca's] son, to you, of something in the order of $7,000. Attempts were made by a threat to get the money paid, but it was not.[36]

85 After setting out the events of 30 November 2012 and Mr Randall's injuries, Judge Smallwood relevantly stated:

It is a difficult sentencing task analysing the circumstances such as this. The fact of the matter is that you took a gun to do some debt collecting. ...

It is a serious example of intentionally causing serious injury, and calls for the application of general and specific deterrence ...

There is also the question of denunciation and appropriate punishment. In these circumstances, one has to try and take into account the milieu in which it all occurred, but as I have said, I think I said during the course of the plea, if you take a gun to debt collect you (indistinct) mitigated afterwards.

The situation is that a significant custodial sentence is absolutely inevitable. It is hard to place this into a range because as the Crown have pointed out, there are very few instances that can be found of shooting, intentional serious injuries. I am always reluctant to try and grade these matters, but as I have made it clear, I think it is a serious example of what is indeed a serious crime.

...

In the end, what you have to be sentenced for is a serious example. I am not here to sit here and lecture you, but if you want to go around shooting people to enforce drug debts, that is what it was, then you have to pay the consequences. [37]

86 Judge Smallwood also had regard to Mr Demirbas's prospects of rehabilitation, which he described as 'very good' if Mr Demirbas was 'fair dinkum'.[38] He also referred to the fact that this was Mr Demirbas's first time in prison, that he was relatively young, that he had 'very powerful and strong family support' and that he was 'not an inherently violent person'.[39]

Individual sentence for attempting to pervert the course of justice

87 The Crown contended that, having regard to the seriousness of this particular example of attempting to pervert the course of justice, the maximum penalty for that offence, the relevance of general deterrence in sentencing for that offence and sentences imposed in comparable cases, it was clear that the sentence imposed on the APCJ charge was manifestly inadequate.

88 The Crown submitted that, although the judge acknowledged that the respondent's conduct constituted a serious example of the attempt to pervert the course of justice offence ('APCJ offence'),[40] the sentence that he imposed failed to reflect this fact. The Crown referred to the following considerations, which were said to point to the seriousness of the respondent's offending:

(a) Frank had already been threatened by the respondent at the time he attempted to have Frank change his evidence and thus the respondent sought to prey on Frank's fear;

(b) the attempt occurred in the context of Mr Randall having been shot by Mr Demirbas;

(c) the attempt was calculating and involved methods of avoiding detection;

(d) the respondent had used three others, namely, Paul, Tony and his fiancé, Ms Kaya, to carry out the offence;

(e) on behalf of the respondent, Tony made contact with Dominic, telling him: 'you and your brother better come see me ... I wanna tell you something here and now. Shut your fuckin' mouth'; and

(f) there was little to mitigate the respondent's culpability for this offending.

89 The Crown drew attention to the fact that attempting to pervert the course of justice carries a maximum penalty of 25 years. The Crown relied on various authorities to submit that the sentence imposed on the respondent should reflect or have some relationship to this maximum penalty.[41]

90 The Crown cited decisions of this Court which have recognised that the offence of attempting to pervert the course of justice strikes at the heart of our legal system and the administration of justice.[42] The Crown noted that offenders who have been remanded on serious charges would greatly benefit if witnesses against them were persuaded to change or withdraw their evidence. Accordingly, so it was said, general deterrence should have constituted a significant, if not paramount, sentencing consideration in this case and a sentence should have been imposed that was sufficiently stern to deter accused persons from interfering with witnesses. The Crown submitted that the sentence passed was inadequate to meet this purpose.

91 Finally, the Crown observed that, in a number of other cases dealt with by this Court, sentences of between 2 and 4 years have been imposed for the offence of attempting to pervert the course of justice.[43] The Crown placed particular emphasis on R v Galea[44] and Tognolini v The Queen,[45] where the relevant offenders were sentenced and resentenced, respectively, to terms of 4 years' imprisonment. According to the Crown, the respondent's conduct was more serious than that of the offender in Tognolini v The Queen. The Crown contended that, when regard was had to the sentences imposed in the abovementioned cases, it became clear that the respondent's sentence was manifestly inadequate.

92 The respondent observed that a wide variety of conduct may fall within the offence of attempting to pervert the course of justice and, consequently, that the sentences imposed for this offence vary widely.[46] In this light, and having regard to the context in which he was sentenced on the APCJ charge, he contended that the sentence was not manifestly inadequate. That context was said to be as follows:

(a) he pleaded guilty to all of the charges after the Crown withdrew some charges;

(b) his guilty plea entitled him to a utilitarian discount and was to some degree evidence of remorse;

(d) he was in a stable relationship and had family support;

(e) he had prospects of rehabilitation, although this was dependent upon him remaining drug free and disassociating himself from persons engaged in drug-related crime; and

(f) the matters set out at [48] to [58] above, which were relevant to the judge's application of the principle of totality.

93 The respondent submitted that, by reason of the matters referred to at [92] above, it was open to the judge to moderate the individual sentences and level of cumulation.

94 In my opinion, the individual sentence of 6 months for the APCJ charge is derisory for the following reasons.

95 First, the sentence is entirely out of proportion to the seriousness of the offence as reflected in the maximum penalty of 25 years and judicial pronouncements such as those made in R v Johns[47] and DPP v Aydin.[48] The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence - or giving truthful evidence - in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown's ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.

96 Secondly, the sentence failed to reflect the serious nature of the offending in the present case. I agree with the Crown's submission that the matters set out at [88] above are indicative of the gravity of the respondent's offending. The communications to Patrick through the prison system and the communications to Dominic by Tony were part of a course of persistent and particularly grave conduct aimed at intimidating Patrick and Frank and forcing Frank to recant his version of events which implicated the respondent. The intended and likely effect on Frank must be seen in the context of the threats of violence constituting the blackmail offence and the serious gunshot injuries inflicted on Mr Randall.

97 The serious nature of the offences with which the respondent had been charged and for which he sought to avoid punishment - namely blackmail and intentionally causing serious injury - are relevant to assessing the seriousness of the APCJ offence.

98 The judge found that the respondent's conduct was a serious example of the offence of attempting to pervert the course of justice. However, as submitted by the Crown, this finding is not reflected in the sentence imposed.

99 Thirdly, the offending involved detailed planning, subterfuge and the involvement of third parties. The draft statement that the respondent prepared for adoption by Frank was carefully drafted. In order to avoid detection, the respondent made no reference to himself in the statement and also avoided direct communication with Frank. Instead, he sought to make his demands known through third parties, namely, Paul, Tony and his fiancé, Ms Kaya. The respondent even went to the trouble of recommending five criminal defence solicitors to assist Frank in making a new statement. These protracted efforts over the period from 14 January 2013 until 28 February 2013 demonstrate that the respondent was unrelenting in his endeavour to avoid being brought to justice for the blackmail offence and the offences relating to the shooting of Mr Randall.

100 Fourthly, the sentence of 6 months was substantially below the range of sentencing options reasonably available to the judge. As the Crown pointed out, individual sentences of between 2 and 4 years have regularly been imposed for the offence of attempting to pervert the course of justice.

101 The circumstances of the present case are much more serious than those in R v Galea[49] where this Court upheld a sentence of 4 years' imprisonment with cumulation of 1 year for an offender who pleaded guilty to a charge of attempting to pervert the course of justice. The offender, who was in custody awaiting trial for armed robbery, sought to influence a fellow prisoner to make a false confession to police that he had committed the armed robbery, by offering him $50,000. The offending in that case did not include key features of the present case, such as the history of threats and intimidation against the key prosecution witness and persons associated with him, elaborate planning, persistent conduct over several weeks, and the involvement of other parties within and outside the prison system.

102 The circumstances of the present case are also more serious than those in Tognolini v The Queen,[50] where the 46 year old offender was resentenced to 4 years' imprisonment. In that case, the offender persuaded two teenage girls to attend a solicitor's office to make false statements that three other girls (one of whom was aged 14) who had made allegations that the offender had committed sexual offences against them were liars. The offender had given the two girls drugs and money as inducements and had made a strangling gesture towards one of the girls by putting his hand around his throat when she was looking at him. I accept that the age and vulnerability of the girls was an aggravating circumstance in that case and that the offender's plea of not guilty deprived him of a sentencing discount. Nevertheless, the offending conduct in that case lacked a number of the key features of the present case that are referred to at [101] above.

103 The facts of the present case bear some similarity to those in R v Zaydan[51] where the offender, who was remanded in custody on a charge of kidnapping, arranged for an associate to deliver a letter to the girlfriend of the kidnap victim which purported to alter his witness statement. The offender was sentenced to 4 years' imprisonment on a charge of attempting to pervert the court of justice, 2 years of which were cumulated on the base sentence for the kidnap charge.

104 Fifthly, the sentence is insufficient to provide any meaningful deterrence to other accused persons - particularly those in custody - from committing similar offences. It is inconsistent with decisions of this Court which have emphasised that general deterrence is a significant sentencing consideration for the offence of attempting to pervert the course of justice.[52] Having regard to the respondent's criminal history and the escalation in the seriousness of his offending in the lead up to the commission of the APCJ offence, the sentence also failed to provide adequate specific deterrence. Once again, although the judge referred to the importance of general and specific deterrence, the sentence imposed failed to adequately reflect the importance of these sentencing considerations in the present case.

105 Sixthly, the mitigating circumstances upon which the respondent relied, as summarised at [92] above, did not provide a sound basis for imposing a lenient sentence when regard is had to the respondent's criminal record and the judge's assessment of the respondent's prospects of rehabilitation as 'gua[53]ed'.53 I will discuss the aggravating and mitigating circumstances in more detail when I consider the total effective sentence. For present purposes, I note that the APCJ offence was committed while the respondent was in custody awaiting trial, not only on the blackmail and RCEL charges, but also on the affray and possess[54]n charges.54

106 The above considerations compel a conclusion that the sentence of 6 months for the APCJ charge is manifestly inadequate.

107 The Crown contended that the sentence imposed on the respondent for blackmail did not reflect the seriousness of his offending. The Crown drew attention to the following considerations which were said to demonstrate the serious nature of the respondent's offending:

(a) the nature of the threats made by the respondent, namely to have Frank's son, Patrick, stabbed;

(b) the production of the handgun to underscore the seriousness of the threats;

(c) Frank's limited ability to protect Patrick because of Patrick's vulnerability due to his imprisonment;

(d) the context for the threats, being an attempt to enforce a drug debt; and

(e) the fact that the threats occurred over weeks, and involved multiple visits to Frank's house.

108 The Crown also submitted that the sentence was wholly insufficient to denounce the offending conduct and to give effect to the principle of general deterrence which was said to be particularly significant in cases of blackmail. In support of this proposition, the Crown relied upon R v Vo[55] where this Court stated that a sentence of 3 years with a non-parole period of 2 years for a single charge of blackmail was unexceptional.[56]

109 According to the Crown, the respondent's conduct called for a particular emphasis on general deterrence as a sentencing consideration because it occurred against a background of lawlessness, namely drug trafficking. The Crown argued that resort to violence and threats was a common means of recovering debts in such a context and, accordingly, that context gave rise to a heightened need for victims to be protected and perpetrators to be deterred.

110 The respondent observed that the judge had given weight to general deterrence.[57] He submitted that there was no foundation for the Crown's assertion that the seriousness of his offending was not reflected in his sentence, having regard to the context in which his sentence was imposed, which is set out at [92] above.

111 The respondent noted that the Crown had not identified any decision of this Court which supported its contention that the sentence imposed on him was manifestly inadequate. He further noted that in R v Vo, the offender was sentenced to 3 years' imprisonment for blackmail. Relevantly, in that case, the offender had not pleaded guilty and the sentence imposed on him was not discounted on that basis. Accordingly, the respondent argued that it could hardly be said that the sentence imposed on him - 2 years and 6 months' imprisonment - was manifestly inadequate.

112 There is considerable force in the Crown's submission that the sentence of 2 years and 6 months for the charge of blackmail does not sufficiently reflect the gravity of the respondent's offending. Having regard to the matters upon which the Crown relied, as summarised at [107] above, that offending can only be described as a very serious example of the offence of blackmail. This is particularly so in the light of the persistence of the threatening conduct over six weeks, the production of a handgun to amplify the fear of harm, the preying on the natural concerns of a father for the safety of his son who is in a vulnerable position in prison and the background of dealings in drugs. Although the harm that was threatened was directed at Patrick rather than Frank personally, Frank was obviously sufficiently concerned for his own safety to agree to Dominic's proposal that Mr Randall move in with Frank to provide protection. The threats were meant to be, and were, taken very seriously.

113 I agree with the observations in R v Vo that blackmail is frequently difficult to detect; that this is particularly so when an offender preys on the fear his or her conduct inspires; that the offence requires the victim to be put and kept in fear; and that it is essential that those with the courage to report the offence or give evidence know that the offender will be appropriately punished.[58] It follows that general deterrence is a very important sentencing consideration. The sentence imposed on the respondent failed to give sufficient weight to this consideration.

114 In my opinion, the respondent's offending was more serious than that of the offender in R v Vo. That case involved a single occasion of threatening conduct that was directed to the owner of a grocery store who was offered 'protection' in return for a weekly payment of $300 to $350 or the free supply of goods. The value of the goods taken on the single occasion with which the offender was charged was $52.74. The offender was 21 years of age at the time of the offence, which he committed with a group of other young men. Although the offender pleaded not guilty and the offending conduct - which was committed while he was serving a suspended sentence - contemplated ongoing payments or the supply of free goods, there were significant mitigating circumstances. Those circumstances included the offender's youth and his limited criminal history. Furthermore, unlike the offending in the present case, the offender in Vo did not make threats over an extended period of weeks, no firearms were involved and there were no threats to the safety of the immediate family of the victim. I also note that the maximum penalty for blackmail at the time that the offence was committed by the offender in Vo was 12 years and 6 months' imprisonment rather than 15 years.

115 The offending in the present case was significantly aggravated by the fact that it was committed a few weeks after the respondent was released on parole and while he was on bail.[59]

116 For the above reasons, the sentence of 2 years and 6 months for the blackmail charge was extremely lenient. It may be said that the judge gave insufficient weight to the aggravating circumstances. Nonetheless, I am not satisfied that the Crown has demonstrated that, viewed on its own, the sentence was manifestly inadequate. I will consider further below the order for cumulation of 6 months on the blackmail charge in the context of the total effective sentence.

117 The Crown submitted that the total effective sentence imposed on the respondent reflected the inadequacy of the sentences on the blackmail and APCJ charges. The Crown further stated that the period of 6 months' cumulation imposed for each of those charges did not sufficiently reflect the gravity of the respondent's criminality.

118 The Crown observed that the judge appeared to have moderated the sentence on the basis of the totality principle.[60] The Crown accepted that this principle required the judge to take into account the time the respondent served in custody after his parole was cancelled on 7 December 2012 and the time he served following the sentence of imprisonment imposed on 23 October 2013 for the affray charge. However, the Crown contended that, in applying the totality principle, the judge was also required to consider the separate criminality involved:

(a) in the matters for which the respondent was serving time in breach of parole;[61] and

(b) in the affray, which involved the respondent producing a handgun.

119 Accordingly, so it was said, the principle of totality could not justify the leniency of the total effective sentence imposed on the respondent.

120 The Crown submitted that the fact that the respondent was in the community in the period from 28 August 2012 until 6 December 2012 meant that any time that he spent in custody prior to 6 December 2012 did not bear upon the totality principle.

121 The Crown also submitted that the totality principle had less force in the present case than in R v Mill.[62] This was said to be because, in that case, the offender had committed three armed robberies in Victoria and Queensland in quick succession and the issue was whether the time he had spent in custody in Victoria for the two Victorian offences should be taken into account when he was being sentenced in Queensland for the Queensland offence. The Crown contended that, in the present case, there was a significant temporal gap between the completion of the previous sentence and the offences, which were committed while the respondent was in the community on parole and on bail.

122 The Crown submitted that, as the blackmail and RCEL offences were committed while the respondent was on parole and on bail,[63] s 16(3B) and (3C) of the Sentencing Act 1991 applied and substantially qualified the operation of the totality principle. Those provisions state:

16 Sentences - whether concurrent or cumulative

...

(3B) [E]very term of imprisonment imposed on a person for an offence committed while released under a parole order made in respect of another sentence of imprisonment (the parole sentence) must, unless otherwise directed by the court because of the existence of exceptional circumstances, be served cumulatively on any period of imprisonment which he or she may be required to serve in custody in a prison on cancellation of the parole order.

...

(3C) Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

123 The Crown also contended that the respondent's criminal history and personal circumstances did not warrant leniency. The Crown relied particularly on the judge's findings that the respondent had breached a number of sentencing dispositions ordered to facilitate his rehabilitation[64] and that the judge was 'guarded' about the respondent's prospects of rehabilitation.

124 The respondent submitted that, as the individual sentences on the blackmail and APCJ charges were not manifestly inadequate, the total effective sentence was also not manifestly inadequate.

125 Although the respondent acknowledged that the totality principle required moderation in order to give effect to s 16(3B) and (3C) of the Sentencing Act 1991, he contended that the judge was correct in placing significant reliance on that principle in arriving at an appropriate total effective sentence. By reference to the events summarised at [51] to [58] above, the respondent submitted that, in giving effect to the totality principle, the judge was required to treat him as having been in custody continuously since 29 August 2011, save for the period of just over three months from 28 August 2012 until 6 December 2012 when he was on parole. The period between 29 August 2011 (when the respondent was sentenced by Judge Gullaci) and 20 October 2014, (when the respondent was sentenced by Judge Dean), comprises approximately 3 years and 2 months.

126 According to the respondent, Mill v The Queen[65] required the judge to take into account the totality of his incarceration in determining the total effective sentence to be imposed. On this basis, it was said that the total effective sentence of 4 years (less pre-sentence detention of 154 days) that was imposed by Judge Dean had to be seen in the context of the preceding incarceration of 3 years and 2 months. This was because it had the effect of extending the respondent's total period of custody to 6 years and 9 months, less the period of just over 3 months (from 28 August 2012 until 6 December 2012) when the respondent was in the community. The respondent submitted that the interruption of three months to his continuous incarceration did not preclude the totality principle covering the whole period since 29 August 2011.

127 The respondent relied on the fact that, as he had already served the entirety of the sentences imposed by Judge Gullaci and Chief Judge Rozenes by the time Judge Dean sentenced him on 20 October 2014, he was deprived of the opportunity of any concurrency for the sentences imposed by Judge Gullaci and Chief Judge Rozenes. He also emphasised that he was not granted any part of the 6 months' parole authorised by Chief Judge Rozenes' sentence.

128 The respondent also submitted that, as the periods from 6 December 2012 until 6 June 2013 and from 23 October 2013 until 4 October 2014 could not be treated as pre-sentence detention for the Subject Charges under s 18(1) of the Sentencing Act 1991,[66] they should be treated as 'Renzella time'.[67] He submitted that this time was 'doubly warranted' because he was serving other sentences as well as being on remand for the Subject Charges, and thus justified moderation of the total effective sentence.

129 Thus the respondent argued that the orders for cumulation of 6 months for the blackmail and APCJ charges had to be assessed in the context of a notional total effective sentence of 6 years and 9 months (less the period from 28 August 2012 until 6 December 2012) - rather than 4 years - with a notional non-parole period of 4 years and 6 months. When viewed in that light, those orders for cumulation were said to be appropriate, as was the total effective sentence.

130 The respondent submitted that, if this Court re-sentenced him and imposed a higher individual sentence for the APCJ charge, the totality principle required that there be limited cumulation, with the result that there would likely be no increase in his total effective sentence. Any increase in the amount of cumulation for the APCJ charge would be so minor, so it was said, that it would constitute 'tinkering'. In these circumstances, he contended that this Court ought exercise its discretion and reject this ground of appeal.[68]

131 The totality principle requires that, where a court sentences an offender for multiple offences, the overall sentence must be a 'just and appropriate measure of the total criminality involved'.[69] This principle is usually given effect by ordering substantial concurrency between individual sentences. However, another course that may be suitable in some cases is to reduce individual sentences below what is usually regarded as appropriate in order to achieve a proportionate outcome.[70]

132 The principle is also applicable where an offender is sentenced while he or she is serving a sentence of imprisonment for other offences. In Mill v The Queen,[71] the High Court stated that, in fixing a head sentence and a non-parole period, the sentencing judge must take into account the earlier sentence in determining what is a just and appropriate sentence.[72] This is so even if this results in a sentence which fails to reflect adequately the seriousness of the crime in respect of which it is imposed.[73]

133 In Koumis v The Queen,[74] Lasry AJA, with whom Kaye AJA agreed, stated that, in imposing a sentence on an offender for an offence committed while on parole for an earlier offence, it was appropriate for a sentencing court to consider the total period that the offender would spend in custody, including the time the offender served in custody prior to being released on parole, as part of the totality principle.[75] In reaching this conclusion, Lasry AJA disagreed with the earlier cases of McCartney v The Queen[76] and Waugh v The Queen[77] which held that, in determining the total period that an offender would spend in custody, a sentencing court should only have regard to the additional 'parole sentence' which the offender would be required to serve.[78] Neave JA held that the correctness of this earlier authority could only be determined by a five member bench of this Court.[79]

134 In my opinion, the question of whether a period in custody preceding an offender's release on parole is to be taken into account in the application of the totality principle when the offender is being sentenced for offences committed while on parole, will depend on the length of the period that has elapsed between the release on parole and the subsequent re-incarceration for the offences committed on parole. In other words, the question depends on the length of the interruption to the offender's period of incarceration resulting from his or her release on parole. The shorter the duration of the interruption, the greater the weight that can be given to the pre-parole period in custody. For example, an interruption of one day would not preclude the application of the totality principle to the pre-parole period and would not diminish its weight. An interruption of three months, on the other hand, would be sufficiently long to significantly diminish the weight that could be given to the pre-parole period for the purposes of the totality principle.

135 It follows that, while the respondent's incarceration prior to 6 December 2012 is relevant to his personal circumstances and as general background, little weight can be given to it in the context of the totality principle. The period of incarceration that engages the totality principle is the period commencing on 6 December 2012. It follows that the effect of the total effective sentence of 4 years which is the subject of appeal is to extend his incarceration to a total of 5 years and 6 months, from 6 December 2012 until 15 May 2018.[80] That period comprised:

(a) Six months for the 'parole sentence', which related to Judge Pilgrim's sentence for one charge of burglary, one charge of theft and two charges of handling stolen property.[81] Those offences were committed before 20 May 2009.

(b) Twelve months for the affray charge, which related to the events of 16 February 2011.[82]

(c) Four years for the Subject Charges in respect of which the offending took place between mid-October 2012 and 28 February 2013.[83]

136 Subject to my observations at [147] below about s 16(3B), I reject the Crown's submission that s 16(3B) and (3C) of the Sentencing Act 1991 had any direct relevance in the present case. This is because those provisions require cumulation where, at the time an offender is sentenced, part of a term of imprisonment for another offence in respect of which the offender was released on parole or on bail remains [84]completed.84 In the present case, at the time that Judge Dean sentenced the respondent, he had completed all previous sentences of imprisonment.

137 In my opinion, the total effective sentence of 4 years for the separate offences of blackmail, reckless conduct endangering life and attempting to pervert the course of justice - when viewed in the context of the total incarceration of 5 years and 6 months commencing on 6 December 2012 for these and the other offences referred to at [135] above - was wholly outside the range of sentences reasonably open to the judge. I have reached this conclusion for the following reasons.

138 First, as discussed at [94] to [105] above, the individual sentence of 6 months for the APCJ charge was manifestly inadequate. Such a short period failed to adequately reflect the seriousness of the respondent's offending conduct which was separate and distinct from the conduct that constituted the blackmail and RCEL offences.

139 Secondly, as discussed at [112] to [116] above, even though I have concluded that the individual sentence of 2 years and 6 months for the blackmail charge was not manifestly inadequate, the order for cumulation of 6 months for that offence is inadequate because it does not sufficiently reflect the seriousness of the respondent's threatening conduct over a period of six weeks.

140 Thirdly, the respondent's conduct which constituted the RCEL offence was also very serious. The respondent and Mr Demirbas had agreed to attend Frank's house and for Mr Demirbas to produce and, if necessary, use a handgun to threaten Frank. The agreement included the brandishing of the handgun and its discharge by way of warning but did not extend to an intention to injure Frank, Mr Randall or anybody else. Although the handgun was discharged by Mr Demirbas rather than the respondent, the respondent's statement to Mr Demirbas 'Look, he's not even afraid of the gun' may have had the effect of encouraging Mr Demirbas to use the handgun again following the initial warning shot. Even if this were not so, the joint criminal enterprise to which the respondent was a party constituted a grave example of reckless conduct endangering life. To produce a loaded handgun in broad daylight in a public street and to fire it in the direction of another person created an obvious risk of death or serious injury.

141 During the plea, the Crown submitted that all three shots fired by Mr Demirbas were part of the joint criminal enterprise and that the injuries sustained by Mr Randall could be taken into account but not the intent with which the handgun was discharged. The judge treated the second and third shots as not forming part of the joint criminal enterprise, so that the respondent was not to be fixed with the intent of Mr Demirbas or the injuries that were sustained by Mr Randall.[85] As this is not a ground of appeal, I need say no more than that there is doubt as to whether the judge was correct to disregard the second and third shots or their consequences.

142 Fourthly, general deterrence was a significant sentencing consideration for the Subject Charges. A total effective sentence of 4 years failed to provide sufficient general deterrence.

143 Fifthly, given the respondent's extensive criminal history - which had escalated in seriousness with the commission of the blackmail, RCEL and APCJ offences - specific deterrence was also a significant sentencing consideration. The respondent produced a handgun when he committed the affray offence on 16 February 2011 and during the commission of the blackmail offence in October 2012. He was also a party to an agreement with Mr Demirbas that the latter produce a handgun and discharge it in the direction of the intended victim on 30 November 2012. Of particular relevance to specific deterrence was the fact that the respondent committed the blackmail and RCEL offences a few weeks after being released on parole and while he was on bail. It is also relevant that the offending occurred in the context of attempts to enforce an alleged debt arising from the supply of drugs. A total effective sentence of 4 years did not give sufficient weight to specific deterrence.

144 Sixthly, the judge was justified in adopting a 'guarded' approach to the respondent's prospects of rehabilitation. This was particularly so in the light of the fact that the respondent had previously breached the conditions of two community based orders, had offended during the period of a suspended sentence, had committed the blackmail and RCEL offences while he was on parole and on bail and had committed the APCJ offence while he was in custody awaiting trial. As the judge correctly observed, the respondent had breached a number of sentencing dispositions ordered to facilitate his rehabilitation.[86]

145 Seventhly, the judge gave undue weight to the mitigating circumstances upon which the respondent relied. The main mitigating circumstances were the respondent's guilty plea, his stable relationship with his fiancé, the support of his family (including an offer of employment from his former brother-in-law) and his drug-free status since his incarceration. While these circumstances required moderation of the total effective sentence, having regard to the matters to which I have referred, they do not justify a total effective sentence of 4 years' imprisonment for the Subject Charges.

146 Eighthly, the totality principle, when applied in the context of the respondent's total incarceration since 6 December 2012, cannot justify:

(a) a total effective sentence of 4 years for the Subject Charges; or

(b) a notional total effective sentence of 5 years and 6 months for the Subject Charges, the affray charge and one third of the sentence of 18 months originally imposed by Judge Pilgrim for one charge of burglary, one charge of theft and two charges of handling stolen property.

147 If the respondent had been sentenced on 7 December 2012 (after his parole was revoked) for the Subject Charges[87] and the affray charge, s 16(3B) of the Sentencing Act 1991 would have required the sentences for those offences to be cumulated on the 6 months remaining uncompleted on the offences for which he was on parole. As senior counsel for the respondent conceded, there were no exceptional circumstances. However, the sentencing judge would still have been required to apply the totality principle to the respondent's total prospective incarceration from that day in determining the sentence to be imposed for the affray and the Subject Charges.[88]

148 Had the respondent been sentenced on 7 December 2012, a total effective sentence of 5 years and 6 months for the Subject Charges, the affray charge and the 'parole sentence' of 6 months would not have been a just and appropriate measure of the respondent's total criminality for the following reasons:

(a) The burglary, theft and handling stolen property offences to which the 'parole sentence' related were committed in the distant past, prior to 20 May 2009. They constitute separate and distinct offending to the offending constituting the affray and the Subject Charges.

(b) Each of the affray, blackmail, RCEL and APCJ offences is a serious offence carrying a maximum term of imprisonment of 5, 15, 10 and 25 years, respectively.

(c) The affray offence was committed on 16 February 2011 and involved the respondent brandishing a handgun near a tennis club where children were playing.[89] It represents separate and distinct offending to the offending falling within the Subject Charges which commenced 20 months later.

(d) The blackmail, RCEL and APCJ offences were not committed in a single incident but constituted separate instances of offending extending over the period from mid-October 2012 until 28 February 2013.

(e) The blackmail and RCEL offences were committed while the respondent was on parole and on bail and both offences involved the production of a handgun.

(f) The APCJ offence was committed after the respondent was arrested and remanded in custody for the blackmail and RCEL charges.

(g) The matters discussed in (a) to (f) above would have required significant cumulation of the sentences for the individual offences.

(h) It was imperative that the total effective sentence be sufficiently high to deter the respondent from committing further offences since he had not previously taken seriously the need for rehabilitation. This is evident from the fact that he breached the terms of a suspended sentence, committed the blackmail and RCEL offences while he was on parole and on bail and committed the APCJ offence after he was arrested and remanded in custody for those offences.

149 I accept that there was some delay in the respondent being sentenced for the affray offence and that he was not released on parole for 6 months of the head sentence of 12 months imposed by Chief Judge Rozenes. However, it is unlikely that such a lenient sentence would have been imposed for the affray offence if the respondent had been simultaneously sentenced for the Subject Charges and the sentencing court was aware of the escalation in the seriousness of his offending, including continuing use of drugs and firearms.

150 As observed by this Court in Morgan v The Queen,[90] in a case such as this, the totality principle cannot operate to moderate a sentence in precisely the same way as it did in Mill v The Queen. In applying the principles of Mill v The Queen in a pure sense, the sentencing judge is required to pose the hypothetical question: what sentence would have been imposed had the offender been dealt with at the one time for two or more sets of offending? This requires that it was at least notionally possible for two or more sets of offending to have been dealt with at once.[91] However, where the offender is to be sentenced for offences committed while on parole for earlier offending, the abovementioned hypothetical question is less helpful. This is because there has been intervening conduct on the part of the offender which disconnects the present offending from the past, and which itself constitutes an aggravating factor in assessing the gravity of that later offending.[92] In those circumstances, although the totality principle requires that regard must be had to the continuous period in which the offender has been in custody prior to being sentenced for the present offending, appropriate weight must be given to the fact that the offences for which the offender is being sentenced occurred while he or she was on parole.[93]

151 It follows that the judge misapplied the totality principle in imposing a total effective sentence of 4 years' imprisonment.

152 Although the respondent relied on R v Renzella[94] for part of the period since 6 December 2012 that he has been in custody,[95] in my opinion, that period is more appropriately taken into account - as I have done - as part of the totality principle.[96]

153 My conclusion that the total effective sentence was manifestly inadequate requires consideration of whether a different sentence should be imposed and, if so, what that sentence should be.[97] This, in turn, will require consideration of whether the Court should exercise its residual discretion to dismiss the Crown's appeal. Before turning to these questions, I will discuss the last component of the Crown's appeal, namely, that the non-parole period of 2 years was manifestly inadequate.

154 The Crown advanced three arguments in support of its contention that the non-parole period was manifestly inadequate or infected by error:

(a) First, the Crown submitted that a 2 year non-parole period did not constitute an adequate punishment and failed to reflect the objective gravity of the respondent's offending. According to the Crown, the respondent's conduct constituted serious examples of blackmail, reckless conduct endangering life and attempting to pervert the course of justice. The Crown noted that the blackmail and RCEL offences were committed in breach of parole and while the respondent was on bail. The Crown also stated that the respondent's offending displayed a persistent and contemptuous disregard for the law.

(b) Secondly, the Crown contended that a non-parole period of only 50 per cent of the total effective sentence was unusually short and thus invited an inquiry as to why such a non-parole period was fixed.[98] The fact that the judge had not provided a reason for the length of the non-parole period was said to be indicative of error.

(c) Thirdly, the Crown argued that, as a matter of principle, a non-parole period of this order would have to reflect a substantial mitigation of punishment in favour of an offender's rehabilitation. In this case, however, the judge had stated that any realistic assessment of the respondent's prospects of rehabilitation had to be guarded and noted that he had in the past breached numerous sentencing dispositions that were designed to facilitate his rehabilitation.[99] The Crown further noted that the respondent's conduct represented an escalation in his criminality and stated that there were no mitigating factors of substance, such as age, that were applicable in his case. Accordingly, the Crown submitted that there was every reason to be doubtful about the likelihood of his rehabilitation.

155 The respondent contended that the Crown's submission that the non-parole period imposed on him was shorter than usual was misconceived because there was no 'usual' non-parole period. Rather, so it was said, the question to be determined by this Court was whether, in all of the circumstances of the case and of the respondent, it was reasonably open to the judge to fix the non-parole period which he did.[100]

156 The respondent submitted that, for a total effective sentence of 4 years, it was reasonably open to the judge to fix a non-parole period of 2 years. It was clearly open to the judge, so it was said, to give substantial weight to the respondent's prospects of rehabilitation, particularly given that he was now in a stable relationship with Ms Kaya. Accordingly, the respondent argued that no error had been made in the exercise of the discretion to fix the non-parole period and that this ground of appeal must be rejected.

157 I agree with the respondent's submission that there is no 'usual' non-parole period. A non-parole period that is 50 per cent of the total effective sentence may well be appropriate in the circumstances of some offences and some offenders. For example, where the circumstances of an offence are not serious and the offender has no prior convictions and excellent prospects of rehabilitation, it might be appropriate to provide the offender with an early opportunity to be released on parole to assist in his or her rehabilitation.

158 In the present case, the respondent pleaded guilty to three very serious offences as well as four possession charges. He has an extensive criminal history and the judge was 'guarded' in assessing his prospects of rehabilitation. In these circumstances and those set out in the Crown's submissions, the judge's decision to provide the respondent with the opportunity of being released on parole after completing 2 years of the total effective sentence of 4 years required explanation. However, in view of my conclusion below that the respondent should be resentenced, it is not necessary for me to address the contention that the non-parole period was manifestly inadequate.

Statutory provisions and principles relevant to the residual discretion

159 I have concluded that the individual sentence for the APCJ charge, the order for cumulation for the blackmail charge, and the total effective sentence are manifestly inadequate. It follows that the first condition in s 289 of the Criminal Procedure Act 2009 for allowing this appeal - the existence of error in the sentence first imposed - has been satisfied.[101] That section is set out at [162] below.

160 The second condition in s 289 of the Criminal Procedure Act 2009 requires this Court to be satisfied that 'a different sentence should be imposed'. In determining that question, this Court has a residual discretion to dismiss this appeal notwithstanding its conclusion that there is an error in the sentence first imposed.

161 Before considering the parties' submissions on the proper exercise in this case of this Court's residual discretion, I will briefly summarise the statutory provisions and principles relevant to that discretion.

162 Sections 287, 289 and 290 of the Criminal Procedure Act 2009 relevantly provide:

287 Right of appeal - inadequate sentence

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.

...

289 Determination of Crown appeal

(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.

...

290 Orders etc. on successful appeal

(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.

163 The equivalent provisions in New South Wales are s 5D(1) of the Criminal Appeal Act 1912 (NSW) ('CA Act') and s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) ('CAR Act'). As those provisions were considered by the High Court in Green v The Queen,[102] upon which the respondent placed considerable reliance, I set them out below. Section 5D(1) of the CA Act provides:

5D Appeal by Crown against sentence

(1) The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.

68A Double jeopardy not to be taken into account in prosecution appeals against sentence

(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 any 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.

165 In Griffiths v The Queen,[103] Barwick CJ held that a Crown appeal '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'.[104] Although this statement was made in the context of New South Wales legislative provisions governing Crown appeals, it was said to represent 'general and authoritative guidance to the Courts of Criminal Appeal of this country'.[105] In Green v The Queen, a case decided following the abolition of double jeopardy as a sentencing consideration, a majority[106] of the High Court affirmed that the primary purpose of Crown appeals under s 5D of the CA Act was 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'.[107] The majority endorsed the reasons of the New South Wales Court of Criminal Appeal that this purpose could be 'achieved to a very significant extent' merely by a statement of an appellate court that the sentences imposed upon the respondent 'were wrong and why they were wrong'.[108]

166 In DPP v Karazisis,[109] the majority[110] set out the three conceptual stages of inquiry that traditionally arose from a Crown appeal as follows:

First, the court considered the nature of the sentencing error in order to determine whether it satisfied the common law requirements ... which were intended to ensure that such appeals should be 'rare and exceptional', and did not unduly circumscribe the sentencing discretion. 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. 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.[111]

167 This Court's residual discretion to refuse to intervene even if sentencing error has been demonstrated is exercisable at the second stage of its inquiry on a Crown appeal, that is, under s 289(1)(b) of the Criminal Procedure Act 2009. This Court also has a residual discretion in fixing a different sentence in accordance with the third stage of its inquiry on a Crown appeal.[112] It is clear that this Court's residual discretion to dismiss a Crown appeal has survived the abolition of double jeopardy as a sentencing consideration.[113] The burden lies upon the Crown to show that the residual discretion should not be exercised.[114]

168 It has been said that the residual discretion is 'perhaps of uncertain width' and that '[i]t 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'.[115]

169 In Green v The Queen, the majority stated that the purpose of Crown appeals - namely, to lay down principles for the governance and guidance of sentencing courts - is a primary consideration relevant to the exercise of the residual discretion. They described it as a 'limiting purpose' which does not extend to the general correction of errors made by sentencing judges. They also stated that it supplies a framework within which to assess the significance of factors relevant to the exercise of the residual discretion.[116]

170 A number of cases have considered the factors that are relevant to the exercise of the residual discretion. In Green v The Queen, the majority stated that the creation of unjustifiable disparity between a proposed new sentence to be imposed on the respondent to a Crown appeal and the unchallenged sentence previously imposed on a co-offender was a powerful consideration in favour of exercising the residual discretion to dismiss the appeal.[117] The majority also stated that other circumstances may combine to produce injustice if a Crown appeal was allowed and were therefore relevant to the exercise of the residual discretion. Those circumstances were said to include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent's rehabilitation.[118]

171 In DPP v Karazisis, the majority articulated the following non-exhaustive list of factors that may be relevant to the exercise of the court's residual discretion: delay, parity, the totality principle, rehabilitation, and fault on the part of the Crown.[119]

172 In respect of parity, the majority stated that, in the same way as the parity principle 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.[120]

173 In respect of rehabilitation, the majority approved of the following statement:

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.[121]

174 In respect of 'fault on the part of the Crown', the majority stated that a court may exercise its residual discretion to dismiss a Crown appeal where the prosecutor at first instance failed to discharge his or her responsibility to the sentencing court adequately. The majority held that, ordinarily, the Crown would not 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. The majority further stated that the right given to the Crown to appeal against sentence was not designed to permit it to raise, for the first time, matters that should have been ventilated at first instance.[122]

175 As set out at [166] above, the majority also stated that a court may exercise its residual discretion not to intervene where it did not consider that there would be a sufficient difference between the sentence imposed at first instance and any sentence it regarded as [123]ropriate.123

176 Finally, in DPP v Hardy,[124] Buchanan JA, with whom Mandie JA agreed, stated:

Matters such as damage to reputation, legal costs, hardship to third parties, the completion by the respondent of the sentence, the imminent release of the respondent from custody, delay by the Crown, the adoption of a position by the prosecutor at the plea that may have led the sentencing judge into error and an appropriate exercise of mercy by the sentencing judge can lead to an appeal being dismissed.[125]

177 As is evident from the reasons of the majority in DPP v Karazisis and DPP v Hardy, where sentencing error can be attributable to the conduct of the Crown, a court may refuse to intervene on appeal. In Romero v The Queen,[126] Redlich JA, with whom Buchanan and Mandie JJA agreed, stated:

[T]his court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.[127]

178 Similarly, in DPP (Cth) v Gregory,[128] this Court stated that it would be 'most unusual' for a court to permit the DPP on a Crown appeal to resile from a submission as to sentence advanced on the plea and to reformulate the prosecution position in a manner inconsistent with its position on the plea or to otherwise redress some deficiency in the manner in which the plea was conducted.[129]

179 As a large component of the Crown's submissions on the residual discretion was in response to submissions made by the respondent, I will first discuss the respondent's submissions.

180 The respondent relied on four broad considerations which he submitted required this Court to exercise its residual discretion to dismiss the Crown's appeal.

181 The first consideration was the mitigating circumstances set out at [92] and [145] above. In addition, senior counsel for the respondent informed the Court that his written instructions were that the respondent continues to be drug-free, that he continues to have the support of his fiancé and family and that he is currently in a low security prison. The respondent also relied on a fact stated in the prosecution opening to which the judge did not refer in his sentencing remarks. That fact was that the respondent, acting through his solicitor, had informed the police of the location of the handgun used by Mr Demirbas t[130]hoot Mr Randall.130 The respondent submitted that his conduct assisted the police case against Mr Demirbas.

182 The second consideration was observations that the judge and the prosecutor made at the pre-trial hearing on 23 September 2014, as set out at [68] to [70] above. According to the respondent, the discussion on that day about the sentence that was imposed by Judge Smallwood on Mr Demirbas, the 'lesser penalty' that the respondent 'would receive' relative to that imposed on Mr Demirbas and the 'considerable discount' to which the respondent 'would obviously be entitled' if he pleaded guilty encompassed such a plea to the blackmail offence, the APCJ offence and the offence of intentionally causing serious injury that he was then facing.

183 The respondent contended that he relied on the above indications from the judge about the likely sentencing outcome to plead guilty to the offence of blackmail and the lesser RCEL offence that was subsequently agreed with the Crown. The respondent also contended that the prosecutor (Mr Gibson) endorsed the proposition that he would receive a lesser sentence than Mr Demirbas if he pleaded guilty and accepted that such a plea would have 'utility' notwithstanding its belatedness.

184 According to the respondent, as his decision to plead guilty was influenced by the statements made by the judge and the prosecutor, it would be unfair for this Court to resentence him to a higher sentence. This was said to be particularly so having regard to the fact that he ultimately pleaded guilty to the less serious RCEL charge rather than the charge of intentionally causing serious injury which was the subject of the observations by the judge and the prosecutor.

185 The third consideration upon which the respondent relied was the parity principle. He contended that the total sentence of 3 years and 6 months for the blackmail and RCEL offences had an appropriate relationship to the sentence of 5 years and 6 months that was imposed on Mr Demirbas and thus gave effect to the parity principle. According to the respondent, if this Court resentenced him to a higher sentence, such a sentence would create a disparity with the sentence imposed on Mr Demirbas and engender a justifiable sense of grievance in the respondent.[131]

186 The respondent's submissions on the third consideration were based on the proposition that, while the sentence of 5 years and 6 months that was imposed on Mr Demirbas was nominally for the offence of intentionally causing serious injury, it was in substance imposed for that offence as well as for the conduct that constituted the blackmail of Frank. In support of this proposition, the respondent relied on: the prosecution opening in the plea of Mr Demirbas (see [82] above); the sentencing remarks of Judge Smallwood (see [84] to [85] above); and the prosecutor's submissions and Judge Dean's observations at the pre-trial hearing on 23 September 2014 (see [68] to [70] above).

187 The fourth consideration upon which the respondent relied was the totality principle. His submissions on this principle are summarised at [125] to [130] above.

188 The respondent submitted that the four factors upon which he relied strongly justified the exercise of this Court's discretion to order that the appeal be dismissed. He emphasised that such an order would not preclude this Court from carrying out its primary function in relation to Crown appeals, namely, to 'lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons'.[132] According to the respondent, this function could be fulfilled in the present case by the reasons for judgment of this Court clearly explaining why the sentences imposed below were inadequate and the sentences that should have been imposed in the proper exercise of the sentencing discretion. In that way, so it was said, appropriate guidance would be provided to sentencing courts in the future for the relevant offences without creating any unfairness for the respondent in the present case.

189 The Crown submitted that the mitigating circumstances upon which the respondent relied were significantly outweighed by the aggravating circumstances referred to at [88] and [107] above. It followed, so it was said, that the mitigatory circumstances did not support the exercise of the residual discretion in the present case.

190 The Crown submitted that, while the respondent's assistance to the police in locating the handgun used by Mr Demirbas was relevant, it was not a significant consideration because the respondent did not rely upon it on the plea.

191 In relation to the second consideration upon which the respondent relied, the Crown submitted that the statements made by the prosecutor (Mr Gibson) and Judge Dean at the pre-trial hearing on 23 September 2014 related only to the offence of intentionally causing serious injury, which was the most serious charge the respondent was then facing. According to the Crown, this is borne out by the references to the only charge that was common to Mr Demirbas and the respondent on that day, namely, the charge of intentionally causing serious injury, for which Mr Demirbas had been sentenced and the respondent was then facing trial.

192 The Crown contended that the statements of the prosecutor and Judge Dean could not be understood to extend to the blackmail offence because Mr Demirbas had not been sentenced for that offence. Further, so it was said, those statements could not be understood to extend to the APCJ offence because the respondent had already pleaded guilty to that offence on 22 September 2014 and also because Mr Demirbas had not been charged with that offence.

193 According to the Crown, the statements made by Judge Dean, and supported by Mr Gibson on 23 September 2014, encompassed no more than the proposition that, if the respondent pleaded guilty to the charge of intentionally causing serious injury (as Mr Demirbas had done), he would receive a lesser sentence than the sentence imposed on Mr Demirbas for that offence.

194 For the above reasons, the Crown submitted that the second consideration upon which the respondent relied did not provide any basis upon which this Court could exercise its residual discretion to dismiss the Crown's appeal.

195 The Crown contended that the third consideration upon which the respondent relied also did not provide any basis for the exercise of the residual discretion for the following reasons.

196 First, Judge Smallwood sentenced Mr Demirbas solely for the offence of intentionally causing serious injury and three trafficking offences and thus the parity principle was confined to the RCEL offence for which the respondent was sentenced. The Crown noted that, as it had not made any complaint about the sentence imposed on the respondent for the RCEL offence, any re-sentencing of the respondent would not disturb the parity between that sentence and the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury.

197 Secondly, the references to conduct constituting blackmail in the prosecution opening in the plea of Mr Demirbas and Judge Smallwood's sentencing remarks were solely for the purpose of providing factual background for the offence of intentionally causing serious injury. As Mr Demirbas had not been charged with blackmail, so it was said, no part of the sentence imposed upon him could relate to that offence. It was said to follow that the parity principle was not relevant to any re-sentencing of the respondent on the blackmail charge.

198 Thirdly, the parity principle would not be engaged in relation to any re-sentencing of the respondent on the APCJ charge because Mr Demirbas had been neither charged nor sentenced for that offence.

199 In relation to the fourth consideration upon which the respondent relied - the totality principle - the Crown relied upon its submissions at [118] to [122] above.

200 The Crown submitted that this Court's residual discretion should not be exercised in the present case because the individual sentences and orders for cumulation for the blackmail offence and - in particular - the APCJ offence were derisory and indicated that the sentencing discretion had seriously miscarried. It followed, so it was said, that the total effective sentence and the non-parole period lacked proper foundation and thus required the intervention of this Court to give effect to the sentencing principles relevant to the offences of blackmail and attempt to pervert to course of justice, the latter offence being fundamental to the administration of justice. According to the Crown, a mere statement by this Court in its reasons for judgment about the appropriate sentences that should have been imposed without disturbing the derisory sentences that were actually imposed would be insufficient in this case.

201 In my opinion, none of the considerations upon which the respondent relied would justify this Court exercising its residual discretion not to resentence him.

202 For the reasons I have already discussed at [105] and [145] above, I agree with the Crown that the mitigating circumstances upon whi[133]the respondent relied133 are strongly outweighed by the aggravating circumstances upon[134]ich the Crown relied.134 In relation to the assistance that the respondent provided to the police in locating the handgun used by Mr Demirbas t[135]hoot Mr Randall,135 the judge did not take this into account in sentencing the respondent on the RCEL charge. There are two reasons for this.

203 The first reason is that, at the pre-trial hearing on 23 September 2014 - which preceded the respondent's guilty plea on the RCEL charge - the respondent sought a ruling that the evidence of his solicitor's statement to the police about the location of the handgun was inadmissible. This was said to be because the respondent had not authorised the making of the statement. (The respondent's case at that stage was that he did not know that Mr Demirbas was carrying a handgun.) The prosecutor, Mr Gibson, on the other hand, argued that the evidence was admissible as an admission of a fact in issue - namely, whether the respondent knew that Mr Demirbas was carrying a handgun - and also as going to the respondent's credit because it would impugn the veracity of his record of interview. Due to the guilty plea on 24 September 2014, the judge was not required to make a ruling on the admissibility issue.

204 The second reason is that, at the plea, the respondent did not rely on the assistance he provided to the police as a mitigating circumstance. The only discussion about the assistance between counsel for the respondent (Mr Saunders) and the judge was as follows:

MR SAUNDERS: The only other matter I should indicate to Your Honour is this. The paragraph that deals with the discovery of the firearm. There was a debate before Your Honour about how that could be used. The indents show that, at the time that that disclosure was made to [the respondent's] solicitor, he and Mr Demirbas were both in Charlotte Ward at Port Phillip Prison together. My instructions are he was told by Demirbas that's where the pistol was. There was a potential for bail in an upcoming committal shortly. He was advised there was a firearm out there, if they could do something about it, it would have to improve their chances. That's how the circumstances, I'm instructed, in this case -

HIS HONOUR: I'm not really concerned about that at the moment.[136]

205 Notwithstanding that the respondent did not rely on his assistance to the police as a mitigating circumstance, it was a relevant sentencing consideration which warranted some discount to the sentence to be imposed on the RCEL offence. The assistance supported the Crown's case against Mr Demirbas and also resulted in the removal of a dangerous weapon from the community. The sentence of 3 years for the RCEL charge reflects a more than adequate discount for the respondent's plea of guilty, the assistance he provided to the police and the other mitigating circumstances upon which the respondent relied.

206 There is no substance in the respondent's submission that this Court should not resentence him because this would be contrary to the basis upon which he pleaded guilty to the Subject Charges following the statements that were made by Judge Dean and the prosecutor, Mr Gibson, at the pre-trial hearing on 23 September 2014. The extracts from the transcript at [69] and [70] above make clear that those statements related only to the effect of a plea of guilty by the respondent to the 'same thing that Mr [Demirbas] pleaded to' and on which he was sentenced, namely, the offence of intentionally causing serious injury. The statements did not concern the blackmail and APCJ charges, as Mr Demirbas was not sentenced in respect of such charges. Additionally, the APCJ charge was not relevant to the discussion on 23 September 2014 because the respondent had already pleaded guilty to that charge on the previous day. It will be recalled that the APCJ charge was on Indictment No C13408411.1b whereas the discussion on 23 September 2014 was about Indictment No C13408411.1a which was subsequently replaced by Indictment No C13408411.1c.

207 At the highest, on 23 September 2014, the judge gave the respondent to understand that if he pleaded guilty to the charge of intentionally causing serious injury on Indictment No C13408411.1a, he would receive a 'considerable discount' for that charge and that the sentence imposed on him would constitute a 'lesser' penalty than the sentence imposed on Mr Demirbas on the same charge. The prosecutor did no more than reinforce this understanding. The sentence that the judge ultimately imposed on the RCEL charge is not inconsistent with that understanding.

208 Accordingly, as the discussion at the pre-trial hearing on 23 September 2014 had nothing to do with the blackmail and APCJ charges, that discussion does not provide a basis for this Court exercising its residual discretion not to resentence the respondent on those charges.

210 In my opinion, that principle does not provide a basis for the exercise of the residual discretion not to sentence the respondent on the blackmail and APCJ charges. This is because that principle is relevant only to the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury and the sentence imposed on the respondent on the RCEL charge, which the Crown has not sought to impugn. I agree with the Crown that the references to the circumstances of the blackmail in the prosecution opening in the plea of Mr Demirbas[137] and in the sentencing remarks of Judge Smallwood[138] were made to give factual background to Mr Demirbas's offending conduct for the intentionally causing serious injury offence. Judge Smallwood could not have lawfully sentenced Mr Demirbas for blackmail as Mr Demirbas was not facing a charge for that offence. It is also clear that Judge Smallwood did not purport to do so because the only offence which he mentioned in the context of Mr Demirbas's offending and the appropriate sentencing disposition for it is the offence of intentionally causing serious injury.

211 I will not consider the totality principle separately in the context of the residual discretion, as I have dealt with it at [131] to [136] and [146] to [151] above in the context of the total effective sentence.

212 I will now consider whether there are any considerations other than those upon which the respondent relied which warrant the exercise of this Court's residual discretion. No issues of delay or fault on the part of the Crown arise in the present case that are independent of the considerations which I have already discussed. In relation to rehabilitation, apart from a statement from the Bar table by senior counsel for the respondent that he has remained drug-free since his incarceration on 6 December 2012 and that he is in a low security prison, there has been no material change to the respondent's circumstances from the time that he was sentenced on 20 October 2014. I am not persuaded that the respondent's prospects of rehabilitation are now significantly better than they were on that day.

213 The authorities recognise that the residual discretion should be exercised where any increase in the sentence imposed on a respondent to a Crown appeal would not materially differ from the sentence originally imposed. This consideration is not relevant in the present case. As will be seen from the table at [219] below, I have concluded that there must be a substantial increase in the individual sentence for the APCJ charge and the order for cumulation for the blackmail offence so that the total effective sentence is increased to properly reflect the respondent's total criminality.

214 Having regard to the reasons set out above, the Crown has discharged the onus of persuading me not to exercise the residual discretion. Without repeating what I have already said, I would emphasise the following:

(a) The manifest inadequacy of the total effective sentence can properly be described as 'egregious' and 'gross', particularly having regard to the derisory individual sentence for the APCJ charge. As a key purpose of Crown appeals is to achieve consistency in sentencing and the establishment of sentencing principles,[139] the derisory individual sentence for the APCJ charge cannot be allowed to stand.

(b) In the light of the seriousness of the Subject Charges and the importance of general deterrence to those charges for the purpose of protecting the rule of law and the administration of justice, the individual sentence for the APCJ charge, the order for cumulation for the blackmail charge and the total effective sentence would, if left undisturbed, undermine public confidence in the judicial system and the administration of justice. In particular, the individual sentence for the APCJ charge can justifiably be described as so inadequate that it amounts to an affront to the administration of justice and, accordingly, requires correction to maintain public confidence in the criminal justice system.[140]

(c) This is not a case where a statement by this Court that the sentences referred to in (b) above are wrong accompanied by an explanation as to why they are wrong,[141] would be adequate. Such an approach would not provide sufficient emphasis and force to the proper sentencing dispositions for the blackmail and APCJ offences. A proper discharge of this Court's duty under s 289 of the Criminal Procedure Act 2009, as explained in Green v The Queen,[142] requires this Court to set aside the sentence for the APCJ charge and the order for cumulation for the blackmail charge and resentence the respondent on those charges. That step would underscore the important sentencing principles that I have discussed in concluding that the sentences referred to in (b) above are manifestly inadequate.

215 In addition to the above reasons, I make four observations.

216 First, I have given appropriate weight to the totality principle by taking into account the entire period of the respondent's incarceration since 6 December 2012 in the manner set out at [146] to [151] above.

217 Secondly, I have taken into account that the respondent decided to plead guilty to the blackmail and RCEL charges following the discussion at the pre-trial hearing on 23 September 2014 which is set out at [68] to [70] above.

218 Thirdly, I have taken into account the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury in applying the parity principle to the sentence to be imposed on the respondent on the RCEL charge. In doing so, I have had regard to the fact that some of the mitigating circumstances to which Judge Smallwood referred in imposing sentence on Mr Demirbas are not applicable to the respondent.[143] Overall, I have significantly moderated the level of cumulation for that charge.

219 Fourthly, I have given weight to the other discretionary matters upon which the respondent has relied. In combination, the matters set out at [215] to [217] above and the other discretionary matters have resulted in lower individual sentences and orders for cumulation than I would otherwise have imposed.

Blackmail [Crimes Act 1958 s 87]

Reckless Conduct Endangering Life [Crimes Act 1958 s 22]

Possessing a drug of dependence [Methylamphetamine] [Drugs, Poisons and Controlled Substances Act 1981 s 73]

Attempt to pervert the course of justice [common law]

221 I have had the benefit of reading the judgments of Redlich JA and Kyrou JA in draft form. I adopt Kyrou JA's summaries of the proceedings in the County Court and the parties' submissions in this Court.

222 While I accept that the sentence on the charge of attempting to pervert the course of justice is manifestly inadequate, I differ from Redlich JA and Kyrou JA in that, for that offence, I would fix a substituted sentence of two-and-a-half - instead of four - years' imprisonment. I do not accept that there is manifest inadequacy in the sentence on the charge of blackmail, the level of cumulation, the resulting total effective sentence or the non-parole period. Nor do I consider that the substitution of a two-and-a-half-year sentence for attempting to pervert the course of justice should cause any alteration to the directions for cumulation, the resulting total effective sentence or the non-parole period.

223 In the result, I would allow the appeal only to substitute an increased sentence of two-and-a-half years' imprisonment on the charge of attempting to pervert the course of justice. Otherwise, I would leave undisturbed the directions for cumulation, the total effective sentence and the non-parole period fixed by the sentencing judge.

225 Blackmail is a sneaky, insidious offence often committed by cowardly types. Things are said - not usually done - to the victim, who often cannot report what has occurred without revealing something potentially embarrassing, or perhaps even illegal, about his or her or another's behaviour. The blackmailer knows this and preys on the victim's vulnerability in this regard. The menaces employed usually are of a kind that leave the victim with a fear that something seriously untoward will happen unless the blackmailer's demand is met.

226 The respondent's offence of blackmail had these features. For example, if Mr Fusca disclosed the blackmail to police, it would reveal his son's drug-related activities. Worse still, the threats to Mr Fusca - that his son would be harmed - were repeated over several weeks and were calculated to play on a parent's natural concern to protect his child. Yet Mr Fusca could not protect his son, as his son was in prison. In my view, these factors made this a nasty instance of blackmail. Further, the respondent had a significant criminal history, and the offence was committed within weeks of his being released on parole.

227 That said, while it was open to fix a longer individual sentence, the sentence of two-and-a-half years' imprisonment is not manifestly inadequate. For, to be balanced against the seriousness of the offence and the other factors pointing towards a higher sentence were the several mitigating factors on which the respondent relied. These include his plea of guilty, remorse, depression and anxiety, his stable relationship with his partner, his family support and, at the age of 28, his prospects of rehabilitation (albeit they were guarded).

228 The appellant relied on the sentence in R v Vo[144] as a relevant comparator. While the offending in that case was less serious and was committed by a 21-year-old, a sentence of three years' imprisonment was described by this Court as unexceptionable. Unlike the respondent, Mr Vo did not plead guilty. In my view, the sentence in R v Vo neither compels nor supports a conclusion that the sentence of two-and-a-half years' imprisonment for the respondent's offence of blackmail is manifestly inadequate. Instead, it tends to support the respondent's submission that that sentence was open to the judge in the sound exercise of discretion.

229 In coming to that view, I recognize that, while sentences in other cases are on occasions of some assistance in determining current sentencing practices, to which regard must be had in sentencing,[145] there are inherent limitations in such comparisons. No two cases are ever truly alike. In any event, sentences in other cases are not precedents to be applied or distinguished. Nor does a given set of facts admit of only one permissible sentence. The sentencing discretion entrusted to judges is just that - the exercise of a discretion, albeit subject to the application of principles to facts and is apt to produce different outcomes in the sound exercise of that discretion. Further, as French CJ, Hayne, Kiefel and Bell JJ said in their joint judgment in Barbaro v The Queen,[146] other cases may well establish a range of sentences which have been imposed in similar cases, but that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. Rather, history stands as a yardstick against which to examine a proposed sentence.

230 Having examined the blackmail sentence with those considerations in mind, I am not satisfied that it is manifestly inadequate.

231 As I have said, however, I take a different view of the sentence of six months' imprisonment imposed for the respondent's offence of attempting to pervert the course of justice. I accept the appellant's submission that that sentence is manifestly inadequate.

232 Even allowing fully for the factors in mitigation, the six-month sentence manifestly fails to reflect the seriousness of the offence and the relevant sentencing purposes. The offence was all the more serious because, among other things, it was committed against the background that Mr Fusca had already been threatened by the respondent and Mr Randall had been shot by Mr Demirbas; the respondent enlisted the help of others; and it involved calculating behaviour on his part. The six-month prison sentence is insufficient to deter the respondent and others from engaging in similar behaviour or to manifest curial denunciation of behaviour so calculated to interfere with the legal system. Further, the cases to which this Court was referred suggested that current sentencing practices demanded a substantially longer sentence.

233 Unlike Redlich JA and Kyrou JA, however, I do not consider a substituted sentence of four years' imprisonment is required in this case. Instead, a sentence of two-and-a-half years' imprisonment would be sufficient to reflect all relevant considerations.

234 As grave as the respondent's conduct was, it did not involve a more serious instance of attempting to pervert the course of justice than the conduct in Tognolini v The Queen[147] or R v Galea,[148] the two comparator cases on which the appellant relied. In each of those cases, the offence attracted a sentence of four years' imprisonment. In my view, it is more sinister for a person to procure false statements from two girls to the effect that complainants alleging sexual offending against him were liars, as Mr Tognolini did, since that behaviour not only enlisted others in corrupt behaviour but also subjected the complainants to the risk of being treated as having perjured themselves. Further, unlike the respondent, Mr Toglonini ran a trial and therefore did not have the significant mitigating factor of a plea of guilty. Similarly, all else being equal, it is a greater affront to the legal system for a person to seek to avoid his own conviction, as Mr Galea did, by having another person wrongly convicted of that crime, than it is for the respondent to seek to avoid conviction by having a witness withdraw and falsely alter his statement, albeit against a background of the earlier threats and violence.

235 Of the other cases of attempting to pervert the course of justice to which Kyrou JA refers,[149] as well as those listed in the table in the judgment in Tognolini v The Queen,[150] the only two in which sentences in excess of two-and-a-half years' imprisonment were imposed - R v Zayden[151] (four years' imprisonment) and R v Walsh[152] (three years' imprisonment) - were not mitigated by pleas of guilty; and most of the others attracted sentences of two years' imprisonment or less.[153] For example, in DPP v Aydin & Kirsch,[154] this Court resentenced the respondents to two years' imprisonment for threatening a policeman to influence the prosecution of, and the granting of bail to, a client of the law firm for which they both worked. The threats involved inter alia falsely alleging criminality against the policeman and the suggestion that a notorious violent criminal would be told of his home address (although the latter threat was attributed only to Mr Aydin). While the substituted sentences were moderated by the operation of the principle of double jeopardy, which principle no longer applies in Crown appeals in Victoria,[155] the respondents had not pleaded guilty but instead had run a trial; one (Mr Aydin) was an articled clerk; and the other (Mr Kirsch) had numerous (albeit mostly older) serious prior convictions. Overall, these offences (especially the offence committed by Mr Aydin) strike me as involving graver criminality than that engaged in by the respondent, or at least criminality of a similar order.

236 The maximum penalty - 25 years' imprisonment - shows that the legislature regards the worst classes of attempting to pervert the course of justice as very serious indeed. Nevertheless, the remarks of Callaway JA and Eames JA in DPP v Aydin & Kirsch - to the effect that, 'in some cases, the maximum is of less utility than might otherwise be the case' and '[t]his is an instance where rather than assisting the sentencing task a very high maximum penalty provides little guidance to the sentencing judge' - are equally applicable in the present case.[156] As Callaway JA also said, it is wrong to assume that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale.[157] Thus, a sentence of two-and-a-half - as opposed to four - years' imprisonment cannot be said to be disproportionate to the seriousness of the offence as reflected in either its circumstances or its maximum penalty.

237 As I have said, I am not persuaded that either the total effective sentence or the non-parole period is manifestly inadequate.

238 Having imposed the longest individual sentence (three years' imprisonment) on the offence of reckless conduct endangering life, it was open, conventional and appropriate to select that as the base sentence upon which orders for cumulation would be made. In my view, that offence was the most serious of the offences before the judge, and the offence warranting the longest term of imprisonment. Further, having regard to totality and all other relevant considerations, it was open to cumulate six months of the blackmail sentence and (the entire) six months of the attempt to pervert the course of justice sentence, and thereby to fix a total effective sentence of four years' imprisonment, and then to set a non-parole period of two years.

239 In his reasons for sentence, the judge said this:

[In] arriving at an appropriate penalty in your case, I have had particular regard to the principle of totality in sentencing, and also the related fact that you have now been in custody serving breach of parole, a sentence of imprisonment and on remand since 6 December 2012 for offending closely related to your drug addiction. [158]

240 It is clear from that passage that his Honour had regard to totality as it applied in sentencing for multiple offences in the present case and to the respondent's particular circumstances arising out of the sentences previously imposed on him.

241 As to the latter consideration, the judge was - and this Court must be - cognizant of the fact that the sentences for the new offences were to be imposed against a background of the respondent's having served, since his incarceration on 6 December 2012, a total of 18 months' imprisonment for other offences. That period comprised all of the six months of the cancelled parole on the restored burglary sentence and all of the 12 months (including the parole period) of the affray sentence.

242 While allowances had to be made for factors that pointed to the need for cumulation - including that at least the blackmail and reckless conduct offences were committed in breach of both parole and bail,[159] the moderation of the totality principle in light of ss 16(3B) and (3C) of the Sentencing Act,[160] the separate nature of the three sets of offending (i.e. the burglary matters attributable to the cancelled parole, the affray and the new matters) and the fact that the new offences were committed at separate times and had their own separate criminality - totality nevertheless required the judge to stand back and consider whether the combination of the past sentences and the new ones together represented a just and appropriate measure of the total criminality involved.

243 In the circumstances of this case, that imperative required his Honour to compress the total effective sentence and non-parole period he might have imposed absent the sentences served since 6 December 2012. This might have been achieved by imposing lesser degrees of cumulation or shorter individual sentences,[161] and then fixing a non-parole period in relation to the resulting total effective sentence. Either way, this is at least part of the justification for what, at first blush, might seem to be an unduly lenient total effective sentence and non-parole period.

244 When the 18 months spent in custody for the cancelled parole and the affray sentence are added to the total effective sentence and non-parole period the subject of this appeal, it is apparent that, from December 2012, the respondent will serve a total of five-and-a-half years' continuous imprisonment and a total of at least three-and-a-half years before becoming eligible for parole. Whether viewed from the standpoint of the additional total effective sentence to be imposed for the offences before Judge Dean against the backdrop of service of an 18-month sentence since December 2012 or as if all three sets of offending were to be dealt with at the one time, it was open to his Honour to consider that the overall sentence does represent a just and appropriate measure of the total criminality involved.

245 Further, while I accept that, because of the three-month break between the two periods of incarceration, it is a matter of less weight than the 18 months' imprisonment served since December 2012, the fact is that the respondent had served 12 months of the restored 18-month burglary sentence between 29 August 2011 and 28 August 2012. Thus, aggregating the total sentences for the burglary matters (including the cancelled parole), the affray and the present matters, between August 2011 and May 2018, allowing for the three months or so he was released on parole and then bail between late-August and early-December 2012,[162] the respondent will have served a total of about six-and-a-half years' imprisonment with an effective non-parole period of at least four-and-half years. Again, it was open to his Honour to regard that overall sentence as representing a just and appropriate measure of the total criminality involved.

246 In my view, there is nothing in the appellant's particular complaint that it is indicative of error that the non-parole period represents only 50 per cent of the total effective sentence imposed on the new offences and no particular reasons were assigned for this choice. The shorter the sentence, the more likely the non-parole period will be a lesser proportion of the sentence. While a non-parole period of 50 per cent might be regarded as unusual on a sentence of say, seven years' imprisonment or longer, it is not so uncommon to see such a ratio on a sentence of four years' imprisonment or shorter.

247 Further, when regard is had to the fact that the total period of continuous custody from December 2012 before potential parole eligibility will be at least three-and-a-half years out of a total period of continuous imprisonment of five-and-a-half years, it can be seen that the effective ratio increases to about 63 per cent, which is about as ordinary as it gets.

248 The ultimate question is whether the non-parole period (of two years) is manifestly inadequate. Again, when the seriousness of the offences and the other factors pointing towards a higher sentence are balanced against totality and the mitigating factors - such as the respondent's pleas of guilty, remorse, depression and anxiety, stable relationship with his partner, family support and prospects of rehabilitation - I consider that it was open to the judge to fix a non-parole period of two years.

249 While I accept that principles of general deterrence, specific deterrence, just punishment, denunciation and protection of the community demanded a substantial total effective sentence and non-parole period for the new offences, it is also important to recognize the necessity for parsimony. Section 5(3) of the Sentencing Act reflects that common law principle, by dictating that '[a] court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed'. In my view, it is open to say that all of the aforementioned purposes are met by the total effective sentence and the non-parole period imposed in this case.

250 Despite my conclusions that the blackmail sentence, the total effective sentence and the non-parole period are not manifestly inadequate, there is nevertheless an error in the sentence imposed on the charge of attempting to pervert the course of justice because it is manifestly inadequate. As a result, s 289(1)(a) of the Criminal Procedure Act is engaged.

251 Further, as I have said, I would substitute a sentence of two-and-a-half years' imprisonment on the charge of attempting to pervert the course of justice. As a result, ss 289(1)(b) and 290(1) potentially are engaged as well.

252 I say those provisions potentially are engaged, for these reasons. As I have explained earlier and for further reasons I shall advance presently, I am of the view that, even if a two-and-a-half-year sentence were substituted for that offence, I would leave undisturbed the directions for cumulation, the total effective sentence and the non-parole period fixed by the primary judge. That, in turn, raises the question whether it would be necessary to re-sentence in the way I propose or whether, instead, in the exercise of the residual discretion to decline to intervene, the appeal should be dismissed on the basis that a statement by this Court that the sentence on the charge of attempting to pervert the course of justice is manifestly inadequate, and why that is so, would be sufficient to achieve the principal purposes of a Crown appeal.

253 Before expanding upon the latter point, I shall explain why, if a two-and-a-half-year sentence were substituted on the charge of attempting to pervert the course of justice, I would not alter the other sentencing orders made by the judge.

254 Unconstrained by the discretionary considerations applicable to Crown appeals, I would direct that nine (instead of six) months of the substituted sentence and nine (instead of six) months of the blackmail sentence be served cumulatively upon the reckless conduct sentence, so that the total effective sentence would be four-and-a-half (instead of four) years' imprisonment, and I would fix a non-parole period of two-and-a-half (instead of two) years. Such orders would have conformed with my assessment of totality and my synthesis of all of the relevant considerations both mitigating and aggravating.

255 In my view, however, for reasons that follow, the operation of the discretionary considerations applicable to Crown appeals requires that the orders - other than the sentence on the charge of attempting to pervert the course of justice - be left undisturbed.

Total effective sentence and non-parole period not manifestly excessive

256 The first consideration is that, despite my preference for slightly different orders, I would not be inclined to alter the directions for cumulation, and thereby increase the total effective sentence by six months, or increase the non-parole period by six months, because to do so would be to increase a total effective sentence and a non-parole period that I had concluded were not manifestly inadequate.

257 Whether or not this Court has the power, on a Crown appeal, to increase a total effective sentence and/or a non-parole period that it has not found to be manifestly inadequate need not be decided, for at least three reasons.[163] First, mine is a minority view. Secondly, the matter was not addressed in argument by the parties. But, thirdly, and in any event, an increase of such a comparatively small order in the total effective sentence and the non-parole period would be 'pointless tinkering',[164] such that this Court should exercise its residual discretion to decline to intervene in respect of at least those aspects of the sentence.

258 Secondly, another mitigating factor to which I have not referred thus far, but which I have taken into account in considering whether any aspect of the sentences is manifestly inadequate, is that the respondent assisted the authorities to locate the handgun used by Mr Demirbas to shoot Mr Randall. While this was not a matter mentioned in the judge's reasons for sentence, it is obvious that it was considered by the parties to be of sufficient significance to warrant the insertion of a separate paragraph about the matter in the prosecution opening. Further, counsel for the respondent did refer to the matter on the plea.

259 In any event, in my view, it is a mitigating factor of considerable significance because not only did that disclosure tend to implicate the respondent and his co-accused in the shooting but it also ensured the removal from the community of a potentially dangerous handgun. This is so even if the disclosure was borne of self-interest (i.e. a belief that disclosure might enhance the possibility of being granted bail[165]), for it still had the utilitarian benefit of assisting the authorities in these ways.

260 Further, such assistance is a mitigating factor applicable in sentencing not only on the reckless conduct endangering life but also on the blackmail and the attempt to pervert the course of justice, even if it might be said that the assistance was not - or perhaps was only indirectly - related to the latter two offences. In R v Rostom,[166] Charles JA (with whom Callaway JA and Vincent AJA agreed) accepted that 'a prisoner will be entitled to leniency as an informer notwithstanding that the assistance has been given in relation to offences other than those for which he then stands to be sentenced'. The same principle must apply irrespective of whether the assistance comes from an informer/witness or in the form of information leading to discovery of a handgun used in another crime.

261 I consider the respondent's assistance to be a significant matter supporting the conclusion that the sentence on the blackmail, the total effective sentence and the non-parole period are not manifestly inadequate and, in the alternative, if it be that the judge did not have regard to it, a matter adding to the view that the residual discretion to decline to intervene should be invoked.

262 Thirdly, it is also important to recognize the significance of rehabilitation as a relevant sentencing purpose, and the interplay between rehabilitation and protection of the community.

263 The respondent will be returning to the community ultimately. It is therefore in the community's interests that his prospects of rehabilitation be maximized, so that, when he does return to the community, his chances of remaining offence-free and of successful reintegration are the best they reasonably can be.

264 Increasing the total effective sentence and the non-parole period in the present case is both unnecessary and potentially counter-productive. A combined period of imprisonment of five-and-a-half years and a combined non-parole period of three-and-a-half years are long periods in anyone's life.[167] The respondent is still only 29.

265 On the appeal, the Court was informed, without objection or disagreement from the appellant, that the respondent has remained drug-free since his incarceration in December 2012, that his fiancée and family are still supportive of him and that he is currently in a low security prison. These are positive signs. His drug-free status and his security classification suggest he is working well towards reform and giving himself the best chance of release at the earliest opportunity. Those chances of reform are likely to be improved with continued family support. Under the existing sentence, the respondent will become eligible for parole in May 2016, which is not so far away now. Of course, whether he is released on parole at or near that time, or at all, will be a matter for the Adult Parole Board.

266 I am not satisfied that the respondent's chances of rehabilitation - or therefore the protection of the community in the longer run - would be promoted by any increase in his sentence. On the contrary, taking such a course risks dashing the respondent's hopes and undermining his chances of reform. In my view, the preferable course - and one which is open - is that the existing sentence remain undisturbed, so that such chances of reform the respondent has are promoted. The guidance afforded to sentencing judges by allowing a Crown appeal should not come at too high a cost in terms of justice to the individual[168] or in terms of the community's ultimate protection through an offender's rehabilitation.

267 Finally, even if I am wrong in the view that the blackmail sentence, the total effective sentence and the non-parole period are not manifestly inadequate, or that those aspects of the sentence should not be altered in the exercise of the residual discretion to decline to intervene on account of the factors mentioned thus far, I consider that neither the blackmail sentence nor the extent of its cumulation upon the reckless conduct sentence, nor the resulting total effective sentence or non-parole period, could be increased more than very modest amounts without creating an unjustifiably narrow disparity between the substituted sentences and the (unchallenged) sentence imposed on Mr Demirbas for intentionally causing serious injury. Since the creation of an unjustified disparity is a matter enlivening the discretion to decline to intervene on a Crown appeal,[169] and since I have already indicated that an increase of only six months in the total effective sentence and the non-parole period are such small increases as to enliven the same discretion, I still would decline to make any equivalent increases in the blackmail sentence, the extent of its cumulation upon the reckless conduct sentence, the total effective sentence or the non-parole period. I shall explain why I take this view.

268 Mr Demirbas was sentenced to five-and-a-half years' imprisonment on a plea of guilty to intentionally causing serious injury, an offence which carries a maximum penalty of 20 years' imprisonment. He first fired a warning shot; then he actually shot Mr Randall in the foot, causing grazing. Ultimately, he aimed at Mr Randall and shot him in the groin, causing very serious injury to his pelvic area and bowel, necessitating major abdominal surgery. Eventually, Mr Randall recovered, but he still has significant residual scarring. The Crown did not appeal against Mr Demirbas's sentence.

269 The respondent, in respect of the same incident, was sentenced to three years' imprisonment on a plea of guilty to reckless conduct endangering life, an offence which carries a maximum penalty of ten years' imprisonment. As Kyrou JA explains, the respondent was sentenced on the basis that he was a party to the firing of the warning shot but not the subsequent shots or their consequences.[170]

270 Mr Demirbas ultimately was not indicted on the blackmail. Nevertheless, as the prosecutor who appeared on the respondent's plea explained, 'the blackmail was part of the ... [s]urrounding facts and part of the narrative' to Mr Demirbas's offence of intentionally causing serious injury. Indeed, at Mr Demirbas's plea, those facts were described in the prosecution opening under the heading 'Background' in almost identical terms to those used to describe the blackmail in the prosecution opening on the respondent's plea.[171] The warning shot fired by Mr Demirbas and his shooting of Mr Randall in the foot were also described as part of that background.[172] It is apparent from Judge Smallwood's reasons for sentence that, while he did not sentence Mr Demirbas separately for blackmail or the other shots, he treated those surrounding facts as part of the context in which Mr Demirbas fell to be sentenced for the offence of intentionally causing serious injury.[173]

271 Since the respondent pleaded guilty to a separate charge of blackmail and was sentenced separately for it, his sentence for that offence and the level of cumulation it attracted (six months) are readily identifiable. Thus, the reckless conduct sentence and the blackmail sentence combined contributed three-and-a-half years to the respondent's total effective sentence of four years' imprisonment. In contrast, it is impossible to say to what extent the 'blackmail facts' (or the other two shots) impacted on the sentence imposed on Mr Demirbas for the offence of intentionally causing serious injury. It is reasonable to assume, however, that the sentence for that offence was affected by those facts, such that some component of the five-and-a-half-year sentence is in some sense attributable to them.

272 While the respondent's offence of reckless conduct endangering life involved very culpable and dangerous behaviour, it was far less serious than Mr Demirbas's offence of intentionally causing serious injury. It is one thing to endanger another person by being a party to a warning shot; it is another altogether to cause the person very serious injury, and intentionally so, by shooting him in the groin. Indeed, in my view, while the respondent's offence of reckless conduct endangering life was serious, the sentence imposed for that offence is rather high when compared with the sentence imposed on Mr Demirbas for intentionally causing serious injury. In saying so, I recognize that each offender had some different personal considerations, but, unlike the respondent, Mr Demirbas did not have the powerful mitigating factor of directing police to the gun used to shoot Mr Randall.

273 Added to this, when regard is had to the fact that Mr Demirbas's sentence on the charge of intentionally causing serious injury must have included some component for the blackmail facts and the first two shots, and that the respondent has already received a combined sentence of three-and-a-half years' imprisonment for the far less serious reckless conduct plus the blackmail, there would seem to be little or no room to increase the level of cumulation of the blackmail sentence upon the reckless conduct sentence without infringing the principle of parity between co-offenders.

274 The foregoing analysis points up the difficulty of considering the operation of the parity principle as between offenders involved in the same criminal conduct or enterprise, as opposed to those offenders who have been convicted of the same offences. That difficulty, however, does not deny the operation of the principle. As French CJ, Crennan and Kiefel JJ said in Green v The Queen:

[30] In Lowe v The Queen and in Postiglione v the Queen, this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen, there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged. [174]

275 Further, as their Honours went on to say, the application of the parity principle in a Crown appeal is different from its application in an appeal by an offender against the severity of his or her sentence. The former is shaped by the purpose of Crown appeals, which does not extend to the general correction of errors made by sentencing judges. Rather, that purpose is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. And while the potential application of the parity principle does not mean that a court of criminal appeal must dismiss a Crown appeal in every case in which allowing the appeal would give rise to disparity, a powerful consideration against allowing such an appeal will be the resultant creation of unjustifiable disparity (whether the disparity be too great or to small) between any new sentence and an unchallenged sentence previously imposed upon a co-offender. Equal justice is not to be diminished in order to preserve an opportunity, however, rare, for a court of criminal appeal to make a point of principle to sentencing judges.[175]

276 In my view, any significant increase in the blackmail sentence or the extent of its cumulation upon the reckless conduct sentence, or any consequent increase in the total effective sentence or the non-parole period, would risk creating an unjustifiably insufficient disparity with Mr Demirbas's unchallenged sentence and thereby would diminish equal justice.

277 Finally, I turn to the question whether, instead of allowing the appeal and re-sentencing in the way I propose, I should be proposing that the Court should dismiss the appeal on the basis that, in circumstances where the other aspects of the sentence would not be altered, a statement that the sentence on the charge of attempting to pervert the course of justice is manifestly inadequate, and why that is so, would be sufficient to achieve the principal purposes of a Crown appeal.

278 In Hudson v The Queen; DPP v Hudson,[176] this Court (Ashley, Redlich and Harper JJA) rejected an argument, made on a Crown appeal, that there should be no increase in individual sentences for attempted murder erroneously reduced on account of misapplication of the totality principle if such increases would not affect the total effective sentence. (In fact, the total effective sentence could not have been increased because a life sentence had been passed on a count of murder, which sentence was not subject to appeal.) The Court said the following:

[61] Counsel for the applicant [who was the respondent to the Crown appeal] argued that this error was not sufficient to justify this court's interference on a Crown appeal. Initially, the applicant submitted that this was because it was an 'error of no consequence', because in any event the total effective sentence was unaffected. That submission should be rejected. No authority was cited to support the proposition that this court is unable to intervene on a Crown appeal unless the error has produced an error in both the individual and the total effective sentence. The considerations of equality before the law, consistency and the maintenance of sentencing standards, pertinent to offender appeals, require sentencing judges to pass appropriate sentences on individual counts, even if the total effective sentence will not be affected. Those considerations are also germane to a Crown appeal. [177]

279 The Court went on to hold that the sentences on attempted murder were manifestly inadequate, and to allow the appeal and substitute longer sentences.

280 By application of similar reasoning, it might be said that I should maintain my proposal that the appeal be allowed, albeit only to increase the sentence on the charge of attempting to pervert the course of justice.

281 Only 12 months after this Court's decision in Hudson v The Queen; DPP v Hudson, however, in Green v The Queen, French CJ, Crennan and Kiefel JJ said this:[178]

[37] ... Where disparity is apprehended, the residual discretion is enlivened. However, a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender. The question would then arise: would the purpose of Crown appeals under s 5D [of the Criminal Appeal Act 1912 (NSW)] be served by allowing the appeal? If the result of doing so would be a sentence 'adequate' on its face, but infected by an anomalous disparity which is an artefact of the Crown's selective invocation of the Court's jurisdiction, the extent of the guidance afforded to lower courts may be questionable. As was said in R v Borkowski:[179]

the purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong.

282 Their Honours' endorsement of the remarks in R v Borkowski might be thought to support the view that, in the present case, I should propose that the Court, in the exercise of its residual discretion to decline to intervene, should dismiss the appeal on the basis that, in circumstances where the other aspects of the sentence would not be altered, a statement that the sentence on the charge of attempting to pervert the course of justice is manifestly inadequate, and why that is so, and perhaps even a nomination of the appropriate sentence, as I have done, would be sufficient to achieve the principal purposes of a Crown appeal.

283 I do not consider that this is the occasion on which to attempt to resolve what might be thought to be a tension between the decision in Hudson v The Queen; DPP v Hudson and the remarks of the majority of the High Court in Green v The Queen. There are at least three reasons. First, again, mine is a minority view and therefore cannot affect the orders to be made. Secondly, again, the matter was not the subject of full argument. Thirdly, the remarks extracted from the majority judgment in Green v The Queen do not preclude the allowing of the appeal in this particular case.

284 In the end, as I indicated at the outset of these reasons, I have come to the view that my proposed orders should be that the appeal be allowed and that there be a substituted sentence of two-and-a-half years' imprisonment on the charge of attempting to pervert the course of justice. No other orders should be made. The directions for cumulation, the total effective sentence and non-parole period would remain unaltered.

285 No injustice - whether in the form of insufficient disparity with Mr Demirbas's sentence or the dashing of the respondent's hopes of relatively imminent release on parole - would be occasioned by substituting a longer sentence on the charge of attempting to pervert the course of justice. Whether judged by reference to my proposed substituted sentence or that which is proposed by Kyrou JA and agreed in by Redlich JA, the sentence imposed at first instance on that offence was, by several orders of magnitude, much lower than it should have been. The record should reflect that the respondent ultimately received an individual sentence commensurate with the seriousness of that offence.

[1] (2010) 30 VR 610, 625 [59] ('Hudson').

[2] [2011] HCA 49; (2011) 244 CLR 462 ('Green').

[3] DPP v Hudson (2010) 30 VR 610, 625 [59].

[4] (2010) 30 VR 610.

[5] Ibid 626 [61] (citations omitted).

[6] DPP v Grabovac (1998) 1 VR 664, 681, 683.

[7] [2011] HCA 49; (2011) 244 CLR 462.

[8] Ibid 477 - 8, [37] (citations omitted).

[9] [2009] NSWCCA 102; (2009) 195 A Crim R 1, 18 [70].

[10] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [3]-[7], [10]-[13], [20].

[11] (2000) 203 CLR 452, 476-7 [76]. See also DPP v Johnson [2011] VSCA 288, [68].

[12] [1936] HCA 40; (1936) 55 CLR 499.

[13] R v Demirbas and Oksuz [2009] VCC 625, [47].

[14] DPP v Oksuz (Unreported, County Court of Victoria, Judge Gullaci, 29 August 2011) [4], [8].

[15] DPP v Oksuz (Unreported, County Court of Victoria, Judge Gullaci, 29 August 2011) [11].

[16] DPP v Oksuz [2013] VCC 1379, [17].

[17] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545 and CR-13-01105, Judge Dean, 23 September 2014) 46.

[18] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545 and CR-13-01105, Judge Dean, 23 September 2014) 46.

[19] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545 and CR-13-01105, Judge Dean, 23 September 2014) 46-7.

[20] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545 and CR-13-01105, Judge Dean, 23 September 2014) 47.

[21] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545 and CR-13-01105, Judge Dean, 23 September 2014) 57.

[22] See [81]-[86] below.

[23] DPP v Oksuz (Unreported, County Court of Victoria, Judge Dean, 20 October 2014) [6] ('Reasons').

[34] See [29]-[33] above.

[35] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [20]-[21].

[36] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [3].

[37] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [10]-[13], [20].

[38] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [19].

[39] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [18].

[40] See [77] above.

[41] The Crown relied on DPP v CDP [2009] VSCA 114; (2009) 22 VR 533, 554 [81]; Markarian v The Queen (2005) 228 CLR 357, 372 [30]-[31]; R v Mallinder (1986) 23 A Crim R 179, 186.

[42] R v Galea [2001] VSCA 115, [16]; R v Zaydan [2004] VSCA 245, [95].

[43] See R v Zaydan [2004] VSCA 245, [78], [97]; R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299, 300 [2], 340 [128]; R v Yacoub [2006] VSCA 203, [3], [42]; R v Ripper [2008] VSCA 40, [2]; R v Johns [2010] VSCA 63, [19]; DPP v Aydin [2005] VSCA 86, [22]; R v Aydin [2005] VSCA 87, [26], [30]; R v Carey [2007] VSCA 319, [3], [57].

[44] [2001] VSCA 115.

[45] [2011] VSCA 113; (2011) 32 VR 104.

[46] In support of this proposition, the respondent relied on the cases in the table appended to the decision in Tognolini v The Queen [2011] VSCA 113; (2011) 32 VR 104, 116.

[47] [2010] VSCA 63, [19].

[48] [2005] VSCA 86, [7]-[12].

[49] [2001] VSCA 115.

[50] [2011] VSCA 113; (2011) 32 VR 104.

[51] [2004] VSCA 245.

[52] R v Zaydan [2004] VSCA 245, [95]; R v Johns [2010] VSCA 63, [19].

[53] See [79] above.

[54] See [53]-[55] above.

[55] (Unreported Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998).

[56] R v Vo (Unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998) 5.

[57] See [78] above.

[58] R v Vo (Unreported, Supreme Court of Victoria Court of Appeal, Phillips CJ, Callaway and Batt JJA, 14 May 1998) 4-6.

[59] See [55] above.

[60] See [80] above.

[62] [1988] HCA 70; (1988) 166 CLR 59.

[63] See [53]-[55] above.

[64] See [76] above.

[65] [1988] HCA 70; (1988) 166 CLR 59.

[66] See [58] above.

[67] R v Renzella [1997] 2 VR 88, 94-8; El-Waly v The Queen [2012] VSCA 184, [107]-[114].

[68] The residual discretion to dismiss a Crown appeal is discussed separately below.

[69] Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 307-8; Cotton v The Queen [2015] VSCA 103, [70].

[70] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 62-3 [65]-[68]; Cotton v The Queen [2015] VSCA 103, [71].

[71] [1988] HCA 70; (1988) 166 CLR 59.

[72] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 65-7; Acosta v The Queen [2015] VSCA 94, [42].

[73] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 67.

[74] [2013] VSCA 47.

[75] Koumis v The Queen [2013] VSCA 47, [7], [27].

[76] [2012] VSCA 268, [99].

[77] (2013) 38 VR 66, 75 [33].

[78] Koumis v The Queen [2013] VSCA 47, [23]-[26].

[79] Koumis v The Queen [2013] VSCA 36, [6].

[80] See [57] above.

[81] See [51]-[55] above.

[82] See [53], [56] above.

[83] See [29], [34], [41] above.

[84] R v Campbell [2007] VSCA 189, [59], [69]-[71]; R v Carey [2007] VSCA 319, [41].

[85] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545, Judge Dean, 10 October 2014) 27-9.

[86] See [76] above.

[87] Although the APCJ offence had not been committed as at 7 December 2012, I have included that offence for the purpose of analysing the totality issue.

[88] R v Hunter [2006] VSCA 129; (2006) 14 VR 336, 341 [30]; R v Piacentino [2007] VSCA 49, [78]-[88]; DPP v Dickson (2011) 32 VR 625, 628 [11].

[89] See [53] above.

[90] (2013) 40 VR 32.

[91] Morgan v The Queen (2013) 40 VR 32, 55 [104].

[92] Morgan v The Queen (2013) 40 VR 32, 55-6 [105].

[93] Morgan v The Queen (2013) 40 VR 32, 55-6 [105]; McCartney v The Queen [2012] VSCA 268, [100].

[94] [1997] 2 VR 88.

[95] See [128] above.

[96] El-Waly v The Queen [2012] VSCA 184, [111].

[97] See ss 289 and 290 of the Criminal Procedure Act 2009, which are set out at [162] below.

[98] In support of this proposition, the Crown relied on Kumova v The Queen (2012) 37 VR 538, 546-7 [32]; R v Detenamo [2007] VSCA 160, [26]-[28].

[99] See [76] and [79] above.

[100] In support of this proposition, the respondent relied on Wallace v The Queen [2012] VSCA 114; (2012) 35 VR 520, 521 [2]. See also Kumova v The Queen (2012) 37 VR 538, 543 [15].

[101] Manifest inadequacy constitutes error for the purpose of s 289(1)(a) of the Criminal Procedure Act 2009. See DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [124]-[128].

[102] [2011] HCA 49; (2011) 244 CLR 462.

[104] Griffiths v The Queen (1977) 137 CLR 293, 310.

[105] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, 234.

[106] French CJ, Crennan and Kiefel JJ.

[107] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 465 [1], 477 [36], quoting Griffiths v The Queen (1977) 137 CLR 293, 310.

[108] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 478 [37] quoting R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, 18 [70].

[109] [2010] VSCA 350; (2010) 31 VR 634.

[110] Ashley, Redlich and Weinberg JJA.

[111] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 648 [50] (citations omitted).

[112] In DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 652, in the heading before [73], the majority refer to '[t]he continued existence of the residual discretion in determining whether to intervene (stage 2) and in fixing a different sentence (stage 3)'.

[113] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 648-9 [52], 657-8 [100], 661 [119].

[114] DPP v Zhuang [2015] VSCA 96, [49].

[115] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657 [100].

[116] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477 [36].

[117] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 466 [2], 477 [37], 480 [44].

[118] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 466 [2], 479 [43].

[119] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 658 [104].

[120] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 659 [109].

[121] Fiori Rinaldi, 'Dismissal of Crown Appeals Despite Inadequacy of Sentence' (1983) 7 Criminal Law Journal 306, 308, quoted in DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 660 [113].

[122] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 660 [115].

[123] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 657 [50].

[124] [2011] VSCA 86.

[125] DPP v Hardy [2011] VSCA 86, [18].

[126] [2011] VSCA 45; (2011) 32 VR 486.

[127] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 489-90 [11]; DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1, 20 [73]-[74].

[128] [2011] VSCA 145; (2011) 34 VR 1.

[129] DPP (Cth) v Gregory [2011] VSCA 145; (2011) 34 VR 1, 20 [74].

[130] See [73] above.

[131] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5 [31]-[32]; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610, 613, 623; R v Wolfe [2008] VSCA 284, [9].

[132] See [165] above.

[133] See [92] and [145] above.

[134] See [88] and [107] above.

[135] See [73] above.

[136] Transcript of Proceedings, DPP v Oksuz (County Court, No CR-13-01545, Judge Dean, 10 October 2014) 60.

[137] See [82] above.

[138] See [84]-[85] above.

[139] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 477-8 [37].

[140] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 479 [42], 486 [69].

[141] See [165] above.

[142] See [169] above.

[143] See [86] above.

[144] R v Vo (Unreported, Supreme Court of Victoria, Court of Appeal, 14 May 1998).

[145] See s 5(2)(b) of the Sentencing Act 1991 (Vic).

[146] [2014] HCA 2; (2014) 253 CLR 58, 74 [41].

[147] [2011] VSCA 113; (2011) 32 VR 104.

[148] [2001] VSCA 115.

[149] R v Zayden [2004] VSCA 245 (four years); R v Walsh [2002] VSCA 98; (2002) 131 A Crim R 299 (three years); R v Yacoub [2006] VSCA 203 (two years); R v Ripper [2008] VSCA 40 (two years); R v Johns [2010] VSCA 63 (two years); DPP v Aydin & Kirsch [2005] VSCA 86 (two years); R v Aydin & Flett [2005] VSCA 87 (two and two-and-a-half years); R v Carey [2007] VSCA 319 (two years).

[150] [2011] VSCA 113; (2011) 32 VR 104.

[151] [2004] VSCA 245.

[152] [2002] VSCA 98; (2002) 131 A Crim R 299.

[153] As well as those mentioned by Kyrou JA, the table in Tognolini v The Queen [2011] VSCA 113; (2011) 32 VR 104 included: DPP (Cth) v Fincham (2008) 75 ATR 545 (six months); DPP v Josefski [2005] VSCA 265; (2005) 13 VR 85 (15 months); R v Briggs [2000] VSCA 234; (2000) 117 A Crim R 114 (12 months); R v Coombe [1999] VSCA 94 (four months); R v Davis [2007] VSCA 276 (18 months); R v Dunmall [2008] VSCA 22 (nine months); R v Matheas [2003] VSCA 221 (six months); R v Redmond [2006] VSCA 75 (three and four months); R v Rodden [2005] VSCA 24 (18 months); R v Rogers [2008] VSCA 114 (15 months); and R v Stevens [2009] VSCA 81 (12 months).

[154] [2005] VSCA 86.

[155] See ss 289(2) & 290(3) of the Criminal Procedure Act 2008 (Vic); and DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634.

[156] DPP v Aydin & Kirsch [2005] VSCA 86, [11] (and see also [7]-[12]) per Callaway JA; [24] per Buchanan JA (agreeing with Callaway JA); and [28] (and see also [25]-[28]) per Eames JA (also agreeing with Callaway JA).

[157] DPP v Aydin & Kirsch [2005] VSCA 86, [11].

[158] DPP v Oksuz (Unreported, County Court of Victoria, Judge Dean, 20 October 2014) [18].

[159] Since the respondent's parole on the burglary matters had been cancelled on 7 December 2012, he was no longer on parole at the time of the attempt to pervert the course of justice, i.e. between 14 January and 28 February 2013. Further, since, at that time, he was in custody serving that parole sentence and on remand for the blackmail and reckless conduct charges, it might be said he did not commit the attempt to pervert the course of justice in breach of the bail he had had on the affray. It was not clear to me from the materials whether that bail had been revoked by that stage. Even if it had been revoked, it seems to me to be equally aggravating that the offence was committed while in custody, which is relevant both to the individual sentence to be imposed and the considerations of cumulation and totality.

[160] As Kyrou JA points out (at [136], above), ss 16(3B) and (3C) were inapplicable because the previous sentences had been completed by the time the judge came to sentence. If, however, for the purposes of considering totality, it is assumed that all three sets of matters were being dealt with at the one time (which, strictly speaking, could not occur), then it should be assumed that those provisions were applicable, which in turn would moderate the compressing effect that totality might have on the new sentences.

[161] The former is to be preferred where practicable: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 63; Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346, 355 [19].

[162] Allowance is also made for the 18 days' pre-sentence detention the respondent served between 3 and 21 April 2011 following his arrest on the affray.

[163] In DPP v Ghazi [2015] VSCA 188, [30]-[33], this Court, without deciding the point, 'entertain[ed] reservations as to the correctness of the respondent's submission ... that the Director can never succeed on a ground that alleges specific error unless it is also shown that the sentence is manifestly inadequate'. (See also Hudson v The Queen; DPP v Hudson (2010) 30 VR 610, 627-8 [66]-[68].) By parity of reasoning, some might doubt the correctness of the view that this Court does not have the power to intervene and increase a total effective sentence that is not manifestly inadequate because of an error - in the form of manifest inadequacy - in one of the sentences that makes up part of that total effective sentence. But, as I say, the point need not be decided in this case.

[164] See, e.g, Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 487 [73] (Bell J).

[165] See the extract from the plea in the judgment of Kyrou JA at [204], above.

[166] [1996] VicRp 60; [1996] 2 VR 97, 103-4.

[167] As indicated earlier, the relevant periods, excluding the three months between August and December 2012 when the blackmail and reckless conduct offences occurred, also can be said to be a combined total sentence of six-and-a-half years' imprisonment with a combined non-parole period of four-and-a-half years.

[168] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 479-480 [43].

[169] See, e.g, Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 466 [2], 476-9 [34]-[42] & 480 [44]-[45].

[170] At [141], above.

[171] See the Prosecution Plea Opening (20 September 2013) in DPP v Demirbas at [1]-[8].

[172] See the Prosecution Plea Opening (20 September 2013) in DPP v Demirbas at [9]-[13]. The offence of intentionally causing serious injury and the injuries sustained are described at [14]-[18].

[173] DPP v Demirbas (Unreported, County Court of Victoria, Judge Smallwood, 30 September 2013) [3]-[7], [10]-[13] & [20].

[174] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 473-4 [30] (citations omitted).

[175] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 478 [39].

[176] (2010) 30 VR 610.

[177] Hudson v The Queen; DPP v Hudson (2010) 30 VR 610, 626 [61] (citations omitted).

[178] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 478 [37].

[179] [2009] NSWCCA 102; (2009) 195 A Crim R 1, 18 [70].