DPP v Waack [2001] VSCA 108

5. Curiously, the difficulty in this appeal lies not in the ground taken; for in my opinion that is plainly established. The respondent is now 20 years of age: at the date of the offending he was 19. On the evening of 8 April 2000, one Rayner, walked from his home to a nearby hotel. He was there for about an hour, drinking beer. He purchased two stubbies to take with him and left the hotel shortly after 11 p.m. In the car park of the hotel three young men, including the respondent, were drinking in a parked car, after attending a nearby party. Rayner walked to a nearby bus stop. The motor vehicle containing the respondent left the car park and turned into the street near the bus stop. The respondent, who was seated in the front passenger seat of the vehicle, thought that Rayner was staring at him and made some comment to his friends in the vehicle. As the vehicle drove off, Rayner was seen running down the street after it. The respondent and the two men with him described Rayner as holding a beer stubby in his right hand above his head as if he was about to throw it at the vehicle. The vehicle turned left and stopped, while the three men got out. By this time Rayner had caught up with them. There was some exchange between Rayner and the others, the respondent confronting Rayner who, the respondent said, was threatening him with the bottle. The respondent knocked the beer stubby from Rayner's hand and there was a brief exchange of blows whereupon the respondent grabbed Rayner by the throat, punching him with a clenched fist to the face and causing him to fall backwards over a small fence into the front yard of a house.

8. What followed was described by the respondent's friend, Scott, in this way ("Jason" being the respondent):-

"Jason also fell over this fence and on top of this guy. The guy landed on his back and his feet were still up on the fence. Jason was laying on top of this guy at this stage. I then saw Jason get up on one knee and he punched the other guy to the face on at least twenty occasions. When the first of these punches were being thrown, the guy was trying to kick Jason. These kicks would have struck Jason to the legs and lower body. I have described Jason's assault on this person as being vicious [misspelt as `viscous'] and excessive in the taped interview with the police. The first few punches that Jason struck this person with caused him to be knocked unconscious and despite him being unconscious, Jason continued to punch and kick this person to the body and head. After this person was rendered unconscious, Jason would have punched him a further two times and kicked him at least six times. During this entire incident, Jason would have punched this guy at least twenty times and kicked him on at least ten occasions. Almost all of these punches and kicks were to this person's head and face. In my opinion Jason was totally out of control at this stage and as such I feared that he would seriously injure this person unless I stopped him. Ben and I then jumped over the fenced and we managed to pull Jason off this guy. We then got back into my car and we drove off. The person who Jason had assaulted was left unconscious just inside the fence ... ."

12. Once in the vehicle, the three occupants discussed calling an ambulance, but did not do so. It was a passer-by who found the unconscious Rayner, an ambulance was called and he was taken to the Ballarat Hospital. His injuries were opened by the prosecutor thus:-

"As a result of the assault, the victim suffered numerous fractures to the nose, cheek, jaw and eye area. His face and skull were severely bruised and swollen, virtually unrecognisable. He was transferred to the Melbourne Hospital on 9 April 2000 for further treatment."

From the contents of his victim impact statement, it appears that Rayner remained hospitalised for some 13 days. Medical examination showed severe facial injuries including a foot imprint on the vault of the skull. There was gross bruising and swelling over the face and a deep laceration to his left eye. CT scans revealed a complex facial fracture and a fracture at the base of the skull. In his victim impact statement, Rayner stated that his treatment was ongoing. He anticipated future surgery and dental treatment as a result of the attack. He described suffering from fits of depression and nervousness at night: he complained of balance problems and dizziness and to such an extent that he had had to cease his employment as a window cleaner.

17. The respondent was arrested and interviewed on 10 April 2000. He explained that he had been drinking beer on the night, against his doctor's advice, at a time when he was using the prescribed drug Tegretol to stop him from having epileptic seizures. He claimed that he was aware that such a combination caused him to behave violently. He admitted the assault, and admitted stomping on Rayner's head. However he claimed that Rayner initially was "looking at me pretty fierce" and that Rayner had chased the car. The respondent said that he thought that Rayner was going to throw the stubby which he was holding at the car. He described confronting Rayner out of the car and said that initially Rayner had threatened to kill him, waving the beer stubby about as if he was going to hit the respondent on the head. He claimed that he took the bottle from Rayner and threw it away for his own safety, because he, the respondent, suffered from brain tumours and because he had received head injuries rendering him unconscious in an assault on some earlier occasion. He said that during the assault Rayner punched and kicked him in the testicles and "the guts". He said that he went "a bit sick ... because of my tablets and stuff ... I just see red all the time when I get somethin' done to me". He agreed that he lost his self-control. He claimed that up to the point where Rayner fell over the fence he was acting in self-defence. He said that he noticed that Rayner was bleeding from the face. He claimed to see his victim's chest moving up and down and so thought to himself "Well he's fine".

20. On any view, this was a most vicious assault, and it was at its most vicious after such provocation as there was, if any, had ceased. The respondent had been drinking and, of course, had been drinking contrary to his doctor's advice, because he was taking Tegretol. In the course of the plea respondent's counsel assented to the judge's proposition, "He would have known they were a lethal cocktail". Counsel added: "Again he doesn't want me to say to your Honour `this was reckless' or anything like that. He has pleaded guilty to intentionally causing serious injury and he knows exactly what he has done and how it happened."

23. On this appeal Mr. Priest for the respondent sought to make something of the way in which the fracas had developed between the respondent and Rayner on the night in question. He took us to the earlier part of Mr. Scott's statement to emphasise that everything had started with the victim's own foolish conduct; for, as he pointed out, Mr. Scott's statement to the police began thus:-

"As I drove out of the car park, Jason was seated in the front passenger seat and Ben was seated in the rear of the vehicle directly behind Jason. As I was about to drive from the car park out on to Albert Street, I heard Jason say something about a guy who was in the bus stop nearby. Jason has since told me that this guy was staring at him as we were leaving the car park. I then turned left into Albert Street and after I had driven only a short distance, Jason told me that this same guy was chasing us and he thought that he was about to throw a stubby at my car. I then looked in the rear vision mirror and I saw this male person running along the road behind us. He was carrying a stubby in his right hand. His right hand was raised and I formed the opinion that he was about to throw this stubby at my car. Due to the fact that a car was coming up behind me, I decided to turn left into Morgan Street rather than pull out in front of this car. As I turned left into Morgan Street, I turned my head over my left shoulder and looked back towards this male person. When I did this I noticed that he was still running after us and he still had his right arm raised. The next thing I knew, was that I had run into the passenger side kerb of Morgan Street and the impact of this caused the automatic gear stick on my vehicle to be disengaged. Fearing that this person was going to damage my vehicle with this bottle, I got out of my car. Jason and Ben also got out of my car. I then said to the person who was running after us "What are you trying to do, throw a bottle at my car or something?". He said; "Don't go fucking looking at me." He said something else as well, but I can't remember what he said. During my conversation with this person, Jason butted in and he said to this person "Leave him alone, you dick head." Jason and this guy were standing toe to toe at this stage. This guy then struck Jason to the chest with a beer bottle a couple of times and then Jason grabbed his right arm and he took the bottle off him. After throwing the bottle away, this guy tried to punch Jason to the head. This punch struck Jason to the chin and it caused Jason to grab him by the throat. Whilst Jason had this guy by the throat, he punched him to the face with his right clenched fist. This punch caused this guy to fall backwards over a small fence. Jason also fell over this fence and on top of this guy.

The statement then continued as already set out in paragraph [3].

28. Nothing of course required that the respondent get out of the car to join in the dispute that was looming between the driver Scott and the victim, Rayner, but he did - and with dreadful consequences. The foolishness on both sides is all too obvious in Scott's statement, Mr. Priest emphasising that the fighting could not be said to be all one way, at least until the victim fell backwards over the fence: up until that point, he said, there was apparently an exchange between the two parties and some blows were landed. Yet no attempt, he submitted, had been made by the sentencing judge to divide the injuries sustained by the victim into those inflicted on him during the first few exchanges (when the culpability of the respondent was more debateable) and those inflicted during the latter stages of the assault, when plainly he was at fault.

31. At least two things may be said of this submission. First and foremost, whatever happened before the victim fell over the fence does nothing to excuse or diminish the ferocity of the attack that followed once he had fallen back over the fence - and it was for that that the respondent was being sentenced. Secondly, it is clear that no attempt was made below by counsel on either side to undertake the division of injuries which is now being suggested was appropriate and, as Mr. Coghlan said, no doubt for good forensic reason so far as the respondent was concerned. The respondent might well have thought that the less said by his counsel about the assault, and more particularly the less the assault was explored in detail, the greater his chances of leniency. And for all we know now, that might be how it turned out; for certainly the sentence was lenient. Whatever the cause of that, however, I do not find Mr. Priest's argument at all persuasive. Obviously, we should measure whether the sentence imposed was manifestly excessive against the facts as opened by the prosecutor; that was the basis upon which the sentence was imposed and on that basis I think it plainly inadequate. The possibility that the injuries sustained should have been divided up in some way was not thought relevant on the plea; it is not relevant now (and whether or not we have regard to the detail afforded by Mr. Scott's statement). The attack was brutal and vicious and in my opinion the sentence imposed was manifestly inadequate.

34. In saying that I do not overlook the personal circumstances of the offender which were significant. His Honour did not treat the prior convictions as of any relevance, save to "demonstrate an anti-social lifestyle". Counsel of course relied upon the respondent's comparative youth and the fact that he was presently in full employment. He put his instructions that the respondent had been physically abused as a child, such abuse culminating in an intervention order being taken out by the respondent against his father in 1996. At the same time the respondent, it seems, was placed on a protection order with the Department of Community Welfare Services. This was said to be due to an occasion when, it was alleged, the respondent was made to swim across a lake while his father, as a form of punishment, took shots at him. The respondent's sister was called to give evidence and she spoke too of abuse by the father. More immediately, she described how, after the incident which led to this prosecution, the respondent "lost the plot pretty much" and came to live with her in Carrum. She said that she "took him under my wing" and found him a job, "to get him to settle down and he has done so well". She described him as "not normally a drinker": she thought that this was "a celebration of a friend's birthday that evening". Since the offending, she said that the respondent "hasn't touched a thing" because "I won't let him. He has not wanted to. He is very upset by what happened and doesn't want it to happen again". She recalled him having said that "he was horrified" by it.

37. As the sentence imposed demonstrates, the judge was well alive to all the mitigating factors that went in favour of the respondent, including his plea of guilty. His Honour mentioned "the perceived provocation of the victim" and the "fact that you reacted spontaneously to it rather than the crime being pre-planned". His Honour referred too to the speedy apprehension of the respondent and his subsequent co-operation with the investigating police. He accepted that the plea "indicates true remorse". The difficult upbringing was mentioned, as were the previous convictions which were then described as "not significantly relevant". As for the evidence from the respondent's sister, the judge said this:

"Evidence was led on your behalf. I heard from your sister ... whose evidence I found impressive indeed. You have been in no further trouble since this matter. You stopped drinking and you are living with and are under the guidance of your older sister. I am, on balance, satisfied that the chances of your rehabilitation are reasonably good."

Against this, his Honour accepted that deterrence had to play an important part in the sentencing process, as well as the need to manifest the community's denunciation of the respondent's conduct. He concluded:-

"I have already said it is a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence. However, after consideration I have decided that a wholly suspended sentence is appropriate in this case. My reasons for that are the fact of your being a young offender, and that is a matter in mitigation in itself, but a young offender who now has, given the current environment in which you are living, a real chance of rehabilitation. As I have already said, I found your sister's evidence very helpful and her evidence I found acceptable."

43. It must be acknowledged that the judge faced a difficult sentencing task, given the brutality of the attack by the respondent for which he freely took responsibility, the seriousness of the offence and yet on the other hand the respondent's comparative youth, his lack of significant antecedents, his genuine remorse and his very real chances of rehabilitation. While acknowledging the difficulty, however, I am clear in my own view that a wholly suspended sentence of 18 months' imprisonment was manifestly inadequate. The argument for the Director was put in two parts, first that the sentence of 18 months was inadequate and secondly that a wholly suspended sentence was inadequate. I see no need to approach the matter in that bifurcated manner. It seems to me that a wholly suspended sentence of 18 months was manifestly inadequate and that is all that need be said. This is one of those cases in which the seriousness of the offence and the offending was such as to demand a custodial sentence, despite the factors in mitigation.

46. As I said at the outset, that is not the real problem in this case. The real problem lies in the attitude adopted by prosecuting counsel on the plea itself; for when asked by the sentencing judge whether he could, without error, impose a suspended sentence, counsel appeared to assent. That, it is now argued, stands in the way of our allowing this appeal and imposing a heavier sentence than that imposed below. I shall say something later about just what counsel said below, but first I deal with the principles involved.

49. The principles generally applicable on a Crown appeal are now well established. For present purposes it suffices to refer to three of the propositions extracted from the cases by Charles, J.A. in R. v. Clarke[1]:

"3. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact. .... 4. When, in response to a Crown appeal, the court decides to re-sentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an over-riding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance."

It was this last which served to introduce the argument about the significance on this appeal of what prosecuting counsel had said to the sentencing judge, Mr. Priest contending that it should be held to preclude the Crown's success on this appeal and Mr. Coghlan contending to the contrary. Mr. Priest relied in particular upon what was said in Allpass[2], Economedes[3], Everett v. The Queen[4] and Howlett, Myall and Holland[5], while Mr. Coghlan relied in answer upon what was said in D.P.P. v. Bulfin[6], Zhen Qi[7] and Yanner and Yanner[8].

54. So far as presently relevant, these cases seem to stem largely from what was said by Brennan, Gallop and Deane JJ. in R. v. Tait[9] in 1979. In that case the Court was concerned, not with any particular submission or concession by the Crown as to sentence, but more generally with the way in which the case had been conducted below. In the relevant passage Brennan, Gallop and Deane, JJ. commenced by saying:-

"It would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case either contributed to the error or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error." [Emphasis added]

Rejecting the idea that the Crown is not concerned at all with sentence, their Honours said:-

"The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand and by a fair testing of the defendant 's case so far as it appears to require it. [Emphasis added]

It was in that context that their Honours then added:-

"If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it. A failure by the Crown to discharge that duty may not only contribute to appealable error affecting the sentence, but may tend to deprive the defendant of a fair opportunity of meeting a case which might ultimately be made on appeal. It would be unjust to a defendant, whose freedom is in jeopardy for the second time, to consider on appeal a case made against him on a new basis - a basis which he might have successfully challenged had the case against him been fully presented before the sentencing court."

Though concerned with the Crown's duty to assist the court in relation to sentencing, the court was here describing the duty as one to put the case fairly, for the sake of both the court (to avoid appealable error) and for the defendant (to allow him the chance to meet the case being made).

63. They were later cases that explored the relevance on appeal of the submissions made by the Crown below in relation to the sentence. In 1981, in R. v. Wilton[10] the question was "whether the prosecution should be allowed to raise on the appeal a contention that the sentence ought not to have been suspended when [that] contention was not put in the court below". King, C.J., in an oft-quoted passage, pointed to the serious consequences of allowing the prosecution to follow that course, adding that the court should allow it "only in exceptional circumstances which appear to justify that course". In that instance, however, the court was content to allow it because "counsel for the prosecution in the court below had little or no warning that suspension was contemplated" so that the failure to advance below the contention being put on appeal was understandable. The significance of a failure to put below a contention advanced on appeal is well understood: in this context see for example Tricklebank[11] per McPherson J.A.

66. In Acerbi[12] the Crown appealed against the inadequacy of the sentence although when sentence was being debated below prosecuting counsel had made no submissions "when it was quite clear that counsel for the respondent was making a firm plea for a non-custodial sentence". The Court of Criminal Appeal in Western Australia none the less allowed the appeal, saying only that it was "unfortunate" that no submissions had been made below for the Crown as its subsequently appealing might then appear to the respondent "unfair". However, Rowland, J. (speaking for the Court) then added that "fairness to the accused must play a secondary role to what should appear to be fair to the community as a whole ...".

69. Less than two years later, this was quoted with approval by McHugh, J.A. in his separate judgment in R. v. Jermyn[13], in the Court of Criminal Appeal of New South Wales. After emphasising the role of counsel in assisting the sentencing judge "to come to grips with relevant sentencing principles", his Honour said:-

"In the present case the learned trial judge sought the assistance of the Crown as to whether it was open to him, having regard to the course of authority in the Court of Criminal Appeal, to impose a non-custodial sentence. The Crown said that it would be open to the learned judge to deal with the matter otherwise than by a custodial sentence. Now the Crown submits to the contrary. This factor distinguishes the present case from all other cases involving a Crown appeal - at least so far as I am aware.

Only in the rarest of cases, if at all, would a private litigant be allowed to appeal against the exercise of a discretionary judgment in respect of a ground which he had expressly conceded was open in the court below. No doubt the public interest in having proper sentences imposed upon offenders makes the case of the private appeal an imperfect analogy. But when the Attorney-General on behalf of the Crown asks the court to set aside a sentence on a ground which was conceded in the court below, I think that this Court in the exercise of its undoubted discretion should be slow to interfere. Nevertheless, as Rowland, J. pointed out in R. v. Acerbi (at 92):-

`In my view, fairness to the accused must play a secondary role to what should appear to be fair to the community as a whole and perhaps others who have been guilty of similar offences and who have received what appears to be quite disproportionate treatment.'"

75. Two things emerge from this. First, in contrast to the position in Wilton and Acerbi, this was no mere failing to put below the contention being advanced on appeal. In Jermyn the Crown had made a formal submission below from which it was seeking to depart by putting the contrary on appeal and it cannot be surprising that that was not allowed. Secondly, what was said by McHugh, J.A. sets in proper context, if I may say so with respect, the competing interests which must be weighed when, on a Crown appeal, the Crown seeks to depart from a concession made below. A fortiori I should have thought such weighing was required in those cases in which the Crown has not made a formal submission below that the sentence, against which it is now appealing, is appropriate: in such cases the public interest that criminals are properly sentenced must be a powerful consideration.

78. Economedes, another appeal by the Crown against a non-custodial sentence, was in treatment and result, not unlike Jermyn, although in this instance prosecuting counsel had in fact made no submission below about sentence. But counsel had expressly refrained from making any submission and, on appeal, he was treated as if he had thereby made a concession on behalf of the Crown. Crockett, J., speaking for the Court of Criminal Appeal, described how the sentencing judge had specifically asked prosecuting counsel if he wished to make any submission to the effect that a non-custodial sentence was not a proper option, to which counsel had replied: "No, I don't seek to make any submissions". After then quoting from the judgment of Brennan, Deane and Gallop, JJ. in Tait[14] (about the role of the Crown on sentence), Crockett, J. concluded:-

"That passage has been referred to with approval by this Court on a number of occasions in recent years. It supports, I think, the contention of the respondent's counsel that this Court should be loath to interfere so as to substitute for a non-custodial sentence a custodial penalty when counsel for the Crown, at the time of making of the plea, expressly refrained from making any submission [to the contrary]."

Counsel's expressly refraining from making any submission when invited to address on the appropriateness of a non-custodial sentence was apparently regarded by his Honour as sufficient to "found an inference that the Crown's opinion was that a non-custodial sentence ... was appropriate" (to use his Honour's words in the later case of R. v. Morris[15]). Such an attitude was in marked contrast to the Crown's position on appeal and, as in Jermyn, that departure was not permitted.

83. Economedes may be contrasted with Morris; for although this too was a Crown appeal against a non-custodial sentence where the prosecutor had made no submission on sentence below, in this instance his silence on the topic could not be seen as anything more than that. Again speaking for the Court, Crockett, J. referred first to Jermyn, stating the substance of the decision and adding: "This court has in the past in unreported decisions adopted a like stance in similar circumstances". His Honour then went on to distinguish Jermyn. In that case, he said, "the judge sought the Crown's assistance upon whether it would be erroneous to deal with the matter on a non-custodial basis and the Crown specifically informed the judge that it would not be erroneous"; whereas in Morris the prosecutor had simply "remained silent while the burden of the respondent's plea in mitigation was that a non-custodial sentence should be treated by the judge as appropriate in all the circumstances". The prosecutor's silence was not regarded, said Crockett, J., as otherwise than "in conformity with the discharge of his duties as prosecutor"; in particular his silence could not in the circumstances of that case "found an inference that the Crown's opinion was that a non-custodial sentence alone was appropriate". His Honour concluded: "Nothing in what was done could serve to denote Crown acceptance that a non-custodial sentence was a correct disposition". The contrast with Jermyn could not then have been more marked.

86. Allpass[16], a decision in 1993 of the Court of Criminal Appeal in New South Wales, was relied upon by both sides on this appeal. It is sufficient to note the particular passage to which we were referred in the joint judgment of Gleeson, C.J., Hunt, C.J at C.L. and McInerney, J, where their Honours said:-

"There is one aspect of what occurred at the sentencing proceedings that is of particular significance in this appeal. It concerns the attitude taken on behalf of the Crown. The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269; Malvaso [v. The Queen [1989] HCA 58; (1989) 168 CLR 227]. The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error."

With respect, that seems to me to set out very clearly the relevance, on a Crown appeal against sentence, of the Crown's attitude to sentence at first instance. It is not necessarily fatal to the appeal that the Crown is departing from the stand taken below but that is relevant consideration, and of course the precise nature of the stand taken below must be material if only to determine how great is the present departure. As even acquiescence in the course taken below was said in Allpass not to be fatal on appeal, Mr. Coghlan pointed to that; but that such acquiescence was relevant on the appeal, especially where the Crown now sought a custodial sentence after an earlier non-custodial disposition, was relied upon by Mr. Priest.

91. I have not yet mentioned Malvaso v. The Queen[17], which was referred to in Allpass. In Malvaso, as in Morris, prosecuting counsel had simply remained silent on the issue of sentence, but this time it was in consequence of some plea bargaining. When the subsequent Crown appeal against sentence reached the High Court in 1989, the significance of the Crown's silence at first instance was not determined, for although the Crown had needed leave to appeal, leave had not yet been granted by the intermediate appellate court. Accordingly, the matter was sent back to the intermediate court for a decision on the question of leave, the High Court saying that on that question the silence of the Crown at first instance could be a relevant consideration. This was put on the basis that the plea bargaining which had led to that silence had compromised the prosecution in the presentation of arguments that might have led to the sentencing judge's imposing a sentence against which the Crown would not have sought to appeal. But Mason, C.J., Brennan and Gaudron, JJ. also said:-

"That is not to say that the agreement between the prosecuting authorities and the applicant affected the duty either of the sentencing judge or of the Court of Criminal Appeal (if leave to appeal were given) to impose the sentence which appeared appropriate to the Court in the circumstances. The Court's sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea-bargaining agreement. Nor can such an agreement bind the Attorney-General not to exercise his statutory power to seek leave to appeal and to appeal in any case where, in his opinion, the proper administration of criminal justice requires that power to be exercised. Nevertheless, if an agreement between the prosecuting authorities and an offender has affected the course of proceedings before the sentencing judge and the course of proceedings is relevant to the order which should be made on the Attorney-General's application for leave to appeal, the Court may have regard to those circumstances in determining whether leave to appeal should be given." [Emphasis added].

It should be noted what was seen to be critical was whether the plea bargain which had led to the Crown's silence on sentence had "affected the course of the proceeding before the sentencing judge": if so, it was relevant on the question of leave to appeal.

96. That brings me to the High Court's decision in 1994 in Everett and the 1997 decision of the Court of Criminal Appeal in South Australia in Howlett, Myall and Holland, upon both of which Mr. Priest placed great reliance. Each of them dealt with the attitude of the Crown to sentence when confronting at first instance an indication from the Bench, or a submission by the defence, that a wholly suspended sentence was appropriate; and each, to a greater or lesser extent, drew upon this passage in the judgment of King, C.J. in Wilton:-

"In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."

Whatever this might be thought to say about the position when at first instance counsel is simply silent on sentence, it should be noted immediately that that was not the case in either Everett or Howlett; in neither did counsel simply say nothing at all about sentence. Nor was that so in the case now before us.

"[the judge] asked counsel whether he had `the power in law to impose community service orders in addition to gaol and if I was minded to suspend'. Counsel who then appeared for the Crown and counsel for the appellants all made submissions in relation to that question. Far from suggesting that failure to impose a term of actual imprisonment was inconsistent with the proper exercise of sentencing discretion, counsel for the Crown responded [in relation to the imposition of community service orders]".

Thus, the inference was open that counsel for the Crown was accepting that a non-custodial disposition was open, and if that was correct the case was like Economedes. In Everett, the High Court was concerned only with an appeal which lay by leave and, after referring to the passage I have quoted above from the judgment of King, C.J. in Wilton, Brennan, Deane, Dawson and Gaudron, JJ. said[18] that such considerations as were mentioned there "were applicable to the application for, and weighed heavily against the grant of, leave to appeal to the Crown". So too McHugh, J. in his separate judgment[19]. It is difficult, I think, to see this case as advancing the arguments of either side on this appeal.

106. The stronger case for Mr. Priest's position is, I think, Howlett, Myall and Holland. In that case the Commonwealth Director of Public Prosecutions sought leave to appeal against non-custodial sentences imposed on the respondents, who had been involved in substantial commercial dealing in drugs. The Crown did not complain of the length of the prison terms ordered, but contended that the terms of the recognisance release orders made each sentence manifestly inadequate, and all members of the Court of Criminal Appeal in South Australia agreed. The Crown failed, however, because the making of the recognisance orders had not been opposed in the District Court. To my mind, the submission made then on behalf of the Crown was not altogether clear, but Cox, J. described it thus[20]:-

"The Crown had abundant notice of the respondents' application for an immediate release order and, while the learned judge did not indicate any view of his own to counsel, I do not think that it could fairly be said that the Crown was not on notice that there was a real possibility that such an order might be made. In those circumstances it was not open to the Crown to refrain from making a submission on the subject - which is what its counsel studiously did - and at the same time keep open its option to appeal in the event of an immediate release order being made. Such a course is not, generally speaking, available to it." [Emphasis added]

There are echoes here of the view expressed by Crockett, J. in Economedes, where counsel expressly refrained from making any submission on sentence, and no doubt that explains why in the end Cox, J. concluded that the Crown failed notwithstanding his view that the sentencing discretion had seriously miscarried. Lander, J. agreed with Cox, J., while Bleby, J. agreed in the result but in a separate judgment in which he described the Crown's submission below somewhat differently. His Honour said that in the face of "strong submissions in favour of immediate release", the sentencing judge had "a concession [my emphasis] from the prosecutor that release forthwith was an option available to him" and in consequence the Crown could not succeed. Bleby, J. added as a comment that this seemed an unsatisfactory result and it might be better if such a concession below should be but one factor to be considered in the exercise of a discretion committed to the appellate court.

111. In Howlett all three judges appeared to consider the result, that the Crown failed, to be driven by what had been said by the High Court in Everett, but if, as Bleby, J. suggested, that took the matter outside the realm of discretion, then I think, with great respect, that their Honours may have been reading too much into Everett. What is relevant, as shown by Tait, is whether the Crown's presentation below contributed to the judge's error or led to some unfairness in the light of the Crown's submission on appeal. One consideration will be the failure to put below a contention being put on appeal and a vivid example of that is the Crown's putting on appeal a submission altogether different from that put below. The cases show that even silence may, in certain circumstances, amount to a submission on sentence, but we are not concerned with that here. In Howlett, at least Bleby, J. thought that what had been said by the Crown amounted to a concession below that a non-custodial disposition was within range, the very opposite of the Crown's contention on appeal - a contrast which plainly could lead the court in the exercise of its discretion to refuse leave to appeal. But it is none the less still an exercise of discretion and each case must turn upon its own facts. So much is borne out, I think, by the three other cases decided after Everett and to which we were referred: namely, D.P.P. v. Bulfin, Zhen Qui and Yanner and Yanner.

114. In Zhen Qi[21] the Crown appealed against a sentence of two years periodic detention, arguing that an immediate custodial sentence was required, and such was ordered notwithstanding that at first instance the Crown prosecutor had "acquiesced" (meaning agreed or conceded) that the sentence would not result in appealable error. Dunford, J, speaking for the Court of Criminal Appeal in New South Wales, quoted the passage set out above from Allpass and concluded that the sentencing judge had fallen into substantial error, both in his approach and in the weight he had accorded the concession made by the Crown.

117. Yanner and Yanner[22], too, was a Crown appeal against sentence, the appellant seeking an immediate custodial sentence when, at first instance, prosecuting counsel had, in effect, been seeking a suspended term of imprisonment. McMurdo, P. and Thomas, J.A. in the Court of Appeal in Queensland said this[23]:-

"The learned sentencing judge, correctly in our view, described the learned prosecutor's `essential submission' as one seeking a suspended term of imprisonment. The question therefore arises whether it is appropriate to give effect to submissions now made on behalf of the Attorney-General which are inconsistent with those concessions. It is of course the duty of the trial court, if it considers the submissions of a Crown prosecutor to be unrealistic, to impose the sentence which it thinks appropriate. `Even an undue concession by a Crown Prosecutor during the sentencing process is not necessarily fatal to an appeal by the Attorney-General, although it is a factor militating against the success of such appeals': Conquest [Court of Appeal, Qld, 19 December 1995, unreported] at p 7; Acerbi (1983) 11 A Crim R 90 at 92; Malvaso [v. The Queen [1989] HCA 58; (1989) 168 C.L.R. 227] at 233, 240; [1989] HCA 58; [43 A.Crim.R. 451 at] 455-456, 460-461; Tait (1979) 46 FLR 386 at 388."

Their Honours went on to point out, however, that in that case the Crown prosecutor had "advanced arguments in support of a custodial term as well as conceding the possibility of a non-custodial option", although "the essential submission below was that the most appropriate sentence was a substantial but fully suspended term of imprisonment".

122. Finally, I refer to D.P.P. v. Bulfin[24] where this Court, in 1998, held that the Director was not prevented from challenging the adequacy of the non-parole period fixed on that occasion simply because of the prosecutor's failure to nominate a custodial period in response to the submission of defence or to dispute directly the submission that there was a principle of low non-parole periods for white collar crimes. In the course of his judgment the President said[25]:-

"Even in a case where, in the face of submissions made on behalf of a convicted person that the judge should impose a non-custodial sentence, the prosecutor remained silent, the Court of Criminal Appeal in this State has expressed the view that the director should not be precluded from contending on appeal that the judge was in error in imposing the non-custodial sentence which had been called for: R. v. Morris [1993] VicRp 68; [1993] 2 V.R. 192 at 199. Of course each case must depend upon its own particular facts but in a case where the director, on appeal, is asking the appellate court to reverse the imposition of a non-custodial sentence, the appellate court will be particularly sensitive to the question whether the prosecutor's conduct has induced the judge to the view that the non-custodial sentence imposed was one open to him on the facts of the case: Everett v. R; R. v. Allpass (1993) 72 A.Crim.R. 561."

126. The foregoing seems to me to put beyond argument that, so far as this court at least is concerned, what was said in Allpass should be regarded as the guiding principle: the Crown is not debarred on appeal from taking a stance different from that adopted at first instance but the appellate court, in the exercise of its discretion, is entitled to take account of the fact that at first instance the Crown acquiesced in the course that was taken by the sentencing judge, if that be the fact. Even a concession made by prosecuting counsel, if inappropriate, will not be necessarily fatal to an appeal by the Director, according to Yanner and Yanner. Only Howlett might be seen as pointing the other way and, if it does, then with great respect I think that we ought not to follow it. The better view appears to be that on a Crown appeal against sentence it is ultimately a matter for the court's discretion what weight to accord to the position taken by the Crown at first instance, if different, and such weight will vary from case to case according to the facts. The degree of the departure must be a relevant consideration, as also the seriousness of the criminal conduct being punished and the magnitude of the sentencing error identified on the appeal - that is, the degree to which the appellate court thinks that the sentencing judge fell into error. It will also be very relevant if the respondent was given a non-custodial sentence at first instance and an immediate custodial sentence is being sought on appeal, although, as Rowland, J. pointed out in Acerbi, there are competing considerations to be weighed: fairness to the accused and fairness to the public at large, if not also to those sentenced for similar crimes.

129. Having canvassed the principles, I turn back now to the facts of this case in order to identify just what the attitude of the Crown was to sentence at first instance. Mr. Priest claims that below the Crown conceded that a non-custodial sentence was open as a sentencing option, while Mr. Coghlan says that any such concession, if made, was altogether inappropriate and should not be given any, or any significant, weight. Accordingly how the so-called concession came about is very important.

132. Counsel for the respondent, after leading evidence from the respondent's sister, continued the plea in this way:

"MR JACOBS: In fact, your Honour, I am not proposing to say very much more, certainly not about his background or anything more about the offence. HIS HONOUR: You want a suspended sentence? MR JACOBS: That is what I am asking Your Honour to consider. HIS HONOUR: Yes, all right....."

Apparently his Honour then turned to prosecuting counsel; for the following exchange then immediately followed (with some irrelevant omissions):-

"HIS HONOUR: ... Would I be committing an error at law if I suspended the sentence I have got to pass? MR BESSELL: Given his age, Your Honour, and he has no relevant prior convictions --- HIS HONOUR: Would I be committing an error of law if I suspended the sentence? MR BESSELL: I am not the Court of Appeal, Your Honour. HIS HONOUR: No, but I want the Court of Appeal to know that the Crown were given the opportunity of urging me not to take a course that would involve me making an error of law. I like doing this to prosecutors, Mr Bessell. There is nothing personal in it. MR BESSELL: I understand that, Your Honour, and there is nothing personal in my reply by saying is Your Honour committing an error of law --- HIS HONOUR: Were I to do it. MR BESSELL: It is a serious matter, Your Honour. The injuries are serious. When one looks at his prior convictions and notes that there are not relevant priors and one considers his age and listens to what his sister has to say and given the appalling background he has had, maybe his life has turned around, Your Honour, and it would be unfortunate, given that rehabilitation is a - - - HIS HONOUR: He is still a young offender. MR BESSELL: Yes. HIS HONOUR: All right. The answer is no. MR BESSELL: I am not going to say, Your Honour, whether it is an error of law or not but I can certainly indicate that given the information that has been presented on the plea that is probably within Your Honour's range that it deserves a custodial sentence but to give him an opportunity by suspending it."

That was the end of it. After making an order for a saliva sample, the hearing was adjourned until 2.15 when sentence was passed.

139. In my opinion, the "concession", such as it was, was dragged from the prosecutor. This was not a case in which prosecuting counsel submitted that a suspended sentence was appropriate: the judge pressed counsel and, even then, counsel was not prepared to say whether a suspended sentence was "an error of law or not". But he went on to add that "to give him [the offender] an opportunity by suspending it" was within the range. Whether counsel had in mind suspending the whole of the sentence is of course not clear although, not surprisingly, respondent's counsel submitted to us that because the prosecutor added no qualification, he should be taken as having "acquiesced in" the suspension of the whole sentence. But even were that so - and I do not accept that it was - the weight to be given that "acquiescence " is a matter for the court and in all of the circumstances I would not regard it as so strong or so plain that it should now preclude the Director's submitting, on appeal, that the sentence of 18 months' imprisonment, wholly suspended, was manifestly inadequate.

142. To my mind, one should be careful not to indulge in too fine an analysis of counsel's words on the plea at one particular point in what was, after all, a running exchange; for such an analysis might not do justice to either side. In this instance counsel was being drawn beyond his formal submission and, although his duty was no doubt to assist the court on sentence, he was being pressed beyond that point at which he would have chosen to stop. By an over-fine analysis of the words of counsel as recorded in this exchange with the judge, the essential question is in danger of being lost: namely, was the conduct of the prosecutor such as to contribute to the error on which the Crown now seeks to rely on this Director's appeal? Of course it can be said that at first instance the prosecutor did not make the submission which the Director is seeking to make on appeal, but that is not the main burden of the respondent's complaint to us: his complaint is that what was said below was in substance to the contrary of the submission now being put. But given on the one hand the nature and extent of the running exchange initiated by the judge and on the other the gravity of the offending and the degree to which the sentencing judge fell into error, in my opinion what was said by the prosecutor below should not be regarded, in all the circumstances of this particular case, as precluding this court from intervening where the inadequacy in the sentence is so obvious. Accordingly I would allow the appeal despite what was said below.

145. If, then, the sentence below is to be set aside, it falls to us to consider what sentence should have been imposed. Accepting as I do that it is a harsh thing to order the respondent into custody when his sentence was earlier wholly suspended, none the less in this instance I see no proper alternative. At that point it becomes relevant, in view of the age of the respondent, to consider a Youth Training Centre as an alternative to adult prison. Accordingly, after the foregoing had been prepared in draft form, this Court reconvened for the purpose of ordering that a pre-sentence report be obtained in compliance with ss.32(1) and 96(2) of the Sentencing Act 1991. Unfortunately, it proved more difficult than expected to obtain the report that was ordered. The report, which was provided to us on 26 or 27 July last, is dated 19 July 2001 and suffice it to say that the writer concludes that the respondent "would be unsuitable for a Youth Training Centre order".

148. In introducing the Summary and Conclusion at the end of the report, the writer notes this, referring to the respondent as "Jason":

"The writer met with Jason on 17/7/2001 to prepare this report. Arrangements were made for him to return the next day but he did not attend and the writer has not had contact from Jason since then. Telephone contact was attempted but to no avail."

None the less, the report is plain as to result. A copy of the report was provided to counsel and we gave counsel the opportunity of addressing further, but save for the Court assuring counsel that we would not take account of the contents of the report unless and until we had decided to allow the appeal and turned to re-sentencing, nothing further was said and I am clear in my opinion that detention in a Youth Training Centre would not be an appropriate sentencing disposition in this case.

153. In fixing the term to be served by the respondent, I take into account all his personal circumstances (including his plea of guilty) as canvassed on the plea in the County Court. I also bear in mind that this is a Director's appeal and that the applicant has been undergoing a suspended sentence since he was sentenced in the

County Court on 13 November last. But in my opinion the respondent should be sentenced to be imprisoned for 18 months and should be required to serve 12 months of that term before becoming eligible for parole. And I would so order.

159. I have had the advantage of reading the reasons for judgment of Phillips, J.A. I agree with his Honour.

I certify that this and the preceding 23 pages are a true copy of the reasons for judgment of Phillips, J.A. and Batt, J.A. and Chernov, J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 31 July 2001.

[1] [1996] VICSC 30; [1996] 2 V.R. 520 at 522.

[2] (1993) 72 A.Crim.R. 561 at 564-5.

[3] (1990) 58 A.Crim.R. 466 at 469-470.

[4] [1994] HCA 49; (1994) 181 C.L.R. 295 especially at 302-3 and 307.

[5] (1997) 97 A. Crim. R. 153.

[6] [1998] 4 V.R. 114.

[7] (1998) 102 A.Crim.R. 172 at 178.

[8] (1999) 109 A.Crim.R. 109 at 116.

[9] (1979) 46 FLR 386; 24 A.L.R. 473

[10] (1981) 28 S.A.S.R. 362

[11] [1994] 1 Qd R 330 at 338; (1993) 69 A Crim R 351 at 359.

[12] (1983) 11 A.Crim.R. 90.

[13] (1985) 2 N.S.W.L.R. 194 at 204

[14] (1979) 46 F.L.R. 386 at 389.

[15] [1993] VicRp 68; [1993] 2 V.R. 192 at 198-9

[16] (1993) 72 A.Crim.R. 561 at 564-5.

[17] [1989] HCA 58; (1989) 168 C.L.R. 227.

[21] (1998) 102 A.Crim.R. 172 at 178.

[22] (1999) 109 A.Crim.R. 109 at 116.

[23] 109 A.Crim.R. at 116: see also at 111 per de Jersey, C.J.

[24] [1998] 4 V.R. 114.

[25] [1998] 4 V.R. at 121; compare at 133-4 per Charles, J.A.