DPP v Werry [2012] VSCA 208

Court of Appeal (Vic)|2012-09-05|Before: Warren CJ, Maxwell P, Buchanan JA, Weinberg JA, Bongiorno JA

R v Werry (Unreported, County Court of Victoria, Judge Gaynor, 16 September 2009)

CRIMINAL LAW - Sentencing - DPP appeal against sentence - Rape - Sentence of 7 years - Whether manifestly inadequate - Sentence within range reasonably available - Ground effectively abandoned - Appeal dismissed - Crimes Act 1958 (Vic) s 567A.

CRIMINAL LAW - Sentencing - Current sentencing practices - Rape - DPP contending current sentencing practices inadequate - No live issue between parties - Consideration of circumstances in which appeal court will interfere with the exercise of a sentencing discretion - Consideration of circumstances in which appeal court may express view about adequacy of current sentencing practices - Consideration of circumstances in which an appeal against sentence can be brought by DPP - Appeal dismissed - Sentencing Act 1991 (Vic) s 5(2).

1 This is an appeal against sentence by the Director of Public Prosecutions. The respondent, JW,[1] was convicted by a jury of one count of rape and pleaded guilty to one count of trafficking in a drug of dependence (cannabis). He was sentenced to seven years' imprisonment on the rape count and four months' imprisonment on the trafficking count, with one month's cumulation, giving a total effective sentence of seven years and one month. The learned sentencing judge fixed a non-parole period of five years' imprisonment.

2 The former Director of Public Prosecutions filed a notice of appeal against the sentence, in exercise of his right under s 567A of the Crimes Act 1958 (Vic) (as then in force).[2] As is invariably the case in Crown appeals against sentence, the primary ground of appeal was that the sentence was manifestly inadequate.

3 The ground of manifest inadequacy is a stringent one, difficult to make good. As this court said in Director of Public Prosecutions (Vic) v Karazisis:[3]

Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

4 In this appeal the Director seeks to challenge the adequacy of the current sentencing practices ('CSP') for the offence of rape. The Director invites this Court to find that the CSP for rape were inadequate and to publish a table of indicative sentences for rape that should be used by sentencing judges as a 'sounding board'.

5 For the reasons which follow, we have concluded that the sentence imposed was clearly within the range reasonably available in the circumstances of the case. It follows that the appeal must be dismissed. We have concluded, moreover, that there was so little prospect of the Court's being persuaded that 'a different sentence should have been imposed', less still of the sentence being shown to be 'wholly outside the range', that the appeal should not have been brought in the first place.

6 The learned sentencing judge approached her task in an exemplary fashion. Her Honour had due regard to all relevant sentencing considerations. She considered, and correctly evaluated, the objective gravity of the offence, recognising each and every one of its aggravating features. She stressed the importance of deterrence, both specific and general. She made it plain that JW's conduct was to be denounced in the strongest possible terms. At the same time, her Honour accepted, as she was bound to do, that there were a number of mitigating factors that had to be taken into account. She balanced these mitigating factors appropriately against the seriousness of the offending, and arrived at a sentence that was entirely appropriate in the circumstances.

7 A critical feature of this appeal is that the Director, while not formally abandoning his challenge to the particular sentence imposed on the appellant, did not press the Court to increase the sentence. Instead, he approached this appeal as a vehicle for the ventilation of the general issue of the adequacy of the CSP for rape and chose to focus his submissions on that general issue.

8 There was, in effect, no live issue between the parties regarding the sentence the subject of the appeal. That being so, this is not an appropriate case in which to address the general question raised by the Director - under a separate ground of appeal - of the adequacy of CSP for rape.

9 The circumstances of the offending, as described by the judge in her sentencing reasons, were as follows. On Sunday 26 October 2008 the victim, who was 17 at the time, spent the afternoon with her boyfriend drinking alcohol at the Dandenong Railway Station. Between 9:00 and 10:00 pm she and her boyfriend had an argument and he walked off and left her there. In evidence she said that, by this time, she had drunk between five and eight cans of a mixed alcohol drink and was 'a bit drunk'.

10 Earlier the victim and her boyfriend had gone for a walk and tried to get into a nightclub called 'Shoop'. After her boyfriend left, she thought he might have gone there so she started to walk in that direction. She said the club was situated about a 15 minute walk from the train station. She was about halfway there when a car pulled up. At the time she was standing on a traffic island waiting to cross the road.

11 JW was the driver of the car. The victim was upset and crying and JW asked her what was wrong. She said he seemed friendly and helpful and eventually, after some conversation, she got into the car. At some stage soon after, either just before or soon after she got into the car, JW asked her whether she was a working girl, that is, a prostitute, and offered her $500 to have sex with him.

12 The victim told JW she was not a prostitute and that she did not want to have sex with him. She said he drove off immediately once she got into the car, eventually stopping at a petrol station. He put petrol in the car and, inside the service station, paid for the petrol, purchased a can of soft drink and a packet of cigarettes for the victim and a packet of condoms for himself.

13 The victim said that she asked JW to drop her back at the Dandenong Station but instead he drove to an area she described as the Dandenong Ovals, ultimately determined by police to be a large area of parkland and sporting ovals known as Grieves Reserve. JW went there saying he needed to find a toilet. He drove around the ovals, past several toilet blocks which the victim said she could see from the car were locked, eventually stopping the car on a gravel road at a remote area at the back of the reserve.

14 The victim said that JW then got out of the car and went behind a nearby toilet block and was gone for a few minutes. By this time it was dark and the victim said she realised she was alone with a stranger 'in the middle of nowhere' and became scared. At this time she said she was 'drunk but not that drunk'. JW returned and opened the passenger door, saying he had seen a rabbit and wanted her to come out and have a look at it.

15 The victim said she thought the request was 'a bit weird' and refused. JW then grabbed her by the arm and pulled her round the side of the car. He pushed the victim past the car to a bushy area where he then pushed her to the ground. She fell on her stomach and JW held her there with a hand to her back. The victim tried to get up and got to her hands and knees but he kept his hand on her back, preventing her from rising any further.

16 The victim was crying and begging JW to stop but he pulled down to her knees the jeans and the cotton shorts she was wearing as underwear, exposing her bottom. He ripped the cotton shorts in the process. JW then placed his penis in her vagina. The victim said she could feel that he had put on a condom. The victim continued to cry, telling JW to stop and saying that if he did stop she would not tell anyone.

17 JW told her to stop crying and that it would soon be over. She said he moved backwards and forwards with his penis in her vagina for a few minutes. During this time she continued to cry, begging him to stop. JW kept saying over and over that it would be okay and that she should stop crying.

18 The victim said she felt pain in her vagina when JW penetrated her and tried to resist but his hands were over her hips so she could not move. Eventually he pulled his penis out. She was unaware if he had ejaculated. Semen was subsequently found on the victim's clothes. JW then got up, at which time the victim sat on the ground still crying and moving to a sitting position. JW went to his car and drove away, saying something to the victim to the effect that there was a road to the left.

19 The victim got dressed and made her way back to the station. She sought help and contacted the police.

20 JW was eventually identified using the images taken from the petrol station's security camera. He gave a 'no comment' record of interview.

21 JW gave evidence at his trial. He claimed that the victim approached him and offered sex for money. He said that he agreed and they then drove to the reserve and had sex. However, they were interrupted when his mobile rang and he decided that the sexual encounter was 'not going to work'. He claimed that the victim then became angry and abusive and refused to get back in the car so he drove off leaving her at the reserve.

22 Following JW's identification the police obtained a search warrant and searched his house. They found nine hydroponic cannabis plants weighing 17.9kg in total. JW pleaded guilty to one count of trafficking in cannabis by having the cannabis in possession for sale.

23 JW was 28 at the time of sentence. He is the youngest of 11 children. He had the support of his family during the trial and the plea. He left school in Year 9 at the age of 15. He initially worked for a catering company and fast food outlets. He then worked for a window blind manufacturer, eventually rising to a managerial role. At 19, he began a mechanic's apprenticeship, which he completed over four years. He is a qualified brake and underbody mechanic. At the time of sentence, he had left his employment to set up his own business working from home as a sub-contractor for a number of companies.

24 At the time of sentence, JW had been in a relationship with his girlfriend for seven years. She gave evidence at the trial and continued to support him, although the future of the relationship was apparently uncertain.

25 JW had a number of prior convictions. Most of them were driving-related. He had never previously served a gaol sentence.

26 The defence submission on the plea was that the case was 'something short of the worst case scenario and the worst category of offences'. Counsel acknowledged that the victim was young and would undoubtedly have been terrified and traumatised, but pointed out that:

JW had used a condom, so that there was no risk of pregnancy or sexually transmitted disease;
it was opportunistic offending, with no premeditation and little planning;
the case did not involve 'a long elongated kidnap or some sort of imprisonment or repeated assault';
it did not involve any perverse sexual practice or the use of a weapon; and
the offence was of relatively short duration.

27 Counsel drew attention to the Sentencing Snapshot for rape, published by the Sentencing Advisory Council in June 2009.[4] The Snapshot showed that, in the five years to 30 June 2008, the median sentence for rape was five years' imprisonment. (The median was the same in the five year period to 30 June 2010.[5]) On the plea the sentencing judge expressed surprise that this was so.

28 Her Honour noted in her reasons the following passage from DPP v Dowie:[6]

The identification of a term of imprisonment as the median means that, during the relevant period, half of the imprisonment terms imposed for the offence were shorter, and half were longer. Identification of the median cannot, however, be more than a starting-point in the determination of the sentence appropriate to the particular case. This is especially so with an offence such as rape where, as the Snapshot points out, imprisonment terms over the period 2001-2006 ranged from one year to 20 years ...[7]

29 Defence counsel pointed out that, in 60 to 70 per cent of cases covered by the 2009 Snapshot, the sentence for rape fell between four and five years. He submitted that the sentence in the present case should not be 'a sentence substantially above the median'. The case was not in 'a specially serious category ... where it has to be substantially out of step with other sentences for like offences'.

30 The prosecution submission on the plea was that the case fell at the 'higher end of the mid-range' of seriousness. Reliance was placed on the following matters:

the victim was young and vulnerable, as would have been readily apparent to JW;
his buying of condoms after picking up the victim showed premeditation;
over and above the inherent violence of rape, JW had acted violently by pushing the victim to the ground;
the offending was degrading and humiliating and it continued in the face of the victim's audible protests; and
after the rape was over, JW left the victim 'alone in a deserted and unknown location, knowing that she had no form of communication and no money'.

31 In her sentencing reasons, the judge expressed particular concern that, as soon as the victim had told JW that she was not a prostitute, he had decided to rape her:

I find it most concerning that you could so swiftly arrive at a determination in a sober state that you would rape your victim (and there is no evidence whatsoever of you doing other than practising trickery and then violence upon her, that is there is no evidence of you attempting to persuade her to have consensual sex with you after she refused your offer of paid sex). In other words it is quite clear on the evidence that you swiftly determined that you would rape your victim and that all your actions thereafter were directed towards achievement of that end.

Your rape of the complainant in a dark and remote area of the park, although not prolonged, was violent, demeaning and callous. You left her in a distressed, unclothed state with no means of transport or, on the evidence, of communication and that you had some awareness of what you were doing is borne out by the fact that you gave her some sort of direction as to a path before driving away. The complainant was left to make her way through the park in the dark undertaking a fairly lengthy walk in the aftermath of having been raped.

I find your actions to be callous in the extreme. In sentencing I do take into account the matters raised by your counsel. I do take into account that there were no surrounding circumstances of kidnap, false imprisonment, the affliction of lengthy or perverse sexual acts, the use of objects or the deliberate infliction of injury. In that respect your offending can be distinguished from more examples of this type of offence, but the features which I have found to be aggravating do in my view raise the seriousness of your offending beyond the median and in using this term I in no way seek to trivialise this most serious offence.

You are now deserving of a sentence falling in about the mid range. At the end of the day you have callously exploited the plight of a vulnerable young woman who if you did not know she was under 18 would certainly have impressed in my view as having been in her adolescence, albeit late adolescence.[8]

32 Her Honour noted that there was no evidence of remorse and that, in his conduct of the trial, JW had 'persisted at length with an unlikely version of events'. Having regard, however, to his lack of relevant prior convictions, his good work history, his family support and the apparent lack of any psychiatric difficulties, her Honour concluded that there were 'some prospects for rehabilitation'.

33 On the plea, the prosecutor submitted that CSP for rape were inadequate because they did not reflect the maximum penalty set by Parliament of 25 years, and that her Honour should therefore regard herself as unconstrained by CSP in sentencing JW. The inadequacy was said to be demonstrated by the fact that the median sentence for rape was five years' imprisonment. As noted earlier, her Honour expressed surprise that the median was 'only five years'.

34 The prosecutor referred to changing community attitudes about the effect of the offence and the position of the victim:

[T]he community is much more aware of a woman's right to have control over her own body, no matter what position she is in, including her state of intoxication, the situation that she places herself in and her right to say no at any given time.

The judge agreed: 'That's absolutely right. And the treatment of rape complainants has changed accordingly.'

35 The judge nevertheless rejected the submission that she should consider the adequacy of CSP:

I'm certainly not interested in being asked as a County Court judge to [declare that] the current sentencing practices are low and in error. ... I don't think that's the sort of pronouncement a single sentencing judge from this Court should make.

[I]t seems to me a strange way of going about turning around current sentencing practices, asking a County Court judge to turn around and say 'Well, notwithstanding the provisions of s 5 of the Sentencing Act I am to make some sort of declaration or determination that current sentencing practices are inadequate.'

That is something for the Court of Appeal to decide, not a County Court judge, and it is simply asking for litigation at a higher level. It is not the way to go about it.

36 As will be seen, the Director barely pressed the argument that, in the circumstances of this case, 'a different sentence should have been passed',[9] but focused instead, almost exclusively, upon the adequacy of current sentences for rape in this State.

37 At the commencement of the appeal hearing, the Chief Justice, speaking on behalf of the Court as a whole, voiced concern that some aspects of the Director's written submissions involved what her Honour described as elements of 'retrospectivity'. The Chief Justice further noted that the sentence under appeal in this case was in fact two years above the median (that being, as we have said, five years). Her Honour conveyed to senior counsel for the Director the provisional view of the Court that the sentence of seven years under challenge seemed to be 'within the range', save for anything that might be said about CSP for rape.

38 The Chief Justice went on to intimate that it might be said that this case was 'not a satisfactory vehicle' for the Director to appeal, particularly having regard to the fact that the principle of double jeopardy applied to its resolution. Her Honour then, on behalf of the Court, invited the Director, through his counsel, to consider a concession to the effect that no increase to the respondent's sentence would be sought solely on the basis of a 'retrospective' change to CSP.

39 After obtaining instructions, senior counsel for the Director (who, to be fair, had only been retained the day before the hearing of this appeal), clarified the Director's position. He said that he wished to amend the Notice of Appeal. He indicated that the Director would no longer seek to rely upon a number of the particulars set out in support of ground 1, which contended that the sentence was manifestly inadequate.[10] We infer that the particulars that were abandoned were either considered to be lacking merit or to be of insufficient strength in the circumstances of this case to warrant being pressed.

40 It is instructive to note that among the particulars so abandoned were claims that the sentence imposed had:

'failed to sufficiently punish the offender to an extent which is just in all of the circumstances' (1)(a);
'failed to sufficiently deter the offender or other persons from committing offences of the same or a similar character' (1)(b);
'failed to protect the community from the offender' (1)(d);
'failed to have sufficient regard to the offender's culpability and degree of responsibility for the offence' (1)(h); and
'failed to have sufficient regard to the impact of the offence upon the victim ...' (1)(i).

41 It may be seen, therefore, that the Director no longer sought to contend, in support of ground 1, that any of the matters set out above supported his submission that the sentence was manifestly inadequate. Rather, the Director confined that ground by relying solely upon the remaining particulars. These were that the sentence had:

'failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged' (1)(c);
'failed to have sufficient regard to the maximum penalty prescribed for the offences' (1)(e);
'placed too much reliance on current sentencing practices in respect to the offence of rape' (1)(f);
'failed to have sufficient regard to the nature and gravity of the offences' (1)(g);
'failed to have sufficient regard to aggravating features of the offending' (as specified) (1)(j); and
given 'too much weight to mitigating factors concerning the offender' (1)(k).

42 After amending ground 1 in this way, and specifically abandoning ground 2,[11] senior counsel for the Director turned his attention to ground 3.[12] He responded as follows to the concerns raised by the Chief Justice about 'retrospectivity':

And in the light of the matter raised by your Honour the Chief Justice when the matter was called on, the appellant recognises that if either Ground 1 as amended or Ground 3, or both grounds are made out, it would be open to this Court, keeping in mind the applicability to this appeal of the principle of double jeopardy, and the Bright principle, it would be open to this Court to exercise its undoubted discretion so as not to resentence the respondent to a higher sentence. That is a matter for the Court when it comes to the exercise of its discretion.

43 Counsel was then pressed further as to whether the Director was going to urge the Court to take a particular stance regarding any possible increase in the respondent's sentence, or whether the Director was simply leaving it to the Court to do whatever it saw fit, while noting specifically that the Court's residual discretion might be exercised in favour of dismissing the appeal. Counsel responded in these terms:

Perhaps I will reserve on that to hear what strong arguments [counsel for the respondent] has to put. But let me make no doubt - may the Court be under no misapprehension, this is a case where double jeopardy does apply. The Bright principle does apply. And the Court has an undoubted residual discretion ... the Court would keep in mind that which was said many years ago and has been repeated since, this Court on a Crown appeal does not tinker where [the] double jeopardy principle is applicable. Boxtel [1994] VicRp 54; [1994] 2 VR 98.

44 In our opinion, that answer made the Director's position regarding this appeal perfectly clear. In essence, the Director was not pressing for this sentence to be increased. The reference to this Court not 'tinkering' on a Crown appeal (particularly where the principle of double jeopardy was applicable), though expressed in somewhat 'coded' language, was unmistakable in that regard. It indicated plainly that the Director did not seriously contend that a different sentence should have been passed. If the Director's position were otherwise, he would have had to contend that nothing less than a sentence of the order of nine or ten years would have been appropriate, even if the respondent were to be sentenced in accordance with 'current sentencing practices'.

45 That would be a remarkable submission. It would mean that this particular respondent should have received a sentence of effectively twice the median for a single count of rape in circumstances where the actual offence was by no means significantly more heinous than other examples of this crime, and there were acknowledged to be a number of mitigating factors present.

46 Such a submission would also represent a significant departure from the way the case was put on the plea. It should be understood that, before the sentencing judge, the Crown put forward a MacNeil-Brown[13] range for this particular offence of between nine and 12 years with a non-parole period of between seven and nine years. However, that range was proffered solely on the basis that the judge could be persuaded to depart from current sentencing practices for this offence. If the Director's written submission in support of ground 1 were now to be accepted, the range put forward on the plea would have to be regarded as wholly misconceived. The Director's change of tack, as manifested by his shift from what was put below to what is now put, would itself be a powerful reason for dismissing this appeal.

47 It follows, as we have said, that ground 1 is without merit. Senior counsel for the Director sensibly recognised that fact, and did not press the point of manifest inadequacy with any vigour. This can be seen by the fact that the Director said almost nothing in either his written or oral submissions about the antecedents or personal characteristics of JW.

48 It also follows from what we have already said that we would dismiss ground 3, the ground concerned with CSP. Ground 2 having been abandoned, it follows that we will dismiss the appeal.

49 There are additional observations as to the Director's decision to appeal. Parliament has conferred upon the Director the right to bring an appeal against a sentence thought to be inadequate. However, the exercise of that right is conditioned upon strict criteria. Pursuant to s 567A of the Crimes Act 1958 (which governs the disposition of this appeal, the respondent having been sentenced before s 287 of the Criminal Procedure Act 2009 came into force),[14] the Director himself must consider 'that a different sentence should have been passed'. He must also be 'satisfied that an appeal should be brought in the public interest'.[15]

50 In our view, s 567A is concerned with the sentence which should have been passed by the sentencing judge. The sentencing judge was, of course, required by s 5(2) of the Sentencing Act 1991 to have regard to, inter alia, 'current sentencing practices'. Section 567A did not envisage appeals at large or encompass appeals brought solely to alter one of the factors which sentencing judges in this State are required to take into account.

51 It is difficult to see how the Director arrived at the conclusion that 'a different sentence should have been passed' in relation to JW. That conclusion could only have been reached if the Director regarded the sentence imposed on this respondent as manifestly inadequate. At the same time, the Director was well aware of the approach this Court always adopts in dealing with any such contention.

52 The principles according to which an appellate court will interfere with the exercise of a sentencing discretion are well established. The first point to note is that 'a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion'.[16] It is only when a court of criminal appeal is convinced that the sentence is 'definitely outside the appropriate range' that it is justified in interfering with the sentence upon this ground.[17]

53 It is worth recalling what Gleeson CJ and Hayne J said in Dinsdale v The Queen:[18]

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification ...

54 The necessarily evaluative judgment made by the sentencing judge - that the offence warranted the sentence that she imposed - was not one that could be said to be obviously wrong or not open to her. That being so, the sentence could not be viewed as manifestly inadequate. Of course, minds could reasonably differ as to the question where in the range of seriousness all the circumstances fell, and also whether a higher sentence might not perhaps have been appropriate. Another judge might have imposed a longer sentence. That said, we would not regard this sentence as particularly lenient, nor as particularly harsh. Putting to one side the Director's contention that CSP for rape require significant adjustment, there was nothing at all untoward, or unusual, about this sentence. Perhaps all that is noteworthy about it is that it is significantly longer than the median sentence for rape which currently applies in this State, namely an undifferentiated figure of five years.[19]

55 The Director set himself the ambitious task of universally impugning sentences in all circumstances, from the least to the most serious examples of rape. However, no detailed argument was before the Court in relation to any of these categories. At their highest, the Director's submissions involved placing before the Court four folders of sentencing decisions and asserting that, speaking for themselves, such decisions were inadequate. What happened next was that the Director, through counsel, submitted that a 'quick reading' of those folders proved the point. Counsel said:

Now, what we say by way of submission is this. An examination, indeed a quick reading of all those folders of all of those cases which have been filed with the Court, demonstrates in our submission, that the sentencing courts in this state are not using or taking into account, or dealing with, the prescribed maximum penalty for the offence of rape ... Because when one reads all those cases the description of the gravity of the offending, all the circumstances ... the submission is that the prescribed maximum penalty has not been dealt with as required ...

56 Plainly enough, a 'quick reading' would never have been sufficient to do justice to material of this scale, less still to a question of such breadth and scope. The Court therefore devoted considerable time and effort to its review of the volumes of decisions provided. In the event, however, that review served only to reinforce the conclusion expressed elsewhere in these reasons, that it was the CSP question, and not the sentence under appeal, which was the driving force behind the institution of the appeal.

57 The Director's decision to bring this appeal is rendered even less explicable when regard is had to the fact that its disposition is governed by the legislative regime that prevailed under the Crimes Act 1958, and not the new provisions under the Criminal Procedure Act 2009. That means that the significant constraints upon Crown appeals recognised by this Court in cases such as R v Clarke[20] and Director of Public Prosecutions v Bright[21] are applicable (as a number of them would be, in any event, under the new regime).[22] Critically, so too is the principle of double jeopardy.

58 Applying the principles laid down in those cases, it cannot be said that the sentence was so disproportionate to the seriousness of the crime as to 'shock the public conscience'.[23] Nor can it be said that the sentence 'undermine[s] public confidence in the ability of the courts to play their part in deterring the commission of crimes'.[24]

59 Under the former legislative regime, Crown appeals were regarded as having a 'rare and exceptional' character.[25] That called for restraint on the part of an appellate court, even where manifest inadequacy could be demonstrated. Moreover, it was accepted that this Court at all times had an overarching discretion not to interfere even if satisfied that the particular sentence under appeal was inadequate.

60 As a result of the enactment of the Criminal Procedure Act 2009, the scope of that residual discretion has been narrowed.[26] Nonetheless, the discretion itself has survived, though perhaps in a somewhat attenuated form. More relevantly, so far as this appeal is concerned, the principles set out in cases such as Bright[27] are applicable, as of course is the doctrine of double jeopardy. So much was conceded by the Director. It follows that there were a number of significant obstacles to overcome if the Director was to succeed in this appeal.

61 JW was entitled to have his case considered by the Director on its merits. Unless the Director legitimately formed the view that the sentence imposed upon him was not merely inadequate, but manifestly so, and required a very significant adjustment, he had no business instituting this appeal. It would be quite wrong to treat JW merely as the 'vehicle' by which the Director could mount a broad and far-reaching attack upon sentencing practices in this State.

62 There is either a good case to be made for significantly increasing a sentence imposed at first instance upon a particular offender, or there is not. In a broader sense (and by analogy with basic constitutional principle), the jurisdiction of this Court is engaged only when there is a 'matter' before it that is properly capable of giving rise to the exercise of judicial power. An appeal against sentence should not be brought essentially as an excuse to have this Court determine matters of an abstract nature, important though they may be. It must be clear, before the jurisdiction of this Court is invoked, that nothing in the nature of an advisory opinion is being sought, but rather a resolution of a dispute between the actual parties to the case.

63 Nothing set out above in any way casts doubt upon the proposition that this Court is perfectly entitled, in an appropriate case, to express its views as to the adequacy of current sentences for this, or any other offence.[28] It is the role of this Court to lay down principles for the governance and guidance of courts having the duty of sentencing convicted offenders. However, that task must be approached with caution and performed with great care. We emphasise that it should be carried out only where it is appropriate to do so.

[1] The abbreviation is used for ease of reference, not for anonymity.

[2] Appeals against sentence by the Director of Public Prosecutions are now governed by s 287 of the Criminal Procedure Act 2009 (Vic).

[3] [2010] VSCA 350, [127] (citations omitted) ('Karazisis').

[4] Sentencing Advisory Council, Sentencing Snapshot No 83: Sentencing Trends for Rape in the Higher Courts of Victoria (June 2009).

[5] Sentencing Advisory Council, Sentencing Snapshot No 117: Sentencing Trends for Rape in the Higher Courts of Victoria (November 2011).

[7] See also DPP v Moses [2009] VSCA 274, [30].

[8] R v Werry (Unreported, County Court of Victoria, Judge Gaynor, 16 Septmber 2009), [44]-[46] (emphasis added).

[9] Crimes Act 1958 s 567A (repealed).

[10] Ground 1, in its original form, actually challenged the total effective sentence of seven years and one month. One month of a four month sentence for trafficking a small quantity of cannabis was ordered to be served cumulatively upon the sentence of seven years for rape. The Director no longer contends that the sentence of four months' imprisonment for that offence, or the cumulation of one month, was inadequate.

[11] Alleging inadequacy with respect to the orders for cumulation.

[12] Which expressly alleged that current sentencing practices for penile-vaginal penetration are inadequate and therefore sentencing judges should only have limited regard to past sentences when determining the appropriate sentence for rape.

[14] The respondent was sentenced on 16 September 2009. Section 287 of the Criminal Procedure Act 2009 came into force on 1 January 2010. Under the transitional provisions of the Criminal Procedure Act 2009, Div 3 of Pt 6.3 (which includes s 287) 'appl[ies] to an appeal where the sentence is imposed on or after the commencement day.' '[C]ommencement day' is defined as the 'day on which this Act (other than Ch 1) ... comes into operation', namely 1 January 2010: sch 4 s 10(4).

[15] Crimes Act 1958 s 567A (repealed). Section 287 of the Criminal Procedure Act 2009 is in different terms. It confers upon the Director the right to appeal against sentence if the Director 'considers that there is an error in the sentence imposed and that a different sentence should be imposed; and is satisfied that an appeal should be brought in the public interest'. See also Rhode v DPP [1986] HCA 50; (1986) 161 CLR 119, 125 (Gibbs CJ, Mason and Wilson JJ).

[16] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-2 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ) citing House v The King [1936] HCA 40; (1936) 55 CLR 499.

[17] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 306 (McHugh J) ('Everett').

[19] Sentencing Advisory Council, Snapshot 83: Sentencing Trends for Rape in the Higher Courts of Victoria (June 2009). The figure is described as undifferentiated because it does not distinguish between sentences based on pleas of guilty and those following findings of guilt after a contested trial.

[22] DPP v Hill [2012] VSCA 144 explaining the effect of Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14.

[23] Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA). We note that the Sentencing Council in England has fixed five years as the appropriate 'starting point' for the offence of rape: Sentencing Guidelines Council, Sexual Offences Act 2003: Definitive Guideline (2007) 23. That figure of five years is predicated upon there being a not guilty plea, and therefore a contested trial. It strongly suggests that the distinguished members of that Council (who include the Lord Chief Justice of England, and other senior members of the judiciary) would not regard the sentence of seven years' imprisonment imposed upon the respondent in this case as so low as to bring the administration of justice into disrepute. It also suggests that the English body would regard the median sentence of five years for rape in this State as perfectly acceptable.

[24] Everett [1994] HCA 49; (1994) 181 CLR 295, 306 (McHugh J).

[25] Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 (Redlich JA).

[26] See, generally, Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14.

[28] Ashdown v The Queen [2011] VSCA 408 in particular, Redlich JA (with whom Maxwell P and Ashley JA agreed on the point), [180]-[184].

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