DPP v White [2020] VSCA 37

CRIMINAL LAW - Appeal - Sentence - Director's appeal - Manifest inadequacy - Whether test for manifest inadequacy substantively reformulated - HT v The Queen (2019) 93 ALJR 1307 considered - DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634 applied - Test for manifest inadequacy unchanged.

1 On 11 June 2001, the respondent ('JW') shot and killed John Christianos. Mr Christianos was an employee of JW. He was shot twice in the upper body and, almost certainly, died instantly.

2 Thereafter, JW took steps to conceal Mr Christianos' body. He was so successful in that regard that Mr Christianos' body was not discovered until some 17 years later. JW was initially charged with murder, but offered at an early stage to plead guilty to the lesser offence of manslaughter. The Crown accepted that offer.

3 Ultimately, he was sentenced on 20 June 2019 as follows:

[Common law] Crimes Act 1958 s 5

8 years' imprisonment with a non-parole period of 6 years

4 The Director of Public Prosecutions has appealed against that sentence on the ground of manifest inadequacy. For reasons that follow, we would allow the appeal, set aside the sentence imposed below and resentence JW to a term of 9 years' imprisonment. We would fix a non-parole period of 6 years.

5 On 11 June 2001, Mr Christianos was shot and killed at JW's business premises, in Malvern East, known as 'Memorabilia Headquarters'. JW fired two shots from a semi-automatic pistol into the chest and armpit of Mr Christianos. That weapon had been acquired some time earlier, and the Crown did not dispute JW's assertion that he had obtained it for self‑protection and, more specifically, to defend himself from Mr Christianos.

6 At the time of the offending, JW was aged 45. He ran a successful business which specialised in selling sporting memorabilia and art. Mr Christianos had, by then, worked for JW for about two years, as a graphic artist. He had lived, for a time, at the Malvern East premises.

7 The business arrangement between the two men was that Mr Christianos would produce original paintings of sporting personalities. He would then sell these to JW who would, in turn, produce and sell prints to members of the public. In addition, Mr Christianos undertook renovation work around the business premises, for which he would be paid in cash.

8 The arrangement worked well for about three months. However, Mr Christianos had a tendency to drink excessively, and he would then become aggressive and abusive. This led to a strained relationship between the two men.

9 In early 2000, JW hired a new employee, Nick Maniatis. At this stage, Mr Christianos was still living at the back of the shop in Malvern East. According to Mr Maniatis, Mr Christianos felt threatened by his presence, and had become 'territorial'.

10 In about May 2000, JW purchased a caravan which he located in the backyard of his business premises. Mr Christianos moved into the caravan. In turn, JW moved into the back of the shop. Mr Christianos retained a key to the shop, however, and could access it at any time.

11 The relationship between the two men became further strained by Mr Christianos' belief that he was entitled to money that JW was withholding from him.

12 In January 2001, JW assisted Mr Christianos to move from the Malvern East shop to a boarding house in Bentleigh East, known as 'Gaynor Lodge'. The owner and operator of that boarding house, Gail Robertson, said that she would often hear JW and Mr Christianos arguing about money. In the days leading up to the commission of this offence, Mr Christianos was frequently seen by acquaintances to be 'drunk' or 'tipsy'. He also had been behaving in an erratic manner.

13 On 8 June 2001, Mr Christianos was drinking at a hotel in Oakleigh when he became involved in an altercation with another patron. The manager of the hotel described him as having been 'really aggressive'. Mr Christianos returned to the hotel the following day to apologise for his behaviour.

14 On 11 June 2001, Mr Christianos and JW were drinking together at the Malvern East shop. They became involved in what seems to have been a heated argument. According to JW, Mr Christianos, without any provocation, came at him with a knife. As we have said, JW then shot Mr Christianos twice, once directly in the chest, and once in the axilla (or armpit) area.

15 JW then took elaborate steps to conceal what he had done. He put Mr Christianos' body into a 'wheelie bin', and filled it with tanbark and soil. That bin was then placed into an Australia Post sorting trolley. The trolley was taken to a self-storage facility in Oakleigh South, which JW had previously leased, and which he used to store memorabilia and other paraphernalia associated with his business. It sat there, undiscovered, for the next 17 years.

16 On 15 June 2001, Ms Robertson contacted JW. She expressed concern regarding Mr Christianos' whereabouts. The following day, JW went to Gaynor Lodge and spoke with her. He asked to examine Mr Christianos' room, pretending that there might be something there which would indicate where Mr Christianos had gone.

17 JW told Ms Robertson that Mr Christianos had been suicidal. She told him that she proposed to contact the police, and report Mr Christianos as a missing person. JW sought to dissuade her, and asked her whether that was really necessary. However, later that same day, she contacted police, and told them about Mr Christianos' sudden disappearance.

18 When questioned by police, JW gave at least four separate, and widely divergent, accounts regarding his last dealings with Mr Christianos. On 18 June 2001, JW told police that he had last seen Mr Christianos a week earlier, on 11 June 2001. He said that they had been together between 4:00 pm and 6:15 pm at the Caulfield Tabaret. A week later, on 25 June 2001, JW told police that he had last seen Mr Christianos on 8 June 2001, at the Malvern East shop. He said that they had had a couple of drinks together, before Mr Christianos went off to a print shop.

19 On 3 September 2001, JW changed his account yet again. He reverted to his original statement that he had last seen Mr Christianos on 11 January 2001 at the Caulfield Tabaret. However, he now said that this was 'around noon', and not between 4:00 pm and 6:15 pm, as he had previously claimed.

20 Finally, on 2 January 2002, JW gave police yet another version of his last involvement with Mr Christianos. He said that he had last seen Mr Christianos on 11 June 2001 at the Caulfield Tabaret, but this time, at about 3:30 pm. He said that they had met at Mr Christianos' invitation. He added that during that afternoon, he had seen Mr Christianos speak to a man who appeared to be aged in his 60s. Mr Christianos told the man that he would 'fix him up with money later'. According to JW, he and Mr Christianos then both returned to the Malvern East shop. Mr Christianos left shortly afterwards, but returned later that evening. JW claimed that Mr Christianos had handed him a handwritten letter, and then left with an unknown man. JW had not seen him since.

21 In July 2018, staff at the self-storage facility cleared out the unit. It was at that point that Mr Christianos' body was discovered. Despite the fact that no rent had been paid on the storage unit for many years, it had not been accessed since 2001.

22 A post‑mortem examination revealed that Mr Christianos had a small fracture to the left cheekbone, and a fracture to the right-hand side ninth rib. One bullet was located in the left chest area, and another in the right axilla. Both were .25 copper bullets with full metal jackets. Each had been fired from the same .25 semi‑automatic pistol. The post-mortem examination also revealed the presence of methamphetamine, amphetamine, ketamine and norketamine in Mr Christianos' body.

23 By the time the body was discovered, JW was living in Queensland. On 30 July 2018, police began monitoring his telephone communications. On 1 August 2018, an acquaintance rang JW and informed him that police had discovered Mr Christianos' body in his storage unit. JW was recorded as saying that Mr Christianos was a 'nutcase'. He claimed that Mr Christianos had attacked both his brother and himself. He also said that he would 'tell the truth when the police come'.

24 On 16 August 2018, JW was interviewed by police regarding the circumstances surrounding the death of Mr Christianos. During the course of that interview, he detailed the relationship he had had with Mr Christianos and how it had become strained as a result of Mr Christianos' alcohol problems. He freely acknowledged, at that stage, that he had shot and killed Mr Christianos. He claimed, however, that Mr Christianos had come at him with a knife and that he had acted in self-defence.

25 JW was charged with murder and extradited to Melbourne. On 23 October 2018, he was again interviewed by police. On this occasion, he told them that one of his brothers, Michael Theodore, who had since died, had been in the caravan while JW and Mr Christianos were drinking in the backyard of the Malvern East shop. He claimed that his brother had shot Mr Christianos when he heard the men arguing, and saw Mr Christianos approach JW, armed with a knife.

26 On the plea, the prosecutor submitted that there were two significant aggravating features of the offending. The first was JW's numerous lies to police about the circumstances surrounding Mr Christianos' disappearance. The second was the steps he had taken to dispose of and conceal Mr Christianos' body. The prosecutor added that JW's having unlawfully acquired a pistol in anticipation of using it to shoot Mr Christianos made this offence 'a very inherently dangerous example of unlawful and dangerous act manslaughter.'

27 Defence counsel noted that JW had no relevant prior convictions. He had had a disadvantaged upbringing, but had managed to work all his life to support his family. He had also achieved success in his business endeavours. Further, it was submitted that Verdins[1] principles five and six were applicable to JW's case.[2]

28 Counsel conceded that there were aggravating features associated with this particular offence. On the other hand, he submitted, the offending had occurred in a context where Mr Christianos had been argumentative and violent, and had brandished a knife. This caused JW to have had 'every reason to fear, based on ... past experience.' Counsel referred to a decision of this Court in Director of Public Prosecutions v Yucel,[3] where a sentence of 5 years' imprisonment with a non-parole period of 3 years for unlawful and dangerous act manslaughter had been permitted to stand in the face of a Director's appeal. He submitted that there were similarities between JW's case, and that of Yucel.

29 Counsel submitted that JW's prospects of rehabilitation were 'truly excellent'. JW had led a law abiding life in the 17 years or so after the offending. In the unusual circumstances of this case, it was said, specific deterrence was not a significant sentencing consideration.

30 The prosecutor responded that Yucel was not in any way comparable to JW's case. He noted that Yucel had attempted, on a number of occasions, to leave Australia in an effort to avoid the person whom he ultimately killed. Yucel was a truly borderline case, it was said, in the sense that the offender there had available to him an entirely viable defence of self-defence, which he had foregone. Unlike that offender, JW had continued to socialise and interact with the deceased, even after regarding him as posing some kind of threat. He took no steps to avoid, or minimise, that threat. Instead, he responded to it by unlawfully acquiring a firearm. That made this case entirely different from Yucel.

31 Unusually, the sentencing judge commenced his reasons for sentence by referring, in detail, to the various victim impact statements made by relatives of Mr Christianos. He highlighted the fact that Mr Christianos' family had 'suffered, and will continue to suffer, greatly as a consequence of his death...'[4]

32 The judge then turned to JW's background. He noted that JW, from a very young age, had been a ward of the State. He had suffered sexual abuse at the hands of the Christian Brothers, in whose care he had been placed.

33 JW first made contact with his father at the age of 14. Indeed, he went to Warrnambool to live with him. His father turned out to be a chronic alcoholic who was abusive when drunk. About a year later, JW returned to Melbourne, where he moved in with his mother. He left school at an early age and assumed the role of provider and carer. He looked after his mother, grandmother, and sister. He had a number of jobs throughout his adolescence, and contributed significantly to the family's financial wellbeing.

34 During his 20s, JW worked intermittently. He sent money, when he could, to assist his mother and sister. At the age of 28, he returned to Melbourne and moved in with his mother and sister. In the early 1990s, he established his successful sporting memorabilia business, which grew rapidly. As we have said, it was in that context that he first encountered Mr Christianos in 1999.

35 In 2011, JW moved to Queensland in order to support his brother, who was then suffering from a terminal illness. He also arranged for his mother to join him in Queensland, so that he might better care for her.

36 The judge then turned to JW's prospects of rehabilitation. He noted that, for all practical purposes, JW had no relevant prior convictions. He accepted that JW had led a law abiding life from 2001 to the time of his arrest in 2018. The judge said that it was 'highly unlikely that [JW] would commit a further crime involving violence at any time in the future'.[5] He also noted that JW had a number of 'glowing' character references.[6]

37 His Honour then outlined in some detail the circumstances surrounding Mr Christianos' upbringing. He referred to Mr Christianos' various drug-abuse issues. It is unnecessary, for present purposes, to set out what his Honour said about these matters. It is sufficient simply to note that Mr Christianos had a dysfunctional background, and that he had engaged, on a number of occasions, in violent and aggressive behaviour.

38 The judge finally turned to the circumstances of the offence, and the events both leading up to, and after, its commission. He noted that the crime of manslaughter was 'very serious', especially when committed with an unlawful handgun.[7] He observed that the offending required just punishment and consideration of protection of the community. He added that general deterrence weighed heavily in relation to this type of offending.

39 The offender had taken the law into his own hands by obtaining and using an unlawful firearm, thereby bringing about the death of Mr Christianos. At the same time, he said, that the gravity of the offence and JW's moral culpability were reduced by reason of the previous threats made to him by Mr Christianos. His Honour accepted that JW faced a 'real and immediate threat' at the time he shot and killed Mr Christianos.[8] He characterised this as rendering JW's actions as 'defensive in character'.[9]

40 In dealing with what weight should be accorded to the lies that JW told to police and others, and his elaborate concealment of the body, the judge accepted that JW had demonstrated remorse for his actions but said that there were 'complications' associated with that finding.[10] It was difficult to reconcile JW's post‑offence conduct with any genuine remorse.

41 The judge noted JW's early guilty plea, saying that it would give rise to a discount on the sentence to be imposed. He observed that the plea meant that JW had given up 'the ability to pursue a possible viable defence of self‑defence' as a complete answer to any charge of unlawful homicide.[11]

42 The judge finally turned to the burden of imprisonment upon JW. He observed that it was common ground that imprisonment would weigh more heavily on JW in this case, having regard to his institutionalised upbringing in State care, and the trauma associated with what had been done to him as a child.

43 Senior counsel for the Director submitted that, objectively speaking, this offence was particularly grave. JW had obtained an illegal firearm and had kept it on his person whilst in the company of Mr Christianos. Counsel submitted that this indicated a measure of premeditation. Further, she pointed to the callous manner in which JW had disposed of the body; his elaborate concealment of his involvement in Mr Christianos' disappearance; and the many lies he told police and others.

44 Counsel next submitted that the judge's acknowledgment of the previous threats made by Mr Christianos, and the 'real and immediate threat' which he presented to JW before being shot, indicated that his Honour had 'excessively reduced the objective gravity of the offending and the moral culpability of the respondent'. She also submitted that his Honour had given excessive weight to the fact that the respondent had foregone the possibility of 'a viable case of self‑defence'.[12] The submission cast doubt on the extent to which any such case would, in truth, have been viable. Counsel pointed out that, by virtue of the plea of guilty to manslaughter, JW had accepted either that his having shot Mr Christianos was not necessary to defend himself or that, even if he believed it was necessary to discharge the firearm, that belief was not based on reasonable grounds. Moreover, on any view, his actions were grossly disproportionate to any danger that he may have faced.

45 It was argued, as it had been on the plea, that Yucel was not an appropriate comparator. The offender in Yucel had available to him an extremely powerful defence of self-defence, which he had voluntarily foregone. In addition, there were genuine doubts as to whether, when he shot the victim, he intended to cause him serious injury, still less, 'really' serious injury. Yucel had to be regarded as being at the lowest end of unlawful and dangerous act manslaughter.

46 The present case was very different, it was said. JW had fired twice at the chest of Mr Christianos (almost certainly from reasonably close range). Accepting that JW had to be sentenced on the footing that he did not have murderous intent, it should be concluded that, at the very least, he intended to cause serious injury.

47 Finally, counsel submitted that JW's efforts to conceal the body, and the numerous lies that he told, should be regarded as aggravating features, thereby increasing the objective gravity of the offending. She submitted that his post-offence conduct bore upon his moral culpability. Alternatively, and at the very least, that conduct bore upon the weight to be accorded to remorse, as a mitigating factor.

48 Reference was made in argument to the decision of this Court in Director of Public Prosecutions v Ristevski,[13] where it was said that concealment and lies should be regarded, at least in the circumstances of that case, as significant aggravating factors.[14] Senior counsel for the Director acknowledged that JW's conduct did not fall into Ristevski's category of egregiousness. In particular, it lacked the features of cruelty and hypocrisy so powerfully present in that case.

49 Senior counsel for JW (who did not appear on the plea) submitted that the Director should not now be permitted to attach a label to the objective gravity of the offending, such as 'high', when the judge was never asked to make any such finding, and did not do so. Since the only ground of appeal was manifest inadequacy, it was said, it was not open to the Director to attack the judge's assessment of the objective gravity of the offence. For the same reason, this Court should proceed on the basis of the findings of fact made below.

50 In those circumstances, it was submitted, the offence could not be characterised as one of 'high' objective gravity. Rather, it should be viewed as relatively low on the scale of seriousness. Particular reliance was placed upon the judge's finding that JW's actions had a 'defensive character'. This was said to reduce considerably the objective gravity of the offence. Counsel reminded the Court of the judge's finding that Mr Christianos, armed with and brandishing a knife, 'came at' the respondent.

51 Counsel further submitted that no inference could be drawn as to JW's exact state of mind at the time he shot and killed Mr Christianos. It was likely that he had been drinking heavily. He submitted that that what occurred should be regarded as akin to an 'accidental discharge' of a weapon. Counsel maintained that submission even when it was pointed out that the gun had been fired not just once, but twice.

52 According to that submission, no finding could be made as to the intent with which JW had acted, other than that he had 'acted consciously, voluntarily and deliberately'.[15] Neither the sentencing judge, nor this Court, could approach this matter on the basis that JW had even intended to injure Mr Christianos. All that could be said was that JW intended to fire the weapon in the general direction of Mr Christianos to protect himself.

53 Counsel next argued that the sentencing judge had fully appreciated the seriousness of this offending. In particular, his Honour had recognised that pointing a loaded pistol at another, and causing it to discharge, meant that JW's actions were, objectively speaking, to be viewed as dangerous. But the level of 'dangerousness' associated with that act should be viewed, relatively speaking, as at the lower level.

54 In addition, it was submitted, that the judge had correctly identified the powerful mitigating factors that were present in this case, as follows:

• the plea of guilty, which had considerable utilitarian value;
• the respondent's remorse which, despite the 'complications' associated with his having concealed the body and the lies that he told, was nonetheless genuine;
• the respondent's prior good character, including the powerful testimonials that were placed before his Honour on the plea;
• the burden of imprisonment, given the respondent's age (now 63), and the fact that this was his first time in custody;
• the additional burden of imprisonment arising out of the respondent's dysfunctional upbringing, and unfortunate history; and
• the respondent's prospects of rehabilitation, which were described as 'extremely good'.[16]

55 The alternative submission was that, even if this Court concluded that the sentence imposed was manifestly inadequate, this was a proper case for the exercise of the 'residual discretion' to decline to intervene.[17] The written case foreshadowed reliance on evidence of JW's physical and mental health in support of the exercise of the discretion. Further, according to the written case:

The primary purpose of Crown Appeals against sentence is to lay down principles for the governance and guidance of sentencing courts. That purpose can, in this particular case, be achieved to a very significant extent by an unequivocal statement by this Court that the sentence imposed was wrong, and why it was wrong, with the consequence that it is not necessary for this Court to proceed to impose a different sentence upon the Respondent. Put simply, the purpose of Crown appeals will not be served by allowing this Appeal and re-sentencing the Respondent to a higher sentence.[18]

56 Thirdly, reliance was placed on what was said to be the failure of the prosecutor on the plea to provide adequate assistance to the sentencing judge. The relevant part of the transcript of the plea reads as follows:

[PROSECUTOR]: By way of comparative cases, Your Honour's obviously had regard to Russo. I was aware of Russo but I don't know what the decision - - -

HIS HONOUR: He was dismissed.

[PROSECUTOR]: That was a Crown appeal, as I understood it.

HIS HONOUR: Yes.

[PROSECUTOR]: Russo was in, as I - - -

HIS HONOUR: It was a negligent manslaughter case too.

[PROSECUTOR]: Yes, and there is a whole range of cases that involved the accidental discharge of a firearm, and the sentences for those range from as high as nine years to - with a six in a case called Osborn, Your Honour, 2017 VSCA - VSC 535, to a very low sentence - if Your Honour will just bear with me - in a case called Osip, Your Honour, which - where I think the minimum was down as low as one.

HIS HONOUR: Yes, that was referred to in this decision.

[PROSECUTOR]: Yes.

HIS HONOUR: In Russo.

[PROSECUTOR]: I think this whole series of cases of Rapovski, Osip, [Osborn], D'Angelo and others will no doubt all be referred to in the case of Russo, because I know they were argued on appeal, and they're of the species of cases where there's people involving drug use of accidentally [discharging a] firearm. So I suppose they're not - they don't fit the facts necessarily of this particular case, but they're nevertheless perhaps reference points for Your Honour to look at in relation to the sentence in this matter.

57 In this Court, counsel for JW submitted that his case 'fits in perfectly with Russo.'[19] He also added that the prosecutor on the plea, in reference to R v Osip;[20] R v D'Angelo;[21] R v Rapovski;[22] and Director of Public Prosecutions v Osborn,[23] had failed to refer the sentencing judge to:

relevant principles, features, factors of particular relevance in establishing or determining the gravity of this offence committed by this respondent is higher than that which was the subject of the reasons for sentence below.

58 Counsel further submitted that, due to the broad spectrum of sentences that could reasonably be imposed for the offence of manslaughter:

the prosecutor is very much under a positive obligation to make submissions to the sentencing judge concerning the ... objective gravity of the particular offence of manslaughter committed by the offender, and the means by which the judge may assess and determine that gravity.

Has the test for 'manifest inadequacy' changed?

59 During oral argument, senior counsel for JW drew attention to the recent decision of the High Court in HT v The Queen.[24] It was said that this decision had 'raised the bar' significantly in relation Crown appeals against sentence. According to the submission, the High Court in HT had changed the test on all Crown appeals, so that an additional hurdle now had to be overcome before any appeal based on manifest inadequacy could succeed.

60 As a result of HT, it was no longer sufficient on a Crown appeal (assuming it ever had been), merely to establish that a sentence was manifestly inadequate. The Crown also had to demonstrate that the sentence, on its face, would 'constitute an affront to the administration of justice' if it were permitted to stand.[25]

61 For the reasons which follow, we are not persuaded that there has been any change to the test. It has been well settled for some time in this State that for the ground of manifest inadequacy to succeed, it is not enough that this Court form a different view about what the sentence(s) should have been. It is necessary to show that it was 'not reasonably open' to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and the offender.[26]

62 HT was a case which was concerned primarily with a denial of procedural fairness by the New South Wales Court of Criminal Appeal. The appellant claimed that she had been denied procedural fairness when she and her legal representatives were refused access, on public interest immunity grounds, to an un‑redacted copy of a relevant exhibit. In the course of addressing that complaint, Kiefel CJ, Bell and Keane JJ said:

The principal issue before the Court of Criminal Appeal on the Crown appeal was whether the sentence which had been imposed on the appellant was so manifestly inadequate as to constitute an affront to the administration of justice such that the discretion to vary the sentence should be exercised.[27]

63 Their Honours footnoted this proposition with references to Green v The Queen[28] and CMB v Attorney-General (NSW).[29] We turn to the particular passages in those judgments to which their Honours referred in those footnotes.

64 Green shows that the notion of 'an affront to the administration of justice' is by no means unknown in the area of sentencing law. Of course, similar language has been used in other areas of the law, for example, abuse of process.[30] So far as we are aware, however, the precise notion of 'an affront to the administration of justice' has not previously been regarded as having imposed an additional requirement upon the Crown in order to succeed on an appeal against the inadequacy of a sentence.

65 In Green, French CJ, Crennan and Kiefel JJ, were dealing with the specific issue of parity between sentences imposed on co-offenders when they said:

A case might arise in which the Court of Criminal Appeal concludes that the inadequacy of the sentence appealed from is so marked that it amounts to 'an affront to the administration of justice' which risks undermining public confidence in the criminal justice system. In such a case the Court would be justified in interfering with the sentence notwithstanding the resultant disparity with an unchallenged sentence imposed on a co-offender.[31]

66 In CMB, French CJ and Gageler J were dealing with the question whether a sentence should be increased on the ground of manifest inadequacy. Their Honours did not use the language of 'an affront to the administration of justice' but said:

Within the framework provided by the explanation of the nature of an appeal under s 5D of the Criminal Appeal Act given by Barwick CJ in Griffiths v The Queen, two considerations weighed strongly against interference with the sentence which had been pronounced by Judge Ellis. One was that highlighted by the DPP in his publicly stated reasons for not appealing: that the peculiarity of the circumstances rendered the decisions of both the District Court and the Court of Criminal Appeal of no precedential value. The case, although one of manifest inadequacy of sentence, was therefore not one in respect of which it could be said that 'to decline to intervene would have been to perpetuate a manifest injustice'.[32]

67 In our view, neither Green nor CMB provides any support for the proposition that the Crown must now meet a separate and additional requirement, apart from demonstrating manifest inadequacy, in order to succeed on an appeal against sentence.

68 There have certainly been statements, in the past, to the effect that a Crown appeal against sentence should not be viewed as merely 'the other side of the coin' to an applicant's appeal alleging manifest excess. Intermediate appellate courts have, from time to time, added a gloss to the burden resting upon the Crown in such cases. So, for example, it has been said that to succeed on an appeal based on manifest inadequacy, it is necessary to show that the sentence imposed below, if left undisturbed, would 'shock the public conscience'.[33] Plainly, that formulation is closely akin to the notion of 'an affront to the administration of justice'.

69 Given the importance of any substantive alteration to the test of manifest inadequacy, it is to be expected that the High Court would express in the clearest terms any intention to bring about a change, and would do so by reference to the course of High Court authority on the subject. The passing reference in HT discloses no such intention..

70 For these reasons, we proceed on the basis that the test now is, as it has always been, whether it was open to the sentencing judge, acting reasonably, if proper weight had been given to all of the relevant circumstances of the offending and the offender, to come to the sentencing conclusion which he or she did. HT did not, in our respectful opinion, add a further requirement of establishing 'an affront to the administration of justice'.

71 In any event, a sentence which is wholly outside the permissible range of sentencing options can properly be said to be 'an affront to the administration of justice'. A similar point was made by White J[34] in Director of Public Prosecutions (SA) v Ossitt:[35]

The imposition of a sentence which is not authorised by law is an affront to the administration of justice. Sentencing courts must act according to law. To allow a sentence not authorised by law to stand would not achieve the purposes of the criminal law and would undermine public confidence in the courts.[36]

72 Likewise, a sentence that is not reasonably open, if proper weight had been given to all relevant circumstances of the offending and the offender, is necessarily a sentence that, if permitted to stand, is likely to constitute an affront to the administration of justice. Subject to the possible exercise of the residual discretion in a Crown appeal, it is a sentence that must be set aside.

73 As noted earlier, the principles relating to Crown appeals against sentence were authoritatively stated by this Court in Karazisis:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. 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.

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

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[37]

74 Having regard to the circumstances of the offending and JW's post-offence conduct, a sentence of 6 years and 6 months' imprisonment, with a non‑parole period of 3 years and 6 months, would have to be regarded as extraordinarily lenient. Even having regard to all of the mitigating factors that were present, we consider the sentence imposed by the judge below to have been wholly outside the range reasonably available.

75 The objective gravity of this offending called for a stern response, and strong denunciation. As a general rule, the more dangerous the act which results in a conviction for 'unlawful and dangerous act' manslaughter, the more objectively serious the offence. Senior counsel for JW properly conceded that this was so.

76 In Director of Public Prosecutions v Phillips,[38] for example, the act which caused death was the firing of a shot into the victim's chest at a distance of approximately 27 metres. Nettle JA (with whom Maxwell ACJ and Buchanan JA agreed) said:

Short of murder and manslaughter by reason of provocation, the unlawful killing of another human being by the deliberate presentation and firing of a weapon at him or her is amongst the most serious offences against the person. Regardless of the absence of murderous intent, the possibility of extreme harm and the potential for disaster are so obvious as to render the offence most heinous.[39]

77 In Sherna v The Queen,[40] the offender had wrapped a dressing gown cord around the neck of the victim and strangled her. Whelan AJA described it as 'a most extraordinarily dangerous act' and expressed the view that it was more dangerous than the act of shooting dealt with in Phillips.[41]

78 We reject the submission for JW that it was not open to the Director, and it is not open to this Court, to 'attach a label to the objective gravity of the offending'. The relevant facts not being in dispute, one of the critical considerations in this appeal is whether the sentence imposed was reasonably open, if proper weight had been given to the seriousness of the offence and the offender's moral culpability.

79 The judge having expressed no conclusion on either of those matters, this Court is entitled to make its own assessment, consistently with the facts found by the judge, which were not the subject of any relevant challenge. All that the judge said was that the objective gravity of the offending, and JW's moral culpability, were 'reduced' by the previous threats from Mr Christianos and the 'real and immediate threat' JW faced at the time.

80 As noted earlier, counsel for JW accepted that his conduct in shooting Mr Christianos twice was deliberate. For the reasons given in Phillips, it was extremely dangerous conduct and the objective gravity of the offence must necessarily be assessed as high. For the same reasons, especially having regard to the firing of the second shot, JW's culpability must be assessed as high.

81 Accepting that some weight was to be given to both prior and present threats from Mr Christianos, a substantially higher sentence was called for. Furthermore, JW's protracted period of deception, as the victim impact statements show, had a profound impact on Mr Christianos' family, leaving them in the distressing position of not knowing what fate had befallen Mr Christianos.

82 As to the residual discretion, we consider that there is no basis for its exercise. As to the suggestion that the purpose of the Crown appeal could be achieved by declaring the sentence inadequate but without altering it, the identical submission has already been rejected twice by this Court. We reject it for the same reasons.[42]

83 Nor was there any shortcoming with the prosecutor's submissions to the sentencing judge of the kind which would attract the residual discretion. There are, of course, circumstances where the sentencing judge is led directly into error by submissions of a prosecutor, such that the residual discretion is engaged.[43] But that is not this case.

84 For those reasons, we would, as we have said, allow the Director's appeal. We would resentence the respondent to a term of 9 years' imprisonment, with a non‑parole period of 6 years.

85 Pursuant to s 6AAA of the Sentencing Act 1991, we state that had the respondent not pleaded guilty, we would have imposed a sentence of 11 years' imprisonment with a non-parole period of 8 years.

86 We note that the total period of pre-sentence detention, not including this day, is 566 days, and order that that figure be entered into the records of the Court.

[1] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[2] Those being, firstly, that there existed a condition that may, at the date of sentence, mean that a given sentence will weigh more heavily on the respondent than it would on a person in normal health (Principle 5). Secondly, that there was a serious risk of imprisonment having an adverse effect on the respondent's mental health, by virtue of his upbringing and age, and that this would be a factor tending to mitigate punishment (Principle 6). See, Verdins, 276 [32].

[3] DPP v Yucel [2019] VSCA 53 ('Yucel').

[4] DPP v White [2019] VSC 400 ('Reasons'), [11].

[9] Ibid. See also, Va v The Queen [2011] VSCA 426; (2011) 37 VR 452, 459 [33]; [2011] VSCA 426.

[13] [2019] VSCA 287.

[14] See also, DPP v England [1999] 2 VR 258; [1999] VSCA 95, where the respondent had sexual intercourse with, and then set fire to, the deceased's body after having strangled her with a belt. Brooking JA (with whom Batt and Chernov JJA agreed) held that '[i]f conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales', 268 [37].

[17] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 660 [115]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA) ('Karazisis').

[19] DPP v Russo [2019] VSCA 129.

[20] [2000] VSC 225 (Coldrey J). A sentence for negligent manslaughter following a jury trial. Osip lawfully possessed a firearm and had been out hunting. He shot the deceased, who was walking his dog, thinking the deceased was a deer. The judge imposed a total effective sentence of 4 years' imprisonment with a non-parole period of 1 year.

[21] [2014] VSC 522 (Lasry J). A sentence for unlawful and dangerous act manslaughter following a plea of guilty. The deceased and other men had attempted to break into D'Angelo's business premises, where he had been sleeping at the time. D'Angelo fired a shot in panic, which landed to the head of the deceased. D'Angelo gave evidence that he had no intention to shoot the men and that he did not believe the gun was actually loaded. The judge accepted that D'Angelo had made the men aware of his presence prior to shooting at them. The judge imposed a total effective sentence of 8 years' imprisonment with a non-parole period of 4 years and 6 months.

[22] [2016] VSC 706 (Croucher J). A sentence for unlawful and dangerous act manslaughter following an early plea of guilty. Rapovski, who had been under the influence of drugs, had been playing with a sawn-off shotgun when he accidentally shot a friend in the face. It was unclear how the discharge occurred. Rapovski immediately fled the scene and sought to abscond to Macedonia the following day. The judge fixed a total effective sentence of 8 years' imprisonment with a non-parole period of 5 years.

[23] [2017] VSC 535 (Keogh J). A sentence for unlawful and dangerous act manslaughter following a plea of guilty. The case concerned the unintended discharge of a firearm, causing the death of Osborn's de facto partner. Osborn had been familiar with guns, and was aware that it was loaded when he pointed it at the deceased. There had been no history of violence in the relationship, and it was accepted that there was genuine remorse. The judge imposed a total effective sentence of 9 years and 2 months' imprisonment with a non-parole period of 6 years.

[24] (2019) 93 ALJR 1307 ('HT').

[26] Karazisis, 662-3 [127]; DPP v Fatho [2019] VSCA 311, [69] ('Fatho'). To the same effect, see decisions of the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605 [58]; [2001] HCA 64, (Gaudron, Gummow and Hayne JJ) ('Wong'); and R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28](7); [2015] HCA 39 (French CJ, Keane and Nettle JJ) ('Pham').

[27] Ibid 1313 [19] (citation omitted) (emphasis added).

[28] [2011] HCA 49; (2011) 244 CLR 462, 479 [42]; [2011] HCA 49 ('Green').

[29] [2015] HCA 9; (2015) 256 CLR 346, 360 [37]; [2015] HCA 9 ('CMB').

[30] Jarrett v Seymour (1993) 46 FCR 521, 545; R v Raby [2003] VSC 213 [27]-[28]; Mokbel v DPP (2008) 26 VR 1, 15 [45], 18 [54]; [2008] VSC 433; R v Horseferry Rd Magistrates' Court; ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42, 28.

[31] Green [2011] HCA 49; (2011) 244 CLR 462, 479 [42] (citation omitted).

[32] CMB [2015] HCA 9; (2015) 256 CLR 346, 360 [37] (citation omitted). We note that the expression 'an affront to the administration of justice' does not appear in that passage.

[33] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542 [10]. However, that expression has since been deprecated by this Court and intermediate appellate courts in other States. See, eg, DPP v Fucile (2013) 229 A Crim R 427, 442-3 [97]-[104]; DPP v Chatterton [2014] VSCA 1 [83]-[85]; DPP (Cth) v Thai (2014) 242 A Crim R 173, 180-1 [21]; and DPP v Borg (2016) 258 A Crim R 172, 182 [58] n 39.

[34] With whom Kelly and Peek JJ agreed.

[35] [2011] SASCFC 23.

[37] Karazisis, 662-3 [127]-[128] (citations omitted).

[38] [2009] VSCA 68 ('Phillips').

[40] [2011] VSCA 242.

[42] See DPP (Cth) v Omar [2019] VSCA 188; Fatho, [79]-[80].

[43] See, eg, DPP v Holder (2014) 41 VR 467; [2014] VSCA 61.