DPP v Wilson [2000] VSCA 112

Court of Appeal (Vic)|2000-06-23|Before: WINNEKE, P., BATT and BUCHANAN, JJ.A.

For the reasons I have given, I am inclined to think that the pre-sentence report does not comply with s.96(2). But counsel for the Director did not in the end, as it seemed to me, really persist in reliance on this ground (ground 2) if ground 1, alleging manifest inadequacy and in effect particularised by ground 4, failed, as I consider it should. In any event, even if ground 2 is treated as in part made out, I would dismiss the appeal both for the reason already given on the merits and also in the exercise of the court's residual discretion to decline to interfere.

I agree that the appeal should be dismissed for the reasons stated by Winneke, P. Apart from the application of the principle of double jeopardy, I consider that the sentence imposed below was one which was within the range available to the sentencing judge for the reasons stated by Batt, J.A. I also agree with Batt, J.A.'s remarks concerning the pre-sentence report.

[2] See, for example, Director of Public Prosecutions v. Kostikidis & Anor., Court of Appeal, unreported, 12 September 1996; Director of Public Prosecutions v. Patching [2000] VSCA 14, per Brooking, J.A. at [19]; Director of Public Prosecutions v. Daniel Lindsay Best, unreported, Court of Appeal, 16 April 1998; Director of Public Prosecutions (Cth.) v. Reynolds [1999] VSCA 224.

[3] cf. Malvaso v. R. [1989] HCA 58; (1989) 168 C.L.R. 227 at 234 per Deane and McHugh, JJ.

[4] Griffith v. R. [1977] HCA 44; (1977) 137 C.L.R. 293 at 310 per Barwick, C.J.; Malvaso v. R., supra, at 234-5; Everett v. R. [1994] HCA 49; (1994) 181 C.L.R. 295 at 300.

[5] cf. R. v. Smallacombe & Anor., unreported, Court of Criminal Appeal (Vic.) 28 October 1993 at p.6; R. v. Campbell (No.2) (1981) 6 A.Crim.R. 208 at 214.

[6] As Buchanan, J.A. pointed out during argument, these words in s.567A(4) of the Crimes Act 1958 simply ensure that this Court puts itself in the place of the sentencing judge (subject, no doubt, to any subsequent facts).

[7] The Crown no doubt would be liable, and could be ordered, to re-pay the fine in the latter case. Compare R. v. Howe; ex parte Attorney-General (Queensland) [1994] 2 Qd.R.307.

[8] unreported, New South Wales Court of Criminal Appeal, 26 July 1957, as noted in Rinald_i,_ "Dismissal of Crown Appeals Despite Inadequacy of Sentence", (1983) 7 Crim.L.J. 306 at 314.

[9] unreported, Court of Criminal Appeal, 28 February 1980, as noted in [1980] 4 Crim.L.J. 31.

[11] Provided, however, the offender agreed to that: s.19(2).

[14] Compare The Queen v. Bice [2000] VSC 223 at paras.7 and 21. Note also s.18(2)(ba), discussed later. Compare, as to s.7(1), Aitken v. Moten-Connor (unreported, Smith, J., 9 February 1995).

[15] See s.19(5) and (6). Allowance, which in the nature of things could not be precise, was given for time served under a community-based or like order in D.P.P. v. Kostikidis (unreported, Court of Appeal, 12 September 1996), R. v. Howe and D.P.P. v. Sullivan [2000] VSCA 99.

[16] By sub-s.(2)(ba), sub-s.(1) does not apply to an intensive correction order. The matters to which sub-s.(1) is stated not to apply are, variously, certain periods of custody (which are, therefore, not reckoned as periods already served) and certain sentences (from which, therefore, no deduction is to be reckoned). Paragraph (ba) seems to fall in the latter category.

[18] Compare Quirk and others, A Comprehensive Grammar of the English Language, paras.15.48 and 15.49.

[19] Despite the last printed words on the first page of the report, the author seems in what follows in handwriting simply to be reporting whether the respondent would be able to report to and participate at the appropriate community correction centre. The reference to "alcohol counselling" seems to me to be, not a reference to a special program for a special condition, but rather a reference to the "counselling ... for a specified ... alcohol problem" that the Regional Manager might direct pursuant to s.20(1)(d)(ii). Regulation 10 of the Sentencing Regulations 1992 does not require a different view.

Sentencing Regulations 1992

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