Crown appeal - Attempted murder - Whether principle of totality can justify moderation of other individual sentences when life imprisonment is imposed - Test for Crown appeals where specific error is demonstrated - 12 years' imprisonment for attempted murder manifestly inadequate - Victim a good Samaritan - Whether five years' imprisonment for using an unregistered firearm while being a prohibited person manifestly inadequate - Crown appeal allowed

1 Having entered a plea of guilty, the applicant was sentenced in the Supreme Court to five years imprisonment on one count of being a prohibited person using an unregistered firearm (count 1); to eight years' imprisonment on one count of intentionally causing serious injury (count 2); to life imprisonment on one count of murder (count 3) and to twelve years' imprisonment on each of two counts of attempted murder (counts 4 and 5). The sentencing judge declared the total effective sentence to be life imprisonment, and fixed a non-parole period of 35 years' imprisonment. The applicant was sentenced as a serious violent offender in respect of counts 2, 4 and 5. His Honour also declared that had the applicant not pleaded guilty, he would have imposed a sentence of life imprisonment and would not have fixed a non-parole period.[1]

2 The applicant has appealed against the non-parole period. The Director of Public Prosecutions has appealed against the sentences imposed on the count of being a prohibited person using a registered firearm and the counts of attempted murder.

3 The full circumstances of the applicant's offending are set out in the learned sentencing judge's remarks.[2] It is sufficient to briefly summarise those circumstances.

Prohibited person using unregistered firearm - Count 1

4 The conduct relating to count 1 occurred in the early hours of Tuesday, 12 June 2007, six days before the conduct the subject of counts 2 to 5. Whilst driving towards the Bolte Bridge in Kensington, the applicant produced a handgun and fired shots out of the window on the driver's side. Some hours later police observed the applicant driving along Truck City Drive in Campbellfield, and followed him. He fired shots into the air, and then stopped his car in the middle of the road. He then pointed the firearm out the window in the direction of the police and fired further shots, before escaping from the police. The sentencing judge found that this conduct was motivated by his determination to avoid arrest.

5 As a result of convictions in July 2004 for using an unregistered and uninsured motor vehicle and driving while disqualified, the applicant had been disqualified from driving for four years. He was a 'prohibited person' when he used the firearm on 12 June 2007. He was also on a suspended sentence for fraud offences.

Murder - Count 3; Attempted Murders - Counts 4, 5; Intentionally causing serious injury - Count 2

6 Six days later, on Monday 18 June 2007, the applicant entered the Spearmint Rhino Club at around 3 am. At about 5 am, he went to a club next door called Barcode. According to witnesses who saw the applicant at Barcode, it did not appear that he was drinking anything other than water, but there was evidence to suggest the applicant took drugs while at that club.

7 At around 7:20 am, Ms Autumn Daly-Holt was performing an exotic dance for Mr Steve Kyriacou, the general manager of Spearmint Rhino. The applicant reached over and aggressively grabbed Ms Daly-Holt by the hair, lifting her off the ground. At roughly the same time, Ms Kaera Douglas, with whom the applicant was involved in an occasional relationship, arrived at Barcode, apparently at the applicant's request.

8 The applicant left Barcode, only to return a short time later.

9 At about 7:55 am, Ms Daly-Holt exited Barcode with her bags and sat on steps inside the door to the street. The applicant came up and after a short conversation with her kicked her in the face, grabbed her by the hair and punched her in the face. He then threw her out onto the pavement, threw her bags at her, and as she was getting to her knees, kicked her forcefully in the face, after which she collapsed. Ms Daly-Holt suffered fractures to the eye socket and nasal bones, permanent nerve damage and bruising to the face. She required extensive treatment from oral and facial surgeons. This was the conduct the subject of count 2.

10 After attacking Ms Daly-Holt, the applicant returned to Barcode and signalled for Ms Douglas to leave with him. She saw Ms Daly-Holt lying injured on the ground, and briefly returned to Barcode to get assistance for the injured woman. Then she came out again, and joined the applicant at the corner of King Street and Flinders Lane. The applicant showed her a handgun that he had down the front of his pants, and forced her to walk with him to the intersection of William Street and Flinders Lane. He took her into the basement car-park of Swann House and began to threaten her with the handgun. He was interrupted by Mr Emmanuel Borg, who had heard Ms Douglas screaming and crying and gone to investigate. The applicant pointed the gun at Mr Borg, who left Swann House and asked people in the neighbouring building to call the police.

11 Meanwhile, Ms Douglas had managed to escape into Flinders Lane, where she attempted to get into a taxi. The applicant ran up to her and grabbed her by the hair and arms, dragging her away while she called for help. At this point Mr Brendan Keilar and Mr Paul De Waard, who were nearby, came over to the applicant and Ms Douglas and, trying to verbally defuse the situation, called out 'what's going on here?' In response, the applicant pulled the handgun from his pants and shot Mr Keilar, Mr De Waard and Ms Douglas, all of whom fell to the ground. He then went over to Mr Keilar and Mr De Waard and shot them again (Mr Keilar twice and Mr De Waard once) while they were lying on the ground. This is the conduct the subject of counts 3, 4 and 5.

12 The applicant then put the gun, which was now empty, down the front of his pants and walked quickly down Flinders Lane towards Queen Street. He was later seen removing his jacket, wrapping it around the gun and throwing both into a construction site on the corner of Flinders Street and Bond Street. It was the same firearm that he had used six days earlier to avoid police apprehension.

13 The sentencing judge described the injuries sustained by the three victims in these terms:

Brendan Keilar died from the gunshot wounds he received. He died at the scene. One bullet passed through his left thigh. The other two bullets caused serious injury to the chest and abdomen, including major blood vessels, his lungs and liver. His death would have been swift. You shot him twice more after he fell to the ground.

Mr De Waard was shot twice, once when he was standing and once when he was on the ground. He was shot once in the stomach, which caused substantial internal wounds, and once through the buttock, which also caused severe internal injuries. As a result of his determination to live and the skill of the large medical team at the Royal Melbourne Hospital who had his care, after three hours of concurrent chest and abdominal surgery, he survived. His convalescence has been long, painful and difficult. He still has a bullet deep in the region of his pelvis.

Ms Douglas was shot once in the upper left quadrant of her torso. Her stomach was perforated, her pancreas and duodenum were damaged. She lost a kidney. The bullet struck the transverse processes of her lumbar spine and exited through her back. Her recovery was slow.[3]

14 As the shootings had occurred in the CBD of Melbourne between 8 am and 8:15 am on a Monday morning, there were almost 200 witnesses to the events listed on the prosecution brief. Many of the witnesses commented on the 'calm', 'casual' and 'deliberate' manner in which the applicant shot the three victims in broad daylight and walked off.

15 The applicant was arrested when he surrendered himself at the Wallan Police Station on 20 June 2007, where he gave a 'no comment' interview, except to state at one point 'I just wanted to say - to say sorr - just say sorry for anything that has happened.' He pleaded guilty at the committal hearing on 2 June 2008, before any witnesses had been examined.

The applicant's appeal - The non-parole period

16 The applicant seeks leave to appeal against the non-parole sentence imposed on the following grounds:

1. The learned sentencing judge erred by failing adequately to have regard to, and reflect in the non-parole period the judge fixed:

(b) the stage at which the applicant entered his plea of guilty.

1. In all the circumstances, the non-parole period fixed:

(d) offends s 5(2)(b) of the Sentencing Act 1991 [which requires a court, when sentencing an offender, to have regard to current sentencing practices].

17 The applicant was 30 years of age at the date of sentencing. He had prior convictions from nine court appearances, including convictions in 2003 for offences of causing grievous bodily harm and assault occasioning actual bodily harm when he assaulted his then partner and a security guard who came to her assistance. There were obvious similarities between that offending and part of the present offending conduct. He also had prior convictions for fraud as a result of which he was on a suspended sentence at the time of the present offences.

18 There was evidence on the plea that the applicant was under the influence of excessive amounts of amphetamines, crystal methylamphetamine and alcohol at the time he committed the offences on 18 June 2006. The applicant called two experts to give evidence in relation to his drug use, Dr Sullivan and Mr Cummins. He also tabled a report from Dr Nicole Lee, an expert on the effects of amphetamines.

19 Mr Cummins reported that the applicant had informed him that after an incident in 2006 in which he was shot in the jaw at an affray at a kick-boxing event, he became 'a very heavy and often daily user of amphetamines and crystal methylamphetamine', and that for the six months prior to his offending he 'would

19 have been using amphetamines and crystal methylamphetamine at least every alternate day and frequently every day.' The applicant also told Mr Cummins that, as a result of the shooting at the kick-boxing, he was occasionally in the habit of carrying a firearm for protection. Mr Cummins stated in his report that '[i]n my opinion it is significant that users of crystal methylamphetamine frequently report significantly compromised perception and judgment and also frequently report drug induced paranoid ideation.'

20 Dr Sullivan reported that the applicant had told him that at the time of the offences he had been taking anabolic steroids for a month, and that in the weeks leading up to the offences he had been taking large amounts of stimulants and drinking copiously, which made him 'much more paranoid than usual.' After outlining the applicant's history of drug use, Dr Sullivan concluded in his report dated 27 August 2008 that:

The circumstances of the current offences are significantly related to gross intoxication with amphetamines, stimulants, and a background of anabolic steroid abuse. This, in combination with Mr Hudson carrying a firearm, has been integrally involved in the current offences. While intoxicated his judgment was impaired, although there is no indication of mental illness involved in these events.

Based on Dr Sullivan's assessment, and emphasizing that I have not personally had contact with Mr Hudson, the amount of amphetamine use reported, particularly in combination with other drugs that have similar affects, is likely to significantly increase the risk of aggression and violence, limit ability to inhibit aggressive responses and limit insight into the consequences of these actions at least while intoxicated and possibly some days or hours after this.

22 It was not in issue on the appeal that the applicant's offending was rightly characterised by the sentencing judge as 'falling into the highest category' of seriousness.[4] Even so, the applicant contends that the non-parole period of 35 years was manifestly excessive when compared to non-parole periods fixed in similar or worse cases than the present. Thirty five years is equal to the longest non-parole period yet fixed in Victoria, based on sentencing statistics prepared by the Sentencing Advisory Council.

23 The relevant offending was described on the appeal as 'the result of a single, emotion, alcohol and drug-fuelled episode and committed without premeditation.' The applicant emphasised that he was a relatively young man facing a very lengthy prison term when he pleaded guilty at the earliest reasonable opportunity, 'without any witnesses being examined.' The applicant submitted that he should not have received a minimum period greater than 30 years, presumably because such a sentence is at the very top of the range.

24 The question for this court is whether the non-parole period of 35 years can be shown to be beyond the range of sentences that was reasonably open to the sentencing judge or, to put the matter another way, that his Honour was bound to conclude that a 35 year non-parole period was disproportionate to the applicant's degree of criminality. The question is not whether, had this Court been exercising at first instance the power reposed in the sentencing judge, it would have reached a different decision.[5] So long as the sentence is one that is not unreasonable or unjust, it remains the province of the sentencing judge.[6]

25 The applicant sought to demonstrate, by reference to a number of 'worst' category cases of murder including R v Denyer,[7] R v Beckett,[8] Director of Public Prosecutions v Adajian,[9] R v Debs & Roberts,[10] and R v Williams,[11] that the non-parole period should not have been greater than 30 years. Aggravating factors were identified in some of those cases which were absent in this case, yet the offender in those cases received the same or a lesser sentence. In other cases said to be equally serious, a lower sentence was imposed. Counsel acknowledged that the sentencing judge had been taken to a number of these cases to establish where the applicant's case fell in comparison with those cases.

26 The submission was unsound for two reasons. First, comparable cases may not be used for the purpose of trying to identify a sentence that is a fair comparison with the circumstances of the instant case. Second, the sentence under challenge will not fall outside the range because there are other types of 'worst' cases arguably more serious which have attracted the same penalty or cases no less serious which have attracted lesser penalties.

Comparable sentences are only a general guide as to the 'range'

27 The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.

28 Sentences imposed in 'like' cases provide some indication of the range that is open in the proper exercise of the discretion.[12] They will indicate, subject to relevant discretionary considerations, the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the 'instinctive reaction' when a court is asked to consider whether a sentence is manifestly inadequate or excessive. They are an indicator of 'current sentencing practices' which is one factor that the court must consider under s 5(2) of the Sentencing Act 1991. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law.

29 'Like' cases can only, at best, provide a general guide or impression as to the appropriate range of sentences.[13] In that context it has been said on many occasions that 'comparable cases' can only provide limited assistance to this Court.[14] They may however be used in search of unifying principles.[15] That was not the use to which counsel sought to employ them here.

30 Before both the sentencing judge and this Court, cases said to fall within the same category were examined in some detail to demonstrate which cases were or were not a fair comparison with the present case. That analysis, it was submitted, warranted the conclusion that a sentence of no more than 30 years was the correct non-parole period.

31 A detailed examination of 'like' cases to implicitly suggest that a particular sentence is the correct one or that the sentence should fall within a very narrow band, is not permissible. Sentences imposed in other cases are not precedents which must be applied unless they can be distinguished.[16] Where principles of parity do not apply, they are not to be regarded as some sort of 'benchmark' which is

31 determinative of the sentence to be imposed.[17] To attempt to so utilise other cases within a particular category involves the unwarranted assumption that all of the relevant factors which bore upon the imposition of those comparative sentences can be identified and weighted. There may be many reasons why the sentences in those cases should not be viewed by the sentencing judge as an appropriate sentence, or even a guide. Because of the dissimilarity in the offending conduct in other cases and the matters personal to the offenders, it would be an error to directly compare the sentence under challenge with that imposed in other cases.[18]

32 To undertake and utilise a comparative analysis, whether at first instance or on appeal, in an attempt to identify a sentence in a 'like' case that is a fair comparison, is calculated to introduce a level of mathematical precision inimical to the instinctive synthesis. Where the parity principle is not enlivened, recourse to other cases is not undertaken to strike some equality with another particular sentence. Consistency is to be achieved by the application of the appropriate range and not from the application of single instances of 'like' cases. The adoption of a sentence selected by an earlier court, even if the case is very similar, would be to sacrifice the proper exercise of judicial discretion in pursuit of consistency of sentencing.[19]

33 It is no part of the sentencing task, or the assessment of a sentence on appeal, to embark upon that level of analysis of comparable cases. However, there has been an increasing tendency to overlook these limitations. Accordingly one must be wary of attempts to examine a comparable case in 'micro detail',[20] as such an approach will ordinarily be indicative of an intent to use the case as providing something more than a guide to a range.

34 Other jurisdictions have also deprecated the practice of inviting comparisons between the challenged sentence and sentences in other cases.[21] Such comparisons have been viewed as providing no meaningful assistance other than as a general indicator of whether the impugned sentence is outside the range. This approach, well settled in New South Wales, was the subject of recent consideration in Jimmy v R,[22] in which Campbell JA referred to the following statement of Wood CJ at CL, in R v George:[23]

It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see R v Morgan (1993 ) 70 A Crim R 368; R v Salameh NSWCCA 9 June 1994 and R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505 at [98] to [101] per Barr J. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required.

35 On appeal, the question is not whether the sentence under challenge is more or less severe than some other sentence that is within the range, but whether the sentence falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.

36 The applicant did not confine the use to be made of comparable cases to providing a guide as to the range of sentences that were appropriate. An attempt to demonstrate that within the determined category - the worst category of the offence - there were worse cases which had attracted the same sentence or that there were cases no worse which had attracted a lesser sentence, does not disclose whether the challenged sentence is unreasonable or unjust.

37 Here the applicant invited a comparison of non-parole period sentences in 'like' cases. It is to be remembered that the minimum term provides for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[24] Consequently, an attempt to compare sentences in terms of the minimum periods imposed will be of even less utility, as the nature of the offence does not assume the same importance which it has when the head sentence is determined, while the personal circumstances of the offender will generally be given greater weight than when fixing the head sentence.

38 Once there are features of the offending which require it to be characterised as falling within the worst category, the sentence will not become unreasonable or unjust because a lesser sentence has been passed in a like case or the same sentence has been passed for a case said to have worse features. The 'worst' category is to be understood as the joint judgment in Veen v The Queen [No 2][25] described it:

... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen [(1987) [1987] HCA 46; 163 CLR 447 at 451-452]. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.[26]

39 In cases where a life sentence has been considered to be an appropriate sentence, the range of circumstances attracting that penalty is seen to vary widely. A detailed analysis of the cases in this worst category shows that the aggravating circumstance of pre-meditation is sometimes present. It was absent from the present case as the applicant's offending did not involve pre-planning. On the other hand, there were aggravating features of the present case that are not to be found in those other cases. Two of the victims were good Samaritans who had come to the aid of the third victim, who was a stranger to them. Another aggravating feature was the fact that the applicant, having shot the two good Samaritans, proceeded to shoot them again after they had fallen to the ground. The other counts were also serious examples of those offences. The vicious assault occasioning serious injury the subject of count 2 attracted a sentence of 8 years' imprisonment, and the use of the unregistered firearm a sentence of 5 years' imprisonment. Such features justified the concession made by the applicant that the offending fell within the worst category. Reference to features of 'comparable' cases in that worst category which are not present in the case under examination will not demonstrate that the impugned sentence is beyond the range of sentences that were available to the sentencing judge in the exercise of his discretion.

40 The question is whether it was reasonably open to the sentencing judge to conclude that the non-parole period fixed was the minimum time that justice required that he serve. In R v VZ Callaway JA set out particular factors to be taken into account when fixing a non-parole period:

The first is that a non-parole period has a penal element. The second is that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period. The third, which requires no citation of authority, is that a prisoner's prospects of rehabilitation are almost always a significant consideration.[27]

41 The applicant did not resist the sentencing judge's characterisation of his offending as 'shocking' and 'appalling' and 'falling into the highest category', or the need for the sentence imposed (including any non-parole period) to satisfy the purposes of punishment, general and specific deterrence. His Honour accepted that 'there was nothing about your conduct which was premeditated but presumably you carried a handgun on the basis that you were prepared to use it.'[28] Although the applicant characterised his offending as a 'single' episode resulting from the applicant being emotionally charged and under the influence of drugs and alcohol, no issue is taken with the following findings made by his Honour:

I have no doubt you understood very well the effects of the various drugs and alcohol on your behaviour. Even though it is quite likely that you may not have committed these offences in the absence of the drugs and alcohol you had consumed, that is not a matter in mitigation. You adopted a lifestyle which centred around venues such as those you were at on this night.

Your persistent life style might well act as an aggravating feature on sentence. In this case however, it is more important to state that it does not operate as a matter in mitigation. It was not urged on me on the plea by your counsel that I should treat it as such.[29]

42 In his sentencing remarks his Honour said that 'just punishment and general and personal deterrence will loom very large'.[30] As to the non-parole period, his Honour stated:

In imposing a non-parole period, I have had regard to the totality of your offending. The non-parole period must itself satisfy the general needs of sentencing and, in particular, the aspects to which I have referred above.[31]

43 One of the applicant's primary submissions was that in fixing the non-parole period of 35 years his Honour failed to give adequate regard to the applicant's guilty plea at an early stage. But in his sentencing remarks the sentencing judge said

I accept that you are remorseful for what you have done and that your plea of guilty being made at the Committal proceedings with no witnesses being called was an indication of that. You will have credit for pleading guilty.[32]

44 The assessment of the appropriate discount to give for a plea of guilty, like other aspects of sentencing, involves an instinctive synthesis of all the relevant factors.[33] The applicant's plea of guilty, before any witnesses were called, was a factor weighing in favour of a substantial discount because of its utilitarian benefits, and the fact that it reflected genuine remorse on his part. As his Honour made clear by his declaration in compliance with s 6AAA of the Act, the applicant's plea of guilty at the earliest possible opportunity was determinative of the sentencing judge's decision to fix a non-parole period. His Honour's discount of the applicant's sentence for his plea of guilty at an early stage must be viewed as a real discount. His Honour was required to weigh those matters with other sentencing considerations, including the objective gravity of the offending, to determine the minimum period of incarceration which justice required. It has not been shown that his Honour failed to give adequate weight to the guilty plea.

45 Neither are we persuaded that a non-parole period of 35 years was not a sentence reasonably available. It fell within the range of sentences that was open to the sentencing judge. The conduct the subject of counts 2 to 5 placed them in the worst category of those offences. The non-parole period contained an important penal element which reflected the need for condign punishment that would satisfy the requirements of denunciation and general and specific deterrence. The non-parole period had to reflect the totality of the applicant's offending and his degree of criminality. The fact that the applicant was under the influence of drugs and alcohol at the time of the offending did not reduce his culpability for these offences. The only matters which worked in mitigation of the sentence were his early guilty plea and his 'limited' cooperation with the authorities. Pursuant to s 6D(a) of the Sentencing Act 1991, the sentencing judge was required to regard the protection of the community as the principle purpose for which the sentence was imposed when deciding the length of sentence, which included the length of the minimum period.

46 The applicant has not demonstrated that the non-parole period of 35 years was manifestly excessive. We will refuse his application for leave to appeal.

47 The Director of Public Prosecutions appealed against the individual sentences imposed in respect of count 1 (prohibited person using unregistered firearm) and counts 4 and 5 (attempted murder) on the ground that they were all manifestly inadequate. The Director provided particulars of the manner in which it was said that the sentencing judge erred in fixing a term of five years' imprisonment in respect of count 1 and terms of 12 years' imprisonment in respect of each of counts 4 and 5. The particulars allege that the sentencing judge

(a) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

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

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

(d) failed to have sufficient regard to the maximum penalty prescribed for the offences;

(e) failed to have sufficient regard to the nature and gravity of the offences;

(f) failed to have sufficient regard to the offender's culpability and degree of responsibility for the offences;

(g) failed to have sufficient regard to the impact of the offences on the victims;

(h) failed to have sufficient regard to aggravating features of the offending, and in particular:

• the public location in which the offences constituting counts 4 and 5 occurred,
• the offences being committed while the offender was serving a suspended sentence for other unrelated offences
• the severe injuries suffered by the victims
• the brutality of the attacks against each victim
• that the offending against one victim occurred when he came to the assistance of another victim
• the fear instilled in both the victims and the wider community as a consequence of the offending; and

(i) gave too much weight to the mitigating factors concerning the offender, in particular-

• the plea of guilty
• the intoxication of the offender at the time of the offences with amphetamines, stimulants and anabolic steroids
• the remorse shown by the offender.

48 Under ground 2, the Director submitted that the learned sentencing judge erred in reducing the length of the individual sentences imposed on each of counts 4 and 5 because of the principle of totality. The Director stipulated in his grounds that he made no complaint as to the individual sentences imposed on counts 2 and 3, or the total effective sentence or non-parole period imposed.

Sentence on count 1 (prohibited person using an unregistered firearm) manifestly inadequate

49 As was noted by Maxwell P in Director of Public Prosecutions v Josefski,[35] Crown appeals against sentence are a special category of appeal; they should only be allowed in 'the rare and exceptional case' to 'establish some point of principle'.[36] In Director of Public Prosecutions v Bright,[37] Redlich JA set out the test for considering a Crown appeal on the ground that a sentence is manifestly inadequate, in the following terms:

[A]n appeal should not be brought unless the sentence reveals such 'manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle'. An examination of authorities suggests, as was conceded by the Director in argument, that manifest inadequacy alone will not be sufficient to warrant appellate intervention. Something more is required to ensure that prosecution appeals do not unduly circumscribe the sentencing discretion of judges. The inadequacy of the sentence must be 'clear and egregious', the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and 'undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes'.[38]

50 The Crown submitted that the sentence of five years' imprisonment was manifestly inadequate as it did not reflect the serious nature of the offence in the circumstances, evidenced by the fact that:

The weapon was discharged in urban or built up areas.

There were two episodes of gunfire each involving a number of discharges.

On the second occasion the pistol was fired 'in the general direction of the police' [6] to impede apprehension for speeding or drink driving offences.

The nature of the weapon is such that it can be safely inferred its purpose was to injure or kill. It was not carried for any other purpose than to be used as a weapon. Subsequent behaviour confirmed that it was to be used as a weapon.

The maximum penalty for this offences is 15 years imprisonment.[39] The section prohibits possession, carriage or use of the firearm. Using a firearm must be considered as being more serious than possession or carriage of a firearm.

The respondent was serving a suspended sentence of imprisonment at the time of the offence.

51 The Firearms (Trafficking and Handgun Control) Act 2003 more than doubled the maximum sentence for possession or use of an unregistered firearm by a prohibited person. As Williams AJA explained in Director of Public Prosecutions v Faure,[40] the amendments demonstrate the seriousness with which the legislature viewed the new offence, reflecting relevant community concern in the aftermath of several widely publicised shooting incidents.

52 The applicant drew attention to the fact that a sentence of five years' imprisonment, though only one third of the maximum, is the highest sentence that has been passed for the offence of using an unregistered firearm while being a prohibited person in Victoria. When regard is had to the obligation of the sentencing judge to give a discount in the sentence on count 1 to reflect the applicant's early plea of guilty, it was submitted that it cannot be said that the sentence was manifestly inadequate.

53 His Honour described in full the circumstances in which the applicant discharged the firearm. He made specific reference to the facts that the applicant was serving a suspended sentence at the time of the offence,[41] and that the second lot of shots appeared to be fired in the direction of the police in order to escape arrest.[42] The fact that the same firearm was subsequently used in the murder and attempted murders on 18 June 2007 was irrelevant to the sentencing discretion in relation to count 1.

54 Where the offence is 'possession' of an unregistered firearm by a prohibited person, the use to which the firearm is put is relevant to the sentence in only a very limited way. More severe sentences for 'possession' are generally reserved for cases where possession of the firearm is associated with ongoing criminal activity.[43] Where, as here, the actus reus is 'use' of the weapon, it will frequently be the case that other serious charges will be preferred that reflect the fact that injuries were sustained because of its use, or because the Crown alleges that the firearm was discharged with a specific unlawful intent, or both. No such charge was laid in relation to the events of 18 June. If other serious charges are laid as well as a charge that the prohibited person used an unregistered firearm, the sentence on the latter charge would have to be moderated to ensure that the offender was not doubly punished for its use.[44] No other offence was charged arising from the use of the firearm on 12 June. The sentence to be imposed on this count therefore had to reflect the full measure of the applicant's criminality on that morning. The sentencing judge's findings that the applicant, while serving a suspended sentence, drove his vehicle whilst disqualified, stopped in the centre of the road, pointed the weapon in the direction of the police and fired the further shots for the purpose of avoiding his arrest and made good his escape were not disputed. They made this a particularly serious example of the offence.

55 Those very few cases that have dealt with 'use' of an unregistered firearm by a prohibited person since the maximum sentence was increased do not in our view constitute a 'sentencing practice' within the meaning of s 5(2) of the Sentencing Act 1991 that would serve to constrain the sentence that his Honour could impose.

56 The offence is an inherently serious one which is designed to deter those with particular prior convictions from possessing carrying or using an illegal firearm. The repeated use of a firearm in a public place for the purpose of deterring police from the lawful execution of their duty was extremely serious conduct. The sentence fixed was, in our respectful view, a lenient one which could have attracted a more substantial sentence. That said, the question on appeal is not what sentence this Court would have imposed but whether the sentence imposed by his Honour fell within his sentencing discretion. We are not persuaded that it was not reasonably open or that it was so manifestly inadequate as to constitute an error in principle so as to warrant this Court's intervention.

57 Ground 2 is concerned with the following statement made by his Honour in the course of his sentencing remarks:

The two counts of attempted murder are very serious examples of that crime and Mr De Waard's injuries in particular might well have been fatal...Because of the principles of totality, I have imposed a somewhat lesser sentence for these offences than I would otherwise have imposed.[45]

58 The Crown submitted that the principle of totality did not require the sentencing judge to impose a lesser sentence for each of counts 4 and 5 than usual and that in applying a discount his Honour fell into error. At the hearing, senior counsel for the applicant conceded that the sentencing judge had committed a specific error in applying that principle to reduce the sentences on counts 4 and 5.

59 The totality principle requires the judge who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate' and 'not excessive'.[46] It is the total effect of the aggregate sentence imposed (ie the total length of the consecutive sentences) that may enliven the totality principle so that the court will intervene on the ground of mercy and reduce that total effective sentence.[47] But the proper process for applying the totality principle is for the sentencing judge to first conclude what is an appropriate and proportionate sentence for each individual offence when viewed in isolation.[48] It is only after this step that it is appropriate for the judge to look at what the total effect of the sentences would be and to adjust that total effect to what is considered to be 'just and appropriate' in all the circumstances.[49] Once a sentencing judge has come to the conclusion that the total effect of the sentences passed offends the totality principle, there are two methods of adjusting the total sentence. The primary and preferable mechanism is to make appropriate orders for some of the sentences to be wholly or partially concurrent.[50] Where this is not practicable, an appropriate total effective sentence may be achieved by 'lowering the individual sentences below what would otherwise be appropriate' in order to reduce the total effective sentence.[51]

60 In the present case, the head sentence imposed by the sentencing judge was life imprisonment. Any attempt to impose a sentence consecutive to a sentence of life imprisonment would be void.[52] The sentences imposed for the two counts of attempted murder had to be made concurrent with the sentence of life imprisonment on count 3. The sentencing judge alluded to the practical reality that the other sentences would have to be concurrent with the life sentence when he stated that the sentence on count 3 'renders the operation of s 6E of the [Sentencing Act 1991] nugatory' (s 6E requires that sentences of terms of imprisonment be served cumulatively on any other sentences for imprisonment, unless the court otherwise orders). Given the need for concurrency of the sentences on all other counts with the sentence of life imprisonment, no reduction in the individual sentences for the two attempted murder counts could be justified on the basis of the totality principle. Adjustments to those sentences would have no effect on the total effective sentence which the applicant faced; adjustment of the latter, if thought necessary, could only be achieved through adjusting the head sentence on count 3. This was not a case in which there was a danger of double counting: count 3 and counts 4 and 5 all related to separate actions against separate victims.

Test for Crown appeals where specific error is shown

61 Counsel for the applicant argued that this error was not sufficient to justify this Court's interference on a Crown appeal. Initially, the applicant submitted that this was because it was an 'error of no consequence', because in any event the total effective sentence was unaffected. That submission should be rejected. No authority was cited to support the proposition that this Court is unable to intervene on a Crown appeal unless the error has produced an error in both the individual and the total effective sentence.[53] The considerations of equality before the law, consistency and the maintenance of sentencing standards, pertinent to offender appeals, require sentencing judges to pass appropriate sentences on individual counts, even if the total effective sentence will not be affected. Those considerations are also germane to a Crown appeal.

62 Next, the applicant submitted that the error made by the sentencing judge did not possess those common law characteristics described in R v Clarke[54] and Director of Public Prosecutions v Bright.[55] The Crown submitted that those characteristics need not be present where specific error other than manifest inadequacy is alleged. The Crown submitted that error having been established, the sentencing discretion was automatically re-opened. Both of these submissions should be rejected

63 The sentencing judge revealed in his reasons that he had originally come to a view as to the appropriate sentences for counts 4 and 5, but had reduced those sentences to 12 years' imprisonment. In Director of Public Prosecutions v Grabovac,[56] Ormiston JA warned about the dangers of imposing 'artificially light' sentences to tailor a total effective sentence so as not to offend the totality principle. His Honour stated that the passing of 'artificially low' sentences is problematic in that they could give rise to an impression or belief that the offences the subject of the low sentences are not being treated seriously enough, and they may lead to 'artificial claims of disparity by co-offenders, and by offenders charged and sentenced for similar crimes.[57] Ormiston JA stated that such tailoring of appropriate sentences by reference to the end result 'encourages the sentencing judge to ignore or to down-play the significance of the separate offences and the individual sentences which must be imposed if the sentencing process is to be carried out correctly.'[58]

64 Totality is not a principle to be applied without regard to the components of the instinctive synthesis. Even if totality had been relevant, it does not override nor should it engulf other critical sentencing considerations.[59] In this case, the need to impose a punishment that reflected the objective gravity of the offences, general and specific deterrence, protection of the community and matters personal to the applicant were a critical part of the sentencing synthesis. The result of the sentencing judge's error were 'artificially light' sentences on counts 4 and 5 of the kind with which Ormiston JA was concerned in Grabovac.[60]

65 Whether the error complained of is manifest inadequacy or some other error of principle, the Crown must show that the error possessed those qualities that warrant intervention on a Crown appeal. The Crown has established specific error of principle that satisfies the common law requirements for a Crown appeal. If the Court considered that a different sentence should be passed, it was an error of sentencing principle that would warrant this court's intervention on a Crown appeal.

66 The applicant further submitted that where specific error is made out, an appellate court cannot re-sentence that offender to a higher sentence unless the Crown establishes that the sentence originally imposed was not only infected with error but was also manifestly inadequate. Counsel for the applicant relied for this proposition upon obiter passages from Director of Public Prosecutions v Bulfin.[61] This, it was said, logically followed from the well-established proposition that when re-sentencing an offender after a successful Crown appeal against sentence, an appellate court will discount the sentence to allow for double jeopardy and accordingly will impose a sentence towards the lower end of the relevant range of sentences. Counsel argued that, unless the sentence imposed at first instance was manifestly inadequate, this court would decline to intervene as the application of double jeopardy to reduce the sentence would mean that there would be no meaningful difference between the original sentence and the sentence this Court would impose.

67 The Crown had two answers to this contention. First, the sentences imposed on those counts were egregiously disproportionate to the applicant's degree of criminality and displayed such manifest inadequacy as to warrant intervention. Second, there was no clear authority, either in the wording of s 567A of the Crimes Act 1958 (Vic) or the case law, for the proposition advanced by counsel for the applicant that the Crown should have to demonstrate both specific error and manifest inadequacy in order to succeed on an appeal against sentence. It further submitted that this Court should not impose such a high threshold on Crown appeals, as such appeals are brought in the public interest.

68 We find it unnecessary to determine whether it is always necessary to establish manifest inadequacy on a Crown appeal, as the Crown has established that the sentences imposed on counts 4 and 5 were well below the appropriate range. In addition to being attended by an error of principle, the sentences imposed on the attempted murder counts were of such manifest inadequacy that this Court should intervene. Accordingly, on either view of the threshold for a Crown appeal where specific error is demonstrated, we are satisfied that the sentencing discretion in relation to the counts of attempted murder should be re-opened. The sentences imposed on counts 4 and 5 were so disproportionate to the seriousness of the crimes as to shock the public conscience.[62] These are not instances in which the Court, after applying the double jeopardy discount to impose a lesser sentence that it considers should have been imposed at first instance, would arrive at a sentence so close to the sentence in fact imposed by the sentencing judge that it would exercise its discretion not to allow the Crown appeal. We should also note that the argument for the imposition of this higher threshold for Crown appeals, depends upon the application of the double jeopardy discount to reduce the sentence that this court would impose. The argument has a very limited shelf-life. For all sentences imposed on or after 1 January 2010, the double jeopardy discount upon re-sentencing on a Crown appeal has been abolished.[63]

Manifest inadequacy of sentences on counts of attempted murder

69 Sentences of 12 years' imprisonment for the attempted murders, each necessarily involving an intent to kill, were egregiously disproportionate to the objective gravity of the offence. The sentencing judge rightly characterised the applicant's attempts to murder Mr De Waard and Ms Douglas as very serious examples of that crime. The maximum penalty of 25 years' imprisonment makes this offence one of the most serious crimes that can be committed. Unlike murder, it requires a specific intent to kill. The attacks occurred in a public place, 'where ordinary people are entitled to feel safe',[64] and as a consequence were witnessed by up to around 200 people on their way to work on a Monday morning. The attempted murders were unprovoked and inexplicable, yet executed in a calm and deliberate manner.[65] All available ammunition was used by the applicant. Both victims were very seriously injured, and in the case of Mr De Waard whom the applicant shot twice, the second time when he was on the ground, it was only skilled medical intervention that prevented the attempt at murder from being successful. Mr De Waard was a good Samaritan coming to the aid of a stranger who was being assaulted. The applicant was serving a suspended sentence of imprisonment at the time of the offence.

70 The Court was referred to sentencing statistics for the offence of attempted murder which showed that a range of sentences from six years to eighteen years' imprisonment,[66] with a mean of 11 years had been imposed for this offence. However, these statistics were somewhat dated, being for the period 2001-02 to 2005-06. They provide limited assistance as a guide to the appropriate sentencing range.

71 Not for a moment forgetting what we have said about the search for 'like' cases, we do observe that cases involving attempted murder have attracted sentences of 12 years' imprisonment,[67] 14 years' imprisonment,[68] and 16 years' imprisonment.[69] Relevantly, the latter two sentences were imposed in cases in which the accused pleaded guilty.[70] In R v McIntosh,[71] Batt JA rejected the suggestion that

there is a specific practical ceiling on the period of imprisonment that may be ordered for this crime. As [President Winneke] said in _R v Boaza '_There are no "benchmarks" setting binding limits for the crime of attempted murder ...' This is unsurprising given that, as I have said, each case must be decided on its own facts and given the serious nature of the offence, in respect of which the maximum custodial sentence has been raised from 20 to 25 years.[72]

72 Upon re-sentencing the applicant for counts 4 and 5, we think it appropriate to differentiate between the attempted murder of Ms Douglas (count 4) and the attempted murder of Mr De Waard (count 5) and impose a higher sentence on count 5 than on count 4. There are three reasons for doing so. The victim of count 5, Mr De Waard, was a good Samaritan who, as we have said, was coming to the aid of a stranger who was in desperate need of assistance. He was shot by the applicant because he was trying to help another human being when he was under no obligation to do so. This was an aggravating circumstance. One objective of punishment in this case must be to deter those who would injure persons who come to the aid of persons who are in desperate need of assistance. It is too often the case that persons who are subjected to violence in a public place do not receive assistance from other persons who are present. General deterrence is thus a particularly significant consideration as it may also serve the objective of encouraging citizens to come to the aid of others.

73 Unlike Ms Douglas, Mr De Waard was shot twice, the second time when he was already lying defenceless on the ground after having been felled by the first shot. This was also an aggravating circumstance of the applicant's offending in respect of count 5. Also, the injuries suffered by Mr De Waard were more serious than those suffered by Ms Douglas, although of course this is a question of degree. The sentencing judge commented that Mr De Waard's injuries 'might well have been fatal.'[73] He was shot once in the sternum, which caused him substantial internal wounds, and shot again in the buttock, which also caused substantial internal injuries. He still has a bullet lodged in the region of his pelvis as a result of the attempted murder.

74 By stating all of the above we do not intend to diminish the seriousness of the offence committed against Ms Douglas. She was the victim of an ongoing assault by the applicant which culminated in her being shot. The applicant's actions towards her, from the time when he forced her to accompany him after showing her the gun, to his threatening behaviour in the underground car-park when Mr Borg intervened, up until the time she was shot after trying to escape in a taxi, would have been terrifying. She was shot once in the torso, and suffered a perforated stomach, along with other serious injuries which necessitated the removal of one of her kidneys. She has had a slow recovery.

75 After applying a discount for double jeopardy (as this Crown appeal does not attract the application of the Criminal Procedure Act 2009), we will re-sentence the applicant to 14 years' and 6 months' imprisonment for the attempted murder of Ms Douglas (count 4) and 16 years' imprisonment for the attempted murder of Mr De Waard (count 5).

76 The applicant also submitted that, regardless of the fate of the application for leave to appeal against the non-parole period, in the event that this Court re-sentenced him on the two counts of attempted murder, it would be necessary to set aside the non-parole period and fix a new minimum period, because the sentences imposed on those counts were relevant to the fixing of the non-parole period of 35 years' imprisonment. The Crown, having eschewed any intention to appeal against the non-parole period, submitted that such a course could not be followed. The Crown's submission cannot be sustained. Where a sentencing judge fixes a non-parole period, it is part of the sentence of imprisonment.[74] It has long been accepted in relation to prisoner appeals against sentence that this means that where the appeal is allowed and the sentence of imprisonment is to be varied, the appellate court may, as part of the re-sentencing exercise, also adjust the non-parole period fixed in relation to that sentence. The Court may also do so on a Crown appeal against sentence.

77 When, as in the present case, multiple sentences of imprisonment are imposed, a non-parole period that is fixed relates to the aggregate period of imprisonment faced by the prisoner.[75] The non-parole period is informed by each individual sentence imposed. As Callaway JA suggested in obiter dicta in R v Harkness,[76] because the non-parole period includes a penal element, the length of individual sentences imposed, even if wholly or partly concurrent, are likely to have some effect on the length of the non-parole period that is imposed in respect of an aggregate period of imprisonment. It has not been doubted that the Court's power to re-visit the non-parole period is enlivened once it is established that an individual sentence (or sentences) are attended by error, and that a different individual sentence

77 (or sentences) should be imposed.[77]

78 Our conclusion, which was adverse to the applicant's appeal, that the minimum period of 35 years' imprisonment was within the range open to his Honour, does not answer the inquiry as to whether this Court, in the exercise of its sentencing discretion, considers a different sentence should be imposed. Applying the principle of totality to the non-parole period, this court must take into account the sentences that will now be imposed on the two counts of attempted murder. When the non-parole period of 35 years is viewed in light of the substantially higher sentences that should have been imposed on counts 4 and 5, we do not consider that a different and lesser non-parole period should be imposed.

Crown abandoned ground that current sentencing practice inadequate

79 Under ground 3 in its notice of appeal, the Crown contended that current sentencing practices in respect of the offence of attempted murder are inadequate. However, at the hearing, at the outset of making his submissions, senior counsel for the Director informed the Court that it wished to abandon this ground of appeal. The reason given was that this Court should not take into account the inadequacy of current sentencing practices when this was not a matter that had been raised before the sentencing judge.

80 It is correct that this Court would not in re-sentencing an offender take into account the fact, if it be established, that current sentencing practices for that offence were inadequate if such a contention had not been disclosed to the offender before his plea.[78] Here the applicant pleaded guilty to counts 4 and 5 and he was entitled to assume that he would be sentenced in accordance with current sentencing practices. It would work a great injustice if on appeal this Court were to impose a higher sentence than could reasonably have been anticipated when considering whether to plead guilty.[79] There may be circumstances in which the sentencing judge or this Court would not be precluded from considering and commenting upon the adequacy of current sentencing practices were the Director to make submissions supported by appropriate materials which permitted conclusions to be reached. The experience of this Court however is that on a Crown appeal, a ground of appeal asserting that current sentencing practice for a particular offence was inadequate, when raised, has been consistently abandoned by the Director at the commencement of the appeal. That, of course, is entirely a matter for the Director. But it can be said that where it is appropriate for the Director to advance an argument as to current sentencing practices, it ought be advanced before the sentencing judge or this Court depending on the circumstances, and not elsewhere.

81 We refuse the applicant leave to appeal against his sentence. We allow the Crown appeal, quash the sentences of 12 years' imprisonment on each of the counts of attempted murder, and fix a sentence of 14 years and 6 months' imprisonment on count 4, and a sentence of 16 years' imprisonment on count 5. We confirm the non-parole period.

[1] Sentencing Act 1991 (Vic) s 6AAA.

[2] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [6]-[43].

[3] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [41]-[43].

[4] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [69].

[5] Mitchell v R [1996] HCA 45; (1996) 184 CLR 333, 347.

[6] House v King [1936] HCA 40; (1936) 55 CLR 499.

[7] [1995] VicRp 12; [1995] 1 VR 186.

[8] [1998] VSCA 148 (Unreported, Tadgell, Batt and Buchanan JJA, 22 December 1998).

[9] [1999] VSCA 105 (Unreported, Phillips CJ, Callaway and Chernov JJA, 20 July 1999).

[10] [2005] VSCA 66 (Unreported, Warren CJ, Winneke P and Vincent JA, 6 April 2005).

[11] [2007] VSC 131 (Unreported, King J, 7 May 2005).

[12] Hili v The Queen [2010] HCA 45 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 8 December 2010) [53]-[54]; R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101, [17].

[13] Jimmy v R [2010] NSWCCA 60; (2010) 240 FLR 27, 62-3.

[14] R v Price (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Crockett, O'Bryan and Gobbo JJ, 14 April 1987); DPP v Maynard [2009] VSCA 129 (Unreported, Ashley, Redlich and Kellam JJA, 11 June 2009) [35]-[36]; DPP v Moore [2009] VSCA 264 (Unreported, Neave and Redlich JJA and Lasry AJA, 24 November 2009) [13]; WCB v R [2010] VSCA 230 (Unreported, Warren CJ and Redlich JA, 10 September 2010) [63].

[15] Hili v The Queen [2010] HCA 45 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 8 December 2010) [54]-[55] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[16] DPP v Adajian [1999] VSCA 105 (Unreported, Phillips CJ, Callaway and Chernov JJA, 20 July 1999) [4]; R v McIntosh [2005] VSCA 106 (Unreported, Batt, Chernov and Vincent JJA, 15 April 2005) [10].

[17] R v F [2002] NSWCCA 320; [2002] 132 A Crim R 308, 315 (Simpson J); Hili v The Queen [2010] HCA 45 (Unreported, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, 8 December 2010) [74]-[78] (Heydon J).

[18] R v Morgan (1993) 70 A Crim R 368.

[19] R v F [2002] NSWCCA 320; [2002] 132 A Crim R 308, 315 (Simpson J).

[20] KC v The State of Western Australia [2008] WASCA 216 (Unreported, Wheeler, McLure and Buss JJA, 23 October 2008) [49].

[21] R v Shepherd [2003] NSWCCA 287; (2003) 142 A Crim R 101, [17]; R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38, 47; Western Australia v SJH [2010] WASCA 40 (Unreported, Owen, Wheeler and Buss JJA, 14 December 2009) [44]-[45]; KC v The State of Western Australia [2008] WASCA 216 (Unreported, Wheeler, McLure and Buss JJA, 23 October 2008) [49] (where Buss JA disapproved the practice of resorting to 'micro-detail).

[22] [2010] NSWCCA 60; (2010) 240 FLR 27.

[23] [2004] NSWCCA 247; (2004) 149 A Crim R 38, 47.

[24] Power v R [1974] HCA 26; (1974) 131 CLR 623, 629 (Barwick CJ, Menzies, Stephen and Mason JJ); R v VZ [1998] VSCA 32; (1998) 7 VR 693, 697.

[25] [1988] HCA 14; (1988) 164 CLR 465.

[27] [1998] VSCA 32; (1998) 7 VR 693, 698.

[28] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [62].

[29] Ibid [58]-[61] (citation omitted).

[33] Giordano v R [2010] VSCA 101 (Unreported, Weinberg, Mandie and Bongiorno JJA, 7 May 2010) [43].

[34] As the applicant was sentenced prior to 1 January 2010, the Director appealed pursuant to s 567A of the Crimes Act 1958. The Criminal Procedure Act 2009 (Part 6.3, Division 3) will apply to all Crown appeals against sentences imposed on or after 1 January 2010.

[35] [2005] VSCA 265; (2005) 13 VR 85.

[37] [2006] VSCA 147; (2006) 163 A Crim R 538.

[39] Firearms Act 1996 s 5(1A).

[40] [2005] VSCA 91; (2005) 12 VR 115, [26].

[41] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [8].

[43] See R v Graham [2007] VSCA 252; (2007) 178 A Crim R 467, 470.

1. [44] R v Rudd [2009] VSCA 213; (2009) 23 VR 444. See also R v Barca [2007] VSCA 167, [42]-[46], R v Bui [2005] VSC 83, [58].

[45] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [72].

[46] D A Thomas_, Principles of Sentencing_ (2nd ed, 1979) 57.

[47] Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 308 (McHugh J).

[48] DPP v Grabovac [1998] 1 VR 664, 683 (Ormiston JA).

[49] See Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 341 (Kirby J).

[50] DPP v Grabovac [1998] 1 VR 664, 667 (Ormiston JA); D A Thomas_, Principles of Sentencing_ (2nd ed, 1979) 57; Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 726.

[51] Mill v R (1988) 166 CLR 59, 63.

[52] R v Foy (1962) 46 Cr App R 290 (Lord Parker CJ); D A Thomas, Principles of Sentencing (2nd ed, 1979) 62; Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 731-2; R v Hettiarachchi [2009] VSCA 270 (Unreported, Nettle and Weinberg JJA and Hollingworth AJA, 27 November 2009) [79].

[53] See s 567A of the Crimes Act 1958 and s 289 of the Criminal Procedure Act 2009 where the same position pertains.

[54] [1996] VICSC 30; [1996] 2 VR 520.

[55] [2006] VSCA 147; (2006) 163 A Crim R 538.

[56] [1998] 1 VR 664.

[59] R v Mangelen [2009] VSCA 63; (2009) 23 VR 692, 699 (Redlich JA).

[60] [1998] 1 VR 664.

[61] [1998] 4 VR 114, 140 (Charles JA), 141-2 (Callaway JA).

[62] DPP v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, 542.

[63] See Criminal Procedure Act 2009 s 290(3) and sch 4 cl 10(4).

[64] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [33].

[66] However, it appears that the single case in which sentences of 18 years' imprisonment were imposed for attempted murder was the subject of a successful appeal to this Court, and those sentences were reduced to 16 years' imprisonment: see R v McIntosh [2005] VSCA 106 (Unreported, Batt, Chernov and Vincent JJA, 15 April 2005).

[67] R v Alipek [2006] VSCA 66 (Unreported, Warren CJ, Buchanan and Vincent JJA, 6 April 2006); R v Kumar [2006] VSCA 182; (2006) 165 A Crim R 48.

[68] R v Boaza [1999] VSCA 126 (Unreported, Winneke P, Phillips and Chernov JJA, 5 August 1999); R v Goldman [2007] VSCA 25 (Unreported, Maxwell P, Vincent JA and Bongiorno AJA, 1 March 2007).

[69] R v McIntosh [2005] VSCA 106 (Unreported, Batt, Chernov and Vincent JJA, 15 April 2005).

[70] R v Boaza [1999] VSCA 126 (Unreported, Winneke P, Phillips and Chernov JJA, 5 August 1999); R v McIntosh [2005] VSCA 106 (Unreported, Batt, Chernov and Vincent JJA, 15 April 2005).

[71] [2005] VSCA 106 (Unreported, Batt, Chernov and Vincent JJA, 15 April 2005).

[73] R v Hudson [2008] VSC 389 (Unreported, Coghlan J, 22 September 2008) [72].

[74] Sentencing Act 1991 s 11(1); R v Rajacic [1973] VicRp 63; [1973] VR 636, 641 (Smith ACJ).

[75] Sentencing Act 1991 s 11(4).

[76] [2001] VSCA 87 (Unreported, Winneke ACJ, Ormiston and Callaway JJA, 15 June 2001) [44].

[77] Tarakci v R [2010] VSCA 270 (Unreported, Buchanan, Neave and Weinberg JJA, 8 October 2010) [26]. See also DPP v Herbert [2002] VSCA 187; (2003) 143 A Crim R 138, [29], and R v DH [2003] VSCA 220 (Unreported, Winneke P, Phillips and Eames JJA, 19 December 2003) (in which case error as to some of the individual sentences had the result that 'the sentencing discretion is reopened generally' (at [37]), leading to the imposition of a new non-parole period).

[78] DPP v McInnes [2009] VSCA 144 (Unreported, Maxwell P, Buchanan and Ashley JJA, 19 June 2009) [21]; Winch v The Queen [2010] VSCA 141 (Unreported, Maxwell P, Ashley and Redlich JJA, 17 June 2010) [26]-[27].

[79] DPP v CPD [2009] VSCA 114; (2009) 22 VR 533, 549; Winch v The Queen [2010] VSCA 141 (Unreported, Maxwell P, Ashley and Redlich JJA, 17 June 2010) [27].