In the Matter of a Reference by the Attorney-General Pursuant to s 584(a) of the Crimes Act 1958 concerning M J R [2000] VSCA 44 (31 March 2000)

"Nothing in this Part shall affect the prerogative of mercy but the Attorney-General, on the consideration of any petition for the exercise of Her Majesty's mercy, having reference to the conviction of a person on indictment or the sentence passed on a person so convicted, may, if he thinks fit, at any time either - (a) refer the whole case to the Court of Appeal and the case shall then be heard and determined by that Court as in the case of an appeal by a person convicted ..."

It is not in dispute that, upon such a reference, the Court acts in a judicial and not in an administrative or advisory capacity and that, subject to a qualification as regards grounds disposed of by any previous appeal, it should determine the case referred by applying the same legal principles and exercising the same broad judicial discretions as it would in an ordinary criminal appeal brought pursuant to s.567(d) and determined in accordance with s.568(4) of the Act (see Re Ratten[1], Ratten v. The Queen[2], Re Matthews & Ford[3], R. v. Gunn (No.1)[4]).

7. Where the "whole case" has been referred pursuant to s.584(a), prima facie the Court is required to consider the case in its entirety subject only to the limitation that it is bound to act upon legal principles appropriate to an appeal. Thus, although all the material which accompanies the petition will be considered by the Court, only that which is relevant and admissible will influence the result (see Ratten v. The Queen[5], per Barwick, C.J., Mickelberg v. R.[6]). Accordingly, the Court will have regard to the entire record of proceedings in various courts together with any new matter properly admissible upon the hearing. Where, however, the record shows that an appeal has already been heard and determined and that is one aspect of the case referred, it is not contemplated that, if the matter has already been dealt with regularly and disposed of in that appeal, it should be re-adjudicated upon the same or similar grounds in the absence of some new matter which makes reconsideration of those grounds necessary or desirable (Re Matthews & Ford[7]; R. v. Gunn (No.1)[8], per Halse Rogers, J.; R. v. Gunn (No.2)[9]; Re Knowles[10]; Mickelberg v. R[11], per Toohey and Gaudron, JJ.).

10. Before turning to the facts upon which the reference is based, we think it appropriate to refer to two matters which were raised at the outset of the hearing of the reference and in respect of which counsel for the petitioner and counsel for the respondent were not in dispute. The first related to the question whether the petition from which the reference arose was in fact that of the petitioner. In this case the petition was presented by the petitioner's mother, not the petitioner himself. However, it was accepted that the petitioner had, by letter dated 9 June 1998, adopted the contents of the petition and, in any event, it will commonly be the position that petitions of this nature are made on the petitioner's behalf by some person (usually a solicitor) representing the interests of the petitioner. The second question was whether the Court had power to entertain a reference under s.584(a) of the Act in circumstances where the petitioner had, as he had in this case, pleaded guilty in the court below and had not been convicted by a jury. Although neither counsel was able to refer us to a reported case where a reference under s.584(a) of the Act had been made to the Court in a case where the conviction had been recorded following a plea of guilty by the petitioner, it is nonetheless accepted that the scheme of Part VI of the Crimes Act contemplates that such a reference can be made. The words of the section themselves state that the Attorney-General may refer the case to the Court, on consideration of a petition, "having reference to the conviction of a person on indictment or to the sentence passed on a person so convicted" (our emphasis). These words appear to be wide enough to contemplate a conviction on indictment recorded by the court following the verdict of a jury or a conviction recorded following a plea of guilty. Indeed, as the respondent's counsel pointed out on the appeal (we think correctly), the true antithesis of the words "so convicted" (meaning "convicted on indictment") is "convicted summarily" and not "convicted without trial following a plea of guilty". Such a construction has been accorded to the counterpart provisions contained in s.19(a) of the Criminal Appeal Act 1907 (U.K.) and the essentially similar provisions contained in s.17(1)(a) of the Criminal Appeal Act 1968 (U.K.): R. v. Forbes[12]; R. v. Coleman[13]; R.v. Butler[14]; R. v. McKenna[15]. There have also been cases where the petitioner has been convicted on indictment by a jury, but only the sentence has been the subject of the relevant Minister's reference: R. v. Underhill[16]; R. v. White[17] (a case where the reference had been made under s.379 of the Criminal Law Consolidation Act 1935-1966 (S.A.)). In most of the cases cited, the reference had been made to enable the court to determine whether the sentence imposed was one which was lawful. However, R. v. Forbes and R. v. Underhill were cases where, as in this case, the reference had been made to enable the court to re-consider the sentences imposed in the light of new material which had come to hand since the original sentence was passed.

15. The material accompanying the reference discloses that, in April 1995, the petitioner pleaded guilty in the County Court to three counts of demanding money with menaces ("blackmail") from a man to whom we shall refer as "JS". The charges were laid under s.87 of the Crimes Act, which, so far as relevant, provides as follows:

"(1) A person is guilty of blackmail if with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces ..."

The offence, at the relevant time, carried a maximum term of imprisonment of 12« years.

20. At the time when the petitioner pleaded guilty in the County Court, JS was then aged some 70 years and had, for a considerable period of time, been a senior member and "special minister" of the Church and Parish to which the petitioner and his family belonged. The offences of blackmail to which the petitioner pleaded guilty had occurred between June 1992 and September 1993 when the petitioner was himself aged 26 and 27 years. The plea was conducted on the basis that there were extenuating circumstances which had driven the petitioner to commit the crimes which he had admitted; namely, that they were a response to acts of sexual depravity practised upon him by JS in the years of 1977 and 1978 when the petitioner was a young boy aged approximately 11 years. It was contended that JS had breached the considerable trust placed in him by the Church and the Parish by taking sexual advantage of young parishioners, including the petitioner, who had been placed into his care by their parents.

23. Upon the hearing of the plea, it was put on the petitioner's behalf that he had silently endured for more than 15 years the mental anguish of the sexual depredations which had been inflicted upon him to the point where his anguish and disillusionment had got the better of him, resulting in the unlawful demands which had been made upon JS in the years 1992 and 1993. The first two of those demands had met with success in the sense that JS had paid to the petitioner a total of $5,500. The final demand, which was made on 5 September 1993, was in a particularly aggravated form. The demand was couched in a letter which had been placed in JS's letter box, was anonymous, and made a claim for $3,500 which was to be placed in an envelope and put in a telephone box in a particular street in Glen Iris at 9.30 p.m. on 8 September 1995. It was accompanied by a threat that if JS did not pay this amount he would "experience more pain" than he "believed possible" and that the writer would "beat the absolute fucking crap out of him". The letter stated that a further $1,000 would be demanded every time the writer was required "to beat [the victim] up" until he paid. It was no doubt the tone of the letter which finally caused JS to succumb, for, notwithstanding the potential consequences to himself, he took it to the police. This action led to the inevitable apprehension and charging of the petitioner but also led to an investigation by the police into the past activities of JS, who was ultimately charged with a large number of sexual offences perpetrated upon the petitioner and other young boys in the 1960's and 1970's. During that investigation, JS denied the allegations made against him, a course which rendered a trial necessary. It was a trial at which the petitioner was required to give evidence. Upon the trial, which was conducted after the petitioner had been dealt with, JS was convicted and imprisoned. The proceedings against JS must have been galling to the petitioner not least because, during the course of them it was put to him in cross-examination that he was a liar. These proceedings, no doubt, served to accentuate the bitterness and resentment which had been harboured against JS by the petitioner.

26. Although the guilt of JS had not been established at the time when the petitioner stood for sentence, the petitioner's plea was conducted on the basis that the offences of blackmail, which he had admitted, were an excusable response to the outrages which he had suffered at the hands of JS so many years before. It was put that, whilst the law should not readily tolerate the commission of serious offences to expose the commission of others, it was readily understandable that the petitioner, in the fragile and confused state of mind to which he had been reduced by the predatory conduct of JS, would choose the method of exposing that conduct which in fact was chosen. Indeed it was contended on the petitioner's behalf that the dominant influence which JS exercised within the Parish over parents and children alike not only made it difficult for the petitioner to discuss with his parents and others the past outrages to which he had been subjected, but rendered it unlikely that JS would be "brought to book" in the absence of dramatic means such as those chosen by the petitioner. It was contended that such was the delicate balance of the petitioner's personality by 1992 - to which confusion, lack of self-esteem, anger and resentment had each contributed - that the court should be prepared to extend its compassion to the petitioner by imposing a sentence which did not involve the recording of a conviction. It was said that, placed in its proper context, the petitioner's conduct should be viewed by the court as nothing more than a "cry for help" and, given his otherwise unblemished record, it would be counter-productive to record a conviction which would remain as a permanent legacy to retard his future rehabilitation.

29. In the course of the plea, the judge was told that the petitioner, following his arrest, had been referred to, and treated by, Dr. Cronin, a consultant psychiatrist. When the sentencing judge asked why he had not been favoured with a report from Dr. Cronin, he was told by counsel that, although there was a brief report in existence, it was "not in proper form" and contained material which, in counsel's view, was irrelevant and "inappropriate" for the court's consideration. In response to the judge's inquiry as to whether he should "draw an inference that [the report] would not have assisted [the petitioner's] plea", counsel was at first disposed to concede that such inference might be drawn - a concession from which he later resiled.

32. During the plea, counsel led evidence from the petitioner's mother and his aunt, Dr. Elizabeth O'Brien, who was herself a psychiatrist but unable to assist by way of professional opinion, rather only by observation of the petitioner's past conduct. It had been in this context that his Honour had raised the question of seeking the assistance of Dr. Cronin, the treating psychiatrist. Counsel had informed his Honour that the psychiatrist was away at the time and that his brief report contained material which was inconsistent with his client's instructions and "inappropriate to go before your Honour". It remains only to observe that counsel had also called on the plea the former principal of the Parish Primary School who gave evidence of the powerful influence which JS had exercised in the district and of various observations which she had made of the petitioner at the relevant time which tended to suggest, in retrospect, the inroads into his personality of JS's conduct. In addition, counsel called the person who had been, at the relevant time, the Monsignor of the Parish to give evidence of the remorse which had been demonstrated by the petitioner in respect of the offences which he had committed.

35. It is at this stage, perhaps, relevant for us to note that part of the material which has been forwarded to us with the petition is a copy of the short report of Dr. Cronin of which the petitioner's counsel at the plea was possessed, and a handwritten letter dated 3 September 1996 from the petitioner's counsel to the petitioner's mother concerning that report. It is unnecessary for us to refer in great detail to those documents. It is sufficient to say that the psychiatrist's report did in fact detail a number of instructions which the psychiatrist claimed to have received from the petitioner in a form which makes readily understandable counsel's desire not to put that report before the judge on the plea. Counsel's letter to the petitioner's mother makes clear his reasons for not tendering the report.

38. It was made apparent by the sentencing judge at a relatively early stage in the plea that he was sympathetic to the plight of the petitioner for he said, during the course of submissions, that he was "not going to impose any actual custodial sentence". Furthermore, the prosecutor had taken no issue with what she described as "the extremely impressive material and evidence" which had been put to the court. Those matters, as we see it, were carried into the reasons for sentence given by the sentencing judge. He ultimately imposed sentences of imprisonment of nine months on each of the three counts of blackmail, cumulated three months of the sentences imposed on counts 2 and 3 upon the sentence imposed on count 1, making a total effective sentence of 15 months' imprisonment, the whole of which he suspended for a period of two years. In arriving at the penalty which he did, his Honour accepted that the petitioner had been molested by JS and that the motivation for the offences charged "was substantially an act of revenge" against the perpetrator. The judge nevertheless took the view that the offences charged were premeditated, so serious and carried out over such a long period of time that no sentence other than one of imprisonment was warranted. However, he was, in the circumstances, prepared to wholly suspend the sentence because, inter alia, he was satisfied that the petitioner had suffered emotionally as a result of the assaults upon him and because those assaults had inhibited his scholastic achievements and had led to instability in his life. His Honour was also satisfied it was unlikely that the petitioner would re-offend. In the course of his reasons, the sentencing judge once again referred to the "puzzling" failure on the part of counsel to file the report from the psychiatrist but said that he did not propose to speculate as to why the course had been adopted.

41. On 9 August 1995, an application for leave to appeal against the sentence came before the Court of Appeal (see R. v. M.J.R.[18]). Crockett, A.J.A., who gave the leading judgment of the Court, described the case as "an unusual one" which obviously had "presented the judge with a somewhat difficult sentencing problem". The sole ground of appeal was that the sentence was "manifestly excessive". His Honour, after referring to the material which was before the sentencing judge, concluded as follows:

"What the applicant did no doubt was done, as I have said, under the influence of a sense of anger and deep hurt. He had no prior convictions. He was otherwise a decent, law abiding young man. He readily conceded his guilt when his actions were detected by the police. It is plain that he suffered deep remorse, shame and embarrassment. The judge thought the applicant was unlikely to re-offend in the future and that finding was amply supported by the evidence. However, victims cannot take the law into their own hands. Two wrongs do not make a right. The applicant could, and should, have reported [JS's] offences to his family or police when they were committed; although one can understand that his youth and shame and embarrassment would have inhibited his adopting what now seems to be the sensible course to have followed. Having said what I have about the matter, the question still remains one as to whether or not the sentence can be held to be manifestly excessive or whether the sentence imposed was one within the range of the sentencing discretion possessed by the judge. It is said that what the judge ought to have done was to have imposed a fine or to have adjourned the proceedings upon the applicant's entering into a recognizance to be of good behaviour, without in either case recording a conviction. Such a course, I think, might have justifiably been adopted by the judge in all the circumstances, which as I have said were so unusual. But the fact is that the judge chose not to do so. It may be conceded that the possession of convictions, for an offence such as blackmail particularly, may prove to be an embarrassing stigma to the applicant later in life. But, even bearing that consideration in mind, it cannot, I think, be said that the sentence which the judge did choose as being in his judgment appropriate in the circumstances was disproportionate to the applicant's moral culpability. Having given the matter anxious consideration, I find I am bound to hold that the sentence passed was not one which was beyond the range of the judge's sentencing discretion. As a result I am driven to conclude that the application should fail."

Hayne, J.A. and Hedigan, A.J.A. agreed in the conclusion reached by Crockett, A.J.A.

46. J.S. continued to deny his implication in the offences which had been alleged against him. In December 1995 he stood his trial on 10 counts alleging sexual assaults against two of his victims, one of whom was the petitioner. On that trial, as we have said, the petitioner was required to give evidence. In respect of those counts JS was found guilty by the jury and, following his conviction, he entered pleas of guilty to presentments alleging sexual assaults against two other boys - again offences alleged to have occurred during the 1960's and 1970's. He stood for sentence in January 1996 and, in the course of his sentencing remarks, the sentencing judge stated that he was satisfied that each of the victims "has suffered and continues to suffer significantly". (The judge had before him, inter alia, a victim impact statement made by the petitioner.) The sentencing judge described JS's conduct in the following way:

"In the 1960's and 1970's your house was a meeting place for groups of young boys at weekends. Most of them were boys from the local parish school, but some of them travelled from some little distance away because of relationships which had otherwise been established. Your home was regarded as a place of social resort. There was a pool table there, and you allowed them substantial freedom in their conduct and behaviour whilst they were at your place, in terms of matters such as smoking and swearing and the like. On occasions some of these boys stayed overnight. Usually, if that occurred, it was on a Saturday night, and when that happened, not uncommonly, they would then accompany you to Mass on either Saturday night or Sunday morning. The fact that these offences occurred in that sort of setting, coupled with the circumstances that the boys knew of your involvement in the Church and your standing and esteem in the eyes of the public, seems to me to aggravate the offence. It aggravates it, in my view, because of the implicit hypocrisy which they must have perceived between your public life and standing and the offending conduct to which they were subjected by you."

50. Having regard to the age and poor state of health of JS, and the age of the offences themselves, his Honour imposed an aggregate period of imprisonment of three years and fixed a minimum of 12 months as the period to be served before JS was eligible to be released on parole. On the 15 February 1996 this Court entertained an application by JS for leave to appeal against his sentence on the ground that it was manifestly excessive. On 19 February 1996 the Court dismissed that application saying that it regarded the sentence imposed as "anything but excessive".

53. There the matter stood until 16 July 1996, when the petitioner's mother wrote, on behalf of the petitioner, asking for executive clemency in the form of a pardon. Reference was made to the trust which had been placed in JS by the parents in leaving the petitioner and other young boys in his care. Further reference was made to the personality disturbances that, in retrospect, had been observed in the petitioner and the difficulties that the petitioner had had in concentrating on his work at school. The petition referred to the withdrawn nature of the petitioner and his manifest unhappiness, the reasons for which those close to him were unable at the time to understand but which had, by then, become clear. The point was made that it was to be inferred that the power and influence of JS had been so great that each of the boys who had been preyed upon by him had not disclosed any of the activities to their parents. It was not until the petitioner had himself been arrested for the offences of blackmail, that he was first able to discuss with those close to him the type of person that JS was, and the extent of the damage which he had caused. Reference was also made in the petition to the failure to obtain an appropriate report from the treating psychiatrist and to the ordeal to which the petitioner had been exposed in being required to give evidence against JS.

56. The petition was supported by letters from other responsible people within the Parish. Amongst other matters, these letters pointed to the disadvantage which might have flowed to the petitioner in being dealt with before JS had been tried. Reference was also made to the "sympathetic attitude" which had been displayed towards the plight of the petitioner by the Court of Appeal and the indication given by that Court that a "non-conviction sentence" might have been within the range of sentencing options available in the circumstances. Furthermore, those who wrote in support of the petition verified the underlying good character of the petitioner, the very unusual circumstances in which he had been driven to commit the offences which he had committed, and the fact that the convictions would remain "a sad and permanent legacy" which was inconsistent with the reputation which the petitioner bore within his own community.

61. The matters to which we have referred in the preceding paragraphs constitute a broad outline of the case which has been referred to this Court for its hearing and determination. It is apparent from the reference that it is the "whole case" which is being referred to the Court and that means that such case is to be heard and determined "as in the case of an appeal by a person convicted" (s.584(a)). Accordingly, the grant of the Court's leave, which s.567(d) of the Crimes Act requires where only the sentence is in issue, is dispensed with. Indeed that is made clear by rule 2.12 of the Supreme Court (Criminal Procedure) Rules 1998, which prescribes that a petitioner whose case has been referred pursuant to s.584(a) of the Act shall "for the purposes of the Act and this Order be taken to be a person who has obtained leave to appeal from the Court of Appeal". Thus, as we see it, the Court must treat the petitioner as a person upon whom there is conferred a right of appeal against his sentence by the Crimes Act, not only upon grounds specified in the reference, but upon such grounds as he wishes to rely without the need to procure the prior leave of the Court: cf. R. v. Chard[19]. (It should be noted that the House of Lords in Chard's case overruled R. v. Caborn-Waterfield[20] in which the Court of Criminal Appeal had held that the court should only determine those grounds which had been referred by the Home Secretary. In the light of the House of Lord's decision in Chard's case, and its apparent acceptance on this issue by the High Court in Mickelberg's case[21], the approval by our own Full Court in Re Matthews & Ford[22] of the practice described in R. v. Caborn-Waterfield must now be considered doubtful.) Although, upon a reference of the "whole case" under s.584(a) of the Crimes Act, the Court will have before it the entire record of proceedings which have preceded the reference, it will nevertheless be required to act only upon such parts of the material before it as are admissible and relevant to the determination of the appeal. And, as we have previously stated in [2], where the record discloses that an appeal has been previously heard and determined, it is not contemplated (at least in this country) that a ground of appeal already regularly dealt with and disposed of in that appeal should be re-adjudicated unless some new matter has come to light which makes re-consideration of the ground necessary or desirable. (R. v. Gunn (No.2)[23], Mickelberg v. R.[24], per Toohey and Gaudron, JJ.; cf. R. v. Chard[25], per Lord Diplock.) It is this aspect of the procedure pursuant to s.584(a) which, in our view, renders it somewhat unsuited to a reference of the sentence alone where the discretion of the judge has already been the subject of an appeal to an appellate court and found to be an appropriate exercise of the sentencing judge's discretion. It was, no doubt, such reservation which prompted Roskill, L.J. in considering the reference of a sentence in the case of Underhill[26], to remark:

"This is, so far as any member of this court is aware, the first time that the Secretary of State has exercised his undoubted powers in a matter of this kind and invited this court to reconsider a sentence which has been passed by a trial judge, the appeal against which has been dismissed by this court."

Nevertheless, as we have said, it is within the undoubted power of the Attorney-General to refer a case to this Court requesting it to reconsider such a sentence, and the Court must consider it in accordance with legal principles appropriate to an appeal against the sentence. However, because of the constraints to which we have referred, the appeal is unlikely to succeed unless there is some new and admissible material of sufficient cogency to compel us to the conclusion that some different and less onerous sentence should have been passed.

66. The petitioner's counsel, whilst acknowledging that the Court is to apply the same legal principles and exercise the same judicial discretions as it would in an ordinary criminal appeal against sentence, submitted that there was additional material which this Court should receive and act upon because it demonstrates that there has been in the instant case a miscarriage of justice. Counsel referred to the passages in the transcript of the hearing of the original plea which indicated that the sentencing judge desired to have, but was deprived of, evidence of a psychiatric nature explaining the petitioner's conduct. Counsel submitted that the additional material which he tendered to the Court was the sort of material which ought to have been before the sentencing judge on the initial hearing because it explained, with a degree of clarity not available to the judge, the causal link between the sexual molestation of the petitioner and his subsequent criminal conduct, and explained it in terms which so clearly demonstrated the lack of moral culpability on the part of the petitioner that, had it been available to the sentencing judge, it would as a matter of likelihood have led him to impose a sentence of a different kind and one which did not involve the recording of a conviction.

69. In particular, counsel sought to rely upon a report prepared by Dr. Cronin, dated 7 October 1996, a letter from Elizabeth O'Brien dated 16 September 1996, and two reports from Mrs. Veronica Roberts, a counselling psychologist, dated 4 October 1996 and 6 February 1999. The gist of the opinions expressed in those documents is as follows:

(a) Dr. Cronin reported that, during the years preceding the commission of his crimes, the pent-up anger and frustration within the petitioner caused him to consider means of exposing JS who he believed would not be exposed without some form of dramatic action. Dr. Cronin expressed the view that it was the emotional effects of the sexual abuse which led the petitioner to demonstrate the poor judgment which he did, and that, although he was aware that his actions were wrong in law, he "knew of no other way to have the man punished without revealing his deep sense of shame over the actions which had occurred". It was this shame which had interfered with the petitioner's emotional development and, in essence, he had become the victim of circumstances which were not of his own making.

(b) Dr. Elizabeth O'Brien, who, as we have previously stated, is the aunt of the petitioner and herself a consultant psychiatrist, reported that in her view the sentencing judge would have been assisted by a report from a forensic psychiatrist to explain the petitioner's motives. She expressed the opinion that if the petitioner had undergone an appropriate forensic assessment, a report of such assessment, coupled with Dr. Cronin's report, would have clearly exposed the petitioner's psychological state and its association with the earlier sexual abuse.

(c) Mrs. Roberts also expressed the opinion that the criminal conduct of the petitioner was not committed for any purpose of self-gain but rather was the product of his unresolved resentment and poor judgment brought about by the sexual abuse of his tormentor and was undertaken in the hope that he, the petitioner, would be caught and thus the process of exposing JS would be begun. She further expressed the view that she regarded the petitioner as a man of "exceptional integrity" and that "the devastation to him caused by the abuse led to the blackmail attempt, which after all the years of suffering in silence was both an effort to expose the abuser as well as a belated seeking of some revenge".

75. Counsel thus submitted that there had been a miscarriage of justice in the sentencing process because the sentencing judge, despite his repeated requests, had been deprived of a professional opinion explaining the causal relationship between the sexual abuse and the petitioner's criminal conduct. It was submitted that the "new material" which he tendered was cogent in the sense that, had it been before the sentencing judge (as it should have been), it was likely that he would have been prepared to impose a sentence of the type which the petitioner was seeking and which, as the Court of Appeal had indicated, would have been within the range of sentencing options open to him. In its absence, so it was contended, the judge was confronted with a paucity of material which was fundamentally relevant to the petitioner's claim for a "non-conviction disposition". Counsel submitted that this Court can accept and should be prepared to act on this "new material" in accordance with established principle. It was submitted that the material is admissible not only on the basis that it shows the true significance of facts which were in existence at the time of sentence (R. v. Eliasen[27]; R. v. Rostom[28]), but also because it demonstrates that there has been, in this case, the likelihood of a miscarriage of justice. Counsel referred us to the case of R. v. Knights[29], in which Crockett, J. referred to the passage in the judgment of Barwick, C.J. in Ratten v. R.[30], in the course of which the Chief Justice had explained that a Court of Criminal Appeal, upon a reference under s.584(a), was entitled to accept and rely upon "new evidence" if it demonstrated that it was likely that a miscarriage of justice in the trial had occurred. Crockett, J. went on:

"By comparative reasoning when dealing with an appeal against sentence, it is clear, I think, that this court may re-sentence if it considers that the failure of the sentencing court to have before it relevant and cogent evidence might well have led to the risk of a miscarriage of justice."

His Honour referred to and adopted a statement by Street, C.J. in the case of R. v. Abbott[31], where the Chief Justice had been prepared to entertain, on a sentence appeal, reports of a psychiatrist and a psychologist bearing upon the applicant's emotional state at the time when he committed the offences. The Chief Justice said:

"This material is highly relevant and ought to have been produced at the sentencing proceedings as it bears very significantly upon the determination of the sentence and the non-parole period. In the absence of that material there can be little quarrel with the sentence and the non-parole period determined by the learned judge, but taking into account that material, it establishes a case in which a shorter sentence and non-parole period were adequate to meet the requirements of criminal justice."

The same principle was referred to, but not applied, by this Court in R. v. Babic[32]. It was also applied by this Court in R. v. Mandala[33].

82. In support of his submission that the Court should receive and act upon the new material produced by the petitioner, counsel relied upon what he described as the "relaxed and flexible" practice which the Court has adopted in references of this kind to the acceptance of fresh evidence where that evidence suggests that a miscarriage of justice may have occurred (R. v. Sparkes[34]). That, however, is a practice which has been applied in cases which are discretely different from this case; namely where it is suggested that the new material shows that a miscarriage of justice may have occurred in the jury's finding of guilt of the petitioner (see also Ratten v. R.[35]). It is not a practice which, so far as we are aware, has been adopted and applied in a case such as this where the Court is being asked to reconsider the sentencing discretion exercised by the judge. In any event, it is not only the "freshness" of the evidence which the Court is called upon to consider, but also its "cogency" in the relevant sense.

85. It was submitted by counsel for the petitioner that this Court, pursuant to the principle established in Knights, supra, should accept and act upon the "new evidence" which is before it. It is contended that it bears the requisite degree of relevance and cogency to which the authorities cited refer. Accordingly, it was submitted that, in the light of that new evidence this Court should now conclude that "a different sentence should have been passed" on the petitioner and, in substitution, should impose a sentence of a kind which does not involve the recording of a conviction (cf. s.568(4) Crimes Act 1958). Such a sentence, it was contended, should be one contemplated by Division 5 of Part 3 of the Sentencing Act 1991. In the light of the circumstances now known to the Court, including the new evidence, it was submitted that we could appropriately adjourn the proceedings without conviction upon conditional undertakings (s.75 of the Sentencing Act) or record an unconditional dismissal of the charges (s.76). In support of these submissions, counsel relied upon s.8(1) and (2) of the Sentencing Act. It was further submitted that the Court might, "very much as an alternative", consider adjourning the proceedings upon a conditional undertaking (s.72). Such a disposition, as counsel acknowledged, would retain the conviction within the meaning of Part VI of the Crimes Act, a conviction which would continue to exist as a "previous conviction" within the meaning of s.376 of that Act (compare s.8(2) and s.8(3) of the Sentencing Act). However, such a disposition, so it was said, would relieve the petitioner of the strictures which attend a wholly suspended term of imprisonment (see s.27(5) of the Sentencing Act). Any of these sentences, it was submitted, would give appropriate effect to the legislative purpose described in s.70(1)(e) of the Sentencing Act, namely:

"(1) An order may be made under this Division - ... (e) to allow for other extenuating or exceptional circumstances that justify the court showing mercy to an offender."

It was submitted that the circumstances attending the commission of the offences to which the petitioner had pleaded guilty, as now known, were sufficiently extenuating and exceptional to justify the "showing" of the Court's mercy by the imposition of any of the sentences which were proposed.

90. This Court has taken account of the material which has been provisionally put before it and has, for itself, anxiously considered whether it bears the degree of cogency which is sought to be attributed to it to render it relevant and admissible. At the end of the day, we have not been persuaded that it does and, accordingly, we shall not admit it. Although it explains, in professional terms, the mental processes which influenced the petitioner to commit the offences which he did, and perhaps more clearly explains the causal link between the sexual molestation of the petitioner and the commission of those offences, it is clear from the learned judge's sentencing remarks, and from the sentence which he imposed, that he was prepared to accept the fact that the petitioner was driven to commit these offences by reason of the predatory conduct which had been inflicted upon him by JS. Even in the absence of the material which is now before us, there was ample evidence before the sentencing judge which entitled him to draw the inference which he did and that was a fact which was readily apparent to the Court of Appeal when it entertained the petitioner's application for leave to appeal against the sentence imposed. It is also apparent from the judge's sentencing remarks that it was the seriousness of the offences, particularly the third offence, to which the petitioner had pleaded guilty which led him to impose the sentence which he did and which precluded him from imposing the "non-conviction disposition" which had been sought, notwithstanding the reasons for the petitioner's actions. His Honour was, in our view, correct in describing those offences as "serious" and, in doing so, he was only saying what this Court has said on other occasions (see R. v. Cavallin[36]; Director of Public Prosecutions v. Grabovac[37]). Nor, we think, can it sensibly be denied that the remarks made by the Court of Appeal on 9 August 1995 remain apposite, namely:

"It is impossible to deny, regardless of what weight may be given to the arguments of counsel for the applicant, that the offences on any view remain serious offences. And they remained so although the applicant may have been (as indeed it should be found that he was) motivated by the wish to revenge [JS] (sic) for the misery that [JS] had for so long caused him."

It was, no doubt, the seriousness of the offences which led the Court of Appeal to the conclusion that the sentences were "within the range" of the judge's sentencing discretion.

95. Notwithstanding that we share the sympathy which was obviously engendered in the sentencing judge, and in the members of the Court of Appeal, for the plight of the petitioner, we are not persuaded that the absence of expert evidence of a psychiatric nature suggests that a miscarriage of justice in the sentencing process may have occurred; nor are we persuaded, in the presence of the "new material" which we have considered, that a different sentence ought to have been passed. We agree with the submission made on behalf of the respondent that, to impose a sentence of the type which has consistently been sought by the petitioner, would be to trivialize the seriousness of the offences to which he pleaded guilty. Those offences were, in our view, serious examples of the serious crime of blackmail in respect of which the principle of general deterrence must play its part. In the long run the Court's mercy could not, in our view, extend beyond the significant mercy shown by the sentencing judge, even taking account of the petitioner's assistance in the trial of JS. Furthermore, even if this Court concluded that a different sentence ought to have been passed, a serious question would arise as to the appropriateness of now substituting a "different sentence" for one which has already been served. A sentence under ss.72 or 75 of the Sentencing Act would impose fresh obligations upon the petitioner which would expose him to jeopardies to which, in our view, he should not now be exposed; whilst the imposition of a sentence under s.76 of the Act would be manifestly incommensurate with the moral culpability involved in the offences to which the petitioner had pleaded guilty.

98. We agree with the submission made on behalf of the respondent that the circumstances of this case were such that, if any relief were to be given to the petitioner, only the executive could properly give it. For the reasons we have given, there is nothing which the Court can do which could not be achieved by the grant of a pardon, which is solely a matter for executive discretion. A pardon would not remove the conviction[38] but might be thought to go a long way towards the removal of the "sting" of such a conviction. However, the procedure provided by s.584(a) cannot be used impermissibly to achieve a result which is solely within the realm of the executive government's discretion.

101. For these reasons we are of the opinion that the appeal against sentence constituted by the Attorney-General's reference should be dismissed.

[1] [1974] VicRp 26; [1974] V.R. 201 at 212.

[2] [1974] HCA 35; (1974) 131 C.L.R. 510 at 514 per Barwick, C.J.

[3] [1973] VicRp 18; [1973] V.R. 199 at 212.

[4] (1943) 43 S.R. (N.S.W.) 23 at 25 per Jordan, C.J.

[6] [1989] HCA 35; (1989) 167 C.L.R. 259 at 311 per Toohey and Gaudron, JJ.

[9] (1943) 43 S.R. (NSW) 27 at 29 per Jordan, C.J.

[10] [1984] VicRp 67; [1984] V.R. 751 at 760.

[13] [1969] 2 Q.B. 468.

[14] (1984) 6 Cr.App.R.(S) 430.

[15] (1985) 7 Cr.App.R.(S) 348. It should be noted that, in respect of the sentence passed upon McKenna, it is doubtful whether the Home Secretary had power to refer under s.17(1)(a) of the Criminal Appeal Act as the relevant conviction had not been sustained "upon indictment".

[16] (1979) 1 Cr.App.R.(S) 270.

[17] [1967] S.A.S.R. 184 reversed on other grounds [1968] HCA 19; (1968) 122 C.L.R. 467.

[18] Unreported, Court of Appeal, 9 August 1995.

[19] [1984] A.C. 279 at 289 per Lord Diplock.

[20] [1956] 2 Q.B. 379.

[21] supra, at 311 per Toohey and Gaudron, JJ. with whose reasons Mason, C.J. (264) and Brennan, J. (274) agreed.

[27] (1991) 53 A.Crim.R. 391.

[28] [1996] VicRp 60; [1996] 2 V.R. 97.

[29] (1993) 70 A.Crim.R. 105 at 110.

[31] (1985) 17 A.Crim.R. 355.

[32] [1998] 2 V.R. 79 at 80 per Brooking, J.A.

[33] [1999] VSCA 159 at paragraphs 17 and 18 per Phillips, J.A.

[34] [1956] 2 All.E.R. 245 at 248.

[35] supra, per Barwick, C.J. at 516-7, 518-9.

[36] Court of Appeal, Unreported, 24 July 1996 per Tadgell, J.A. at page 10.

[37] [1998] 1 V.R. 664 per Ormiston, J.A. at 688.

[38] R. v. Foster [1985] Q.B. 115.