R v Dent [2005] VSCA 42

2. I will invite Nettle, J.A. to deliver the first judgment in this matter.

6. This is an appeal against a total effective sentence of five years' imprisonment with a non-parole period of two years imposed on the appellant in respect one representative count of recklessly engaging in conduct which placed a child in danger of death (count 1), two counts of sexual penetration of a child under the age of 16 (counts 2 and 3) and two counts of assault on a child (counts 4 and 5), to all of which the appellant pleaded guilty. A judge of this Court granted leave to appeal on 20 August 2004 pursuant to s.582 of the Crimes Act 1958.

9. At the time of the offences, in or about January 2003, the appellant was almost 19 years of age and staying with a former school friend, ME. ME was a few years older than the appellant and had three young children: JEM, who was then four years of age, and twins, CSM and MASM, who were then two years of age.

12. The appellant had previously stayed with ME for a few weeks in December 2002, after experiencing some domestic difficulties, and while she was there she had assisted in the day to day care of the children, including bathing them before dressing. On one occasion during that stay the appellant had entered the bathroom while another female friend of ME was in the process of bathing the children. The appellant then took over the task of bathing MASM and CSM while the other woman dressed the third child. After a while the other woman noticed that the appellant was stroking CSM's penis and, in order to stop it, said: "I think that's enough washing now." The appellant appeared surprised that the other woman was present but stopped as requested. The other woman later told ME of what she had seen and that she did not think that the appellant should be looking after the children, but ME seems to have done nothing about it.

15. On 4 January 2003, ME told the appellant that she was to attend a function that evening at another town and that she was having difficulty finding a babysitter. The appellant responded that she would be prepared to look after the children and ME accepted the offer. ME added that she might not return that night but the appellant said that she was agreeable to staying over. Thus ME left for the function. At about 10.00 p.m. ME telephoned the appellant to confirm that she would not be returning home that night and, as it seemed to her at the time, the appellant was still agreeable.

18. Upon ME's return at about 5.00 p.m. the next day, the children ran out to her crying and apparently distressed, and, as the appellant attempted to take hold of them, they clung to ME. When later changing MASM's nappy, ME observed redness around his anus and penis, and when she changed CSM's nappy she also observed that his penis appeared red and sore.

21. On the morning of 7 January 2003, the appellant telephoned her social worker, AS, seeking an urgent appointment. During the subsequent discussion with AS about flashbacks and childhood incidents, the appellant said: "It's much worse than that and when [ME] finds out what I have done she'll kill me and I might as well do it myself." Thus it emerged that the appellant had done something to the children, but at that stage she refused to disclose what she had done. AS therefore arranged for the appellant to see JS, a specialist working at the Richmond Fellowship.

24. The appellant told JS that she had sexually molested ME's children. She stated that on a weekend between Christmas and New Year she had placed a pillow over the face of one of the children and that the child had turned blue (count 1), and when asked if she had penetrated the children, she said: "Yes". The appellant subsequently repeated the substance of those admissions to AS and added that she had abused one of the children while in the bath.

27. On 15 May 2003 the appellant was interviewed by police and made full admissions. She said that she had stayed at ME's house on the night that ME was away at the function and that she had assaulted both of the twins because they would not stop crying (counts 2 and 3), by punching CSM on the back of the head and throwing MASM out of his cot, and that when MASM had continued crying she had inserted her finger (count 4) "all the way" and then a vibrator (count 5) "part of the way" into his anus. She recalled that MASM was screaming as she did so and that she had afterwards noticed blood on the vibrator. She explained that she was angry with ME for leaving the children with her for the night. She also admitted to the police that on about eight separate occasions during her earlier stay with ME she had placed a pillow over MASM and suffocated him to the point of turning blue (count 1). She said, however, that she did not recall stroking CSM's penis while bathing him at that time.

30. On 30 September 2003 she was committed to stand trial and at that time she indicated that she intended to plead guilty. On 11 December 2003 she was presented for trial before the County Court and pleaded guilty to each count. After hearing an extensive plea in mitigation, the judge sentenced her on count 1, as a representative count of recklessly engaging in conduct that placed another person in danger of death, to three years' imprisonment; on the counts of sexual penetration of a child under 16 years of age (counts 2 and 3) to three years and four years' imprisonment respectively; and on each of the counts of assault (counts 4 and 5) to twelve months' imprisonment. Her Honour ordered that nine months of the sentence imposed on count 2, twelve months of the sentence imposed on count 3 and three months of the sentence imposed on count 5 be served cumulatively on the sentence imposed on count 1 and on each other. That gave rise to the total effective sentence of five years' imprisonment, of which the appellant was ordered to serve not less than two years before being eligible for parole.

Grounds 1 and 4: Manifest excessiveness and risk of harm in prison

34. The appellant's first ground of appeal is that the individual sentences were manifestly excessive in light of the appellant's intellectual condition. It is contended that the appellant was a profoundly afflicted individual, and in effect little more than a child confronted with circumstances beyond her capacities, and that the judge erred by imposing sentences of a duration appropriate for an adult prisoner of average intelligence whose offending was the product of predatory sexual deviance. It is submitted that the judge failed to have regard or sufficient regard to the appellant's youth, the fact that her disturbed functioning is said to be largely the product of a profoundly afflicted childhood, and the fact that the offences only came to light and probably were only proved by reason of the appellant's confession; her early plea of guilty; her recognition of the wrongfulness of her conduct; and the probable circumstances of her incarceration. She has been threatened in gaol and she is required therefore to serve her sentence in protective custody, which means that she spends some 21 to 22 hours of each day confined to a cell, with infrequent visits from family.

37. Forceful though those submissions be, I do not accept them. The judge dealt with the appellant's intellectual condition and her youth and the fact that she had confessed, as follows:

"62. Having regard to such expert opinion currently before the court, you must be sentenced on the basis that you pose a very high risk of re-offending. You have been described as suffering a mild or borderline intellectual disability and otherwise to present with a range of anti-social behaviour. A significant mitigating factor, which I do take into account is the fact that your voluntary confessions alone have brought you here. At 20 years of age, you are still a youthful offender and one for whom rehabilitation to the extent possible is clearly also a significant sentencing objective. You are clearly in need of intensive psychiatric and psychological counselling and treatment whilst you remain in custody and continuing specialist and social support when you are ultimately returned to the community. 63. However, given the serious nature of these offence and your current mental state as assessed, specific deterrence and protection of the community are paramount sentencing factors in this case..."

41. I see no error in that analysis. On the contrary, it appears to me to reflect keen attention to relevant sentencing considerations and a reasoned application of them to the facts of the matter. As her Honour made plain elsewhere in her sentencing remarks, the material to which she had regard in assessing the appellant's intellectual condition included reports prepared by consultant psychiatrists Dr Carol Newlands and Dr Bill Glaser and a very detailed psychological report prepared by Ms Caroline Storti. All of those reports appear to me to accord with her Honour's conclusion that the appellant had to be sentenced on the basis that she posed a very high risk of re-offending and hence that specific deterrence and community protection were paramount sentencing considerations. In Dr Newlands' report it was said that:

"She [the appellant] was aware that she faced a charge of sexual abuse of a child under 10 and had pleaded guilty. She was also aware that there were other charges. She stated that these events occurred about a year ago while she was babysitting the children of a friend over a weekend...In explaining her behaviour she stated that she was angry with this particular mother at the time because the latter had promised to give her payment of $50 prior to her leaving with her boyfriend to go to an engagement. Apparently she had not done this. Ms Dent also complained that there was no food left in the house for the children or herself and that she had had to acquire some from her own unit. She also added that she was `off my face' at the time of the offending. By way of explanation she stated that she and the mother of the children and her boyfriend consumed a lot of alcohol and drugs including `pot, ecstasy , speed and ice' prior to her being left to care for the children. She stated that she was only babysitting two of the children as a third one was visiting his father. She went on to say that the two children concerned were in bed but were awake and crying. Ms Dent reacted by turning up the radio so as to not hear them. She acknowledged that she was often irritable. She found the noise even more upsetting than usual. She explained that she therefore abuse the boys [M] and [C] who were twins. She described how she picked up [C] out of his cot and threw him. She also hit him on the back of his [head]. She acknowledged that she had sexually abused [M]. She explained that she had done so because `he's got a disability like me'. She was not able to describe the nature of his disability further. Likewise she could not further explain why this would be the reason that she would abuse him in this way... ... Mental State Examination Ms Dent presented as a lady of average height who appeared her stated age...Her speech was spontaneous and given in a rather matter of fact way. She acknowledged understanding the questions but later stated that she had attended a special school from 13 to 18 but that she could read and write. Certainly her answers were rather simply phrased but did appear to answer the questions put to her. She appeared to have no difficulty with memory or concentration. She was orientated to time, place and person. She exhibited no abnormality of mood during interview. There was no evidence of psychotic thinking. She showed no remorse during her discussion of events and indeed displayed anger and irritability that she should be facing charges when the mother of the children had not pursued the matter. She was thus quite self focused throughout the interview and appeared to lack empathy and remorse. Findings and Opinion Ms Dent presented as a 20 year old single lady before the court on several charges including that of sexual penetration of a child under 16. She acknowledged her guilt in respect of these charges and was willing to discuss her reasons for performing these acts. In listening to her description of events and observing her presentation at interview I believe her main problems are two fold. These include her intellectual disability and her somewhat difficult personality traits such that she is quite self focused and has little ability to empathise with others. These are further compounded by her tendency to abuse drugs and alcohol. As such I believe that she is at a high risk of re-offending..."

"In summary therefore, this 20 year old lady presents a somewhat complex picture. She is said to have an intellectual disability, although this was determined after an appeal to Intellectual Disability Review Panel (challenging her eligibility) and certainly she would, at worst, be functioning at a `borderline' level of disability. She is also said to have a `borderline personality disorder' but the evidence of this, as far as I can see is not particularly substantial. She may have a post-traumatic stress disorder which would be an understandable response to her own victimisation sexually and physically, as a child. She is fit to plead. The reasons and motives for her sexual offences remain unclear. The impression at this interview was gained that they may have been motivated by feeling of anger and revenge, rather than true sexual deviance, as such.... It is once more noted that this lady apparently could not be properly contained in the residential setting ins which se was placed during a period on bail, and she was engaging in a number of high risk behaviours. She does however appear to be somewhat chastened by her current prison experiences and this, in itself, may well be a powerful incentive for her to be more compliant with community-based dispositions..."

"Diagnosis In my opinion, Ms. Dent has adopted an antisocial pattern of behaviours that render her of risk to the community. Of primary concern is that on occasions, her behaviour is impulsive and hurtful to others. It is possible, that Ms. Dent has learned to victimize others more vulnerable than herself as a consequence of her exposure to violence in her childhood, and through her own victimization from others. The incidence pertaining to the violence to the children seems to have been designed to inflict pain as an action of expressing her anger toward the children's mother, rather than to be motivated by sexual pleasure. Ms. Dent has a history of responding aggressively to others when she is feeling hurt or frustrated and is unable to cope with these feelings or express herself appropriately. ... Dangerousness: In my opinion, Ms. Dent represents a danger to children and restrictions should be placed on her ability to be involved with them. Whilst her violent behaviour may be episodic, there are no reliable predictors of when she may be of risk to children. In considering factors associated with dangerousness, the following are indicative of Ms. Dent. History: * One or more previous episodes of violence * Repeated impulsive behaviour * Evidence of difficulty coping with stress * Previous unwillingness to delay gratification * Sadistic traits Offence: * Lack of provocation * Lack of regret (some regret evident in Ms. Dent related to the consequences for her, but not victim empathy) * Bizarre violence Mental State: * Morbid jealousy * Lack of self control Circumstances: * Provocation or precipitant likely to recur * Social difficulties and lack of support."

49. Counsel for the appellant made mention of the fact that the judge did not refer specifically to the appellant's incarceration in protective custody or as to the hardship which that imposes, but I do not see error in that. It is plain from the sentencing remarks that her Honour paid close attention to the psychiatric and psychological reports, and, as has been seen, the psychiatric reports made the position clear. It goes without saying that her Honour would bear in mind the sorts of conditions in which the appellant was likely to be kept.

52. I also see nothing in the sentences themselves which is suggestive of error. Dr Newlands' observations as to the appellant's lack of psychotic thinking and the appellant's selfishness, lack of empathy and remorse, and Dr Glaser's observations as to the minimal, if any, nature of the appellant's mental disability, as to her motivation being anger and revenge, and Ms Storti's conclusions, all support the need, in my opinion, for specific deterrence which the judge detected. These reports also say more than enough as to the risks of re-offending to make community protection an equally important consideration. As well as that, the judge was rightly concerned about the seriousness of the offences and hence, I think, as much by the consequences of any re-offending as by the probability of it occurring. I reject the contention that the individual sentences were not within the range open to be imposed. Indeed, had the appellant not been young and emotionally troubled in the way that she is, I should have expected the sentences to be considerably sterner.

55. Counsel for the appellant argued that even if the individual sentences were within the range, the total effective sentence of five years was disproportionate and crushing for a young offender of this kind. It smacks, he said, of warehousing - which I take to mean an attempt to deal with a problem for which there is no remedy, by locking the offender away - and he said it is clear that the appellant needs treatment, and not incarceration. He placed considerable reliance upon the observations of the Court of Criminal Appeal in R. v. Roadley[1].

58. Again, however, I disagree. Plainly enough, the appellant would benefit from treatment and it may be supposed, perhaps, that she will get it in gaol. But even if that not be so, I do not accept that it is warehousing to impose a prison sentence which is based upon a need for specific deterrence and community protection, notwithstanding what was said in R. v. Roadley, at least where the facts are as the psychiatric reports and the psychological report in this case show them to be. This is not the kind of case considered, for example, in Tsiaras[2], where the psychiatric condition of an offender makes specific deterrence more difficult to achieve or not worth pursuing as such. To the contrary, there is much in the reports which suggests that imprisonment is likely to be successful in achieving some degree of specific deterrence. Furthermore, and despite counsel's submissions to the contrary, I do not see anything in what is said in the psychiatric reports or the psychological report which suggests that any reduction in the appellant's moral culpability should be regarded as vast. Nor does it appear to me that the mental condition of the appellant is such that the sentence imposed would necessarily weigh more heavily on her than it would upon a person in normal health. As Dr Glaser said in his report, if she has a mental disability, it is no worse than borderline, and even then the evidence of its existence is not very substantial.

61. I am equally unpersuaded by the submission that the total effective sentence is crushing. Certainly, five years is a long time, indeed a very long time in the life of a young woman. But it does no more than reflect the gravity of the offences. As the judge put it, these were extremely serious, unprovoked attacks upon innocent, vulnerable and totally defenceless children left in the appellant's care. The appellant held a pillow over one child's face until he started to turn blue, and she had placed her finger "all the way", and then a large vibrator "maybe half the way" into an infant's anus, while all the time he screamed, I infer in agony. As the judge said, death or permanent serious injury could easily have resulted and there is no telling what lasting psychological damage the children may have suffered. Moreover, the judge paid close attention to the prospects of rehabilitation and return to society through the relatively very short non-parole period that her Honour set.

64. Counsel for the appellant also argued that the non-parole period was itself excessive. He submitted that the fourteen months which the appellant has already served is in itself more than enough and that she should now be eligible to be released on parole. For the reasons already given, I reject that submission too. Upon the view I take of the learned judge's sentencing disposition, the submission invites this Court to substitute its own views for those of the sentencing judge, even though her Honour's sentencing disposition was properly open to be followed.

Ground 2: Errors in relation to Dr Glaser's report

68. It was next said that, apart from anything else, the judge erred by forming a final conclusion on the disposition of the matter before all the evidence - and in particular the report of Dr Glaser - had been received; and by failing to receive further submissions following the tender of that report, and indeed by failing to take up Dr Glaser's recommendations; and by failing properly to consider all the sentencing options.

71. The first part of that submission was based on an observation made by the judge during the course of the plea hearing that:

"That situation where she is being proposed to be returned to precisely the same situation the risks must still prevail. So that assessment is something that hopefully can be done in the short term so that the options for her ultimate release can be known. But my sentence will certainly involve a period of continued immediate custody and other recommendations concerning ongoing monitoring and perhaps psychiatric appraisal as is appropriate."[3]

75. I accept that if that passage is read alone it may perhaps be taken as an indication that the judge had made up her mind about what she would do, regardless of the further report of Dr Glaser still to come. But once the passage is read in context by reference to the rest of the debate, it is clear enough that the judge had by no means made up her mind. Indeed, only a few moments earlier, her Honour had said:

"I'm not proposing to sentence today because I obviously wish to hear what further plea and what other matters have taken place since we last met. I do propose to - the lady is currently remanded in custody, I don't propose to change that situation. I take the recommendation that there be an assessment of the Community Disability Unit. I take that recommendation from Dr Newlands as something that has to be done, or should appropriately be done, at some stage given that this lady at some stage will have to be returned to the community."

Consequently, I take her Honour's observation about immediate custody as rising no higher than an indication, albeit a strong indication, of her Honour's immediate inclination, but subject to further thought and re-assessment after all the evidence was in. Indeed it could hardly be otherwise given the recommendation in Dr Newlands' report that a further opinion be obtained from Dr Glaser and that her Honour accepted that recommendation and adjourned the hearing so that the report could be obtained.

80. The suggestion that her Honour did not receive further submissions following the tender of Dr Glaser's report, in my view, fails in limine. There were no further submissions and counsel for the appellant then appearing did not seek to make any further submissions, either before or after the report was tendered, or indeed at any time after the judge signified that she proposed to impose sentence. If counsel had sought to make further submissions I do not doubt that her Honour would have listened attentively to all that he wanted to say, just as her Honour had listened to everything which to that point had been said.

83. The idea that the judge did not take Dr Glaser's recommendations into account is, I think, equally unfounded. It should be clear from those of the judge's sentencing remarks to which I have already referred that the judge did take Dr Glaser's report into account, but lest there be any doubt about it, I add that her Honour specifically referred to the report on a number of occasions in her sentencing remarks. Thus:

"58. .... the contents of the supplementary report provided by Dr Glaser of Forensicare. In his opinion, you present a somewhat complex picture [her Honour then paraphrased the remainder of Dr Glaser's assessment of the appellant's mental condition, and continued...] 59. In relation to your ultimate return to the community, Dr Glaser made the following relevant observations, and I quote [her Honour then referred to Dr Glaser's opinion that the appellant would require a highly supervised and structured environment if she were to be place in the community]... 60. Dr Glaser indicated that Forensicare could be involved in your future treatment and a review of the current justice plan would be appropriate ... [Her Honour then concluded...] 62. ... You are clearly in need of intensive psychiatric and psychological counselling and treatment whilst you remain in custody and continuing specialist and social support when you are ultimately returned to the community."

87. Counsel for the appellant submitted that the judge had misunderstood Dr Glaser's recommendations as being directed to the appellant's release into the community after a period of imprisonment, whereas they were in fact directed to immediate release on a community-based order. Counsel focussed in particular on her Honour's statement that Dr Glaser had reported that Forensicare could be involved in the appellant's treatment and that a review of the current justice plan would be appropriate. Counsel submitted that her Honour's statement showed that the judge proceeded on the erroneous view that a justice plan was somehow incorporated, or capable of being incorporated, into the sentence that she imposed.

90. I think that most unlikely. The judge after all is an experienced trial judge and therefore doubtless well aware of the provisions of s.80 of the Sentencing Act and of the functions of a justice plan. It can hardly be thought that her Honour would make a mistake about either, given the sorts of matters with which she must deal each day. Moreover, it is plain that Dr Glaser was directing himself to the possibility of release without immediate imprisonment, in which event he considered that there should be a review of the justice plan. I am unable to see why it should be thought that her Honour would interpret what he said otherwise than in the way that it was clearly intended to be interpreted.

94. Counsel for the appellant next referred to her Honour's reasons for setting a relatively low non-parole period. Her Honour said:

"75. I have set a very low non-parole period in the circumstances, in anticipation that you may be eligible to be transferred directly to a highly supervised structured and secure residential facility of the kind indicated by Dr Glaser, where you will receive ongoing treatment. At the appropriate time, I request that the Adult Parole Board only consider granting parole on this basis. In the meantime, whilst you remain in custody, I request that, as soon as practicable, you undergo further psychiatric assessment and treatment, and that there be continued consultation with Forensicare and appropriate officers of the Department of Human Services and Disability Services."

98. In counsel's submission those remarks betrayed error in three respects: first, by once more demonstrating that the judge had misunderstood the nature of Dr Glaser's recommendations, and thus wrongly proceeding on the basis of being able to impose within the sentence what was described as an ability in the Parole Board to have the appellant transferred to the type of facility envisaged by those remarks; secondly, in that contrary to s.5(2AA)(a) of the Sentencing Act the judge had had regard to the possibility or likelihood that the length of time actually spent in custody might be affected by executive action; and thirdly, inasmuch as the judge had attempted to fetter the discretion of the Adult Parole Board by directing in what circumstances parole could be considered.

101. I do not find that submission persuasive either. For the reasons already given I do not accept that the judge misunderstood Dr Glaser's recommendations or the applicability of them. Nor do I see anything in what the judge said which suggests that her Honour thought herself able to impose conditions on the Adult Parole Board. Her mention of the Adult Parole Board was perhaps not commonplace. But her Honour spoke in terms only of possibility - of "anticipation" that the appellant "may" be able to be transferred to the sort of facility of which Dr Glaser had written - and in terms of supplication that the Adult Parole Board might consider not granting bail on any other basis. It does not appear to me that the judge was making any assumptions as to whether the appellant would be transferred to a facility or purporting to issue any edicts about it.

104. The idea that her Honour took the possibility of executive action into account I think is also overstated. No doubt her Honour did look ahead to the possibility that the appellant might be granted parole and on condition that she be released into the sort of facility to which Dr Glaser had referred. There is also no doubt that her Honour said that she set a shorter non-parole period than otherwise she might, just because of that contingency. But a judge must always look ahead to the possibility of parole, and to such prospects of rehabilitation as it may afford, and set a non-parole period by reference to her or his assessment of the possibilities. Inasmuch as the judge here assumed or at least hoped that the appellant would not be released on parole otherwise than into specialist care, it may be that her Honour went further than the facts allowed or than it was her function to undertake. But even if that were so, and I find no need to express a concluded view about it, it can, I think, only have favoured the appellant. As the judge made clear, she set a shorter non-parole period than otherwise she would, because of her hope or expectation of specialist care.

107. Finally on this point, I see nothing in what her Honour said which suggests that she sought to fetter the discretion of the Adult Parole Board. Perhaps it would have been better if her Honour had not mentioned it, or at least, if she had chosen to do so, to add in express terms something to the effect that she did not make any assumptions as to the exercise of the Board's discretion or seek to fetter it in any way. But that would only be because, in the absence of words of that kind, there may be the potential for misunderstanding, or at least the potential for someone to suggest that there is misunderstanding. I am unable to see that what was said was productive of any error.

Ground 3: Risk of re-offending and protection of the community

111. Counsel submitted that the judge had erred in stating that the appellant was a very high risk of re-offending, whereas Dr Newlands had spoken only in terms of the appellant being at a high risk of re-offending. I do not see error in the judge's conclusion. I have set out, I think, sufficient of the expert evidence to show that it was well open to her Honour to conclude that the appellant was at very high risk of re-offending, and, if it matters, I am inclined to agree with her Honour's conclusion.

114. Counsel also contended that the judge had erred by placing far too much weight on the possibility of re-offending and the perceived need to protect the community. Counsel very forcefully stressed in support of that contention that the appellant had only been charged on summons; had been bailed on her own undertaking without special conditions; that she had not committed any further offences during an eleven-month period between offending and the judge's decision to remand her in custody; and that she had confessed to the offences shortly after their commission. It was further submitted that the judge had missed the point in failing to heed the observations made in Dr Glaser's report that it was unlikely that the appellant would be sufficiently forthcoming "in the prison setting" to enable a proper assessment of "the reasons and motives for her sexual offences" and that "an assessment of these issues is crucial in determining future and ongoing treatment approaches." On that basis it was said that the judge had produced a sentence which failed to take account of relevant considerations and which was in all the circumstance unbalanced.

117. I do not agree. The sentencing remarks to which I have referred show, I think, that the judge did consider the factors which militated significantly in favour of, as well as those which militated significantly against, the appellant, and that her Honour did strive to balance them in order to produce an appropriate sentence. For that reason it is in my opinion of no consequence that the judge did not mention specifically or at all some of the observations and recommendations contained in

some of the reports. It is plain that her Honour read the reports and considered their contents and it is plain that her Honour regarded them as an important consideration in the sentencing process. Contrary to the appellant's submissions, however, I do not think that they were the only relevant consideration or necessarily even one of the most significant considerations. As I have said now, regrettably, more than once already, given the nature and gravity of the offences and at least the high risk of re-offending, I reject the idea that her Honour was in error in regarding community protection and specific deterrence as paramount.

122. For those reasons, I would dismiss the appeal.

126. I agree, and for the reasons advanced by Nettle, J.A.

134. The order of the Court is that this appeal stands dismissed.

[1] (1990) 51 A.Crim.R. 336.

[2] [1996] VicRp 26; [1996] 1 V.R. 398.