R v Feretzanis [2003] VSCA 8

Ground 2 That the judge "erred in characterising the applicant's offence as a grave or serious example of the offence of affray".

Ground 3 That the judge "erred in failing to give any or sufficient weight to the undertaking of the applicant, given on oath, to testify in proceedings against other participants in the incident at Yarraman for murder and affray".

Ground 4 That the judge "erred in taking into account the deceased's death in sentencing the applicant".

8. The applicant was sentenced at this time and before proceedings for murder and/or affray against four other alleged participants in the affray have been heard even at committal stage, because, as appears from ground 3, the applicant had promised on oath that he was "prepared to give evidence when called upon to do so at committal proceedings and/or at trial of what [he] saw and what [he] did in accordance with the statement that [he had] made".

11. In the circumstances I propose to give only a brief outline of the factual circumstances which led to the applicant's plea and which formed the basis for his sentence: in general it is undesirable for judges and courts of appeal to express conclusions of fact to any greater degree than is necessary to explain their reasons and conclusions where other persons are awaiting trial for the same or related offences. At all events that factual basis appears in the judge's carefully expressed summary of them in [2002] VSC 582. Counsel for the applicant did not seek to challenge any of the judge's statement of facts or his factual conclusions except to the extent that, in support of ground 2, he challenged the conclusion that the particular affray to which the applicant had pleaded guilty was a "grave or serious example" of that offence.

14. In short it may be said, nevertheless, that the affray grew out of a clash between two gangs or groups of young people at or in the close vicinity of the Yarraman station early on the night of Friday 8 March 2002. The applicant conceded that he was a member of a group of former school friends calling themselves the "Cambodian Clowns" or "Kambodian Klowns"[1] who had met at a hall in Dandenong. In due course a number of them caught the train at Dandenong with the intention of going to the Moomba celebrations. They had stopped off at the Yarraman station so that some of them, at least, might consume some liquor bought by them and it was there that about eleven of them had encountered two members of a smaller group of four young men who were also said to have been drinking and had travelled from Dandenong.

17. When the gangs first met in a street near the station the applicant said that there had merely been comments exchanged, although it is said that some of those had an element of racist abuse directed to those of the larger group who were of Asian origin. Although there was then no physical clash the smaller group called up two further members of their group, including one Krezalek, who died from blows alleged to have been struck later in the affray. A further verbal altercation led to the larger group starting to chase after two members of the smaller group, one of whom broke away to go home.

20. A short time later it is said that the deceased and two other members of his group returned to the vicinity of the station allegedly armed with poles. There was at first more abuse and insults, but then it seems that about eight of the larger group were involved in throwing rocks and empty bottles from the platform towards the smaller group. A passerby claims that he was in such fear of the two groups that he warned off other members of the public near the station.

23. It is alleged that the larger group by this time armed themselves with wooden sticks, but the brawl temporarily ended when the smaller group, including the deceased, turned and walked away from the station down a lane. It is then said (and certainly conceded by the applicant) that he and two other members of the larger gang split from the rest and pursued the three members of the smaller gang down the path, arming themselves also with metal star pickets. It was then that a fight is said to have occurred on the pathway between those two smaller groups. According to the applicant the deceased was not aggressive but one of the other members of this second group swung a pole at the applicant and he reciprocated by attempting a swing which missed, but this led to him being struck on the shoulder by a pole and knocked to the ground where he said he was repeatedly struck on the head and body. He alleges he saw from the corner of his eye the deceased also being struck to the ground by other members of the larger gang whom he could not identify, inasmuch as by then the other members of that gang had reached them and sought to join in the fight. Precisely what else occurred need not be examined for the applicant took no further part in the admitted affray and shortly afterwards it came to an end, some half hour after the first altercation began. Commuters also gave evidence of their fear, describing the scene as a "war zone". It should be added that subsequent medical examination revealed that the deceased had suffered significant blows consistent with his being struck by a star picket, and that the other two members of the smaller gang had received a number of lacerations and three members of the larger gang had various bruises and scratches.

26. This description of a somewhat confused melee is sufficient for present purposes and indicates the nature of the allegations made and largely accepted by the applicant. Something more as to its seriousness will be discussed below. The Crown has at all times conceded that on this material there was no basis for charging the applicant with either murder or manslaughter and that his participation in the melee could not be characterised as more than participation in an affray.

29. The circumstances which led to the plea may be summarised in these terms. Although it was said that nobody at the time identified the applicant, it is by no means so clear that the other two members of the smaller gang could not have done so if they had chosen to, but they have also now been charged with affray. Certainly the applicant had not been arrested or questioned when he decided to attend with his solicitor at his local police station just six days after these events and to subject himself to a detailed interview by the Homicide Squad. He gave comprehensive answers to some 823 questions and then later that night signed a detailed statement as to the conflict between the two gangs on 8 March. Moreover, he then agreed to give evidence in accordance with his statement in subsequent proceedings against those charged with the murder of the deceased, but he was himself charged with affray, as were four other participants in the altercation. At every stage of the proceeding he has pleaded guilty and provided co-operation to the police and to the DPP.

32. One may briefly mention some personal factors relied upon by counsel both on the plea and this hearing. The applicant was 20 at the time the offence was committed and came from a stable family background. He had no prior convictions and had never been in trouble with the police before, although no explanation was given as to why he had become a member of the "Cambodian Clowns" gang which was described as a school group, at least in origin. His multi-racial tolerance was said to have enabled him, as an Australian of mixed Greek and Dutch descent, to join with a group primarily of Cambodian or Vietnamese origins. There was much evidence of his good character and reputation, as well as his prior integrity. He had a good educational record having recently completed a marketing course and had, at the time of the plea, recently embarked on a theological course at the Australian Catholic University. He had worked reliably in his father's business from time to time, had a close involvement with his local church and by all accounts, including the evidence of a clinical psychologist, had excellent prospects for rehabilitation. In substance all witnesses and character references had asserted that he was truly remorseful over the role he had played in the commission of the offence.

35. In the course of his plea to the learned sentencing judge none of these matters was disputed. The applicant gave evidence on oath of his intention to give evidence at the committal and trial of those charged with the homicide of the deceased. In the course of the plea counsel for the prosecution conceded that it was open to the judge to impose a non-custodial order by way of a fully suspended sentence, although she did not contend that he was obliged to do so. Towards the end of the plea the judge indicated that he was contemplating making a community-based order and to that end proposed to seek a pre-sentence report for that purpose. Such a report, favourable to the applicant, was promptly provided and received.

38. The learned judge in the course of his reasons for sentence set out the facts of the affray in considerable detail and expressed the view that it was a serious if not grave example of such an offence, resting his conclusion in part on the fact that a life had been lost. Nevertheless he accepted each of the matters stated in favour of the applicant which he said militated significantly against the weight of sentence to be imposed, including those matters which were characterised as his "willingness to come forward and assist the police, and to plead guilty" as significant factors. One of those matters, set out in the preceding paragraph of the judge's reasons was his willingness "to which you have attested on oath, to give evidence if called by the Crown in the committal proceedings and at any subsequent trial". Unfortunately his Honour did not thereafter state that he was imposing "a less severe sentence than [he] would otherwise have imposed because of [the] undertaking", nor did he cause the fact that the undertaking was given and its details to be noted in the records of the Court. These requirements of s.s.(2AB) of s.5 of the Sentencing Act (inserted in 1997) were therefore not fulfilled, but it must be mentioned that regrettably that sub-section and the related statutory provisions were not drawn to his Honour's attention by counsel, as might have been expected, especially in the circumstances. Although counsel for the applicant contended that the judge had not taken into account this promise, there was reference at the time when his willingness was described by his Honour to two cases in which discounts to intending witnesses had been discussed.[2]

41. Nevertheless, having reached the conclusion that the applicant was "truly remorseful" and that his prospects of complete rehabilitation were good, noting at the same time his willingness to assist the prosecution, the learned judge then turned to the extent to which he had to weigh in the balance the needs of just punishment, deterrence and denunciation. It seems clear that, although his Honour regarded the offence as a "serious offence of affray", he had given much thought to the possibility of a community-based order, as he had foreshadowed in the course of the plea. He considered "the possibly devastating consequences of incarceration in an adult prison upon a first offender of otherwise good character and relative youthfulness", but, notwithstanding the favourable opinion expressed in the pre-sentence report provided to him, he still considered that there was a "need to demonstrate denunciation [and] general deterrence". So, notwithstanding his acceptance of the applicant's youth, good character, prospects of rehabilitation and remorse, in which he included his plea of guilty and his promise of co-operation with the Crown, the judge concluded that a head sentence of imprisonment for 12 months was necessary. Turning then to considering the appropriateness of suspension of that sentence, as s.27(1) of the Sentencing Act 1991 requires, he concluded that it was desirable to suspend at least a part of the sentence, but, in order to give appropriate weight to the need for general deterrence, he decided that the applicant should serve three months of the sentence and that the remaining nine months be suspended for three years.

44. As to the contentions made on behalf of the applicant, I propose to deal first with the specific grounds before returning to ground 1 which alleges that the sentence was manifestly excessive.

47. Counsel argued grounds 2 and 4 together since in substance they went to the seriousness of the offence upon which the learned judge placed considerable weight. The primary complaint was that the judge was wrong in characterising the offence "as a grave or serious example of affray". To achieve this result, so the argument ran, as set out in ground 4, the judge wrongly took into account the death of the deceased when his Honour came to sentence the applicant.

50. I am by no means persuaded that the learned judge was wrong in characterising this offending as "serious" or "grave". Indeed, insofar as the materials are available to this Court, I would myself characterise this particular example of the offence, although not at the top end of the scale, as serious. It is relevant to the definition of the offence and the purpose behind its punishment under the common law that it consists in behaviour which makes members of the public terrified for their safety. A number of witnesses gave that evidence, one of them warning off other members approaching the railway station, a place which the public ought to be entitled to visit with safety in order to use the transport system of this city. That fear applied not only to the ultimate events where the applicant and his two friends followed the others down the path away from the station, but also in relation to the first stage where various members of the gangs recklessly threw rocks and bottles at each other regardless of their effect on others.

53. That first stage of the affray might not in itself have been characterised as truly serious if it had stopped at that point. The real vice in the applicant's behaviour was not that he was merely part of two gangs engaged in this unseemly "warfare", but that, as his Honour pointed out in paragraph [21] of his reasons, he was also part of a small group which had split from the rest of the gang and armed themselves with sticks and metal star pickets from the pathway as they followed the three members of the other gang away from the station. They did not merely follow but they participated in a vicious fight, albeit that the applicant's vain attempts to connect with post or stick failed and he was soon brought to the ground. That behaviour, following on the previous exchange, properly justified the judge's characterisation of it.

56. It was said that the judge was wrongly influenced in this conclusion by taking into account the fact that the deceased was killed in the course of it. He said the "consequence of the conflict was death" and that fact should be taken into account in assessing the gravity of the affray. The specific vice to which counsel drew attention was, of course, the possibility that the applicant had been sentenced for the consequences of an offence with which he had not been charged: see e.g. R. v. Newman and Turnbull[3]. I am unable to reach that conclusion. The judge pointed out that the applicant had not been charged with homicide and that he must deal with the sentence on the basis that the applicant participated only in the affray. But he was not thereby prevented from determining the nature of the affray by looking at all its circumstances, including the harm actually caused and the threats of potential harm in respect of which the public was put at risk. What the judge was doing when he referred to the fact that the affray ultimately led to the death of one of the participants was to use it to show the nature of the affray and the force and viciousness of their conduct which all the participants had brought about. As he said, "the fact that the death occurred is indicative of its seriousness". This was not a case where the applicant was a mere fringe participant in the affray who was unarmed or merely encouraging others to join in, nor was he one who primarily was engaged only at the rock-throwing stage, however serious that might be viewed. He could not, as the judge rightly said, have been held responsible for the death which occurred without his participation, but he was nevertheless one who armed himself in a way which meant that the outcome for some might be serious if blows were struck. Thus in my opinion the death was merely used by the judge as evidence by which he could gauge the seriousness of the fight between the two gangs and the nature of the affray as a whole. The fact was "indicative" that the affray was far more serious than a minor melee.

59. In my opinion the judge was not in error in considering the death of the victim in this way, nor did he wrongly characterise, for this or any other reason, the affray as grave or serious. Neither the second nor the fourth ground was made out.

62. The third ground asserted that the judge had failed to give any or any sufficient weight to the applicant's undertaking on oath that he would testify against the other participants in proceedings against them for murder or affray. As to this there can be no doubt that the prisoner testified on oath, albeit not in the terms of a conventional court undertaking, that he was prepared to give evidence at both committal proceedings and any trial in accordance with the statement that he had made. It is equally clear, as noticed above, that the judge did not comply with the explicit terms of s.5(2AB) of the Sentencing Act when giving his reasons for sentence and in the course of formally sentencing the applicant. Of course, what the applicant must show is not merely a failure to comply with the section, but that the failure was of a kind which indicated error in the ultimate sentence.

65. Section 5(2AB) of the Sentencing Act provides:

"If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details."

Section 5(2AC) continues by saying that nothing in the former sub-section requires the Court to state the sentence it would have imposed but for the undertaking, contrary to the practice for similar promises prescribed by the Crimes Act 1901 of the Commonwealth. In addition, an amendment to the Crimes Act 1958 was passed at the same time so as to insert s.s.(1A) into s.567A enabling the Director of Public Prosecutions to bring an appeal if an offender giving such an undertaking fails to comply with it.

70. Counsel asserted that the learned judge did not impose a less severe sentence because of the undertaking in that, in the later paragraphs of his sentencing observations, in particular paras.[46]-[49], no mention was made by him of the undertaking as such. Moreover, the failure to comply with the requirement of s.5(2AB) to make a direct announcement that he was imposing a less severe sentence led strongly to the inference that the judge had failed to take it into account either at all or at least to the extent that the law required. The same inference might be drawn by reason of the judge's failure to direct that the undertaking be noted in the records of the Court. For this he relied on the recent decision of this Court in R. v. Kuzuku, Arslan and Hanson[4].

73. Ordinarily the failure to comply with the terms of the section must raise a query in the mind of an observer and of an appeal court as to whether or to what extent the applicant's promise was considered, but in my opinion, notwithstanding what was said in Kuzuku, it does not follow, as the night the day, that a failure to make reference to an undertaking shows that the judge gave inadequate consideration to it. One must assume from the brief statement of the facts in Kuzuku that there was no other reference of a relevant kind in the judge's sentencing remarks in that case, such as would deny the prima facie inference. In the present case, however, there may be factors which would show that some account at least was taken of the undertaking, although the question still remains whether such a significant matter was dealt with appropriately.

76. In this case it is undoubtedly the fact that his Honour thought very carefully about giving a non-custodial sentence, so that in the course of the plea he asked for a pre-sentence report, such as would form the basis for his imposing merely a community based order. Furthermore, it is apparent from his reasons that he thought that virtually all the relevant factors which can be called in aid of an offender militated in his favour, other than the nature of the offence itself. Thus there is little doubt that the judge took account of the fact that he was a first offender, that he was only 20 at the time, that he had an unqualified reputation for not merely good character but also tolerance, that he had a genuine sense of remorse, which was attested to by many people, and that he had excellent prospects of rehabilitation as manifested by his excellent education record, his involvement with his church and the strong support of family and friends. To this the judge added, though only as one of the many factors to which I have adverted[5], his willingness to give evidence at committal and trial of the other alleged participants. So in this relatively early part of his reasons his Honour concluded:

"You are truly remorseful over the role which you played in the commission of the offence. I consider therefore that your prospects of complete rehabilitation are good. It appears less than likely that you will offend again. And I consider that your willingness to come forward to assist the police, and to plead guilty, are factors which militate significantly against the weight of sentence to be imposed."

80. That concatenation of factors was clearly seen by the judge to point strongly towards the conclusion that a non-custodial sentence should be imposed, so that at that stage of his remarks the judge proceeded to examine whether he could impose merely a non-custodial sentence such as a community-based order or whether the seriousness of the offence required a "just punishment" which would manifest at least appropriate denunciation and the need for general deterrence.

83. I shall return in a moment to the manner in which the judge approached the final stages of his reasoning. It should be recalled that in these remarks pointing in favour of the applicant, his Honour had directly referred, in describing his willingness to assist the police, to the cases of Perrier and Ngui. Indeed he pointed to passages in those two judgments which referred to the appropriate discount to be given to offenders who assisted the authorities by agreeing to give evidence against fellow offenders. His Honour appeared to contrast the two cases, referring to a passage by McGarvie, J. in Perrier at 726-727, with whom Murphy, J. agreed but from whom Brooking, J. dissented, in which it was held that ordinarily a courier who agreed to give co-operation by giving evidence should be given a reduction in the range of two-thirds. In the later case of Ngui it may be said that the President took a more cautious approach, referring to the relevant competing factors (at the page cited by his Honour[6]) before imposing a sentence which was four-fifths of that which he otherwise would have imposed. I would observe that neither of these discounts should be viewed as insignificant, but the difference from Perrier was not explained in the later case.[7] Nevertheless, although the judge in no way is obliged under the Victorian legislation to state the extent of the discount granted to an offender undertaking to give evidence, no further indication of the significance of this factor in the sentencing process appeared later in his Honour's reasons for sentence.

86. As I have said, the learned judge, having expressed himself at one stage as having been willing to contemplate a non-custodial sentence, then looked at the various factors which pointed in the opposite direction such as deterrence and denunciation. He referred to a number of cases in which affray had been treated as a serious offence deserving of a sentence of imprisonment. I would not seek to deny that many examples of affray are serious, nor that this particular example properly was to be so characterised. What the appropriate sentence should be, of course, these days depends on a vast number of factors not merely relating to the criminality of the offence but the criminality also of the offender. One should be cautious, nevertheless, especially when dealing with a first offender, in concluding that a sentence of imprisonment is ordinarily the appropriate penalty for this class of offence. As I say, his Honour cited a number of cases where he said that affray was said to warrant a sentence of imprisonment. Unfortunately one of those, R. v. Stevenson[8], was not a case where, as he asserted, "the only offence was affray". The applicant there was in fact also convicted of intentionally causing serious injury, and, as I read the President's reasons in that case, it was that offence which led him to say that it was so serious that it "demanded the imposition of a sentence of imprisonment immediately to be served".[9]

89. Thereafter, the learned judge recognised the potentially devastating consequences of incarceration on a first offender before concluding that it was necessary to demonstrate denunciation and provide general deterrence. His Honour continued in substance as follows:[10]

"Your youth, your prior good character and your sense of remorse (including your plea of guilty and your co-operation with the Crown), as well as your chances of complete rehabilitation, have together gone a long way to persuading me that the purposes for which sentence is to be imposed on you might be achieved by a community based order ... But in the end, in the circumstances of this case I do not consider that the need to demonstrate denunciation or for general deterrence can be met in that fashion. ... Bearing in mind the serious nature of the affray to which you have pleaded guilty, and balancing as best I am able the competing considerations of your youth, good character, remorse, prospects of rehabilitation and the desirability of avoiding prison for the first time for a first time offender, against the need to manifest denunciation and for general deterrence, I have concluded that a sentence of imprisonment for a period of twelve months is necessary to be imposed."

I trust I have not misstated the essence of his Honour's reasoning by shortening the passage somewhat, but this passage which led to the imposition of what may be described as the head sentence, i.e. the sentence before an order for suspension was made, makes little reference to the significant factor of the applicant's willingness to give evidence against his co-offenders. The word relied upon by the respondent to show that these matters were not out of the judge's consideration at the time was his description of "remorse", which thereby included not merely his plea of guilty but also his "co-operation with the Crown", which might be said to catch up with it his undertaking to give evidence, so that when the word "remorse" was used in the last sentence quoted it should again be understood as referring also to that undertaking. I have considered these passages and indeed the whole of the reasons for sentence long and hard to see whether I can fairly spell out of it an appropriate consideration of that undertaking and a fair indication that it was properly being taken into account in the final decision to impose the sentence. At the least it can reasonably be observed that the applicant himself would have found it hard to detect a reference to that from the manner in which these reasons were expressed.

94. His Honour's reasons, of course, proceeded to deal with the question of suspension. That described first the Crown's submission that "having regard to your personal circumstances and other mitigating factors, and especially your co-operation with the police and the Crown, it would not be inappropriate wholly to suspend the sentence". The difficulty is that, not only did the judge not fully accept that contention, but proceeded to deal with the matter somewhat differently. Having accepted, on authority, that even a wholly suspended sentence may play a role in deterring others, he nevertheless concluded that "I do not consider that it is appropriate wholly to suspend your sentence because in my view that would not satisfy the need for just punishment".

97. Now it must be conceded that in the course of reaching these final conclusions there was reference, among other matters, to the applicant's "co-operation with the Crown", when fixing the head term of twelve months, which had to be included, as the judge expressed it, in his sense of remorse, and that remorse, if one can properly treat the judge as having created his own dictionary for the purpose, was mentioned again amongst the factors to be considered against the need for denunciation and general deterrence. Likewise, in considering the extent to which the sentence should be suspended, his Honour mentioned again the co-operation with the prosecution but, regrettably, only in the context of referring to the Crown submission that it would not have been inappropriate wholly to suspend the sentence, a course which he did not take in the end. Whatever had been said earlier, and the applicant's undertaking to give evidence had been listed as only one amongst many favourable factors, the reference to that willingness to give evidence was merely fleeting at the critical stage when the judge was announcing his sentencing conclusions and indeed, so far as suspension is concerned, the applicant's co-operation seems implicitly to have been either rejected, because he did not accede to the Crown's concession, or at best it was a factor which was being given qualified weight. Taking the sentence as a whole, therefore, and again its structure may be seen at [2002] VSC 582, the fact of the undertaking, though not wholly ignored, seems to have been treated as only one relevant factor among others relied on by his Honour to ameliorate the sentence which he might otherwise have given. To say, therefore, that the judge directly "announced" that he was imposing a less severe sentence than he otherwise would have done because of the undertaking would be an inaccurate description of the sentencing process he adopted.

100. The fact that a judge does not announce that he is imposing a less severe sentence because of an undertaking may not necessarily of itself provide a basis for inferring further sentencing error. In the first place the judge is not obliged to reduce the sentence because of such an undertaking but, having regard to its significance to both the whole prosecution process and potentially to the particular individual, it would be a rare case where some discount was not given and in any case, where such a conclusion is drawn that a reduction is inappropriate, that now should be stated in the judge's reasons, unless there be some concession on the part of the offender in the course of the plea. It is another matter whether compliance with the language of the section is essential to that process. In my opinion the purpose of the section was primarily to encourage offenders to give such undertakings and for courts to take them into account where there might otherwise have been a doubt as to the willingness to give evidence or the practical likelihood of the undertaking being fulfilled. In other words, having regard to both s.5(2AB) and the amendment to s.567A of the Crimes Act, the Crown is now given a means of ensuring compliance by being given the right to appeal on sentence out of time if the undertaking is breached. The required statement and its recording in the court records is primarily intended to ensure that the offender knows that he or she is being given special treatment and that the Crown has clear proof of there being such a reduction, so as to justify any appeal when the undertaking is not fulfilled. A further subsidiary purpose may be said to be the need for matters of this kind to be stated explicitly in a judge's reasons, both so that the offender might understand that he or she is being given a lesser sentence for a specific reason which is publicly recognised and that those who might otherwise read the sentence will understand that the offender is being given a less severe sentence on clearly recognised public policy grounds. It is vitally important to the administration of justice that witnesses can be encouraged to come forward and for them to be given appropriate recognition.

103. However, I would not consider it necessary for a court to draw an inference every time, by reason of any non-compliance with the section, that there had been a failure properly to take into account this very important factor of giving an undertaking to give evidence. There are many ways in which it can be made abundantly clear in the course of sentencing remarks that such a factor is being given its due weight without the judge explicitly stating that the Court is "imposing a less severe sentence" than it would otherwise have imposed. It may well be sufficient, for example, for a judge to come to this issue towards the end of the sentencing reasons and, by placing sufficient emphasis on the undertaking, to make clear that the sentence otherwise contemplated was being appropriately reduced.

106. Nor do I think that the passing of the section has made any difference to the weight which a judge should give to such an undertaking, for it is primarily concerned with process rather than substance. Before the section was recently passed there were many cases heard where very substantial discounts were given by reason of undertakings to give evidence, albeit that there was no means of putting right any failure to comply with the undertaking. It was a regular occurrence, where such offers were made, for the judge to impose a significantly lower sentence on a prisoner. Nothing to which our attention was drawn, nor anything I have subsequently read, would indicate that it was intended that a greater discount should now be given because of the passing of the section. It may have had an incidental benefit and judges can now have greater confidence in granting such a discount, but that is a different question.

109. The real question is whether the judge gave proper weight to the offer in all the circumstances of the case. That necessarily involves a value judgment but the judge's reasoning may give clear indications as to whether he gave the matter proper significance in the whole of the process of sentencing the applicant. I have thought carefully about this matter for it could in no way be said that the judge was ignorant of the offer or that he had disregarded it wholly in the course of giving sentence. It was clear that on the plea counsel for the applicant relied upon it and took the sensible step of requiring his client to give sworn evidence to that effect. Nevertheless I have concluded that the consideration given to this particular factor was not adequate. Offering to give evidence was and is a special factor ordinarily requiring direct and explicit treatment, albeit that the Victorian Sentencing Act does not require a specific calculation to be made or expressed. It is ordinarily so important a factor that those listening to the sentence or reading the remarks, whether they be the offender or the public, must know whether and how that factor has been taken into account. The object of the section is in part to ensure that the offender is given due public recognition for his offer and that he or she and the public know that a significantly heavier sentence would otherwise have been passed. But that has not occurred in the present case. His Honour's limited discussion of the factor at the critical stage of the sentence suggests on its face that it has had too little significance placed on it and the comparative severity of the sentence, to which I am about to turn, confirms that impression. For those reasons I am of opinion that proper weight was not given to the applicant's offer in this case. The consequence of that failure must still be assessed in terms of the effect on the ultimate sentence and for that purpose I will turn to the first ground in the notice, namely that complaining of manifest excess.

112. Most of the matters relating to the first ground have already been discussed. All the conventional factors, certainly those militating in favour of the applicant, have clearly been expressed and one may infer that they were taken into account to some degree. Likewise it was open to the judge to reach a conclusion that the nature of the affray was serious, so serious that public denunciation and the need for general deterrence had to be given appropriate weight, even to the point of requiring that some of the sentence should be served in custody. It was a case, however, where every conceivable factor weighed in favour of the applicant so far as his personal characteristics and background were concerned and it was only the nature of the offence which the judge might properly have used to come to the opposite conclusion so far as a custodial term was concerned, especially having regard to the prosecution's concession. Even then, if the judge had significantly reduced the sentence and done so explicitly, he might still have properly reached the conclusion that the nature of the offence required some time to be served in custody by the applicant.

115. Nevertheless, with considerable reluctance having regard otherwise to the judge's carefully expressed reasons, I must draw the inference that the factor of the undertaking was not adequately reflected, to the extent that I think that the ultimate sentence was excessive. These are frequently matters of impression and it is not the role of this Court to second-guess sentencing judges. Were it not for this factor the sentence would have been within range, but the undertaking was so important in the circumstances that I believe that it was not adequately reflected in the ultimate sentence. In particular, unless the judge had explicitly reached a conclusion to the contrary on the reliability of the undertaking or its usefulness, then this was a case for a substantial discount for a number of reasons. The offences charged against the others include charges for murder, the evidence will be given against several people with whom he associated in a gang and his statement is explicit enough in detail for it prima facie to have considerable importance at any trial. One need not labour the risks involved and the criticisms to which he may well be subjected, but I have not the slightest doubt that this offer required a substantial reduction in the sentence which should otherwise have been imposed.

118. If one were to take into account properly the significance of the undertaking, then, notwithstanding the seriousness of the offence itself, the other factors, especially the fact that he was a first offender whose rehabilitative prospects were unquestioned, should not have led, before the appropriate reduction, to a head sentence significantly greater than the 12 months in fact imposed. Put another way, before the judge had applied a reduction by reason of the undertaking which was "within the range", the sentence notionally imposed before reduction was manifestly too severe. It should also be reiterated that favourable factors of this kind cannot solely be reflected in the non-parole period in an order for suspension: they must also affect the length of the head or primary term. That was not done here.

121. Whether one should suspend a sentence wholly or not poses somewhat different problems: perhaps the most that one can say is that total suspension was open on the facts and, as the undertaking was not otherwise properly taken into account, that might have reflected to a degree on the exercise of the discretion relating to suspension. One factor that does militate against the judge's conclusions as to suspension, however, is that the suspension was for a period of three years. Having regard to what the proper range of sentence might be if all factors had been taken into account appropriately, that would seem an excessive period having regard to the undoubted personal characteristics of the applicant, although I am not suggesting that a period of suspension beyond the length of the head term could not properly have been imposed. Overall, therefore, the sentence went beyond the range which was fairly open having regard to the special factors which were here relevant.

124. In all the circumstances I believe this ground was also made out and it remained therefore to re-sentence the applicant.

127. In my opinion, but for the applicant's undertaking, the seriousness of the offence as found by the judge, which was not successfully challenged in this Court, might have justified otherwise a head term of not much more than 12 months. However, making due allowance for the undertaking given by the applicant to assist after sentencing the law enforcement authorities in the prosecution of offences against persons otherwise engaged in the alleged affray, I concluded that I would impose, because of that undertaking, a less severe sentence than the Court would otherwise have imposed. My opinion was that the appropriate head sentence, before consideration of matters of suspension, should be eight months, which was accordingly significantly less severe than the Court should otherwise have imposed on the applicant. It was not necessary to consider whether I would have wholly suspended the sentence, for, having regard to the concession[11] by counsel for the applicant that it was appropriate that the applicant be sentenced to a period expiring forthwith on determination of this application, I concluded that the Court should order that all but 54 days of that term be suspended, in that the applicant at the time of the order pronounced on 14 February had served 54 days in custody. It was also appropriate to vary the period of suspension of the balance of the term to a period of 20 months, which operates from the date of the original sentence, namely 23 December 2002. In each case those provisions were less severe than the Court should otherwise have ordered, so that the totality of the sentence was less severe than it would otherwise have imposed and it was necessary to direct that these matters be noted in the records of the Court.

130. The application was therefore granted and the appeal heard and determined forthwith, the appeal then having been allowed and a new sentence substituted on the applicant in the terms I have just described. The Court announced that it was imposing a less severe sentence than it would otherwise have imposed, because of the undertaking, as well as directing that it be noted in the Court's records. The explanation as to the suspended sentence, required by s.27(4), was also given to the

applicant before the order for suspension was made on 14 February and the consequences of non-compliance with the undertaking were likewise explained to him.

135. I joined in the orders made by the Court on 14th February 2003. I did so because I had concluded that ground 3 was made out and that this Court was obliged to re-sentence the applicant. I found it unnecessary to reach a conclusion on the other grounds. The reasons for judgment written by Ormiston, J.A., which I have had the advantage of reading in draft, enable me to express my own reasons briefly[12].

138. Ground 3 complains that the learned judge erred in failing to give any or sufficient weight to the applicant's undertaking to give evidence. It is clear that his Honour gave the undertaking some weight. Addressing the applicant, he referred at [37] to "your willingness, to which you have attested on oath, to give evidence if called by the Crown in the committal proceedings and at any subsequent trial". It is true that in the next paragraph, in which he expressed his conclusions on the applicant's personal circumstances, he referred only to the applicant's "willingness to come forward and assist the police" as one of the factors which "militate[d] significantly against the weight of sentence to be imposed"; but at [46] he referred to the applicant's "co-operation with the Crown" and at [48] to his "co-operation with the police and with the Crown". Even though the citations of R. v. Perrier (No.2)[13] and R. v. Ngui [14] were attached to the reference to assisting the police in [38], I have no doubt that the undertaking to give evidence was taken into account.

141. 44 The question presented by ground 3 is therefore whether the judge gave insufficient weight to the undertaking. Particular caution is required in relation to such a complaint. As I said in R. v. Bernath[15], in a judgment in which Winneke, P. and Brooking, J.A. agreed.:

"A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error. The underlying concept pervades the law relating to discretionary judgments and is not limited to the criminal law. It is well established. See, for example, Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513 at 533. The same caution is appropriate when it is said that a sentence is manifestly excessive. In all three cases the question is whether the sentencing discretion was soundly exercised, not how we should have exercised it ourselves."

145. Often a complaint about weight, as opposed to a complaint that a factor was not taken into account at all, is no more than a particular of manifest excess and cannot be upheld without also finding that the sentence was outside the range [16], but I did not think that this was such a case.[17] It may well be, as the other members of the Court consider, that a sentence of 12 months' imprisonment of which service of nine months was suspended for an operational period of three years was manifestly excessive given the applicant's personal circumstances, his plea of guilty and the undertaking, but, as I have already said, I found it unnecessary to reach a conclusion on ground 1. It was sufficient that one could discern from the sentencing remarks, and the course of the plea and sentence, that his Honour's attention had been deflected from the critical importance of the applicant's undertaking and that one could see how that came about.

148. The plea was so powerful that, at its conclusion, the judge said that he had reached the point where he was considering making a community based order. That is why a sentencing report was obtained. On further reflection he concluded that a sentence of imprisonment was more appropriate. With that conclusion I respectfully agree, but the applicant's "co-operation with the Crown" and his "co-operation with the police and with the Crown" were mentioned in the part of the sentencing remarks headed "Sentencing considerations" only in the context of rejecting a community based order and deciding whether the sentence of imprisonment should be wholly or partly suspended.

151. Of the mitigatory factors prayed in aid of the applicant - and they were numerous and significant - the most important in the circumstances of this case was his undertaking to give evidence.[18] It was not mentioned at [47],[19] the paragraph in which the judge concluded that a sentence of twelve months' imprisonment was necessary. It was mentioned at [48], the first of the two paragraphs in which his Honour explained why he did not propose to act on the Crown's concession that it would not be inappropriate wholly to suspend the sentence. It will be as well to set out those two paragraphs in full:

"48. It has been submitted on behalf of the Crown that, having regard to your personal circumstances and other mitigating factors, and especially your co-operation with the police and with the Crown, it would not be inappropriate wholly to suspend the sentence. I have to say, however, that, but for authority, I would be inclined to doubt that is so. While a suspended sentence would have the important advantage of avoiding your incarceration in an adult prison, it is hard to believe that a suspended sentence would have any or at least anything like the general deterrent effect of time actually served. 49. But the law is otherwise. High authority has it that it is wrong to assume that a sentence, albeit wholly suspended, does not play a role in deterring others. I proceed accordingly. Even so, I do not consider that it is appropriate wholly to suspend your sentence, because in my view that would not satisfy the need for just punishment. I have determined that you should serve three months of the sentence and that the remaining nine months of the sentence will be suspended for a period of three years".

A footnote which I have omitted referred to Director of Public Prosecutions v. Carter[20] and the authorities cited by Winneke, P. at the end of his judgment in that case.

156. There is, I think, little tension between his Honour's view of suspended sentences and that established by the authorities. It is wrong to assume that a wholly suspended sentence of imprisonment does not play a role in deterring others. It usually has some effect. But that is not to deny that a sentence that is only partly suspended - where, as the common expression has it, the offender and others hear "the clang of the prison gates" - does not have more effect. The choice between a wholly suspended and a partly suspended sentence depends on the facts. The Crown's concession in this case was significant, but of course it was not binding on the judge.

159. It is important that youthful first offenders be kept out of the adult prison system where that is practicable, but the judge was well aware of that and took into account the competing objectives that his sentence had to achieve. His approach[21] was consistent with what was said, in the context of culpable driving but with wider application, in R. v. Tran.[22]

162. The difficulty with these paragraphs is one of impression. The applicant's sworn undertaking to give evidence was the weightiest single factor operating in his favour.[23] His Honour had decided that it was necessary to impose a sentence of twelve months' imprisonment.[24] Senior counsel for the respondent in this Court conceded that that was a stern head sentence. The next question was whether all or part of it should be suspended. There was a very real public interest in leniency on account of the undertaking , if only at that stage.[25] That interest was at least as great as the public interest in general deterrence and just punishment. Moreover the sentencing remarks had to explain to the applicant why his promise to give evidence at the trial of his friends for murder and affray was entitled to so little weight.

165. As I have said, one's understanding of these paragraphs is a matter of impression. The reasons I joined in the orders made on 14th February 2003 had little to do with textual analysis of the sentencing remarks. That is often a process fraught with danger and apt to obscure the fact that they are not reasons for judgment. Textual criticisms are especially inappropriate in a case like this where the sentencing judge has gone to a great deal of trouble not only to synthesize the law and the facts but carefully to consider the available options. I joined in the orders because the argument persuaded me that, in the process of moving from a community based order to a sentence of imprisonment, his Honour had lost sight of the importance of the undertaking.

168. That came about in part because the learned judge was not reminded of two relevant provisions of the Sentencing Act. The first was s.5(2AB). I agree with Ormiston, J.A. that that is only a machinery provision.[26] Non-compliance does not necessarily mean that an undertaking has been disregarded or even that it has been given insufficient weight.[27] Nevertheless, human nature being what it is, if his Honour's attention had been directed to that provision, it would have highlighted the significance of the undertaking. The second was s.27(4), the purpose of which was explained by Phillips, C.J. in Director of Public Prosecutions v. Singh[28]. That, too, is

a machinery provision, but it focuses attention on the purpose and effect of a suspended sentence of imprisonment and the need for the head sentence to be appropriate if it has to be served.[29]

173. I agree with the reasons stated by Ormiston, J.A. for the making of the orders, to which I agreed, on 14 February 2003.

[1] Even to the extent that three of those injured in the affray were found to have the initials "KK" burned or scarred onto them.

[2] See R. v. Perrier (No. 2) [1991] VicRp 38; [1991] 1 V.R. 717 and R. v. Ngui [2000] VSCA 78; (2000) 1 V.R. 579.

[3] [1996] 1 V.R. 146.

[4] [2000] VSCA 110, esp. at paras.[15]-[20].

[5] The factor was listed after a dot point, as were each of the other factors, all in the same paragraph.

[7] Although Perrier was briefly referred to without disapproval on two occasions. Perhaps the fact that they were for drug offences may explain the range.

[8] [2000] VSCA 161.

[9] See at para.[23], per Winneke, P. I mention also one other Court of Appeal decision cited in these sentencing reasons where in fact the only offence charged was affray but in that case the Court rejected an appeal arising out of a not dissimilar affray involving the use of fence pickets where the applicant, though only 17 years, had 82 prior convictions but was sentenced to a term of four months' imprisonment, but said by the President to be "merciful": see R. v. Oldaker (C.A., unreported, 25 September 1995).

[11] Properly made having regard to the provisions of s.18(2)(c).

[12] I have concentrated on my reasons for concluding that the discretion was reopened. I considered the substituted sentence proposed by Ormiston, J.A. to be appropriate having regard to the circumstances of aggravation and mitigation described by the judge, except that I would have placed a little less emphasis on the death of one of the participants. I agree, nevertheless, that his death was to be taken into account, with due caution, as an indication of the seriousness of the affray.

[13] [1991] VicRp 38; [1991] 1 V.R. 717 at 726-727.

[14] [2000] VSCA 78; (2000) 1 V.R. 579 at 582.

[15] [1997] 1 V.R. 271 at 277

[16] R. v. Peters [1997] 1 V.R. 489 at 503; R. v. Cardona [1998] 2 V.R.126 at 137-138.

[17] The distinction is not illusory. Consider, for example, a plea of guilty at the earliest possible stage in a case that would be traumatic for the witnesses. If the sentencing judge said that he or she had taken the plea into account but given it little weight, it would matter not that the sentence happened to be within the range. The failure to give appropriate weight to the plea would itself reopen the discretion.

[18] Compare the reasons of Ormiston, J.A. at [36].

[19] I do not accept that "remorse" in that paragraph includes the undertaking.

[20] [1998] 1 V.R. 601 at 607-608.

[21] See especially [42]-[45] of the sentencing remarks.

[22] [2002] VSCA 52; (2002) 4 V.R. 457 at [11]- [14], [41] and [42].

[23] I am treating youth, absence of prior convictions, the conduct being out of character and the applicant's prospects of rehabilitation as a congeries of factors.

[24] Sentencing Act 1991, s.5(3).

[25] I do not mean that the undertaking did not have to be taken into account in determining the head sentence but rather that, a stern head sentence having been fixed, the question of suspension became all the more important.

[26] Reasons of Ormiston, J.A. at [31]-[33].

[27] In R. v. Kuzucu [2000] VSCA 110 counsel for the respondent conceded that it was plain that the sentencing judge had not reduced the applicants' sentences because of their undertakings: see [17].

[28] [1999] VSCA 67; (1999) 106 A. Crim. R. 321 at [41]- [43]; see, for example, R. v. Nguyen [2001] VSCA 139; (2001) 124 A.Crim.R. 477 at 483.

[29] See s.27(3).