R v Groom [1998] VSCA 146

1. The learned sentencing Judge failed to give any or any sufficient weight in mitigation of sentence to the Applicant's state of intoxication at the time of the commission of the offence.

2. The learned sentencing Judge failed to give sufficient weight in mitigation of sentence to the plea of guilty.

3. The learned sentencing Judge erred in applying the principle of proportionality to the question of whether or not the sentence of imprisonment he imposed should be suspended either wholly or in part.

4. In all the circumstances the sentence is manifestly excessive.

37. The facts of the offence are in summary as follows. The complainant, who was aged 53 at the time, was employed at a special accommodation house in Montmorency as a personal care attendant of elderly people and those with psychiatric problems. She had been so employed since January 1991. The residence was managed by the applicant's de facto wife and he also lived with her at the residence, in private quarters consisting of a loungeroom and bedroom off the kitchen of the premises.

40. The complainant regularly stayed overnight at the house on weekends, in the bedroom usually occupied by the manager and the applicant, to enable the manager to visit her daughter. The complainant's fiance often stayed with her at the house while the manager was away. The applicant seldom accompanied the manager on her weekends away. Initially he would telephone the complainant and obtain her permission to stay in the house overnight, sleeping in the office. But this became such a regular occurrence over the years that the telephone calls ceased. The applicant's presence at the residence made the complainant feel uncomfortable. She had always been frightened of him when he was drunk, which occurred frequently during the football season, and on occasions he had been "over friendly" towards her.

43. On 17 May 1997 the manager had gone away for the weekend and the complainant was looking after the residents. After settling them for the night, she was seated in a chair watching television in the loungeroom of the manager's quarters when the applicant returned home at approximately 8.30 p.m. to 9 p.m. He joined the complainant and sat with her to watch television. The complainant noted that the applicant was extremely intoxicated, more so than she had ever seen him before. Over a three hour period he made sexual advances towards her. He told her that he had always been keen on her and would like to have sex with her. She replied that she would not like to have sex with him and that she was getting married in October. The applicant persisted and grabbed the complainant by the arm, pulled her out of the chair and pulled her towards the bedroom while still trying to persuade her to have sex with him. She told him to go to sleep in one of the other rooms and returned to her chair in front of the television.

46. He would not leave the room and told her that he felt horny and that their respective partners would not find out. He turned off the lights in the loungeroom and the kitchen, and the room was then in complete darkness. He leaned over the complainant, told her that she had "lovely boobs" and touched her nipples through her clothing. He said that her nipples were erect, asked if she would like him to touch them and then attempted to put his hand down her jumper. An outside security light came on and the complainant was able to see that the applicant had his erect penis out of his trousers. He pushed her back on to the chair and held her wrists so that she was unable to move. He pulled her trousers down a few inches and began to lie on top of her. He was unable to insert his penis into her vagina as her pants were still half on.

49. When the complainant told the applicant to stop and that she was not going to do what he wanted, he asked her to masturbate him. The complainant refused to do so and asked him whether he would leave her alone if she did not tell their partners what had occurred. After asking the complainant to promise not to tell anybody, the applicant left the room.

52. When her fiance arrived home, the complainant did not tell him about the incident with the applicant because she was concerned that he might confront the applicant and a fight result. On the Sunday morning the applicant asked the complainant, "I didn't do it to you Anne, did I?". The complainant told him that he had not. On the following Monday morning the complainant told the manager what had occurred between the applicant and herself. The complainant subsequently reported the matter to the police.

55. During the committal hearing the complainant confirmed the allegations contained in the statement taken from her by the police. The evidence at the committal, however, revealed some contradictions between her and the manager.

58. The applicant was interviewed by the police on 2 July 1997. He said that he was very drunk when he arrived home at approximately 8.30 p.m. on Saturday 17 May 1997. He detailed his drinking at the Lower Plenty Hotel commencing at about 11.30 a.m., then at the Watsonia Football Club to about 6.30 p.m. and again at the Lower Plenty Hotel until about 8 p.m. He said that he had about two cans of beer watching football on television at the residence. (In her statement to the police the complainant said that the applicant came into the loungeroom with two cans of beer in his hands, that he dropped them and that half the beer went on the floor.) When the complainant's allegations were put to him he said that he was unable to remember completely what occurred that night. He claimed that he had fallen down at least two or three times and that the complainant may have misinterpreted his efforts to get up as the assault she described. His responses to a number of the allegations put to him were equivocal: he said that it was possible that the act or statement alleged could have occurred, but he did not remember.

62. Besides indecent assault, the applicant was originally charged with attempted rape contrary to s.38(1) of the Crimes Act, assault with intent to rape contrary to s.40(1), and indecent exposure contrary to the common law. At committal proceedings conducted on 31 March 1998 he was discharged by the magistrate on the charges of attempted rape and indecent exposure. The Crown, when presenting the applicant, did not proceed with the charge of assault with intent to rape.

66. In his plea the solicitor then appearing for the applicant began his submissions as to the appropriate sentence by proposing a conviction and a fine and, when the judge immediately indicated that he was against that, proposed an intensive correction order, to which the judge responded that that option depended upon his deciding that the appropriate term of imprisonment was 12 months or less. The solicitor submitted that a term of greater than 12 months would not be appropriate, but that, if the judge was of the view that it was, then he should consider suspending the sentence because it was unlikely that the applicant would come before the courts again and a suspended term of imprisonment was indeed a term of imprisonment which acted as a general deterrent. (The second reason was correct in law: Sentencing Act 1991 s.27(5) and (8) and DPP (C'th). v. Carter [1998] 1 V.R. 601 at 607-8.)

70. As all the principal passages in his Honour's sentencing remarks fall to be dealt with under one or another of the grounds of appeal, it is unnecessary to set out separately a summary of the sentencing remarks. I therefore turn to ground 1. His Honour had during the hearing of the plea remonstrated with the applicant's solicitor because of the latter's emphasis upon the effect upon the applicant of the alcohol he had consumed. What his Honour said concerning the applicant's consumption of alcohol in his sentencing remarks was:

"It seemed to me that at one stage the plea in mitigation was going to be based on some form of lesser legal or moral responsibility because of your consumption of alcohol. That consumption may have removed some inhibitions but that did not prevent you achieving an erection. Indeed, your very condition aggravated the offence because it induced in your victim the state of mind in which she did not know how far you would go."

74. In his report to this Court on this ground the sentencing judge said, in part, "I made no finding that the applicant was in a state of intoxication and in my view such a finding is not open on the evidence." Mr. Coghlan Q.C., who appeared before us for the respondent, submitted that it was plain from his Honour's sentencing remarks and his intervention during the plea that he had been rejecting any proposition that there was here any defence of drunkenness (that is, intoxication rendering the offender incapable of the necessary awareness or preventing the acts of the offender from being conscious, voluntary and deliberate). But, said Mr. Coghlan, the statement that his Honour had not made a finding of intoxication was at odds with the remarks of his Honour during sentencing which I have set out. Mr. Coghlan went on to say, as I noted his argument, "'Condition' can only be the extreme intoxication described by the complainant". He informed the Court that he did not seek to support the sentence in the report. Mr. Coghlan's statements to the Court entirely accord with my own view. "Condition" is virtually synonymous with "state", the word used in the ground and the report. (It may be that his Honour used the phrase "a state of intoxication" in his report as referring to intoxication negativing criminal responsibility, though, as there was a plea of guilty and the application relates to sentence only, that would have made his Honour's statement irrelevant to any issue.) It was clear from the depositions (which his Honour had read) that the applicant was very drunk, both from his own account and from the complainant's account. That he was likely to have been in that condition is shown by the recitation in his interview with the police of his drinking during the day in question.

77. With that preliminary matter out of the way, I turn to the submissions of counsel for the applicant. It was submitted that, having regard to his age and lack of prior convictions, his intoxicated condition materially contributed to the commission of the offence; that, although he had previously made unwanted advances to the complainant, he had never before acted in the way he did at the time of the commission of the offence; and that in such circumstances his moral culpability might be reduced because, as a result of his intoxicated condition, he had acted out of character, and his intoxication explained the commission of the offence. In support of the submission that intoxication may be a mitigating factor, reference was made to R. v. Coleman (1990) 47 A.Crim.R. 306 at 327 (the sentence application is not included in the report in 19 N.S.W.L.R. 467) and R. v. Walker (unreported, Court of Appeal, 31 May 1996).

80. Those submissions should not, in my view, be accepted. When regard is had to the evidence, neither objected to nor disputed, that the applicant had previously made unwanted advances to the complainant, to the fact that during the football season at least he frequently became drunk at the weekends, and to the fact that he was frequently drunk in the presence of the complainant, this is not, I consider, a case where it can truly be said that as a result of intoxication the applicant acted out of character. In my view, the applicant's moral culpability was not reduced by his intoxication. It would, as Mr. Coghlan submitted, be strange if the applicant's moral culpability were reduced because he was on the night in question even more drunk than usual. It is to be noted that the cases cited make it clear that there is no proposition that intoxication is a matter which will generally, let alone always, go in mitigation. I refer particularly to the judgment of Hayne, J.A. (with whom Southwell, A.J.A. substantially agreed) in Walker at pp.5-9.

83. Those cases indeed go further and show, as also does R. v. Sewell (1981) 29 S.A.S.R. 12 at 14-15, that intoxication may aggravate the offence by, for instance, making the events all the more frightening for the victim, preventing the victim from effectively reasoning with the assailant to desist. That was the view which the sentencing judge took here. Although there is not a ground directly challenging the finding that the applicant's drunkenness aggravated the offence, such a finding could scarcely stand if ground 1 succeeded. Accordingly, it is necessary to consider the finding. In my view, his Honour did not err in treating the applicant's drunkenness as aggravating the offence for the reason which he gave. As Mr. Coghlan submitted, the increased unpredictability of the conduct of the applicant brought about by a greater than usual drunkenness on his part increased the fear, if not terror, which the complainant would in any event have experienced. I do not accept the submission for the applicant that for drunkenness to aggravate the offence here his Honour would have had to find that the applicant realised that he would by being drunk increase the fear experienced by his victim or to find that the applicant rendered himself drunk in order to give himself false courage.

86. For the foregoing reasons, his Honour did not, in my view, err in declining, as he did, to give any mitigatory effect to the applicant's intoxication or indeed in giving it an aggravating effect. Ground 1 accordingly fails.

90. During the plea hearing, when the question of the applicant's plea of guilty was raised, his Honour observed that the 60-page cross-examination of the victim during the committal proceeding did not seem to show much remorse and, when it was responded that cross-examination was directed more towards the other three offences with which the applicant stood charged at that time, repeated his earlier remark that the other charges were not "goers". Since his Honour apparently considered the cross-examination unnecessary, he presumably based his view upon the victim's statement and the record of the applicant's interview. The magistrate in fact committed the applicant on the charge of assault with intent to rape, and I am by no means sure that I agree with his Honour's view, particularly having heard Mr. Coghlan, on whose signature of the presentment his Honour relied.

93. Be all that as it may, there was nothing, so far as I can see, to prevent the applicant at the committal proceeding from pleading guilty, or at least indicating an intention to plead guilty, to the charge of indecent assault and contesting the other charges.

96. During the plea his Honour, though expressing the view that the word "discount" was not "a very bright one for appellate judges to use", said at one stage that the applicant "gets the policy discount" for the plea of guilty and later that the plea "for policy grounds gets taken into account". (No-one suggests, at least in the case of State offences, that the "discount" operates as a reduction of a precise percentage, whether fixed or variable from case to case; but it undoubtedly has effect by way of reduction in penalty.)

99. In his sentencing remarks, delivered six days later, his Honour appears to me to have taken a view slightly less unfavourable to the applicant on the timing of the plea. He said:

"[Your counsel] relied upon your plea of guilty and referred me to some dicta .... I gather from the material and from what was said at the Bar table that it has not always been clear that the presentment would only contain this count of indecent assault. Whilst I take the view that it was and is the only realistic count the other circumstances are such that I ought not categorise your plea as a late plea. I am not satisfied that it is the product solely of remorse and, indeed, am satisfied that remorse played little part. Nonetheless what might be described as the policy aspect of your plea must be taken into account in your favour and I do take it into account. The case against you on this count is overwhelming but you spared the victim the trauma of a trial and [allowed] the community to benefit from the savings of time, convenience and money.

103. It was argued before us that, in taking the plea of guilty into account for "policy reasons", his Honour failed to give sufficient weight to it. The policy reasons to which his Honour referred were explained by him in the last sentence of the passage which I have just quoted. Now, the authorities make it clear that a plea of guilty may bear two mitigatory aspects: it saves the victim and the community in the way mentioned by his Honour and it may manifest remorse. His Honour fully accepted that the plea here bore the first aspect, but he was satisfied that remorse played "little part". An argument, such as the present ground raises, that a sentencing judge gave insufficient weight (as opposed to none) to a sentencing factor is always difficult to make out, unless subsumed in a ground that the sentence was manifestly excessive. Here, in my view, the argument is not made out. His Honour was, I consider, clearly entitled to take the view that the plea was not a reflection of remorse but an acceptance of the inevitable. His Honour did treat the plea as mitigatory in the other respect, as he was required to do: cf. s.5(2)(e) of the Sentencing Act 1991 (which I shall hereafter refer to as "the Act"). That does not mean that his Honour was, in the circumstances of this case, bound to accord it great weight in reduction of sentence. It was argued for the applicant that, if (as I have held to be the case) his Honour gave sufficient weight to the plea of guilty, he must have had a "starting point" for the appropriate sentence for the offence committed as disclosed in the material by this applicant which was greater than 18 months' imprisonment and that such a starting point was not open. That argument, if its premiss be granted, is more appropriate to ground 4 and I bear it in mind when I come to that ground.

110. This ground is raised by the following remarks of his Honour which immediately preceded the imposition of sentence:

"Your counsel submitted in the first instance that I should convict and fine you but he then fell back on an intensive correction order or a suspended sentence disposition. Of course, the intensive correction option is only available if the appropriate proportionate sentence of imprisonment is for 12 months or less. In the first instance, the sentencer must determine whether imprisonment is appropriate and proportionate. I have no doubt on this point. Imprisonment is warranted and of a greater duration than 12 months. It is only in that context that the use of dispositions which are completely or partially non-custodial fall for consideration. At this point of the exercise in the sentencing discretion I must again consider both the objective circumstances of your offence and the subjective circumstances of you, the offender. It seems to me that the seriousness of your particular crime is of such significance that it would be neither appropriate nor proportionate to suspend the sentence wholly or partially."

I take the expression "in that context" to mean in the context of the sentencer's having decided that there should be a term of imprisonment and having decided what the length of that term should be.

115. His Honour three times used the words "appropriate" and "proportionate" together in the passage which I have set out. I recognise that the High Court has, in relation to sentences, used the collocation "appropriate proportionate": Veen v. The Queen [No.2] [1988] HCA 14; (1988) 164 C.L.R. 465 at 472 and 474. That case, and Veen v. The Queen [No.1] [1979] HCA 7; (1979) 143 C.L.R. 458, of course, authoritatively laid down for Australia the principle of proportionality, whereby a sentence must not be more severe than is "proportionate to the gravity of the offence". That principle is recognised in terms by s.6D(b) of the Act and, more generally, by s.5(3) and succeeding sub-sections. It would seem that in Veen [No.2] the combined expression referred to a sentence which was not more severe than that which was proportionate to the gravity of the offence and was in other respects also specially fitted or suitable to the offence. Besides the pages already cited, reference may be made to the remarks of Deane, J. (who dissented) at 490-491, where, although the combined expression is not used, a distinction is drawn between the two words, "proportionate" setting the outer limit of the punishment for the crime committed and "appropriate" then selecting the actual punishment by reference to all other relevant factors. Nevertheless, in re-stating the principle of proportionality the High Court in Hoare v. The Queen [1989] HCA 33; (1989) 167 C.L.R. 348 at 354 seems to have treated "appropriate" and "proportionate" as having the same meaning or very similar meanings, when it said that a sentence of imprisonment should never exceed that which can be justified "as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances". Similarly, in R. v. Young [1990] VicRp 84; [1990] V.R. 951 at 953 the two words were treated as synonyms. Further, that case, which has been followed many times since, authoritatively laid down for this State that a sentence is not to be arrived at by stages, first fixing the proportionate sentence and then selecting the appropriate one. In the context of the present sentencing remarks at any rate, it may be thought that "proportionate" adds nothing to "appropriate"; for a sentence which is not proportionate could scarcely be appropriate. In short, the requirement of proportionality seems subsumed in the greater concept of appropriateness. In other words, the expression of both adjectives is tautological.

118. Whether the view just expressed be correct in relation to his Honour's first two uses of the adjectives or not, reading his sentencing remarks by themselves I would be of the view that in the third instance of the use of the two adjectives "proportionate" adds nothing to the meaning of "appropriate", as Mr. Coghlan at one point conceded. (Mr. Coghlan did argue that the word "proportionate" was apposite to the question of the manner in which a term of imprisonment should be served, but, as Buchanan, J.A. pointed out in argument, no "principle" is embodied in such a use, and it would be a new technical meaning for the word.) But, unless "appropriate" means "desirable", which appears in s.27(1), summarised below, the two words, "appropriate" and "proportionate", do not seem apposite to the question of suspension of a sentence of imprisonment already determined upon. This is because a court is prohibited by s.19(3) of the Act from making an intensive correction order "if the sentence of imprisonment by itself would not be appropriate in the circumstances having regard to the provisions of this Act", and by s.27(3) from imposing a suspended sentence of imprisonment "unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act." I have already referred to some of the provisions of the Act that are relevant in these respects. (In addition to the requirements of ss.19(3) and 27(3), in the case of an intensive correction order a sentence of imprisonment must, by s.19(1), not be more than one year and in the case of suspension the sentence must relevantly, by s.27(2)(a), not be more than 3 years.) Of course, as Brooking, J.A. pointed out in R. v. Simmons (1997) 93 A.Crim.R. 589 at 592, once a court determines that a suspended sentence or intensive correction order is the "appropriate" disposition, it follows that a sentence of imprisonment without qualification is not appropriate. But that determination is made by reference to the criterion of desirability, as explained below.

121. Were it not for his Honour's report, I would, confining myself to the sentencing remarks, have taken his Honour's third use of "proportionate" in a wider sense than that in which it is generally used in ensuring that a sentence is not more severe than the gravity of the crime warrants. For the third use of the word followed his Honour's statement, echoing the effect of R. v. Kirk (1984) 6 Cr.App.R.(S) 231 at 233, that he must again consider both the objective circumstances of the offence and the subjective circumstances of the offender, and also his further statement in substance that the seriousness of the particular crime was such that the sentence should not be suspended wholly or in part. I would, in other words, have taken his Honour to have been referring to the arriving at a judgment whether suspension was (to anticipate what is said later) advisable, wise or sound as a result of balancing all the relevant factors - the objective circumstances and the subjective circumstances, the aggravating features and the mitigating features, and considerations of deterrence and just punishment and those of reformation, to mention a few sentencing considerations. That s.27(1) requires a balancing exercise is clear: R. v. Vosilaitis (unreported, Court of Appeal, 15 June 1998) at p.10 per Callaway, J.A. I would have understood the word "appropriate" similarly. If that had been what his Honour meant in his remarks, I would have seen no error in it, though the use of the words in that sense in connection with s.27(1) is best avoided since it is apt to raise doubts as to their meaning and to deflect attention from the terms and application of s.27(1).

124. His Honour, however, has reported to the Court in relation to ground 3 as follows:

"As a matter of law the principle of proportionality is relevant to all aspects of the sentencing process. It is relevant to the exercise of the discretion conferred by the Sentencing Act 1991 s.27(1). The Legislature has especially referred to the principle in the cases where it may not be relevant e.g. s.6D(b). This ground raises questions of fundamental importance to the whole of the sentencing law in this State."

It is clear from this that his Honour considers that the principle of proportionality (as laid down in Veen [No.1] and Veen [No.2]) applies to the decision whether to suspend a sentence of imprisonment wholly or in part, and that he is informing this Court that in the last sentence in the passage quoted from his sentencing remarks he was giving effect to that principle. If that is so, the question raised by ground 3 does arise.

129. Now, by s.27(1) on sentencing an offender to a term of imprisonment a court may make an order suspending the whole or part of the sentence "if it is satisfied that it is desirable to do so in the circumstances". I have already referred to sub-s.(3), by which the sentence of imprisonment, if unsuspended, must be appropriate in the circumstances having regard to the provisions of the Act. That must mean, amongst other things, that the term of imprisonment must not exceed the gravity of the offence. Further, the principle of proportionality, as stated in the Veen cases, is one which limits the severity of, or places a ceiling upon, the sentence. But, whilst a wholly or partly suspended sentence of imprisonment is not a mere exercise in leniency (R. v. Davey [1980] FCA 134; (1980) 2 A.Crim.R. 254 at 262), such a sentence is undoubtedly more lenient than the sentence would be if not suspended or suspended as to a lesser portion of it. Making an order for suspension is often spoken of as giving the offender "one last chance." By his report the sentencing judge means that he decided against suspending any of the sentence of 18 months' imprisonment by reference to the principle of proportionality. That principle, as I have said, restrains excessive severity of sentences, whereas his Honour claims to have used it to refuse leniency, that is, as a floor under the sentence. (If his Honour had relied on the principle of proportionality in granting an order of suspension, that might have been unexceptionable even though it would have meant a second application of the principle: cf. Vosilaitis at p.8 per Callaway, J.A.)

132. Under s.27(1) the sole criterion by reference to which a Court is to decide whether to suspend the whole, or some and, if so, what part, of a sentence of imprisonment is that of satisfaction as to its desirability in the circumstances: DPP v. Buhagiar & Heathcote (unreported, Court of Appeal, 1 May 1998) at pp.6-8 of the judgment of Buchanan, J.A. and myself, where the nature and purpose of a suspended sentence and the factors to be considered in deciding as to suspension are discussed; and R. v. Humphreys (unreported, Court of Appeal, 28 September 1995) at p.6. (The Act uses the same criterion in relation to combined custody and treatment orders (s.18Q(1)) and intensive correction orders (s.19(1)) at least.) As Buchanan, J.A. pointed out during the argument of this application, "desirable" does not have reference to the wishes or desires of any person, but rather has reference to the achieving of proper sentencing objects. Whilst, strangely, The Oxford English Dictionary, 2nd edition and Addenda Vols., contains no applicable definition of "desirable", The Macquarie Dictionary (2nd rev. ed.) gives "advisable" (sense 3), as in "a desirable course of action", and Webster's Third New International Dictionary gives "worth seeking or doing as advantageous, beneficial or wise: advisable, expedient" (sense 2a). The well-known statement of Jenkinson, J. in R. v. Morgan and Morgan (1980) 7 A.Crim.R. 146 at 154 of the rationale of minimum terms is substantially applicable to the ascertainment of the portion (if any) of the sentence that is to be suspended. In short, the unsuspended portion of the sentence is the period before the expiration of which release of the offender would be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify. The purview of the word "desirable" is wide. But, before the question of the desirability of suspension can arise, proportionality and appropriateness (in their technical senses) must already have been decided, and decided without reference to the power to suspend.

135. It is true that in the chapter relating to suspended sentences in the Victorian Sentencing Manual there are groups of paragraphs relating to matters of practice that are headed "Proportionality": I refer to paras.35.007ff (relating to suspended sentences in general) and paras.35.103ff (relating to unconditional suspended sentences). Examination of the commentary in those paragraphs shows, however, that the cases there cited exemplify the application of the principle of proportionality to the imposition of the term of imprisonment itself, either because the offence does not warrant imprisonment at all (cf. s.5(4)) or because the term of imprisonment imposed was longer than it would have been if imprisonment had been immediate (which is, of course, contrary to s.27(3)). Thus in R. v. Mah-Wing (1983) 5 Cr.App.R. (S) 347 Griffiths, L.J. said at 348:-

"When the court passes a suspended sentence, its first duty is to consider what would be the appropriate immediate custodial sentence, pass that and then go on to consider whether there are grounds for suspending it. What the court must not do is to pass a longer custodial sentence than it would otherwise do, because it is suspended."

That statement entirely accords, if I may say so, with my own view and, I consider, with s.27(1) and (3). R. v. Arkle (1972) 56 Cr.App.R. 722 at 724 is to the same effect.

140. I now sum up my somewhat discursive views on this ground. Were it not for the judge's report, I should have been inclined to treat the word "proportionate" where last used by his Honour as adding nothing to the word "appropriate" and to treat both as not used as terms of art. But his Honour's report, responding, as it does, to the allegation in ground 3 that he erred in applying the principle of proportionality to the question of suspension, makes it clear that his Honour was on the third occasion (as on the two earlier occasions) doing what is asserted in ground 3. For his Honour says that "the principle of proportionality" is relevant to the exercise of the discretion conferred by s.27(1) and that the ground raises questions of fundamental importance. Further, it is clear from the reference in his report to s.6D(b) that in his report and, thus, in the relevant part of his sentencing remarks his Honour by the principle of proportionality or by the use of "proportionate" was referring to the principle whereby a sentence must not be more severe than that which is "proportionate to the gravity of the offence", which is the principle considered in Veen [No.1] and Veen [No.2]. Now, although the use of "proportionate" along with "appropriate" in the first two paragraphs in the passage which I have last quoted from his Honour's sentencing remarks may not be helpful, those paragraphs are otherwise entirely unexceptionable. But, when the third paragraph is read as referring to, and recording an application of, the principle of proportionality in the sense which I have indicated, as it must be in the light of his Honour's report, it must be held that his Honour erred. I have already given reasons for my view that the principle, understood as mentioned, is inapplicable in determining whether any suspension is desirable, that is, advisable, wise or sound, or at any rate that it cannot ground a refusal to suspend. In essence, the principle will already have been applied in determining that imprisonment for the term in question, not exceeding three years, is appropriate within s.27(3). An order for suspension under s.27(1) makes for a more lenient manner of serving the term of imprisonment. Yet one of the two bases on which his Honour held suspension not to be desirable is, I am constrained by the report to conclude, the application of the principle. No case was cited in which the principle, understood in the sense indicated, was applied to lead to non-satisfaction that suspension was desirable. Again, it may be noted that, according to Hoare at 354, the principle requires consideration of the objective circumstances of the crime. It is clear that subjective circumstances of an offender also must be considered in determining whether any suspension is desirable. Thus, for example, authorities dealing with suspension show that factors working significantly in favour of suspending are an offender's prospects of rehabilitation or reformation and (having regard to s.27(4) and s.31) the unlikelihood of re-offending: compare Kirk. In short, then, if the sentence of imprisonment, if unsuspended, must under s.27(3) be proportionate, the desirability of suspension must be determined by reference to some other consideration or factor.

143. I have anxiously considered whether it can be said that, although there was error, the error was immaterial. It is true that on the question of suspension his Honour seems to have taken into account all the objective circumstances of the offence and all the subjective circumstances of the offender, as it is correct to do when considering suspension. It is true, too, that his Honour was moved to decline to suspend by reason of the seriousness of the particular crime. Again, that may be a quite proper ground of decision that total or partial suspension is not desirable: R. v. Zehavi [1998] VSCA 81 at 17. Nevertheless, the error identified is one of sentencing principle, not, for instance, some error of fact of relative insignificance. I therefore do not consider that the error here can be put to one side as being immaterial. Ground 3 is accordingly made out.

147. It is strictly unnecessary to consider this ground. Nevertheless, I would say that, notwithstanding that, as will appear, in re-sentencing I think fit to pass another and more lenient sentence ought to have been passed, I do not consider that the sentence which he imposed was outside the range fairly open to him, even when it is recognised that it reflects some reduction for the plea of guilty. I reach that view after taking into account the circumstances both of the offence and of the offender which I enumerate below when re-exercising the sentencing discretion.

150. One other comment requires to be made. In his report to the Court on this ground his Honour said:

"On a consideration of the whole of the depositions, the Victim Impact Statement, the other materials and submissions on the proceedings before me and the reasons for sentence the Court of Appeal should conclude that the sentence is not manifestly excessive."

I feel obliged to say that I at least do not find helpful a report whose terms abandon judicial objectivity in favour of advocacy or didacticism. The report is not meant to be adversarial: R. v. Ahmet (1996) 88 A.Crim.R. 316 at 323.

156. Specific sentencing error having, in my view, been established, I proceed to consider how I would exercise the sentencing discretion thus re-opened. This was a serious instance of an offence carrying a maximum penalty of 10 years' imprisonment. Whilst many indecent assaults are little more than momentary, in this case the acts of indecency occurred over a period of about three hours. The complainant was, because of her duties that weekend, in a position not far removed from that of a woman temporarily held in her own home. The episode was aggravated by the extreme drunkenness of the applicant, which made his conduct unpredictable. The applicant used some force or violence towards the complainant. As the sentencing judge said, even though the indecencies themselves may have been of short duration, the incident was a long terrifying one. The applicant's conduct was persistent and went quite some distance towards the intercourse he sought. On the other hand, the applicant is a man of mature years with no prior convictions for sexual or violent offences and is in fact entitled to be treated as a person of hitherto good character. His prospects of rehabilitation are good and indeed he is unlikely to re-offend. He has moved away from Melbourne and no longer frequents the hotel and sporting club where he used to drink to excess. He in the end pleaded guilty, sparing the victim the trauma of a trial and saving the community the time, cost and trouble of one.

159. In the circumstances which I have stated earlier and have just summarised, I consider, especially having regard to the seriousness of the particular offence, that it is appropriate that the applicant be sentenced to a term of imprisonment of 15 months, and that he should serve some immediate custodial sentence. But, having regard to his age and previous good character and the unlikelihood of his re-offending this is not, I consider, a case where the whole of the sentence of imprisonment should be served immediately. Further, I consider in the circumstances mentioned that the appropriate regime under which the applicant should be released is that of suspension of sentence rather than supervision under the parole system. I am therefore satisfied that it is desirable that 9 months of the sentence be suspended for a period of two years.

163. For the reasons given, I consider that the application should be allowed and the sentence below quashed and that the applicant be sentenced to be imprisoned for a term of 15 months of which it should be ordered that 9 months be suspended for a period of 2 years commencing on the date of the Court's order.

169. I have had the advantage of reading the draft reasons prepared by Tadgell and Batt, JJ.A. I would allow the application to appeal against sentence for the reasons stated by Batt, J.A., and I agree that the applicant should be re-sentenced as Batt, J.A. proposes.

172. The matter upon which there is a difference of opinion in this Court is the effect of the statement in the judge's report with respect to ground 3 in the Notice of Appeal that the principle of proportionality is relevant to all aspects of the sentencing process. In the absence of the statement neither Tadgell, J.A. nor Batt, J.A. would have construed the judge's sentencing remarks as revealing that he had applied the test of proportionality in determining not to suspend the whole or part of the sentence of imprisonment.

175. Batt, J.A. has relied upon the statement in the report to conclude that the sentencing judge used the word "proportionate" in his sentencing remarks not merely as a synonym for "appropriate", but in the sense in which the word was used in Veen v. The Queen [No. 1] [1979] HCA 7; (1979) 143 C.L.R. 458 and Veen v. The Queen [No. 2] [1988] HCA 14; (1988) 164 C.L.R. 465. For his part, Tadgell, J.A. does not regard a judge's report as an appropriate repository of material to aid in the construction of a judge's sentencing remarks, and as the words used by the judge in sentencing the applicant did not disclose that he did more than take all relevant matters into account in deciding not to suspend any part of the sentence, ground 3 was not made out.

178. While I agree that, in general, sentencing remarks are not to be construed according to a later statement as to his meaning by the sentencing judge, in the present case I regard the relevance of the report as revealing the approach in fact taken by the sentencing judge to the question of suspension of sentence rather than as a submission as to the meaning of words. A like use was made of a sentencing judge's report in R. v. Ahmet (1996) 88 A.Crim.R. 316, where it was held that a statement in the report that the judge had regard to s.10 of the Sentencing Act disposed of a ground of appeal contending that the provision had not been taken into account. In my opinion, for the reasons stated by Batt, J.A., the sentencing judge erred in employing the principle that a sentence must not be more severe than that which is proportionate to the gravity of the offence as a basis for denying the desirability of suspension of the whole or part of the sentence. His Honour appears to have considered that the circumstances of the offence were so grave as to preclude any suspension of the sentence no matter what the personal circumstances of the offender might have been. The statement in the report in the present case is in effect an admission of an error in sentencing.