R v Howell [2007] VSCA 119

1 This is an appeal from a sentence of five years' imprisonment, with a non-parole period of two years and six months, imposed on the appellant on pleading guilty to one count of maintaining a sexual relationship with a child under the age of 16 years.[1]

2 Most of the facts appear from the judge's sentencing remarks. At the time of the offending, the appellant was a 36-year-old mother of four who was living apart from her husband and working as an integration aide-teacher at a secondary school. The complainant was a 15-year-old male student at the school. He was to some extent disadvantaged in that he was a slow reader, and he was under the direct supervision of the appellant in her capacity as an integration aide-teacher. Early in 2004 he started to date the appellant's 13-year-old daughter, and one evening he was invited to stay overnight at the appellant's home. In the early hours of the morning, the appellant went into the room where the complainant was sleeping and lay down next to him, and, after seeking and obtaining his consent, she fellated him to ejaculation. The following weekend she arranged to collect the complainant from nearby shops and then drove him to the beach, where they engaged in sexual intercourse. After the complainant arrived home he told a friend that he had got laid. The next weekend the appellant made a similar arrangement to meet the complainant, and, after purchasing condoms, she drove him again to the beach, where they engaged in sexual intercourse.

3 Some two weeks later, when the complainant was staying overnight at the appellant's home, the appellant entered the room where the complainant was sleeping, fellated him and, after placing a condom on his penis, engaged in sexual intercourse until he ejaculated. The same thing happened again the next weekend, when the complainant was once more staying overnight at the complainant's home.

4 In mid-2004, the appellant became friendly with the complainant's mother and went to stay in her house. She continued to engage in furtive sexual activity with the complainant while staying at the house. On other occasions the appellant collected the complainant in her car and had sexual intercourse with him in the car, and there were further occasions when he was at her house when she initiated sexual intercourse with him. There were, as well, some occasions when the appellant touched the complainant on the penis at school while she was sitting next to him in the classroom.

5 On one occasion, after the appellant had driven her daughter to a baby-sitting engagement, she drove the complainant to her father's home, which was unattended, and had sexual intercourse with him there. On another occasion, when the appellant was staying at the complainant's mother's house, the appellant had sexual intercourse with the complainant while he was sleeping on the floor in a spare room.

6 By about September 2004, the complainant had started to tire of the relationship, but the appellant persisted. She sent him many text messages and wrote him letters and bought him a number of gifts, including a mobile telephone with pre-paid credit, a bracelet, a ring, a double bed, a stereo and a Play Station. But things got worse. In October 2004, the appellant pressed the complainant as to what he had told other people of the relationship, at which point he broke down and cried, and then left after once more engaging in sexual intercourse with her.

7 The denouement came on 27 November 2004, when the complainant asked the appellant why she had sent him a particular text message, and she replied that she had been drunk and had no recollection of it. At that, the complainant became angry and complained to the school principal, who called in the police, and, when interviewed by police on 29 November 2004, the appellant made full admissions.

The appellant's mental state

8 As part of the appellant's plea in mitigation of penalty, Dr Paul Grech, a consulting clinical psychologist, gave evidence before the sentencing judge that the appellant suffered from clinical depression which appeared to pre-date her offending, and also to meet several criteria for borderline personality disorder. He said it was questionable whether she met the diagnostic criteria for paedophilia, in that her victim was not aged 13 or younger, and there were no other known victims in the context of someone who had had continuous contact with children over the last two decades, as a mother of four children. There was also no record of other types of offending which often accompany the histories of paedophiles, and the appellant had presented as deeply troubled by the effect of her actions on others, including the complainant, and displayed a high degree of shame, contrition and genuine remorse, which is typically absent among sex offenders. Dr Grech was of the opinion, too, that the appellant's depressive illness and risk of suicide needed to be closely monitored, and that she would require segregation from other inmates during the early stages of incarceration, both for her own safety and because it was anticipated that her mood state would deteriorate precipitously.

9 As well as Dr Grech's evidence, the judge sought and had before her at the time of sentencing a psychiatric court report prepared by Dr Danny Sullivan, consultant psychiatrist with the Victorian Institute of Forensic Mental Health, in which Dr Sullivan opined that the appellant had a history of depressive symptoms which would best be characterised as major depressive episode, mild to moderate in severity, as described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision DSM-IV-TR, and that her symptoms were apparently exacerbated with the breakdown of her marriage and were pertinent to the offences because they placed her in an emotionally fragile state; that she had been raped at the age of 14, and she craved understanding and affection, which she did not perceive herself receiving. She had a clear predisposition to substance abuse and in periods of unhappiness would probably qualify for a diagnosis of alcohol dependence. By the time of forming a relationship with the complainant, her adult relationships had been disrupted with the breakdown of her marriage, and her roles as a mother and caregiver were threatened. She was at that time also abusing and possibly dependent on alcohol, which may well have served to reduce her inhibitions, and the offences had occurred when she had naively perceived that her significant needs for intimacy and love were, for the first time in some years, being met. Consequently, in Dr Sullivan's opinion, the appellant's relationship with the complainant was properly to be seen as one involving a vulnerable woman whose personality structure, adolescent experience, relationship history and life at the time of the offences had coalesced to provide fertile soil for the occurrence of such aberrant behaviour. Moreover, in his view, there was no indication of paedophilia. Youth had not been a salient factor or one specifically sought by the appellant. It was simply that the offences were opportunistic, in the sense that the complainant was available. In terms of insight, the appellant acknowledged wrongdoing and expressed horror at the consequences for herself, her family, her children and the complainant, and she spontaneously recognised the adverse effects on the complainant and his family. Dr Sullivan further reported that the appellant had clearly suffered from a worsening of mood since incarceration and would now be described as having moderate to severe depression. She had a long history of self-harm, and Dr Sullivan considered that her risk of further deliberate self-harm was significant and that she warranted ongoing psychiatric input due to her depression, both in the form of medication and support. In Dr Sullivan's opinion the appellant did not pose any specific risk to minors, but she was in need of supervision and support, particularly if she became depressed and alcohol-dependant in the future.

Grounds 2 and 5

10 Under grounds 2 and 5 of the appeal, counsel for the appellant argues that the judge erred in failing to have regard to the sentencing principles assayed in R v Tsiaras.[2] In counsel's submissions, those principles required her Honour to moderate the sentence to be imposed in order to reflect a reduction in moral culpability, the result of the appellant's psychological state at the time of offending, a corresponding reduction in the need for denunciation of the appellant's conduct, and a reduction in the need for general and specific deterrence, the result of the appellant's psychological state at the time of offending and at the time of sentencing. In counsel's submission, there is no mention of those principles in her Honour's sentencing remarks, notwithstanding that counsel for the appellant on the plea specifically drew them to the judge's attention. It follows, counsel contends, that the judge committed a specific sentencing error which vitiated the sentencing process and re-opens the sentencing discretion.

11 Counsel also prays in aid of his submissions a supplementary report of Dr Sullivan, of 14 January 2007, as evidence of matters that have occurred since the date of passing of sentence[3] and better demonstrate the true significance of facts in existence at the time of sentence.[4] In that report, Dr Sullivan records that he interviewed the appellant by video conference from prison on 19 October 2006, and found her to be reasonably cheerful and animated and without perceptual abnormalities. She had, however, struggled since incarceration. She remained in protection and had been the victim of a significant assault. She had experienced low mood related to isolation, being served with divorce papers, and distressed at missing her children. Consequently, she required intensive support from psychiatric staff and counsellors. Dr Sullivan had examined her for signs of bipolar disorder, but considered that she was not suffering from that affliction. He remained of the view, however, that she suffers from borderline personality disorder and that it was relevant to her offending, as he had described in his earlier report. Dr Sullivan noted that the appellant's incarceration is marked by exceptional isolation and little possibility of the freedoms experienced by prisoners who are not in protection and which enable people to adapt to the exigencies of prison life and cope with incarceration. There is, moreover, no opportunity for her to engage in offence-specific treatment while she remains in custody.

12 As counsel says, there is no reference in the judge's sentencing remarks to the principles in Tsiaras. Apart from referring to the substance of Dr Grech's and Dr Sullivan's reports, the only thing which the judge said about the significance of the appellant's mental state was as follows:

"As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence which is of considerable importance. I am satisfied that specific deterrence has to some extent been met in the opinions of Dr Grech and Dr Sullivan, in that there is a low risk of your re-offending."

13 As far as I can tell, therefore, the judge did not consider whether the appellant's mental state affected the moral culpability of her offending, or the extent to which the sentence to be imposed needed to express denunciation, or whether the extent of the appellant's mental condition was such as to warrant some modification of the application of general deterrence. It may be, perhaps, that her Honour was not persuaded that Tsiaras was relevant and it is for that reason that she did not refer to it, but, if so, there is no way of working out from the sentencing remarks how her Honour reasoned to that view.

14 The sentencing principles ordinarily associated with the decision in Tsiaras were recently reconsidered by this Court in R v Verdins.[5] As was noted then, the principles are not, and were not intended to be, applicable only to cases of serious psychiatric illness. As the Court explained, one or more of those considerations identified in Tsiaras may be applicable in any case where the offender is shown to have been suffering, at the time of offence, or to be suffering at the time of sentencing, from a mental disorder or abnormality, or an impairment of mental function, whether or not the condition in question ought properly be described as a serious mental illness. As was earlier remarked by Eames JA in R v Skura,[6] disorder falling short of serious psychiatric illness may well be capable of moderating the need for general or specific deterrence; it depends on whether the applicant is able to demonstrate that the effect of the condition reduces the seriousness of the offence or the applicant's moral culpability. And, as Maxwell P had earlier observed in R v Sebalj,[7] it would detract from the utility and flexibility of the propositions set out in Tsiaras to focus unduly on the classification of the particular condition, that is, on whether or not it was a recognised psychiatric illness of one kind or another. What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of offence or at the time of the sentence.

15 Following an extensive analysis of the relevant authorities, the Court in R v Verdins thus re-stated the principles in Tsiaras:

"Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."[8]

16 Counsel for the Crown contends that those principles do not apply to the facts of this case. Starting with the first, third and fourth principles, he submits that it is incumbent on the offender to establish on the balance of probabilities that he or she was suffering from impaired functioning at the time of offending, or in the lead-up to it, and that the extent of the impaired mental functioning was such as to deprive him or her of rational judgment or the ability to weigh the potential advantages or disadvantages of his or her proposed conduct. In counsel's submission, the appellant in this case has failed in that endeavour. Counsel says that in substance the effect of Dr Grech's and Dr Sullivan's opinions is no more than that the appellant was at the time of offending suffering from mild to moderate depression with borderline personality disorder, and that there is no evidence that it was such as to deprive her of rational judgment or the ability to weigh the potential advantages or disadvantages of her offences. Indeed, to the contrary, counsel contends, it is evident that the appellant used alcohol to achieve the purpose of disinhibiting herself, and possibly the victim, continued to work in a responsible job without drawing attention to herself, committed the sexual acts the subject of her offence in surreptitious circumstances, and did not seek help for her depression.

17 Counsel's submissions appear to derive some support from earlier decisions. There are a number of cases concerning personality disorders in which it has been said that there is a need to focus on the question of whether or not the offender was deprived of rational judgment at the time of the offence or was unable to weigh the potential advantages and disadvantages of the course of conduct in which he or she was engaged. Hence, in R v Skura,[9] where the applicant was diagnosed as suffering from Personality Disorder - Mixed Type (Narcissistic, Borderline and Antisocial features), Adjustment Disorder and Pathological Gambling, the sentencing judge found that:

"Nothing in Mr Davis's evidence leads me to the conclusion that you were suffering any serious psychiatric illness or that your personality disorder or adjustment difficulties deprived you of rational judgment at the time you committed the offences so that you were unable to weigh the potential advantages and disadvantages of the course of conduct in which you were engaged. There is no suggestion that you did not know what you were doing was wrong or that it was criminal. Indeed your conversations with Jason display an acute awareness of the need for care lest you both be caught. Any moderation of the need for general or special deterrence in your case by reason of any psychological disability you might have as a result of your early life, including the history of sexual abuse, must be minimal indeed."[10]

18 The thrust of those observations was in effect upheld on appeal to this Court:

"The argument advanced for the applicant appears to assume that provided a link is demonstrated between a mental disorder and the commission of the crime, moral culpability is reduced and issues of deterrence are less significant. But it is necessary to analyse the nature, severity and effect of the condition. On the evidence before his Honour, the personality disorder explained the conduct but did not affect the assessment of the moral culpability of the applicant because it was quite clear that she knew what she was doing and that it was wrong. As to general and specific deterrence, she remained a suitable vehicle because there was nothing in her psychological condition that removed her, or people like her, from the potential deterring effect of a sentence. This criticism is not made out".[11]

19 Similarly, as a general rule, alcohol or drug induced conditions will also not be treated as mitigating.[12] As it was put in R v Redenbach:[13]

"Both on the plea and in this Court an attempt was made to show that at the time of the killing the applicant suffered from what was referred to as 'amphetamine psychosis'.

Nowadays it frequently occurs that those who attack and kill or seriously injure someone are affected to some extent by drink or drugs. Where this condition is self-induced, it is not generally to be regarded as mitigating the offence, for in most cases the offender may be regarded as morally responsible for his condition at the time of the offence. Where the perpetrator of a drunken assault set up his drunkenness in mitigation, the Court said:

'But the day is long past when somebody can come along and say 'I know I have committed these offences, but I was full of drink'. If the drink is induced by himself, then there is no answer at all.' (Bradley [2008] EWCA Crim 2746; (1980) 2 Cr App R (S) 12).

And an assailant who claimed to have been in a state of drug intoxication was told that his self-ingestion of drugs did not mitigate offences: DPP v Tucker and Lewis (unreported, Court of Criminal Appeal, 22 September 1989). Where, on the other hand, the court is satisfied that there is something which, whether wholly or partly, excuses the taking of drink or drugs, it will treat that circumstance as going in mitigation, as where a drunken man who had committed an armed robbery showed that his alcoholism was the result of the painful disease from which he suffered: Kevich (unreported, Court of Criminal Appeal, 25 November 1977). So it may be said that drug addiction which contributed to an offence but which itself resulted from the medicinal use of drugs goes in mitigation. But there is nothing of this kind in the present case, except the suggestion that the applicant's unfortunate family background had contributed to his drug addiction, and that was taken into account by his Honour in the applicant's favour."[14]

20 The earlier cases, however, must now be read as subject to the conclusion reached in Verdins that what matters in any given case is not so much the label to be applied to the offender's psychiatric condition, but whether, and to what extent, it can be shown to have affected the offender's mental capacity at the time of the offence, or at the time of sentence. Contrary to the Crown's submission, therefore, the cases in which the principles in Verdins apply are not limited to those in which the accused is rendered incapable of making a rational decision as to whether or not to offend. As was explained in Verdins, impaired mental functioning may reduce the offender's moral culpability in any number of ways, including, without limitation, if it has the effect of impairing the offender's ability to exercise appropriate judgment or make calm and rational choices, or if it makes the offender disinhibited, or if it obscures the offender's intent to commit the offence. In my view, therefore, it is significant that at the time of the offending the appellant was suffering from a major depressive episode, mild-moderate in severity, as described in the Diagnostic and Statistical Manual of Mental Disorder, Fourth Edition, Text Revision (DSM-IV-TR), which placed her in an emotionally fragile state, and that in Dr Sullivan's opinion the appellant's relationship with the complainant was thus properly to be seen as one involving a vulnerable woman whose personality structure, adolescent experience, relationship history and life at the time of the offences had coalesced to provide fertile soil for the occurrence of such aberrant behaviour. In my view, those facts are to be regarded as reflecting upon, and significantly reducing, the moral culpability of the appellant's offending. So viewed, it stands in contrast to the sort of offending that is represented by an adult sexual predator who, while not suffering from any sort of mental impairment, takes unprincipled advantage of a young victim for the offender's sexual gratification.[15] The appellant's offending does not warrant the same degree of denunciation as that.

21 Counsel for the Crown submitted that inasmuch as the appellant's offending consisted of maintaining a relationship with the victim, in effect taking over and dominating his life, it was a graver form of offending than would be the commission of individual sexual offences of the kind more often encountered. There is, in my view, some force in that submission. Other things being equal, it may well be that to maintain a sexual relationship with a child would be a far graver offence than the commission of an isolated or isolated sexual offences with the child. Incest is a commonplace example. But in this case I do not think it is so. The existence of the relationship is rather a reflection and further confirmation of the fact that the nature of the offending was as Dr Sullivan described, and therefore less morally culpable than unabashed sexual exploitation.

22 I add that I consider it to be of some significance that the appellant had a predisposition to substance abuse during periods of unhappiness and that at the time of offending she was abusing and possibly depending on alcohol. I do not say it is a big thing. It is not necessarily to be equated to the position of the drunken man who commits an armed robbery and shows that his alcoholism was the result of painful disease. But equally, in my view, it is something more than the sort of wilful drunkenness that too often leads to violence.[16] Contrary to the Crown's submission, the evidence was not that the appellant used alcohol to disinhibit herself; it was that she used alcohol because of her unhappiness and that it may have led to her disinhibition.

23 Further, as at present advised, I do not think it to be especially significant that the appellant was continuing to work in a responsible position and did not seek help for her depression. Neither Dr Grech nor Dr Sullivan was cross-examined as to whether that should be seen as reducing the seriousness of her condition, and from a lay perspective it appears to me to be equally commensurate with her condition being serious, as it may be with moderation. It is true that the appellant committed the offences in surreptitious circumstances. There is no doubt that she knew the nature and quality of her acts and she knew that they were wrong, but this is not a question of insanity, and an offender's comprehension of illegality is not the only touchstone of moral culpability. In this case, in my view, it is enough to reduce the appellant's moral culpability that, upon the unchallenged expert evidence, her clinically depressed mental condition and borderline personality disorder, for which largely she was not responsible, significantly reduced her capacity to resist the temptation which came her way.

24 So to say does not mean that the need for general deterrence and denunciation is reduced in every case in which it is shown that the offender's capacity to resist offending is reduced by some sort of psychological condition. Counsel for the Crown referred to the case of a sociopath, by which I took him in this context to mean an offender who harms other people for the fun of it, well knowing the nature and quality of his conduct and that it is wrong. He submitted that it surely cannot be the case that the need for general deterrence and denunciation is reduced in such cases. The point of Verdins is that each case depends upon its own facts and in particular on the nature of the mental condition in question. Accordingly it advances understanding little to conjecture that there may be some classes of sociopath whose conduct warrants the full weight of general deterrence and denunciation, for just as certainly there may be others whose mental condition and circumstances will be such as to warrant a sensible moderation of the need for general deterrence and denunciation. In each case it will depend on the facts. The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique, and in this case, in my view, it results in the need for amelioration of the need for general deterrence and denunciation.

25 The second, fifth and sixth propositions in Verdins may be disposed of more briefly. The second does not appear to be relevant. There is not a lot to suggest that particular conditions of incarceration are required. Nor does the fifth. As counsel for the Crown put it, the hardship experienced by the appellant in prison is substantially based on the usual effects of imprisonment and is not a substantial artefact of her depression. The sixth may be relevant, but, in light of Dr Sullivan's supplementary report, I am not persuaded that there is a serious risk of imprisonment having a significant adverse effect on the appellant's mental health. She clearly had a very hard time of it to begin with, but then, regrettably, so do many other prisoners.

Ground 7

26 Under ground 7, counsel for the appellant argues that the judge failed to take into account the legal and other consequences that flowed from the appellant's conviction, notwithstanding that counsel who appeared for the appellant on the plea submitted that the appellant's loss of career as a teaching aide should be taken into account in the same way that the Court in Ellis[17] took into account that the appellant in that case lost her career as a teacher. I am not persuaded that is so. The judge referred to the submission in her sentencing remarks, and in those circumstances I see no reason to think that her Honour did not take it into account as part of her sentencing synthesis. It is more difficult to say what weight should be attributed to it. Seemingly, in Ellis, it was given quite a lot, but, as counsel for the Crown argued, each case turns on its own facts and it is by no means obvious that the appellant's inability hereafter to work in schools will have the same impact on her as did the applicant's loss of career in Ellis.

Grounds 1, 3, 4 and 6

27 Finally, under grounds 1, 4 and 6, counsel for the appellant argued that the sentence was manifestly excessive and as such reflected failure on the part of the judge to take into account or give adequate weight to the appellant's immediate confession, her contrition and early plea of guilty, her reduced moral culpability the result of her fragile mental condition, and her chances of rehabilitation.

28 Given what I have said about grounds 2 and 5, it is unnecessary to determine these other grounds. In my view the judge erred in her failure to consider the application of the principles in Tsiaras, and the nature of that error is such that the sentencing discretion has miscarried and must now be re-exercised afresh.

Re-sentencing

29 It is not to be doubted that the appellant's offending was serious, a point which is emphasised by the fact that it carries a maximum penalty of 25 years' imprisonment. It is also true, as the Crown contends, that it involved a significant breach of trust and that, according to the victim impact statements, it has had deep and possibly lasting adverse effects on the complainant and his mother. Plainly, there is a need for denunciation and general deterrence and for just punishment which reflects the magnitude of the appellant's transgressions. But, on the other hand, I consider that, for the reasons already given, the moral culpability of the appellant's offending is lessened by her mental state at the time of the offending. There is, in my view, a corresponding reduction in the need for denunciation and general deterrence. And, as appears from the expert evidence, there is no need of specific deterrence: she is unlikely to offend again. To that must be added the

appellant's otherwise general good character, as demonstrated by evidence given at the plea hearing, and lack of prior offending, the fact that she confessed immediately when questioned, her plea of guilty at the first opportunity, her undoubted remorse and contrition, and the likelihood of her complete rehabilitation. For the purposes of setting a non-parole period, I also bear in mind the observation of Dr Sullivan that there is no offence-specific treatment available to the appellant while she remains in custody, and his recommendation that she receive psychological input through the Problem Behaviours Programme ("PBP") for Forensicare as a condition for future parole.

30 Balancing those considerations as best I am able, I would re-sentence the appellant to a term of imprisonment of three years and set a non-parole period of 20 months.

2. The sentence passed below is set aside and the appellant is re-sentenced to three years' imprisonment.

3. A period of 20 months is fixed as the period of imprisonment which the appellant must serve before she is to be eligible for parole.

4. It is declared that a period of 648 days of the sentence has already been served and it is ordered that the fact that the declaration has been made and its details be entered in the records of the Court.

5. The order made under s.464ZF(2) of the Crimes Act 1958 is confirmed.

[1] Crimes Act 1958, s 47A(1).

[2] [1996] VicRp 26; [1996] 1 VR 398.

[3] R v Eliasen (1991) 53 A Crim R 391 at 394.

[4] R v Rostom [1996] VicRp 60; [1996] 2 VR 97 at 99; R v WEF [1998] 2 VR 385 at 389.

[5] [2007] VSCA 102.

[6] [2004] VSCA 53.

[7] [2006] VSCA 106.

[8] At [31]-[32].

[9] [2004] VSCA 53.

[10] [2003] VSC 290 at [23].

[11] [2004] VSCA 53 at [33].

[12] R v Tucker and Lewis (1989) 43 A Crim R 377; R v Martin [2005] VSC 497.

[13] (1991) 52 A Crim R 95.

[14] Ibid at 99; see also R v Sebalj [2006] VSCA 106.

[15] Cf R v Hopper [2005] VSCA 214.

[16] DPP v Zullo [2004] VSCA 153 at [19].

[17] Director of Public Prosecutions v Ellis [2005] VSCA 105; (2005) 11 VR 287 at 297[17].