R v Ioannou [2007] VSCA 277

2 I agree with Redlich JA and I do so for the reasons advanced by him in his judgment.

**3 This was an application for leave to appeal from the restoration of a sentence of imprisonment pursuant to s 31(5)(a) of the Sentencing Act 1991 (Vic).

4 Section 31(1) of the Act provides that if during the period of a suspended sentence the offender commits another offence punishable by imprisonment, a court, may in the circumstances prescribed proceed to exercise any power conferred by sub-s (5). Sections 31(5) and 31(5A) provide:**

(5) If on the hearing of a charge under sub-section (1) the court finds the offender guilty of the offence, it may impose a level 10 fine and in addition must -

(a) restore the sentence or part sentence held in suspense and order the offender to serve it; or

(b) restore part of the sentence or part sentence held in suspense and order the offender to serve it; or

(c) in the case of a wholly suspended sentence, extend the period of the order suspending the sentence to a date not later than 12 months after the date of the order under this sub-section; or

(d) make no order with respect to the suspended sentence.

(5A) Despite anything to the contrary in sub-section (5), if on the hearing of a charge the court finds the offender guilty of the offence it must, in addition to any fine it may impose under sub-section (5), exercise the power referred to in paragraph (a) of that sub-section unless it is of the opinion that it would be unjust to do so in view of any exceptional

circumstances which have arisen since the order suspending the sentence was made.

**5 On 17 October 2003 the appellant pleaded guilty to a six-count presentment which contained five counts alleging offences against the appellant's wife. They were false imprisonment, stalking, recklessly causing injury, common assault and making a threat to kill. In addition, there was a count of possessing a drug of dependence. All of these offences were committed by the appellant in February 2003. In December 2003 the sentencing judge imposed a total effective sentence of three years' imprisonment in relation to the six offences and ordered that 26 months of that sentence be suspended for a period of three years. As a consequence of a declaration as to the number of days of pre-sentence detention which the appellant had served, he was released from custody in January 2004.

6 In subsequent proceedings for a breach of the order suspending the sentence of imprisonment, the sentencing judge concluded that there were no exceptional circumstances that had arisen since the order suspending the sentence was made (s 31(5A). The sentencing judge ordered that the period of 26 months' imprisonment that had been suspended be restored and that the appellant serve that sentence. It was further ordered that the appellant serve a minimum period of six months before he would be eligible for parole. The primary issue raised in this appeal was whether the learned sentencing judge erred in determining that there were no 'exceptional circumstances' within the meaning of s 31(5A) of the Act.

7 At the conclusion of argument on the appeal the Court set aside the order of the sentencing judge by which the suspended sentence of imprisonment had been restored and it had been ordered that the appellant serve that sentence. As the Court was of the view that no part of that sentence should be restored, the Court made an order pursuant to s 31(5)(d) of the Act that no order be made with respect to the suspended sentence. These are the reasons for those orders.**

History of proceedings since order for suspended sentence was made

**8 It was in March 2004 that the appellant committed further offences against his wife (the breaching offences). He was arraigned on a presentment in November 2006 containing a count of false imprisonment and a count of common assault. Prior to his arraignment, solicitors for the complainant made representations to the Director of Public Prosecutions requesting that the presentment against the appellant be withdrawn. They referred to previous requests that she had made to that effect during the course of 2005. The complainant maintained that at the time she made her statement against the appellant within a few hours after the breaching offence had occurred, she was intoxicated and very distressed. She maintained that her recall of events was not reliable. The complainant was unwilling to give evidence against the appellant. The solicitors for the complainant advanced a number of reasons in their correspondence with the Director as to why there would be no benefit to the complainant or her children if the trial against the appellant proceeded. The Director was informed, as was the fact, that the appellant had established a new life for himself in Sydney. Faced with this dilemma, the Director concluded that there was little prospect of securing a conviction against the appellant on the breaching offences or consequently bringing any proceedings for breach of the partially suspended sentence of imprisonment imposed in December 2003.

9 There was an agreement between the Office of the Director of Public Prosecutions and the legal representatives of the appellant, which may loosely be described as a plea bargain. The terms of the plea bargain were not recorded but they are not in dispute. The appellant agreed to plead guilty to the breaching offences notwithstanding the likelihood that the trial would not have otherwise proceeded. The Director agreed that the willingness of the appellant to plead guilty to the breaching offences, knowing that by his plea he would admit breaches of the order suspending the sentence of imprisonment, whilst aware that there was little chance of the breaching offences being proved, were unique and thus exceptional circumstances when viewed in conjunction with the appellant's rehabilitation and the wishes of the complainant and her children. The Director agreed that his representative would, at the relevant hearings, submit that these circumstances were exceptional and it would be just to take them into account. He further agreed that it would be submitted that it would be appropriate that no sentence be imposed that required the appellant to serve a further period in custody.

10 The appellant was then arraigned on 8 November 2006 and pleaded guilty to a presentment containing the two breaching offences. It had been assumed by the parties that the judge who heard this plea would also hear the proceedings for the breach of the order suspending the earlier sentence of imprisonment. This was not to eventuate. The content of this plea bargain and its effect was referred to in the following sentencing remarks of the judge who dealt with the breaching offences:**

Indeed the prosecutor in announcing his instructions stated that a non-custodial sentence was within the range and that this case was an exceptional one. Indeed, he foreshadowed that in the event of you being brought before court for breaches of the suspended sentence to which I have referred it would be the submission of the Director of Public Prosecutions that the circumstances of your breach in this case were exceptional.

No further period of imprisonment immediately imposed would be of benefit to you and your family. It would only serve to frustrate and perhaps prejudice the part of self-rehabilitation which you have already undergone over the period of two years and two months. Moreover it would be adverse to your relationship with your children and your estranged wife in a personal sense because it would cause them great anxiety.

**11 That judge imposed a sentence of 12 months' imprisonment for the two breaching offences but suspended all but 144 days of that sentence of imprisonment declaring that the appellant had served a period of 144 days by way of pre-sentence detention such that the appellant was not required to serve any further period in custody.

12 The proceedings for breach of the order suspending the original sentence of imprisonment were referred to the judge who had made that order. On 21st June 2007 the appellant was presented before that judge for breach of that order. The appellant admitted breaching the partially suspended sentence of imprisonment. In those circumstances it was necessary for the sentencing judge to make one of the orders specified in s 31(5(a)-(d) in relation to the sentence of 26 months' imprisonment that had been suspended unless the sentencing judge was of the opinion that it would be unjust to do so in view of any exceptional circumstances which had arisen since the order suspending the sentence of imprisonment. Counsel for the Director of Public Prosecutions, in accordance with the agreement submitted to the sentencing judge that exceptional circumstances existed. The prosecutor informed the sentencing judge that this opinion was based upon the fact that there had been very little chance of a conviction being recorded against the appellant for the breaching offences as the complainant was not prepared to give evidence against him but the appellant had nonetheless pleaded guilty to the breaching offences and thereby had placed himself in breach of the order suspending the sentence of imprisonment. The sentencing judge was informed that the Director knew of no precedent for such a situation. The sentencing judge was further informed that those circumstances together with those relating to the appellant's rehabilitation and the wishes of the complainant and her children had led the Director to conclude that the circumstances were exceptional.

13 On the plea counsel for the appellant relied upon the concession made by the Director and five other matters which it was submitted in combination constituted exceptional circumstances. The other matters relied upon were:**

(1) The conduct of the complainant towards the appellant when he had been in custody and when he was released prior to the time that he committed the breaching offences;

(2) The attitude of the complainant to the appellant's offending and to the further imprisonment of the appellant;

(3) The penalty which had already been imposed for the breaching offences;

(4) Delay in the hearing of the breaching offences and the proceedings for breach of the order for suspending the sentence of imprisonment;

(5) The appellant's rehabilitation including the progress of the appellant regarding his business.

**14 Following the conclusion of a lengthy plea the sentencing judge determined that exceptional circumstances did not exist and made the orders restoring the sentence and requiring that it be served.

15 What could constitute exceptional circumstances for the purposes of s 31(5A) of the Sentencing Act 1991 was the subject of consideration by Nettle JA in R v Steggall.[1] His Honour pointed out that the Attorney General had said in her second reading speech when introducing the provision that -**

Analysis of present sentencing practices indicated that in many cases an offender who has breached a suspended sentence by committing another offence will not be ordered to serve that period of imprisonment by the courts. This state of affairs erodes the effectiveness of this sentencing order and brings the legal system into disrepute.

The suspended sentence order is intended to provide an offender with one last chance, yet in practice this has not been the case. The bill amends the provisions to provide that unless there are exceptional circumstances, an offender who has breached a suspended sentence by committing another offence will be imprisoned.

If therefore the language of s.31(5A) were not enough in itself to demonstrate an intention to make it harder for offenders to escape the consequences of breaching a suspended sentence, the second reading speed to my mind makes plain that the amendment was intended to have just that effect. Previously, it was enough to avoid restoration of a suspended sentence if, upon the sort of balancing exercise essayed in Newman,[2] it were found that there was good reason in justice and the public interest not to do so. Now, with the requirement of "exceptional circumstances", it is plain that something more than good reason is required.

Like the sentencing judge, I consider that the something more is that if an offender breaches a suspended sentence he or she shall be compelled to serve the whole of the sentence unless the circumstances are so exceptional as to be beyond reasonable contemplation or expectation. (Footnotes omitted) [3]

16 His Honour had, a little earlier in his judgment quoted with approval the following passage from the judgment of Hedigan J in Owens v Stevens[4] where in relation to the use of the expression 'exceptional circumstances' in Clause 15 of Schedule 5 to the Magistrates Court Act1989 that -

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning "unusual, special, out of the ordinary course". This does not mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or exception. (Footnote omitted)[5]

**17 It is, I think, apparent from these extracts, and from the clear legislative intent implied in the use of the term exceptional, that the circumstances which would justify a departure from the strong expectation that an individual who had been permitted to remain in the community under such an order and has breached it by the commission of a further criminal offence will have the sentence restored, must be clearly unusual or quite special or distinctly out of the ordinary. As these expressions indicate, the circumstances cannot fall within the range of normally anticipated consequences, behaviours or exigencies. Steggall is not authority for the proposition that circumstances can only be exceptional if they are beyond reasonable expectation or contemplation.

18 This was clearly the thrust of the statements of both Hedigan J and Nettle JA who are not to be taken, in my opinion, save in a very general sense, as having attempted to identify the circumstances which would be regarded as exceptional for the purposes of the provision.

19 After referring to passages from Steggall, the sentencing judge said:**

In this case I do not consider it to have been beyond reasonable contemplation or expectation that [the complainant] would be a reluctant witness against the father of her children. This was precisely [sic] what she was before me in the December 2003 plea hearing. Nor do I think it beyond contemplation or expectation that you, Mr Ioannou, should have pleaded guilty to the breaching offences notwithstanding that you knew that without (the complainant's) co-operation the Crown was unlikely to be able to prove its case against you. Persons charged with offences have often done this and been given credit for it.

**20 There were additional relevant circumstances that should have been considered and which are set out below. Moreover the evaluation required was whether they fell outside the range of normal consequences, behaviours or exigencies that could be anticipated.

21 Although the written submission filed on the Director's behalf had sought to justify the learned sentencing judge's conclusion that exceptional circumstances did not exist, counsel for the respondent on the appeal rightly conceded in oral argument that the circumstances relied upon did constitute exceptional circumstances within the meaning of s 31(5A) of the Act. Counsel for the respondent submitted that the legal significance of the agreement reached by the Director with the appellant had not been adequately explored on the plea and as a consequence the sentencing judge had taken a narrow view of its relevance to the question of exceptional circumstances.

22 It was a matter for the sentencing judge whether she formed the same view as the Director as to whether the willingness of the appellant to plead guilty to the breaching offences when aware that the Crown would be unable to prove them, was an unprecedented and unique circumstance. But the complainant's unwillingness to testify and the appellant's plea of guilty notwithstanding the prospect that the Director would be unable to secure a conviction, were not the only relevant circumstances which had to be considered arising from the agreement. Her Honour should have taken into account the whole of the plea bargain in conjunction with the other factors relied upon by the appellant in our view constituted exceptional circumstances. The fact that the Director was of the opinion that the circumstances were exceptional,[6] that the Director would make a submission to that effect before the sentencing courts, that the Director would further submit that it would be appropriate that the appellant not be required to serve any further period in custody and that the position agreed to by the Director affected the course which the appellant was prepared to take in the proceedings, were all matters which bore upon whether the circumstances were exceptional. Those circumstances were not considered because the argument before her Honour proceeded on the narrow question of whether the Court took the same view as the Director that the appellant's plea was unprecedented. That deflected attention from the fact that the Director's opinion, the course which he agreed he would follow and its affect on the course which the appellant was prepared to follow all bore upon whether the circumstances were exceptional.

23 An agreement between a prosecuting authorities and an offender which affects the course of proceedings before a sentencing judge have been recognised as significant in other circumstances.[7] Here, the Director's opinion and his undertaking as to the submissions that would be made on his behalf contributed to the course taken by the appellant and were relevant to the question whether the circumstances were exceptional. It was no doubt these considerations which led counsel for the respondent to abandon submissions which sought to justify the sentencing judge's conclusion that there were no exceptional circumstances present. Such a submission would have involved a departure from the formal submission made on the Director's behalf below. In DPP v Waack this Court referred in different circumstances to the oft-quoted passage of the judgment of King CJ in R v Wilton[8] that it would only be in exceptional circumstances that the prosecution should be allowed to raise on appeal a contention which was contrary to the position adopted by the prosecution before the sentencing court.[9]

24 In our view the combination of circumstances relied upon by the appellant did constitute exceptional circumstances which would make it unjust to restore the sentence and order the appellant to serve it. Consequently it is unnecessary for any view to be expressed about each of the individual circumstances relied upon by the appellant.

25 Nothing had occurred since the plea and sentence in relation to the breaching offences in November 2006 which would have required any departure from the objective of the sentencing judge at that time, that the appellant should not be required to serve any further period in custody. In accordance with the plea bargain it was not suggested at the time the suspended sentence was restored in June 2007 or on this appeal that the appellant should be required to serve further time in custody. Therefore, pursuant to s 131(5)(d), we made no order with respect to the suspended sentence.**

[1] [2005] VSCA 278; (2005) 157 A Crim R 402.

[2] R v Newman [1998] 1 VR 715.

[3] [2005] VSCA 278; (2005) 157 A Crim R 402, [15], [16].

[6] It did not matter for this purpose whether her Honour agreed with that view.

[7] Malvaso v R [1989] HCA 58; (1989) 168 CLR 227; DPP v Waack [2001] VSCA 108; (2001) 3 VR 194, 200-6.

[8] (1981) 28 SASR 362.

[9] DPP v Waack, 201; see also R v Jermyn [1985] 2 NSWLR 194, 204-5 (McHugh JA).