R v McConkey

2 On 7 November 2003 I granted the appellant leave to appeal against sentence pursuant to s.582 of the Crimes Act 1958. At that time I gave extensive reasons for my decision to grant leave[1] and I will adopt those reasons as appropriate in this judgment. I granted leave on two grounds, but not on ground 3. Since my decision the grounds have been supplemented by the addition of two grounds that deal with topics that were debated on the leave application, and which I suggested might appropriately be made the subject of specific grounds. Application was made to the Registrar for that purpose.

3 The appellant pleaded guilty before a judge of the County Court to one count of intentionally causing serious injury (which carried a maximum penalty of 20 years' imprisonment), one count of stealing a motor vehicle (carrying a maximum penalty of 10 years' imprisonment) and one count of intentionally damaging a motor vehicle (carrying a maximum penalty of 10 years' imprisonment).

4 On 4 June 2003 the appellant was sentenced to be imprisoned for two years. On count 2 he was sentenced to imprisonment for six months, three months of which was ordered to be served cumulatively upon the sentence imposed on count 1[2]. On count 3 the appellant was sentenced to imprisonment for six months, three months of which was ordered to be served cumulatively upon the sentences imposed on counts 1 and 2. The total effective sentence therefore was two years six months' imprisonment and the learned sentencing judge fixed a non-parole period of 15

months. In addition to the sentencing orders, there were orders made as to the cancellation of the motor vehicle licence of the appellant and his disqualification from driving for a period of 12 months.

5 The appellant was jointly presented with one Bradley Bell who was also sentenced to two years' imprisonment on count 1 but the whole of that period of imprisonment was suspended for a period of two years. On count 2 Bell was convicted and placed on a community based order to perform 300 hours work and to undertake assessment and treatment as appropriate for alcohol dependency and with respect to psychological assessment. On count 3 Bell was convicted and placed on a community based order for two years upon the same conditions as for count 2.

6 The grounds of appeal for the appellant (omitting ground 3) are as follows:

1. That the sentence imposed was manifestly excessive.
2. That the sentencing judge failed to give sufficient weight to the principle of parity.
3. The learned sentencing judge erred in finding that there was nothing in the material before the Court which in any way really mitigated the circumstances of the appellant's offending.
4. The learned sentencing judge erred in finding that the appellant had not achieved the measure of actual insight into his offending and the reasons for it.

7 The circumstances of the offences are detailed in my earlier judgment.[3] I will briefly summarise them. In the early hours of 17 April 2002 a taxi-driver whilst standing outside his taxi was approached by the appellant and Bell who asked him to take them to Broadmeadows. The driver doubted that they had funds and declined to do so, whereupon the appellant said "What do you think if I smash you?" and then threw a rock at the driver striking him on the head causing his head to bleed profusely. Bell then picked up a stick and struck a blow which landed on the left wrist of the driver as he protected himself. The driver then grappled with Bell and the appellant joined in to assist Bell. The driver was overpowered and thrown to the ground whereupon the appellant held him down whilst Bell kicked him six to eight times to the back. During the incident the driver's left hand was broken.

8 The appellant and Bell then got into the taxi, with the appellant driving and as he drove away from the scene - leaving the injured victim on the roadway - the appellant leaned out through the driver's side window and called to the driver "Fuck you, arsehole." The appellant then drove the taxi at high speed and in a wild manner, colliding with traffic signs and shrubs and finally leaving the roadway and crashing through a chain fence. The damage, which he admitted was deliberately caused and which the judge described as being disgraceful and gratuitously destructive, included damage to the vehicle in the order of $2,700.

9 The driver was taken to hospital and received stitches to his head and treatment for his fracture, which required surgery, and which treatment continued for some months. In evidence given before her Honour the victim said that he suffered both physical and psychological injuries. He had a plate and wires attached within his wrist, had his arm in plaster for seven weeks and required monthly physiotherapy treatment. The injury to his wrist caused continuing difficulty and the driver suffered nightmares and psychological injuries and stress. As a result of the physical and mental injuries the driver was unable to work for 12 months and when he tried to return to work was unable to continue, due to stress.

10 In granting leave to appeal I noted several matters which I said made some of the grounds of appeal arguable. Notwithstanding that those grounds were arguable I emphasized to the appellant at that time that he should not presume that, leave having been granted, he would succeed on his appeal. I pointed out that it might be the case that before a court of three his appeal would be rejected and that that might be so even if I was to sit on the appeal. As it happened, I sat on the appeal and as it further happens I have reached the firm conclusion that although the grounds of appeal were arguable, on closer examination none of those grounds succeeds.

"There is nothing in the material which has been put before me which in any way really mitigates the circumstances of your offending on this night."

12 Counsel submitted that in saying there was nothing that in "any" way "really" mitigated the circumstances of the offending her Honour's words ought to be given the interpretation to be derived from dictionary definitions, so as to mean that there was nothing at all which mitigated the offending. That approach is inappropriate. A judge's sentencing remarks cannot be read as though they were in a statute, a will or a deed[4]. Her Honour delivered very lengthy sentencing remarks with respect to the appellant and did so after first delivering what were also lengthy sentencing remarks concerning the co-offender Bell. It is also appropriate to set out the history of this proceeding so as to give context to her Honour's sentencing remarks. When that is done then, in my opinion, it is clear that her Honour fully appreciated that there were mitigating factors and had regard to them in sentencing.

13 The two offenders first appeared before her Honour on 28 April 2003 and pleaded guilty. The appellant admitted a prior conviction for carrying a prohibited weapon. The prosecutor opened the case and there being a dispute as to the facts on which they should be sentenced called the victim and an independent eye witness. Although the version of events described by those witnesses was challenged neither offender gave evidence. Her Honour adjourned the matter until 16 May 2003 when she made findings of fact as to the circumstances of the offences. A Plea in mitigation was made that day for Bell and on 19 May 2003 submissions in mitigation were made for the appellant. Her Honour indicated that she wanted further information concerning the appellant and the case was adjourned for the purpose of obtaining a psychological report concerning him and in order to assess the suitability of the co-offender for a Community based Order. On 4 June 2003 a further plea in mitigation was made for the appellant and a psychologist's report was tendered. Her Honour then delivered her detailed reasons for sentence.

14 As that chronology demonstrates, her Honour gave great care to the question of sentencing both offenders.

15 Two mitigating factors for the offending were identified by Mr Kassimatis, first, the effect of intoxication on the appellant on this occasion (as part of an apparent alcohol problem) and, second, his underlying psychological problems and their likely exacerbation by alcohol misuse.

16 A report from psychologist Mr Patrick Newton, dated 28 May 2003, disclosed that the appellant's younger brother suicided by hanging himself in 1997 and his body had been discovered by the appellant. As might be expected, that event had a devastating effect on the appellant and Mr Newton said that he continued to suffer ongoing symptoms of trauma as a result. That event was coupled with the fact that as a child aged about eight or nine his parents had separated and his father had all but abandoned any contact with him since that time. The appellant felt a profound sense of rejection from that event. Mr Newton said that as a result of these events the appellant had suffered ongoing depressive symptoms. Mr Newton's evaluation led him to the conclusion that the appellant met the diagnostic criteria of major depressive disorder (moderate and chronic) and of a post traumatic stress disorder, which was chronic. He said that the appellant presented with a complex mix of psychological problems which would require ongoing attention if they were to be resolved. Among the programs recommended for him were anger management programs and personal counselling.

17 Mr Newton reported that the appellant, although only an occasional social drinker, nonetheless from time to time would consume significant quantities of alcohol, which would affect his behaviour. As the appellant acknowledged to Mr Newton, his behaviour when affected by alcohol was disinhibited and garrulous, but he said that this event was the first instance in which he had become physically violent after excessive consumption of alcohol.

18 Immediately after her Honour made the statement which forms the basis for this ground of appeal her Honour noted and took into account the fact that the appellant had pleaded guilty to the offences at an early stage. She then said she also accepted that the appellant had been drinking to excess at the time of the offences and had underlying psychological problems relating to his abandonment by his father and the death of his brother. Her Honour continued:

"However, while these factors may provide explanations for the way you behave, they cannot excuse it and I do not find your psychological state as described in the report of Mr Newton to be of a status that justifies mitigation of the principle of general deterrence in sentencing you."

19 In my view, therefore, when her Honour made the comment that there was nothing which "really mitigates the circumstances of your offending on this night" her Honour did not reject either alcohol or psychological problems as factors but considered that the weight to be attributed to them as factors reducing the moral culpability of the appellant was very limited. That assessment of the weight to be attributed to those factors was open to her Honour.

20 In accepting that the appellant had been drinking to excess her Honour was not obliged to treat that as a mitigatory factor, at all[5], but it seems to me that her Honour did not reject the explanation entirely, but merely regarded it as having less value as a mitigating factor than counsel submitted was appropriate. Furthermore, it was open to her Honour to conclude that the psychological state described by Mr Newton was not "of a status that justifies mitigation of the principles of general deterrence". The psychological state as described did not amount to a psychiatric illness, let alone an illness of such a degree as would be bound to reduce the moral culpability of the appellant[6].

21 Plainly, general deterrence was of particular importance in this case. Her Honour rightly described count 1 as a particularly serious offence. In concluding that general deterrence was an important consideration her Honour was entitled to say, as she did, that in recent years attacks on taxi drivers had become increasingly prevalent and that conduct such as occurred in this case merited severe denunciation by the Court so as to deter others from so engaging. The psychological factors which blighted the appellant's life were not dismissed by her Honour, but it was open to her to conclude that they did not ameliorate the need for general deterrence in this case. It is significant that as to specific deterrence her Honour said that she placed only "some weight" on that consideration, and referred expressly to the report of Mr Newton of the difficulty the appellant had in regulating his emotions and being vulnerable to angry outbursts. Her Honour noted that despite those difficulties the applicant had attained 31 years of age without any history of violence.

23 Under the heading "Insight" Mr Newton stated, "Mr McConkey could demonstrate a good degree of insight into these issues." That remark was made after describing anger management issues and reporting that the appellant had difficulty regulating his emotions, and saying that made him vulnerable to angry outbursts when he was frustrated. It had also been noted that the appellant had difficulty describing the physical and psychological signs that he was becoming angry, and had said that he felt his anger erupted without warning. As to the insight into these matters, Mr Newton continued:

"He stated that he recognized that he had a problem controlling his anger and expressing it in a positive way. He expressed a willingness to participate in a program of anger management training and/or counselling to assist him to develop better skills in this area. Mr McConkey was also able to make coherent connections between the sense of emotional numbing he has experienced since his brother's death, his difficulties with emotional regulation and his problems managing his anger. Finally he could generate a wealth of alternative courses of action which would allow him to avoid future angry outbursts and could discuss concrete ways in which he could prevent the type of behaviour which has brought him before the court from occurring."

24 Under the heading "Prognosis" Mr Newton finally stated:

"The psychological disturbance suffered by Mr McConkey is longstanding and severe. As such, it mitigates against flippant optimism or the positing of simplistic solutions. There can be little doubt that he will require ongoing assistance to address his issues. I would, nevertheless, consider his prospects for recovery to be positive were he to receive appropriate treatment at this time. This opinion is based on several factors. Firstly, Mr McConkey has developed some positive insight into his problems. Secondly he is motivated to implement constructive change in his life. He was keen to discuss treatment options during our consultation and expressed a positive attitude towards effective treatment. This motivation was confirmed on psychological testing. Thirdly, Mr McConkey is of normal intelligence which suggests an ability to benefit from remediation and intervention. Finally Mr McConkey enjoys the ongoing support of his family in addressing his problem. The combination of such considerations gives hope that with sufficiently intense treatment, his prospects for recovery would be positive."

25 The statement about insight made by her Honour which is the foundation of this ground of appeal came after her Honour had discussed the principle of parity as between the two offenders. Her Honour had noted that Bell had not only given himself up to the police on the day following the commission of the offences but had demonstrated remorse for the harm which had been done the taxi-driver. In particular her Honour noted the statement by Bell that what had occurred was "pathetic" for the reason that "He's probably just an innocent cab-driver going off for work for the day and he has to cop that first thing in the morning". Her Honour then considered the appellant's attitude and said that she had not ignored his prospects of rehabilitation. Her Honour said:

"I have not ignored your prospects of rehabilitation, Mr McConkey. It is to be hoped that the sentence that I will impose will ultimately bring you to a realization of your wrongdoing and the reasons that you have behaved in this way. It seems that you have a number of psychological issues which need to be addressed, in conjunction with something of an alcohol problem. However, you have been described as a man of above-average intelligence and it is to be hoped that you will gain insight into the reasons for your offending and take measures to address those reasons. I am hopeful that, if this occurs, then your chances of re-offending are likely to be slight."

26 This ground particularly troubled me. Mr Gyorffy submitted that in the passage dealing with "insight" her Honour was expressing the view that the applicant had shown no insight into the effect his conduct had had on his victim. I do not however believe that to be so, at least not wholly so. It is true that her Honour considered that the plea of guilty was not an indication of actual remorse, and noted that he had contested the facts on the plea, which included making accusations against the victim. Her Honour said, too, that the report of Mr Newton made no mention of the appellant feeling any empathy for (sic) his victim. It is no doubt those matters which her Honour had in mind when she said as to the prospects of rehabilitation that "It is to be hoped that the sentence that I will impose will ultimately bring you to a realisation of your wrong doing and the reasons that you have behaved in this way". Consistent with Mr Gyorffy's submission, her Honour is there clearly indicating that there is a lack of insight as to the seriousness of his wrong doing. But additionally the following sentence raises the question of "psychological issues that need to be addressed", together with an alcohol problem.

27 The expressed hope of him gaining insight into the "reasons for your offending", which is next mentioned, seems to me to address both the lack of appreciation of the effect of his conduct on the victim and the reasons why it happened. As to the latter, Mr Newton did make some positive assertions as to insight but he qualified his statement as to insight in his concluding paragraph, in which, after expressly warning against "flippant optimism" or "simplistic solutions", he said that the appellant had "developed some positive insight into his problems" (my emphasis). Given that qualification, I consider that her Honour's remark was not a rejection of the opinion of Mr Newton but a recognition that there was a long way to go before it could be said that the appellant's prosects of rehabilitation were good.

28 I have concluded, therefore, that her Honour did not misunderstand what Mr Newton had said about insight, but recognised the qualified terms in which he expressed his opinion. Her Honour's statement which provoked this ground of appeal does not, on closer analysis, betray sentencing error.

29 The sentence of imprisonment which was imposed on both offenders was identical as to count 1. The difference arose not in the order of imprisonment but in the fact that in the case of Bell the sentence of imprisonment was wholly suspended. On counts 2 and 3 the appellant received a sentence of imprisonment but Bell was released on a community based order for two years. It was the failure to suspend the sentences on all counts, especially count 1, that was the focus of argument concerning disparity.

30 As stated by Winneke, P. in R. v. Sterling[7] "before an appellate court can interfere on the ground of disparity, the disparity should be manifest and such as to engender a justifiable sense of grievance in the offender and that appearance of injustice to the objective bystander". That principle which derives from Lowe v. R.[8] was discussed by Callaway, J.A. in R. v. Taudevin[9] where his Honour noted[10]:

"The important words are 'manifestly', 'justifiable' and 'objective'. There is much to be said for the view that all three requirements are variations on the same thing, i.e. that only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the other two requirements. However that may be, it is certainly true that a sense of grievance is not justifiable unless it is shared by an objective observer."

31 In Postiglione v The Queen[11] Kirby J said of parity between offenders "due allowance will be made for their respective criminality. Due allowance will also be made for their differing antecedents, personal circumstances and mitigating factors".

32 A suspended sentence must be regarded as a sentence of imprisonment, and as a very significant punishment, not merely as being a "soft option"[12]. Such a sentence can serve the function of general deterrence: see DPP v. Carter[13] Such a sentence might be imposed because the judge considered that it offered the greatest prospect of reformation and, in turn, protection of society: R. v. Davey[14].

33 By virtue of s.27(3) of the Sentencing Act 1991 the court must not suspend a sentence of imprisonment unless the period of imprisonment would, if unsuspended, have been appropriate to impose. Such a sentence is not an unconditional release nor a mere exercise in leniency but it is an order generally made in the community's interest and generally designed to prevent re-offending: see DPP v Buhagiar & Heathcote[15]. The sentencing judge must consider whether the offender should have "the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done"[16].

34 When joint offenders must be sentenced the approach to be adopted by the judge was described by King, C.J., in R. v. Wilton[17], as follows:

"The correct approach to the sentencing of these co-offenders was for the sentencing Judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned Judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of the opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part".

35 In my opinion, her Honour adopted just such an approach of carefully considering the situation of each accused. When considering what was an appropriate sentence on each count her Honour was fully conscious of the factor of parity, and said so explicitly. When considering the question of suspension of the sentences her Honour weighed that question by reference to the specific position of each accused in turn. That properly involved consideration of the circumstances of the offences, the mitigating factors personal to each accused and their prosepcts of rehabilitation. Her Honour, while concluding that an identical term of imprisonment was appropriate for both offenders on count 1 considered that only in the case of Bell was it appropriate to suspend the sentence.

"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[19]. 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".

37 In addressing parity her Honour drew the following distinctions between the appellant and Bell. First, that as to each of the offences the appellant was the instigator and had a higher degree of culpability and responsibility for the offence; second, that it was the appellant who started the attack on the taxi driver; third, it was the appellant whose idea it was to steal the taxi and who drove it away; fourth, it was his appalling driving which deliberately caused damage to the taxi; fifth, that Bell was very much the appellant's junior, being only 19 years of age, whereas the appellant at the time was 30; sixth, that Bell gave himself up to the police the following day whereas the appellant was not arrested for two weeks; seventh, that Bell demonstrated remorse for the reasons earlier stated and finally, with respect to Bell, that his relative young age made it appropriate to give significant emphasis to rehabilitation in sentencing him over and above considerations of just punishment, general deterrence and other sentencing objectives. Bell's position was also to be contrasted with that of the appellant in that he had changed his circumstances for the better, had returned home to his mother, had reduced his consumption of alcohol and was in steady employment. Each one of those differentiating factors was appropriately identified and was significant in this case. In particular, it is well settled that youth, and the prospects of rehabilitation it offers, is a factor of particular importance in sentencing[20]. It should also be noted that Bell had in fact spent 12 days in custody.

38 As to the disparate sentences on counts 2 and 3 Mr Kassimatis submitted that the co-offender, Bell, played a very active role but was treated as though it was otherwise. Her Honour said that it was the appellant who decided to take the taxi and it was he who drove in such an appalling manner. Bell indeed accompanied him, but there was a significant difference in their respective roles, which her Honour was bound to acknowledge and which, when coupled with the other distinguishing factors, noted above, readily explains why the sentences imposed were different. No valid complaint as to parity could be sustained as to those counts.

39 I can appreciate why the appellant might feel aggrieved that he had to undergo a sentence of immediate imprisonment but his co-offender did not. That, however, can not be regarded as a justifiable sense of grievance when one has regard to the factors which distinguished his position from that of Bell. In my opinion, her Honour gave careful consideration to the position of each offender and in deciding as she did in the case of the appellant her sentences did not infringe the principle of parity.

40 The offence of intentionally causing serious injury can encompass a range of circumstances and results but where it is committed in circumstances involving the infliction of unnecessary violence on a member of the public going about his or her lawful activities it would normally attract a sentence of immediate imprisonment[21]. That result would be even more likely when the member of the public had been vulnerable to attack and was performing a community service, as is the case for a taxi driver, albeit that a taxi driver gains income from that pursuit. The maximum penalty set by Parliament for that offence - twenty years imprisonment - bears testimony to the seriousness with which it is viewed. It must be said that each word constituting an element of the offence emphasises why it might be so regarded.

41 The circumstances of the assault on the victim in this case, and the consequences thereof, were not such as to place the offence in the highest category for such offences. The assault, although in company, was spontaneous; the offenders did not come armed but instead, once an argument ensued, opportunistically resorted to weapons which were at the scene; only one blow was struck with each weapon; the appellant himself did not administer any kicks to the victim; the injuries suffered, in particular the psychological after-effects, although substantial, were not, it seems, permanent. Mr Kassimatis submitted that in addition to undervaluing those factors the judge had given insufficient weight to the appellant's prospects of rehabilitation, and had failed to appreciate that rather than those prospects being gloomy because of lack of insight, Mr Newton was presenting a relatively positive picture, and was basing that in part on the fact that the appellant did indeed show some insight into the causes of his offending.

42 Each of those mitigating factors does indeed distinguish this case from some of the even more serious instances of the offence which have come before the courts. Having said that, however, the penalty imposed on count 1 was by no means in the higher range for pleas of guilty to such offences, even for first offenders with mitigating factors to be found in their antecedents. Importantly, the victim had been unable to return to work as at the time of sentencing, some 14 months after he was assaulted.

43 As earlier discussed, her Honour carefully considered the impact of psychological factors and of alcohol, but considered that those factors whether taken alone or with other mitigatory factors did not justify a suspended sentence, in the case of the appellant. That assessment was one which was open for her to make on the evidence. Importantly, her Honour having imposed a total effective sentence of 2 years and 6 months said that she would fix a lower non-parole period than she would otherwise have fixed, in recognition that that offered the best chance of encouraging the appellant's rehabilitation. The period so fixed of 15 months was lower than might otherwise be expected.

44 Notwithstanding the unfortunate factors personal to the appellant and to his lack of significant prior convictions, I am unable to say that the sentences imposed here were not within the range appropriately open to the learned sentencing judge. Indeed, Mr Kassimatis, quite properly did not argue that the sentence of two years imprisonment was outside the range open to the judge in this case. It was the failure to suspend it which rendered it manifestly excessive, he submitted. As to that, and no doubt in recognition of the reality that the appellant had served some eight months of his sentence by the time of the appeal, Mr Kassimatis acknowledged that partial, rather than total, suspension of the sentence might have also been within range and would be an appropriate disposition of the appeal were we to re-sentence.

45 Notwithstanding the force of the submissions made by Mr Kassimatis, I have concluded that the sentences, both as to the terms of imprisonment fixed and as to the decision that they ought not be suspended, either in whole or in part, are not manifestly excessive.

46 I granted leave to appeal because the grounds were arguable. On close analysis, however, it is apparent that the sentences imposed in this case were the product of detailed and very careful reasoning by the judge. No error has been shown in the sentencing process and the sentences are within appropriate range.

47 In the event that we determined there was error in the sentencing process and were therefore to re-sentence the appellant Mr Kassimatis placed before us material which demonstrated that the appellant while in prison had undertaken alcohol and other rehabilitation programs. He had also reconciled with his partner and regained contact with his two children. Because I have concluded that error has not been demonstrated, those positive developments can not bear upon the outcome of this appeal. The appellant is to be congratulated, however, for having taken those positive steps towards his rehabilitation.

48 The appeal against sentence, in my opinion, should be dismissed.

49 I agree with Eames, J.A. that the appeal should be dismissed for the reasons stated by his Honour.

[1] R. v. McConkey, unreported judgment, Eames, J.A., 7 November, 2003.

[2] There is an error in my reasons of 7 November 2003, at [2], in which I incorrectly stated that on count 2 the whole of the sentence of six months was ordered to be served cumulatively.

[3] R. v. McConkey, unreported Eames, J.A. 7 November 2003.

[5] See R. v. Groom [1999] 2 V.R. 159 at [23] per Batt, J.A.

[6] See the discussions in R. v. Tsiaras [1996] VicRp 26; [1996] 1 V.R. 398; R. v. Anderson [1981] VicRp 17; (1981) V.R 155; R. v. Yaldiz [1998] 2 V.R. 376.

[7] [2000] VSCA 8 at [40].

[8] [1984] HCA 51; (1984) 154 C.L.R. 505.

[9] [1996] VICSC 7; [1996] 2 V.R. 402.

[11] [1997] HCA 26; (1997) 189 C.L.R. 295, at 339.

[12] Fox & Freiberg, "Sentencing", 2nd Ed, par 9.403.

[13] [1998] 1 V.R. 601, at 607-608.

[14] [1980] FCA 134; (1980) 50 F.L.R. 57.

[15] [1998] 4 V.R. 540, at 547, per Batt and Buchanan, JJ.A.

[16] Buhagiar & Heathcote, at 547, per Batt and Buchanan, JJ.A.

[17] (1981) 28 SASR 362, at 367.

[19] R. v. Kirk (1984) 6 Cr.App.R.(S) 231.

[20] See R. v. Mills [1998] 4 V.R. 235, at 241, per Batt, J.A.; R. v. Giles [1999] VSCA 208; R. v. Tran [2002] VSCA 52; (2002) 4 V.R. 457.

[21] R. v. Daniels [2002] VSCA 78, at [5] per Winneke, P., with whom Batt and Eames, JJ,A. agreed