R v McEachran [2006] VSCA 290

1 The appellant and his wife, Cheryl McEachran, pleaded guilty in the County Court to a presentment containing four counts. Count 1 (intentionally causing serious injury) applied only to the appellant. Count 2 (recklessly causing serious injury) applied only to Cheryl McEachran. Counts 3 (kidnapping) and 4 (reckless conduct endangering life) applied to both offenders. The kind of kidnapping charged was kidnapping at common law, not the statutory version of that offence in s.63A of the Crimes Act 1958.[1] The maximum custodial penalties for the offences the subjects of counts 1, 2, 3 and 4 are 20 years', 15 years', 25 years' and ten years' imprisonment respectively.

2 The appellant also pleaded guilty to two summary charges. For each of those offences he was sentenced to be convicted and discharged. They form no part of the appeal and nothing further need be said about them.

3 After hearing pleas for leniency on their behalf, the learned judge sentenced the appellant and his wife on 20th December 2005. His Honour sentenced the appellant to three years' imprisonment on count 1, six years' imprisonment on count 3 and five years' imprisonment on count 4. He directed that one year of the sentence imposed on count 1 and four years of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, resulting in a total effective sentence of 11 years' imprisonment. A non-parole period of seven-and-a-half years was fixed. Cheryl McEachran was sentenced to two years' imprisonment on count 2 and four years' imprisonment on each of counts 3 and 4. It was directed in her case that one year of the sentence imposed on count 2 and three years of the sentence imposed on count 4 be served cumulatively upon each other and upon the sentence imposed on count 3, resulting in a total effective sentence of eight years' imprisonment, in respect of which a non-parole period of four-and-a-half years was fixed.

4 I have taken the unusual course of annexing the learned judge's sentencing remarks as a schedule to this judgment. I have done that for two reasons. First, it is difficult to understand the grounds of appeal and counsel's submissions, especially regarding parity and findings of fact, without at least a good deal of reference to the sentencing remarks. For the same reason, it is necessary to refer expressly to personal matters affecting both the offenders. Secondly, although I have been persuaded to differ from his Honour, I could not describe the circumstances of the offending or the issues in clearer or better terms.

5 Having been granted leave to do so, the appellant appeals on the following amended grounds:

"1. The individual sentences and the total effective sentence imposed on the appellant reflect unjustifiable disparity between him and the co-offender.

PARTICULARS

The learned sentencing judge erred in discriminating in penalty between the appellant and the co-offender to the extent ordered or at all, in particular with respect to the total effective sentence and non-parole period, the sentence of 6 years' imprisonment imposed on count 3 and the sentence of 5 years' imprisonment on count 4. Furthermore, the learned sentencing judge erred in discriminating in penalty (a) by finding that the appellant was the instigator of the kidnapping, (b) by finding that the appellant was more responsible for leaving the baby in appalling conditions and (c) by reliance on the co-offender's mental condition: para [55] of the reasons for sentence.

1. 2. The learned sentencing judge erred (a) by finding that the appellant was the instigator of the kidnapping, (b) by finding that the appellant was more responsible for leaving the baby in appalling conditions and (c) in discriminating in penalty between the appellant and his co-offender by reliance upon the co-offender's mental condition, such discrimination serving wrongly to undervalue the appellant's vulnerability to and dependence upon the co-offender.
2. 3. Further, and in the alternative, the learned sentencing judge erred in failing properly to take into account the fact that the appellant was, on the evidence, a man who by virtue of his psychological disposition and low level of intellect was vulnerable to carrying out the desires of the co-offender.
3. 4. Further, and in the alternative, it is submitted that it was not open to the learned sentencing judge to find that the appellant had left the child on the floor of the abandoned house without any covering.
4. 5. The individual sentences and total effective sentence are manifestly excessive.
5. 6. The learned sentencing judge erred by failing to have proper regard in mitigation to the fact that there was another and less punitive offence which could have been charged, namely, the offence of child stealing contrary to section 63 of the Crimes Act 1958 (Vic.)."

6 Mr Boyce argued grounds 1, 2 and 3 first. He put parity at the forefront of his submissions. It will nevertheless be convenient for me to begin with grounds 4 and 6. The conclusion I have reached makes it unnecessary to address ground 5.

7 The appellant said in his record of interview that, in the derelict house, he noticed that there was a "mattress or something" on the floor and a "blanket or something" there. He also said that he put the baby "in there and covered her up" and that the blanket was a "whitey colour". Sergeant Compton, who found the child, described the location and the state in which she was found in his statement. He said that there was nothing covering the baby to protect her from the cold. The photographs of the inside of the house showed that there was what was described by defence counsel on the plea as "some sort of whitish blanket or covering on the floor in the vicinity of the area" where the baby was found.

8 As a preliminary to the argument advanced under cover of this ground, Mr Boyce said that, if the child was in the location in which she was found for a period of some four hours, it was entirely possible that even such a young child could free herself from a makeshift covering. The photographs that were taken and statements in the depositions were said to support that hypothesis. Counsel's contention was that it was not open to the judge to be satisfied beyond reasonable doubt that, when the appellant left the baby in the derelict house, he left her without any covering.

9 Mr Cooper responded by pointing out that the prosecutor had opened the matter on the basis that, when the baby was found, she was wearing a cream-coloured jumpsuit but there was no other material protecting her from the cold. Defence counsel referred to the blanket or covering but did not submit that the appellant had left the baby covered up. Later the prosecutor said that she did not think anyone was suggesting that the baby was wrapped up or that the baby had somehow come out of her blankets. Defence counsel left that assertion unchallenged.

10 There are circumstances in which an implied, or even an express, concession may be withdrawn if that is necessary in the interests of justice, but I do not consider that this is such a case. The judge was entitled to make the finding that he did at [37] of the sentencing remarks having regard to Sergeant Compton's description and the course of the plea. Lack of covering was, in any event, only one aspect of the parlous conditions in which the baby was left to fend for herself. It is those conditions as a whole that determined the sentence on count 4.[2] I would not uphold this ground.

11 Section 63 of the Crimes Act provides:

"(1) Whosoever unlawfully either by force or fraud leads or takes away or decoys or entices away or detains any child under the age of sixteen years, with intent to deprive any parent or guardian or any other person having the lawful care or charge of such child of the possession of such child or with intent to steal any article upon or about the person of such child; and whosoever with any such intent receives or harbors any such child knowing the same to have been by force or fraud led taken decoyed enticed away or detained, shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum).

...

(2) Whosoever unlawfully takes decoys or entices away any child under the age of sixteen years out of the possession and against the will of the child's parent or guardian or of any other person having the lawful care or charge of the child shall be guilty of an indictable offence, and shall be liable to level 6 imprisonment (5 years maximum)."

It will be recalled that the maximum custodial penalty for common law kidnapping, with which the appellant and his wife were charged, is not five but 25 years' imprisonment.

12 In my opinion, this ground may be shortly despatched. It is unnecessary to consider the extent to which it was mentioned in the course of the plea or the judge's silence in relation to it in his Honour's sentencing remarks. The ground fails on the terms in which it was argued.

13 Counsel relied on the decision of this Court in R. v. Liang and Li[3], as reiterated by Winneke, P., with whom Brooking and Buchanan, JJ.A. agreed, in R. v. Vellinos[4]. The learned President said:

"The second specific error which the grounds attribute to his Honour was his failure to have proper regard, in mitigation of penalty, to the fact that it would have been more appropriate for prosecuting authorities to have proceeded against the appellant pursuant to the provisions of the Excise Act. In support of that proposition, counsel has called in aid a little-used, but none the less significant, sentencing principle of fairness, namely, that the prosecuting authority, whilst possessing an unchallengeable right to frame its presentment in whatever manner it thinks fit, cannot thereby preclude the sentencing tribunal from mitigating the penalty if it concludes that the charges alleged exposed the prisoner to a more punitive regime of sentencing than that to which he ought reasonably have been exposed by the preference of charges more appropriate to the crimes alleged. This was the principle applied in Liang and Li."[5] (Emphasis added, footnote omitted.)

14 In the present case it cannot be said that count 3 exposed the appellant to a more punitive regime of sentencing than that to which he ought reasonably to have been exposed or that there was another and less punitive offence which was equally appropriate.[6] It was well open to the prosecuting authorities to consider that, after a discount for a plea of guilty, the maximum term of imprisonment of five years prescribed by s.63 would not be enough to do justice in a case involving a newborn child forcibly taken from the arms of her mother in the circumstances described at [3]-[9] of the sentencing remarks.[7]

15 I do not stay to consider at any length whether s.63 was a relevant consideration in some other way, but I doubt that it was. In the first place, either the principle in R. v. Liang and Li is engaged or it is not. Sentencing is hard enough without requiring a judge or magistrate to consider another offence that, properly, was not charged. Secondly, the real point is that this was kidnapping of an unusual kind, for "mothering purposes" as it was put on the plea and again on appeal. That point can, and must, be taken into account without any reference needing to be made to s.63.

16 Mr Boyce acknowledged that the judge had directed his mind to considerations of parity and given reasons for the differences that he made between the appellant and his wife.[8] He referred to the authorities, which establish that an appellate court intervenes because of disparity only where the difference between the sentences imposed on co-offenders is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done.[9] Just as a sentence must be manifestly excessive and not simply more severe than the appellate court itself would have imposed, so too an appellate court is not entitled to intervene simply because it would have made less difference between the co-offenders. The difference must be clearly too great.

17 Counsel conceded that some difference could be made between the sentences imposed on counts 1 and 2, although not necessarily twelve months, but he argued that no difference at all should have been made between the appellant and his wife on counts 3 and 4 or, in the alternative, that much less difference should have been made.

18 Mr Boyce submitted that the judge had erred in his evaluation of the relationship between the offenders and the appellant's vulnerability to the co-offender. Counsel summarized the evidence on which he relied as follows[10]:

"Of the couple, Mrs McEachran was older and of far greater intellect than the appellant. She did the family finances. The appellant, on the other hand, was illiterate. The appellant attended to heavier physical duties around the house such as chopping wood. The appellant was quite dependent on his wife. He was of low intellect. He was a 'concrete' thinker. The appellant was a compliant man with no psychological fortitude. The appellant was a man who obsessively sought to meet the needs of his wife.

By the time the appellant formed a relationship with Mrs McEachran she had many children. She had fostered children. The appellant convinced his wife to have a tubal ligation. This was something that the appellant lived to regret. It caused him guilt. Mrs McEachran could not reverse the ligation. She was no longer even able to attempt to get pregnant. She was suffering the onset of menopause. She desperately wanted to have another child. Mrs McEachran was frustrated and unhappy. Having children was a necessary part of her identity. Her state descended even further when she realised that her daughter was pregnant and soon to give birth.

The appellant felt a sense of guilt. He felt responsible for his wife's unhappiness. Mrs McEachran took out her frustration on the appellant. The appellant wanted to keep his wife happy but felt powerless to do so. Prior to the commission of the present offences, Mrs McEachran requested that the appellant help her kidnap a baby. The appellant refused this invitation. Notwithstanding and perhaps because of the appellant's initial refusal to agree to an abduction, there was an escalation of marital stress and feeling of inadequacy on the appellant's part.

There is no doubt that Mrs McEachran played a different physical role in the commission of the offences. It must be noted in this respect, however, that although the facts forming the basis of count 4 had the appellant physically placing the child in the derelict house, it must be remembered that Mrs McEachran was waiting in the car nearby when this occurred. In other words, Mrs McEachran must have known the nature of the house into which the child was being placed as well as the extent of any blankets or bedding that the appellant took with him."

19 In the light of that evidence, Mr Boyce asked the Court to draw a number of conclusions and to contrast them with what the judge had said at [55] of the sentencing remarks. The conclusions we were asked to draw were as follows. First, the only basis for saying that the appellant was more culpable than his wife for the assault the subject of counts 1 and 2 was that he pleaded guilty to a more serious offence. That may be true, but it does not take the matter very far. The concession recorded at [17] above was properly made and the difference his Honour made between counts 1 and 2 was appropriate.

20 Secondly, it was an oversimplification to say that the appellant had "instigated the kidnapping". Whilst that was true as a statement of fact about what had occurred on the relevant day, it involved too narrow a focus and overlooked the crucial contextual history of the relationship between the appellant and his wife. In particular, counsel said, it was necessary to have regard to the genesis of the idea to kidnap a child, which came from the co-offender and existed because of her obsession in that regard. Her initial suggestion was rejected by the appellant. It was also important to bear in mind that the appellant was particularly vulnerable to his wife's wishes, not only in general but in this particular context. As the judge said, by the time they approached the child's mother in the car park, they both well knew what was going to happen.[11]

21 Thirdly, it was easy to overestimate the extent to which the appellant was more responsible, if he was more responsible at all, for leaving the baby in the appalling conditions in the derelict house. The judge himself had said that, although the appellant must bear principal responsibility, he did not consider that Cheryl McEachran was in any substantially better position than her husband. She was less culpable only because she did not herself witness the condition of the house and relied upon her husband telling her that there was a mattress and that he had covered the baby.[12] Counsel also relied on the argument advanced under cover of ground 4, to which I have already referred.

22 Fourthly, it was common ground on the plea that the principles in R. v. Tsiaras[13] were not engaged. That being so, counsel submitted, little if any difference should have been made between the appellant and his wife in regard to mental illness. She was in a relatively empowered position and the appellant was peculiarly vulnerable to her influence.

23 Whilst not suggesting that Mrs McEachran was more culpable, Mr Boyce pointed out that at least some of her conduct was more deserving of reproach than that of the appellant. After the kidnapping, the couple travelled to Gippsland to visit relatives. By that stage they realized via news reports that they were suspects. It was Cheryl McEachran who rang a local police station in an attempt to deflect suspicion from them. Later she told a false story of duress, a tale in which she persisted until she realized that her husband had already confessed. Another point of distinction between them, in the appellant's favour, is that he will serve his sentence under more difficult conditions than his wife. He has already suffered a life threatening attack whilst in custody, in the course of which he was nearly strangled. He will require protection on a long term basis.[14]

24 In response, Mr Cooper pointed out that the relationship between the co-offenders was only one matter in a broad range of matters that had to be taken into account. As the sentencing remarks show,[15] Mrs McEachran had experienced a "chaotic and abusive" childhood and had been diagnosed as having a chronic adjustment disorder with mixed disturbance of emotions and conduct, a disorder from which she suffered before, during and after the commission of the offences. By contrast, Dr Carroll had expressed the opinion that the appellant did not suffer from any psychiatric illness and it was conceded on the plea that his mental state was not relevant to the commission of the offences. He had been unhelpful in his interviews with Mr Joblin.

25 As I have already indicated, I do not accept that any error was made as regards counts 1 and 2. So far as counts 3 and 4 were concerned, Mr Cooper reminded us that the appellant was the instigator of the kidnapping on the day and it was he who had immediate knowledge of the conditions of the derelict house in which the baby was left. Counsel also reminded us that, in the record of interview and on the plea, the appellant accepted primary responsibility for what had happened. As the judge said at [29] of the sentencing remarks, the appellant had taken the position that it was all his doing and all his fault and that his wife was just there and reacted to a situation of his making.

26 There are cases where, if a co-offender takes a position like that on the plea, parity is simply not available as a ground of appeal. In this case, however, I consider that that would be a harsh and unrealistic stance for this Court to take. The appellant is a man of limited intellect, very much under his wife's influence, who was trying to protect her.

27 Returning to the sentences that were imposed, it will be recalled that the appellant's head sentence was three years longer than that imposed on his wife. Even more strikingly, his non-parole period was seven-and-a-half years when hers was only four-and-a-half years. It is the non-parole period, more than anything else, which persuades me that Mr Boyce's submissions should be accepted in part. A three year difference in the non-parole period is, in my respectful opinion, clearly too great to reflect the differences between the offenders, given their relationship and respective deficits.

28 I think that a significant difference should nevertheless be made between the appellant and his wife, chiefly because of the difference between counts 1 and 2, because he was the more culpable offender on counts 3 and 4[16] and because of her psychological disorder. Although the latter did not amount to serious psychiatric illness of the kind to which R. v. Tsiaras applies, it was more serious than the personal factors affecting the appellant. I make no finding as to whether the appellant left the baby uncovered. However that may be, Sergeant Compton found her without covering some four hours later.

29 For these reasons I reached the conclusion that, in re-sentencing the appellant, the total effective sentence should be nine years' imprisonment. The non-parole period I had in mind was slightly longer than that proposed by the other members of the Court. The structure of the sentence I would have proposed was different, reflecting their Honours' and my different assessment of the facts and the decision the prosecuting authorities took.[17] The orders of the Court will, of course, conform with the views of the majority.

1. 1. Mark McEachran, you have pleaded guilty to one count of causing serious injury intentionally; one count of kidnapping; one count of reckless conduct endangering life; one charge of possessing an unregistered firearm; one charge of possessing ammunition without a licence; and have admitted prior convictions.
2. 2. Cheryl McEachran, you have pleaded guilty to one count of causing serious injury recklessly; one count of kidnapping; one count of reckless conduct endangering life; and have admitted prior convictions.
3. 3. On Saturday, 7 August 2004 at about 4.30 in the afternoon, after completing her shopping at the Brimbank Shopping Centre in Deer Park, Anita Ciancio returned to her car in the car park, placed her three-week-old baby, Montana, into the baby capsule and went to put her shopping in the boot of her car. As she was doing this, she noticed the both of you approaching her. Fearful that you were going to rob her, she placed her handbag into the boot of the car. Without saying a word to her you, Mark McEachran, struck her to the left-hand side of her head, grabbed her around the neck from behind, and pulled her to the ground whilst at the same time spraying her face with aerosol spray. She struggled in an attempt to reach out for her handbag but you grabbed her again by the neck and again sprayed her face and eyes, dragging her again to the ground. Whilst this was happening you, Cheryl McEachran, seized the baby and then the both of you ran from the car park with you, Cheryl McEachran, carrying the baby over your left shoulder.
4. 4. Ms Ciancio was left in the car park suffering an injury to the jaw ; a chipped fracture of the crown of the third right lower tooth; tenderness over the lateral rib cage; bruising on the distal left thigh above the knee; and suffering an obvious psychological assault. A victim impact statement was tendered as Exhibit E and a significant portion of it was read in court by Ms Quin, who appeared to prosecute. I propose to repeat some portions of what was read in court.
5. 5. On the assault, Ms Ciancio said:

Besides being sprayed in the eyes and mouth with an unknown substance, I was punched in the face hard enough to break two teeth. I was knocked to the ground, my head hitting the concrete very hard. My head was also pushed to one side of the ground for a couple of minutes while he was on top of me. We struggled physically for a few minutes. I suffered from cuts, abrasions and bruising to various parts of my body. A large lump on the top of my head where I was lifted from the ground by my hair, choking neck pain from having his arm around my neck strangling me and throwing me around. The broken teeth, sore jaw and stress caused me not to be able to eat, along with severe nausea from inhaling and swallowing aerosol fumes.

I've also been on several types of antidepressants, all causing many side effects; most particularly, not being able to function normally, especially at night time when the dosage was increased to help stabilise nightmares and panic attacks in my sleep.

I've tried every possible way to assist me in coping mentally without medication. Unfortunately, I found I had no choice in the matter so I'm left on long-term medication causing me to live the last year and many more years to come on antidepressants and pain killers from the injuries caused.

1. 9. She said that she wakes up having panic attacks and recurring nightmares of unspeakable things happening to Montana. She said that she had lost her carefree spirit, her faith in society and her love for life. She said that she sometimes went several weeks without stepping out the front door. She needs help with everything she does:

Things that were once a normal part of life are now huge obstacles I can't overcome.

1. The two of you drove towards your home in Timor, north-west of Melbourne, and a short distance from the house, Mark McEachran and the baby were left in the bushes by the side of the road whilst you, Cheryl McEachran, drove to the house and changed the car over for a Land Cruiser. You told family members that you needed to go and visit your father, and after picking up your husband and the baby you drove to Warragul. The baby's clothes were changed and her hair was cut in an effort to alter her appearance.
2. At Warragul you stayed in the caravan park overnight before visiting Mark McEachran's sister's house where, on arrival, you told family members, who you had not seen for some time, that the baby was your new-born. You visited other family in the area. On the 6 o'clock news that evening you, Cheryl McEachran, saw that you had been captured on video footage at the car park and that police were searching for you. You rang the Warragul police and asked why they were showing photos of you and your husband concerning the kidnapping but hung up before further information could be obtained from you.
3. You then called your husband who had, in the meantime, returned to Timor demanding that he come back to Warragul so you could take the baby back to Melbourne and return it. In the early hours on the Monday morning, the two of you travelled to Melbourne and discussed a number of ways in which the baby could be returned. In the course of these deliberations, the possibility of leaving her at a hospital was considered and rejected and you opted in the end for leaving her in a deserted house in Erskine Street, North Melbourne, located by you, Mark McEachran.
4. You climbed through a broken window at the house and left the baby there on the floor in the front room, while Cheryl stayed at the car with the motor running. You then drove away without noting the address where you had left the baby and went back to your home in Timor without informing anybody about what you had done. You discussed the possibility of reporting the matter at a police station on the way, but as it was closed, you did nothing. You arrived back in Timor at 5 a.m. and some two hours later decided to return to Melbourne to check on the baby. You drove around for an hour and a half deciding what to do, and by the time you got to the vicinity of the house you noticed that police were present in the area. You drove off.
5. As it transpired, at about 9 a.m., some five hours after you left the baby, a female jogger was running past the house in Erskine Street and heard noises of a young baby whimpering. She immediately went home and called the police, who attended the scene and located the baby.
6. The house was described by Sergeant Compton as "an old weatherboard in a sad state of disrepair". I think "dilapidated" would have been a more accurate description. The baby was lying on the floor close to an open window with only its jumpsuit on. He observed that there was nothing protecting the baby from the cold. The whole of the room was littered with rubbish, including discarded food. Photographs of the house and the room in which the baby was found were tendered as Exhibit C. These photographs show what can only be described as "a grossly derelict house", and the room in which she was left as "disgustingly filthy". I am only surprised that it was not visibly rat-infested.

16. On being examined at hospital, the baby was found to be:

Hypothermic with a rectal temperature of 35.1° Celsius. Her scalp had been patchily shaved. No lacerations were noticed. She had a reddened area on the right side of her head. There was dirt in her left ear. She'd had some faeces dried on her bottom with mild nappy rash.

17. Exhibit D was a book of photographs of the baby.

1. The motive for the kidnapping, the degree of planning preceding it, and the circumstances of [the baby] being left in the derelict house, occupied a deal of discussion on the plea as it had with the police. By way of summary, both of you in your records of interview with the police said that it was a spur-of-the-moment decision. You, Mark McEachran, said you would spray Ms Ciancio in the eyes so she could not see, and that this would permit your wife to grab the baby. In your record of interview, Cheryl McEachran, you said that your husband had said to you:

1. As for leaving it at the derelict house, Mark McEachran, you said you placed the baby in the house just thinking someone would find her. You, Cheryl McEachran, said you were not aware of the condition of the house where your husband left the baby because you did not go inside.
2. The question of motive and pre-planning has to be viewed against the background of your personal circumstances, and the history of your relationship.
3. Ms Dixon, who appeared for you, Cheryl McEachran, said you have had six children of your own and fostered others. You were at the time of this offence about to become a grandmother and were surrounded by children. Prior to your marriage to Mark McEachran you had a history of failed relationships. He is the father of your last child, and at his request you underwent a tubal ligation. There was an unsuccessful attempt at reversal of the tubal ligation. You were also unsuccessful in an attempt to adopt.
4. In submitting that the offence was not pre-planned, Ms Dixon said you had gone for a drive that weekend to look at kit homes, and had ended up in the supermarket. She said that in the car you were arguing and bickering about your problems. You were on heavy pain-killing medication and depressed. Your husband was unhappy about you not coping because of the medication you were taking, and you were unhappy about him not understanding why it was that you were not coping.
5. There was talk of fostering a child, which might then lead on to adoption. You were, in fact, registered with DHS for that purpose. You had mixed feelings about your daughter's pregnancy. You were happy for her but unhappy for yourself. You were being denied access to a grandchild at this time and you were feeling lonely and weeping. It was in this context, Ms Dixon submitted, that the kidnapping was a spur-of-the-moment decision, and everything that followed was, as it were, on the run - almost a panic situation.
6. She submitted that your role was essentially that of responding to a situation produced by your husband. He said: "Here is our chance"; and you, taking advantage of the assault on Ms Ciancio, took the baby. Ms Dixon also submitted that you thought that there was a good chance of the baby being recovered from the house in good time, and that the reason why you did not ring and tell the police where you had left her was because the battery in your mobile phone was flat.
7. In your record of interview you described how you first noticed Ms Ciancio as she passed you walking down the ramp at the car park - commencing at question 852.:

A: And she had a baby and in the pusher, and I moved over to the side to let her go past in the pusher, and Mark said to me, he said 'That's - that looks like a pretty, pretty newborn baby', and I said 'Yeah',

Q: I'll just get you to speak up a bit, if you can,

A: Yeah, OK, yeah. It looked a pretty new-born baby. I've been suffering a bit of depression because of the medication I'm on. I wanted to have a baby probably for a couple of years now. Then Priscilla got pregnant and that made things worse for me, and then, yeah, the opportunity was there and the baby was there. He grabbed some Aerostart out of the door, I think it was Aerostart or some start stuff out of the door of the car. He took it over and he sprayed her, then I took the baby out of the car seat, then we drove home.

1. On the question of what was said at the time, again, at 864,

Q: So whose idea was it to take the child at the start? --- M'mm.

Q: Who mentioned it to who first? --- Well, Mark said 'Well, you've always wanted a kid. There's your opportunity'.

1. Ms Randazzo, Senior Counsel, on behalf of you, Mark McEachran, also described your conduct as impulsive and opportunistic, but not pre-planned. She referred me, at length, to various answers you gave in your record of interview to demonstrate the lack of planning. In one exchange the following appears: Question 822:

Q: OK, I also want to go over your conversation when you took the baby. The way you've explained it was that she followed and had no idea, but she would've had to have had some idea, and you must have discussed something for the whole event to take place? ----- Well, I - I - not really. All I said to her was, I said, I said to her 'I'll get the spray, I'll spray her eyes and just grab the baby'.

Q: Well, there must've been some sort of discussion between you and Cheryl in relation to that fact?" ---- No, it was just that - she'd discussed it with me a while ago and I said 'No, no, no way I'll do it'.

Q: Yes ---- And that, I did it today and now I pay the cost, so you know.

1. I think it is clear that you have felt responsible for the fact that your wife was not able to have any further children, and that you were unable to satisfy her wishes in this regard. It appears that there was constant discussion about all manner of ways in which this situation may have been remedied which included, as you admitted in your record of interview, the snatching of a child in circumstances such as occurred. You have taken the position that it was all your doing and all your fault, and that your wife was just there and reacted to a situation of your making.
2. Although I am not prepared to find that there was any substantial degree of pre-planning and certainly, no specific plan targeting Ms Ciancio, I think it is clear that by the time the two of you approached her it was clear that you both well knew what was going to happen. Whatever little planning there was, it was enough to achieve your objective: the taking of the child. You said that you sprayed Ms Ciancio in the eyes because you did not want her to be able to see for a few minutes, so that your wife could get the baby; and that you said to Cheryl McEachran whilst this was happing "Take the baby", and without any apparent hesitation or reluctance on her part, she did. It was the intention of both of you at the time to keep the baby and but for the publicity that ensued, including pictures of you and your wife, I am satisfied that you would have kept her.
3. It was submitted that a kidnapping for a motherhood-related motive should be distinguished from kidnapping for motives such as ransom, revenge, sex purposes or some other sinister motive. I accept that there are worse motives than motherhood motives. I am not sure that the parent who loses a child in circumstances such as the present draws any distinctions of that kind, although it might be the case that a mother losing a new-born child would more readily accept that if the child was taken for a motherhood motive, there would be a reasonable expectation that the child would be cared for; compared to one of the other motives where there would be every expectation that the child could and would be harmed.
4. Be that as it may, the stealing of a new-born child from a mother is a very serious offence. It has the capacity and did in the present case of causing great psychological trauma to the mother, and I suspect, for her family. The crime is aggravated by the fact that the mother was present, and not only suffered trauma in the course of the assault, but that was compounded by witnessing the theft of her new-born child. One can hardly imagine a greater assault to the senses of a young mother with a new-born infant than what occurred to Ms Ciancio. She might have reasoned that the child was taken by someone who would care for it; but that is not necessarily so. She may equally have feared that it was for some grossly wicked purpose. These were, after all, her nightmares.
5. Kidnapping is inherently a very serious offence, and in sentencing, it is plain, as was said by the Court of Appeal in DPP v. Ramos & Ors that it is the clear duty in sentencing to make it plain that offences of this kind are "abhorrent" and "as much as almost any crime and more than most offend against values which civilised communities regard as sacrosanct". Notwithstanding the fact that, mercifully, offences of kidnapping are not prevalent in this country, it is, nevertheless, necessary that general deterrence plays a substantial role in the sentencing process so as to deter others in the community who might be like-minded.
6. In taking the child you selfishly put your interests above those of Ms Ciancio, and in leaving the child where you did, you selfishly put your interests ahead of a wholly defenceless new-born child. The level of risk involved in leaving the baby in the derelict house was very high. It was the middle of Winter. It was 4 a.m. and even if it was reasonable to assume, as you appear to have, that an early morning jogger might have heard her crying, yet left the lot to chance. Her core temperature when found was 31° Celsius and, in my view, anyone looking at the condition of the house would or should have contemplated the probability that it might be rat-infested or visited by dogs. It was certainly not an environment where anyone caring for the wellbeing of a baby would have left it. It was only afterwards that you, Mark McEachran, reflected upon the possibility that the baby may have died.
7. I do not consider that you, Cheryl McEachran, are in any substantially better position than your husband on this issue. You had no right to assume that the conditions in the derelict house could be safe, and that the baby might be found before any harm had befallen her. It was simply the case that each of you put your concerns about yourself ahead of any concerns for the baby. There were real options available to you, that you both considered but declined to exercise because they exposed you to the risk of detection.
8. You could have taken the baby to a hospital, or to the police, or even made a call to the police or the ambulance services after you had left the baby in the house. You could have left the baby on someone's doorstep, rang the bell and ran away; but you did not. The excuses that the battery in your mobile phone was flat or that the police station on the way home was closed, are poor ones.
9. Leaving a three-week old baby, as you did, is a serious instance of reckless conduct endangering life. You, Mark McEachran, must bear principal responsibility. You chose the house. You saw what the conditions were. You left the child on the floor without any covering, despite saying to the police that you had covered it.
10. As I said, Cheryl McEachran, you are only less culpable because you did not yourself witness the abominable condition of the house, and relied upon your husband telling you that there was a mattress and that he had covered the baby. It was a selfish and callous act on the part of both of you.
11. I take into account in your favour that you have both pleaded guilty at an early time. I also take into account in your favour that after your initial false account, Cheryl McEachran, you both made full admissions to the police. In your case, Cheryl McEachran, I accept that your family has been dispersed. Some children are with their fathers, and some in foster care. It is unlikely that with the passage of time your family will be brought back together. I accept that this has made your detention in custody a painful one, and together with the fact that you are now, and probably will continue for some time to be, in protective custody will ensure that further detention will also be difficult. I also suspect that your relationship with your husband is at an end.
12. In her report (Exhibit 7) of 17 August 2005, Dr Ann Buist, psychiatrist, identified what she described as a chaotic and abusive childhood, having been raped as a 12-year-old and having a child in secret from this episode, which was taken from you. She also described your various relationships as also chaotic, and the taking of the child from you became the key to your identity as a mother, and that you were seeking to make up for the sense of loss with further children to fulfil you. She said that you were affected by the fact that your daughter was about to have a baby and that you could not. She said that you were blaming your husband for not being able to give you another baby, and described this offending as chaotic and impulsive.
13. She said you would suffer in prison, that you were concerned over the effect that your offending would have had on the mother of the baby, and also on your own children. She noted that your family was disintegrating and that three of them had already gone back to their fathers. She said you were depressed; a type-2 diabetic, putting on weight in prison; and the recipient of threats from inmates. She said that your relationship with your husband had become strained. She was unable to explain why you had chosen to leave the baby in the derelict house, observing that in doing so, you had obviously put your own concerns above that for the child. She noted your concern for Ms Ciancio and for your own children, in particular, Rachel, who wrote to you in prison (Exhibit 9), and who appears to be quite suicidal. She did not, however, diagnose you as having a psychiatric disorder.
14. A report from Wendy Northey, psychologist, of 25 October 2005 (Exhibit 10) set out in some detail your school and work history and difficult family life. She, too, observed that the circumstances of you losing the child when you were 12 years old set you down a "path of self-destruction". She described your relationship with Mark McEachran as a "seriously dysfunctional, co-dependent relationship". Emotional needs were not met in any appropriate way and there was what she described as a "gradual narrowing of attentional focus as the couple fantasised that another baby would ameliorate their problems". She saw your participation in this crime as "a desperate bit to solve an emotional stalemate that neither offender had adequate personal resources to deal with", and that it was "a tragic outcome of a dysfunctional relationship with Mark McEachran combined with years of maladjustment to her lost fertility which deeply challenged her fragile senses of identity which was primarily based upon her role as super mum".
15. She was of the opinion that you met the criteria for a diagnosis of a chronic form of adjustment disorder with mixed disturbance of emotions and conduct, described as (DSM 1V309.4). She said that you suffered from this disturbance before, during and after the commission of the offence, and that it would have manifested itself in symptoms of depression, marked distress, impaired behavioural control and social functioning.
16. I propose to take this into account in the way that the law permits me in fixing your sentence. Your disturbed emotional state partially explains your conduct and, to a limited extent, serves to reduce your culpability; but it cannot excuse your conduct and it cannot preclude the principle of general deterrence from playing a significant role in your sentence.
17. I also accept, as she did, that you are generally remorseful, and that you have displayed your remorse to all who you have had contact with. You have 21 prior convictions from seven court appearances; all, with the exception of one, involving dishonesty. Although you have previously received a sentence of imprisonment, you have never had to have served time in custody.
18. On your behalf, Mark McEachran, Ms Randazzo produced three medical reports; two from Mr Ian Joblin, psychologist (Exhibit 11) and one from Dr Andrew Carroll, psychiatrist (Exhibit 12). The latter was also called as a witness. After reviewing your family, education, work and relationship history, Mr Joblin did not report any psychological basis for your offending. He said that you were not psychotic and probably never had been, nor are you or ever have been, mentally unwell. He did, however, record that you were generally dismissive of any attempts to try and determine the basis for your offending, and content to simply take whatever punishment was coming your way in the belief that anything you did say would not make any difference.
19. Mr Joblin regarded that attitude as most unfortunate, as it prevented him from saying anything that was pertinent to the offending or to the question of [your] remorse and its components. Dr Carroll was asked to see you after you had been savagely attacked by another prisoner. His report was Exhibit 12. He was also of the opinion that you did not suffer from any psychiatric illness and, in fact, your counsel said that your mental state was not relevant to the commission of the offences. He also noted that you were reluctant to discuss the offending in any detail, other than saying "It should never have happened".
20. I understood from his evidence that he thought that firstly, because you felt responsible for your wife not being able to have any more babies; and secondly, because she was so adamant that she wanted another child, that you might have felt compelled to come up with a solution to resolve these two issues and that the snatching of the baby was the only way you could see to do that. He said:

I've already alluded to his early limited intellect, particularly, his inability to think in abstract terms; his lack of psychological mindedness; and so his ability to address the sorts of issues which marriage was presenting had been profoundly limited. Looking at the more short-term factors and perhaps the weeks and months leading up to the day of the offence, it seems that there was an escalation in marital stress and perhaps going along with an increase in the profound subjective feelings of inadequacy. Again, I don't think he would have been able to verbalise these, but as Professor Buist pointed out, he would have felt on some level compelled to come up with some solution so that he could in some way remedy those profound feelings of inadequacy. On the day itself, of course, the couple were presented with an opportunity to, in their mind, remedy what seemed to be, you know, the key problem of not having a baby, and so the dreadful act took place. Obviously, this was very concrete and a very misguided solution to their problems, but it does, kind of, fit with his inability to solve things in a more abstract and more socially acceptable sort of way.

1. You are 45 years old. Your father died some seven or eight years ago, and your mother three or four years ago. You have three older brothers with whom you have no contact. You also have three younger sisters, and have seen one or two occasionally. You left school after Year 8 with very poor literacy skills. For the last six years or so you have worked in a chaff mill as a chaff bagger. You have been in a number of relationships before meeting and then marrying Cheryl McEachran 10 or so years ago. You have one son, Josh, from that marriage, and have a good relationship with the five other children of Cheryl McEachran. Josh is the only child who visits you about once per month. You have two children from a former relationship who you have not seen since your arrest. I understood from what was said that you had little contact with them prior to your arrest.
2. On 27 August 2005 whilst housed in the protection unit at the MAP there was an attempt by a fellow prisoner to strangle you with an electric kettle cord. You were found in a semi-conscious state with swelling to the face and haemorrhaging from the right ear. You were rushed to the Royal Melbourne Hospital where you were intubated. You had petechial haemorrhaging to the face and eyes, and some fracture to the thyroid and hyoid cartilage at the front of the larynx. Apparently, the swelling of your epiglottis was so severe that there was some difficulty in performing the intubation.
3. In addition, I have been told that there had been a number of threats made to you by fellow prisoners which, in light of the assault, has made you all the more apprehensive about your time in custody. I have been told that you are wondering if you will get out alive. You are now in a management unit where you are locked down for 23 hours each day, and have very little contact with staff and none with other prisoners. I am satisfied that you have had, and will continue to have, a difficult time in custody, and I propose to give weight to this in the sentence.
4. This is the first time you have received an actual custodial disposition.

You have 16 prior convictions arising from five court appearances involving, in the main, dishonesty matters in the Magistrates' Court; the last of which was on 14 December 1999, when you were convicted on two charges of theft and sentenced to be imprisoned for six months wholly suspended.

1. You are also, obviously, concerned about the fracturing of your family, and the fact that there is now some talk about your relationship terminating; and I am sure that this adds stress to your current situation. Dr Carroll said that your mental state is likely to continue to be in a state of flux; that may improve after you have been sentenced. He recommended that you continue to receive psychological treatment in custody, and I will bring that to the attention of the prison authorities.
2. The basic purposes for which a Court may impose a sentence are punishment; deterrence, both specific and general; rehabilitation; denunciation; and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence; your culpability for it; your personal circumstances; and those of your victim. I am required to balance the interests of the community in denouncing criminal conduct against the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and re-integrated into society.
3. I propose to distinguish between the two of you in my sentencing. I do so because I have come to the conclusion that your conduct, Mark McEachran, is more culpable. The assault to which you have pleaded is more serious than that to which your wife has pleaded guilty. I am satisfied you were the instigator of the kidnapping and more responsible than your wife for leaving the baby in those appalling conditions. I am further satisfied that you, Cheryl McEachran, were at the time suffering from a mental condition that reduces your culpability.

30 I have had the benefit of reading in draft the reasons for judgment of Callaway J.A.. I agree that the appeal should be allowed. In relation to grounds 1, 2 and 3, subject to two matters upon which I have reached a different conclusion, I agree generally with the reasons given by Callaway J.A., that any differences in the conduct of the appellant and his wife in relation to counts 3 and 4 do not justify the disparity in the sentences imposed upon them on each of those counts nor the disparity in the head sentences and the non-parole periods that were fixed. I take a different view to Callaway J.A. in relation to ground 6.

31 The appellant was sentenced on the basis that he was "the instigator" of the kidnapping.[18] On this appeal, counsel for the appellant, correctly in my view, submitted that the sentencing judge should not have viewed the appellant's conduct on the kidnapping count as more serious than that of his wife on the basis that he had instigated the kidnapping. I think there is considerable force in the submission that to view the appellant as the instigator was to focus the enquiry too narrowly and ignore the contextual history of the relationship that existed between the appellant and his wife and the discussions they had about kidnapping a baby.

32 The appellant did state to his wife, upon sighting Ms Ciancio and the baby, that the opportunity was present to kidnap the baby. But as counsel for the appellant emphasised, the genesis of the idea to kidnap a child came from the wife, because of her obsession in that regard. Counsel relied upon the evidence, which did not seem to be at issue on the plea, that his wife's initial suggestion to kidnap a child was rejected by the appellant but that the appellant, who was psychologically vulnerable to the wife's wishes, ultimately adopted her suggestion. As the sentencing judge found in his comprehensive and careful reasons, by the time the appellant and his wife approached Ms Ciancio they both well knew what was going to happen.

33 It had been agreed on the plea conducted on behalf the appellant's wife that her mental condition did not provide a basis for any moderation of penalty based upon the application of the principles stated in Tsiaras. Nevertheless his Honour, in distinguishing between the appellant and his wife, treated the mental condition from which she was suffering as one which reduced her culpability. I am not persuaded that was a sound basis for differentiating between the culpability of the appellant and that of his wife. The learned sentencing judge accepted that the appellant felt responsible for his wife being unable to have any more babies and that he felt compelled to provide a solution to her desire to have another child. His Honour quoted from a psychological assessment in which it was noted that the appellant had serious intellectual and psychological limitations which seriously affected his ability to address the issues which the marriage was presenting. His Honour accepted that there had been an escalation in marital stress and an increase in the appellant's profound feelings of inadequacy. His Honour appears to have accepted that it was within this psychological setting that the appellant felt compelled to give effect to the need arising from his wife's personality disorder. In effect, given his psychological limitations, her personality disorder became his disorder. There is considerable force in the submission made by Mr Boyce that, in light of the relatively empowered position of his wife in the relationship, and the appellant's peculiar vulnerability to her, discrimination on the grounds of the wife's mental state in relation to the penalty imposed on count 3 was unjustifiable.

34 Mr Cooper submitted that, as the plea on behalf of the appellant had been conducted on the basis that he alone was responsible for what had occurred, reliance on the principle of parity as a ground of appeal was not available. In addition to the reasons advanced by Callaway J.A. why the appellant should not be precluded from reliance upon such a ground, I would add that it was obvious to the learned sentencing judge that the appellant, on the plea, was seeking to protect his wife. The kidnapping, as his Honour found, was for a "motherhood related motive", which his Honour thought was to be distinguished from more sinister motives for kidnapping such as "ransom", "revenge", or "sex purposes".

35 Ground 6 states that the learned sentencing judge erred by failing to have proper regard in mitigation to the fact that there was another and less punitive offence which could have been charged, namely the offence of child stealing contrary to s. 63 of the Crimes Act 1958 ('the Act').

36 Section 63(1) provides:

"Whosoever unlawfully either by force or fraud leads or takes away or decoys or entices away or detains any child under the age of sixteen years, with intent to deprive any parent or guardian or any other person having the lawful care or charge of such child of the possession of such child or with intent to steal any article upon or about the person of such child; and whosoever with any such intent receives or harbours any such child knowing the same to have been by force or fraud led taken decoyed enticed away or detained, shall be guilty of an indictable offence and shall be liable to level 6 imprisonment (five years maximum)."

37 The count of common law kidnapping to which the appellant and his wife pleaded guilty carries with it a maximum sentence of 25 years' imprisonment.[19] Kidnapping is an aggravated form of false imprisonment and a species of assault. The offence contains four ingredients:

(1) the taking or carrying away of one person by another;

(3) without the consent of the person so taken or carried away; and

38 It was common ground that the statutory offence includes all of the elements of the common law offence. But s.63 has a more particular focus. It is concerned only with the taking away of a child under the age of 16 years, and for one of the particular purposes designated in the section. Section 63A of the Act is concerned with kidnapping for the specific purpose of ransom, or with the intent to gain advantage from the detention of the person. Thus neither s. 63 or s. 63A is declaratory of the common law of kidnapping.

39 Since the statutes of George III, Parliament has enacted provisions designed to deter child stealing as a particular form of kidnapping. The offence has appeared in the statutes of Victoria continuously since 1861. In R v Nguyen and Tran[21] Kenny J.A., with whom Winneke P and Callaway J.A. agreed, traced the history of this statutory provision in England and Victoria. The Court rejected the submission that the statutory offence of child stealing affected the common law offence of kidnapping. Her Honour concluded that there was nothing in the terms of the statutory offence that was intended to abolish the common law offence, and that the statutory provision was directed "to the kidnapping of a particular class of person and is designed, it seems, more effectively to deter and punish a particular form of the offence by the creation of a specific statutory offence carrying a specified maximum penalty."[22]

40 Similarly, the House of Lords in R v D[23] had found that the common law offence of kidnapping remained unaffected by the statutory offence of child stealing. Lord Brandon of Oakbrook, who gave the principal judgment, considered the statutory offence of child stealing to have been introduced to provide a more effective means of prosecuting child stealers than the common law offence of kidnapping, which was then treated as a misdemeanour.[24]

41 In 1997 the Victorian Parliament amended the Act to alter the maximum penalties for some statutory offences and to impose a limit on the maximum term of imprisonment for certain common law offences.[25] The maximum term of imprisonment for child stealing was reduced from seven-and-a-half years to five years.[26] The maximum term of imprisonment for kidnapping at common law was then fixed at 25 years.[27]

42 The crime of stealing a baby or a very young child is not a prevalent offence. Research of cases which have come before this Court indicates that the Crown has in the past considered it appropriate to lay a charge under s. 63 for this specific form of kidnapping. In R v Clark[28] the applicant stole a six month old baby by wielding a knife and keeping the mother at bay while the child was removed from a pram. The applicant, despite her relative youth, had a bad criminal history ranging from street offences and assaults to drug and dishonesty offences. She was sentenced to 27 months' imprisonment and a minimum period of 18 months was fixed before she was eligible for parole. On appeal it had been contended that the sentence imposed was excessive because the sentencing judge had taken into account the applicant's conduct in wielding the knife in the immediate vicinity of the mother. It was submitted that to have done so was in breach of the principle that a person should not be sentenced for an offence with which they have not been charged or convicted.[29] Winneke P, with whom Tadgell and Batt JJ.A. agreed, considered that as s. 63 contemplated the "taking away of a child by force", a sentencing judge was bound to have regard to the manner in which the applicant had conducted herself in removing the child from its mother. The "forceful taking" was an essential part of the facts required to prove the offence. The President said:

"Furthermore, I cannot accept the submission that the judge placed undue weight on the applicant's motive or the fear which the applicant's actions instilled in the mother. To take a child by force from a mother must necessarily inspire feelings of dread in the mother and, as such, must necessarily be a factor which is to be taken into account in determining what is an appropriate sentence for the offence. His Honour further observed that the applicant had taken the child without regard to the consequences which the child might suffer during the course of the abduction should the child need attention and care."

43 Speaking further of s. 63 his Honour observed that:

"[o]ne of the fundamental purposes of this section is to ensure the protection of children and the maintenance of their welfare."

44 Each member of the court considered that the nature and degree of the force used in the commission of the offence were to be taken into account in determining the relative gravity and heinousness of the offence.[30] The appeal against sentence was dismissed.

45 In the case of R v McKinley[31] the Crown, on a three count presentment, charged the applicant with stealing a six day old child, aggravated burglary and arson with intent. The motive for the offence of child stealing was "motherhood" related. The applicant had for some time maintained a charade of pregnancy to members of her family. She then embarked upon a course of deception which involved representing to the mother of a newly born baby that she was from Home Services and intended to visit the mother when she arrived home with her baby from hospital. Under the guise of being a community service worker, she visited the mother on the day after she came home. She drugged the mother, who fell asleep, and took the six day old baby. Before leaving the house the applicant placed an aromatic oil burner in close proximity to the bed-clothing where the mother lay in a drugged sleep. The mother awoke to find the bedclothes on fire. The applicant had placed the oil burner in that position for the purpose of causing the bedclothes to become alight, thereby recklessly endangering the life of the mother. The offence of aggravated burglary was predicated upon the entry into the home (with tablets and oil burner) for the purpose of drugging the mother and taking the baby whilst the mother was incapacitated. Coldrey J imposed a sentence of three years' imprisonment on the count of arson with intent, two years on the count of aggravated burglary and three-and-a-half years on the count of child stealing. After orders for cumulation were made the applicant was sentenced to four years' imprisonment and a minimum period of two years was fixed before the applicant would become eligible for parole.

46 On the plea and before this Court, the appellant relied upon McKinley as demonstrating that it would have been appropriate for the Crown to charge an offence under s. 63, rather than common law kidnapping, and as bearing upon the type of sentence that should be imposed. The decision in McKinley is in my view also apposite as demonstrating that it is appropriate for the Crown to lay other substantive counts which encompass aggravating features of the appellant's conduct during the course of the abduction.

47 In the United Kingdom the prosecuting authorities utilise the statutory offence of child stealing, for motherhood related reasons, where the person abducted is a baby.[32] The penalties imposed have been in the same range as penalties imposed in this State.

48 In light of the manner in which the Crown has hitherto utilised s. 63 in relation to the kidnapping of babies or very young children, the appellant sought to invoke the principle that the sentencing court should take into account as a mitigating factor that the applicant could have been charged with this less punitive offence. Such a submission involves no challenge to the exercise of the prosecutorial discretion as to what offence should be charged, such discretion not being readily amenable to judicial scrutiny.[33]

49 The principle was explained by White J in Scott v Cameron.[34] After referring to the prosecution's absolute discretion whether to lay charges under one section or another, his Honour said:

"But it is for the Court, not the prosecution, to impose the appropriate sentence. And the Court's discretion is not to be fettered by the prosecutor's choice, at least in those cases where the facts are such that the prosecution could have been equally appropriately brought under one section or the other. Indeed, it seems to me that the prosecution would more appropriately have been brought under s. 138 of the Social Services Act because that section deals specifically with this type of offence and contains the maximum penalty chosen by the legislature therefor. On the other hand, s. 29C of the Crimes Act is a general blanket section designed to cover all kinds of false statements which might be made in all kinds of circumstances to all kinds of departments for all kinds of purposes.

Whereas here, the facts reveal a general "run of the mill" series of offences, it seems to me that the specific section ought to be used, while the more general provisions of s. 29C of the Crimes Act should be reserved for particularly serious cases where it is quite obvious that the offending is far beyond the maximum penalty contemplated by the section."[35] (Emphasis added).

50 This passage was subsequently referred to by Drummond J in Whitnall.[36] In Liang and Li,[37] Winneke P, with whom Ormiston J.A. and Crockett A.J.A. agreed, referred to this passage from Scott v Cameron and also to the judgment of Drummond J in Whitnall. Winneke P described the principle in these terms:

"[A]lthough it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused."[38] (Emphasis added).

51 A gloss was placed upon this principle in the subsequent decision of R v Vellinos,[39] in a passage which is referred to in the judgment of my brother Callaway, which suggests that the existence of the less punitive regime may not be taken into account as a mitigating factor unless the sentencing judge concludes that the lesser offence was more appropriate to the crime alleged. Other decisions of this Court would suggest that the principle is not so limited and that the less punitive regime will operate as a mitigating factor where the sentencing judge concludes that the offender could have been appropriately dealt with under the less punitive provision.

52 In DPP v Hussein[40] the accused was charged on two counts of defrauding the Commonwealth contrary to s. 29D of the Crimes Act 1914 (Cth). In the course of considering the director's appeal against sentence, Buchanan J.A., with whom Vincent J.A. and Harper A.J.A. agreed, said:

"I think it is relevant to have regard, as the sentencing judge did, to the penalties which Parliament at the time thought appropriate for manufacturing tobacco without a licence, dealing in tobacco leaf without being registered as a dealer and being in possession of excisable goods on which duty had not been paid. The Crown was entitled in its absolute discretion to decide upon the particular charge to lay against the applicant. Nevertheless, it was appropriate for the sentencing judge to have regard to the fact that there were other and less punitive offences that were appropriate to the facts alleged against the applicant."[41] (Emphasis added).

53 The principle has sometimes been viewed as supporting an argument that, when determining penalty, a court can have regard to available alternative sanctions for the purposes of understanding the objective gravity of the offence charged.[42] The existence of a lesser charge and penalty may be viewed as a relevant factor in determining the seriousness of the offence and the final penalty.[43] The principle also underlies a line of authority to the effect that the availability of summary jurisdiction and a lower ceiling of penalty may be matters to be taken into account, though these factors will not always call for a reduction of sentence.[44]

54 Decisions such as Vellinos and R v El-Kotob[45] make clear that the less punitive regime will not be a mitigating factor where such an offence would not appropriately address the extent and character of the offender's criminal conduct.

55 The principle with which we are concerned is part of a broader principle requiring fairness in the sentencing process.[46] Consistency in sentencing is a mechanism by which fairness in the sentencing process is to be achieved. It requires that the Court should strive to impose similar punishment for similar offences committed by offenders in similar circumstances. Conversely, disparity in sentencing can only be justified if there are acceptable and convincing grounds for differentiating between offences or offenders.[47] Unfairness will arise where there is an inconsistent application of legal principles. In R v Zakaria,[48] Crockett J considered that previous decisions on sentencing may provide a useful aid in achieving uniformity of sentence for a particular category of crime and may provide a more reliable indication than the statutory maximum as to the appropriate sentence to be applied in a particular case.[49]

56 Plainly, where different charges may appropriately be laid for the same offending conduct, reference to the statutory maximum of the lesser punitive regime will assist the sentencing court in achieving consistency, and hence fairness, in the sentencing process. The maximum penalty for an offence is to be viewed as a pronouncement of the policy of the legislature.[50] In accordance with the joint judgment in Markarian v R[51] it must be remembered that the maximum available sentence provides a yardstick which must be considered and balanced with all other relevant factors.[52] Parliament's view of the seriousness of child stealing, as reflected in the maximum penalty for the offence, should not be ignored unless it is concluded, having regard to all of the circumstances, that it was not an appropriate offence with which to charge the applicant. Section 63 has, until now, been regarded as an appropriate charge for stealing a baby when related to motherhood purposes. As Callaway J.A. observes in his reasons for judgment, this was a kidnapping of that kind.

57 The Crown, in oral submissions, explained the decision to charge the common law offence of kidnapping rather than the statutory offence of child stealing on the basis that the common law offence, carrying with it a maximum sentence of 25 years, was the appropriate charge for conduct of such seriousness. When counsel for the respondent was pressed as to why a maximum sentence of five years under s. 63 rendered it an inappropriate charge, he identified the assault upon Ms Ciancio and the subsequent abandonment of the baby in the derelict house as the factors that warranted the charging of the common law offence. These aggravating features were, as counsel readily acknowledged, the conduct encompassed by the counts of intentionally causing serious injury (count 1) and conduct endangering life (count 3). It was rightly accepted that such conduct could not be taken into account in relation to those counts and also on the count of kidnapping, as that would have involved double punishment.[53] One is then driven to ask rhetorically: what feature of the applicant's conduct rendered the act of child stealing so serious that the statutory offence was inappropriate? On the plea, the prosecutor had relied solely on the age of the baby as an aggravating feature of the count of kidnapping which, it was said, resulted in the appellant's conduct being a particularly serious instance of the offence of kidnapping. That submission cannot, in my view, be sustained as the offence of child stealing has been considered the appropriate charge for kidnapping a baby. The submission also appears to be inconsistent with the notion, recognised by the learned sentencing judge, that kidnapping driven by 'motherhood motives' is less serious than kidnapping in its other forms.

58 Even if it be assumed that the age of the child was an aggravating feature, the real question is whether it could be said that a count of child stealing would have been inappropriate on a presentment which contained other counts which addressed the aggravating conduct of the appellant. In my view it could not be said that to have charged the appellant with the less punitive offence would have been inappropriate. The fact that a charge was available which dealt more specifically with the accused's offending conduct was what led White J in Scott v Cameron and Winneke P in R v Liang and Li to conclude that such a charge was appropriate. The learned sentencing judge was, as a matter of fairness, obliged to take into account the

less punitive regime as a mitigating factor in fixing the sentence on the common law count of kidnapping. As a mitigating factor, it should have reduced the sentence which would otherwise have been imposed for the common law offence. There is authority for the view that a sentencing judge, having taken the lesser maximum sentence into account as a mitigating factor "on the basis of parity", may "in special circumstances" go beyond the maximum penalty for the less punitive regime.[54] As I have reached the conclusion that the appropriate sentence on count 3 is less than the maximum sentence which can be imposed for the statutory offence of child stealing, I need not consider whether that maximum sentence should be treated as the maximum sentence that we can impose.

59 Child stealing of a baby is a very serious offence. It will invariably involve, as it did here, great danger to the health and safety of the child, who is removed from the care and protection of its parents. It causes unimaginable trauma to the parents of the child, and may, as the experience of Ms Cianco demonstrates, result in lasting psychological and emotional damage.[55]

60 Having due regard to these matters and those raised by Callaway J.A., I propose that the following sentences be imposed. On count 1 - three years' imprisonment; on count 3 - four years' imprisonment; on count 4 - four and a half years' imprisonment. I would order that the appellant should serve one and half years of the sentence imposed on count 1 and three years of the sentence on count 3 cumulatively upon each other and upon the sentence imposed on count 4. That would result in a total effective sentence of nine years' imprisonment. I would fix a non parole period of five years and three months.

61 I have had the benefit of reading in draft the reasons for judgment of

Callaway J.A. and Redlich J.A. in this matter. I agree with them that the appeal should be allowed. I agree with them in particular that any differences in the conduct of the appellant and his wife in relation to the kidnapping counts do not justify the disparity in the sentences imposed upon them and do not justify the disparities in the head sentences and the non-parole periods that were fixed.

62 As to Grounds 1, 2 and 3, I agree with the analysis advanced by Redlich J.A., to the extent that he differs from Callaway J.A. In particular I agree with his Honour's analysis of the respective roles of the appellant and his wife and the complex factors affecting their culpability and the consequences for sentencing purposes of that analysis. I also agree, again substantially for the reasons he advances, that in this case there was a less punitive offence appropriate to the facts alleged and this was a matter relevant for the learned sentencing judge to take into account in determining the appropriate sentence. That conclusion, I suggest, is particularly apposite in a case like the present where the principal matters that aggravated the child stealing were the subject of separate counts.

63 Otherwise I agree with Callaway J.A. and Redlich J.A. that the appeal against sentence should be allowed and that in re-sentencing the appellant the orders proposed by Redlich J.A., for the reasons he advances, should be adopted.

[1] The penalty for common law kidnapping was formerly at large. The maximum term of imprisonment is now specified in s.320 of the Crimes Act.

[2] It is not as if it had been wrongly suggested to the judge that the appellant left the child uncovered with motives of cruelty or abuse. If that had been the case, there may well have been a misapprehension of a material fact that reopened the discretion even in the face of a mistaken concession.

[3] (1995) 82 A.Crim.R. 39 at 44.

[4] [2001] VSCA 131 at [11].

[5] In R. v. Liang and Li itself Winneke, P. expressed the principle as follows at 44: "although it is for the prosecuting authority in its absolute discretion to determine which particular charge it will lay against an accused person, it is none the less relevant and proper for the judge on sentence to take into account as a relevant sentencing principle the fact that there was another and less punitive offence which not only could have been charged but indeed was as appropriate or even more appropriate to the facts alleged against the accused."

[7] Compare R. v. El-Khotob [2002] VSCA 109; (2002) 4 V.R. 546 at 564 [61] and R. v. Gent ([2005] NSWCCA 370; 2005) 162 A.Crim.R. 29 at 45 [76]- [92].

[8] See especially, but not only, [55] of the sentencing remarks.

[9] R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404; Postiglione v. R. [1997] HCA 26; (1997) 189 C.L.R. 295 at 323.

[10] This summary comes from counsel's amended outline of submissions. I have omitted references to the record of interview, the transcript and one of the psychological reports.

[12] Sentencing remarks at [35]-[38].

[13] [1996] VicRp 26; [1996] 1 V.R. 398 at 400.

[14] An affidavit was filed, by leave, after the conclusion of argument. The appellant was for some time in conditions of 23 hour lock down, but he now shares accommodation with 22 other prisoners and has access to recreational and educational facilities.

[16] At the very least, the appellant instigated the kidnapping on the day and he was more directly involved in leaving the baby in danger in the derelict house.

[17] It would be easy to exaggerate the differences between the other members of the Court and me on the applicable law. I do not consider that either formulation of the principle engaged by ground 6 applies on the facts: see [14] above. I would avoid double punishment on count 3 by moderation in the sentences imposed on the other counts. Compare R. v. Gruber and Ors. [2004] VSCA 100 at [18]- [20].

[18] At [55] of the learned sentencing judge's reasons.

[19] Section 320, Crimes Act 1958.

[20] R v D [1984] AC 778, [1984] 2 All ER 449 at 454 per Lord Brandon of Oakbrook.

[21] [1998] 4 VR 394.

[22] At 409. See also Evans v His Honour Judge Shelton and the Director of Public Prosecutions, [1998] VSCA 29 at [9]- [10], per Brooking, Charles and Buchanan JJ.A.

[26] Act 48/1997, s. 60(1) schedule 1, item 39(a).

[27] Act 48/1997, s. 56.

[28] Unreported, Victorian Court of Appeal 2 July 1997 (Winneke P, Tadgell and Batt JJ.A.).

[29] R v Newman and Turnbull [1997] 1 VR 146 at 151 per Winneke P.

[30] Per Tadgell J.A. at [12], and Batt J.A. at [13].

[31] [2000] VSC 287.

[32] R v Whitfield (1975) 61 Cr App R 209 - seven week old baby stolen, two year sentence quashed and a nine month term of imprisonment wholly suspended was substituted; R v Jones (1972) 56 Cr App R 212 - four-and-a-half month old baby stolen and concealed for five weeks - three year term of imprisonment quashed and sentence of 21 months' imprisonment substituted.

[33] Maxwell v The Queen (1996) 184 CLR 501 at 512, 534.

[34] (1980) 26 SASR 321.

[36] [1993] FCA 271; (1993) 42 FCR 512.

[37] (1995) 82 A Crim R 39.

[39] [2001] VSCA 131, [11], per Winneke P with whom Brooking and Buchanan J.A. agreed.

[40] [2003] VSCA 187; (2003) 8 VR 92.

[41] At 99 [26] citing R v Liang and Li and R v Whitnall. See also R v Schwabegger [1998] 4 VR 649, 654-655 per Kenny J.A.; Asfoor v R [2005] WASCA 126 at [145].

[42] Bayley v Leichhardt Municipal Council (2005) 138 LEGRA 40 at [20] per Bignold J.

[43] Environment Protection Authority v Patrick Distribution Pty Ltd [2006] NSWLEC 123; (2006) 144 LGERA 210 at [46] per Pain J.

[44] R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [45]- [47] per Johnson J; R v El Masri [2005] NSWCCA 167 at [29].

[45] [2002] VSCA 109; [2002] 4 VR 546 at 564-565.

[46] R v Vellinos at [11] per Winneke P.

[47] Australian Law Reform Commission, Sentencing, Report No 44 (1988) at 6.

[48] R v Zakaria (1984) 12 A Crim R 386

[50] R v Oliver (1980) 7 A Crim R 174 at 177.

[51] [2005] HCA 25; (2005) 215 ALR 213 at [30].

[53] It was not suggested that the sentencing judge had fallen into error in this way.

[54] R v Young Unreported, Victorian Court of Criminal Appeal, 2 December 1982, at 10-11 per Starke J, with whom Crockett and O'Bryan JJ agreed.

[55] See [5]-[9] of the reasons of the learned sentencing judge, where his Honour recounts portions of Ms Cianco's victim impact statement.