R v N A D [2008] VSCA 192

Court of Appeal (Vic)|2008-09-26|Before: NETTLE and WEINBERG JJA and MANDIE AJA

CRIMINAL LAW - Sentencing - Rolled-up counts of indecent assaults committed in the period 1969-1975 - Plea of guilty - Appellant's adult daughter intellectually disabled - Partially suspended sentence - Failure by sentencing judge to consider whether exceptional circumstances of hardship to appellant's daughter existed at time of sentencing - Crown concession that such exceptional circumstances existed in the light of new evidence relating to the position of the appellant's daughter since the appellant's imprisonment - Appellant's sentence varied by extending period during which sentence suspended.

1 I have had the advantage of reading in draft the reasons for judgment of Mandie AJA.

2 But for the Crown's concession, I should not have thought that the fresh evidence admitted on appeal establishes the existence of exceptional circumstances or hardship warranting the amelioration of penalty.[1]

3 Given the Crown's concession, however, and because in my view this is a case in which we should show some degree of mercy,[2] I agree in the disposition of the appeal which his Honour proposes.

4 I agree, essentially for the reasons stated by Mandie AJA, that this appeal should be allowed. I also agree that the appellant should be re-sentenced in accordance with his Honour's proposed orders.

5 In my opinion, the appellant has demonstrated 'exceptional circumstances' to which the sentencing judge did not give adequate weight. His daughter suffers from Smith-Magenis Syndrome, a developmental disorder that affects many parts of the body. The major features of this condition are said to include mild to moderate mental retardation, distinctive facial features, sleep disturbances and behavioural problems. It affects an estimated one in 25,000 individuals.

6 The evidence before her Honour clearly established that the appellant's daughter had significant behavioural problems. These included frequent temper tantrums and outbursts, aggression, anxiety, impulsiveness, and difficulty paying

attention. They are all standard features of this syndrome. She also engaged in self-injury, including head banging and skin picking.

7 There was a wealth of evidence on the plea to suggest that the daughter had a close and dependent relationship with the appellant, who provided her with necessary support. It could reasonably be anticipated that, were her father to be given a lengthy prison sentence for these offences, this would have a seriously detrimental effect upon her well-being.

8 Additional evidence led before this Court, during the hearing of the appeal, confirmed that prognosis. The daughter's condition has deteriorated significantly since her father was imprisoned. Her behavioural difficulties have worsened and there is genuine concern about her future. She is unaware of her father's whereabouts and is so distressed by his absence that she is engaging in greater self-harm.

9 Faced with this additional evidence, the Crown properly, in my view, conceded that this was one of those rare cases where a measure of leniency was warranted by reason of the harm that the appellant's incarceration was doing to an innocent member of his family.

10 I wish to say something about an alternative ground upon which counsel for the appellant relied. He contended that even if the circumstances fell short of 'exceptional hardship', the sentencing judge had erred by failing to extend 'mercy' to the appellant in the particular circumstances of this case.

11 During the course of argument, I expressed misgivings as to whether there was, in fact, a duty on the part of a sentencing judge to extend mercy in circumstances falling short of those which can be characterised as exceptional. I was told, as is the case, that a ground drafted in almost identical terms to that relied upon here had been recently upheld by this Court in R v Lane.[3]

12 There are other decisions of this Court which recognise that mercy has a part to play in the sentencing process. I have no difficulty with that proposition as such. I refer in that regard to R v Miceli[4] (in which Tadgell JA endorsed an earlier statement to that effect by the Full Court of the Supreme Court of South Australia in R v Osenkowski[5]) and to R v Carmody[6] in which his Honour returned to that theme.

13 These cases must be seen in context. The sentencing judge in Miceli had said, during an exchange with counsel on the plea, 'I am here to dispense justice, not to dispense mercy'. It was that comment which provoked criticism by the Court of Appeal when the matter ultimately came to be determined. However, it is one thing to reject as false a dichotomy between justice and mercy, as the Court of Appeal did in that case, on the basis that an element of mercy has always been regarded as running hand in hand with the sentencing discretion. It is quite another to posit a requirement that any judge who sentences an offender must, in circumstances similar to those in the present case, in order to avoid sentencing error, accord some indeterminate measure of mercy.

14 Carmody held that even if exceptional circumstances cannot be shown, the Court may be in a position (as the sentencing judge in that case was not) to appreciate something of the actual impact of the applicant's incarceration upon a member or members of his family. In that case, however, the Court of Appeal held that the judge below had made a specific sentencing error, and the sentencing discretion had been reopened.[7] It was against that background that Tadgell JA referred to the English cases of R v Vaughan[8] and R v Haleth,[9] in each of which an

amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.

15 What Tadgell JA said in Carmody should not, in my view, translate into a ground of appeal, which complains, as the applicant does in this case, of error on the part of her Honour, namely, her failure in these circumstances to accord mercy. To elevate what was no more than an act of compassion by the Court in Carmody, in unusual, though not exceptional, circumstances, and when the Court was re-sentencing in any event, into yet another potential ground upon which to attack the exercise of a sentencing discretion, seems to me to be misguided and wrong.

16 On 23 May 2008, in the County Court, the appellant pleaded guilty to the offence of unlawful and indecent assault on a girl ('the female complainant') (count 1) and to the offence of unlawful and indecent assault on a male ('the male complainant') (count 2). Count 1 was a "rolled-up" count relating to offences committed in the period between 29 January 1969 and 23 October 1975 contrary to s 55(1) of the Crimes Act 1958 as in force during that period. Count 2 was a 'rolled-up' count relating to offences committed in the period 1 January 1971 and 26 December 1973 contrary to s 68(3A) of the Crimes Act 1958 as in force during that period. The maximum penalty for each of these offences at the time was five years' imprisonment.

17 After hearing a plea in mitigation of sentence, the learned sentencing judge, on 29 May 2008, sentenced the appellant to two years' imprisonment on each count and directed that eight months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count one with a resulting total effective sentence of two years and eight months imprisonment and the judge suspended 17 months of the sentence for a period of two years.

18 The appellant appeals against sentence as follows:

Ground 1 - the judge erred in failing to classify the circumstances in this case as occasioning "exceptional hardship" to the appellant's daughter such as to reduce the period of imprisonment required to be immediately served.
Ground 2 - the judge erred in failing to extend mercy to the appellant by reason of the circumstances of the appellant's daughter, even if they fell short of "exceptional hardship".
Ground 3 - the judge erred in failing to give any, or sufficient weight to the hardship to be suffered by the appellant's daughter consequent upon the incarceration of the appellant.
Ground 9 - there has been a substantial miscarriage of justice (such that a different and lesser sentence should now be imposed upon the appellant) by reason of both the hardship suffered by the appellant's daughter and her resulting behavioural problems consequent upon the incarceration of the appellant.

Ground 4 - the judge erred in failing to give any or sufficient weight to the appellant's pleas of guilty and the consequences of same.
Ground 5 - the judge erred in imposing a sentence on count 2 that was identical to the sentence imposed on count 1.

Ground 6 - the sentence of two years imprisonment on count 1 was, in the circumstances, manifestly excessive.
Ground 7 - the sentence of two years imprisonment on count 2 was, in the circumstances, manifestly excessive.
Ground 8 - the total effective sentence of two years and eight months with 17 months suspended for two years was, in all the circumstances of the case, manifestly excessive.

19 The appellant was born on 28 January 1946 and thus was aged between 23 and 29 at the time of the offences.

20 The female complainant was born on 31 October 1959 and thus was aged between 9 and 16 at the time of the offences relating to her. She was the appellant's niece.

21 The male complainant was born on 18 April 1964 and thus was aged between 6 and 9 at the time of the offences relating to him. He was the appellant's brother-in-law, the appellant having married the male complainant's sister, B, in 1970.

22 The sentencing judge was provided with a written summary of the prosecution opening setting out an account of the facts and the agreement of Counsel as to which of the acts of the appellant were comprised in the rolled-up counts and which of the acts of the appellant were uncharged acts.

23 Count 1, as so agreed, involved the following offences in relation to the female complainant:

On a night on or around 29 January 1969, the appellant was taking the female complainant in his car from her home to B's residence. En route the appellant stopped the car, pulled the female complainant towards him and put his hand up her skirt inside her pants. He put his finger in her vagina and moved it backwards and forwards. He then placed her hand on his penis on the outside of his clothes and then undid his pants and placed her hand on his penis. The female complainant was crying - he told her that it was all right - she kept crying. He then did up his pants and told her not to tell anybody. He gave her money and again told her not to tell anybody.
Some months later she was again the sole passenger in his car and the appellant again stopped en route. The female complainant began crying because she knew what he was going to do. The appellant said words to the effect of "don't worry, I won't hurt you". He then undid his pants, took her hand and made her stroke his penis for some minutes. He did up his pants and told her not to say anything and not to tell anyone.
Similar conduct took place on two occasions in 1970 (the later occasion was an uncharged act).
On another occasion the appellant had the female complainant in his car and they stopped at a site where the appellant was building a house. The appellant told her to get out of the car and as they were walking upstairs from the garage into the building the appellant told her to come up to the same level as he was on and he pushed her against a wall. He put his hand under her skirt then into her pants and then his fingers into her vagina where they remained for some minutes. They later returned to the car and there was no conversation as to this incident.
On a later date when the house had been completed there was a party there and the appellant found the female complainant in a room by herself and put his fingers up her skirt and into her vagina. She tried to get away from him while this was happening.
During the period that the appellant assaulted the female complainant she felt scared, frightened and upset and could not work out why he was doing it.

24 Count 2, as so agreed, involved the following offences in relation to the male complainant:

At his residence in the main bedroom, the appellant grabbed the male complainant from behind and tried to pull down his pants. The male complainant tried to pull up his pants but the appellant fondled his penis and was breathing heavily. The male complainant froze and did not fully appreciate what was happening. When he had finished fondling him, the appellant pushed the male complainant away.
At a time when the house previously mentioned had just been completed, the male complainant was helping to move some tools underneath the stairs at the back of the house. The appellant grabbed him from behind, undid his jeans, pulled them down a short way and started playing with his penis. The male complainant went to move away. The appellant said "It's okay". The male complainant heard the appellant groaning. When he had finished the appellant let the male complainant go and told him to pull his pants up. The appellant told the male complainant not to tell B and threatened to "belt" him if he did.
On Christmas night 1973 the male complainant stayed at the appellant's residence. On Boxing Day the appellant asked him to put some empty bottles in the cellar. The appellant followed the male complainant into the cellar and closed the door. In the darkness, the appellant approached the male complainant from behind. He told him to stand there. The appellant lowered the male complainant's pants and began fondling him. He put his hand on the male complainant's penis and fondled his testicles.

25 In addition to references to uncharged acts, the written summary of the prosecution opening set out a number of other matters. It was stated that the male complainant had not told anybody at the time because he thought no one would believe him and was scared as to what the appellant would do to him. The male complainant was not physically hurt, became conditioned to such acts happening to him and did not think that the acts were so bad. While the offending against him was taking place, the appellant would take the male complainant on occasions to a milk bar and allow him to pick whatever he wanted. Later, over a number of years, the male complainant received loans and other material assistance from the appellant. It was further stated that in January 1996 a number of family members had told the appellant that an apology was required 'for what he had done'. The appellant said he regretted what he had done but couldn't change the past. The prosecution summary also referred to an occasion in 2002 when the male complainant raised the appellant's conduct in a conversation with the appellant and B, following which the appellant offered the male complainant substantial sums of money on two occasions which the male complainant refused. However the appellant deposited an amount in excess of $50,000 into the male complainant's bank account. The prosecution summary also stated that, in February 2006, the female complainant's husband confronted the appellant and asked him if he had molested the female complainant. The appellant said that he had and that he regretted doing so and kept saying that he wanted to ask her for forgiveness. The offences were reported to the police in 2006 and, when interviewed by the police in November 2006, the appellant, on legal advice, declined to answer questions.

26 The prosecution summary recorded a submission that, in view of the nature of the sexual assaults, the very young age of the complainants, and the repetitive nature of the conduct, a custodial sentence was required with at least a part thereof to be served immediately but that the prosecution recognised that delay, the absence of other allegations against the appellant and the pleas of guilty were important matters to be taken into account on behalf of the appellant.

27 On the plea, the judge heard evidence from a number of witnesses and had before her victim impact statements from the complainants. In her statement, the female complainant outlined the effect that the appellant's conduct had had on her childhood. She referred to being in constant fear of him and her fear that he would be then whenever she was going to a family function. As she got older she lacked confidence, blamed herself for what the appellant had done and had difficulties relating to males and coping with any sexual relationship. She described her anger and the impact upon her of keeping the secret for so long before she decided that she had to bring it out into the open. The male complainant, in his statement, described his confusion and fear when the appellant commenced to abuse him and his feeling of being trapped. He described his subsequent difficulty with relationships and the emotional consequences that he felt had flowed from the appellant's conduct.

28 On the plea, counsel for the appellant emphasised to the judge that the events took place from 33 to 38 years ago when the appellant was in his twenties. The appellant was a loving and caring father and had been an extremely hard working man who had provided financial support both to his family and to other members of the community.

29 The appellant's wife gave evidence that he was a devoted and loving father of five children and three grandchildren. He had worked hard and for long hours. She testified that the appellant's biggest heartache was that his youngest daughter, A, had an intellectual disability, was unable to fend for herself and needed extra attention and help from both parents. She described the appellant's close relationship with A and a number of other incidents indicating the appellant's good character.

30 The judge heard that A (who would be 24 years old in June 2008) had a chromosomal condition called Smith-Magenis Syndrome, the most common symptoms of which, as present in A, were sleep disturbance, temper tantrums and outbursts, aggression, anxiety, impulsiveness, difficulty paying attention, self-injurious behaviour, scoliosis[10], and insensitivity to pain and temperature, but an engaging personality and an impressive ability to recall a wide range of small details about people. B described A's activities with the appellant and her degree of dependence on him. On cross-examination, she said that the appellant was only semi-retired and still carried on his development activities away from home during the working week. She testified that A spent most weekdays at a facility called David House.

31 A's dependence on the appellant was also the subject of evidence from another daughter of the appellant. The judge was provided with reports from the family's general practitioner and from a consultant clinical geneticist at the Royal Childrens' Hospital. The general practitioner said that he considered that B would not be able to cope on her own with A. The consultant geneticist outlined the difficulties that parents had in caring for children with A's condition.

32 In the course of counsel for the appellant making submissions on the plea concerning a number of matters, he agreed with the sentencing judge that 'the crux', 'the central point', of the plea was 'the disabled child and the dependence of her upon her father.' Counsel in substance submitted to the judge that 'the disabled child' was a 'significant factor' in 'the whole matrix of facts that exists for caring and looking after that child' which added up to a situation that amounted to 'exceptional circumstances.'

33 Counsel for the appellant submitted to the judge that in all the circumstances a wholly suspended sentence of imprisonment ought be imposed whereas counsel of behalf of the Crown submitted that only a partially suspended sentence of imprisonment would be appropriate.

34 After an initial reference to the two counts to which the appellant had pleaded guilty, the judge noted that the appellant was 62 and semi-retired with adult children. The judge said that the youngest of these children was, however, significantly disabled, suffering from Smith-Magenis Syndrome and totally dependent on others for her care. The judge then summarised the conduct involved in the two rolled-up counts. The judge referred to the evidence that had been called on the plea and then said, before passing sentence:

You are part of a large extended family of Italian origin, having come to Australia yourself in 1954. I read a large number of references from other members of your family and friends. It is clear from all these references that in the 38 years since the last of these offences you have lead an active and rewarding business life and have contributed positively to your trade. You have also been a good father and husband, devoting yourself with your wife to the care of A.

It was submitted by Mr Galbally, who appeared on your behalf on your plea, that A's dependence upon you, in combination with other matters, amounts to an exceptional circumstance warranting leniency. Mr Galbally submitted that you are a very different person now to the person you were in your 20s. Since then you have served the community and your family well, and there is a reduced need for specific deterrence to be a significant purpose of the sentence I impose.

Offences such as those you committed deserve the strongest condemnation by the courts, and the community expects such offenders to be harshly punished. The complainants in this case were very young and had been entrusted to your care, as an adult family member, by their parents. You breached that trust and abused them in such a way as to cause them much anguish and hurt at the time and continuing grief and sadness over the years. They each provided victim impact statements.

[The judge then referred to the contents of these statements]

Combined with community expectations the principle of general deterrence requires a penalty that conveys grave condemnation and a punishment commensurate with these serious offences. In this case the need for specific deterrence is reduced by reason of your lack of prior convictions and your long years of blameless conduct, and that warrants leniency but this consideration does not operate to reduce the severity of the sentence, as must be directed by the need for punishment and for general deterrence in this case. A wholly suspended prison term would not be appropriate.

In considering the proper penalty I take into account the fact that you have pleaded guilty and therefore saved the complainants the anguish of having to give evidence and be cross-examined in front of a jury. You have also avoided the need for the resources of the criminal justice system to be expended on a trial, and that must be accorded due recognition, even though the plea was not indicated until the day of your trial. The plea of guilty is also regarded as an indication of remorse, although in this case there is otherwise very little indication of remorse expressed by you.

Insofar as you are now to be sentenced for offences you committed many years ago, that delay is also to be taken into account, and there must be a discount in acknowledgement of that fact. Each count covers multiple offences of a similar nature, and each sentence must reflect that.

35 The appellant submitted that, while recognising and understanding the submission that had been put on behalf of the appellant concerning A's dependence upon the appellant, the judge had failed to determine whether there were exceptional circumstances and thereby failed to consider and give weight to the most substantial matter upon which the appellant's plea had been based. Accordingly, it was submitted that the sentencing discretion was thereby vitiated.

36 The appellant's ground 1 had contended that the judge erred in failing to classify the circumstances appertaining to A as 'exceptional hardship' whereas the submission in support of ground 1 contended as well that the judge had erred by failing to consider whether or not there were any exceptional circumstances arising from A's position.

37 The respondent accepted that, although the judge had made reference to the defence submission as to 'exceptional circumstances', the judge did not appear to make any specific finding regarding this issue but the respondent submitted that, having regard to the sentence passed, the judge must have rejected the defence submission.

38 Unfortunately, the judge, despite having identified that the crux or central point of the plea was 'the disabled child and the dependence of her upon her father' and having heard submissions about 'exceptional circumstances,' failed to determine whether any and what exceptional circumstances existed and, if so, how they should be taken into account. A vital piece of reasoning potentially relevant to the exercise of sentencing discretion is missing. It may be assumed, perhaps, having regard to the sentence imposed, that the judge did not consider that there were exceptional circumstances, but it is not possible to tell whether the position of A was or was not taken into account on the basis of mercy, or otherwise. As a result, in my view, this Court cannot ascertain from the judge's reasons whether and to what extent the sentence was synthesised having regard to the factors mentioned by the judge apart from the factor of A's condition, or by taking into account that factor as well.

39 In my opinion, therefore, the sentencing discretion is vitiated and the appellant must be re-sentenced unless, of course, the correct conclusion were to be that no change to the sentence was warranted in any event.

40 It follows from the foregoing that it is not possible to ascertain whether the judge extended mercy by reason of the position of A or to ascertain to what extent, if any, the question of hardship to A was taken into account. Grounds 2 and 3 need not be considered further.

41 As the sentencing discretion is re-opened, it is unnecessary to consider ground 9 and, further, in my opinion, this Court is entitled to take into account the new evidence placed before it as to the position of A since the sentence was passed.

42 The appellant submitted that, having regard to the sentence imposed upon the appellant, the judge, notwithstanding her explicit statement, had failed to pay any or any sufficient regard to the appellant's pleas of guilty. Because of the gap in reasoning referred to earlier, it is not possible to assess the relative weight given to the pleas of guilty but, for the same reason, this ground need not be further considered.

43 The appellant submitted that count 1 involved five discrete offences over a longer period whereas count 2 involved only three discrete offences of less gravity and that, accordingly, a lesser sentence should have been imposed on count 2. In my opinion, there is no significant disparity, in terms of culpability, between the offences comprised in count 1 and count 2 respectively so as to establish sentencing error.

44 As the appellant should, in my view, be re-sentenced, it is unnecessary to consider the grounds relating to manifest excess.

45 The appellant's wife has sworn two affidavits dated 18 July and 12 September 2008 to which are exhibited her daily notes relating to the position of A and her behaviour. The Court has also been provided with two affidavits sworn on the same dates by a registered psychologist, C (who is also a daughter-in-law of the appellant) exhibiting reports relating to A's situation.

46 The psychologist's report dated 17 July 2008 shows that A's behaviour and psychological health had deteriorated since the appellant's incarceration. A displayed extreme mood swings including anger towards her mother and other family members and anxiety concerning the unexplained absence of the appellant. She had been crying repeatedly and complaining of 'stomach cramps, headaches, diarrhoea, and a very disrupted sleep pattern' and her 'eating patterns have also changed significantly, with her refusing to eat at times and a generally reduced appetite'. She had exhibited defiant and aggressive behaviour including 'throwing furniture, objects, the slamming of doors, screaming and verbal abuse.' She now 'refuses to follow once well-established rules and structures that have been in place for many years at home.' She 'now regularly packs her bags and leaves home but is unable to rationally express her feelings as to why she attempts to leave .. ' In recent weeks, she is 'showing clear signs of regressing back into behaviours not seen for many years' including 'sitting alone, blankly staring into space, rocking herself back and forth, grunting, moaning and making whining noises.'

47 The psychologist says that, 'due to A's limited cognitive and intellectual ability, it appears she is having significant difficulty simply comprehending the whereabouts of her father and this seems to have developed into severe levels of anxiety and depression which again, she can't comprehend or understand.' I note however that it does not appear, no doubt for good reason, that A had been told where the appellant is.

48 The psychologist's second report dated 10 September 2008 shows that A's behavioural problems have continued and, in addition, she has displayed 'considerable symptoms of depression' and engaged in 'mild self-harming behaviours' and made threats to harm others.

49 By leave, the appellant adduced additional evidence from the psychologist as to A's present difficulties and their prospects of amelioration when the appellant returned to the home. As to the latter, she said that she believed that it would take some considerable time for A to return or to approach a return to her former condition.

50 Senior counsel for the appellant submitted that, as had been submitted on his behalf below, the evidentiary material showed that the circumstances of hardship to A were 'so extreme or exceptional' that a wholly suspended sentence was justified. Counsel emphasised the particularly close relationship between the appellant and A that enabled her to cope and the behavioural problems that had flowed from the appellant's absence. He referred to the 'consistent environment' that A needed in her condition.

51 Other than in exceptional circumstances, hardship to family members of the imprisoned offender by reason of the incarceration is not a factor relevant to the sentencing disposition.[11] The cases consistently emphasise that a sentencing court should have no regard to the impact of a sentence of imprisonment on the members of the prisoner's family, other than 'in extreme cases' where a sense of mercy or of affronted common sense imperatively demand that the court should draw back.[12] Again, it has been said that the criterion of exceptional hardship is 'extraordinarily difficult to satisfy.'[13]

52 However, in this case, the respondent conceded that the new evidence provided to this Court established 'exceptional circumstances' and, in my view, the Court is entitled in the circumstances that I have described to act upon that concession or, at least, to act upon considerations of mercy to the appellant's daughter.[14]

53 In my opinion the sentences, cumulation and total effective sentence imposed by the learned sentencing judge remain appropriate in the light of the various factors referred to by the judge. In particular, principles of denunciation and general deterrence on the one hand, and factors relating to the age of the offences, the subsequent record and history of the appellant and the pleas of guilty on the other hand, if appropriately taken into account, support the same disposition as reached below.

54 Having regard to the exceptional circumstances constituted by the hardship to the appellant's daughter, I think that the appellant's immediate period of imprisonment should be further reduced although I do not think that a case is made out for his immediate release. I consider that it is desirable[15] to suspend a substantial portion of the appellant's sentence - in doing so, I have had regard to the factors set out in s 27(1A) of the Sentencing Act 1991.

55 For the foregoing reasons, I would not alter the sentencing disposition reached below save that I would suspend 26 months (instead of 17 months) of the total effective sentence for a period of 2 years.

[1] See and compare R v Boyle (1987) 34 A Crim R 202; R v Yates (1998) 99 A Crim R 483, 486-7 (Charles JA), R v Maslen (1995) 79 A Crim R 199, 209 (Hunt CJ at CL) and R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451, 452 (Batt JA) 454 (Eames JA) and 457 (O' Bryan AJA); R v Nagul [2007] VSCA 8 [43].

[2] R v Carmody (1998) 100 A Crim R 41, 45 (Tadgell JA).

[5] (1982) 30 SASR 212. See also R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 523 and R v Carter [1998] 1 VR 601.

[7] See generally the discussion of Carmody by Neave JA in R v Selcuk [2007] VSCA 143, [52]-[53]. Her Honour made it clear that in her view Carmody was not authority for the proposition that, in the absence of specific error, or manifest excess, an appellate Court has a discretion to reduce a sentence solely for reasons of mercy.

[10] Lateral curvature of the spine - for which A had major surgery in 1995.

[11] See R v Nagul [2007] VSCA 8 [43] and cases therein cited.

[12] See Boyle (1987) 34 A Crim R 202, 206 and cases therein cited.

[13] R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451, 452 (Batt JA).

[14] See R v Carmody (1998) 100 A Crim R 41, 45 (Tadgell JA).

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