R v Skura [2004] VSCA 53

3 According, I agree that the applicant has established error in the sentencing process. I would re-sentence the applicant as their Honours propose.

4 I gratefully adopt the summary of the facts and issues set out in the judgment of Smith, A.J.A. Whilst I am in substantial agreement with much of his Honour's analysis of the arguments advanced before us there are some areas in which as a matter of emphasis or conclusion I am not wholly in agreement.

5 Section 23 of the Sentencing (Amendment) Act 1993 introduced s.32I(1)(ba) to the Crimes Act 1958. The amendment followed the decision of the High Court in Dimozantos v. The Queen[1] which had resolved earlier doubt as to the appropriate sentence for incitement to murder by determining that the maximum penalty was 15 years imprisonment. The amendment prescribed that the penalty, thereafter, would

be life imprisonment or such other term as fixed by the court. The new penalty provisions reflected the view of Parliament that whilst this can be an extremely serious offence there might be a wide divergence in the level of seriousness of such offences which fall for sentencing. Having regard to the many mitigating features which were relied upon by counsel in submissions to the learned sentencing judge the sentence imposed in this case and the remarks on sentencing reflect that his Honour regarded this offence as, indeed, being a very serious instance of incitement to murder. It was not disputed by counsel before us that his Honour was entitled to have reached that conclusion but it is said that the sentence imposed was, nonetheless, manifestly excessive. Although that was the complaint made in the sole ground of appeal, the complaint of manifest excess was argued upon a number of discrete bases, all of which might more appropriately have been separate grounds of appeal, but which the court permitted to be argued under the one ground. Thus, it was said that the sentence was either manifestly excessive by virtue of being beyond appropriate range, or else because it was tainted by specific errors.

6 Having regard to the fact that the applicant pleaded guilty, had no prior convictions, was the beneficiary of a very supportive victim impact statement from her husband (whom she had plotted to kill) and had a number of features in her antecedents which the judge recognised appropriately mitigated penalty, the sentence imposed is a stern one. Mr Gyorffy, for the respondent, conceded that to be so but submitted that it was a sentence which was within range and could not be regarded as being manifestly excessive. I agree with that conclusion insofar as the complaint is based merely on the length of the sentence imposed. The question remains, however, whether any errors have been demonstrated in his Honour's approach to sentencing which should cause the sentencing discretion to be re-opened and a lesser sentence to be imposed by this court.

7 As the judgment of Smith, A.J.A. sets out, a number of discrete errors were claimed by counsel to have arisen. The first of these was that his Honour was said to have inappropriately devalued the evidence of the applicant's psychological condition. I agree with Smith, A.J.A that the identified personality disorder of the applicant was not of such character as to render this an inappropriate case for the application of principles of special and general deterrence. Complaint was made that the language of the judge suggested that in his opinion only a serious psychiatric illness would be capable of having that moderating effect. I do not consider that his Honour did so conclude; indeed, it seems likely that his Honour was merely applying the principles and distinctions discussed in R. v. Tsiaras[2] and R. v. Yaldiz[3] and had concluded that he was not persuaded that any condition of the applicant reduced her moral culpability or caused him to eschew considerations of specific or general deterrence when sentencing her.

8 A disorder falling short of serious psychiatric illness might well be capable of moderating the need for general or specific deterrence but the onus was on the applicant to demonstrate that it did so in this case, by establishing that its effect reduced the seriousness of the offences and the moral culpability of the applicant[4]. His Honour did not, in fact, disregard the applicant's mental condition when having regard to the application of general and specific deterrence. He accepted that some moderation of the effect of those considerations was justified, but only to a small extent. I agree with Smith A.J.A. that that assessment of the relevance of the disorder in this case to the offending conduct, insofar as it bore on the application of general and specific deterrence, was open to the judge[5].

9 Smith, A.J.A. has however, concluded that the learned judge did err in his assessment of the evidence of the psychologist, Mr Davis, by virtue of his comment that the absence of the treating psychologist, Ms Leonard, depreciated "to some extent at least" the value which could be placed on the report and evidence of Mr Davis. Whilst I agree with Smith, A.J.A that by the comment the judge did conclude that the value of the evidence of Mr Davis had been reduced by virtue of the absent witness, I do not, with respect, agree that that constituted an error in his approach to sentencing. Although it is true that the prosecutor (somewhat begrudgingly) had not challenged what he called the "general diagnosis" made by Mr Davis it did not follow, in my opinion, that the judge was bound to accord to the evidence of Mr Davis the weight which taken at its highest it might be capable of bearing.

10 The judge had seen Mr Davis in the witness box, had had an opportunity to evaluate the extent to which he had been misled by the undoubted lies told to him by the applicant, and to evaluate the extent to which the opinion expressed was rendered more tentative by virtue of the fact that Mr Davis had not received express confirmation of his own opinion from Ms Leonard. The judge did not deny all value to the opinions of Mr Davis; he simply did not accept them unreservedly. Whilst it is true that the judge was bound to accept that the history of the applicant, in particular of sexual abuse, was a factor in her offending conduct, he was not bound to give it the weight that Mr Davis suggested was appropriate. This was a case, in my opinion, where full allowance had to be given to the opportunity and advantage the sentencing judge had in hearing the submissions and evidence.

11 I also do not agree with Smith, A.J.A that by virtue of his response to the absence of Ms Leonard the judge erred in his approach to the question of rehabilitation. The judge concluded that "your prospects of ultimate rehabilitation must be regarded as good". True it is that his Honour then said that those prospects might depend on the applicant having and benefiting from ongoing counselling and "a growing realisation of the enormity of the crime you have committed". Those and other remarks seem to me to indicate that his Honour did accept that the applicant was benefiting from the counselling being provided by Ms Leonard. If there was an element of doubt then the fact that he had no precise information as to that counselling entitled him to express some qualification in his assessment of future rehabilitation prospects. I discern no error in the approach adopted concerning rehabilitation.

12 I turn to the complaint that the judge erred in his consideration of the victim impact statement. I agree with Smith, A.J.A. that the judge did not give sufficient weight to the statement of the applicant's husband, her intended victim. This Court has often acknowledged that the introduction of victim impact statements has served an important purpose of ensuring that sentencing judges have a full appreciation of the consequences of criminal conduct to the victims of the crimes, thereby ensuring that judges properly weigh the factors relevant to victims which must be considered by virtue of s.5 of the Sentencing Act 1991[6]. The courts have also warned that the victim impact statements should not be misused so as to produce a sentence which is unfair, and that an articulate or emotional victim impact statement could not justify a sentence being imposed which was not just in all the circumstances[7].

13 Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case. In the passage of the sentencing reasons cited by Smith, A.J.A[8] the judge reflects undue reluctance, in my opinion, to give full weight to the victim's statement. As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here.

14 The next complaint upheld by Smith, AJA was that the judge did not give full weight to the fact that the applicant would have to serve her sentence in Australia, with her husband and child being in Canada. The judge did not allude to all of the matters which counsel before us identified in the material as being disadvantages arising from separation from her family, but it is not necessary that a sentencing judge refer to every fact relevant, or potentially so, in sentencing[9]. Assessed overall, in my opinion, the judge has not been shown to have undervalued the significance in this case of separation whilst serving sentence, whether as relating to the question of rehabilitation or for other purposes.

15 Finally, I do not discern any error in the learned sentencing judge's approach to the question of remorse.

16 That then means that I find the approach of the judge to have been in error only in one respect, as to the weight given to the victim impact statement. That would not constitute this a manifestly excessive sentence in my view, but I will approach the case as though a ground complaining of specific error had been made out. The applicant would therefor fall for re-sentencing.

17 As to the weighing of factors relevant for re-sentencing I am in general agreement with Smith, A.JA., and although his Honour reached his proposed new sentence after finding a greater number of additional instances of sentencing errors than did I, the sentence he proposes, of 6 years imprisonment with a non-parole period of 3 years, in my opinion is an appropriate one in all the circumstances.

18 Dorothy Marie Skura has applied for leave to appeal against the sentence imposed upon her for the offence of incitement to murder. The maximum penalty for that offence has been, since 20 November 1997, life imprisonment. The precise charge laid against her was that, between 4 and 6 March 2003, she incited Jason Dorrian to murder her husband, Gerard Norman Skura. She pleaded guilty to the charge on 29 May 2003 and was sentenced by a judge of this Court on 29 July 2003 to 7 years imprisonment with a non-parole period of 4½ years.

19 She originally sought leave to appeal pursuant to s 582 of the Crimes Act 1958 on 17 October 2003 but was unsuccessful. She now seeks leave from this Court.

20 There is one ground relied upon in support of the application - that the sentence was manifestly excessive. In support of that ground, however, four areas of error are alleged. It is said that errors were made by his Honour in the way he dealt with certain evidence in the sentencing process relating to the following:

4. circumstances in which the applicant would be obliged to serve any sentence.

21 Before considering the points raised, it is necessary to have an understanding of the circumstances of the offence and its seriousness -as found by his Honour.

22 His Honour found that in April 2002, the applicant, her husband and daughter came to live in Australia from Canada. Her husband had been transferred from Canada in the course of his employment with an international grain company. The transfer was a promotion for her husband. His Honour noted that the applicant was not happy with this move. She had no friends or relatives in Australia and was unable to obtain employment. His Honour found that her husband had hoped that a change of environment would help her to gain greater control over a long standing drinking problem.

23 His Honour referred to a series of unexplained medical problems of the husband which persisted through most of the rest of that year. The Crown had argued that they were failed experiments on her part to harm her husband. His Honour, however, made no adverse findings on that issue and expressly confined himself to the task of sentencing her solely in respect of the incitement to murder charge.

24 It seems that towards the end of 2002, the applicant became acquainted with some men who lived in a lodging house in Noble Park. She visited them and supplied alcohol and cash. His Honour accepted that she had paid one of those men $10,000 prior to March 2003 to kill her husband but he had disappeared with the money. His Honour also held that she had asked one of the men, prior to March 2003, to obtain some heroin which she wished to put in her husband's food. He refused. She approached another of the men but he went to the police. The police arranged for an officer, "Jason", to meet the applicant and pose as a professional killer. They met on three occasions - the first was on 4 March 2003 at the Elsternwick Hotel, and the other two on 5 and 6 March at cafes in Elwood. During these meetings they entered into an agreement whereby "Jason" agreed to kill her husband for $25,000 -- $ 2000 deposit and the balance within 24 hours of the death of her husband. She paid a total of $2000 by the third meeting. They discussed ways in which he could appear to set up a legitimate business for receipt of the funds. In the course of the conversations, they discussed the method to be used and the time at which it should be done. She also spoke about her reasons for wanting her husband dead. She wanted the death to occur sooner rather than later and wanted it to look like an accident if possible. She believed that if it resulted from a major accident she would benefit even more in financial terms. She told Jason that she expected to benefit from insurance policies and a pension fund and would inherit their house in Vancouver. She told him that she wanted to go back to Canada to get her "life back". In the course of the conversations she also gave details to Jason about her husband's habits and movements. She also showed him where her husband worked. During the discussions she was adamant that she had thought the matter through and wanted the murder carried out.

25 Plainly this was a serious example of incitement to murder. It was premeditated and planned in an apparently rational and cold-blooded fashion. On the face of it, it was motivated by the classic motive of greed combined with a desire to get her "life back". If regard is had, also, to the relevant matters of an early plea of guilty and the lack of prior convictions, but no other mitigating factors or issues, it could not be said that a sentence of seven years imprisonment and a non-parole period of four years six months was manifestly excessive. I turn to the issues raised by the applicant.

Alleged errors - Applicant's psychological condition

26 The first issue raised concerns his Honour's conclusions about the relevance of the applicant's psychological condition to the question of an appropriate sentence and the weight to be given to it.

27 The applicant had tendered evidence from a psychologist, Mr Davis, that she was suffering a severe mixed personality disorder, the result principally of prolonged sexual abuse, coupled with physical abuse, which involved a grandfather when she was aged two to five and then, to 17 years of age, her stepfather. He also was informed by her that she had begun drinking at the aged 12 and had abused alcohol throughout her life. She informed him that in Australia her drinking had been uncontrolled. She also told him that she had lost considerable sums gambling. Mr Davis concluded that the applicant met the diagnostic criteria for the following -

• Personality Disorder - Mixed Type (Narcissistic, Borderline and Antisocial features)

• Adjustment Disorder with Disturbance of Conduct and Emotions

28 Towards the end of the plea hearing, in response to a question from his Honour, the Crown indicated to his Honour that there clearly was a personality disorder. As to the history of her life prior to Australia, the Crown initially reserved its position while it made inquiries. After the questioning of Mr Davis, the learned prosecutor told his Honour that he was reluctant to concede the earlier family history and he did not want to delay the proceedings over the matter. At that point he also stated that without conceding it, the general diagnosis had not been challenged. The learned prosecutor noted that the victim had accepted much of the history and said that he did not ask his Honour to reject it. The Crown could have sought its own expert assessment but that does not appear to have been done. The Court might have done so also. This, however, would have necessitated an adjournment and the prisoner was anxious to have a decision reached before her husband and daughter left the country. While it may be said that any additional expert evidence would have been dependent on the honesty of the applicant, part of the expertise and skill of psychologists and psychiatrist is assessing such honesty.

29 His Honour expressed concerns throughout the plea hearing about the evidence being put forward about the applicant's psychological condition. A significant problem for the applicant was that her statements to Mr Davis at the first consultation (recorded in Appendix A to his report) about the facts of the crime were false in some major aspects - in particular she painted a picture of one of the group of men, Darren, blackmailing her and another, Alan, coming up with the idea of murdering her husband. This was false. Mr Davis was dependent, as all experts are in giving reports of the kind he gave, to a large degree on the accuracy of the history given by the appellant and all other relevant statements of fact made by her. He was, however, aware of and acknowledged the false statements.

30 His Honour raised a number of times the question whether, to enable him to assess adequately the applicant's psychological condition, a psychologist, Ms Leonard, who was treating the applicant should not be called to give evidence. His Honour was informed that she had been approached but had declined to give evidence because of a concern that to do so could damage a therapeutic relationship she had with the applicant. The Crown did not challenge the explanation. His Honour sought a response from Crown. The Crown did not invite his Honour to draw any adverse inference from the failure to call Ms Leonard. Rather the learned prosecutor replied:

"Your Honour, simply has not been assisted by the treating psychologist."

"One could conceive of circumstances where there would have been mitigating material that might have come from the treating psychologist. Your Honour is really left in a position of the consulting psychologist and the chaplain each giving evidence of very recent remorse . . . and contrition. That's as far as it goes. Your Honour is in a position where there might have been more evidence that might have assisted, but you haven't got that. That's as far as we can take that."

Attention then turned to s 464 ZF of the Crimes Act 1958.

31 The first point raised for the applicant concerns the conclusion reached by his Honour that the applicant's personality disorder did not reduce the moral culpability of her offending and did not render her an inappropriate vehicle for a sentence addressing general deterrence. His Honour stated:

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

32 Counsel submitted that his Honour erred in that it is not a prerequisite to the application of the principles explained in R. v. Anderson[11] that:

• an accused be suffering from a "serious psychiatric illness",

• an accused be deprived of rational judgment at the time of commission of the offence; or

• an accused did not know what was being done was criminal.

33 The argument advanced for the applicant appears to assume that provided a link is demonstrated between a mental disorder and the commission of the crime, moral culpability is reduced and issues of deterrence are less significant. But it is necessary to analyse the nature, severity and effect of the condition.[12] On the evidence before his Honour, the personality disorder explained the conduct but did not affect the assessment of the moral culpability of the applicant because it was quite clear that she knew what she was doing and that it was wrong. As to general and specific deterrence, she remained a suitable vehicle because there was nothing in her psychological condition that removed her, or people like her, from the potential deterring effect of a sentence. This criticism is not made out.

34 The next point raised on behalf of the applicant in this area is an argument that the learned sentencing judge erred in describing as "minimal" any appropriate moderation of the need for general and specific deterrence as a result of the applicant's psychological disability. For reasons given above, this was a conclusion that in fact benefited the applicant.

35 Counsel for the applicant also submitted that the learned sentencing judge erred in concluding that the absence of Ms Leonard as a witness:

"has the inevitable effect of depreciating, to some extent at least, the value which can be placed upon Mr Davis' report and his oral evidence."[13]

36 There could have been no criticism if his Honour had said that the evidence of Ms Leonard would have been of value if it assisted the applicant and that, therefore, its absence disadvantaged the applicant because she had to rely solely on Mr Davis. Read literally, however, his Honour stated that the absence of her evidence lessened the value that could be attached to that of Mr Davis. In view of the fact that the Crown expressly chose not to draw any inference from the failure to call Ms Leonard and did not challenge the explanation for not calling her, the failure to call her could not lessen the value of the evidence of Mr Davis.

37 When considering reasons for sentence, care must always be taken to address their substance and avoid the trap of strict literal construction. It is also important to assess whether, and to what extent, the sentencing judge's propositions affected the sentencing process. I have come to the conclusion in this instance, however, that his Honour did treat the failure to call Ms Leonard as a matter which reduced the value of the evidence and report of Mr Davis. I suggest this is revealed in the reasons that followed upon the above quoted statement and his treatment of the evidence of Mr Davis. I have also come to the conclusion that it affected his approach to the issue of rehabilitation.

38 His Honour, after making the above statement, went on to refer to the diagnosis of personality disorders including pathological gambling and lies told by her about gambling. He then referred to the opinion of Mr Davis that there had been a significant improvement in the applicant's psychological situation between his first and second interviews. His Honour referred to Mr Davis's evidence about her placing the blame on others at the first interview and that she did not recant, in particular, an assertion that Darren was black-mailing her in the second interview. His Honour commented that, like the rest of the history she gave, it was not the subject of sworn evidence. His Honour then commented that "in response to a leading question" Mr Davis made the connection between the offending and the personality disorders. This would appear to be a reference to the following question and answer at the conclusion of his evidence in chief:

"Mr Davis, in your view is there any doubt that the offending in this case was a product of her psychological condition? - No, I think it is borne out of her personality disturbance and her adjustment difficulties, I should add."

In that answer, Mr Davis stated his considered opinion, an opinion stated and explained in his Report as follows:

"While the antisocial nature of her offending is undeniable, it is comprehensible in the context of long standing psycho-pathology in the realm of personality functioning and her adjustment difficulties in residing in Australia. It would appear that Mrs Skura's internal coping resources became overwhelmed by her relocation to Australia and associated marital conflicts, which resulted in her seeking refuge in drinking, gambling and the company of itinerant men."

Mr Davis went on in his Report to give a detailed hypothetical explanation of how she may have come to plan the death of her husband and the part in that of her personality disorders.

39 Returning to his Honour's reasons, after referring to supporting evidence from the prison chaplain about the existence of genuine remorse and a realisation of the seriousness of the actions together with a thankfulness that there had not been a tragic end, his Honour stated that because the Crown conceded the early "terrible history" of sexual abuse was much as Mr Davis understood it to be, he was prepared to place "some reliance" on the opinion of Mr Davis so far as it relied on that history.

40 After referring to the false statements to Mr Davis about the offence, his Honour then turned to the argument referred to above about the relevance of her condition in itself to issues of culpability and deterrence. His Honour then turned to the issues of remorse, the difficulty of serving a sentence of imprisonment with her family in Canada and the victim impact statement, all of which are discussed below.

41 His Honour then referred to the question of rehabilitation, an issue to which the value he attached to the evidence of Mr Davis was relevant. His Honour stated that the prospects must be regarded as good in light of the absence of any prior criminal history and there being nothing to suggest that she would engage in criminal conduct again[14]. These conclusions, while at one level favourable to the applicant, could only be stated if the personality disorder diagnosis of Mr Davis, and its connection to the crime charged, was rejected. His Honour's assessment of Mr Davis may have been affected by factors other than those already mentioned but the result of these conclusions was that rehabilitation ceased to be a contentious sentencing issue for his Honour or one requiring special consideration. Thus his Honour's lack of confidence in the evidence of Mr Davis, devalued in his view by the failure to call Ms Leonard, appears to have affected his approach to, and analysis of, the issue of rehabilitation.

42 In his reasons his Honour qualified his conclusion on rehabilitation by stating that

"if Mr Davis is correct that might depend upon your having and benefiting from ongoing counselling and a growing realisation of the enormity of the crime you have committed".

43 The issue of counselling was of particular relevance to the rehabilitation factor in the sentencing process because of the question whether counselling might be better done with the assistance of her family. Mr Davis had said that she needed intensive and long-term psychological treatment and that that would be greatly supported by the maintenance of regular contact with her family. In his evidence he also said that the separation would cause great distress and depression. It should also be remembered that his Honour sentenced the applicant on the basis that she would remain in Australia to serve the sentence separated from family.

44 His Honour' conclusions on the rehabilitation issue explain why his Honour did not expressly refer to the victim impact statement, the issue of remorse and the circumstances of the serving of the sentence in the context of the rehabilitation of the applicant. As stated above, on his Honour's analysis, rehabilitation was not a contentious issue and did not require special attention. I turn to consider those other issues.

45 The next issue raised is the manner in which his Honour dealt with the victim impact statement of the applicant's husband. Counsel had submitted to his Honour that the most significant mitigating factor, and one which distinguished this case from other similar cases, was that the applicant's husband had expressed in his victim impact statement as his Honour noted:[15]

• his wish for her to return to Canada with him and her daughter,

• his willingness "to offer her love, support and the change of lifestyle to enable you to re-enter society and your family as a better person".

46 His Honour, after noting that the Crown did not argue that the applicant's husband's attitude was not a mitigatory factor, stated that he was prepared to accept it as such

"Although as a matter of principle its relevance must be doubtful. It must be borne in mind that it is the body politic which is represented here by the Crown which has the principal interest in ensuring that a just and appropriate sentence is passed, not the victim."

47 Counsel for the applicant submitted that the status of the interests of a victim and their relevance is established by section 5 (2) (da) of the Sentencing Act 1991. It requires the sentencing judge to have regard to "the personal circumstances of any victim of the offence". Counsel submitted that while the wishes of the victim should not govern the sentence, the learned sentencing judge had failed to give adequate weight to the attitude of the victim and his circumstances. In addition to the above, reference should also be made to s 5 (2) (db) which requires regard to be given to "any injury, loss or damage resulting directly from the offence".

48 It may be said that neither of the above statutory provisions change the long-standing position that it has always been relevant for a sentencer to have regard to the impact on the victim.[16] So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant.[17] But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting.[18] It may mean that

"psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor".[19]

Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation.[20]

49 Counsel for Mrs Skura put to his Honour that the position taken by the victim distinguished this case from others. He also argued that his attitude meant that she was going to be "adequately supported" if given the opportunity.

50 His Honour expressly considered one aspect of the victim impact statement - the attitude of the victim and whether it could affect the sentence. His Honour did not appear to consider the impact of the crime on the victim or the relevance of the victim impact statement, and the attitude shown in it, to the question of rehabilitation. Such an approach was consistent, in part, with his Honour's assessment of the rehabilitation issue. If, however, that analysis is incorrect, it seems to me that the evidence revealed by the victim impact statement was in fact significant and, in particular, showed that there was no adverse impact on the victim and that the prospects of rehabilitation were enhanced because of the willingness of the victim and the applicant's daughter to help the applicant deal with her serious personality disorders. I may be doing his Honour an injustice, but it seems to me that a fair reading of his Honour's reasons supports the conclusion that regard was not had to such matters. Accordingly I have come to the conclusion that the applicant has established her argument on this point.

51 Counsel for the applicant also submitted that the learned sentencing judge failed to give proper weight to the evidence of the applicant's remorse. Counsel put that his Honour described her as having shown "some" remorse but had concluded that it may not have been distinguishable from the overwhelming case against her. Counsel argued that such a conclusion ignored a number of matters. A fair reading of his Honour's reasons, however, indicates that the reference to the overwhelming case against her was in the context of his Honour commenting on the inferences to be drawn from the plea of guilty. His Honour expressed scepticism about the plea of guilty having proceeded from a sense of remorse as opposed to a consideration of the overwhelming case against her. Thus the argument does not accurately present his Honour's reasons. The broader issue remains, however, of whether adequate weight was given to the appellant's remorse.

52 There was unchallenged evidence from the prison chaplain that the appellant had shown genuine remorse, the chaplain showing that she was well aware of the distinction between genuine remorse and self pity for being caught. She also gave evidence of the appellant gaining insight into herself and what she had done, matters which would ordinarily encourage remorse. There was also the evidence of Mr Davis supporting existence of the genuine remorse. His Honour's finding was that:-

"I accept that you have shown now some remorse for what you have done and are entitled to the benefit of that factor in mitigation of your sentence".

In circumstances where the views of witnesses depended heavily on what they were told by the appellant and their observations of her behaviour, it is understandable that His Honour would proceed with caution in this case. While it may have been open to make a more positive finding about remorse, the applicant cannot demonstrate that his Honour's finding was in error or that his Honour failed to give proper weight to it as a mitigating factor in itself.[21] I note, however, that Counsel for Mrs Skura had put to his Honour that the remorse showed that rehabilitation was "well and truly underway". Consistently with what I see to be his Honour's approach generally to the rehabilitation issue, he did not expressly refer to the relevance of remorse in the context of that factor and in that sense may be said not to have given due weight to the applicant's remorse.[22]

Alleged error - circumstances of the service of the sentence

53 The final matter raised is whether his Honour failed to give sufficient weight to the fact that the applicant would be required to serve her sentence in virtual isolation from her child and family and would be required to serve her sentence in a foreign country without any useful emotional support. It was also put that his Honour failed to give adequate weight to the fact that the applicant would be required to serve her sentence without the level of treatment necessary and that her rehabilitation would be adversely affected. Counsel also submitted that his Honour failed to give adequate weight to the fact that the important relationship between the applicant and her child would be adversely affected as would any resumption of her marriage.

54 These issues had been raised with his Honour. In particular, counsel for Mrs Skura had put to his Honour that so long as she remained in Australia, her rehabilitation would be "put on hold".

55 In addressing these issues his Honour proceeded on the assumption that the appellant would not be transferred to Canada to serve her sentence. His Honour commented on the negative impact on the child of the separation noting that he accepted that the appellant was close to her daughter. His Honour also accepted the deprivation of contact with the daughter would affect her, the appellant, partially. He also accepted that the imminent departure to Canada of her husband and daughter would increase her isolation and exacerbate the effect of a sentence upon her.

56 His Honour, however, did not refer to the other issues raised before him - in particular, the absence of family support for any rehabilitation. I am persuaded that the absence of any reference to these issues again reflected his Honour's approach to the issue of rehabilitation and, as a result, am persuaded that his Honour did not give due consideration to the problems associated with treatment and rehabilitation created by the separation and by her presence in prison.

57 For the foregoing reasons, I have come to the conclusion that error has been shown. Leave to appeal should be given and the appeal allowed. It is, therefore, necessary to re-sentence the prisoner.

58 I refer to my observations about the seriousness of the offence. I am satisfied, however, that in sentencing Mrs Skura regard should be had to the fact that her personality disorders played a significant part in her offending . Bearing in mind that she had suffered sexual abuse from early childhood into her late teens, coupled with physical abuse, her disorders are hardly surprising. Mr Davis' evidence is in my view supported by the fact that the treating psychologist was reluctant to give evidence because she did not want to prejudice the relationship with the applicant. That fact would also support the inference that a therapeutic relationship had been developed and that the therapist believed that progress could be made in rehabilitating the plaintiff. The Crown chose not to challenge the explanation for the absence of Ms Leonard and did not invite the drawing of any adverse inferences. While these matters do not affect the culpability of Mrs Skura or the issues of general and specific deterrence, they pose significant questions when considering the sentencing factor of rehabilitation.

59 The problem of treating serious personality disorders was raised by the learned prosecutor before his Honour. Mr Davis agreed in cross-examination that they are "notoriously hard to treat". While that is plainly so, it is plainly in the public interest, where such disorders have played a part in serious criminal conduct, and may well in the future unless treated, that the sentence imposed gives due regard to the rehabilitation of the prisoner so far as that is possible having regard to all the sentencing objectives.

60 In the present case the seriousness of the crime requires heavy punishment, severe denunciation and great weight to be given to the issue of general deterrence. Great weight must also be given to special deterrence. A significant term of imprisonment must be imposed. At the same time the sentence should be one that aids rehabilitation. Here, the victim, her husband, has forgiven her, wants to help her rehabilitation and save the family. His and the daughter's involvement in the rehabilitation process is important but their separation from Mrs Skura "puts it on hold". The sentence should also offer some encouragement to the applicant. The seriousness of the criminality, however, after making due allowance for the fortunate lack of impact on the victim, means that a substantial sentence of imprisonment must still be imposed.

61 In my view a sentence of 6 years imprisonment and a non-parole period of 3 years strikes the appropriate balance. Such a sentence would meet the important considerations of punishment, denunciation and general and specific deterrence, while recognising the plea of guilty and remorse and the difficulty in serving the sentence. Importantly it will provide some encouragement to the important purpose of rehabilitation. The applicant's minimum term is reduced by 18 months (30%). The criminality involved prevents any greater reduction. The period during which she is eligible for parole is increased by six months so providing encouragement but also providing for an appropriately longer period of supervision.

[1] [1992] HCA 49; (1992) 174 C.L.R. 504

[2] [1996] VicRp 26; (1996) 1 V.R. 398.

[3] (1998) 2 V.R. 376.

[4] R. v. Vodopic [2003] VSCA 172, at [28]-[29], per Eames, J.A., with whom Winneke, P. and Phillips, J.A agreed; see too R. v. Danaher [2003] VSCA 119, at [16]-[18] per Ashley, A.J.A_.; R. v. Goodwin & McGregor_ [2003] VSCA 120, at [35].

[5] See, R. v. Cardona [1998] 2 V.R. 126, at 136-137, per Batt, J.A.

[6] See D.P.P v. Scott [2003] VSCA 25; (2003) 6 V.R. 217, at 219-210, per Phillips, C.J.; R. v. Heblos [2000] VSCA 229; (2000) 117 A.Crim.R. 49, at 57, per Eames A.J.A.

[7] R. v. Dowlan [1998] 1 V.R. 123, at 138-140, per Charles, J.A; R. v. Miller [1995] VicRp 60; (1995) 81 A.Crim.R 278; R. v. R. [1999] VSCA 101; (1999) 106 A.Crim.R. 288, at 291-292, per Tadgell, J.A..

[8] See [46].

[9] R. v. Clarke, unreported, Court of Criminal Appeal, 20 May 1975; R. v. Bernath [1997] 1 V.R. 271, at 278-279; R. v. Zane [2001] VSCA 72; (2001) 127 A.Crim.R 339, at 341-343; see Victorian Sentencing Manual, 2nd Ed, 1999, at 14.403.

[11] [1981] VicRp 17; [1981] V.R. 155.

[12] R. v. Yaldiz [1998] 2 V.R. 376.

[16] R. v. Mallinder (1986) 23 A.Crim.R. 179,183; R. v. Webb [1971] VicRp 16; [1971] V.R. 147,150.

[17] R. v. Pritchard (1973) 57 Cr.App.R. 492, 494.

[18] R. v. Marasovic, unreported, CCA Vic, 16/2/1982.

[19] R. v. Hutchinson (1994) 15 Cr.App.R. (S) 134,137.

[20] R. v. H (1995) 81 A.Crim.R. 88.

[21] R. v. Kevich 25.11.1977 CCA Vic; R. v. Lomax [1998] 1 V.R. 551, 561.

[22] R. v. Gray [1977] VicRp 27; [1977] V.R. 225, 231.