R v Vardouniotis [2007] VSCA 62

2 He admitted previous convictions from 1996 for cultivation of cannabis and possession of cannabis.

3 The learned sentencing Judge recorded convictions on all counts and sentenced the appellant as follows:

•

Count 1: six months' imprisonment;

•

Count 2: two years' imprisonment;

•

Count 3: a fine of $200;

•

Count 4: six months' imprisonment.

4 Her Honour directed that three months of the sentences imposed on counts 1 and 4 be served cumulatively upon each other and upon the sentence imposed on count 2, producing a total effective sentence of two years and six months. The non-parole period was fixed at 12 months. Her Honour said that this non-parole period was -

"...shorter than might be appropriate in other circumstances, to give you the opportunity to be supervised upon your release as you serve the balance of your term on parole within the community."

5 Leave to appeal against sentence was granted by a judge of this Court on 24 November 2006. The appeal itself did not come on for hearing until 22 March 2007, by which time the appellant had already served almost eight months of the 12 month non-parole period. As President of this Court, I am concerned that so much of the non-parole period should already have expired before the appeal was heard. Success on an appeal may be largely rendered nugatory if the whole or a substantial part of the non-parole period will have expired by the time the appeal is heard and determined.

6 The grounds of appeal are threefold, as follows:

1. The individual sentences, the total effective sentence and the non-parole period are manifestly excessive.

2. The sentencing Judge erred by failing properly to take into account the evidence of the appellant's age and ill-health.

3. The sentencing Judge erred by failing to take into account the fact that the appellant had served "dead time" by virtue of his acquittal in 1996 of the offence of trafficking.

Before dealing with the grounds, it is necessary to set out the circumstances of the offending.

The circumstances of the cultivation

7 The appellant was living in rented premises in Rye. When police executed a search warrant, they discovered an elaborate hydroponic set-up for the growing of cannabis. Twelve mature cannabis plants were growing, under 14 lights. They were in tubs of grow beads which were connected to a hydroponic system, powered by an electric water pump and an air pump. There were exhaust fans connected to silver ducting and the room was lined with plastic sheeting.

8 The total weight of the 12 plants was 31.28 kilograms. The commercial quantity is 25 kilograms or 100 plants. Analysis of the electricity supplied disclosed that there had been illegal bypass wiring of the meter, enabling the theft of electricity the value of which was approximately $7,000.

9 In a record of interview, the appellant made full admissions as to the cultivation of the cannabis found on the premises. He also volunteered admissions as to the cultivation of a crop the previous year. This act of cultivation formed the basis of Count 1. It was common ground that, but for the appellant's admission, the earlier cultivation would never have been known to police.

10 On its face, the scale and sophistication of the cannabis-growing equipment suggested a commercial enterprise. The true position, however, was quite otherwise. First, the appellant did not set up the growing equipment. Secondly, he was cultivating the cannabis solely for his own use.

11 Some years earlier, the appellant had become addicted to cannabis as a means of self-medication for chronic pain and major depression. In his capacity as a minister of the Greek Orthodox Church, he had visited a parishioner who lived at the house in Rye and was dying of cancer. Before his death the parishioner had said to the appellant that he should use the house at Rye as a place to live, and invited him to use the cannabis-growing installation which the parishioner had established. In the record of interview, the appellant said that the only thing he had purchased for the purposes of the cultivation was some chemicals. When asked about his purpose in growing the cannabis, the appellant told police that he was sick. The cannabis -

"makes me relief [sic]. I'm alone, sick, depressed, what can I do to pass the time and the health problems?"

He emphatically denied any knowledge of or interest in trafficking.

12 Since the Crown did not challenge these statements, it is difficult to understand why the prosecutor made the following submission on the plea:

"The difficulty will be of course that to argue that a commercial quantity is for one's own use in the context of this sort of set-up is very difficult for the prisoner. The Crown would point to the nature of the set-up without suggesting trafficking, because we don't.

But it's very difficult for the accused to suggest this is just some sort of a simple or unsophisticated home-growing of cannabis for one's own use. This is, on the face of it, has all the indicators of a sophisticated hydroponic set-up, which is often associated with commercial trafficking."[1]

13 On the undisputed evidence, the appellant had simply - opportunistically - made use of a pre-existing set-up. That it was a sophisticated set-up was undoubtedly true but completely irrelevant, given that the appellant was merely cultivating the cannabis for his own use. Since that fact was unchallenged, it was quite inappropriate for the Crown to suggest that the sophisticated nature of the set-up made it "very difficult" for the appellant to argue that he was cultivating for his own use. A submission of that kind was calculated to cast doubt on the veracity of the appellant's account, when there was no basis for doing so. In the event, her Honour accepted that there was no evidence to contradict the appellant's account, namely, that he grew the cannabis for his own use and had no intention to sell it.

The appellant's mental illness

14 The second ground of appeal concerns the ill-health of the appellant. On the plea, defence counsel relied on three medical reports, from a psychologist, a psychiatrist and a general practitioner respectively. The first two of these were of particular importance. They showed that the appellant was suffering at the time of sentence - and had been suffering when he cultivated the cannabis - from serious psychiatric conditions. He was suffering from paranoid schizophreniform disorder, major depressive illness, panic disorder and substance abuse. According to the reports, he was in need of ongoing psychiatric care, with both pharmacological management of his symptoms and supportive psychotherapy.

15 Ms Carla Lechner, Clinical and Forensic Psychologist, described the appellant's current (at July 2006) condition as follows:

"Whilst he seems capable of reflecting on the impact that his actions have on both himself and others, he is so depressed that he seems not to care. [The appellant's] mood state appears to overwhelm him, he is reluctant to think too deeply about what has contributed to his depression, such are his feelings of failure, shame and inadequacy. He seems to have given up any hope of exerting control over his destiny and to this extent is passive and dependent in nature. His self-esteem is extremely low."

16 Ms Lechner had administered the Beck Depression Inventory, a self-report questionnaire canvassing a range of psychological and physiological symptoms of depression. On the basis of his responses, the appellant's score fell into the "extreme" range of depression. Ms Lechner said this rating was consistent with his presentation and with her diagnosis of clinical depression. Symptoms identified by the appellant included:

"i) sleep and appetite disturbance, anergia, fatigue and loss of libido;

ii) loss of interest and pleasure;

iii) agitation, irritability, indecisiveness and concentration difficulties;

iv) feelings of sadness, pessimism, failure, punishment, self-dislike, self-criticalness and worthlessness;

v) tearfulness; and

vi) thoughts of suicide but no intention of acting on these thoughts."

17 According to the medical reports, the appellant had become addicted to cannabis from about 1995 onwards, following a series of personal set-backs - injury to his neck and lower back; the loss of his family home; the collapse of his marriage; and the death of his mother. The appellant began to use cannabis for the relief of both pain and anxiety. (Because of gastric problems, he cannot tolerate analgesics.) He spent nine months in prison in 1996 awaiting trial on the earlier charges. While in prison he became extremely depressed, and developed psychotic symptoms and a high level of anxiety in addition to his depressive illness. Following his release from prison, he had lived a reclusive life, feeling "immense shame and embarrassment" about his situation. He relapsed to cannabis use as a form of self-medication against both his physical and mental problems, thus inadvertently aggravating and exacerbating his depression and psychosis. The more depressed he became, the more reliant he was on cannabis.

18 According to Ms Lechner, the appellant had very little will to live and no sense of a future. He felt he would be "better off dead" but had not committed suicide because of his religious beliefs. Ms Lechner's conclusion was as follows:

"From a clinical perspective, his rehabilitation would best be served by ongoing psychiatric care in the community. His account that the cannabis was for his personal use seems to be genuine and he expresses regret for his actions. [The appellant] is on a range of psychotropic medications. He may also benefit from supportive personal counselling that encourages him to reconnect with the broader community. A period of immediate incarceration is likely to lead to a further deterioration in his mental health and may precipitate suicidal thoughts and/or gestures." (emphasis added)

19 The assessment of the psychiatrist, Dr Mouratides, was in the following terms:

"He remains anxious, depressed and continues to have auditory hallucinations. He continues to be in pain and to have suicidal thoughts.

I think that [the appellant] has a dependent personality disorder and is unable to tolerate stress. I think that his illegal activities were not the result of greed and a desire for financial gain but were the expression of his self-destructiveness and decompensation under pressure. (His actions are not unlike the actions of an alcoholic, momentary gratification in the context of known and willing long term self-destruction.)

I think that [the appellant's] prognosis is poor, in view of

• his lack of response to treatment

• chronicity of symptoms

• somatization of depression

• lack of social supports.

I think that incarcerating [the appellant] will only cause a further decompensation in his condition. I think that this unfortunate man has suffered enough. I do not think he will ever be able to overcome his guilt and his shame and lead a happy and productive life." (emphasis added)

The relevance of the Tsiaras principles

20 In R v Tsiaras,[2] one of the earliest decisions of the Court of Appeal, the Court (Charles and Callaway JJA and Vincent AJA) identified five ways in which serious psychiatric illness not amounting to insanity was relevant to sentence:

"First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. [Fifthly], psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."[3]

21 It is apparent from the unchallenged medical evidence in the present case that most, if not all, of these principles were of potential relevance to the sentencing task. Yet neither defence counsel on the plea, nor the learned sentencing Judge in her sentencing reasons, made any reference to Tsiaras or the principles there enunciated. The prosecutor did mention Tsiaras, but only in the briefest terms, as follows:

"... [T]here doesn't seem to be any suggestion of mental illness or anything that caused the offending.

It seems more to be a suggestion that's the background to the offending. Anderson's case and those principles, Tsiaras, that deal with moderating general deterrence, have limited application in this sort of case, in my submission.

There are a series of cases of course that deal with how difficult one would find a term of imprisonment with particular illnesses. It might be that your Honour would moderate any sentence to take into account harshness of a term of imprisonment. In the end all of those factors can be dealt with by the authorities in terms of appropriate - unfortunately it sounds harsh, but the Court in the end has to impose an appropriate sentence taking all the matters into account."[4]

The Crown's submission was that the Court had no choice but to impose a term of immediate incarceration. That position has been maintained on the appeal.

22 The learned Judge set out the substance of the medical reports in her sentencing remarks, and noted the defence submission that the appellant's state of health should be taken into account. Her Honour noted that the appellant wished to cure his addiction and that there were real grounds for optimism that he would succeed. Her Honour said she was satisfied that the chances of his rehabilitation were reasonably good. The sentencing remarks continued:

"25. However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

26. It was submitted by your counsel that the penalty imposed by the Court should be modified by the mitigating factors which exist in your case. These were summarised by your counsel as being your age, your personal history, the support of your family, your genuine remorse, your early plea of guilty and the fact that you have not used marijuana since the commission of this offence. Your counsel submitted that the circumstances of your case made a wholly suspended term of imprisonment a proper exercise of the sentencing discretion.

27. The prosecutor submitted that the circumstances of this case call for an immediate term of imprisonment and that appropriate weight should be given to general and specific deterrence.

28. In my judgment a wholly suspended sentence in this case would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment.

29. These are without doubt serious offences. In all the circumstances I have no alternative to the imposition of a custodial sentence. ..." (emphasis added)

23 In my opinion, the existence of the appellant's serious psychiatric condition, both at the time of the offending and at the time of sentencing, meant that each of the Tsiaras principles had to be considered carefully before the sentencing decision was arrived at. For the reasons which follow, those principles had a direct and immediate bearing on the sentencing task. Unfortunately, the learned Judge received no assistance at all from defence counsel and only the most limited assistance from the prosecutor in this respect. As appears from her Honour's sentencing remarks (above), defence counsel relied on a variety of matters in mitigation but made no mention of the mental illness at all, save that the appellant was in need of "a great amount of assistance".[5] The failure by the defence to call in aid the Tsiaras principles seems inexplicable. Few cases would call as strongly for their application as this case did.

24 The first of the Tsiaras principles is concerned with moral culpability. In my view, this case provides a prime example of offending which was explained - indeed, caused - by the offender's mental illness. As the medical reports made plain, it was the very existence of the major depression and (subsequently) the paranoid schizophreniform disorder which created the appellant's need for cannabis and led to his dependency on it. That was why he had become a cultivator. Moreover, the severity of the depression must inevitably have affected the appellant's ability to exercise appropriate judgment[6] and to appreciate the wrongfulness of what he was doing.[7] In short, the impaired mental functioning from which the appellant was suffering made his conduct in cultivating cannabis very much less culpable than the same conduct engaged in by a person not suffering from a mental illness.

25 The third Tsiaras principle concerns general deterrence. It is expressed as follows:

"A prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time."

This does not mean that general deterrence is excluded altogether as a sentencing consideration. The correct approach - as explained by Batt JA in Yaldiz[8] and subsequently followed in this Court[9] - is as follows:

"...[G]eneral deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap."

26 The need for "sensible moderation" of general deterrence has been explained in a number of different ways. In Mooney, Young CJ said that in the case of an offender suffering from a mental disorder or abnormality, general deterrence should often be given very little weight because -

"such an offender is not an appropriate medium for making an example to others."[10]

In R v Wright, the New South Wales Court of Criminal Appeal described this as "an accepted principle of sentencing". [11]

27 In Matthews, the New South Wales Court of Criminal Appeal (Wood CJ at CL, Sperling and Hislop JJ) said that the reason for giving less weight to general deterrence in the case of an offender suffering from a mental disorder or abnormality -

"lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice." [12]

28 In other words, the considerations which reduce moral culpability are also likely to reduce the weight to be given to general deterrence. It is true, as the prosecutor pointed out to her Honour, that decisions of this Court have emphasised that general deterrence is of special importance in cases of cultivating a commercial quantity of cannabis and that, in the absence of "exceptional countervailing factors", the offence generally requires the imposition of an immediate custodial sentence.[13] But if the offender in question is not an appropriate vehicle for general deterrence, it must follow that the general rule can have little or no application.

29 In the present case, in my view, general deterrence had almost no part to play in the sentencing decision, precisely because the appellant was not an appropriate vehicle. As Allen J (with whom Sully J agreed) said in R v Engert:

"General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: 'Well, you would not expect him to get the same sentence as someone else'."[14]

30 I turn next to the fifth Tsiaras principle, concerning the impact of imprisonment on the appellant. Having regard to the descriptions of his mental state, it could hardly be doubted that the appellant's illness would have the result that imprisonment would "weigh more heavily on [him] than it would on a person in normal health." It is difficult to imagine how someone in the appellant's condition would cope with the rigours of prison life.

31 A related, but distinct, sentencing consideration is also relevant here. It is that time in prison would exacerbate the appellant's mental illness. It has been recognised since R v Smith[15] that ill-health will be a factor tending to mitigate punishment when there is a "serious risk of imprisonment having a gravely adverse effect on the offender's health". That consideration was not adverted to by either counsel or by the learned Judge.

32 As already noted, his first period of imprisonment had aggravated his depression and precipitated his psychosis. It would be rare for a sentencing court to have such clear empirical evidence about the likely adverse impact of prison on the health of the person to be sentenced. But there was, in addition, up-to-date expert opinion to the same effect. Both Ms Lechner and Dr Mouratides had expressed the view that incarceration was likely to lead to a further deterioration in the appellant's mental health.

33 Finally, the second Tsiaras principle is to the effect that the mental illness may have a bearing on the kind of sentence to be imposed and the conditions in which it should be served. This principle was also relevant here, for similar reasons. First, prison had in the past had a devastating effect on the appellant's mental health and was likely to do so again. Secondly, Ms Lechner had expressed the view that the appellant's rehabilitation "would be best served by ongoing psychiatric care in the community". For both these reasons, the appellant's mental illness meant that imprisonment was an inappropriate disposition.

Conclusion

34 In my opinion, the learned sentencing Judge fell into error by failing to take into account the relevant considerations to which I have referred, relating to the appellant's mental illness. Mr Trapnell for the Crown argued forcefully that the sentence imposed was so lenient in the circumstances that this Court should be satisfied that her Honour did have regard to the Tsiaras principles, notwithstanding that those principles were not mentioned in the sentencing remarks.

35 I am not persuaded by this submission. In her sentencing remarks (see para [22] above), the learned Judge treated the issues of general deterrence and moral culpability (denunciation) as considerations to be taken into account separately from the "personal" matters to which she had earlier referred. For the reasons I have given, however, the state of the appellant's mental health had a direct and immediate bearing on those very issues. The one could not be considered without the other. Further, there is nothing in the sentencing reasons to suggest that her Honour considered the third and fifth Tsiaras principles before deciding that a wholly-suspended sentence was not appropriate.

36 I would therefore uphold the second ground of appeal, which makes it unnecessary to consider the first and third grounds. There being specific error, the sentencing discretion is reopened. I turn therefore to the question of re-sentencing.

Re-sentencing

37 Much emphasis was placed - both on the plea and before us - on the fact that the appellant had a prior conviction for cultivation. This was plainly relevant, but its significance had to be assessed in the same factual context as did the counts for which he was being sentenced. According to the sentencing remarks which followed the 1996 conviction, the appellant had been invited, by an acquaintance of his, to stay with him in the country. The acquaintance had three plots of cannabis growing when the appellant arrived. While the appellant had "helped to complete the establishment of the cannabis operation" and had "tended to the growing plants", he was only involved in assisting in the cultivation of cannabis for his own use. The 2006 medical reports made clear that this had been his first introduction to cannabis.

38 He was by then already suffering from depression, and he had started using cannabis for the relief of both pain and anxiety.

39 Further, the culpability of his resumption of cultivation in 2004 was much reduced by his state of severe depression. That resumption was, in my view, much more readily excusable than it would have been for someone not so afflicted. For a person who was in such emotional distress as to be thinking of suicide, the possibility of some relief by use of cannabis would be very likely to overbear the self-restraint which would ordinarily be expected of someone who had previously been punished for similar conduct.

40 Given the appellant's serious mental illness, both at the time of the offending and at the time of sentence, I consider that it was, and is, inappropriate for him to be in custody. As I have said, prison was inevitably going to be very harmful to the appellant. Most significantly, it was a course which ran directly contrary to expert medical opinion about how best to advance his rehabilitation, both from depression and from drug dependency.

41 I would impose the same sentences as the learned sentencing Judge but would order that the whole of the sentences be suspended. The appellant should be released immediately.

42 I have had the considerable advantage of reading in draft the judgement of Maxwell P. I have concluded that, substantially for the reasons given by his Honour, sentencing error has been disclosed and the sentencing discretion is therefore re-opened. I have concluded, too, that upon re-sentencing the appellant should be released forthwith. For my part, however, I would achieve that outcome by ordering that the whole of the remaining portion of his sentence be suspended, rather than by way of re-imposing the sentences ordered below but then wholly suspending the sentences.

43 In reaching my conclusion that sentencing error has been demonstrated by the appellant I am not, however, persuaded that her Honour entirely overlooked the principles discussed in Tsiaras. I agree with Mr Trapnell that her Honour probably did have some regard to those principles. However, as the reasons of the President clearly demonstrate, there was insufficient emphasis placed on the Tsiaras principles by her Honour. That no doubt reflected the inadequacy of the analysis of the relevant issues in the case which characterised the submissions of both defence counsel and the prosecutor.

44 As against the very powerful mitigating factors which the President has highlighted there were serious aggravating factors, not least being the prior conviction of the appellant and his admission of cultivating, on this occasion, a commercial quantity of cannabis, an offence carrying a maximum of 25 years' imprisonment. It was, in my opinion, a case in which a sentencing judge might quite properly have concluded that, notwithstanding all of the ameliorating factors which the President has identified and the substantial moderation of principles of general and specific deterrence, a term of immediate imprisonment was justified in the circumstances. That said, the factors identified by the President justify a merciful sentence upon re-sentencing, and I am persuaded that no greater period of actual imprisonment than the period he has now served need be ordered. The order that in my opinion best meets the justice of this appeal would be suspension of so much of the sentence as has not already been served.

45 I have had the advantage of reading the draft judgments of Maxwell P and Eames JA. I agree with Maxwell P, for the reasons that he gives, that sentencing error occurred and that it is therefore necessary for this court to re-sentence the appellant.

46 Although her Honour's sentencing reasons referred to the reports of Ms Carla Lechner, a clinical and forensic psychologist and of Dr Mouratides and Dr Gouras, there is no analysis in the sentencing reasons as to the manner in which the principles in R v Tsiaras[16] were applied. On the facts of this case it was necessary for her Honour to consider the effect of the appellant's mental illness on his moral culpability, the extent to which the principle of general deterrence should be moderated in light of his psychiatric condition, and the effect of a prison sentence upon him.

47 I agree with Eames JA, that if the learned sentencing Judge had undertaken this analysis, it would have been within her Honour's discretion to conclude that a term of imprisonment should be imposed on the appellant, despite his mental illness, because of the gravity of the offences and his prior convictions for cultivating and possessing cannabis.

48 The conclusion that there was sentencing error re-opens the sentencing discretion. My initial view was that the court should impose the same sentence as her Honour and that the appeal should be dismissed. However, for the reasons given by Eames JA, I am persuaded that the appellant should not be required to serve a longer period of imprisonment than he has already served. I therefore agree with Eames JA that the portion of the sentence which has not been served should be suspended.

[1] T 11-12.

[2] [1996] VicRp 26; [1996] 1 VR 398.

[3] Ibid at 400.

[4] T 10.

[5] T 21, 22.

[6] R v Hamid [2002] VSCA 9 at [11] per Buchanan JA (with whom Winneke P and Vincent JA agreed); R v Israil [2002] NSWCCA 255 at [23] per Spigelman CJ; R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254] per Wood CJ at CL; Ayoubi v R [2006] NSWCCA 364 at [27] per Latham J.

[7] R v Sebalj [2006] VSCA 106 at [20].

[8] R v Yaldiz [1998] 2 VR 376 at 381 per Batt JA (with whom Winneke ACJ and Hampel AJA agreed), at 383 per Winneke ACJ.

[9] R v Lewis (Unreported, 20 April 1998, Court of Appeal, Winneke P, Brooking and Charles JJA) at 9; R v Swingler [2001] VSCA 26 at [13]; R v Chambers [2005] VSCA 34; [2005] 152 A Crim R 164 at [26]; R v Ahmed [2006] VSCA 200 at [28].

[10] R v Mooney (Unreported, 21 June 1978, Full Court) cited in R v Anderson [1981] VicRp 17; [1981] VR 155 at 160.

[11] (1997) 93 A Crim R 48 citing R v Anderson supra at 160-161 and Scognamiglio v R (1991) 56 A Crim R 81 at 86. See also Thompson v R [2005] WASCA 223; (2005) 157 A Crim R 385 at [55] per Steytler P.

[12] [2004] NSWCCA 112; (2004) 145 A Crim R 445 at [22], citing Henry supra at [254] per Wood CJ at CL.

[13] R v Clohesy [2000] VSCA 206 at [8]; DPP v Rzek [2003] VSCA 97 at [30]; DPP v Hamad [2005] VSCA 118 at [14].

[14] (1995) 84 A Crim R 67 at 72.

[15] (1987) 44 SASR 587 at 589 per King CJ, applied in Bailey v R (1988) 35 A Crim R 458 at 462 per Lee J, and Eliasen v R (1991) 53 A Crim R 391 at 396 per Crockett J.

[16] [1996] VicRp 26; [1996] 1 VR 398.