R v Verdins; R v Buckley; R v Vo [2007] VSCA 102

CRIMINAL LAW - Sentencing - Dishonesty offences - Whether depression or abuse of drug of dependence productive of offending conduct - Whether sentence offended against principle of parity - Appeal dismissed.

CRIMINAL LAW - Sentencing - Murder - Whether appellant suffering from schizophrenia at time of offending or at time of sentence - Whether evidence of remorse - Error of law established - Sentencing discretion re-opened - No justification for lower sentence than that imposed by sentencing judge.

1 The proper exercise of the sentencing discretion frequently calls for a consideration of the offender's mental state at the time of the offending or at the time of sentence or both. In R v Tsiaras,[1] one of the earliest decisions of the Court of Appeal, the Court (Charles, Callaway and Vincent JJA) 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."[2]

2 This statement of principle has since been applied many times, by courts in Victoria and in other States. In the process, there has been both elaboration and refinement of the propositions enunciated in R v Tsiaras. The three appeals before the Court involve various aspects of the R v Tsiaras principles and, for this reason, were heard together. They provide the occasion for a review of the case law since R v Tsiaras and for a restatement, in somewhat revised form, of the guiding principles which R v Tsiaras laid down.

What kind of mental condition?

3 The R v Tsiaras principles were enunciated by reference to "serious psychiatric illness not amounting to insanity". This was entirely understandable, since R v Tsiaras itself concerned schizophrenia, a serious psychiatric illness. But the quite erroneous view developed that what was said in R v Tsiaras was intended to, and did, "cover the field" in relation to mental illness and sentencing.

4 As a result, sentencing judges have often been faced with the argument that the sentencing considerations identified in R v Tsiaras have no application unless the offender's condition constitutes a "serious psychiatric illness" in the R v Tsiaras sense. Indeed, that very issue has been raised on these appeals. In R v Verdins, for example, the Crown submitted that it was -

"... a moot point whether depression in any given case amounts to a serious psychiatric illness ...".

In R v Buckley too, the Crown argued that it was -

"... questionable ... whether the appellant's mental state amounts to a 'serious psychiatric illness' for the purposes of applying the principles in Tsiaras ..."

5 The sentencing considerations identified in R v Tsiaras are not - and were not intended to be - applicable only to cases of "serious psychiatric illness." One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.

6 The Court in R v Tsiaras referred to R v Anderson,[3] where Young CJ and Jenkinson J adopted the following statement of Young CJ in R v Mooney:

"In sentencing generally it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other. But in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given very little weight. ... General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."[4] (emphasis added)

7 Clearly, the phrase "mental disorder or abnormality" is apt to cover a wide variety of conditions.[5] In Engert,[6] the New South Wales Court of Criminal Appeal spoke of "mental disorder". In Channon v R,[7] Brennan J spoke of "an offender's psychiatric abnormality". In Lauritsen,[8] the Western Australian Court of Criminal Appeal adopted the statement by Malcolm CJ in Watson v R,[9] that -

"... the presence of psychiatric or psychological factors can be an important sentencing factor." (emphasis added)

8 The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious.[10] There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.

9 In R v Yaldiz, Winneke ACJ (with whom Hampel AJA agreed) said:

"Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."[11] (emphasis added)

10 In Wright, the New South Wales Court of Criminal Appeal said that the applicability of these sentencing considerations did not depend on the presence of a "significant mental illness". Rather -

"... the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case." [12] (emphasis added)

Likewise, in R v Kasulaitis, the Court (per Batt JA) accepted that considerations of general and specific deterrence should be moderated -

"in view of the [offender's] psychological state at the time albeit that his state did not amount to psychosis or mental illness." [13]

11 In R v Skura, this Court (per Eames JA) said:

"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."[14]

12 In R v Sebalj, Maxwell P said that it would -

"... detract from the utility and flexibility of the propositions set out in Tsiaras if there were to be undue focus on the classification of the particular condition, that is, on whether or not it was a recognised psychiatric illness of one kind or another. ... What matters in any given case is not the label to be applied to the psychiatric condition but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of the offence and/or at the time of sentence."[15]

13 Where a diagnostic label is applied to an offender, as usually occurs in reports from psychiatrists and psychologists, this should be treated as the beginning, not the end, of the enquiry. As we have sought to emphasise, the sentencing court needs to direct its attention to how the particular condition (is likely to have) affected the mental functioning of the particular offender in the particular circumstances - that is, at the time of the offending or in the lead-up to it - or is likely to affect him/her in the future.

General deterrence as a sentencing consideration

14 As noted earlier, proposition 3 in R v Tsiaras was in these terms:

"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."

15 This proposition, too, was initially misunderstood. It was thought to exclude general deterrence altogether as a sentencing consideration. No such absolute rule was intended, as Winneke ACJ explained in R v Yaldiz:

"It is not appropriate to simply fasten on to the words 'recognised psychiatric disorder' and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused."[16]

16 Thus, a person suffering from schizophrenia may not be an appropriate vehicle for general deterrence if the illness -

"obscured the mental intent to commit the crime ..."[17]

17 The correct approach - as explained by Batt JA in R v Yaldiz[18] and as subsequently followed in this Court[19] - is as follows:

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

18 The need for "sensible moderation" of general deterrence has been explained in a number of different ways. In R v Mooney, as we have seen, 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."[20]

In Wright, the New South Wales Court of Criminal Appeal described this as "an accepted principle of sentencing law".[21]

19 In R v Mooney, Lush J said:

"The concept of the deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Regard to this consideration must, I think, be relevant to the use of the law as an instrument of social administration. Its significance in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."[22] (emphasis added).

"... the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great."[23] (emphasis added)

The last proposition was recently applied in Benitez v The Queen.[24] Similar views have been expressed by the South Australian Court of Criminal Appeal.[25]

21 In Engert, Allen J (with whom Sully J agreed) said:

"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'."[26]

22 In R v 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 lay 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."[27]

Reducing moral culpability

23 Proposition 1 from R v Tsiaras was that serious psychiatric illness might reduce the moral culpability of the offence, as distinct from the offender's legal responsibility for it. As the New South Wales Court of Criminal Appeal (Spigelman CJ) said in R v Israil -

"To the extent that mental illness explains the offence ... then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law." [28]

24 Unsurprisingly, the case law reveals a variety of judicial approaches to this issue. On the one hand, it has been held to be sufficient to reduce moral culpability that the mental disorder affected the offender's ability to exercise appropriate judgment.[29] On the other hand, it has been said that -

"... moral culpability would only be lessened where there is a causal connection between the psychiatric illness and the commission of the offence ..., in the sense that the psychiatric condition must have contributed to the commission of the offence."[30]

25 It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender's conduct. The effect on the Court's assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held - correctly, in our view - to be capable of reducing moral culpability.

26 Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment;[31]

(b) impairing the offender's ability to make calm and rational choices,[32] or to think clearly;[33]

(c) making the offender disinhibited;[34]

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;[35]

(e) obscuring the intent to commit the offence;[36] or

(f) contributing (causally) to the commission of the offence.[37]

As we have said, this is not to be taken as an exhaustive list.

The impact of prison on the mentally ill offender

27 In R v Smith, King CJ identified two different ways in which ill-health might be a factor mitigating punishment:

"Generally speaking ill-health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."[38]

28 Proposition 5 from R v Tsiaras captured the first of these, as follows:

"Psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health."

This proposition requires neither explanation nor qualification. Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.

29 In our view, the second possibility identified in R v Smith also has potential relevance to the mentally ill offender. Imprisonment might well cause an existing mental condition to deteriorate. In the recent case of R v Vardouniotis,[39] for example, there was evidence that a previous period of imprisonment had aggravated the offender's depression and precipitated psychosis.

30 This further consideration should be expressed as a new proposition 6, as follows:

"Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment."

Restatement of R v Tsiaras principles

31 In the light of the preceding discussion, the R v Tsiaras principles can now be reformulated, as follows.

32 Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[40]

5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

R v VERDINS

33 The appellant pleaded guilty to one count of murder and one count of manslaughter by unlawful and dangerous act. He was sentenced to 18 years' imprisonment for the murder and nine years' imprisonment for the manslaughter. The learned sentencing Judge ordered that five years of the sentence for manslaughter be served cumulatively on the sentence for murder, making a total effective sentence of 23 years. The sentencing Judge fixed a non-parole period of 18 years.

34 The murder victim was the appellant's former partner (L). They had met in 1997 when she was 17 and he was 18. In 2000, they began living together in the appellant's family home. In 2001, L had a romantic encounter with another man, which provoked intense jealousy on the part of the appellant. He became increasingly suspicious of her and began following her home from work. When she subsequently confirmed that she was seeing somebody else, his behaviour became increasingly obsessive. He made numerous telephone calls to her and sent her numerous messages, professing his love for her and expressing his desire to re-establish their relationship.

35 On 17 September 2003, the appellant sent L an email saying that he wished to see her one last time. They met up and - in circumstances which remained unclear - the appellant subsequently murdered L, by shooting her twice in the chest using a homemade pen pistol. The appellant drove his car along a freeway at speeds of between 180 and 200 kilometres per hour. He drove his car into the rear of the vehicle driven by the second victim, which burst into flames after the collision and rolled before stopping upside down on the median strip. The second victim died by incineration inside the burning vehicle. L's body was found in the appellant's car.

36 The learned sentencing Judge noted the submission, made on the plea, that the Court should take into account that the appellant was depressed at the time of his offending. Her Honour said:

"Senior counsel making the plea on your behalf submitted that the court should take it into account that you were depressed at the time of your crimes. I accept the medical evidence confirming your depressed state from Dr Jenkins, a psychiatrist at the Alfred Hospital, who diagnosed you to be suffering from major depression some two days after the incident, and Dr Lester Walton, a psychiatrist who agreed with Dr Jenkins. Dr Walton agreed that you were properly described as having suffered from a major mental disorder.

Mr Watson-Munro examined you on 25 August and 9 September 2005. It was his opinion that you were suffering from a major psychological decompensation as a result of your inability to come to terms with the end of your relationship with [L]. He said that your downward spiralling mood had been exacerbated by substance abuse involving ecstasy, amphetamines and alcohol. Your anxiety in his view would have impacted on your ability to function in the community and to solve problems. Mr Watson-Munro told the court that you were perhaps more vulnerable than most people to the effects of a breakdown of a relationship.

I have taken your depression into account in sentencing you. The authorities make it clear that your depressed condition moderates the requirement for general deterrence in this case, even though no psychiatric condition has been identified."

37 Counsel for the appellant accepted that this was a convenient summary of the expert evidence. He contended that, in these circumstances, it was only appropriate that the weight given to general deterrence as a sentencing consideration be moderated or reduced. He relied on R v Tsiaras, R v Yaldiz, R v Sebalj and Thompson v The Queen. He further contended that the appellant's mental disorder greatly reduced his moral culpability, but that the sentencing Judge had not dealt at all with that issue.

38 Counsel for the appellant pointed out that, having expressed an intention to moderate the weight to be given to general deterrence, her Honour then went on to say the following:

"Others in the community must nevertheless be deterred from responding to the breakdown of a relationship in the way you reacted. Behaviour such as yours is totally unacceptable.

...

Whilst your driving may have been compromised, as senior counsel for the prosecution pointed out, you chose to shoot yourself in the mouth and to drive dangerously on the freeway. You did not choose to kill yourself in a way that would not endanger others. As a result of your choice, an innocent man driving home that night was killed. Once again, it is important that other members of the community must be deterred from using their vehicles on a public highway in such a way."

Counsel for the appellant's complaint is that in neither of these passages did the learned Judge state that the weight being given by her to general deterrence was being moderated or reduced at all. This, it is contended, was sentencing error.

39 In our view, this submission is without substance. There was no inconsistency between, on the one hand, saying that the appellant's depression moderated the requirement for general deterrence and, on the other, emphasising the need for others to be deterred from reacting violently to the breakdown of a relationship and, in particular, from using their vehicles on a public highway in such fashion. To moderate the significance of general deterrence did not mean to eliminate it altogether. The learned sentencing Judge declared that she had treated the appellant's condition as moderating the requirement of general deterrence and, in our view, the sentence imposed does not suggest otherwise.

40 As to moral culpability, her Honour did say that she had taken the appellant's depressed state into account as a "mitigating factor". This is to be taken as meaning that she regarded the seriousness of his conduct, or his culpability for it, as being reduced because of his depression. Again, there is nothing in the sentences imposed to suggest otherwise. There would be a range of views reasonably open as to the extent to which the appellant's mental condition did reduce his moral culpability. For example, it was not suggested that the appellant was unaware of exactly what he was doing or that what he was doing was wrong.[41] On the other hand, it may be assumed that his judgment was significantly affected. As the sentencing Judge noted, the attack on L was premeditated. The appellant brought with him a pistol and ammunition to a pre-arranged meeting. He then shot her not once but twice and there was an interval between the shots, during which he got rid of a fired cartridge and reloaded the weapon.

41 The final ground of appeal was that the sentence was manifestly excessive. In essence, this submission relied on the matters which we have already considered, concerning general deterrence and moral culpability. Counsel for the appellant also relied on the other mitigating factors referred to by the sentencing Judge, namely, his youth; his early pleas of guilty; his remorse; and his good prospects of rehabilitation. All of those matters were taken into account and, as we have already indicated, we think that the sentences imposed were well within the range open to her Honour, giving full weight to the significance of the mental impairment.

42 It was for these reasons that we announced at the conclusion of argument that the appeal would be dismissed.

R v BUCKLEY

43 The appellant pleaded guilty in the County Court to one count of aggravated burglary, 21 counts of burglary, one count of handling stolen goods, one count of obtaining property by deception and 78 counts of theft. On the count of aggravated burglary, he was sentenced to two years and six months' imprisonment; on the counts of burglary, to sentences ranging from three months to two years; and on the counts of theft, to sentences ranging from seven days to 18 months. The total effective sentence was five years, and the non-parole period three years.

44 There were two reports before the Court concerning the appellant's mental state. The first was a Forensicare report dated 12 January 2004, obtained by the Magistrates' Court with respect to proceedings in early 2004 concerning a breach by the appellant of an intensive correction order. The report was written after he had commenced committing the offences with which we are concerned. The breach of that order had taken place in mid-2003, but only four of the 102 counts currently under consideration occurred in 2003, and three of those four were in November 2003.

45 According to the report, the appellant had had significant substance abuse problems in the period 2000-2002. He had become a daily user of amphetamines. He reported feeling depressed as he was decreasing his use of amphetamines. He also reported a psychotic episode induced by amphetamines, with paranoid symptoms. His daily use of amphetamines had caused "significant impairment in his occupational, financial and relationship functioning." The conclusion of the report was that the breach of the ICO had occurred while the appellant was experiencing a depressive episode which resulted in him "not prioritising (compliance with) his ICO over his employment." By early 2004, however, his mood was reported to be improving.

46 The other report was from Mr Ian Joblin, a forensic psychologist, who assessed the appellant in October 2005, before his plea hearing took place in the County Court. Mr Joblin noted that there appeared to be a significant connection between the appellant's "virtually uncontrolled use of amphetamine(s)" and the dishonesty offences. Mr Joblin's assessment was in these terms:

"At the time of my interview with [the appellant] he presented reasonably well. As indicated above, there was no evidence of psychological dysfunction with him. He is certainly not psychotic. He is a man of reasonable intellect. I did not consider that he would fulfil the diagnostic criteria for a personality disorder.

Against that, one notes the offending. Basically it is my strong opinion that the offences occurred in a context and it was that context that was responsible for the psychological state related to the offending. Outside that context in my opinion there would be a question as to whether the offending would have occurred.

That context began when he found his best friend, a man he had trusted for many years, with his wife. This was totally unconscionable for him. He reported that he simply could not accept that his best friend would do that to him, nor that his wife would. He reported that at that time because the business had lost the insurance company contract he had been working extremely long hours and he acknowledged that she probably became lonely. In his mind that does not excuse her behaviour.

From that point there were a host of difficulties. He could not return to work at his business and that was sold at a large loss. He remained in the house for some time but then moved to live with his parents and the house was sold. He had to pay his wife in settlement. He sold his assets. Importantly in trying to deal with all of this he developed what became a serious amphetamine addiction from what had previously been a use of amphetamine to assist him in working long hours. He then simply deteriorated in his psychological state. Any money he had he spent on amphetamine or gambling. His resources were quickly depleted. Under these conditions the offences occurred.

These offences, therefore, were based on a need to support an amphetamine and gambling habit. [The appellant] reported that all the items taken were either sold prior to being taken or taken on order. [The appellant] reported considerable regret about any persons present in the addresses when he was there." (emphasis added)

47 Counsel for the appellant argued that these reports showed that -

"... a significant motivating factor lying behind the offending was the appellant's depression, something that the appellant self-medicated by means of amphetamine."

The evidence established, so it was submitted, that the appellant -

"... suffered a disorder which was likely to cause him to react maladaptively to the stressful situation in which he found himself, and that he was, accordingly, likely to behave quite irrationally as a consequence. In this situation the evidence did establish that the appellant was a person unlikely to be able to make calm and rational choices, and, therefore, his disability contributed to some extent to his offending. It follows ... that the appellant's moral culpability was reduced."

Counsel for the appellant argues that none of these matters appears to have been taken into account by the sentencing Judge.

48 Counsel for the Crown submitted that neither of the reports clarified the severity of any depression suffered by the appellant or whether it was of clinical dimension. He argued that an assessment (in accordance with R v Yaldiz) of the nature and severity of the symptoms, and the effect of the condition on the appellant's mental capacity, disclosed no basis for treating his moral culpability as reduced or for reducing the weight to be accorded to general deterrence. He argued that the following matters were significant:

(a) the appellant's thought processes were not disordered or affected by his condition and he must have been aware of what he was doing;

(b) the offences were premeditated, and involved substantial planning for their commission and for the sale of the stolen goods;

(c) the offending continued over a significant period of time and was the antithesis of "spur of the moment" offending;

(d) the appellant's feelings of depression were caused, or at least exacerbated, by his voluntary abuse of amphetamines; and

(e) the appellant had had an opportunity to receive appropriate medical treatment for his condition and did not avail himself of it.

49 In our opinion, the Crown's submission must be upheld. It was the appellant's drug addiction, not his psychological condition, which was productive of the offending, as the learned trial Judge fully appreciated. There was nothing in either psychologist's report to suggest that there was any relevant nexus between the state of depression and the offending in question.

50 Counsel for the appellant next submitted that the sentences imposed on the appellant were manifestly excessive, having regard to his psychological condition, his early plea of guilty, his remorse, his good prospects of rehabilitation and the absence of violence. Counsel for the Crown submitted that the numerous offences committed by the appellant -

"... were audacious and showed a complete disregard for the property rights of innocent members of the community."

In short, it was argued, the appellant was a professional burglar and thief. On occasions, he stole to order, having already arranged buyers for the goods he was planning to steal.[42] Counsel for the Crown submitted that the appellant's offending merited a significant term of imprisonment, notwithstanding the mitigating factors.

51 In our view, the contention of manifest excess must fail. As noted by the learned sentencing Judge, many of the offences were aggravated by the fact that they were committed while the appellant was either undergoing some other sentence or was already on bail or on a recognisance to be of good behaviour. Furthermore, the appellant was prepared to enlist the services of a 14-year-old boy for two of the offences and his 19-year-old girlfriend for other offences. Given his significant criminal history, which the Judge rightly regarded as being "highly relevant", the individual sentences and the orders for cumulation made by her Honour were well within range.

52 Lastly, counsel for the appellant argued that the sentences imposed on the appellant offended against the principle of parity, given that his co-offender had been released on a 12 month community-based order, and ordered to perform 250 hours of unpaid community work over a 12 month period. While acknowledging that there were differences between the offenders. Counsel for the appellant argued that the disparity between the sentences was too great.

53 The Crown submission was that the circumstances relating to the appellant on the one hand and the co-offender on the other could not have been more different. The co-offender was only 19 and had only one prior conviction, for shoplifting. She had been entitled to a significant discount in sentence, her very early plea of guilty having been accompanied by co-operation of the authorities, including an undertaking to give evidence against the appellant. In our view, the Crown's submission was clearly correct.

54 It was for these reasons that we announced at the conclusion of the argument that the appeal would be dismissed.

R v VO

55 The appellant pleaded guilty to one count of murder. He was sentenced to 18 years' imprisonment, with a non-parole period of 14 years. (At the date of the offence, the appellant was aged 23. He is now 26.)

56 The circumstances of the offence were as follows. In mid-2002, the appellant became friendly with a 14-year-old ("AW"). In early 2003, they began going out together. They saw each other three or four times a week and spoke by telephone every day. They went out for meals together and to the movies.

57 In mid-2003, AW tried to end the relationship, having decided that the appellant was not the right person for her. She told him that she did not want to see him any more. Subsequently, the appellant went to AW's house late at night, after she had gone to bed, and knocked on her window. AW did not respond but went into her mother's bedroom and lay down in her mother's bed. The appellant entered the house and went into the mother's bedroom. AW had fallen asleep and was woken by her mother shouting at the appellant and telling him to leave. AW's mother telephoned the police, who arrived a few minutes later and directed the appellant to leave.

58 After that incident it appeared that the appellant had accepted that the relationship was over. AW and the appellant had contact only occasionally and he appeared to be willing to be just a friend of AW's. A month or two later, however, their contact again became more frequent, with the appellant insisting that they see each other much more often. The appellant made another nocturnal visit to AW's house, and knocked on her window. AW went out and spoke to the appellant. From then on she began ignoring his telephone calls.

59 In September 2003, AW was walking home from school when the appellant approached her. Once again she told him that she did not want to see him any more. He demanded otherwise and became very emotional. In order to break free of him, AW told him that she would keep seeing him, whereupon he let her walk away. Similar behaviour was repeated over the following month.

60 On one occasion, the appellant came to AW's house and demanded that she come with him to his house. He grabbed her by the arms and dragged her into the back yard. He then pulled her into his car and drove down the road. He sat and talked at AW for a couple of hours, repeatedly telling her how hurt he was. The following day AW told her mother what had happened and her mother said that the next time the appellant came over she would call the police.

61 A few days later the appellant returned to the house after midnight. He knocked on AW's window and woke her up, saying that he wanted to talk to her. She went to her mother's room. The mother went to the back door and told the appellant to leave. Once again, the mother telephoned the police who attended a few minutes later and found the appellant in the front yard. Police advised AW that if she did not want to see the appellant again she would need to obtain a court order.

62 Between 3 December 2003 and 26 January 2004, AW was overseas on holidays. Her mother joined her for the latter part of the holiday. On 27 January 2004, the day after their return from overseas, the appellant arrived at the house at about 11:00 am. AW was at home alone. At first she ignored the appellant when he knocked on the front door. He then went into the back yard and knocked on the back windows. Eventually AW answered the door. He told her that he had entered the house and taken the key. He said that he had done this in order to see whether she was lying to him or not (about not having another relationship). He handed back the key and said that he knew the relationship was over and that he would not be coming back again.

63 On 5 February 2004, AW received a telephone call from a mutual friend of hers and the appellant's. The friend told AW that the appellant had said that, if AW were to end their relationship, he would do something to her parents. AW then telephoned the appellant who, she later said, sounded normal. Another mutual friend recounted a similar communication from the appellant.

64 On the night of 8 February 2004, AW went to bed at about 11:00 pm. Her mother was in the living-room watching television. About 20 minutes later, AW heard knocking on her bedroom window. She opened the curtains and saw the appellant standing outside, gesturing to her to come out of the house. AW went to her mother, who walked to the back door and out into the back yard. The appellant was no longer there. Five minutes later, the appellant telephoned AW on her mobile telephone, demanding that she come and talk to him. AW said that she would speak to him the following day, to which he replied, "No. I want to talk to you now". He went on, "I was good, but I have chosen to be bad now". AW said "Do whatever you want" and hung up.

65 AW went back to bed. About five minutes later she heard knocking on her window. She left her bedroom and told her mother that the appellant was still outside. Her mother said that she would tell him to get out. AW followed her mother to the back door. Her mother walked out to the back yard and shouted at the appellant, "Get out of my house". Through the glass panel in the door, AW saw her mother walk towards the appellant, to the point where she was just visible. AW then heard her mother screaming and calling out for AW.

66 AW ran outside and saw her mother on the ground bleeding from the stomach. She saw the appellant holding a knife in his right hand and bending down over AW's mother, who had stopped screaming and was breathing very hard. AW ran straight towards the appellant and tried to take the knife from him but he pushed her away. AW saw her mother raise her left arm. AW shouted at the appellant, "If you want to do something, do it to me". AW then saw the appellant strike her mother twice on the back of the head. She thought she heard her mother scream for help again. Once more AW tried to take the knife from the appellant but was forcefully pushed away and fell to the ground. As she stood up, AW saw the appellant stab her mother once more.

67 The appellant grabbed AW by the arm and said "You can come with me". He was still holding the knife. AW screamed, "No" and called out for help. The shouting and screaming attracted the attention of neighbours, who came out and intervened. The appellant jumped over a side fence and ran down an adjacent driveway into the street. Police and ambulance arrived soon after. AW's mother was already dead. The appellant was apprehended in a laneway nearby. He did not flee and was cooperative as the police effected the arrest.

68 Subsequently, in a tape-recorded interview, the appellant made extensive admissions. He said that he had taken a kitchen knife with him when he went to AW's house. The knife was about 30 centimetres long. He said he had intended to frighten AW with the knife. His account of the subsequent confrontation with AW's mother, and his infliction of multiple stab wounds, was substantially consistent with the account given by AW.

69 When asked why he had stabbed AW's mother, the appellant said that he thought that, once her mother died, he would be able to have AW. He said he had thought about this a long time before.

"I thought about just wait until [AW] finish school and I just take [her] away. ... And I really don't know what's wrong with me. ... I was thinking of taking her ... somewhere far and quiet, where no-one - no-one could find us."

When asked why he had thought it necessary to stab the mother, he answered, "I just think, you know, it's all because of her." He then added: "I probably want to prove to [AW] that I'm very serious." When asked whether he was intending to kill AW's mother when he stabbed her, the appellant answered, "Probably".

70 The appellant was examined by Dr Lester Walton on 26 July 2005, in the psychiatric unit at Port Phillip Prison. He had been committed for trial on 5 October 2004, following a contested committal hearing, and had reserved his plea. At the commencement of his trial on 4 July 2005, the appellant had pleaded not guilty. Before the commencement of evidence, however, the appellant changed his plea and on 5 July 2005, he pleaded guilty.

71 Dr Walton's examination thus took place between the plea of guilty and the plea hearing itself (18 November 2005). Dr Walton gave evidence at the plea hearing, and was cross-examined. His report made clear that he had not been asked to give "a specific analysis of this man's likely state of mind at the time of the killing". Rather, he had been asked to assess the appellant's current mental state.

72 The substance of his expert opinion, as set out in his report and elaborated in his evidence, was as follows:

(1) Because of the stress surrounding his presentation on the charge of murder in mid-2005, the appellant had decompensated psychiatrically to the point where he had developed an acute psychosis. That condition was "simply reactive to the recent stressful circumstances."[43]

(2) As at the date of the plea hearing, the appellant was clearly suffering from a major mental disorder - tentatively diagnosed as schizophrenia - although he was "much weller than he was".[44] The appellant was well and had no symptoms of psychosis. The anti-psychotic medication had been withdrawn, largely at the appellant's own insistence.[45]

(3) The major psychotic illness which developed in mid-2005 did not manifest itself until after the offence was committed.[46] The psychosis did not manifest itself until months later.[47] There was no basis for a defence of mental impairment in relation to the killing.[48] Nor did the appellant have a serious mental illness short of metal impairment (ie. he did not fall into the category defined in R v Tsiaras) at the time of the killing.[49]

(4) The appellant had seemingly had a "very intense sort of passion" for AW but it could not be said that it had reached delusional proportions at the time of the incident.[50]

(5) There is a so-called prodrome [precursor or forerunner; premonitory symptom][51] to the onset of a psychotic illness like schizophrenia. The prodrome is usually recognised in retrospect. Subtle changes in personality, different behaviour, the expression of somewhat unusual ideas and changes in emotion often precede the emergence of the full-blown illness. The description (by defence counsel) of the appellant as having had a "dramatic change" in personality and having developed a fixation on AW was "entirely consistent" with there having been such a prodrome.[52]

(6) No sensible prediction could be made about whether the appellant would have further acute psychotic episodes. The most likely prognosis was that there would be recurring episodes of psychosis over the years.[53] Relapses could occur spontaneously in the absence of stress.[54]

73 There was also a report from a clinical psychologist who had seen the appellant in December 2004, well before the emergence of the psychotic symptoms. The psychologist reported that the appellant had had "no major health problems". Personality testing indicated mild to moderate anxiety. According to the report, the contributing factors to the anxiety included -

"... variable concentration, indecisiveness, reduced morale, experience of life as a strain most of the time, difficulties piling up so high he believes he will never overcome them, and doubts about the reality of the world around him. He expressed concern about interpersonal relationships, sensitivity to criticism, the view that others look at him critically, ready embarrassment, frequent disappointment in others, inability to tell anyone all about himself, and worrying that things he has said may have hurt people's feelings. He would appear to have negotiated some suicidal ideation with the assistance of psychiatric staff - in the past he said he had thought of shooting himself."

74 The psychologist concluded, however, that the anxiety was linked to the appellant's "current predicament" (facing a murder charge). He said that the appellant displayed a "hypomanic (sic) trend (in keeping with his immaturity and impulsivity)", and responses associated with social introversion/withdrawal:

"This young man remains deeply troubled, experiencing a high level of guilt and self-reproach - he is yet to come to terms with the fact that he engaged in a series of actions resulting in the death of another person, most likely obliging him to spend many years without his liberty. Since being in prison he has been the conforming person he had always been prior to that outrageous act - working, studying, achieving enhanced prisoner status."

75 After noting the psychologist's assessment, the learned sentencing Judge turned to consider the evidence of Dr Walton:

"19. The psychiatrist, Dr Walton, examined you on 26 July 2005, soon after your trial. He was not asked to attempt an assessment of your state of mind at the time of the killing. At the time of your trial you were being treated with ante-psychotic (sic) medication and this treatment has continued until recently. The investigations of Dr Walton have disclosed that since May of this year your mental state had deteriorated significantly, particularly as the trial date approached. Then in July when you were admitted to the prison psychiatric unit you were experiencing paranoid delusions, auditory hallucinations and suicidal ideas. This responded to medication, so that there was no question of your being unfit to stand trial. The medication has, in October, ceased and you presently suffer from no psychiatric condition.

20. Dr Walton expresses the opinion that, at the time of the killing, you might have suffered from a nascent or non-diagnosable form of psychosis which did not manifest itself until mid-2005 when it may have been triggered by the stress caused by the imminent trial. I do not conclude, however, from this speculation that the conduct with which you have been charged was the result of any psychiatric illness. I do not understand your unreasonable suspicions directed to [AW] as an indication of mental illness; but rather as the fantasies of a disappointed lover. Dr Walton considered it likely that you may suffer from recurrent episodes of the psychotic condition which he identified.

21. You pleaded guilty on the second day of your trial. By so doing you spared the State the cost of the trial and, more importantly, you spared [AW] the ordeal of reliving her memory of that terrible evening. I take this into account in your favour notwithstanding that your plea was very late. This is a case where the sentence must reflect the value which the community places on the life of one of its members. Murder is a serious offence - the most serious of all.

22. The sentence which I impose must serve as a warning to those who may be minded to carry knives.

23. It is not uncommon for young people to experience the disappointment and desolation of rejection by a person whom they love. It is entirely unacceptable that you or any one else should see the use of a knife as an appropriate means of resolving such a situation. The sentence must serve as a deterrent to such persons.

24. It was put on your behalf that you suffered a serious psychiatric illness which should bear upon the sentencing process. In Tsiaras,[55] the Court of Appeal explained how, in the appropriate case this may be so. The fact is that I do not accept that, at the time of the offence or now, you suffered or suffer from such an illness.

25. My task is to weigh up the competing considerations which bear upon the sentence which I impose. I have mentioned already that the sentence must reflect the community's disapproval of your conduct, the harm you have inflicted on others and the need for general deterrence." (emphasis added)

"28. Although I am satisfied that you stabbed [the victim] with intent to kill, I have regard to your confused state of mind at the time of your impulsive conduct. In all the circumstances, I consider that the appropriate sentence is one of imprisonment for 18 years. This is, in your case, much less than the maximum sentence for the crime of murder which is life imprisonment. I fix 14 years as the period within which you are not eligible to be released on parole."

77 Counsel for the appellant argued that, at the time of sentencing, the undisputed fact was that the appellant did suffer from a serious mental illness, namely, schizophrenia. Objection is taken to his Honour's statement (in paragraph [24]) that he did not accept that the appellant was then (or previously) suffering from such an illness. Counsel for the appellant sought to rely on propositions 3 and 5 from R v Tsiaras.

78 Counsel for the appellant submitted, further, that the learned sentencing Judge did not properly consider the question whether the so-called "prodrome" of schizophrenia existed at the time of the killing. There was, he argued, a firm basis for the learned sentencing Judge to have been satisfied on the balance of probabilities that it did. He argued, by reference to R v Tsiaras proposition 1, that -

"the existence of a prodromal state at the time of [the] offence would be relevant to disposition, even if the full schizophrenia was yet to fully manifest itself, so long as it could be inferred that the appellant's judgment was impaired by the incipient condition: see, generally, R v Yaldiz; R v Chambers ... and R v Sebalj".

Counsel for the appellant argued that it was not reasonably open to the learned sentencing Judge to reject the defence submission that the appellant had been suffering the incipient stages of the onset of his mental illness at the time the offence was committed.

79 Counsel for the Crown argued that there was no evidentiary basis for concluding that the appellant suffered from a serious psychiatric illness at the time of the murder, or that his offending conduct was referable to any such illness. He pointed out that the appellant had disposed of the murder weapon and had changed his clothes after the killing. There was, he argued, a rational motive for the murder, in that the appellant was angry at what he saw to be the victim's frustration of his attempts to continue his relationship with AW.

80 At the time of sentencing, counsel for the Crown submitted, the position as to the appellant's condition was "by no means clear". The question of whether his time in custody would be made more difficult because of his illness depended on the likelihood of his suffering a relapse, which Dr Walton could not predict with certainty. Accordingly, so it was submitted, it was open to the learned sentencing Judge not to be satisfied that there was any "serious psychiatric illness" relevant to sentencing.

81 We deal first with the question of the appellant's state of mind at the time of the offending. As already noted, his Honour did not accept that, at that time, the appellant suffered from a serious psychiatric illness of the R v Tsiaras kind. In the light of Dr Walton's evidence, no other conclusion could have been arrived at.

82 Nor did Dr Walton's reference to the "prodrome" justify a different conclusion. In the first place, Dr Walton had not had the opportunity to observe the appellant until almost 18 months after the murder. The best that he could say, in response to defence counsel's description of the appellant's apparent personality change, was that it was "consistent with" what would be expected to be observed in the prodrome state. But Dr Walton did not express - and could not have expressed - a concluded view that the appellant was, at the time of offending, in the prodrome state. Secondly, and in any event, the prodrome state is not the mental illness. Rather, it is a forewarning of the later onset of the mental illness. Hence the notion of prodrome as a "premonitory symptom".

83 Having concluded - correctly in our view - that there was no operative mental illness at the time of the killing, his Honour nevertheless gave full consideration to the appellant's state of mind at the time. Twice in the course of argument on the plea, his Honour referred to the appellant as having been at the time "a very disturbed young man".[56] Twice in his sentencing reasons he referred to the appellant's "confused state of mind". His Honour considered, as he was obliged to do, whether the effect of the appellant's obsession with AW was such as to reduce his moral culpability or materially affect the need for specific or general deterrence. His conclusions are apparent from the sentencing reasons set out above. We can discern no error in the analysis.

84 We turn now to the appellant's state of mind at the time of sentencing. Dr Walton was unequivocal in his diagnosis that the appellant was still suffering from the psychotic illness which had manifested itself floridly for the first time in July 2005. He expressed this opinion having also stated that the appellant was free of symptoms at that time and was not on anti-psychotic medication.

85 What mattered, in our view, was not whether the appellant still had the illness but what effect it was likely to have on his experience of imprisonment. Given the positive report from Dr Walton of the appellant's symptom-free condition, to the point where anti-psychotic medication had been terminated, his Honour was entitled to disregard the diagnosis for the purposes of R v Tsiaras proposition 5. That is, on the evidence before him, there was no material which would have enabled his Honour to decide that the appellant would find imprisonment more burdensome than a person not suffering from that illness. Dr Walton had candidly acknowledged that he could not predict the likelihood of a recurrence of psychotic symptoms, although he thought it was likely that this would occur. Although this was not stated, his Honour was entitled to assume that any such recurrence would, and could, be effectively dealt with by medication and, if necessary, by hospitalisation, a course which had proved successful following the psychotic episode in mid-2005.

Remorse

86 In his sentencing remarks, the Judge said that there was -

"... no evidence of remorse on your part for what you have done. I do not understand the evidence of [the clinical psychologist] of your sense of guilt and self-reproach as extending to any sense of concern for the harm you have done to others."

87 Counsel for the appellant submits that his Honour failed to have regard to what was said in Dr Walton's report, as follows:

"What is clear at this stage is that [the appellant] is significantly remorseful and he does wish to express that by proceedings in the form of plea and sentence. However, he does remain somewhat equivocal. That is not on the basis of his misunderstanding what a defence of provocation involves but simply a residuum of reluctance to fully accept that he has actually killed the mother of his former girlfriend, his infatuation for the latter having not resolved as yet."

88 Counsel for the appellant also points to the reference supplied to the sentencing judge by the Chaplain from the Catholic Prison Ministry at Port Phillip Prison. The Chaplain said that he had known the appellant for 18 months while he was on remand, and that they had had many meetings and discussions. He had found the appellant to be "very honest and very frank in all these discussions". In his letter of reference he said:

"I find [the appellant] to be a quiet, gentle, kind, considerate, straight forward (sic), thoughtful and reflective person - indeed a lovely person. He is highly remorseful and regrets his offence. He is ashamed and sorry for the pain he has caused. The offence was completely out of character with the [the appellant] that I know.

...

In summary, I find [the appellant] to be a good, gentle, kind and lovely person, who expresses a high level of remorse and regret. His offence is out of character with the man I know."

89 Counsel for the Crown submitted that it was open to the learned sentencing Judge to find that the appellant was not truly remorseful, in the sense that he understood and accepted the harm that his offending conduct had caused to others. Counsel for the Crown referred to the fact that the appellant had run a contested committal hearing and that his plea of guilty was not entered until the second day of his trial. Moreover, as commented by Dr Walton, the plea was "somewhat equivocal".

90 With great respect, we do not think it was reasonably open to conclude, in the face of the unchallenged reports from Dr Walton and the Prison Chaplain, that there was no evidence of remorse. His Honour did not address these reports, citing only the reference in the psychologist's report to "guilt and self-reproach". Of course, it is one thing for a person to feel sorry for his actions because of the predicament in which they have placed him; it is quite another for the person to feel sorry because of the harm he has caused to others by his conduct. Although the psychologist did not elaborate on his view, his use of the word "guilt" is, we think, suggestive of remorse rather than self-pity. In any case, the reports from Dr Walton and the Chaplain were unequivocal in stating that the appellant was "significantly" or "highly" remorseful. Those reports were later in time than the psychologist's and were therefore likely to be a more reliable guide to the appellant's attitude as at the date of sentencing.

91 The presence of remorse is a significant mitigating factor. The effect of his Honour's conclusion was that the appellant was not given the benefit of any mitigation in that regard. That constitutes sentencing error and reopens the sentencing discretion.

Re-sentencing

92 In support of the argument that the sentence imposed was manifestly excessive, counsel for the appellant advanced the following considerations, which now become relevant to re-sentencing:

(a) the appellant was 25 at the date of sentence and 23 at the time of the offence. His relevant youth was a mitigating factor;

(b) the appellant had a difficult upbringing. He was a refugee who had arrived in Australia with no English;

(c) his parents had separated and he had received no guidance from his father. On the contrary, his father had been violent to him;

(d) the appellant suffered a high degree of confusion with respect to his academic difficulties. He failed HSC and a TAFE course. The appellant considered himself, to some degree, to be a failure;

(e) it was in this context that the appellant formed a relationship with AW, who was considerably younger than he was but upon whom he became quite emotionally dependent;

(f) the appellant pleaded guilty.

To this list must be added, of course, the fact that the appellant is genuinely remorseful for what he has done.

93 Giving full weight to these mitigating factors, however, we are of the view that in the exercise of the sentencing discretion we would reach the same conclusion as did the learned sentencing Judge. In our view, having regard to the seriousness of the offence, no lower sentence than that imposed by the sentencing Judge could be justified. As we have already said, we respectfully agree with the learned sentencing Judge that the appellant's obsession with AW did not reduce his moral culpability for this brutal killing, nor did it materially affect the need for specific and general deterrence.

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

[2] Ibid at 400.

[3] [1981] VicRp 17; [1981] VR 155.

[4] R v Mooney, unreported, Supreme Court of Victoria, Full Court, 21 June 1978 cited in R v Anderson (supra) at 160; see also Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ.

[5] See also Wright (1997) 93 A Crim R 48 at 50 per Hunt CJ at CL.

[6] Supra.

[7] (1978) 33 FLR 433 at 436.

[8] [2000] WASCA 203; (2000) 114 A Crim R 333 at 347 per Malcolm CJ.

[9] [2000] WASCA 119 at [88] per Malcolm CJ (Wallwork J agreed).

[10] See A Frieberg, "'Out of Mind, Out of Sight': The Disposition of Mentally Disordered Persons Involved in Criminal Proceedings"[1976] MonashULawRw 19; , (1976-77) 3 Monash U L Rev 134 at 135-6; R G Fox, "Sentencing the mentally disordered offender", (1986) 60 Law Institute Journal 416 at 417; I Potas, Just Deserts for the Mad (Australian Institute of Criminology, 1982) Ch 2.

[11] [1998] 2 VR 376 at 383; applied in R v Chambers [2005] VSCA 34; (2005) 152 A Crim R 164 at 171 [26].

[12] Supra at 50-51.

[13] [1998] 4 VR 224 at 232.

[14] [2004] VSCA 53 at [8] (Buchanan JA agreed). See also R v Vodopic [2003] VSCA 172 at [28] per Eames JA (with whom Winneke ACJ and Phillips JA agreed) and R v Pyke [2006] VSCA 265 at [16] per Redlich JA (with whom Vincent and Eames JJA agreed).

[15] [2006] VSCA 106 at [21].

[16] Supra at 383.

[17] Ibid.

[18] Ibid at 381 per Batt JA (with whom Winneke ACJ and Hampel AJA agreed).

[19] R v Lewis, unreported, Court of Appeal (Winneke P, Brooking and Charles JJA), 20 April 1998, p 9; R v Swingler [2001] VSCA 26 at [13]; R v Chambers (supra) at [26]-[28]; R v Ahmed [2006] VSCA 200 at [28].

[20] Cited in R v Anderson (supra) at 160.

[21] Supra at 50. See also Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385 at 396 [55] per Steytler P.

[22] Cited in R v Anderson (supra) at 160. Jenkinson J agreed with both Young CJ and Lush J.

[23] Supra at 51.

[24] [2006] NSWCCA 21; (2006) 160 A Crim R 166 at 175 [41].

[25] Maddeford [2001] SASC 38; (2001) 120 A Crim R 497 at 502 [23].

[26] Supra at 72.

[27] [2004] NSWCCA 112; (2004) 145 A Crim R 445 at 450 [22], citing R v Henry & Ors [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [254] per Wood CJ at CL.

[28] [2002] NSWCCA 255 at [23].

[29] R v Hamid [2002] VSCA 9 at [11] per Buchanan JA (with whom Winneke P and Vincent JA agreed); R v Cunliffe [2000] VSCA 146 at [30] per Phillips JA (with whom Charles and Buchanan JJA agreed); R v Ibrahim [2001] VSC 210 at [19] per Coldrey J.

[30] Thompson v The Queen (supra) at 396 [53]. See and contrast Benitez v The Queen (supra) at 174 [36]-[37].

[31] R v Hamid (supra); R v Cunliffe (supra); R v Ibrahim (supra) cf R v Walsh [2006] VSCA 87 at [24]; Ayoubi v R [2006] NSWCCA 364 at [27].

[32] R v Chambers (supra) at 173.

[33] R v Tran [2003] VSC 165 at [14].

[34] Ayoubi v R (supra) at [27].

[35] R v Sebalj (supra) at [20]; Hurd v R [1988] TASSC 54; [1988] Tas R 126 at 132 per Cox J.

[36] R v Yaldiz (supra) at 383_; R v Swingler_ (supra) at [13].

[37] R v Walsh (supra) at [22]; Payne [2002] WASCA 186; (2002) 131 A Crim R 432 at 442 [36], [40] per Steytler P; Thompson v The Queen (supra) at 396 [53] per Steytler P.

[38] (1987) 44 SASR 587 at 589. In R v Van Boxtel [2005] VSCA 175; (2005) 11 VR 258, this was said to be "the seminal statement" on the subject: at 266 [29] per Callaway JA.

[39] [2007] VSCA 62 at [30]- [31] per Maxwell P.

[40] See, for example, Payne (supra) at [43].

[41] cf R v Yaldiz (supra); R v Walsh (supra).

[42] cf DPP v Jovicic [2001] VSCA 43; (2001) 121 A Crim R 497.

[43] T 39.

[44] T 43, 45.

[45] T 42, 46.

[46] T 42.

[47] T 44.

[48] Ibid.

[49] T 45.

[50] T 41.

[51] The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, 1993) p 2367.

[52] T 40-1.

[53] T 46.

[54] T 48-9.

[55] [1996] VicRp 26; [1996] 1 VR 398.

[56] T 90.