R v Wise [2000] VSCA 169

10. Judge Rendit had made the original community based order for a period of two years upon a plea of guilty by the applicant and one co-offender to a joint count of attempted armed robbery. That order imposed conditions, among others, to perform 100 hours of community work over a 12 months' period, an obligation to submit to testing for drug use as directed by the regional manager and a condition not to commit another offence for which the applicant could be imprisoned during the time of the order. The facts revealed that, within two months of the imposition of that order, the applicant failed on 10 December 1997 to attend for drug testing as directed, that she committed the offence of driving under the influence of a drug on 27 February 1998, for which she was fined $300 on 10 February 1999, and committed the offences of both using and trafficking heroin between 7 and 19 May 1999. For those latter offences she was convicted in the Heidelberg Magistrates' Court on 22 March 2000 to be imprisoned for seven days on the driving charge and for two months on the drugs charges, each to be served concurrently and wholly suspended for a period of 12 months. On 5 June 2000 the applicant was brought before a different County Court judge ("the re-sentencing judge") in Melbourne by reason of the fact that by then Judge Rendit had become a reserve judge. The re-sentencing judge, after hearing a plea on her behalf, then imposed an order by which the applicant was sentenced for the count of attempted armed robbery to be imprisoned for 15 months, the period of six months being fixed as the period after which she would become eligible for parole. On a charge of breaching the community-based order she was fined $100. (Although it might have appeared that the present application was directed to that charge and fine, it was agreed that it was in fact directed to the re-sentencing order only, so that no question has arisen as to that fine, which stands unaffected by the orders made by this Court.)

13. The application for leave to appeal raised grounds, in the first place, that the sentence was excessive in all the circumstances and, secondly, that the re-sentencing judge failed to give sufficient weight to the applicant's rehabilitation at the date of sentence and her prospects for future rehabilitation. A few days before the hearing in this Court a third ground was added by leave contending that the re-sentencing judge "erred in failing to disclose the contents of the sentencing remarks of His Honour Judge Rendit".

16. The facts which gave rise to this unfortunate chain of events are brief. The applicant, then aged 20, and her co-offender, were both heroin addicts living in a rented holiday house at Dromana. Being in need of both drugs and quick cash, they agreed to commit an armed robbery on a milk bar nearby. For this purpose the applicant armed herself with a blood-filled syringe, albeit that it had a small cap on it, and her co-offender armed herself with a small knife. They drove the co-offender's station-wagon to within 50 metres of a milk bar in Nepean Highway, Dromana, left the vehicle and pulled stockings over their heads to disguise themselves. It was at about 8.50 p.m. on the evening of 3 January 1997 when they entered the milk bar with the applicant holding the syringe in front of her in a threatening manner and demanding money from the proprietor. Unfortunately for them the proprietor was not to be threatened in this way, for he grabbed a large 12-inch knife kept at the counter and uttered a dismissive expletive which took the applicant and her friend aback, so that they left the store empty-handed. They walked back to their vehicle and drove off, back to their holiday house, but not before the shop-keeper ran out of his premises and noted the registered number of the vehicle as they drove off south along the highway. He immediately rang the police, giving them the registered number so that later that evening both offenders were arrested at the holiday house and conveyed to the Hastings C.I.B. They both made full admissions in relation to the incident, stating that they needed money to support a heroin addiction.

19. On 25 September 1997 the applicant and her co-offender were brought before Judge Rendit for sentencing. She was by this time 21 and therefore is now 24 years old. Although Judge Rendit characterized the offence as both horrifying and serious, he was persuaded to extend leniency to the applicant partly because she was a first offender and partly because of some impressive evidence as to her attempts to rehabilitate herself despite her heroin addiction. From the whole of the evidence called, including that of the psychologist Mr Cummins, it appeared that the applicant had been affected by drugs since the age of 12, including marijuana, amphetamines and heroin. Some time after leaving school and doing only six months of a business and office administration course, her parents became aware of her heroin addiction. They secured her attendance at Warburton Hospital for rehabilitation for a six-week course but she stayed only five days, later obtaining re-entry to the course and successfully completing it. Two-and-a-half months' more rehabilitation took place at The Buttery in New South Wales at the end of which it was thought that she was drug-free. However at the beginning of 1995 she again succumbed to heroin and became an addict. Further drug rehabilitation took place in New Zealand during the latter half of 1996 at the Queen Mary Centre and again it was thought that she was successfully rehabilitated. That was not so and she met her co-offender to take the house at Dromana from which the offence was committed. Judge Rendit was therefore satisfied that at the time of the crime she was under the influence of drug addiction, so that he thought it appropriate to take that into account, inasmuch as her thought processes were affected by her craving for heroin. However the learned judge noted that her very addiction must have made her well aware of the horror and fear which would be caused to a victim by the threat of use of a blood-filled syringe, such that he was prepared to describe it as a "most despicable form of offensive weapon".

22. Judge Rendit also noted that the applicant had pleaded guilty, that she had been co-operative with the police and had expressed deep remorse for her actions. Further he referred to a "number of indicators" which showed that she had "already made large gains towards [her] ultimate rehabilitation". So he referred to her commencing a BA degree at Latrobe University where one of her lecturers described her as being in the top 15% of the students. She had been shunned because of her drug addiction but nevertheless put all her assignments in on time. She had also worked part-time in a restaurant for 15 to 20 hours per week. Evidence showed that she was then not taking drugs and that she was also receptive to ongoing treatment for her addiction. His Honour also referred to her immediate plan to attend Warburton Hospital again as an in-patient where she would be under the supervision of a doctor. She had been assessed as to her suitability for a community based order and the judge had received a pre-sentence report stating that she was suitable. For those reasons, especially her youth and the desirability of giving her an opportunity for rehabilitation, he imposed the community based order to which I have already referred.

25. I have described in some detail to what Judge Rendit referred in his reasons for sentence. It is of significance on the present application because of the newly taken ground. It was there stated that the re-sentencing judge failed to disclose those reasons to counsel appearing for the applicant and it was argued that she was thereby prejudiced. It is therefore necessary to examine briefly the course of the hearing on the application pursuant to s.47.

28. As may already have been gathered, the sentencing remarks of Judge Rendit were both careful and detailed, setting out in particular the factual considerations which had induced him not to impose a sentence of imprisonment. They extended over some eleven pages of transcript. When the matter came on before the re-sentencing judge nearly two-and-a-half years later, it seems that different counsel appeared for the applicant and neither he nor counsel for the Crown had a copy of Judge Rendit's reasons for sentence. The applicant's counsel (who was likewise not counsel appearing on this application) stated candidly at the outset that he knew nothing of the original offences other than what he had been told. The learned judge then told the prosecutor that it might be convenient if the prosecutor put on record a summary of the offence and he would "accept that subject to any findings that may emerge from the reasons for sentence". To this the prosecutor responded that he did not have Judge Rendit's reasons before him. He asked if they were on the court file. To this he received the following answer from the learned re-sentencing judge:

"It is now, it's part of the record of the court and, as I say, we keep copies of them. So it was simply a matter - it's only available to judges and, as I say, I have read them." (Emphasis added.)

No further explicit or implicit request for the reasons was made either then or later by either counsel, but it is not difficult to see what counsel would have perceived to be the likely response.

33. Prosecuting counsel then gave a useful summary of the events surrounding the offence, but it did not include any of the factual material relating to the applicant or any summary of Judge Rendit's reasoning. As to events surrounding the offence, the re-sentencing judge agreed with the summary, but added that, although Judge Rendit had found that the cap was still on the syringe, people confronted with syringes do not normally notice that fact.

36. Much of the plea then concentrated on the three breaches of condition and on the current state of the applicant's addiction to drugs and her attempts at rehabilitation. From that it might appear that, despite her three breaches of the community-based order, there were still modest but cautious grounds for optimism. In the course of argument the question of previous convictions arose. The prosecutor sought to hand up a criminal history but the judge rejected it saying: "Some of the things that are on that were obviously not in front of Judge Rendit, as he refers to her as being without convictions, meaning [that] they don't matter".

39. After hearing evidence from the applicant's mother as to what appeared to be genuine but not entirely successful attempts at rehabilitation since the earlier order had been made, the learned re-sentencing judge heard further submissions from her counsel. During that discussion his Honour remarked that, though he had "no problems whatsoever" with the original order, he found "some of the rehabilitation things that were put before him have been repeated since". In discussing the applicant's attempted rehabilitation in New Zealand, the re-sentencing judge said that that had been referred to in Judge Rendit's reasons for sentence and, when referring to her attendance at the Warburton Hospital, his Honour said that she had been to that hospital before she came before Judge Rendit, although it was pointed out that she had attended a second time since the making of the community-based order. Then towards the end of the plea his Honour made this reference to Judge Rendit, indicating "for the benefit of the parents and the accused, I will not be consulting Judge Rendit, even if I do see him on a social occasion".

42. The latter comment may have suggested the learned re-sentencing judge would take little notice of Judge Rendit's views, whenever expressed, but his Honour put paid to any such notion by saying, shortly after commencing his own sentencing remarks:

"The facts of the crime are set out in his Honour's reasons for sentence, and it is unnecessary to repeat them ... ".

"I have noted the mitigatory aspects of the crime to which his Honour referred. I have also noted the personal factors that were advanced on your behalf factors which led his Honour to give emphasis to your rehabilitation as the principal purpose of punishment, although he had some reservations about your application to rehabilitation programmes. His Honour made it clear that those who attempt armed robberies, `can reasonably expect to receive gaol sentences'. I take the use of the word `gaol' rather than imprisonment to be an indication of immediate custodial disposition."

None of these matters had been raised during the re-sentencing hearing, so that the judge did not have the benefit of counsel's submissions on them. His Honour then turned to the three breaches of the community-based order, correctly then observing that they did "not aggravate the crime for which you must now be sentenced", only that they provided a context in which he had to assess the purposes of punishment now appropriate to the attempted armed robbery. He continued by referring to the new material and considering the various options open to him in a careful manner, consistent with currently understood principles relating to sentencing. While not ignoring rehabilitation, he concluded that specific and general deterrence "must assume greater weight". In the end, therefore, he decided that a term of immediate imprisonment should be imposed, with a modest non-parole period.

49. When it became apparent to the Court that the learned re-sentencing judge had not had the opportunity to make a report in relation to the added third ground, a request was made through the Registrar for a report on that subject matter. He replied as quickly as he could, so that the Court had a report on the last day of the hearing. In that report, made available to the parties, his Honour explained that ordinarily judges have their own copies of reasons for sentence on these occasions but where, as in this case, he was acting under s.15, it was necessary to obtain a copy of the first judge's reasons. He says there is no complete collection of reasons but there is a collection of "revised" reasons which are kept in judges' chambers, of which he says: "It is for the use of judges alone." That, he states, was the reason for his observations set out in para.8, which, he explains, "was merely stating the source of my copy of Judge Rendit's reasons for sentence". He was "not indicating" that counsel could not have access to those reasons and nothing thereafter occurred which indicated to him that counsel for the accused "was under any apprehension that there was some `secret' document". He concluded by stating that it had "never crossed my mind that the present applicant was being denied natural justice", for she had been present when the earlier reasons had been given and the content had been discussed "where relevant" in the course of the hearing before him. I would not doubt his Honour's explanation of these events, but the perception of them, especially by counsel, may well have been different, as will be discussed below.

52. It is desirable therefore to turn in the first place to the added ground which complains that the learned re-sentencing judge failed to disclose the contents of Judge Rendit's sentencing remarks.

55. With the benefit of the learned judge's report it seems clear that he viewed the version that he had of Judge Rendit's reasons as one of a collection "for the use of judges alone". That seems entirely consistent with what he said to counsel to the effect that those reasons were "only available to judges". It is not clear why judgments of the kind he was using during this hearing should only be available for the use of judges. As he describes them, they are all revised judgments and therefore no question could arise as to the publication of unauthorised or inaccurate versions of them. If it be a matter of administrative convenience forced on the County Court by inadequate staffing levels, then it is understandable that court staff should not be distracted from their customary duties by constant requests for those reasons. On the other hand, if the versions in the judges' collection are the only versions of revised reasons, then there would be no justification for denying interested parties the right to obtain a copy of the only authorised version. The number of such demands would ordinarily be relatively small since, as I understand the matter, there is a different procedure laid down for the obtaining of revised reasons when appeals are brought to this Court. I might add that there is no suggestion in his Honour's report that for present purposes a copy of the revised reasons could be obtained in any other way, for example, from those authorised to take or sell transcripts. That is consistent with the practice, as I would understand it, that transcripts of reasons for sentence, charges and rulings are not ordinarily available; indeed they are normally not even transcribed for revision, unless an application for leave to appeal is brought or a judge specifically so directs.

58. The judge's explanation, however, does not provide the answer to the applicant's submission. Whatever the judge thought and howsoever he would deal with any application for the transcript (and I have no reason to doubt what he has said), the appearance nevertheless was that the only transcript available of Judge Rendit's reasons was for the eyes of the judge only and would not be made generally available. Indeed, the observations of the judge at the outset to which I have already referred were made in response to a question from counsel as to whether they were on the court file. His Honour's response, to the ordinary listener, would seem to imply that the reasons were on that file, for he immediately responded that it was "part of the record of the court", but that nevertheless it was "only available to judges". The incipient attempt by counsel (in fact counsel for the Crown) to get a copy from the file was seemingly met by the judge's stating implicitly that although they were on the file, they could not be made available. The judge has now explained that that was not his intention and that he was only referring to a collection of judgments kept for the judges' general purposes. His words, however, suggested a far more restrictive approach.

61. It was strenuously argued that no objection was taken by counsel then appearing for the applicant, nor did he ask for a copy of Judge Rendit's reasons, when he was made aware of the fact that the judge had a copy of them. No explicit complaint was made: that much is obvious: but to the informed bystander sitting in court it would have appeared that his Honour was making abundantly clear his attitude to any such application by his use of language, from which there would appear to have been no doubt that he viewed the material as confidential "to the judges" and not to be released. It is perhaps unfortunate that he was not pressed further, but he was seemingly describing a specific local practice as to confidentiality which could not be broached and was not likely to be the subject of specific rules or authority. A fair reading of the transcript shows that, whatever the judge intended, there would be no question of providing them, but that he would read out such extracts as he thought suitable for the hearing during the course of the application. Counsel for the applicant at the time could have inferred only that no request by him for the reasons would succeed.

64. The present ground raises the question whether procedural fairness was afforded to the applicant or, in more old-fashioned language, whether the re-sentencing judge complied with the rules of natural justice. There are many aspects to that precept and those rules, but, even where the issue is limited, as it presently is, to a failure to disclose the contents of certain sentencing remarks, the ultimate issue is whether there has been a fair hearing, even if in many contexts the court does not enquire into the ultimate outcome but only into breaches of those rules, such as could fairly be expected to lead to a miscarriage. The test must in all cases be objective, and, although the matter was not argued before us, the better view would appear to be that there may be a breach of natural justice without fault being established on the part of the decision-maker.[1] Moreover, an objective test is consistent with the precept so frequently recognised by the courts, and only this month repeated in a joint judgment of five members of the High Court in Johnson v. Johnson[2] namely "the fundamental principle that justice must both be done, and be seen to be done". Doubtless this test has most frequently been applied in cases of apprehended bias but there is no reason to confine it and the present issue should therefore be resolved not by what the judge intended but whether or not it appeared that he had afforded both parties procedural fairness in the hearing of the application. By chance, in the procedure presently adopted for the hearing of criminal appeals, a report is required to be made by the judge at first instance so that reasons are not infrequently put forward for the taking of steps during the course of trial or sentencing which otherwise are not explicable on the face of the transcript of hearing or judgment. That fortunate and useful aid should not require this Court to embark upon a test of fault, unless it be relevant to the conduct of proceedings by either the prosecution or counsel for the defence. In the present case, no enquiry therefore need be embarked upon and no conclusion reached as to who was to blame for any appearance of unfairness.

67. The critical matter here, therefore, is whether in fact procedural fairness was or was not afforded the applicant because the learned re-sentencing judge acted upon, and appeared to act upon, the basis of and in reliance on material not available to counsel for the present applicant (and indeed largely unknown to him). It is an elementary rule, whether in relation to civil or criminal proceedings, that a judge shall not determine any question without affording counsel for each party an opportunity to see and comment upon any material relevant to the issue before the Court which is available to the judge and known not to be available to counsel: R. v. Carlstrom[3]. As was emphasised by Kaye, J. in R. v. Licata and Regan[4] referred to in an addendum to Carlstrom at 368, the withholding of material "is repugnant to basic concepts of fairness and justice".[5]

70. Likewise a sentence should not be imposed if it is founded wholly or partly on material which has not come before the sentencing judge in open court: see R. v. Tait and Bartley[6]. If any relevant material is gathered or obtained by the judge from private sources or sources not available to the parties, which is capable of being used adversely to the offender, then, unless that course is specifically agreed to by counsel for the offender, the sentence will ordinarily be set aside: ibid.

73. As previously mentioned, it was argued that no objection was taken by counsel when he was made aware that the resentencing judge had a copy of Judge Rendit's reasons nor did he explicitly seek them from the judge. His Honour's reference to the limited availability of those reasons made clear that he viewed the material as confidential, or so it would have appeared, and therefore not to be released. The events have a close similarity to the circumstances described in Licata and Regan, in relation to a pre-sentence report (before the recent statutory requirements for provision) where Lush, J. said[7]:

"Counsel made no application to seek the reports, but the transcript of proceedings indicates that both judge and counsel assumed that counsel had no right to see them, unless they were proffered by the learned judge."

When questions were being asked of him, the learned judge here did not make any suggestion or comment to the effect that transcripts of those reasons could have been or could be obtained by some other means, and it should have been apparent to him that not only did counsel for the applicant not have those reasons but neither did counsel for the Crown, who might otherwise have been thought responsible for providing any materials upon which it would seek to rely in the course of the re-sentencing hearing. The judge in his report likewise made no reference to the availability of Judge Rendit's reasons from some other source and so the fact remains, as was apparent during the hearing, that no person other than the re-sentencing judge had a copy of those reasons, a copy which he had described as "only available to judges".

78. Furthermore, his Honour made it clear that, although counsel did not have access to those reasons, he himself had read them, from time to time thinking that a few extracts should be put to counsel in relation to particular submissions. It might be suggested that it was of little consequence that the judge had those reasons, for the issue at that stage was whether there had been a breach and whether that breach justified the imposition of a sentence or some further order. The importance of reasons, however, in a case such as the present, where a question arises as to what should occur when a breach of a community-based order is made out, is that a full discretion is invested in the judge as to whether or not any further order shall be made. The power differs from that applicable on breach of certain other sentencing orders where a court must sentence for the original offence. Every community-based order ordinarily has an element of punishment in it, so that the re-sentencing court must know precisely why the original orders were made and the basis upon which the judge acted in making those orders. A knowledge of those matters will largely dictate whether and, if so, in what manner further punishment will be imposed or whether some other order should be made.

81. It is therefore most important that counsel, especially counsel for the offender, should know of the earlier reasoning. That is the more so where counsel is not the same as counsel who made the original plea, for there is no practical way, unless former counsel took detailed notes and had them transcribed into some more permanent form, for new counsel to have the necessary knowledge of the detail of the earlier reasoning and the factual basis for it. Submissions cannot and should not be made on some hypothetical basis, although it may occasionally be agreed between prosecution and defence counsel, with the concurrence of the presiding judge, that the re-sentencing court need not pay regard to anything other than the original order and its breach.

84. Although I have said it is desirable, if not essential, that in applications under s.47 the transcript is made available to counsel and judge for the purpose of reaching a fair and proper conclusion, nevertheless the procedural fairness rule will not be broken if neither judge nor counsel have access to that previous transcript. It is only where, as here, the judge announces that he has it but proclaims that he alone can read it, that difficulties arise. His Honour said that he had no intention of creating the "apprehension that there was some secret document", but regrettably, upon reading the whole of the transcript, that is the impression which I have very clearly obtained from reading it. When it was obvious that both counsel were in difficulties because they did not have access to those reasons, no suggestion was made as to any means of obtaining them and indeed, on the only enquiry as to whether the reasons were on the file, the response, though not intended, gave a very clear impression that they were for the judge's eyes only. Thereafter, although there was speculation as to a number of matters, the judge gave a succinct summary of his impression of those reasons but never suggested that counsel might like to read them for themselves. In truth, despite the judge's lack of bad faith, the only appearance was that the judge was reading from and using throughout the application a document which counsel did not have and, more importantly, could not have. It would have appeared and did appear manifestly unfair that only the judge had access to the kind of material in the reasons which might have been used to determine the application by the re-sentencing judge. In that sense justice was not seen to be done. These events would have been seen in that light not only by counsel appearing for the applicant, but also more generally by any person present in the courtroom.

87. In the present case, that unfairness was compounded when the learned judge in his re-sentencing remarks adopted parts of Judge Rendit's earlier reasons, not by direct quotation but only by incorporating them by reference, especially those observations to which no reference had been made, during the course of argument before him, including the "mitigatory" and "personal" factors and, more particularly, Judge Rendit's "reservations", each noted indirectly by him. As only the re-sentencing judge then had a copy of Judge Rendit's reasons, his own reasons were deficient in that he had not thereby fully made his own reasons available to the respondent offender. Any such practice, involving the incorporation by reference of passages in a judgment of reasons which are not known to be generally available to the public and especially the parties, cannot be condoned, unless the earlier reasons are published at the same time. In the circumstances, it was a breach of the principle of open justice: Scott v. Scott[8].

90. Doubtless, the learned sentencing judge believed he was acting in a way consistent with fairness and proper practice. It would appear from his report that there was largely a misconception as to his willingness to make Judge Rendit's reasons available. One may accept that the judge had no intention to act unfairly but it is the appearance which counts, if that appearance be based on a reasonable perception of the events taking place in the court room. One might therefore suggest, whatever be the precise circumstances, that where a judge has a document which is not provided by the parties, that judge should make assurance doubly sure by seeing that counsel have access to that document or a copy of it, or, if they do not, that they are for one reason or another all agreeable that the judge may continue to look at the document which he or she alone has.

93. What here occurred was, in my opinion, unfair and such as to deprive the applicant of a fair and open hearing. It was unfair not merely because the judge had access to a document the full details of which she and her counsel were unaware, but because argument was allowed to proceed (albeit unwittingly) and appeared to proceed with counsel disadvantaged by the absence of a document which was of critical importance to the re-sentencing hearing. The resulting sentence must therefore be set aside, unless it can be shown that no injustice followed. No serious attempt was made to do so, for a copy of Judge Rendit's reasons, now available, makes clear how many matters were discussed by him. Nor is it here necessary, for obvious reasons, to discuss the question whether, if procedural fairness has been denied, that is sufficient in itself to constitute an injustice. Furthermore, as the Court has already determined to set the sentence aside on this ground (numbered 3), it is unnecessary to discuss the first two grounds.

96. If the order is to be set aside, what order should this Court have made in its place? In the ordinary case the matter will be remitted to the County Court or other trial court for reconsideration. However, in the present case, counsel for the applicant and the Crown both agreed that this Court should dispose of the matter, especially as it had all the relevant material at its disposal. I would not necessarily condemn the conclusion reached by the learned re-sentencing judge that an immediate term of imprisonment was justified. Nevertheless, with the benefit of all the materials the Court was tentatively of the view that some further leniency might well be extended to the applicant. As a result a new pre-sentence report was sought as to the suitability of the applicant for a further community-based order and with admirable promptness Ms Poulter of the Community Corrections Centre came to the court on the first day of the application to advise of her opinion (after an interview) that the applicant remained suitable for such an order and furthermore has now provided a written report to that effect.

99. Having regard to all the circumstances I was and am of opinion that a further community-based order was the appropriate order, especially as the applicant again expressed her willingness to abide by its terms.

102. In short there was sufficient evidence of the applicant's willingness to undergo rehabilitation and of her desire to be free of her drug addiction so as to justify further mercy being extended to her. She was a first offender and her subsequent infractions of the law did not seem to have that seriousness which would force one to the conclusion that rehabilitation should be discounted to the extent that a custodial sentence should have been imposed. Of course, she had undergone three-and-a-half months of the term imposed by the re-sentencing judge. That seemed to justify taking the view that including any specific punitive element in the new community-based order was unnecessary, especially as she had completed all her unpaid community work satisfactorily under the original order. Although a further order of that kind was tentatively recommended by Ms Poulter, she left it to the Court and in the circumstances, in imposing the order last week, it was not thought necessary or desirable to add such an element. What was needed was firm supervision for a further period, in the hope that the applicant may be set on the right path for the future. I believed and still believe that a further period of 12 months under such an order would suffice in the circumstances, with appropriate conditions as to testing and seeking assistance for her drug problems, as otherwise was recommended by Ms Poulter.

105. I was therefore of the opinion that the applicant be given leave to appeal, that the appeal should be allowed and the sentence quashed, and that a further community-based order for 12 months with appropriate conditions should be imposed upon the applicant.

110. At the conclusion of the hearing of the application, I joined in the Court's determination that the application be granted, the appeal be allowed and the sentence quashed and in lieu the applicant be placed on a community based order for a further period of 12 months. My view was that, in the circumstance and for the reasons set out in the judgment of Ormiston, J.A., the applicant had been denied procedural fairness by the resentencing judge during the hearing of the plea in mitigation and that this has resulted in a substantial miscarriage of justice. I was also of the view that, for the reasons set out in his Honour's judgment, the application be disposed of in the manner proposed by him.

[1] Cf. R. v. Criminal Injuries Compensation Board: ex parte A. [1999] UKHL 21; [1999] 2 A.C. 330 at 345.

[2] [2000] H.C.A. 48 at p.4 per Gleeson, C.J., Gaudron, McHugh, Gummow and Hayne, JJ. (The print available to me has no paragraph numbers.)

[3] [1977] VicRp 44; [1977] V.R. 366 at 367.

[4] Unreported, Court of Criminal Appeal, 28 February 1977.

[5] At p.1. See also R. v. Hogan (unreported, Court of Criminal Appeal, 2 December 1993) at 5-6 per Brooking, J.

[6] [1979] 46 F.L.R. 386 (Full Federal Court).

[8] [1913] A.C. 417.