S D v The Queen [2013] VSCA 133

1 At the conclusion of oral argument on 6 May 2013, the Court indicated that the appeal would be allowed on one or more grounds and the appellant resentenced. Leave was given to the appellant to file a medical report concerning deterioration of an eye condition from which he suffered (the substance of which we will later discuss) to assist in any resentencing.

2 These are our reasons for concluding that this appeal against sentence should be allowed and the appellant be resentenced to 20 months' imprisonment of which all but 10 months is suspended for two (2) years six (6) months.

3 On 16 July 2012 the appellant pleaded guilty in the County Court to two charges of indecent act with a child under 16 years, an offence which carries a maximum penalty of 10 years' imprisonment.[1]

4 Sentences of two years' imprisonment were imposed on each count on 19 September 2012. By cumulating one year of the sentence on the second count with that on the first, the judge arrived at a total effective sentence of three (3) years' imprisonment, on which she fixed a non-parole period of 18 months. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the pleas of guilty, she would have imposed a sentence of four (4) years' imprisonment, with a non-parole period of two (2) years and six (6) months. The judge also made a forensic sample order,[2] and a sex offender registration order.[3]

5 On 5 March 2013 Tate JA granted leave to appeal against sentence on four grounds.

1. The sentencing judge erred in her treatment of content of victim impact statement, in particular, by concluding that the appellant could not be absolved from responsibility for the full extent of the complainant's suffering.
2. The judge erred in treating, in a manner adverse to the appellant, his good character.
3. The sentencing judge erred by:

(i) departing from, and going beyond, the facts as opened by the prosecutor and agreed between the parties; and

(ii) resorting to psychological materials including the definitions of paedophilia in the Diagnostic and Statistical Manual (DSM) Edition IV-TR, proposed revision of DSM V and the International Statistical Classification and Related Health Problems published by the World Health Organisation; and

(iii) failing to provide, in respect of each of these matters, an opportunity for counsel for the applicant to address, or make submissions on, the findings the judge intended to make; and in so doing denied the applicant procedural fairness.

(i) individual sentences on charges 1 and 2;

(ii) the cumulation on charge 2; and

(iii) the total effective sentence imposed and non parole period fixed;

are manifestly excessive and offend against the principle of totality.

7 The Prosecution Opening prepared for the plea hearing described the offending as follows. ST, the victim, was the appellant's niece, and was aged 11 years (nearly 12) during the offending, which occurred in 2010. The appellant was aged about 40 years of age at the time of the offences. The two came into contact with each other from time to time during 2010 when ST visited her sick grandmother, to whom she was very close, at the grandmother's address in Lynbrook.

8 In early September 2010, ST's grandmother died. On an occasion between 1 July and 2 September 2010, ST and her older brother, SH, stayed overnight in the same room at their grandmother's house. ST woke up to the appellant putting his hand inside her shorts and then her underwear. In her VARE[4] interview, ST said 'he started playing around' with her vagina, '[all] over it ... everywhere on my vagina' (charge 1). He did this for 'a few minutes.' During this incident SH was asleep. While it happened ST said 'stop it please', but he 'just wouldn't stop'.

9 Later, during the day, the appellant took ST's grandmother to hospital. When alone in a room with ST (SH having gone to the toilet), the appellant said to ST, 'I'm gunna do that to you again and I'm gunna make sure you like it'.

10 On a separate occasion, between 25 and 27 September 2010, ST and her brother went on a short holiday to Ventnor, Phillip Island, where the appellant had rented a property to which he invited a number of families. ST, her brother and a cousin slept on a couch in the main living area. The appellant slept on a floor in the same room.

11 During the night, ST woke up around 1 am. The appellant was attempting to put his hand into her shorts, but the shorts were too tight so he could not get his hand into them. His hand was touching the victim's right leg in the attempt (charge 2). ST moved away from the appellant and woke her brother.

12 Once ST made her allegations some months later, her brother recalled being woken by ST pulling his hand. He saw the appellant near his sister on the couch and recalled the appellant saying something like, 'She must be having a nightmare'.

Error in the treatment of the victim impact statement (ground 1)

13 Section 5(1) of the Sentencing Act 1991 sets out the 'only purposes for which sentences may be imposed'. Paraphrased, they include just punishment; deterrence, general and specific; rehabilitation; denunciation; and just punishment. Succeeding subsections spell out (among other things) matters that a court may, and others that a court must not, have regard to in 'sentencing an offender'. Section 5(2)(daa), (da) and (db) provide successively that in sentencing an offender a court must have regard to 'the impact of the offence on any victim of the offence'; 'the personal circumstances of any victim of the offence'; and 'any injury, loss or damage resulting directly from the offence'.

14 By s 8K(1) a victim of an offence 'may make a statement to the court for the purpose of assisting a court determining sentence'. Section 8L(1) provides that a victim impact statement 'contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence'.

15 Thus, in sentencing, a court must have regard to the impact of the offence on the victim and any 'injury, loss or damage' resulting directly (or as a direct result) of the offence. Presumably the adverb directly when coupled with the verb resulting, and the adjective direct used coincidentally with the noun result, have some work to do. The Sentencing Act 1991 does not, however, define the expression 'injury, loss or damage'.

16 Section 85B permits a person who 'has suffered any injury as a direct result of the offence' to seek compensation for 'pain and suffering experienced by the victim as a direct result of the offence' and other expenses incurred by the victim 'as a direct result of the offence'. In Kaplan[5] the Court was called on to determine what injuries were embraced by the expression 'direct result of the offence'. The appellant had been convicted of multiple thefts. He had been the manager of a retail nursery from which he stole. An employee was used by the appellant to accomplish the thefts. The employee claimed that he suffered psychological injuries as a result of being so used. A judge awarded the employee compensation for the psychological injury. On appeal it was argued that the alleged injuries did not fall within s 85A, as they could not be properly characterised as being as a 'direct result' of the thefts. Additionally, there were other possible causes of the injuries. The Court of Appeal rejected the contention that the injuries were not a direct result of the offences. Buchanan JA held that 'direct' does not mean 'that there can be no step between the cause and the consequence'.[6] He went on to say:[7]

Nor do I think that 'direct' is a synonym for 'immediate' or 'proximate' or 'obvious'. An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective 'direct' is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

17 At common law, the consequence of an offender's acts were not to be used against him in sentencing if the consequences of his acts 'are not such as would reasonably have been foreseen by him; but if they ought to have been foreseen by him they are relevant circumstances; the consequences, however, should not be allowed to take over from all other considerations'.[8] It has been recently held, however, that ss 5(2)(daa) and (db) have replaced the common law requirement of reasonable foreseeability.[9] But that does not mean, in our opinion, that there is any warrant for a sentencing court taking into account injury, loss or damage (including pain and suffering) which is not a direct result of the offending.

18 Thus far, we have been addressing 'injury, loss and damage'. That is because of the way in which the argument on the first ground was addressed in this Court. But there is also s 5(2)(daa), which refers to 'the impact of the offence on any victim'. 'Impact' must have a meaning different to 'injury, loss or damage'. Without staying to consider what it might be[10] at least it should not be read as a back-door way of eliminating the requirement that injury, loss or damage are to be the direct result of the offending in order to be relevant for present purposes.

19 The first ground of appeal asserts that the sentencing judge erred in her treatment of the content of the victim impact statement, in particular, by concluding that the appellant could not be absolved from responsibility for the full extent of the complainant's suffering. The appellant seizes on two passages from the reasons for sentence as demonstrating that the judge fell into error. First, the judge said:

... The effect on [the complainant] and on her family has been profound. She may already have had some difficulties. She may already have been showing the signs of some behavioural difficulties and suffering from depression. It is clear that the effect of this on the child who may already have been vulnerable has been significant and long-lasting .

The fact that [the complainant] may have had a pre-existing vulnerability does not mean that you should not accept full blame for her reaction and the way she has been affected by this, or that you can avoid any responsibility for the extent to which she has suffered as a result. It may be greater than suffering some other children who are abused have, but that is not something that can absolve you from responsibility.

20 We do not read these passages as supporting the contention that must underlie the appellant's submissions; that is, that the judge took into account consequences for the complainant that were not a direct result of the offending. The appellant points to the fact that the sentencing judge had before her evidence of counselling that the complainant had undertaken because of a troubled relationship with her father, and of her grief consequentially upon her grandmother's death. It was thus submitted that there were 'difficulties in respect of determining causation'.

21 In our opinion the judge was saying no more in the impugned passages than that the complainant might have been more vulnerable psychologically than others, and that as a result she may have suffered more than other 'abused' children might have done, but that the appellant could not absolve himself from full responsibility for the extent she had suffered as a result of his offending. So much seems to us to be good sense and good law. The judge was doing no more, in our view, than recognising that the appellant must take responsibility for the direct consequences that his offending had on a vulnerable victim. She was not sheeting home to the appellant any indirect consequences of his actions. By analogy to the civil sphere, the judge was rightly expressing the view that the complainant had to taken as she was found.[11]

22 As a matter of principle, of course, where a judge is minded to impose a more severe sentence as a result of alleged injury, loss or damage described in a victim impact statement, and there is a dispute about its origin, the causal connection between the offending and the injury, loss or damage will need to be established beyond reasonable doubt.[12] As we have said, however, we do not think that the judge erred in her treatment of the victim impact statement.

23 Error has not been shown. The first ground cannot be upheld.

24 At one point of her reasons for sentence the sentencing judge took into account the close relationship between the appellant and the complainant which bore on the appellant's breach of trust. The judge later returned to the subject of breach of trust, and observed:[13]

All of this I accept indicates that you are of otherwise good character, that you have that good working history that I have identified, and that you have been a good carer and provider for not only your immediate family but your extended family. Of course, it was in part your good character, the trust that [the complainant] and her family placed in you, that allowed you access to her and allowed you to offend in the manner you did.

In such circumstances, good character which is exploited to allow the offending to occur does not weigh as heavily in an offender's favour as good character can where there is no abuse of trust, no abuse of the reliance on good character, and where the offending is as serious as this.

25 Elsewhere the judge expressed the view that the offences may have been 'opportunistic', but that they were also 'predatory and in breach of trust'.

26 It is one thing to describe the offending as a breach of trust - so much cannot be gainsaid - but it is another thing to diminish the weight to be attributed to good character which a person is otherwise possessed of at the time when an offence is committed. If a person is otherwise of good character, he or she is entitled to have that taken into account at the time of sentencing.[14] Moreover, it is difficult to see that it was legitimate to conclude that the appellant's good character was 'exploited'.

27 We are mindful of the fact that it is a judge's reasons for sentence that are important rather than exchanges with counsel, and that often a judge will say something in the course of debate which should not be taken as reflecting a fixed or concluded view. But our distinct impression that the sentencing judge erred in her approach to the relevance of good character is strengthened by the following remark during submissions on the plea:

A long line of authorities that say (sic) in serious offences such as sexual offences against children and dishonesty offences involving significant breach of trust, past good character carries less weight ... than it does in other sorts of offences.

The judge did not elaborate on what were the 'long line of authorities'.

28 In Ryan,[15] Mc Hugh J observed:[16]

In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

Sentencing is not a mathematical process. Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process.

First, there were multiple offences involving repeated acts committed over a number of years. They were not isolated incidents which might be said to be out of character. Second, the appellant was, as his counsel conceded before Nield DCJ, leading a double life. Over many years, the appellant was doing 'good works' while he was committing grave offences. This contradiction indicates that the appellant's otherwise good character was a minor factor to be weighed. Third, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the 'good works' which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourth, and related to the third point, the offences involved breaches of trust.

30 As is made clear in Ryan, a sentencing judge is always bound to consider the 'otherwise good character' of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person's good character will vary according to the particular circumstances of the case. In contrast to the present case, in Ryan the offences were not isolated, since there were multiple offences over a number of years; and the offences were a breach of trust committed by the prisoner in the context of his role as a priest.

31 In our opinion, the sentencing judge erred in diminishing the weight to be given to the appellant's otherwise good character, and in finding that the appellant somehow exploited his good character in order to commit the offences. We agree with the submission of counsel for the appellant that her Honour's approach had the effect of punishing her client twice for the breach of trust - first by identifying that breach as an adverse sentencing consideration, and second by using it, inappropriately in the circumstances, to diminish the appellant's otherwise good character.

33 On charge 2, the prosecution opened that the appellant touched the complainant on her upper leg. In her reasons for sentence the judge described the touching as 'on the leg and around the area of the vagina'. In essence, the appellant complains that to so characterise the activity was to make it objectively more serious than what was opened. As a general rule, a judge should exercise great circumspection before going behind an agreed set of facts, since it may underpin the basis upon which a plea of guilty is entered.[18] Had the judge been of a mind to sentence on the basis that the touching was 'around the area of the vagina', rather than merely the upper leg, she should have alerted counsel to the possibility, so that it could be addressed.[19]

34 The appellant's submissions have some force, in our opinion, since depending on proximity, touching of the upper leg may not necessarily be 'around the area of the vagina'. That the judge thought the touching to be closely proximate physically to the complainant's vagina seems to be reflected in her sentence on charge 2. On that charge, which on any view was limited to a touching of the leg, she gave the same sentence - two years' imprisonment - as she gave on charge 1, which involved actual touching of the vagina for several minutes.

35 There is also force in the submission that the appellant was denied procedural fairness by the judge's resort to a body of material that she had not raised with counsel in the course of the plea. A Psychological Assessment Report prepared by a forensic psychologist, Dr Michelle Wauchope, was tendered on behalf of the appellant. Following testing, and applying her clinical experience, Dr Wauchope assessed the appellant's 'risk of reoffending in a similar or escalating manner [as] very low'. If regard had been had to the test results only, the risk would have been assessed as 'low'. The content of the report was not criticised by the prosecutor. More importantly, although the judge expressed some concern during the plea as to the 'very low' classification arrived at by Dr Wauchope, she did not alert counsel to the possibility that she would carry out her own researches and rely on material to impinge upon the views expressed by the forensic psychologist. But that is what the judge did.

36 After the plea hearing, the judge consulted the Diagnostic and Statistical Manual of Mental Disorders, Edition IV-TR ('DSM IV-TR'), the yet to be published Diagnostic and Statistical Manual of Mental Disorders, Edition V ('DSM V') and the International Statistical Classification of Diseases and Related Health Problems published by the World Health Organisation ('ISC'). Having done so, the judge in her sentencing remarks expressed surprise at Dr Wauchope's assessment of risk. The importance of the assessment of risk of reoffending, of course, was that it bore on specific deterrence, protection of the community and prospects of rehabilitation. An assessment of these matters in a manner adverse to the appellant had the capacity to produce a more severe sentence. Were the judge to consider diminishing the weight to be given to Dr Wauchope's opinion as to risk - which it is plain that she did - by reference to material that had not been addressed during the plea, and which the appellant had not been given an opportunity of addressing, and thereby to aggravate the sentence or reject a matter in mitigation, then it was incumbent on the sentencing judge to bring that material to the appellant's attention so that he had an opportunity of producing further evidence or making further submissions.[20] It can hardly be contended that the DSM IV-TR, DSM V or ISC are publications of sufficient notoriety that counsel should reasonably have expected the judge to have had recourse to them in the privacy of her chambers.

37 It is axiomatic that a judge may not search for, or take account of, information that is not in evidence, save where a fact is of such notoriety that a judge may take judicial notice of it. Mason CJ and Brennan, Deane, Dawson and Gaudron JJ in Re Media Entertainment & Arts Alliance Ex Parte Hoyts Corporation Pty Ltd[21] referred to the undoubted principle that a judge's decision must be made on the basis of the evidence and arguments in the case and not 'on the basis of information or knowledge which is independently acquired'. A court is not entitled to take into account factual material not in evidence without notice to the parties. [22]

38 The rationale for the prohibition is to be found within the fundamental rule of natural justice that a party is entitled to know the case sought to be made against it and be given an opportunity of replying to that case. The entitlement of a litigant is to a fair opportunity to correct or contradict any relevant material which is prejudicial.[23] As Brennan J stated in Kioa v West:[24]

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters to his interests which the repository of the power proposes to take into account in deciding upon its exercise.

39 The fundamental requirement of procedural fairness is that a party who is subject to the possibility of an adverse determination on the basis of any information, whatever its source, must be made aware of the case to be raised against the party, and be afforded an opportunity to respond. The judicial obligation to afford a party reasonable opportunity to present or meet a case[25] is vital both to the reality and the appearance of justice.

40 One must distinguish the process of modern litigation where a judge is frequently provided with material which does not end up in evidence or where a judge is required to rule upon evidence which it is concluded is inadmissible. It is assumed that a judge then has the capacity to put from his or her mind evidence which has been seen or heard but which is not relevant or admissible to the determination of the questions before the Court.[26] One may also put to one side those instances where a judge may take judicial notice of a particular fact, even if it is not put into evidence, which is of such notoriety that it could not be the subject of serious dispute. So also, a judge may have recourse to learned works for the purpose of refreshing his or her memory.[27] But even in such cases where evidence may not required to prove a fact, the requirements of natural justice will ordinarily have to be observed. Judges should not so inform themselves on any contentious matter, and then act upon it, without first giving the parties an opportunity to controvert or comment upon it.[28]

41 Where a court of its own motion seeks to inform itself in private on a question of fact or an opinion germane to an issue and which is by no means free from controversy the course is, as Bray CJ recognised in Cavinett v Chambers,[29] wholly objectionable. Bray CJ made it plain that the court should not embark on such investigations except by consent. Upjohn LJ (as he then was) stated in Re K (Infants)[30] that where a judge takes information into account which an interested party has not had the opportunity to challenge 'the proceedings cannot be described as judicial'. Such a course was considered by Scarman J in Brinkley v Brinkley[31] 'to strike at the very root of the judicial process'.

42 Whether the tribunal of fact be judge or jury, courts are extremely solicitous about the interests of parties who have not been given an opportunity to be heard before adverse orders of a substantive kind are made against them. In Kuhl v Zurich Financial Services Aust Ltd, Heydon, Crennan and Bell JJ observed:[32]

Judges are not entitled to criticise expert witnesses by reference to expert material not in evidence without those witnesses having an opportunity to respond.[33]

The joint judgment in Kuhl also asked rhetorically[34] how, if counsel for a party would have been obliged by the rule in Browne v Dunne[35] to have challenged another party's witness, it could be open to the judge, without warning - by reference to material not in evidence - to make a criticism of the witness.

43 These considerations serve to emphasise that justice must both be done and be seen to be done. There must be public confidence in the administration of justice. Hence, a conviction will be set aside where the trial judge in the course of her charge referred to matters concerning aspects of children's behaviour - such as that of child victims of sexual assault - that were not a matter of ordinary knowledge and were not in evidence.[36] As Harper JA said in CMG v The Queen[37] it was not within the limits of the judicial function for the judge to attempt to fill a gap, the trial judge having referred to material in her charge which was not in evidence. His Honour noted that where the information is likely to be controversial 'the judge will be trespassing into prohibited territory'. It is similarly well settled that it is an error for a sentencing judge to sentence an offender on the basis of material not in evidence.[38]

44 In Australia and Overseas Telecommunications Corporation Ltd v Margaret Galloway Alston McAuslan[39] the trial judge had recourse out of court to a version of the DSM manual when it had not been introduced into evidence. Burchett J, with whom Miles and Foster JJ agreed on this point, stated that it could not be said that the DSM was so notorious that a court could act upon it without proof. The DSM had been referred to in evidence by an expert witness in relation to the significance of 'stressors' in the condition of post traumatic stress disorder. Counsel for both parties had access to the whole of the document and appeared to have some familiarity with it. However the trial judge raised and decided issues which went beyond those ventilated in the court room. He took into consideration matters concerning symptoms and 'avoidance indicia' which had not been mentioned in open court and which could not be said to be matters beyond dispute or incapable of argument by counsel for the appellant. The trial judge utilised this material as one of several reasons for rejecting the evidence of the expert witness called by the appellant. It was concluded that the judge's reliance on DSM involved a lack of procedural fairness.

45 Here the sentencing judge made a finding of fact which, as we have said, went beyond the agreed facts. Her Honour also had recourse to the DSM IV-TR to identify a list of behaviours included in the definition of paedophilia which the psychologist did not mention in her report. Her Honour further referred in her sentencing remarks to the fact - as she stated it - that neither DSMIV-TR nor the proposed revision for a DSM-V required paedophilic fantasies, urges or behaviours 'to be the sole source of sexual gratification'. In light of her Honour's research, her Honour found it surprising that the psychologist had rated the appellant's risk of re-offending as lower than the rating arrived at from the use of the assessment tools. She concluded that there was no support for further reducing the risk from that obtained from the use of the assessment tools.

46 The psychologist also reported that the appellant appeared genuinely remorseful and appeared to have some empathy and understanding as to the impact his behaviour was likely to have had on the victim. The Crown stated on the plea that issue was not taken with the fact that genuine contrition was present. In her sentencing remarks, however, the judge concluded, without prior warning, that the evidence did not support a finding that the appellant was remorseful in the sense that he had insight into his offending, or victim empathy. In turn, the judge considered that to bear upon her assessment of the appellant's risk of reoffending and his prospects for rehabilitation.

47 On appeal, the Crown relied upon the proposition that the sentencing judge was not bound to make a finding of remorse simply because it had been submitted on the plea that the appellant was genuinely remorseful, citing Tao Va v The Queen[40] in support of that contention. But as McHugh J said in Re Refugee Tribunal; Ex parte AALA:[41]

One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person's rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.

48 The Crown in oral argument accepted that the proposition in Tao Va must be qualified in the present case where the risk of an adverse finding on the issue did not inhere in the proceedings. The Crown had explicitly accepted the submission made on the appellant's behalf as to remorse, which was supported by the psychologist's opinion. As the judge appears to have treated the absence of remorse as a matter adverse to the appellant, this bearing upon his risk of re-offending, her Honour ought to have afforded the appellant an opportunity to challenge such a finding. Particularly that was so when it involved rejection of the opinion expressed by the psychologist.

49 Procedural fairness must be upheld for its own sake, as well as for its consequences because 'the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge'.[42] The concern is with the fairness of the procedure adopted rather than the fairness of the outcome; with the decision-making process not the decision.[43] The Crown accepted during oral argument that there had been a breach of procedural fairness. It was but faintly argued that the breach could not have made any difference to the sentence imposed, as it was accepted that it affected her Honour's assessment of the risk of re-offending. Even if that concession had not been made, once the breach of the rules of natural justice was demonstrated, the appellant was entitled to relief. We are quite unable to reach the necessary affirmative conclusion that compliance with the requirements of procedural fairness 'could have made no difference' to her Honour's view of the appropriate sentence.[44]

50 It is worth noting that the principles of natural justice which prohibit a judge from having recourse to material which is not before the court apply also to juries. There have been a number of occasions recently where jurors, despite strong directions from the trial judge that they must not do so, have improperly undertaken research and obtained information which they considered relevant to the case they were hearing. Anecdotal evidence suggests that the powerful resource tool of the internet is already too often utilised by jurors who wish to research legal issues or some aspect of the case. Directing juries that they must be true to their oath and that they should decide the case before them on the evidence which is adduced in court, and informing them of the sanctions which may apply if they disobey those directions, is in our opinion not sufficient. To increase the prospect that jurors will observe such directions, they should be accompanied by a careful explanation as to why such conduct gives rise to the risk of injustice and an unfair trial. The directions and the explanation should be given to the jury at the commencement and conclusion of a trial.

51 Judges and juries alike should be alert to the fact that access to material that is not before the court carries with it the inherent risks that the information may be irrelevant, inaccurate or unfairly prejudicial to a party. They must be made aware that recourse to material which is not in evidence denies the parties their fundamental right to challenge or comment upon such material. In an extra curial speech at a Supreme and Federal Courts Judges' Conference,[45] Justice Bell, now of the High Court, emphasised why jurors are not permitted to make their own enquiries. Her Honour observed :

It may not occur to essentially fair-minded, conscientious jurors, who are instructed that they have the sole responsibility for deciding the facts, that the conduct of their own inquiries works unfairness.

52 The Bench Book of the Crown Court contains the following suggested direction to a jury explaining part of their responsibilities:[46]

We have a system of open justice in which the parties themselves decide what evidence to adduce at trial. It is upon that evidence alone that the jury must reach their verdict. They should not to seek further information about, or relevant to, the case from any source outside court, including internet (e.g. Google). If they were to do so it would be unfair to the prosecution and the defence because neither would be aware of the research and its results and, therefore, would be unable to respond to it.

53 As we have said, the judge was not entitled to inform herself in the way that she did, and act on the information which she gleaned, without recourse to the parties. Further, given the state of the evidence and the attitude of the Crown, her Honour should not have rejected the contention that the appellant was remorseful without affording him an opportunity to be heard.

55 Although not strictly necessary to address ground 4, since, specific error having been found, the sentencing discretion is reopened, we think we should nonetheless express our views on the question whether the sentences passed were manifestly excessive.

56 It has been said often enough that whether a sentence is or is not manifestly excessive does not admit of a deal of argument.[47] A sentencing judge instinctively synthesises all relevant factors and arrives at a sentence which he or she thinks is appropriate. An appellate court approaches the task of assessing whether a sentence is manifestly, as opposed to merely arguably, excessive in the same way. The members of the appellate court synthesise all relevant factors.[48] No matter that the appellate court regards the sentence as stern, or that the members of the court might themselves not have passed the same sentence, appellate intervention is not warranted unless the sentence is outside the range of those open in the sound exercise of discretion.[49]

57 In this case we have no hesitation in concluding that the sentence on the second charge, which involved the touching of the complainant's leg, was manifestly excessive in all the circumstances. We do not ignore the great differences in age, the breach of trust, the fact that this was the second incident involving the appellant and complainant, or any of the other circumstances that are relevant. But the fact remains that the indecent act did not involve, as did the first charge, the actual touching of the victim's genitals. Thus a sentence of two years' imprisonment on charge 2 is to our minds manifestly excessive.

58 The sentence passed on charge 1 was stern. If it had been the only sentence imposed, we might not have been prepared to conclude that it was outside the range of those open in the sound exercise of the sentencing discretion. But we are persuaded, considering all the circumstances of this case, that the sentence on charge 1 should be characterised as manifestly excessive. In our opinion, therefore, quite apart from the distinct errors under grounds 2 and 3 which reopen the sentencing discretion, appellate intervention is also warranted by virtue of the manifestly excessive sentence imposed on each of the charges.

59 Error having been shown, we think that a different sentence should be passed. It is for this Court to exercise the sentencing discretion afresh.

60 There is no doubt that the offences are serious, involving sexual interference with a vulnerable child. They represent a significant breach of trust; and, as the complainant's victim impact statement reveals, they have had a marked effect on her. As against that, the appellant was a mature man of otherwise good character, and was good husband and father with a very good work record. Moreover, the appellant pleaded guilty - albeit described by the judge as a 'court door plea' - thus saving the victim from the ordeal of giving evidence. The pleas also had a utilitarian value and represented a degree of remorse.

61 Additionally, there is evidence before this Court which was not before the sentencing judge, in the form of a report dated 13 May 2013 from the Royal Victorian Eye and Ear Hospital under the hand of Dr Andrew Shaw. The effect of that report is that the applicant has been diagnosed as suffering from bilateral non-proliferative retinopathy (changes throughout the retina representing damage to the retinal circulation) and bilateral diabetic macular oedema (swelling at the centre of the retina). An affidavit affirmed by the appellant on 15 May 2013 sets out the difficulties caused for him in custody by the onset of headaches and blurred vision which led to the diagnosis of his eye condition. This material demonstrates that imprisonment will be for him more burdensome than for someone unafflicted by a similar condition.

62 Balancing, as best we are able, all relevant factors, we would convict the appellant and impose a sentence of 18 months' imprisonment of charge 1, and a sentence of nine (9) months imprisonment on charge 2. We would order two (2) months of the sentence on charge 2 to be served cumulatively with that on charge 1, making a total effective sentence of 20 months' imprisonment. We would suspend all but 10 months of that period of imprisonment for a period of two (2) years and six (6) months.

63 Section 6AAA of the Sentencing Act 1991 requires the Court, if it imposes a less severe sentence than it would otherwise have imposed because of the guilty pleas, to state the sentence and non-parole period that it would have imposed but for the plea of guilty. Given that any sentence now passed must represent an instinctive synthesis of all relevant factors, and given that the court cannot look at mitigating features in isolation, s 6AAA requires the Court to indulge in a somewhat artificial (although legislatively mandated) exercise in order to apply it.[50] Doing the best we can, we state that, but for the appellant's pleas of guilty, we would have imposed a total effective sentence of three (3) years' imprisonment, with a non-parole period of 18 months.

64 We will make the appropriate declaration as to days already served pursuant to the sentence.

[1] Crimes Act 1958, s 47(1).

[2] Crimes Act 1958, s 464ZF(2).

[3] The reporting period was 15 years, pursuant to the Sex Offenders Registration Act 2004, s 34.

[4] Visual and Audio Recorded Evidence. See Criminal Procedure Act 2009, s 367.

[5] Kaplan v Lee-Archer [2007] VSCA 42; (2007) 15 VR 405.

1. [8] R v Boyd [1975] VicRp 16; [1975] VR 168, 172; see also R v Boxtel [1994] VicRp 54; [1994] 2 VR 98, 103-4; Director of Public Prosecutions v Cook [2004] VSCA 11; (2004) 141 A Crim R 579, 586-7 [17]; Director of Public Prosecutions v Arvanitidis (2008) 202 A Crim R 300, 315 [52], [2008] VSCA 189 [52]; Eade v R [2012] VSCA 142, [30]. Compare Staats v R [1998] NTCCA 13; (1998) 123 NTR 16, 21 (Martin CJ), 26-7 (Angel J).
2. [9] Eade v R [2012] VSCA 142, [31].

[10] In Eade v R [2012] VSCA 142 it was noted that s 5(2)(daa) was inserted in 2005, long after the insertion of s 5(2)(da) and (db); and that, by linking 'impact' suffered by the victims to the broad definition of 'victim' in s 3(1), Parliament showed a clear intention 'to displace the common law requirement that unintended consequences of an offence must be 'reasonably foreseeable'.

[11] Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Shorey v PT Ltd [2003] HCA 27; (2003) 197 ALR 410, 419-20 [44]-[49].

[12] R v Storey [1998] 1 VR 359; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270. See also Staats v R [1998] NTCCA 13; (1998) 123 NTR 16, 20-21 (Martin CJ).

[14] Ryan v The Queen (2001) 206 CLR 267, 275 [23]-[25] (McHugh J), 298 [103] (Kirby J), 319 [178] (Callinan J).

[17] Ibid [33]-[34] (citations omitted).

[18] Ristevski v R [2011] VSCA 53; (2011) 31 VR 193, 195 [9]-[10].

[19] R v Mielicki (1994) 73 A Crim R 72, 78-80; R v Duong [1998] 4 VR 68, 77_; R v Lowe_ [2009] VSCA 268, [16]-[21].

[20] R v Li [1998] 1 VR 637, 643.

[21] [1994] HCA 66; (1994) 119 ALR 206, 210.

[22] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, 381-3 [146] (Heydon J).

[23] Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, 569 (Gibbs CJ), 582 (Mason J).

[25] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 611 [40].

[26] Concrete Pty Ltd v Parramatta Design & Development Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, 609-10 [111]-[112] (Kirby and Crennan JJ); R v Burrell [2007] NSWCCA 79; (2007) 175 A Crim R 21 (McClellan CJ at CL).

[27] Cross on Evidence (3rd Aust ed), D M Byrne QC, J D Heydon QC, 101, 104 ('Cross'); P B Carter, Judicial Notice: Related and Unrelated Matters, in Well and truly tried: essays on evidence in honour of Sir Richard Eggleston, _(_ed by Enid Campbell and Louis Waller, 90).

[28] Cross, 101; Cavanett v Chambers [1968] SASR 97, 101 (Bray CJ); International Finance Trust Co Ltd v New South Wales Crimes Commission [2009] HCA 49; (2009) 240 CLR 319, 381-3 [146] (Heydon J); Kuhl v Zurich Financial Services Aust Ltd [2011] HCA 11; (2011) 243 CLR 361, 387 [69] (Heydon, Crennan and Bell JJ).

[29] [1968] SASR 97.

[30] [1963] Ch 381, 405-6.

[31] [1965] P 75, 78.

[32] [2011] HCA 11; (2011) 243 CLR 361, 387 [69].

1. [33] Australian and Overseas Telecommunications Corporation Ltd v McAuslan [1993] FCA 620; (1993) 47 FCR 492, 495-496, 508-510, 517-519.

[36] CMG v The Queen [2011] VSCA 416.

[38] See, for example, R v H [2005] NSWCCA 282, [67]-[69]; Perrin v The Queen [2006] NSWCCA 64.

[39] [1993] FCA 620; (1993) 47 FCR 492.

[40] Tao Va v The Queen [2011] VSCA 426, [25].

[41] [2000] HCA 57; (2000) 204 CLR 82, 121 [101].

[42] NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1, 26 [83] (Kirby J).

[43] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492, 514 [60] ('Ucar').

[44] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145; Ucar, 527 [102]

[45] How to Preserve the Integrity of Jury Trials in a Mass Media Age-January 2005

[46] Directing The Jury, Crown Court, Bench Book 2010.

1. [47] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R [2013] VSCA 44, [51]-[52]. See too Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, [6].

[49] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672, [15].

[50] With respect, we fully endorse the views expressed by Kaye J in R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305.