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Ashdown v The Queen [2011] VSCA 408 (7 December 2011)

Last Updated: 31 July 2015

SUPREME COURT OF VICTORIA

COURT OF APPEAL

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CRIMINAL LAW – Appeal – Sentence – Recklessly causing serious injury – Punch to face – Multiple facial fractures – Offender on suspended sentence for assault – Guilty plea – Sentence of 5 years – Whether manifestly excessive – Sentence outside range reasonably available – Resentenced to 3 years and 6 months’ imprisonment.

CRIMINAL LAW – Sentencing – Current sentencing practices – Recklessly causing serious injury – Director contending current sentencing practices inadequate – Whether commensurate with objective gravity of offence – Consideration of circumstances in which appeal court may express view about adequacy of current sentencing practices – Whether gap between maximum penalty and current sentencing practice alone provides basis upon which to uplift sentencing practice – Whether opinion as to adequacy of current sentencing practice must be a live issue for resolution in the appeal – Sentencing Act 1991 (Vic) s 5(2)(a), (b).

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MAXWELL P:

1 The appellant pleaded guilty to one count of recklessly causing serious injury (‘RCSI’), for which he was sentenced to five years’ imprisonment, and one count of assault, for which he was sentenced to six months’ imprisonment. The sentences were ordered to be served cumulatively upon each other.

2 On 17 December 2010, the Court allowed his appeal, quashed the sentences and resentenced the appellant. The details of the resentencing (which included the restoration of a suspended sentence) are set out in the reasons of Ashley JA, which I have had the advantage of reading. The most significant alteration was the reduction in the sentence for RCSI to three years and six months.

3 The maximum penalty for RCSI is 15 years’ imprisonment. As will appear, a sentence of five years’ imprisonment for an offender who pleads guilty to this offence is exceptionally high under current sentencing practices. For the reasons given by Ashley JA,[1] with which I respectfully agree, the circumstances of this case did not warrant a sentence at the highest end of current sentencing practice.

4 The appellant was resentenced in accordance with current practice. Unconstrained by current sentencing practices, however, I would have regarded the sentence as unimpeachable.[2] My reasons are as follows.

Current sentencing practices and sentencing range

5 The applicable sentencing range for an offender who pleads guilty will to a substantial degree be determined by current sentencing practices.[3] This is so for three reasons. First, the sentencing judge is required by statute to have regard to current sentencing practices.[4] Secondly, the offender’s plea of guilty will have been entered on the reasonable assumption that his/her sentencing will be in line with current practice.[5] Thirdly, as this Court has repeatedly emphasised, consistency of sentencing is a fundamental objective of the criminal law. The rule of law requires that like cases be treated alike.[6]

6 This appeal was heard together with the appeal in Winch.[7] In each case, the primary ground of appeal was that the sentence imposed was manifestly excessive. That ground could only succeed if the sentence imposed was shown to be outside the range reasonably open to the judge in the circumstances. Conversely, in resisting the appeal, the Crown would be seeking to establish that the sentence was within range. Accordingly, in granting leave to appeal in each matter, I had directed the Crown to file a submission identifying what it said was the applicable sentencing range for the offender in question.[8]

7 The Crown was directed to support its submissions on sentencing range in both appeals by a compilation of all instances of sentencing in the County Court for the offence of RCSI in the three-year period 2007–09. In the event, some 276 individual RCSI sentencing decisions were tabulated in summary form. This was an enormous task, far greater in scale than might have been anticipated, but the work has been of great assistance.

8 It should be noted that no submission was sought from the Crown, and none was foreshadowed, as to the adequacy of current sentencing practices for RCSI. As will appear, that issue was raised for the first time in the Crown’s written submissions for the appeals.

What is current sentencing practice for RCSI?

9 Counsel for the appellant relied on statistical data produced by the Sentencing Advisory Council (‘SAC’) in its 2010 Sentencing Snapshot for RCSI.[9] During the fiveyear period 2004–5 to 2008–9, 560 people were sentenced in the higher courts for RCSI. (As counsel pointed out, most offenders sentenced for this offence are dealt with in the Magistrates’ Court. This can occur where the defendant consents and the magistrate is of the view that it is appropriate for the case to be heard in that court.)

10 For those 560, the breakdown of sentencing dispositions was as follows:

11 The SAC survey also showed that, over the five-year period, the median term of imprisonment for RCSI was two years. This means, as the SAC explained, that half of those sentenced received sentences above, and half below, two years’ imprisonment. Two years was also the most common sentence of imprisonment. The average was two years and three months.

12 Importantly for present purposes, only 11 of the 212 persons sentenced to immediate imprisonment received a longer imprisonment term on the RCSI count than the appellant did. Hence the appellant could justifiably submit that his sentence lay ‘at the statistical extreme’. For its part, the Crown acknowledged that only 19 of the 560 persons sentenced had received a sentence of five years’ imprisonment or more. This meant that ’96.6 per cent of offenders [sentenced in the higher courts] received a lesser sentence than that imposed on this appellant.’

13 The limitations of aggregate statistics are well recognised, but they make a very powerful point when used in this way. By identifying the outer limits of current practice, the statistics show that this sentence was exceptionally –unjustifiably – high when judged against current sentencing practice.

14 This conclusion is reinforced by a comparative examination of the sentencing decisions collated by the Crown and of appeal decisions in this Court over the period 2005–2010. The table at Appendix A summarises 27 sentencing decisions, in respect of 35 offenders, chosen at random from the Crown’s compilation, representing 10 per cent of the total. It can be seen from this sample that a sentence of more than three years is quite unusual, and a sentence of four years or more (even for a person with prior convictions for violent offending) is exceptional. Leaving aside the sentence of 11 years imposed by this Court in Director of Public Prosecutions v Terrick,[10] the highest sentence in the sample is five years’ imprisonment in the case of R v Henare.[11] In that case, unlike the present, there were horrific injuries, with permanent consequences, and they resulted from the use of a very dangerous weapon (a pool cue).

15 The table at Appendix B collects together, in summary form, all of the decisions of this Court for the period 2005–2010 in appeals (both by offenders and by the Director) against sentences imposed for RCSI. Fiftyeight such appeals were decided in that period. It would be expected that appeals brought by offenders would include a higher proportion of heavier sentences than would be found amongst the first instance decisions. Appendix B bears this out, but only to a limited degree. Of the 37 offender appeals decided, only nine (or 24 per cent) involved sentences of five years and above. This would seem to confirm that sentences of five years and above are exceptional under current practice.

16 Importantly, most of the appeal cases involving a sentence for RCSI of five years and above were markedly different from the present. (Both Terrick[12] and Ashe v The Queen[13] are altogether different, as each was said to represent the worst category of this offence.) Recurrent features of the cases in this group are:

• a plea of not guilty, precluding any discount for guilty plea;
• the use of a dangerous weapon;
• life-threatening and usually permanent injury; and
• relevant, recent, prior convictions for violence, often including RCSI.

17 The following table summarises those features:

Use of a weapon

18 The offence of RCSI is only committed if the offender foresees the probability that his/her action will cause serious injury to the victim, and goes ahead regardless of that probability.[14] As noted in Winch,[15] this is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.

19 As this Court pointed out in Ashe,[16] the assessment of the seriousness of a particular instance of RCSI will involve considering both the degree of probability that serious injury will result, and the degree of seriousness of the probable injury. Ordinarily, therefore, the use of a weapon will mean that the offence is more serious, since it heightens both the probability of serious injury and the degree of seriousness of the probable injury. The conclusion in Winch[17] was that glassing was a serious instance of RCSI because of ‘the obvious dangerousness of a glass or bottle (whether broken or not) when used to strike a blow to the face or head.’

20 The same is true, but much more so, of the use of a knife to inflict injury. While a bottle or glass applied to the face will cause lacerations, a knife is very likely to penetrate through the victim’s flesh. Use of a knife therefore carries with it a high – and obvious – risk of serious injury to the victim’s internal organs and/or blood supply. Injuries of this kind are often life-threatening.[18] This Court has repeatedly remarked upon the dangerousness of knives.[19] In R v Vance,[20] Coghlan J said:

The use of knives in the community is to be abhorred. It is in these circumstances that injuries more serious than those actually intended occur, particularly when alcohol is involved.

21 The table at Appendix C collects together the relevant decisions (both from this Court and from the County Court) on RCSI with a weapon. Once again, sentences of five years and above can be seen to be exceptional. There are numerous examples of offenders who caused serious injury by the reckless use of a knife and received sentences of two years and six months or less (often partly or wholly suspended). The following cases are illustrative:

22 The present appellant did not use a weapon. But the conclusion that his sentence was anomalously high is reinforced by this review of sentences imposed for RCSI in cases where a knife was used.

23 Of course, a clenched fist can be a lethal weapon when used to deliver a hard punch to a person’s head. And the combination of punching and kicking is more lethal again, as tragic cases such as Terrick[21] illustrate. But the present case was not of that type. As Ashley JA has described, the appellant struck a single blow to the side of the victim’s face, albeit with sufficient force to break her cheekbone and cause her to fall to the ground.

24 One further comparison is necessary to complete this review. The table at Appendix D summarises the sentences for RCSI (at first instance and on appeal) where no weapon was used. It can be seen that in almost all of the cases the sentence imposed was three years or less. In the majority of these cases, the offender had relevant prior convictions. They also include a number of instances of unprovoked street violence against innocent victims, being cases where general deterrence is of particular importance.[22] The street violence cases were as set out below:

25 The foregoing analysis of current sentencing practice reinforces the conclusion that the five year sentence imposed on the appellant was not reasonably open in the circumstances. Put another way, the sentence represented an unjustifiable departure from current sentencing practices, which the appellant having pleaded guilty was entitled to assume would apply. The majority in Winch[24] came to a similar conclusion.

26 The adequacy of current sentencing practice for this offence is, however, a separate question, which was raised for the first time in the written submissions of the Crown, in this appeal and in Winch.

Examining current sentencing practices

27 The Crown submitted in each appeal that the Court could, and should, express a view about the (in)adequacy of current sentencing practices for RCSI. In Winch,[25] the majority acceded to that submission. Winch concerned ‘glassing’ as a particular sub-category of RCSI. Counsel for the Crown submitted that the compilation of first instance decisions placed the Court in ‘an excellent position’ to review sentencing practices. Counsel urged the Court to ‘make strong observations as to the need to alter sentencing practices’.

28 The relevant parts of the joint judgment were in these terms:

The work undertaken on current sentencing pursuant to Maxwell P’s direction led the Crown to submit on this appeal that current sentencing for glassing (as an instance of RCSI) should be incrementally uplifted. For reasons which follow, we agree with the Crown’s submission that the general run of sentences imposed for glassing as an instance of RCSI does not sufficiently reflect the fact that such conduct is inherently dangerous, and should not be treated as a less serious form of the offence of RCSI.

‘Glassing’ cases have a number of recurrent features. The typical glassing – of which the present appeal is an illustration – occurs in or near licensed premises. It is usually an act of alcohol-fuelled aggression, in disproportionate response to an actual or perceived slight. The typical offender is young and of generally good character, and is full of remorse after the event.

The consequences of glassing are, almost invariably, very serious. Striking to the face or head with a bottle or glass carries a high – and obvious – risk of serious injury. The victim of a glassing almost always suffers severe lacerations; often has permanent facial scarring; and suffers physical and psychological damage which is typically long-term and often permanent.

It is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.^[26]

...

[I]n a glassing case (where the offender is being sentenced for RCSI) the full suspension of a custodial sentence will not ordinarily be an available sentencing option. The objective gravity of the offence will usually require a term of immediate imprisonment. This approach is necessary, in our view, if the courts are to give appropriate effect to the maximum penalty – which marks out the sentencing parameters^[27] – and to general deterrence, and to recognise the objective seriousness of ‘glassing’ as an instance of RCSI.

Glassing cases should, in our view, be treated as being in the same category as other RSCI offences which involve the use of a dangerous weapon likely to produce serious injury. There is no warrant for placing these cases in a lower category of seriousness where an immediate custodial sentence is not ordinarily required.

It follows, in my view, that sentencing judges should not regard themselves as constrained to follow the course disclosed by the glassing cases to which we have referred.^[28]

29 As will appear, I do not regard it as appropriate to address the much broader question raised by the Crown in the present appeal, of the adequacy of sentencing across the whole range of RCSI offending. In view of what Ashley JA has written, however, it is important that I reaffirm my view that, in an appropriate case, this Court can and should express a view about the adequacy of current sentencing practices.

30 In a series of unanimous decisions to which I will refer, this Court has recognised the scope which exists for conflict between the guidance afforded to sentencing courts by the maximum penalty for an offence and the guidance afforded by current sentencing practice for that offence. A sentencing judge is, of course, obliged to take both considerations into account in determining an appropriate sentence.[29] The resolution of that conflict may require a sentencing judge to do as Nettle JA did in R v A B,[30] and decline to follow current sentencing practice ‘down to a level below the sentence which [the] maximum implies it is necessary to impose’.[31]

31 Self-evidently, this Court has a role to play in the resolution of such questions. This is well illustrated by the appeal decision in A B (No 2),[32] where the Court endorsed the view of Nettle JA that current sentencing practice for manslaughter did not adequately reflect the maximum penalty.

32 Often enough, the disparity between current sentencing practice and the applicable maximum will become apparent in a case where, because the offender pleaded guilty, the appropriateness of the particular sentence falls to be judged by reference to current practice. If, however, the conclusion is arrived at that current practice does not adequately reflect the guidance provided by the maximum, then it is both appropriate and necessary for this Court to say so, for the guidance of sentencing courts. That is what occurred in Winch.

The course of decisions in this Court

33 The first decision in the series is DPP v O J A.[33] In that case, Nettle JA (with whom Ashley and Redlich JJA agreed) pointed out that, while current sentencing practices were a necessary and useful reference point, they were not to be regarded as fixed and immutable. His Honour said:

I start from the approach that there is no sentencing tariff as such. Apart from the maximum sentence prescribed by Parliament, the intuitive synthesis approach to sentencing implies an absence of necessary relationship between one case and another. Accordingly, as the law stands, any notion of a mathematical norm above or below which a case might be cast according to aggravating increments and mitigating decrements is precluded by a general prohibition on the use of two part sentencing processes. At the same time, it is of the nature of sexual offences that some instances of an offence are more serious than others. Since that is so, there is a need for at least some degree of comparison. The requirement to have regard to ‘current sentencing practices’ is properly to be understood in that context and the notions of manifest excessiveness and manifest inadequacy are similarly informed.

Secondly, the need to have regard to current sentencing practices does not mean that the measures of manifest excessiveness and manifest inadequacy are capped and collared by the highest and lowest sentences for similar offences hitherto imposed. In fact, as in theory, each case is different and so it is always possible that a sentence may properly rise above or fall below the greatest and lowest sentences previously imposed. At the same time, however, the nature of criminal conduct is such that there is not infrequently sufficient similarity between two cases to imply that sentences should be comparable and, if they are not, that something has gone awry.

Thirdly, and importantly, it should not be thought that the statutory requirement to have regard to current sentencing practices forecloses the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Over time, views may change about the length of sentence which should be imposed in particular cases and, when that occurs, the notions of manifest excessiveness and manifest inadequacy will be affected. Accordingly, to say of an individual sentence of six years, or a total effective sentence of 15 years, that it is near as large as any before imposed for offending of this kind, is not necessarily an answer to the question of whether it is manifestly inadequate. One must allow for the possibility that sentences to this point have simply been too low.^[34]

34 In A B,[35] Nettle JA (sitting as a trial judge) concluded that sentencing practices for manslaughter had not changed to take account of the 1997 increase in the maximum penalty from 15 years to 20. In his reasons for sentence, his Honour said:

The last of the sentencing considerations to which I am bound to have regard is current sentencing practice, and it is a factor about which views are likely to differ. Before the maximum sentence for manslaughter was increased in 1997 from 15 years to 20 years’ imprisonment, sentences of imprisonment imposed in cases of manslaughter by reason of provocation tended not to exceed 10 years and were frequently less, although there were cases in which they ranged as high as 13 years.^[36] Following the increase in the maximum to years to 20 years’ imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.^[37]

For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the sentence which a maximum of 20 years implies it is necessary to impose. Since the maximum sentence is now 20 years’ imprisonment, and since in the case of manslaughter by provocation that maximum takes into account the ameliorating effect of provocation, I consider that the gravest offences of manslaughter are liable to attract sentences of 17 years or more.^[38]

35 This Court (Warren CJ, Maxwell P and Redlich JA), dismissed an appeal against the sentence of 15 years’ imprisonment which his Honour imposed.[39] In a joint judgment, the Court said:

The maximum sentence provides a guide as to the seriousness with which a particular offence should be viewed. It serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question.^[40] Recently, in R v Sibic, this court referred to the following passage from the decision of the High Court in Markarian v The Queen,^[41] where the majority said:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.^[42]

...

In some cases – and the present is an example – a tension may arise between ‘sentencing practices’ and other matters specified in s 5(2). Another example is where different charges could appropriately have been laid for the same offending conduct and, though the offender is charged with an offence carrying the higher maximum sentence, the statutory maximum of the lesser punitive regime has guided the sentencing court.^[43]

As appears from the passages set out above, the trial judge paid close attention to current sentencing practices, including ‘the utility of current sentencing trends’. His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased.^[44] This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.

How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing^[45] but was obliged to give effect to Parliament’s decision to increase the maximum penalty.^[46] As the maximum sentence is reserved for the worst sort of cases – and this was one – the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by A B.^[47]

36 The limiting effect of current sentencing practices, and the scope for conflict with the maximum penalty, was again highlighted in DPP v C P D.[48] In that case, the Director had appealed against sentences of 18 months (for representative counts of sexual penetration of two children under 10 years of age) and 15 months (for discrete counts of sexual penetration of the same children). As recorded in the joint judgment of the Court (Maxwell P, Redlich JA and Robson AJA), the Director contended that there was an unjustifiable discrepancy between the sentences imposed and the maximum penalty of 25 years for the offences in question. The sentences imposed on the offender were said to be ‘out of whack’ with the statutory maximum. But when the Court invited the Director to make submissions about the appropriate sentencing range for the offending in question, the range put forward still bore little apparent relationship to the maximum penalty of 25 years. When this was pointed out by the Court, senior counsel for the Crown did not demur, but said that the Crown regarded itself as constrained in its submissions on range by current sentencing practices for the offence.[49]

37 The Court in that case concluded that, even by current sentencing standards, the sentences imposed on the offender were manifestly inadequate. On the question of resentencing, the Court observed:

[C]urrent sentencing practices for sexual penetration of a child under 10 appear difficult to reconcile with the high maximum set by Parliament. It may be that sentencing courts have not responded to the 1997 increase in the maximum from 20 to 25 years. If that were so, it would follow from the decision of this Court in A B (No 2)^[50] that in resentencing I would not be constrained by current sentencing practices. If the matter were fully argued on proper material, this Court may conclude, having regard to the increased maximum and other relevant considerations, that a departure from current sentencing practices was required.^[51]

In the event, however, the Court was constrained by the offender’s plea of guilty to resentence him in accordance with current sentencing practices.^[52]

38 The next case was DPP v D D J.[53] Relevantly, the case concerned the offence of maintaining a sexual relationship with a child under 16 (the maximum penalty for which is 25 years’ imprisonment). As in C P D, the Court concluded that, judged by current sentencing standards, the sentence was manifestly inadequate. In its joint judgment, the Court (Maxwell P, Vincent and Neave JJA) said:

[T]he sentencing information provided by the Director indicates that current sentencing practices for this offence are inadequate. The range of sentences being imposed appears not to reflect the very high maximum which Parliament has fixed. But, however that may be, we are not at liberty in resentencing D D J to disregard current practices. The simple reason is that his plea of guilty was entered on the reasonable assumption that he would be sentenced according to current practices. It would be unfair, therefore, to resentence him on a basis which he could not reasonably have anticipated when deciding whether to plead guilty or contest the charges.^[54]

39 Addressing the tension between the current sentencing practices and the maximum penalty, the Court said:[55]

Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to have regard to current sentencing practices. But they are also required – by s 5(2)(a) – to have regard to the maximum penalty for the offence. The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. As this Court said in A B (No 2), the setting of the statutory maximum fixes the parameters within which the sentencing discretion is to be exercised. The analysis set out above indicates that the statutory maximum for this offence is not being given appropriate weight.

Sentencing judges are not to be criticised for paying careful attention to current sentencing practices. Not only are they bound by statute to do so but they are naturally concerned to ensure consistency of sentencing from one case to another. After all, the first of the stated purposes of the Sentencing Act 1991 (Vic) is ‘to promote consistency of approach in the sentencing of offenders.’ Consistency in sentencing is a hallmark of the rule of law.

But the significance of this Court’s decision in A B (No 2) is that a judge who concludes – as the trial judge did in that case – that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise, as discussed above).

As noted earlier, senior counsel for the Director did not invite the Court on this appeal to express a view about the adequacy of current sentencing practices for this offence. We do not doubt that it would be competent for this Court to do so. Like the sentencing court, this Court must have regard both to the applicable maximum penalty and to current sentencing practices for the offence. Those considerations are relevant both in deciding whether (in the case of a Crown appeal) the sentence is manifestly inadequate and, if the discretion is reopened, in resentencing. Moreover, one of the functions of this Court on a Crown appeal is

to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons [and] to enable the courts to establish and maintain adequate standards of punishment for crime ...^[56]

40 I would wish to draw particular attention to the last part of this extract, which is taken from the judgment of Charles JA (with whom Winneke P and Hayne JA agreed) in R v Clarke.[57] As this statement shows, it has been accepted since the earliest years of the Court of Appeal that this Court performs a necessary function in giving guidance to sentencing courts and enabling them to ‘establish and maintain adequate standards of punishment for crime’.

41 The Parliament’s function is to set the parameters for sentencing, by fixing maximum penalties. This Court’s function is to ensure that, in the exercise of the sentencing discretion, sentencing judges are ‘maintaining adequate standards of punishment’ within those parameters. Unsurprisingly, what was said in Winch about current sentencing practices for ‘glassing’, and about its seriousness as an instance of RCSI, has been widely viewed as a helpful guide to sentencing for such offences.[58]

42 As I have said, these were all unanimous decisions of this Court. None of the decisions was appealed, and they have been regularly applied since.[59] As far as I am aware, there has been no suggestion subsequently that any of these decisions should be reconsidered.

The present appeal

43 In the present appeal, senior counsel for the Crown submitted that the Court should

make observations ... that the current sentencing practice in relation to recklessly causing serious injury is inadequate.

The collection of sentencing decisions was such, it was submitted, as to cause the Court ‘to make suitable observations so as to increase or encourage the increase of penalties for this offence’. Again:

We have got all the material. We say that if you look at that in a broad brush, something is going very wrong in a significant number of cases. ... [T]here is something wrong, the sentences are too lenient.

Senior counsel did not contend that there had been any increase in the prevalence of the crime, but submitted that there was

considerable disquiet about public disorder at night in the city area, which is usually associated [with] nightclubs and similar places and almost inevitably associated with alcohol and quite possibly with amphetamines and things of that nature [which] send people violent.

44 At the request of the Court, counsel for the Crown subsequently provided a list identifying those of the cases in the Crown’s compilation which were said to illustrate the inadequacy of sentencing for RCSI. Twenty-nine cases were listed, representing approximately 10 per cent of the cases in the compilation. Unlike the list of sentences put forward in Winch, all of which concerned glassing as a particular instance of RCSI, the cases in this list covered a range of instances of RCSI, some involving weapons and some not, some involving offenders with relevant prior convictions and some not, some involving more serious injuries and some less so.

45 The difficulty confronting the Crown’s submission is readily apparent. First, in only three of these 27 cases did the Director of Public Prosecutions bring an appeal against the sentence, and each of those appeals was dismissed.[60] It would simply not be possible to assess the adequacy of the sentences in the other 24 cases without conducting the kind of review which would have taken place had the Director appealed. Second, even if I were persuaded that some or all of the sentences in question were inadequate, that would provide no proper basis for a generalised statement of the kind sought by the Crown, namely, that sentencing for RCSI is inadequate across the board.

46 What made it both possible and necessary to express a view about current sentencing practices in Winch was that glassing could be identified as a distinct sub-category of RCSI, characterised by the recurrent features to which the majority judgment referred.[61] That made it possible both to identify the state of current sentencing, based on the cases which the Crown had identified, and to express a view about its adequacy.

47 A similar exercise might well be possible with another sub-category, such as RSCI involving the use of a weapon. The cases collected in Appendix C might, subject to appropriate submissions, provide a foundation for conclusions about the adequacy of current sentencing practice for offences of that type. The present case does not, of course, fall into that category.

The sentence in the present case

48 I said earlier that, unconstrained by current sentencing practice, I would have regarded the sentence imposed on the present appellant as unimpeachable. It is important to explain why.

49 Although this case is not the worst of its kind, there were significant aspects of both the offending and the offender’s record which would have made a sentence of five years’ imprisonment entirely appropriate. First, this was a terrifying attack, as the sentencing judge found. According to counsel, the appellant had become angry, after a dispute with his new partner, and had ‘taken it out’ on his former partner. Such cowardly behaviour and lack of self-control calls for denunciation in the strongest terms.

50 Secondly, what made the offending all the more serious was that it occurred while the appellant was serving a suspended sentence imposed for a similar attack on the same victim. On the earlier occasion, the appellant had been convicted of burglary, destroying property and assault. As the sentencing judge noted, the second attack occurred only a matter of months after the appellant began the 14 month period of suspension of the sentences. His Honour was right to describe that as a ‘particularly distasteful and concerning’ aspect of the second attack.

51 When regard is had to the appellant’s extensive criminal history, which included a number of other convictions for violence, it is clear that there was a heightened need for specific deterrence. As the Crown pointed out in its submission, the appellant’s criminal record revealed a disposition to violence and underlined the need for caution in assessing his prospects of rehabilitation.[62]

52 As the majority said in Winch,[63] it is important to recall that RCSI is a very serious offence. It carries a maximum penalty of 15 years. An examination of the elements of the offence reveals why this is so. First, the offence involves the causing of serious injury to the victim. Secondly, the mental element of the offence – recklessness – means that the offender has consciously disregarded a known risk.

53 The offence of RCSI is only committed if the offender foresaw the probability that his/her action would cause serious injury to the victim, and went ahead regardless of that probability. This is not mere carelessness, where the offender fails to appreciate the risk of injury. This is conscious disregard of a risk of serious injury which the offender knows to exist.

54 In the present case, the offender already had his hands around the victim’s neck when he punched her to the face. By his plea, he acknowledged that he went ahead knowing that what he was doing would probably cause serious injury. And, of course, the punch did seriously injure the victim. The facial injuries she received required extensive medical treatment.

55 A sentence of five years’ imprisonment represents only a third of the maximum. For the reasons I have given, I consider that a sentence of that order would – current sentencing practice apart – have been entirely appropriate in the circumstances of this case.

ASHLEY JA:

56 On 17 December last, the Court allowed this appeal against sentence, and re-sentenced the appellant. The reasons following, though written in the future tense, explain why I joined in those orders.

57 Bradley Ashdown appeals by leave[64] against sentence passed on him in the County Court on 21 May 2009. On that day, having pleaded guilty, he was sentenced to five years’ imprisonment on a count of causing serious injury recklessly (count 1),[65] and to six months’ imprisonment, to be served cumulatively, on a count of assault.[66] In addition, the judge restored a suspended sentence of 14 months’ imprisonment, and ordered (in substance) that six months of that sentence be cumulated on the sentence on count 1. The total effective sentence was thus six years’ imprisonment. The judge fixed a non-parole period of four years’ imprisonment. He declared that 310 days stood as pre-sentence detention.

58 The appellant appeals upon the following grounds:

1. The learned sentencing Judge erred in failing to give a sufficient discount for the appellant’s plea of guilty ...
2. The learned sentencing Judge erred by ordering that the whole of the sentence imposed on Count 2 be served cumulatively on Count 1 ...

3. The sentence imposed on Count 1 is manifestly excessive.

59 For the reasons which follow, I consider that the appeal should be allowed and that the appellant should be re-sentenced.

Circumstances of offending

60 The offending reflected in counts 1 and 2 took place on 14 July 2008. The victim of count 1 was HG, a woman aged 48 at the time of the offending, and a former girlfriend of the appellant. The victim of count 2 was JG, the son of the first victim. He was aged 14 in July 2008. The appellant, a man born 19 February 1971, was then aged 37.

61 The appellant went to the victims’ home in the early evening of 14 July. He seemed to be agitated. He complained to HG that he had broken his finger, that he was going to lose his flat, and that, in all, he was going through a ‘bad trot’.

62 HG let the appellant into her home. Once inside, he became verbally aggressive. HG began to panic. She called out to her son to help her. The appellant then barged into the son’s bedroom, where the boy and a friend were playing a video game.

63 The appellant accused the son of stealing his pushbikes, and being responsible for him going to gaol.

64 HG then said to the appellant that she would stab him if he kept yelling at her son. The appellant then turned on HG, and chased her into the lounge room of the home. For a period they yelled at each other, face to face.

65 HG went into the kitchen. The appellant followed her. He pushed HG to the floor, and head-butted a cupboard door. It fell off its hinges and onto HG’s legs.

66 By this time, JG was in the near vicinity. He told the appellant to stop yelling at his mother, and to leave the house. The appellant’s response was to grab JG around the throat and begin to choke him. But JG broke free. These were the circumstances of count 2.

67 JG said to the appellant that if the latter did not leave the house, then he would do so. The appellant did not leave. JG did.

68 The appellant returned to confront HG. He yelled at her, pushed her up against a refrigerator, put his hands around her throat and lifted her off the ground, then hit her to the right side of the face with sufficient force to cause her to fall to the ground. The blow was the reckless conduct the subject of count 1.

69 Then the appellant ran away.

70 HG suffered multiple facial fractures, particularly involving the right cheekbone and eye socket, a laceration over her right cheek, and extensive bruising. She underwent surgery to have her cheekbone plated and screwed, and to clean out her facial laceration. She was an inpatient for several days, and required post discharge follow-up.

71 HG made a victim impact statement. It contained an assertion that she had been unable to work for two years. But the prosecutor properly informed the judge that the position was that HG had lost her part time-employment as a kitchen hand during her period of recovery, and had been unable to obtain a new job.

The aftermath

72 The appellant was arrested the day after the incident. He stated, when interviewed, that he had no idea what had happened the previous day. He could not recall going to HG’s home. He had just been released from hospital, had gone home with his new partner and had consumed a good deal of alcohol, together with painkillers. He asserted that HG had something against him, because he had left her.

73 Notwithstanding this account of events, the appellant pleaded guilty at a committal hearing on 18 February 2009, without any need for witnesses to be called.

Plea hearing

74 At the plea hearing, the prosecutor directed the judge to a Sentencing Snapshot for the offence of causing serious injury recklessly. She pointed out that the total effective sentences imposed ranged between two months and 15 days and 15 years’ imprisonment, the median sentence being two years’ imprisonment. She also noted that the instant offences had been committed whilst the appellant was under suspended sentence of imprisonment, in consequence of which s 31(6) of the Sentencing Act 1991 applied.

75 Something should be said about the offences for which the suspended sentence had been imposed. The prosecutor informed the judge that they had involved the appellant and HG. It is enough to say that the appellant, whilst intoxicated, instigated a confrontation with HG. He verbally abused her and punched her once to the right cheek, causing her moderate pain. He also caused substantial damage to the premises where she was living, and to its contents, and did some damage to her motor vehicle.

76 Appellant’s counsel described his client’s background as one involving abuse of alcohol from age 12, and use of cannabis from age 13. A combination of learning difficulties and schoolyard fights had culminated in the appellant leaving school when quite young. He had gone out and found work.

77 Then, in the period between the ages of 17 and 25, he had begun to use amphetamines. He had been diagnosed with serious mental illness – ultimately, the diagnoses was drug-induced psychosis – and had spent time in mental institutions.

78 According to counsel’s submissions, at age 25 the appellant attempted to turn his life around. He obtained an apprenticeship and in due course qualified as a boilermaker. A new domestic relationship, however, had been soured by alcohol and jealousy.

79 In the latter part of 2006, counsel recounted, his client was diagnosed with hepatitis C. Treatment commenced. It had the side-effects of making him sweaty, agitated, and prone to mood swings.

80 It was at that time, according to counsel, that the appellant committed the offences for which the suspended sentence was imposed. They arose out of a dispute, the foundation of which was said to be that HG had taken and used cannabis at a wedding that the two of them had attended. The offences were also contributed to by his intoxication and rage in those circumstances.

81 According to counsel, the instant offences occurred when the appellant, having been treated in hospital for a hand injury, and having developed a golden staph infection, had been discharged, had consumed alcohol and a (prescription) drug, had argued with his new partner about the need for him to sever his earlier relationship with HG, and had been overwhelmed by this combination of events, becoming angry and taking it out on HG. Evidencing the extent of his confusion, it was submitted, the appellant had struck HG with his injured hand.

82 Counsel described aspects of his client’s period of custody whilst on remand. His father had died. The appellant had not been permitted to attend the funeral. He had spent much of the time in management units because of angry behaviour. More favourably, he had been put onto a mood stabilising drug with beneficial effect.

83 The appellant’s current partner, counsel told the judge, was supportive. She also had a substance abuse problem. But the appellant believed that the two of them, working together, might improve their situation.

84 The appellant’s ‘strong work ethic’, counsel submitted, was to his advantage.

85 Counsel adverted to his client’s history of past offending. He submitted that the custodial dispositions were ‘of limited assistance in terms of specific deterrence’. The challenge, in light of psychiatric reports placed before the judge, was for the appellant ‘to address the behavioural problems that caused the offending’. In that connection, recent psychiatric treatment and medication may have brought about ‘some progress’.

86 Counsel submitted that a lengthy potential parole period should be provided for. A structured parole could aid rehabilitation. Counsel mentioned, in that connection, the provision of housing and continuing medical support.

87 Counsel finally drew the judge’s attention to the appellant’s pleas of guilty. He stated that his client had expressed remorse.

88 The prosecutor, in reply, submitted that it was an aggravating factor that the instant offences were committed whilst the appellant was undergoing a suspended sentence. Further, she submitted that the appellant’s prospects of rehabilitation should be doubted in light of a psychological report which had been tendered. Weight needed to be placed on specific and general deterrence.

89 Finally, on instructions, the prosecutor advanced a range of five and a half years to six and a half years as being ‘within the range’, with a non-parole period range of between three and a half and four and a half years.

90 I have referred to psychological and psychiatric evidence adduced on the plea. A report of David Ball, forensic psychologist., dated 8 August 2007 was tendered. Written to another doctor, Mr Ball described ‘a long history of explosive violence and episodic dyscontrol dating back to [the appellant’s] early childhood’. The diagnostic criteria for ‘intermittent explosive disorder’ might be satisfied. EEG and brain CT scan were recommended, the latter being indicated by reason of repeated concussions sustained by the appellant over the years. Consideration of a particular form of medication was also advised.

91 No report was adduced from the doctor to whom Mr Ball’s report was addressed. So the judge did not know from that source whether the tests had been done (or, if they had, what they had shown). Nor did his Honour know whether the particular medication had been prescribed: and, if so, then with what resist.

92 But also before the judge was a report dated 4 April 2009 authored by Dr Danny Sullivan. That doctor had available to him, inter alia, a neurologist’s report dated 24 August 2007, and a report by Mr Ball, dated 29 November 2007.[67]

93 I need not repeat much of the history recorded by Dr Sullivan. I do note that the appellant reported that - (1) brain scans were unremarkable; (2) he had not been psychiatrically treated since age 25; (3) he had suffered angry outbursts since childhood, for which he had undergone anger management at one stage with some improvement; (4) he reacted to stressors with anger.

94 Dr Sullivan reported the appellant’s description of his incarceration before sentence for the instant offences this way:

[21] Mr Ashdown informed me that he ‘kept losing the plot’ in prison and had been maintained on fairly harsh regimes. He reported that after one day in the Melbourne Custody Centre he spent one week in a mainstream unit in Melbourne Assessment Prison, where he head butted and smashed a window, frustrated at the reluctance of staff to communicate with him. He then spent two weeks on a mainstream unit at MRC but after an escalating argument with a fellow prisoner he was transferred to Exford, the management unit at MRC. He described that there he ‘lost control ... I felt like a caged animal’. After four weeks there he was able to control himself but around this time his father died. He was transferred to Bellbridge Unit.

[22] There, Mr Ashdown described an argument with correctional staff when he refused to get up for muster. He informed me that he repeatedly stated that he did not want to talk to staff and after a sarcastic and offensive comment from the correctional staff member, he indicated that they argued and then he was transferred back to Exford Unit for three months. From there he reported that he was located in a management unit at Port Phillip Prison but there was an altercation with correctional officers which had led to police involvement. Once more he was transferred back to the Exford Unit and after struggling and falling while in handcuffs he fractured his wrist. Consequently he was transferred to Banksia Unit at Barwon Prison but due to deteriorated mental state, he reported that he had been returned to the Acute Assessment Unit (AAU) in the week prior to my assessment. He informed me that he had been on the AAU but was now in a mainstream unit.

Dr Sullivan expressed the following opinions:

[28] Mr Ashdown’s background was marked by possible paternal alcohol abuse but a stable family life. He reported early use of instrumental violence, bullying his brother and using anger to get his own way. His schooling was relatively unremarkable and in adult life he has managed to gain and sustain employment and relationships despite significant criminal justice contact.

[29] Mr Ashdown describes a history of psychotic episodes when younger, necessitating involuntary hospital admission and treatment with antipsychotic medication. By his account there has been no recurrence in recent years. Files from Royal Park Psychiatric Hospital are archived, but by his account these episodes would have accorded with a diagnosis of drug-induced psychotic disorder.

[30] There is no indication of further psychotic illness, although at times in custody he has expressed grandiose beliefs, possibly delusional in nature. However there is no evidence of other psychotic symptoms and taken by themselves, these ideas, even if delusional, have not been sustained or accompanied by other symptoms sufficient to suggest a diagnosis of affective or psychotic illness. Mr Ashdown describes intermittent depression but has not required specialist or sustained treatment.

[31] There is a clear history of polysubstance abuse, involving alcohol and cannabis, and to a lesser extent benzodiazepines and amphetamines when younger.

[32] The report of Mr Ball suggests that Mr Ashdown has some personality difficulties, although these would not clearly map to a discrete personality disorder.

[33] The diagnosis of intermittent explosive disorder is in my opinion spurious. Its provenance is uncertain. The diagnostic criteria indicate that there is a likely neurological basis to this disorder.

[34] In Mr Ashdown’s case, his past aggression is not especially marked. His conduct in prison more likely relates to difficulty coping with a stressful environment, and impaired impulse control. He has acknowledged a propensity to decompensate in prison. This reflects disposition rather than disorder. Mr Ashdown certainly has significant problems with constraining aggression, especially when intoxicated: but this should not be construed as a ‘disorder’, but rather a focus for rehabilitative interventions.

[35] He would benefit from formal drug and alcohol counselling and, in the community, conditions of abstinence from alcohol and cannabis. In addition, Mr Ashdown may benefit from further anger management input, particularly the Corrections Victoria Violence Reduction Program. He demonstrates some insight into his problems and is intelligent, and therefore will potentially benefit from this program.

95 Dr Sullivan’s detailed report, self-evidently, challenged the reliability of Mr Ball’s provisional diagnosis. Further, although his report detailed an unsatisfactory repetition of anti-social behaviour by the appellant, Dr Sullivan did express some guarded optimism about the appellant’s prospects for rehabilitation.

Past offending

96 The further presentment, which the appellant admitted, showed that he had been before courts on 24 occasions between February 1989 and early December 2007, spanning the ages 17 to 36 years, and that 87 convictions had been recorded. They included convictions for - (1) assault and assault in company (January 1990); (2) assault police and resist arrest (March 1990); (3) causing injury intentionally (February 1991); assault police (October 1994); unlawful assault and resist police (January 2001); resist and hinder police (May 2001); and assault (December 2007). There were also a number of convictions for damaging property. With one exception, all matters had been dealt with in the Magistrates’ Court, although the appellant had at times appealed to the County Court. Including sentences passed for breach of non-custodial orders, terms of imprisonment had been imposed in March 1990 (two months), November 1990 (one month), September 1992 (four months wholly suspended), January 2001 (one month wholly suspended), July 2001 (three months wholly suspended), December 2002 (three years with a two year non-parole period, for aggravated burglary) and December 2007 (14 months and 42 days, 14 months suspended, for the earlier offences involving HG).

97 In all, despite the appellant’s history of past offences of violence, the fact that they were all dealt with in the Magistrates’ Court, and the sentences imposed, suggest that they were at the lower end of seriousness.

Sentencing remarks

98 The judge set out the circumstances of the matter generally as I have recounted them. He identified the assault on JG as having been constituted by grabbing the boy by the throat and starting to choke him. Implicitly, he identified the offence of recklessly causing serious injury as having been constituted by the blow to HG’s face.

99 The judge accepted as ‘entirely probable’ the appellant’s account to the police that he had no recollection of the offending events.

100 His Honour referred to the fact that the appellant was under suspended sentence in respect of offences involving HG when he committed the instant offences. It was ‘particularly distasteful and concerning’ that the appellant was only shortly into the period of suspension when he offended again.

101 Having noted the history of alcohol and drug abuse reported by the appellant to Dr Sullivan, the judge observed; ‘it is not surprising that you have an extensive forensic history.’

102 His Honour summarised Dr Sullivan’s opinion. Inferentially, he accepted it. But he also referred to a report from Mr Ball[68] which revealed that in late 2007 the appellant had been attempting to rehabilitate himself. His Honour concluded that what Mr Ball had apparently noted, in light of the instant offending, meant that -

Obviously, you have returned to the consumption of alcohol and yet again lost control and committed serious offences and in this instance committed those offences against the same victim as for the ones for which you receive the suspended goal sentence.

103 The judge described the appellant as having gone to HG’s home ‘in [a] drug and alcohol-fuelled state’, and a ‘befuddled’ state. The rest, as the judge put it, ‘is history’.

104 His Honour referred to the appellant’s past criminal history. It included ’18 convictions for assault of or resisting arrest’. The judge continued:

Your forensic history is a disgrace and no doubt reflects your drug and alcohol related issues.

105 His Honour described the instant offences as ‘particularly distasteful’. Two people had been terrified in their own home. The injuries to HG were ‘indeed very serious’. Her victim impact statement revealed continuing mental upset.

106 The judge found that the appellant’s plea of guilty indicated remorse.

107 As to prospects of rehabilitation, the judge opined that they depended

very much on your capacity to attend to counselling and for counselling for medical assistance to monitor your health.

108 The road to rehabilitation would need ‘disciplined attention’. It would be a ‘long road’.

109 Then the judge sentenced the appellant on counts 1 and 2. Then he stated, pursuant to s 6AAA of the Sentencing Act, that had the appellant gone to trial and been found guilty he would have imposed a sentence of six years’ imprisonment on count 1, and nine months on count 2.

110 Thereafter, his Honour ordered, in substance, that six months of the suspended sentence be served cumulatively on the sentences for the instant offences; and he fixed a non-parole period of four years’ imprisonment.

Why the appeal should be allowed

111 It is only necessary to address grounds 2 and 3 in order to explain why this appeal should be allowed. It is convenient to begin with ground 3.

112 Counsel for the appellant submitted that this was not a serious example of the offence of recklessly causing serious injury. He emphasised that it was constituted by a single punch, struck with an injured hand, and that it was an unplanned act done in the course of a heated exchange. It was not an act done in company. No weapon was used. The offence was not committed as one of a number of offences which were related in time and victim. The injuries suffered by HG were not life-threatening, and could not be described as catastrophic. The appellant had no prior convictions for this offence. Prior offences against the person, with one exception, were simple assaults or resist/hinder police. Sentencing statistics showed that of 560 people sentenced in the higher courts between 2004-05 and 2008-09, only 37 per cent had received an immediate custodial sentence, that the median sentence for those imprisoned was two years, and that only 13 persons had received a longer term of imprisonment. So the appellant had received a sentence at the statistical extreme which the offence did not warrant. He relied also upon the appellant’s plea of guilty, remorse, demonstrated work ethic, and his problems with alcohol and drugs which he – that is, the appellant – now understood fuelled his behaviour problems, an understanding which would assist his tentative moves towards rehabilitation.

113 Counsel for the Crown emphasised the maximum penalty for the offence, the fact that the attack had been committed upon a vulnerable victim who had begged the appellant to desist, the fact that the appellant had initially denied the offending, the effects of the attack upon the victim, which were said to be profound, the appellant’s ‘unenviable criminal history’, and the fact that the offence was committed in breach of a suspended sentence. As to sentencing statistics, counsel submitted that they showed, inter alia, a highest sentence of ten years amongst those imprisoned, a median sentence of two years, a most common length of imprisonment of one year, and an average length of imprisonment of between two years and three months and two years and eight months. They also showed that 96.6 per cent of offenders had received a lesser sentence than that imposed on the appellant. Nonetheless, the sentence was not out of kilter with current sentencing practices having regard to the appellant’s conduct, his bad criminal record, the fact that the sentence was committed in breach of a suspended sentence, and the fact that this was the appellant’s second attack upon HG.

114 Counsel submitted that the sentencing range for the offence, in all the circumstances, was four to six years’ imprisonment.

115 There was varying force in all the submissions which I have noted. That said, in my opinion the appellant has met the difficult obligation of demonstrating that the sentence on count 1 was impermissibly high. Granted that the offence was committed against a person who was somewhat vulnerable, it was a spur of the moment act by an agitated man, carried out in the heat of argument – albeit one that he had instigated. It was constituted by a single blow – struck, indeed, using the appellant’s injured hand. Contrary to the submission for the Crown, the effect of the assault was not profound. In all, the attack, and its physical and emotional consequences for the victim, did not put the offending at all in the upper reaches of seriousness.

116 But the circumstances of the offence and its consequences for the victim are only a part, not to be severed out, of the necessary investigation. So there must be brought to account, inter alia, the appellant’s past criminal history, including his previous assault upon HG, and the fact that the offence was committed whilst the appellant was under suspended sentence of imprisonment.

117 As to the former, whilst the appellant’s criminal history was a long one, and whilst it included offences against the person, the offences of violence – to judge from the court in which they were dealt with, and the sentences imposed – were not very serious. Certainly, the appellant had not previously been dealt with for an offence against the person of the present magnitude.

118 Next, the fact that the offence was committed whilst the appellant was under a suspended sentence was certainly an aggravating factor. It had its own consequence – that is, the default position established by ss 31(5) and (6) of the Sentencing Act. But that did not mean that it was not a circumstance aggravating the present offence.

119 The fact that one of the offences for which the suspended sentence had been imposed was an assault committed upon HG was adverse to the appellant. The prosecutor described that assault, for which the appellant had been sentenced to three months’ imprisonment, as ‘punching the victim once to the right cheek causing moderate pain’. That assault was significant, not only because the victim was HG, but because it told against the appellant learning from his previous misconduct, also committed when he was enraged.

120 It must next be said that the appellant’s criminal history, particularly with respect to offences against the person, had other significance. First, it underlined the relevance of specific deterrence as a consideration in the sentence imposed on this occasion. Second, it disclosed, because of the likely association between alcohol and/or drug use and angry outbursts, both the difficulties and the opportunities for the appellant to rehabilitate himself. The difficulties lay in the long pattern of drug and alcohol abuse. The opportunities lay in the appellant’s insight into his problems, as detected by Dr Sullivan.

121 I should mention one aspect of the appellant’s personal history. It did stand to his credit that, despite his abuse of alcohol and drugs, he had managed to gain a trade qualification and that, at least from age 25 onwards, he had been in work except when he was incarcerated. His employer in the period 2004-2007[69] spoke well of his technical abilities and trustworthiness; and stated that he would have ‘no hesitation’ in again offering the appellant employment.

122 Mention was made, in the submissions for the appellant and for the Crown, to the relevant sentencing snapshot. Unequivocally, the statistics set out in the snapshot[70] show that the sentence imposed on the appellant was very much at the upper end of sentences imposed. To the extent that such statistics reveal current sentencing practices, they show, in my opinion, that the sentence passed, in the circumstances of this offender and this offence, was inconsistent with such practices.

123 I should say something also about the appellant’s plea of guilty. The judge accepted, as I have said, that it was ‘entirely probable’ that, by reason of his consumption of alcohol and painkillers, the appellant did not recall his offending. On that assumption, the plea of guilty was dependent upon the appellant’s acceptance of statements made by HG and her son. I should say that the plea merited a considerable discount on sentence in those circumstances.

124 I consider, in the event, that a sentence of three years and six months’ imprisonment on count 1 would well accommodate all the competing considerations.

125 I turn to ground 2. The sentence of six months’ imprisonment for the assault on JG was, in my view, a heavy one. But no complaint is made of manifest excess.

126 Complaint is made, however, of the cumulation of the entire sentence on count 2, the count of assault, upon the sentence on count 1. Appellant’s counsel submitted that the two offences amounted to a course of conduct. They were closely related in time. Total concurrency would have been appropriate. Some cumulation would have been permissible. But total cumulation was erroneous. For his part, counsel for the Crown submitted that cumulation was warranted because there were two victims; and that the ground fell to be assessed ‘as an incident of manifest excess’. Presumably, the latter submission was directed to totality.

127 In my opinion, it was erroneous for the judge to totally cumulate the sentence on count 2 on the sentence on count 1. Albeit that there were two victims, total cumulation of sentences for offences committed within a short period, and in a course of conduct, was unusual. Maybe, the order for cumulation was intended to address totality. But if that was the judge’s intention, he did not disclose it. The cumulation ordered was particularly unsatisfactory when the sentence on count 2 was itself a heavy one. It exaggerated the effect of a manifestly excessive sentence on count 1.

Re-sentencing the appellant

128 I would re-sentence the appellant to three years and six months’ imprisonment on count 1. There being no appeal against the sentence on count 2, I would confirm that sentence. I would cumulate two months of the sentence on count 2 on the sentence on count 1. I would order that the suspended sentence of 14 months’ imprisonment be restored, and that eight months of that sentence be served concurrently with the sentence imposed on count 1. I intend that there be a total effective sentence of four years and two months’ imprisonment. I would fix a non-parole period of three years’ imprisonment.

Section 6AAA statement and declaration

129 Had the appellant gone to trial and been convicted, then, as required by statute, and despite my serious reservations about the required exercise, I state that I would have imposed a ‘total effective period of imprisonment’ of five years, and that I would have fixed a non-parole period of three years and nine months’ imprisonment. I would declare that in arriving at that total effective period of imprisonment, I would have imposed a period of four years and two months’ imprisonment on count 1 and six months’ imprisonment on count 2.[71]

An invitation by the Crown

130 What I have said ought be enough to dispose of the appeal. But it is necessary to say something with respect to the way in which the matter proceeded.

The course of this matter

131 I need to advert to the circumstances in which the appeal came before the Court; and to the way in which it proceeded.

132 As I earlier noted, the appellant pleaded guilty to the two counts on which he was presented. He was not put on notice, before pleading guilty, that the Crown would contend that current sentencing practices for the offence of causing serious injury recklessly were inadequate. According to authorities in this Court,[72] in those particular circumstances, in sentencing the appellant, the judge was not free to depart, so far as it was a relevant consideration, from current sentencing practices; which I take to mean that he should not be sentenced to a term of imprisonment which was outside the range disclosed by ‘comparable cases’.

133 In granting the applicant leave to appeal against sentence, the President said this:

1. Although there was no Crown concession, I concluded on the papers that, subject to any further submissions from the Crown, I would grant leave, for the following reason. In the matter of Winch, in which I granted leave on 29 October last year, I drew attention to the frequency of sentence appeals in relation to the offence of recklessly causing serious injury. It seemed to me there was an important question of sentencing range for that offence and I gave directions for the filing by the Director of a detailed submission on sentencing range as applicable to that case. I expect that what the Director has to say about that will involve some identification of the kinds of criteria which a sentencing judge might take into account in deciding the range applicable to a particular offence.
2. It seems to me that it will be both convenient and illustrative to have this appeal – leave being granted – heard with the appeal in Winch. In granting leave I make the same direction as I gave in Winch on 29 October 2009, as follows.
3. In support of his submission on the appeal, which I assume will be that this sentence was not manifestly excessive, the Director is to file and serve, in the form conventionally adopted now where issues of sentencing range arise, a submission on what the applicable sentencing range was for this offender for this offence in these circumstances. That submission is to be supported by relevant statistics and by a compilation of all sentencing decisions in the County Court in the last three years (that is, since the beginning of 2007) for the offence of recklessly causing serious injury.

134 Those directions led to the Crown filing a 140 page document containing potted histories of 276 instances of the offence disposed of in the higher courts between 2007 and 2009 (which I shall call ‘the Appendix document’).

135 The appellant’s written outline of argument was in conventional form. Sentencing statistics were relied upon only to show that sentence imposed on the principal count was ‘at the statistical extreme’; whereas, counsel submitted, the circumstances did not fit such a categorisation.

136 The respondent’s initial written outline was also, largely, conventional. Having dealt with the circumstances of the offending and the offender, the outline proceeded as follows:

In order to determine whether the sentence imposed falls within the permissible sentencing range, recourse is made both to recent sentencing statistics and current sentencing practices.

The former was said to be constituted by a Sentencing Snapshot, the latter by the Appendix document.

137 The conclusion derived from consideration of the Sentencing Snapshot was that ‘the sentence falls towards the upper end of sentencing statistics for this offence’. That conclusion, which was inescapable, largely coincided with the submission for the appellant.

138 The conclusion derived from consideration of the Appendix document was, however, that ‘the sentence imposed [was] not “out of kilter” with current sentencing practices.’ That was because of the combination of the appellant’s conduct, his bad criminal record, the fact that the offence was committed whilst the appellant was subject to a suspended sentence, and the fact that the appellant had attacked the same victim on two separate occasions. The combination of the last two circumstances were said to make the case unique.

139 But then the outline contended that if the Crown’s primary submissions were incorrect –

38. ... current sentencing practices need to be re-examined in light of the applicable maximum penalty and the objective gravity of the offence in question. In short, there is much to be said for the general proposition that current sentencing practices do not meet community expectations, particularly in light of many of the extracts contained in the Appendix [document].^[73]

140 In consequence:

39. Paying due regard to current sentencing practices, the Respondent submits that the applicable sentencing range for this offence is 4 to 6 years imprisonment.

and

40. In the alternative, and on the assumption that current sentencing practices are now found by this Court to be inadequate, the appropriate sentencing range for this offence is 5 to 7 years imprisonment.

141 The respondent also filed another document in the appeal, entitled ‘Sentencing Principles – Causing Serious Injury recklessly’. According to the document, ‘principles important in assessing the gravity of [the particular] offence’ are: (1) maximum penalty; (2) ‘nature of the offence’; (3) nature and degree of serious injury; (4) degree of recklessness; (5) general deterrence; (6) specific deterrence; (7) denunciation; (8) rehabilitation; (9) circumstances of the offence – relevant are (a) premeditation, (b) use of weapons, (c) duration of assault, (d) location, (e) whether offence committed in company, (f) whether offence committed in breach of court order, (g) whether attack on law enforcement officers, (h) whether victim vulnerable, (i) whether victim complicit in offence, (j) motive; (10) circumstances of the offender – relevant are (a) youth, (b) intoxication, (c) provocation, (d) plea of guilty, (e) remorse, (f) co-operation with prosecution authorities.

142 The question whether current sentencing practices were adequate, particularly in light of the maximum penalty for the offence, arose, in a way, on the hearing of the appeal. Senior counsel for the Crown, the issue having been raised by the President, invited the Court to make observations that current sentencing practices for the offence of recklessly causing serious injury were inadequate. But he made it clear that he was not submitting that the appellant should be affected by any such observations.

143 In support of his invitation to the Court to make the observations just mentioned, counsel drew attention to the difference between the maximum penalty for the offence and the pattern of sentences. He submitted, also, that amongst the 276 instances[74] of the offence in the Appendix document there were 36 where ‘something went wrong’.

144 Counsel accepted that there was no evidence of increased prevalence of the offence.

145 Counsel’s oral submissions were otherwise orthodox, and addressed the appellant’s contention that the sentence was ‘within range’.

146 Appellant’s counsel made no oral submissions with respect to the Crown’s written submission that current sentencing practices for the offence were inadequate. Why should he have done so when the Crown did not orally contend, by contrast with its written outline, that the sentence imposed on the appellant could be supported by a conclusion that current sentencing practices were inadequate?

147 There was thus no contradictor to the invitation that this Court make observations – which must have been obiter dicta – that current sentencing practices for the particular offence were inadequate. It is not to the point that in Winch v The Queen,[75] heard on the same day, counsel for the appellant in that case made some general observations about the broad range of circumstances encompassed by the offence and the inutility of higher court sentencing statistics.

148 Neither, in the present case, was there any oral argument with respect to the Crown’s document entitled ‘Sentencing Principles – Causing Serious Injury recklessly’. The most that can be said is that the particular circumstances of the offence and the offender were the subject of submissions. Thus, there was no argument how those considerations fed into current sentencing practices.

149 Finally, I should make just two observations about the 36 sentences where the Crown contended, ‘something went wrong’; First, although the 36 instances were described in one document submitted by the Crown as a ‘sample’, nothing was said to suggest that there were other instances of what the Crown described as sentences ‘deemed inadequate’ within the 276. Second, only five of the 36 sentences were the subject of appeal by the Director. At time of writing, four appeals have been heard; and all have been dismissed. This last circumstance must, of course, be treated with caution, because of the inhibitions which relate to Crown appeals.

150 For the reasons which follow, it is my opinion, as a matter of legal analysis, that the Court should not take up the Crown’s invitation.

Principles

151 I adhere to the following analysis:

(1) The power of the Court in this matter was that confided by s 568(4) of the Crimes Act 1958.[76] The matter in controversy was the appeal, by leave, against the sentence imposed at first instance. It was that controversy, and none other, which this Court was given jurisdiction to resolve.

(2) The question was whether the Court was persuaded that the sentence imposed in the exercise of the sentencing judge’s discretion was susceptible to successful attack by reference to principles stated in House v The King[77] - that is, that specific error of principle, or error in the ‘residuary category’,[78] was demonstrated. If the Court was so persuaded, the consequence was that the appeal should be allowed. If the Court was not so persuaded, the appeal should be dismissed. In resolving the matter in controversy, there was a proponent (the appellant) and a contradictor (the respondent).

(3) Sentencing involves the judge arriving at the sentence passed by what is labelled ‘instinctive synthesis’.[79] It is a serious misunderstanding to treat the label as describing an arcane process, the mysteries of which are forever locked away in the mind of the sentencing judge. Criticism of the methodology by slighting reference to the label – that is, ‘instinctive synthesis’ – is misguided. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:[80]

... the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.^[81]

In Markarian v The Queen,[82] McHugh J described what he meant by instinctive synthesis this way:

By instinctive synthesis, I mean the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence.

(4) Recently, in a passage which conveniently encapsulates what this Court has often said, Kaye AJA described the process of instinctive synthesis this way:

[57] ... It is trite, but nonetheless fundamental, that each case is different, and not just in matters of detail. The facts and circumstances relating to the offending in each case are quite unique. No two cases are alike, except in that they may, in a broad sense, each possess certain common characteristics. The assessment of the gravity of the offending in each case is, of necessity, different. The relevant factors relating to the prisoner – such as age, health, background, antecedents and character – are all necessarily different. The sentencing judge’s assessment of culpability, remorse and rehabilitation will vary with each particular case. So, too, will the sentencing judge’s assessment as to the extent to which a term of incarceration may operate harshly on a particular prisoner. In the same way, the sentencing judge’s assessment of the relative importance of specific deterrence, general deterrence and denunciation will vary for each case.

[58] All of those factors, and more, are, in each case, factored into the judge’s discretionary judgment as to the appropriate sentence, determined by a process of ‘instinctive synthesis’. That phrase is not an arcane jurisprudential mantra. Rather, it accurately describes the manner in which a sentence is determined in each case. It is for that reason that reasonable minds can, and regularly do, differ as to the appropriate sentence, sometimes to a marked degree. For, there can be no ‘right’ sentence in any particular case.^[83]

Buchanan JA, the presiding judge, agreed with what his Honour said.

(5) That the methodology does not remain a secret, known only to the sentencing judge, is ensured by the obligation cast upon the judge in each case to give reasons for the sentence passed. Equally, if an appellate court determines to allow an appeal and to re-sentence an offender, it will itself proceed by instinctive synthesis.[84] So also, it should display its ‘channels of logic’, so that the persons affected, any further court of appeal, and the community can be aware of the ‘essential chain of reasoning which brought about the judgment and warranted alteration of the sentence that was imposed’.[85]

(6) It is of the essence of sentencing by application of instinctive synthesis that there is no single correct sentence in a particular case. So much is recognised, inter alia, by the fact that, absent specific error of principle, a sentence will only be altered on appeal if it was outside the boundaries of the sound exercise of the sentencing discretion.

(7) Sentencing by instinctive synthesis can be contrasted with what has been described as sentencing on a ‘two tier’, or ‘starting point’ basis. Labels can be unhelpful, by not disclosing the content of the description. It is true of the label ‘instinctive synthesis’, and it is true of the labels just mentioned. As to the latter, my understanding of their content is informed by what McHugh J said in Markarian v The Queen:

51. By two-tier sentencing, I mean the method of sentencing by which a judge first determines a sentence by reference to the ‘objective circumstances’ of the case. This is the first tier of the process. The judge then increases or reduces this hypothetical sentence incrementally or decrementally by reference to other factors, usually, but not always, personal to the accused. This is the second tier.^[86]

Sentencing by that methodology was said by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian to be ‘wrong in principle’^[87] – although their Honours cautioned against treating ‘instinctive synthesis’ as authorising reasoning which was not accessible.^[88]

In the same case, McHugh J explained why two-tier sentencing, as he described it, is wrong in principle. He said this:

53. In my view, the judge who purports to compile a benchmark sentence as a starting point inevitably gives undue – even decisive – weight to some only of the factors in the case. Furthermore, the judge falls into the error of determining that notional sentence by reference to a hypothetical crime derived from some only of the circumstances of the case. Instead of sentencing this accused for his or her criminality, the judge sentences the person for another crime and adjusts the notional sentence by reference to factors that are additional to the objective circumstances. Indeed, there are some offences – manslaughter is an example – where an attempt to fix a first-tier sentence by reference to the objective circumstances is meaningless. How can a judge possibly fix a first-tier or any sentence for the mother who has killed her newborn baby without taking into account her personal circumstances?^[89]

and

54. Moreover, by concentrating on the objective circumstances of a crime, the judge is giving effect, and ultimately greater weight, to the retributive or deterrent theory of sentencing.^[90]

and

54. Consciously or unconsciously, the judge who commences with a notional sentence downplays the importance of mitigation, reformation and rehabilitation in the sentencing process.^[91]

and

55. One fact that critics of the instinctive synthesis approach do not face up to – assuming they are aware of it – is that the first tier of the two-tier approach – unless it is the maximum sentence – is itself derived by an instinctive synthesis of the ‘objective circumstances’ of the case. Or on another view of the two-tier approach, the first-tier sentence is the product of a value judgment that is proportionate to the offence. But as the Victorian Court of Criminal Appeal said in R v Young:

‘What is a sentence proportionate to an offence is a matter of discretion and there must in most cases be a range of sentences open to a sentencing judge which are proportionate to the offence. There cannot be said to be a sentence which is the proportionate sentence ... Thus to attempt to fix a proportionate sentence before fixing the sentence to be imposed will only multiply the possibilities of error. Upon what facts is the proportionate sentence to be fixed?’

(Emphasis in original.)

56. Analysing the process involved in two-tier sentencing reveals that its appearance of objectivity and unfolding reason is illusory.^[92]

(Footnotes omitted)

(8) A sentence passed, whether at first instance or on appeal (in the case of re-sentencing) has no precedent value. Still less can that be said of a determination by this Court that a sentence was not ‘manifestly excessive’.[93]

(9) In the course of, and for the purposes of, disposing of the controversy before the Court - regardless whether the outcome is that an appeal is allowed or dismissed - a statement of principle may be made which has the capacity to affect the exercise of the sentencing discretion generally, or in particular kinds of case. In Wong, Kirby J identified the examples of abuse of trust by a person in authority (as an aggravating circumstance), and the observance of discounts for pleas of guilty and co-operation with authorities (as circumstances in mitigation).[94] In the same case, Gaudron, Gummow and Hayne JJ said this:

60. ... it may be appropriate to conclude that sentencers should give chief weight to general deterrence in sentencing for a particular kind of offence. Such statements are obviously important in ensuring a principled approach to sentencing in future cases.^[95]

In Victoria, statements of such a kind have not uncommonly been made. [96] But, in light of the Crown’s invitation in the present case, it is necessary to focus upon the circumstances in which statements have been made bearing squarely upon the existing sentencing range for particular offences.

In R v O’Connor,[97] in dismissing an appeal against sentence in a culpable driving case, Winneke P said this:

18. ... I am afraid that I do not see this sentence as being beyond the range open to the judge in the circumstances of this case. On the contrary, in my view, it was a sentence well open to his Honour in those circumstances.
19. If there is still a residual opinion existing in this community that the offence of culpable driving is not to be treated like other criminal offences because it is ‘a tragedy for all concerned’ - and I use those words advisedly in the context in which arguments have been advanced in this case - then, in my view, the time has come for such views to be dispelled. Offences of culpable driving are commonly committed by persons who are of good character, but it must be understood that the community will not tolerate the taking of human life by acts of gross negligence of the sort that occurred in this case. The offence is a species of involuntary manslaughter, and it must be treated as such.^[98]

His Honour thus explained, in the context of the particular case, why the sentence imposed was not manifestly excessive. He did so in a way which, shortly and clearly expressed, undoubtedly influenced the sentences thereafter imposed for the particular offence.

To similar effect, in R v Leesley[99] Winneke P noted that the sentences imposed for culpable driving had been increasing ‘with the gradual increase in the maximum penalty’; and stated that it was ‘rightly so’.

So also, in DPP v Scott,[100] Vincent JA adverted to the progressive increase in the maximum penalty for culpable driving, and stated that the legislature’s evident concern ‘must be reflected in the sentences upon those who commit this serious offence’.

The same approach underpinned the decisions of this Court in two appeals by the Director of Public Prosecutions with respect to the offence of intentionally causing serious injury: DPP v Lawrence[101] and DPP v Zullo.[102] In each instance, the Court concluded that the sentence imposed had been manifestly inadequate.

In Lawrence, in the course of explaining why he had concluded that the sentence was manifestly inadequate, Batt JA adverted to the maximum penalty, (as showing how intrinsically serious the offence was considered to be), and to the reasons why ‘youth and rehabilitation must be subjugated to other considerations’.[103] He also expressed hope that the decision in that case and in Zullo would ‘make clear to sentencing judges and would-be offenders how seriously this offence is to be regarded’.[104]

In Zullo, Nettle JA adverted to a substantial increase in the maximum penalty for the offence in order to dismiss the relevance of an earlier pattern of sentences upon which counsel for the prisoner had relied.[105] In doing so, he expressed the opinion that ‘the very top of the range’ was now ‘upwards of fifteen years’.

Again, this Court stated in R v Nguyen & Phan,[106] when dismissing applications for leave to appeal against sentence, that the seriousness of the offence of defrauding the Revenue ‘has, in the past, perhaps, not always been sufficiently reflected in the sentence passed’; and that ‘[t]hose who systematically defraud the Revenue of a large sum over a substantial period must in general expect a substantial custodial sentence’.

Another kind of case in which this Court might say something which will affect the range of sentences currently imposed for an offence is where the offender has committed a crime which is shown to be prevalent, or of increased prevalence, or of local prevalence.[107] In case-specific circumstances, the Court might be justified in stating that a higher range of sentences is called for.

(10) Such statements by the Court, relevant to the particular case before it, illustrate the way in which, in resolving a live issue between the parties, in respect of which it can be expected that there will be competing submissions, guidance may legitimately be given to sentencing judges with respect to the appropriate range of sentences for particular offences – in appeals brought by prisoners and as well brought by the Crown. In the latter context, the reasons of Charles JA in R v Clarke[108] have long been understood as stating ‘occasions [which] may arise for the bringing of a Crown appeal’.[109] But the circumstances in which, on a Crown appeal, this Court may interfere with the sentence passed at first instance are confined to the situations where it is persuaded that the sentence is manifestly inadequate as to constitute error in principle or that the sentencing judge fell into material error of law or fact’.[110] Thus, observations by this Court with respect to any of ‘the occasions’ described by Charles JA must attach to determination of the question whether the particular appeal should be allowed, or refused.

(11) The effect of the Victorian decisions to which I referred at (9) was, for the most part, that sentences for the particular offences increased.[111] They did so incrementally. As part of that process, this Court refused to intervene in the case of prisoner appeals against sentence when hitherto it might have done so; and it did intervene in Director’s appeals when hitherto it might not have done so.

The concept of incremental increase, where sentences for a particular offence are considered, for one reason or another, to be too low, has a long lineage: R v Barber,[112] Poyner v The Queen,[113] Attorney-General for Tasmania v McDonald,[114] and Stock v R.[115]

(12) The power of an appellate court, for the purposes of deciding the controversy before it, to state a principle of more general application may mean, in a particular case, and to enable the principle to be exposed, that the court can permissibly refer to a compilation or classification of sentencing information.[116] But recording sentences imposed in the past, as a matter of bare statistics, is altogether unlikely to expose a unifying principle. By ‘unifying principle’, I mean a principle such as Winneke P stated in O’Connor, and such as Batt JA stated in Lawrence.

(13) Further, it is definitely forbidden to refer to such material in a way which carries a risk that judges thereafter sentencing persons for the particular offence are, directly or indirectly, constrained in the exercise of the sentencing discretion.[117] The decision of the New South Wales Court of Criminal Appeal in Wong, despite the court’s disclaimers, gave rise to such a risk.

(14) In R v Ngui and Tiong,[118] Winneke P was confronted with the difficulty, in the case of Commonwealth offenders, of the New South Wales Court of Criminal Appeal’s decision in Wong[119] (the High Court not having yet heard and determined the appeal from the New South Wales decision). His Honour was evidently uncomfortable with the decision, but sought to make something of it. Thus:

[12] For my own part, I have reservations about the use which can or should be made in the sentencing process of judicially expressed guidelines, based on existing ‘sentencing patterns’ which are themselves the product of the accumulated wisdom of sentencing judges exercising individual discretions in respect of individual cases over a number of years. It must, of course, be acknowledged that consistency in sentences imposed for like offences upon like offenders is an objective to which the system of criminal justice aspires. Such consistency, as the courts have frequently stated, is particularly important where the offences are created by Commonwealth statutes and sentences for such offences are being imposed by courts throughout Australia. To the extent that judicially expressed guidelines can assist the production of such consistency, then they may be of use. However, the search for sentencing consistency should not be permitted to usurp the discretion of the sentencing judge. As Spigelman CJ pointed out in Wong at [32]

‘[A] sentencing guideline is indicative only. A guideline may be departed from and it is not binding in any formal sense nor does it constitute a rule of law ... ‘

Experience in other areas of the law has shown that judicially expressed guidelines can have a tendency, with the passage of time, to fetter judicial discretion by assuming the status of rules of universal application which they were never intended to have: compare Norbis v Norbis [1986] HCA 17; (1985) 161 CLR 513 at 533 per Wilson and Dawson JJ, at 538 per Brennan J; Masel v Transport Industries Insurance Co Ltd [1995] VicRp 59; [1995] 2 VR 328 at 334-335. It would, in my opinion, be unfortunate if such a trend were to emerge in the sentencing process where the exercise of the judge's discretion, within established principles, to fix a just sentence according to the individual circumstances of the case before him or her is fundamental to our system of criminal justice: Lowndes [1999] HCA 29; (1999) 195 CLR 665 at 671-672.

[13] Accordingly, as I see it, the utility of the relevant guidelines expressed in Wong and Leung will be as a ‘sounding board’ or a ‘check’ against the exercise of the sentencing judge's discretion. In truth they cannot be anything more because they do not assume to take into account many factors which, in the

individual case, will bear upon the level of the appropriate sentence to be imposed.^[120]

With respect, his Honour’s difficulty was fully justified by the fate of Wong in the High Court. Two points should be made. First, his Honour’s reference to the difficulties posed by the exposition of guidelines of the particular kind was addressed in the joint judgment of Gaudron, Gummow and Hayne in Wong.[121] Second, his Honour’s reference to the guidelines as a ‘sounding board’, or ‘check’ needs to be understood as an attempt to make sense of Wong as it then stood, and no more. Certainly, his Honour did not address the potential problem of a ‘check’ or ‘sounding board’ indirectly constraining the exercise of the sentencing discretion.

(15) I must refer to Winch v The Queen.[122] It involved a situation different to those mentioned at (9) above. The accused pleaded guilty to a count of causing serious injury recklessly. It was a ‘glassing’ case. He was granted leave to appeal against severity of sentence. The Crown conceded in this Court that, by the standards of current sentencing practices, the sentence imposed had been manifestly excessive; and the Court agreed. The jurisprudence of this Court is that a person who pleads guilty to an offence is entitled to expect – unless he or she is put on notice that the contrary will be argued by the Crown – that sentence will be imposed consistently with current sentencing practices. It is said to be a matter of fairness. So it was that the application was granted, the appeal allowed, and the appellant re-sentenced.

The majority, Maxwell P and Redlich JA, went further. In response to the President’s request, made on the application for leave to appeal, the Crown had compiled and provided to the Court a deal of material relating to sentences imposed for the offence of causing serious injury recklessly. Specifically, the material provided details of sentences imposed for instances of ‘glassing’. That material, to be crystal clear, had not been placed before the sentencing judge. Nor had it been contended by the prosecutor that the judge should sentence the appellant on the footing that current sentencing practices for the offence when committed by ‘glassing’ were too low. Nonetheless, although the majority had already decided that the appeal must succeed, and had decided what penalty had been imposed on re-sentence, their Honours examined that material, and concluded that ‘glassing’ is not to be viewed as a sub-category of the offence of causing serious injury recklessly which is intrinsically of a ‘less serious’ kind.[123] They indicated, in substance, that the range of sentences imposed for that variant of the offence had been too low.

Both the Court’s approach to sentences imposed on a plea of guilty and the sequence of their Honour’s reasons show that the conclusions just expressed could not have been part of the ratio decidendi of the appeal.

That said, those conclusions implied a possible outcome had there been an appeal against the particular sentence imposed after trial; or had the Crown intimated, before the plea was taken, that it wished to argue that sentencing practices for ‘glassing’ instances of the offence were too low.

(16) But Winch throws up a deeper question. With respect to the conclusions now under consideration, was the jurisdiction of the Court to quell the dispute between the applicant and the Crown engaged at all? That question was not debated in this Court in Winch. To the extent that the majority’s conclusions might be understood to answer that question in the affirmative, they were, in my respectful opinion, per incuriam.

Conscious, as I have said, that the question was not debated in Winch, I would answer it ‘no’. The resolution of the controversy between the parties was not in any way dependent upon what their Honours said about sentencing practices with respect to recklessly causing serious injury by ‘glassing’, they having first decided that the appeal must succeed having reference to current sentencing practices

The situation would have been different, in my opinion, had the Crown advanced the material on the plea, and had the prosecutor argued that the sentencing judge should not be constrained by current sentencing practices, which were too low because the seriousness of this sub-category of the offence had been consistently and wrongly under-estimated; or had the prosecutor intimated, before the plea was taken, that such a contention would be advanced in this Court. In the former case, a matter to which the judge was obliged to have regard in imposing sentence – ‘current sentencing practices’ – would have become a matter of controversy between the parties. In the latter case, the Crown would have been able to argue the matter in support of a manifest inadequacy ground; and the argument would have been a live issue for resolution by this Court. In either of those situations, it can be expected that there would have been competing submissions by counsel, each of whose client would have had a stake in the outcome of the particular appeal.

With the benefit of hindsight, it necessarily follows, in my view, that the Court (of which I was a member) erred in receiving the material, notwithstanding that the President had requested it. What its receipt did was to permit the articulation by the Crown of a position which, because of the plea of guilty, had not been a subject of controversy between the parties on the plea, and which was irrelevant to the Court’s disposition of the appeal. The permissible introduction of new factual material on an appeal is closely circumscribed. In my opinion, there was no warrant for extending it to material of the kind now under discussion.

It is a necessary incident of what I have said that the Crown should not be permitted to raise for the first time on an appeal – whether it be a prisoner’s appeal or a Crown appeal – a contention that current sentencing practices for the relevant offence are inadequate.[124] It should not be permitted to do so either by a ground of appeal, or by adducing material for the first time. The contention must have been advanced below, or its deployment in this Court foreshadowed. The fact that such a ground has been stated on a number of occasions in recent years – and mostly abandoned at the hearing – does not mean that such a ground should ever be permitted.

In the exercise of the residual discretion, a Director’s appeal may be dismissed because its potential success depends upon a changed way of putting the case. I have considered whether the introduction of new material (pertaining to alleged inadequacy of current sentencing practices) could be characterised as a changed way of putting the case, the residual discretion being exercised so as to dismiss the appeal despite the validity of the new way being established. It could not. In the absence of the material having relied upon below, or its use in this Court having been foreshadowed, no question could arise of it being relevant to the proceeding for determination in this Court.

But if it be assumed that in Winch the jurisdiction of the Court was engaged, so far as it related to the conclusions discussed above, then those conclusions, albeit obiter, might be explained as an expression of opinion in a case in which a quite particular problem was discerned with sentencing for a sub-category of an offence. That is so although Winch was not at risk of a sentence outside the range established by current sentencing practices – for which reason his counsel had no cause to be a contradictor against argument by the Crown that current sentencing practices for the offence, or the sub-category of the offence, were inadequate.

(17) Each of Clarke, O’Connor, Leesley, Scott, Lawrence, and Zullo was decided after the enactment of the Sentencing Act 1991. In none of those cases (nor in other matters which proceeded along the same lines, for example DPP v Wareham[125]) was any reference made, in terms, to s 5(2) of the Act. Yet the Court adverted to the maximum penalty for particular offences and stated principles which had the effect that ‘current sentencing practices’ were effectively rendered obsolete – not only for future cases, but in the instant cases. It cannot be seriously imagined that almost every member of the Court of Appeal, and before it the Court of Criminal Appeal, failed to note the existence of s 5(2) over a period of some 14 years. To my mind, the conclusion is inescapable that their Honours perceived no disconformity between application of common law principles and the particular content of s 5(2).

(18) Nothing in the Second Reading Speech,[126] or in the Parliamentary debates, suggests that such an approach was wrong.[127] Nor does the construction of s 5(2), and its place in the scheme of the Act, suggest it. All that was said about clause 5 in the Second Reading Speech was that is ‘sets out the principles governing sentencing in this State’.[128] Later, in debate, the Attorney-General said that clause 5(2) did not endorse either instinctive synthesis or (in substance) ‘two tier sentencing’, but rather left it to judges to

work [their] way through those factors and, having regard to the other considerations in the rest of clause 5, give the usual sorts of weight and so on, but it is a matter within the ordinary legal discretion of the judges’.^[129]

He added that requiring that regard had to the matters specified by paragraphs (a)–(d) ‘is already the law.’ He stated also that:

We believe it is desirable to leave a reasonable amount of common-law discretion in these issues. We want to set out general guidelines, but it is not our wish to be overly prescriptive about how the discretion is exercised within those guidelines.^[130]

(19) Section 5(2) in its original form contained the present paragraphs (1)(b)(c)(d)(e)(f) and (g). Thus, it specified that a court

‘must have regard to’ –

(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices; and

...

(g) the presence ... of any other relevant circumstances.

(20) These observations may be made about the subsection:

(a) the matters to which the sentencing court is obliged to have regard have been, from the commencement of the provision, only a fragment of relevant sentencing considerations. They make no reference to the purposes for which sentences may be imposed. Those matters, of great importance to sentencing, are set out in s 5(1). Nor does s 5(2) say anything directly about the first stated purpose of the Act, which is to provide consistency of approach in the sentencing of offenders.[131] Neither again is anything said specifically about matters such as parity in sentencing, offending whilst on bail or whilst on parole, the impact of serious offender provisions, the application of the sentencing hierarchy, ‘dead time’; and so on.

(b) With respect to the matters which are specified, this Court has stated that:

[44] ... The provision should be read as subject to the necessary qualification that the relevance of a particular matter to the court’s determination will affect the weight, if any, that it will be given. Some of the listed matters may have no relevance in a particular case.

[45] No single matter specified in s 5 is ‘fundamental’ to the fixing of the sentence. The imperative that the sentencing court ‘have regard to’ the enumerated matters requires the judge to consider each of the matters and determine whether any or any particular weight should be given to them. The judge is required only to have regard to the factors so far as they are known to him or her. The provision does not require that the matter in question have an actual influence on the ultimate result. Each matter may inform the ‘instinctive synthesis’ but none is determinative; the emphasis each receives will vary from case to case.^[132]

(c) At common law, the maximum penalty for an offence is a consideration relevant to sentencing. Section 5(2)(a) does not make it so, where otherwise the situation would be different. The paragraph neither adds to nor detracts from the position at common law,[133] concerning which I must say more later.

(d) The term ‘current sentencing practices’ is not defined by the Act. It has been understood to refer to the pattern of sentences imposed for a particular offence – so far as the pattern can be said to reflect the current situation.[134] So understood, the matter is relevant to consistency in sentencing – always remembering that it is consistency in the application of principle which is vital. As to how such practices are to be ascertained, more later.

(e) It would be wrong in principle to think of ‘the maximum penalty prescribed for the offence’ and ‘current sentencing practices’ as being somehow in opposition. The former is one consideration which goes to establish the latter.

(21) The common law position with respect to the maximum penalty for an offence (and for reasons already explained it is no different in the context of s 5(2) of the Act) was adverted to in Markarian, where Gleeson CJ, Gummow, Hayne and Callinan JJ said this:

30. Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:

‘A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...

A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].’

31. It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it.^[135]

(Footnotes omitted)

(22) Those observations, for the most part stated in the abstract, invite questions in the case of the maximum penalty fixed for any particular offence. In DPP v Aydin and Kirsch[136] Callaway JA explained why that is so, although again he did so largely in the abstract. Warning against ‘the fallacy of naïve fractions’, his Honour said this:

[8] There is no gainsaying the importance of the maximum penalty prescribed by Parliament for an offence. It provides authoritative guidance by the legislature as to the relative seriousness of the offence, in the abstract, by comparison with other crimes in the calendar. It was for that reason that maximum penalties were introduced in 1997 for common law offences where the penalty had previously been at large and all the maximum penalties in the Crimes Act and in some other legislation were reviewed. Attempting to pervert the course of justice was one of those offences. It may well be that the seriousness of the offence was sometimes underestimated when the penalty was at large.

[9] It must always be remembered, however, that a maximum penalty is prescribed for the worst class, or one of a number of worst classes, of the offence in question. On some occasions, when Parliament increases the maximum penalty, that suggests that more severe penalties should be imposed not just for offences falling within the worst class but over a range (not necessarily the whole range) of cases. That is how the successive increases in the maximum penalty for culpable driving causing death have been understood. On other occasions, an increase in the maximum penalty means only that Parliament has thought of a worst class of case for which the previous maximum was inadequate. Moreover, special considerations apply to some offences. The relative seriousness of theft and handling, for example, cannot be gauged solely by the fact that one carries a maximum custodial penalty of ten years' imprisonment and the other of 15 years' imprisonment.

[10] It is because the maximum penalty is important that s 5(2)(a) of the Sentencing Act lists it first among the matters to which a court sentencing an offender must have regard and, if the judge mistakes the maximum, that re-opens the discretion unless the Court of Appeal is satisfied that the mistake could not have materially affected the sentence.

[11] Nevertheless, in some cases, the maximum is of less utility than might otherwise be the case. The provisions of the Crimes Act which prescribe a maximum custodial penalty of 25 years' imprisonment certainly show that Parliament regards the worst classes of those offences as very serious indeed, but it is wrong to assume that there is an arithmetical progression from zero to 25 or that such a high maximum is of more than general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale. There are too many other relevant factors, including the circumstances of the instant offence and matters personal to the offender. Even more fundamentally, the worst classes for which a penalty of 25 years' imprisonment is prescribed are, by their very nature, far removed from the circumstances with which the judge is then concerned.

[12] It is sometimes said that a judge, in obedience to s 5(2)(a), ‘steers by the maximum’. It is a helpful metaphor, but two things should be said of it. One is that there is a difference between steering by the maximum and aiming at the maximum. The penalty prescribed for the worst class of case is like a lighthouse or a beacon. The ship is not sailed towards it, but rather it is used as a navigational aid. The other is that steering by the maximum may decrease the sentence that might otherwise be imposed as well as increase it ...^[137]

(Footnotes omitted)

Nothing in his Honour’s remarks, in my opinion, stands opposed to the dicta in Markarian to which I earlier referred.

(23) Apparent anomalies with respect to maximum penalties, referred to by his Honour at [9] in the passage cited, and discussed in a particular context in R v Marijancevic,[138] are relatively numerous. Here are some examples. First, the maximum penalty for each of the dramatically different offences of rape (about the gravity of which this Court has said a great deal), armed robbery and aggravated burglary is the same - 25 years’ imprisonment. Second, the maximum penalty for burglary is 10 years’ imprisonment; but for aggravated burglary it is 25 years. Yet the factual difference may only be the presence of a person in the premises entered, the offender being reckless whether a person was so present. Third, the maximum penalty for the offences of recklessly causing serious injury and robbery (the latter of which need not involve any application of force) is the same - 15 years imprisonment. Fourth, contrast the maximum penalties for rape and for trafficking a large commercial quantity of drugs – which in mixed form may contain anything from a large to a tiny quantity of pure drug.[139] In the former case it is imprisonment for 25 years; in the latter case, imprisonment for life. Fifth, life imprisonment is also the maximum penalty for murder. But is it to be inferred that the seriousness of the two crimes is thereby exactly equated by the legislature – so that there should be a step by step distribution of sentences downwards from life imprisonment to the lowest penalty imposed for the two offences?[140]

(24) It is one thing to say that the will of Parliament, in fixing the maximum penalty for an offence, must not be disregarded by a sentencing judge.[141] But, anomalies apart, the will of Parliament often points in different directions. In many instances of many offences the maximum penalty stated – often in the Crimes Act – will not be the applicable maximum penalty at all. For very many years the Magistrates’ Court has been empowered to deal summarily with a wide range of offences; and, when it does so, there is a jurisdictional limit to imposition of a term of imprisonment.[142]

Presently, offences which may (not, will) be determined summarily are mainly collected in Schedule 2 of the Criminal Procedure Act 2009. They include, notably having regard to the offence with which Ashdown was charged, the offence of causing serious injury recklessly. They also include theft, robbery, burglary, aggravated burglary, handling stolen goods, receipt of secret commissions and dealing with the proceeds of crime (in each case if the amount involved does not exceed $100,000), and arson; also perjury and certain offences under the Drugs, Poisons and Controlled Substances Act 1981, the Firearms Act 1996 and the Occupational Health and Safety Act 2004. In the event, many offences which carry apparent maximum penalties of between 10 and 25 years imprisonment may turn out, in particular instances, to have a practical maximum penalty of two years imprisonment.

The fact that many offences with apparently high maximum penalties may turn out to have a practical maximum, in particular cases, which are a tiny fraction of the legislated maximum, is likely to be in part explained by the legislated maximums being ‘catch-alls’. This will tend to diminish the relevance of the legislated maximums – as Stockdale & Devlin pointed out in the passage from ‘Sentencing’ cited in Markarian at [30]. But whether or not the ‘catch-alls’ explanation is the only explanation, certain it is that large numbers of offenders are dealt with for Schedule 2 offences in the Magistrates’ Court. To give two examples: in the four year period 2004/05 to 2007/08, 1233 persons were dealt with in the Magistrates’ Court for the offence of causing injury recklessly. In the five year period 2004/05 to 2008/09, less than half that number - 560 - were sentenced in higher courts for the offence. Again, in the four year period between 2004/05 and 2007/08, 6838 persons were dealt with for burglary in the Magistrates’ Court; whilst in the five year period 2004/05 to 2008/09, only a tiny fraction of that number - 181 - were sentenced for the offence in higher courts.[143] It can thus be seen that, in the case of some offences (more instances could readily be given) the practical maximum in the considerably larger proportion of cases is the much lower jurisdictional limit which applies in the Magistrates’ Court.

(25) I should next make brief mention of the maximum penalties fixed by other Australian legislatures for particular offences. Of course, it is the maximum penalty fixed for the particular offence in Victoria which provides guidance – more or less – when sentencing a particular offender. But the existence of considerable variations in the maximum penalty for like offences in other jurisdictions shows, in my view, the care which needs to be taken not to put too many maximum penalty eggs into the sentencing basket. To take a few examples: (a) the maximum penalty for manslaughter in Victoria is 20 years imprisonment (the increase from a maximum penalty of 15 years having been critical to the decision in R v A B (No 2).[144] There is the same maximum penalty in Western Australia. But in New South Wales the maximum penalty is 25 years imprisonment, and in both South Australia and the Northern Territory, it is imprisonment for life; (b) In Victoria, the maximum penalty for rape is 25 years imprisonment. In Queensland, South Australia and the Northern Territory it is imprisonment for life. In New South Wales and Western Australia it is 14 years’ imprisonment; (c) in Victoria, the maximum penalty for causing serious injury intentionally is 20 years’ imprisonment. In New South Wales, the maximum penalty for the equivalent offence is 25 years’ imprisonment. In Queensland it is imprisonment for life. In South Australia the maximum penalty is 20 years, as it is in Western Australia; (d) in Victoria, the maximum penalty for causing serious injury recklessly is 15 years’ imprisonment. In New South Wales, the maximum penalty for the equivalent offence is 10 years’ imprisonment, or 14 years if the offence is committed in company. In South Australia the maximum penalty is 15 years imprisonment (basic offence) or 19 years (aggravated offence); (e) in Victoria, the maximum penalty for burglary is 10 years imprisonment. In Western Australia, it is 14 years. In Queensland the maximum penalty is 14 years imprisonment.

(26) Next, I must refer to recent authorities in this Court: R v A B (No 2),[145] DPP v D D J,[146] and DPP v C P D.[147] Each of them addressed – I put to one side for the moment whether as part of the ratio decidendi or as obiter dicta – the relationship between the maximum penalty for an offence and ‘current sentencing practices’ for that offence. The decisions in the latter two cases were delivered on the same day, but by differently constituted benches.

(27) I have already made mention of A B (No 2). The sentencing judge[148] had attached weight, when sentencing the offender, to the increase in the maximum penalty for manslaughter from 15 to 20 years’ imprisonment. His Honour said this:

38. Following the increase in the maximum to years to 20 years’ imprisonment, it was to be expected that there would be a corresponding increase in the sentences actually imposed. Yet sentencing statistics suggest that actual sentences have by and large remained the same.

For my own part, the increase in the maximum does imply that there should be some increase in the sentence actually to be imposed and I propose to follow that course in your case. Despite the general utility of current sentencing trends, I am not prepared to follow them down to a level below the

sentence which a maximum of 20 years implies it is necessary to impose.^[149]

It was complained, on appeal, that the judge had, by giving the emphasis which he did to the maximum penalty, improperly diluted the significance of ‘current sentencing practices’. This Court rejected that complaint. It cited Markarian, saying –

41. The joint judgment in Markarian recognises that a change in the maximum penalty may also indicate that Parliament regarded the previous penalty regime as inadequate. In the present case, the Minister’s speech made quite clear that the increased maximum was intended to result in the imposition of ‘higher sentences’. The trial judge was entitled – indeed, bound – to have regard to the fact that Parliament had increased the maximum sentence for manslaughter from 15 to 20 years, particularly given his view – which we share – that this killing was to be characterised as ‘manslaughter of the gravest kind’.^[150]

and

46. In some cases – and the present is an example – a tension may arise between ‘sentencing practices‘ and other matters specified in s 5(2).^[151]

and

47. As appears from the passages set out above, the trial judge paid close attention to current sentencing practices, including ‘the utility of current sentencing trends’. His Honour concluded that the sentences imposed for the worst category of this offence had not increased since the maximum penalty had been increased. This conclusion was not challenged on the appeal. In other words, the guidance provided by the increased maximum conflicted with the guidance provided by existing sentence practice.
48. How was that conflict to be resolved? Because courts have hitherto not responded to the legislative command to increase sentences in manslaughter cases, his Honour was not fettered by the previous pattern of sentencing but was obliged to give effect to Parliament’s decision to increase the maximum penalty. As the maximum sentence is reserved for the worst sort of cases – and this was one – the increased maximum called for the imposition of a sentence higher than the general trend of those sentences relied upon by AB.
49. To have imposed a sentence for a manslaughter of this gravity which did not reflect the increase in the maximum penalty would have been to commit a sentencing error of a fundamental kind. By increasing the maximum penalty for manslaughter, the legislature conveyed in explicit, unequivocal language its expectation that the worst instances of manslaughter would attract a sentence approaching the maximum of 20 years.^[152]

and

51. Whenever Parliament increases the maximum sentence for any criminal offence, that increase has potential significance for all sentences to which the new maximum applies. As the present case illustrates, the increase will have very substantial implications for any sentence for an offence that is placed within the worst category of that offence. Even where the offence to which the increase applies is nowhere near the worst category, the increase remains of relevance since, in the usual case, the increase shows that Parliament regarded the previous penalties as inadequate. Even where the new maximum may only be of general assistance, it becomes the ‘yardstick’ which must be balanced with all other relevant factors.^[153]

The ratio decidendi of the case, relevantly, was quite narrow. It was that apparent tension between current sentencing practices and the maximum penalty in respect of the particular offence was to be resolved in favour of giving the latter greater comparative weight when it appeared that current sentencing practices had not increased despite an increase in the maximum penalty. The consideration of current sentencing practices was part of the Court’s consideration of the prisoner’s appeal.

(28) I turn to D D J. The Director appealed against sentences imposed upon the respondent (who had pleaded guilty) in respect of child sexual offences – maintaining a sexual relationship with a child under 16, and producing child pornography. The offending was of the utmost gravity. The ground of appeal was that the sentences were manifestly inadequate. The appeal succeeded, and the offender was re-sentenced.

At the Court’s request, senior counsel for the Director provided a document which, in his submission, identified the sentencing range for each of the offences.

Counsel for the Director produced summaries of a number of sentencing decisions referable to the sexual offence count.

In argument, particular attention was paid to three decisions in that group of summaries. They were dealt with by this Court under the heading ‘Comparable Cases’. There, the facts of those other decisions, and their likeness, or otherwise, to the circumstances of the instant case were compared with a great degree of nicety.

Counsel for the Director did not ask the Court to review^[154] the adequacy of current sentencing practices. He rather submitted that the sentencing range which he had proposed in respect of the sexual offence count accorded with current sentencing practices as illustrated by the ‘comparable cases’. The Court did not agree.

The Court nonetheless held that the sentence imposed on the sexual offence count was manifestly inadequate when judged by current sentencing standards.^[155]

With respect to the count of producing child pornography, much the same sequence of events occurred. Counsel for the Director, having identified what he asserted was an appropriate sentencing range, produced summaries of a number of sentencing decisions in the County Court. The Court considered these summaries, and as well appeals decided by this Court. It fixed a new sentence. It said nothing about current sentencing practices in that connection.

The summaries produced by the Director were appended to the Court’s reasons.^[156]

What the appeal decided was that the sentences imposed upon the offender at first instance were manifestly inadequate. It was not a necessary part of the reasoning which led to that conclusion that current sentencing practices for either of the charged offences appeared to be inadequate.

The Court nonetheless said a good deal about that matter with respect to the sexual offence count. It said that the sentencing information provided by the Director indicated that current sentencing practices for the offence were inadequate, and did not reflect the very high maximum penalty which Parliament had fixed.^[157] It expanded upon that expression of opinion, in part by a statistical analysis of sentences imposed over the period 2001-06 and in 2008; and in part by reference to AB (No 2).

Concerning AB (No 2), the Court said this:

[70] But the significance of this court’s decision in R v AB (No 2) is that a judge who concludes — as the trial judge did in that case — that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise, as discussed above).^[158]

The Court ultimately drew back from expressing a concluded opinion about the inadequacy of current sentencing practices for the offence. But what it said could scarcely have failed to alert the reader to an opinion apparently held.

I wish to make four points about D D J. First, what was said about the inadequacy of current sentencing practices for the particular offence was said in the absence of any invitation to the Court to review their adequacy. There was thus, understandably, neither a proponent nor a contradictor with respect to that question. Second, the material to which the Court referred had been relied upon by the Director for a quite different purpose: to establish current sentencing practices, and thus to support the Director’s contention that sentence imposed had been ‘outside the range’.^[159] Third, because it was not a necessary part of the reasoning which led to the conclusion that the principal sentence was manifestly inadequate, that current sentencing practices for that offence were inadequate, what was said in that connection was – I think it cannot be doubted - obiter dicta. Fourth, the ratio decidendi of AB (No 2), with respect to maximum penalty, was surely much narrower than the proposition for which the Court cited it.

(29) I turn to DPP v C P D. The respondent, having pleaded guilty, was sentenced on two counts of sexual penetration of each of two very young girls. One of the counts, with respect to each girl, was a representative count. The appellant was also sentenced on a representative count of indecent act with a child under 10 in respect of each complainant. The Director appealed, contending that the individual sentences, the total effective sentence resulting from order for cumulation, and the non-parole period, were all manifestly inadequate. The ground was upheld, and the offender was re-sentenced.

This was another case in which the Director was requested, on the appeal, to provide a sentencing range. A range was provided, for the penetration offence, which was said to be constrained by current sentencing practices, and, which the Court noted ‘still bore little relationship to the maximum’.^[160]

Counsel for the Director argued the appeal ‘solely on the basis of current practices’.^[161]

The question of the adequacy of current sentencing for the offence of sexual penetration of a child aged under 10, as the Court noted, ‘was not ventilated in [the] appeal’.^[162]

In support of his submission as to range, counsel for the Director relied upon statistics which the Court did not find useful. But the Court itself identified statistics which it considered were of some use in respect of the penetration count. It set them out in a table at the end of the judgment, together with a table showing the disparity between the maximum penalty, the sentence imposed and the Director’s suggested range for the several offences, and tables showing the results of appeal decisions concerning both sexual penetration of a child under 10, and incest. These last tables reflected the Court’s own researches.

The Court noted, when considering the ‘applicable sentencing range’, that counsel for the Director had focussed upon the ‘large discrepancy between the sentences here imposed and the maximum penalty of 25 years for the offence of sexual penetration of a child aged under 10’.^[163] It further noted that the maximum penalty had been increased from 20 to 25 years’ imprisonment in 1997.^[164] It made no mention of an argument for the Director that the current range of sentences had not taken account of that increased maximum penalty.

The Court, having considered the statistics and the tables setting out its recent decisions, and having explicitly restated the ‘well-recognised shortcomings of aggregate statistics’,^[165] concluded that - (a) ‘self-evidently, a statistical range with an upper limit of (say) seven years is difficult to reconcile with the statutory maximum of 25 years’;^[166] and (b), the head sentence was manifestly inadequate ‘even within the limits of current sentencing practices’.^[167]

In re-sentencing the offender, the Court did not depart from current sentencing practices. The offender had pleaded guilty. But the Court stated that, had the matter been fully argued on proper material, it might have concluded -

having regard to the [1997] increased maximum and other relevant considerations, that a departure from current sentencing practices was required.^[168]

The Court then entered upon a lengthy excursus in which it dealt with ‘current sentencing practices and the statutory maximum,’ ‘the decision in R v A B (No 2)’, and ‘identifying current sentencing practices’. Those parts of its reasons, in my opinion, were obiter dicta. The Director had not advanced a case that the Court should depart from current sentencing practices in dealing with the appeal; nor - which could be relevant for departing from such practices – that judges had not taken proper account of the 1997 increase in the maximum penalty for the major offence.

In the circumstances, for the moment I make only these observations:

First, a passage cited by the Court from the judgment of Nettle JA in DPP v O J A^[169] with respect to the possibility of departure from current sentencing practices in the case of particular offences, because of a change in views over time, in my respectful opinion accurately summarises the situation. The desire for consistency in sentencing does not mean that the permissible sentence in a particular case is inevitably confined by the boundaries of current sentencing statistics.

Second, the Court’s description of what is meant by ‘current sentencing practices’^[170] identified the relevance, despite long-recognised limitations, of sentencing statistics; and the relevance of ‘comparable cases’. The usefulness of the latter must now be considered in light of this Court’s decision in Hudson v The Queen; DPP v Hudson^[171].

Third, the ratio decidendi of R v A B (No 2) was surely narrower than the following passage suggests:

.. the significance of R v AB (No 2) is that a sentencing judge who concludes...that current sentencing practices are not consistent with the statutory maximum for the offence is not constrained by those practices. Rather, the judge, while giving due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness associated with a plea of guilty...)^[172]

Fourth, the Court made some use of material^[173] which had been directed to establish the existing sentencing range – and which thus bore upon the Director’s contention that sentence imposed had been manifestly inadequate - for a second purpose: that is, to imply that current sentencing practices were set too low. In respect of that second purpose, there had been neither a proponent nor a contradictor.

(30) In all, in my opinion, A B (No 2), D D J and C P D add very little to the learning with respect to the relevance of maximum penalty, or to its interrelationship with ‘current sentencing practices’ for any particular offence. A B (No 2) was an entirely orthodox instance of an increased maximum penalty making appropriate an increase beyond current sentencing practices in the sentence which might be imposed for the worst instance of the offence, and potentially other instances also. On the other hand, neither D D J nor C P D addressed, as part of their ratio decidendi, the interrelationship between the maximum penalty and current sentencing practices for an offence of which the prisoner had been convicted, so as to demonstrate that the latter were inadequate, and in turn that the sentence imposed could not stand. The hints in those cases that, when regard was had to the maximum penalty for the various offences, current sentencing practices were too low, were made in the absence of argument by a proponent or a contradictor.^[174]

(31) I must say something more about ‘current sentencing practices’, although I am strongly of the opinion, for reasons which I will attempt to explain, that too much has been said about the subject in recent years.

The term draws attention to the approach currently adopted by judges sentencing persons for the offence with which the present offender is charged.

Nettle JA was undoubtedly correct in saying in OJA that in a particular case a sentence may permissibly travel beyond current sentencing practices. That may be so for any one of a number of reasons. Current sentencing practices may become outdated because of an increase in the maximum penalty for the offence; or the case before the Court might be a worse case than any instance previously encountered. Again, current sentencing practices may be adjudged to be inadequate in light of increased prevalence of the particular offence; or perhaps in light of a re-assessment of the comparative seriousness of the offence.

None of this is new. Nor does it conflict with the language of s 5(2). This Court pointed out in A B (No2) that the requirement that regard be had to the matters specified in s 5(2) of the Sentencing Act did not mean that in sentencing an offender a judge was thereby straitjacketed by current sentencing practices. The perceived significance of the various considerations mentioned in the sub-section in a particular case^[175] is a matter for the sentencing judge.

In recent years, considerable attention has been paid to the question how current sentencing practices are to be ascertained. Attention has focussed on the role of sentencing statistics and ‘comparable cases’ in discerning current sentencing practices. Except by reference to sentencing statistics, almost nothing has been said (or acknowledged) about the storehouse of knowledge of current sentencing practices which exists in the accumulated, collegiate experience of a large number of judges and magistrates who routinely sentence offenders for a very wide range of criminal offences, which knowledge will inevitably guide consideration of any particular case.

Sentencing statistics are now produced by the Sentencing Advisory Council, a body established in 2003 under Part 9A of the Sentencing Act 1991. Such statistics are no new thing. They have been collected in Victoria since 1975, and published year by year thereafter.^[176] Yet although, from its commencement in early 1992, s 5(2) of the Sentencing Act referred to current sentencing practices, until the last five years or so there was very little reference to sentencing statistics in judgments of this Court, and before it the Court of Criminal Appeal. In R v Giordano,^[177] the reference by Winneke P to ‘statistics’ was a reference to sentences in particular cases which had been drawn to the Court’s attention. I should also mention DPP v Ware,^[178] a case in which there was reference to statistics, and in which Hedigan AJA, who gave the leading judgment,^[179] was apparently very alive to their limitations. He said that the Director had referred the Court, ‘with appropriate accompanying cautionary admonitions’, to some statistics of sentences in the last decade. He said also that he did not act on those statistics ‘in any direct way’, but that ‘a reading of even the primitive figures immediately produces the reaction that [the sentence imposed at first instance] seems unheard of.’ But, ‘be that as it may’, his Honour concluded that the sentence imposed was manifestly inadequate.

In my opinion, the absence of reference to such statistics for a long time is understandable enough. They do not themselves establish current sentencing practices. As this Court said in DPP v Maynard^[180] –

Statistics do no more than establish minimum and maximum sentences and the average and median sentences imposed over a particular, and necessarily arbitrary period. Indeed, there is a danger that undue reliance upon the average or median sentence imposed during a particular period will distract the sentencing judge from the particular circumstances of the case in hand and has the capacity to distort sentencing in particularly serious cases towards the average or median figure. The statistics cited provide guidance in only a limited way to the sentence that should have been imposed in this case. By themselves, statistics do not establish a sentencing practice.

To the same effect, the plurality in Hili v The Queen^[181] stated that

Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes.

As this Court pointed out in Maynard, in the passage which I cited above, recourse to statistics may frustrate achieving a sentence which properly accommodates the circumstances of the instant offence and the instant offender.

None of this is to deny that sentencing statistics throw some light on sentencing patterns for a particular offence, and thus provide some window on the accumulated experience of sentencing judges. Of course they do, to the extent that such information can be of assistance. But the assistance is limited, and too much emphasis upon statistics by sentencing judges may well lead to error, for the reasons indicated above.

Distinct from sentencing statistics are sentences passed in so-called ‘comparable cases’. This Court has had occasion, recently, to pass upon the permissible and impermissible use of such cases: Hudson v The Queen; DPP v Hudson.[182] I refer to, but do not repeat, what the Court said at [24]-[36]. In principle, it coincided with the judgment of the plurality in Hili v The Queen[183] with the gloss that in Hili their Honours specifically pointed out that whilst sentences passed in other cases provide an historical record, they do not fix sentencing boundaries.

(32) In what I have thus far said I have not referred to Part 2AA of the Sentencing Act 1991, headed ‘Guideline Judgments’. The Part, introduced in 2003, on its face empowers this Court to give and review ‘ guideline judgment(s)’ as defined. As yet the Court has not decided to give such a judgment. So the procedural requirements set out in s 6AD have not been triggered.

The matters which a guideline judgment may set out are specified in s 6AC. They include:

(a) criteria to be applied in selecting among various sentencing alternatives;

(b) the weight to be given to the various purposes specified in section 5(1) for which a sentence may be imposed;

(c) the criteria by which a sentencing court is to determine the gravity of an offence;

(d) the criteria which a sentencing court may use to reduce the sentence for an offence;

(e) the weighting to be given to relevant criteria;

(f) any other matter consistent with the principles contained in this Act.

According to s 6AG, a guideline –

(a) is additional to any other matter that is required to be taken into account under Part 2; and

(b) does not limit or take away from any such requirement.

Whether the function conferred upon the Court is a judicial one is a question for another day. Two points, however, do need to be made. First, a decision of this Court to give a guideline judgment ‘must be a unanimous decision of the judges constituting the Court’;[184] and second, paragraph (c) of s 6AC suggests that, as the legislature viewed the matter, the setting out of ‘the criteria by which a sentencing court is to determine the gravity of an offence’ is a matter for a guideline judgment.

Summation

152 Having explained my understanding of the relevant legal principles, and the way in which the present appeal came to hearing and was argued, I can now summarise my opinion why the Court should not take up the Crown’s ‘invitation’.

153 First, the question whether current sentencing practices adequately reflected the maximum penalty for the offence of causing serious injury recklessly was not before the Court as a matter requiring its determination in order to dispose of the appeal. Senior counsel for the Crown orally accepted that this was so, because what he did was to invite the Court to make observations that current sentencing practices were inadequate. He accepted that nothing said in that regard would impact upon the appellant.

154 Second, the question did not require determination by the Court not only because of what was said by senior counsel for the Crown, but also because, importantly, it was not a question which required determination in order to quell the dispute before the Court. The situation is not akin to that which arose in any of the cases to which I referred at [151](9) above. In some respects, it is akin to the situation which arose in Winch: see [151](15)(16) above. Particularly, the appellant pleaded guilty, he did so without any intimation that the Crown would contend that current sentencing practices were inadequate, and the prosecutor neither made any such submission to the sentencing judge nor adduced any pertinent material on the plea. Only on the appeal did the Crown proffer material which was said to bear upon current sentencing practices - although it accepted that a conclusion reached by the Court that such practices were inadequate should not affect the appellant. For reasons indicated in my analysis of Winch, that decision does not stand as authority for the proposition that this Court has jurisdiction to pass upon a Crown ‘invitation’ in such circumstances.

155 Third, with the benefit of hindsight, and for the reasons discussed in connection with Winch, in my opinion the Court should not have received the material.

156 Fourth, having regard to the positions adopted by counsel for the Crown and the appellant respectively, there was neither a proponent not a contradictor in respect of an argument that current sentencing practices for the particular offence did not take sufficient account of the maximum penalty. That circumstance – which was a feature also of Winch, D D J and C P D - emphasises, in my opinion, why this Court should not pass upon the adequacy of current sentencing practices in this case.

157 Fifth, quite apart from jurisdiction, anything said in response to the Crown’s invitation would be obiter dicta. A plethora of obiter dicta – whatever be its motivation – is not likely to assist sentencing judges. It is at least not clear that the concept of seriously considered dicta[185] is part of the common law in Australia. I consider that obiter dicta, however well-intentioned, may well be unhelpful. It is unfortunately the case that observations in D D J and C P D have been seized upon more than once as if they authorised an approach to sentencing generally which takes as its necessary integers the maximum penalty for the charged offence and ‘current sentencing practices’, these enabling a mechanistic approach to sentencing.[186] But other judges have declined to rely upon the dicta in order to depart from what they understand to be current sentencing practices. The potential exists, depending upon the particular judge’s standpoint, for the imposition of quite different sentences for the same offence. In fact, it has already gone beyond potential. Whilst this Court is able to sort out resulting problems, there is quite enough for it to do without creating a situation where there are appeals which, it may be said, are of its own making. I add that there is a risk, because of the revealed different attitudes of particular judges to the D D J and C P D dicta, of judge-shopping.

158 Sixth, this case may be compared with Winch.[187] All else apart, the conclusion there reached by the majority was that ‘glassing’ – the variant of the offence committed by that appellant - was not a sub-category of the offence which should be treated, intrinsically, as being of lesser seriousness than the run of cases constituting the offence. In the present case, no such special feature was identified.

159 Seventh, it appears to me that, if the Crown’s document headed ‘Sentencing Principles – Causing Serious Injury Recklessly’ was given the Court’s imprimatur, it might have the effect, indirectly at least, of influencing judges to engage in ‘two tier’ sentencing. The document might be understood to imply that the first step is to determine the ‘objective gravity’ of an offence by a ‘tick the box’ exercise, to which may thereafter be added or subtracted matters going in aggravation or mitigation.[188]

160 Because, in my view, the Crown’s document has some points of connection with the reasons for judgment of Maxwell P in Nguyen v The Queen; Phommalysack v The Queen,[189] I should make some reference to that case. The two appellants pleaded guilty to charges arising from the importation of illegal drugs on a large scale – many multiples of the applicable commercial quantity of the three drugs involved. One of the appellants pleaded guilty to a count of attempted importation and to a count of attempted possession. The other appellant pleaded guilty to a count of attempting to possess the imported drugs.

161 The first of the appellants had assisted the authorities and had undertaken to provide further assistance. She contended that the sentence imposed was manifestly excessive, and that the discount for her co-operation was inadequate. The other appellant contended that the judge’s sentencing remarks were affected by specific error.

162 This was another case in which the Court requested assistance as to ‘the applicable sentencing range’.[190] Counsel for one appellant drew attention to five recent decisions of the NSW Court of Criminal Appeal which dealt with sentences for participation in large importations of drugs – and which thus also related to offences against Commonwealth law. Counsel for the Crown drew attention to two sentences recently imposed by the County Court judge for offences of that kind.

163 Maxwell P and Redlich JA, who constituted the Court, published separate reasons. Maxwell P set out a summary of propositions[191] which had been said, in the most recent NSW case cited, Nguyen & Pham,[192] to have been distilled from the authorities. His Honour described the summary as ‘of great importance to courts dealing with those federal offences’[193]; and he prefaced the summary by stating that is was ‘for the assistance of sentencing judges’.[194] His Honour also referred to the identification of ‘key reference points for sentencing’ by McClellan CJ at CL in DPP (Cth) v De La Rosa;[195] and he set out a table from that judgment,[196] stating that ‘his Honour was not purporting to lay down quantitative sentencing guidelines’.[197]

164 The President concluded that the appeals should be dismissed. Redlich JA agreed. But in doing so, he adverted to the use which may properly be made of comparable cases, footnoting Hudson;[198] and he made it clear that the propositions stated in Nguyen & Pham and ‘various applicable sentencing principles’ discussed by the President had not been ‘the subject of argument or reference’ during the appeal. He thus reserved ‘for an occasion which requires their consideration, whether any of the factors [drawn from Nguyen & Pham] should be qualified and if so to what extent’.[199]

165 In the event, it appears that the propositions and principles stated by the President wanted a proponent or a contradictor. But, beyond that, I respectfully consider that particularly the table indirectly applies the very constraint which was said in Wong to be objectionable. The danger of such a table is that it will, though not purporting to speak for the future, have the effect that sentencing judges will focus upon it as a starting point – or worse still, the end point – for determining sentence; a process frustrating, not aiding, the process of instinctive synthesis.[200]

166 Eighth, in my view there is a serious question whether, in an ordinary appeal, it could be compatible with s 6AC(c) of the Sentencing Act for the Court to identify criteria in the manner proposed by the Crown’s document as bearing upon assessment of the gravity of the particular offence.

167 Ninth, whilst sentencing range can be informed by ‘current sentencing practices’ and ‘comparable cases’ in the ways which I have described, I do consider that relentless reference by this Court to current sentencing practices, and the recitation of statistics, has the capacity to distort the process of instinctive synthesis - a process reliant upon a judge bringing together all relevant circumstances (which travel well beyond the confines of s 5(2) ) to produce a sentence which, in the judge’s opinion, is appropriate to the circumstances of the offence and the offender.

168 Tenth, although it does not bear upon my reasons why the Crown’s invitation should be refused in the present case, I should add this: I reject any suggestion that the analysis to which I adhere means that the Court is disabled from addressing a challenge to the adequacy of current sentencing practices for a particular offence, or a particular category of that offence. See the discussion at [151](16) above. Such a challenge - supplementing the Court’s power to make an observation of the kind exemplified at [151](9) above - may be initiated so as to raise an issue between the Crown and the accused. Whether such a challenge could succeed, however, must depend upon a consideration of circumstances which have conventionally been recognised as justifying departure from current sentencing practices. There can be no place for idiosyncratic views, or for an approach restricted to consideration of very few matters pertinent to the complex task of imposing sentence. It follows from what I have said that I essay no opinion whether the general range of sentences for the offence of causing serious injury recklessly is too low.

A postscript

169 Since writing the above, I have had the opportunity of studying in draft the reasons for judgment of Maxwell P and Redlich JA. It is desirable that, if possible, some commonality be discernible from our reasons with respect to circumstances in which an issue as to adequacy or otherwise of current sentencing practices for a particular offence[201] can be ventilated. With that in mind, I should say that I agree with the substance of what Redlich JA says at [175], [177], [178], [180], [184], [185]

and [187]-[[202]] below.²⁰² I am respectfully unable to agree with his Honour, however, that this Court is empowered to pass upon that subject where the issue is not al[203] between the parties.²⁰³ I consider that the issue must be one calling for resolution in the course of the Court disposing of the rights of the parties to the appeal. Those circumstances will ensure that there will be a proponent and a contradictor in respect of the issue – a hallmark of our adversary system. The clash of competing arguments is most likely to lead to a sound decision. As I pointed out at [168] above, it should be no difficult thing to ensure that an issue respecting current sentencing practices does arise in an appropriate context.

REDLICH JA:

170 On 17 December 2010 I joined in allowing the appeal against sentence for the reasons now given by Ashley JA.[204] We rejected the Crown’s primary submission that having regard to current sentencing practice (CSP) a sentence of five years’ imprisonment imposed in the County Court on a single count of recklessly causing serious injury (RCSI) was not manifestly excessive and reduced the sentence on that count to three years and six months’ imprisonment.

171 The Crown advanced an alternative submission. It is contended that if CSP could not accommodate the sentence that had been imposed on the count of RCSI, we should state that CSP for that offence was inadequate, as it did not meet community expectations. It submitted that there was an unjustifiable gap between CSP for the offence and the maximum penalty which demonstrated that CSP did not reflect the objective gravity of the offence. However it conceded that even if we found that CSP was inadequate, it would not be appropriate to increase the appellant’s sentence as he had pleaded guilty and was sentenced on the basis of CSP.

172 I have had the considerable advantage of reading in draft the substantial reasons of the President and Ashley JA which address the Crown’s alternative submission. I agree with them that this was not an appropriate case for the expression of an opinion about the adequacy of CSP. However, their reasons expose fundamental differences as to why this was not viewed as an appropriate occasion to express such an opinion and when circumstances would permit this court to suggest that CSP is inadequate and should be uplifted. I should therefore state my view on these important matters.

173 As a consequence of directions given when leave to appeal was granted, the Crown filed a document which contained an examination of 276 cases of RCSI between 2007 and 2009.[205] The cases were not confined to those said to be comparable to the circumstances of the present offending. The Crown relied upon an analysis of all sentences for RCSI over a three year period and based upon this material invited the Court to express the conclusion that CSP for the entire range of the offence of RCSI was inadequate. Such a conclusion was well beyond any issues relevant to the appeal and could not be undertaken.[206]

Identification of the category of seriousness of the subject offence

174 Current sentencing practice is referred to in s 5(2) of the Sentencing Act 1991 (Vic) as one of the matters to which a sentencing court must have regard. The term is to be understood as a particular, though not exclusive reference, to the kinds of sentences that are imposed for that offence in comparable cases.[207] The Sentencing Advisory Council has defined it ’as those sentences imposed over a recent period of time on ‘like’ cases.’[208] Comparable cases which contribute to CSP will provide an important indicator of the parameters within which the discretion may be exercised.[209] Subject to relevant discretionary considerations, they will inform the order of the sentence that might be expected to be attracted by a certain type of offender who commits a certain type of offence. A general overview of sentences imposed for offences of a similar character will play a part in informing the ‘instinctive reaction’ when a court is asked to consider whether a sentence is manifestly inadequate or excessive. By facilitating the identification of the range, similar types of cases serve the criminal justice objective that sentencing should be systematically fair and consistent. They advance the underlying value of equality under the law and the search for unifying principles.[210] Cases are likely to be comparable where the objective seriousness of the offender’s conduct is similar to that of the subject offence. Decisions which involve conduct which fall outside the relevant category of seriousness for the subject offence may occasionally provide assistance in identifying indicative outer limits of the appropriate sentencing range. However it is CSP, as revealed by those comparable cases concerned with the relevant category of seriousness of the offence, that will generally inform the range of sentences that are reasonably open to the sentencing judge. Hence appellate courts, including the High Court, may seek to identify the applicable range by characterising the objective seriousness of the offence as falling within the low, mid or the high range of seriousness of the offence.[211] Hayne J described this range as the ’permissible range of disposition’ in A B v The Queen.[212] There may also be a further narrowing of the range by asking whether the offence falls towards the lowest end, the middle or the upper end of that applicable range. Such focus upon the relevant range of sentences, or in times gone by, to the ‘tariff’ or ‘going rate’, provides guidance as to an indicative range for the category of seriousness of the subject offence and implies that the range is not unlimited.[213]

When is a Guideline Judgment appropriate?

175 In a supplementary outline of submission the Crown identified a number of factors frequently found to be present in conduct constituting RCSI which are relevant to a determination of the objective gravity of that conduct. It invited the Court to list these factors as criteria by which the gravity of the conduct in each case of RCSI might be determined. This court can only undertake such an analysis pursuant to a guideline judgment under Part 2AA of the Sentencing Act 1991 (Vic) and in the circumstances prescribed by the legislature. A guideline judgment may serve to strike an appropriate balance between the individual justice achieved through the sentencing discretion and the objectives of consistency of sentencing and maintenance of public confidence in sentencing and the courts who administer criminal justice. Hence one of its functions would be to address a pattern of inconsistency or leniency in sentencing for an offence.[214] If these tasks are attempted during an appeal against sentence involving a review of the sentencing discretion, it puts at risk the principles and limitations that govern such a review. As we were not giving a guideline judgment we could not therefore undertake the broad analysis proposed by the Crown.

176 I now turn to the specific basis upon which the Crown submitted that CSP was inadequate. It relied upon the gulf between the maximum penalty for RCSI of 15 years’ imprisonment and CSP for this offence. Although the Crown initially sought to also rely upon community expectations as to how RCSI should be punished and community disquiet concerning the commission of such offences, senior counsel conceded during oral argument that no evidence had been placed before this Court that could support either of those grounds. Ultimately, the Crown relied solely upon its claim that there was an unjustifiable gap between the maximum penalty and CSP for the offence which had produced inappropriately lenient sentences.

Appellate review of the sentencing discretion and CSP is governed by principle

177 An appeal against the exercise of the sentencing discretion is governed by established principles, as Dinsdale v The Queen[215] and Carroll v The Queen[216] emphasise. Thus the requirement that the appellate court identify or infer error in the manner in which the discretion was exercised.[217] The principles applicable are those stated in House v The King.[218] Appellate intervention cannot be justified unless either specific error can be identified in the manner in which the discretion was exercised or a failure to properly exercise the discretion can be inferred because the decision arrived at was plainly unjust or unreasonable.[219] This difference between cases of specific error and manifest excess or inadequacy is not merely a matter of convenient classification, as Hayne J stated in A B v The Queen.[220] The case of specific error identified may be that the judge acted upon some wrong principle or allowed extraneous or irrelevant matters to guide him or her, or made a mistake of fact or failed to take into account a material consideration.[221] Even where error is made out, it may not require a re-exercising of the sentencing discretion unless the court considers a different sentence should be imposed. In the case of an unjust or unreasonable decision, though the error is not discoverable, the exercise of the discretion may be reviewed on the ground that a substantial wrong has occurred.[222] Where such a wrong is alleged, it is usually described as a sentence that is manifestly excessive or inadequate. To infer error in the latter case, it must be demonstrated that the sentence imposed was beyond the range of sentences that was reasonably open in a sound exercise of the sentencing discretion. These principles were restated in Markarian v The Queen.[223] Subject to the court’s residual discretion not to intervene, where this category of error is established, it will require the sentencing discretion to be re-exercised.

178 There is a further important limitation upon appellate intervention where a sentence falls within this latter category. Appellate courts may not interfere with a sentence because of mere disagreement with the sentence imposed.[224] Hence appellate judges frequently acknowledge that their task is not to determine what sentence they would impose but whether the sentence fixed was one that was reasonably open to the sentencing judge.

179 Where there is a CSP for the category of seriousness of the offence within which the subject criminal conduct falls, it will provide guidance to the sentencing judge as to the parameters within which the sentencing discretion may be exercised. That is not to say that in a particular case a sentence higher or lower than that previously fixed for that category of seriousness of the offence may not be appropriate.[225] Otherwise, the circumstances in which a judge may move beyond CSP have conventionally been limited to particular types of circumstances where current sentencing practice has been uplifted.

180 It is therefore convenient at this point to examine the circumstances in which an intermediate appellate court, exercising its jurisdiction to review a sentence and governed by established principles, is at liberty to propose that CSP should be uplifted. This and other appellate courts have expressed a view as to the adequacy of CSP in the following circumstances:

(1) Where there has been an increase in the statutory maximum penalty and CSP has failed to reflect that increase.

(2) Where there is evidence that an offence has become more prevalent.^[226]

(3) Where community expectations have altered.^[227]

(4) Where there has been increased community disquiet over the offence.^[228]

(5) Where there has emerged a better understanding of the consequences for the victim of the offending conduct.^[229]

(6) Where there has been a persistent error in the manner in which a category of offenders has been treated.^[230]

(7) Where the objective seriousness of particular conduct has been wrongly categorised or a particular type of sentencing disposition is not ordinarily appropriate.^[231]

181 In the case of categories (1) to (5) it is because of an identified alteration in the setting in which sentencing is now to take place that enlivens the appellate jurisdiction to formulate a new sentencing practice.[232] Expressed in terms of House v The King error, it is the identification on appeal of a material consideration that has not been taken into account in the exercise of the sentencing discretion.

182 I should say something further about categories (1) and (7). The right to express an opinion as to CSP where there has been an increase in the maximum penalty was very recently reaffirmed in Muldrock v The Queen.[233] The principle that where maximum penalties change, CSP can be departed from, recognises the paramountcy of legislative guidance which will then take precedence over CSP.[234] This court applied that principle in R v A B (No 2).[235] The reasons in DPP v C P D[236] are not to be understood as authority for some broader proposition.[237] The discussion in C P D as to CSP took place in the context of an increase in the maximum penalty for the offence which it was suggested may not have been adequately reflected in CSP. At the two relevant paragraphs of the joint judgment, [7] and [68], in which I participated, we referred to the earlier decision of this Court in R v A B. Subsequent decisions and academic writings recognise C P D as authority for the proposition that a sentencing judge is not fettered by a previous pattern of sentencing but is obliged to give effect to Parliament’s decision to increase the maximum penalty.[238]

183 The decision in Police v Cadd[239] which was the subject of approval by the High Court in Wong v R[240] is an example of category (7). The decision of this Court in Winch v The Queen,[241] heard at the same time as the present appeal, is another. Winch concerned the offence of glassing. The Crown had submitted that glassing cases should not be viewed as a discrete category of RCSI less serious than cases in which a weapon likely to inflict serious injury is employed, and that this Court should say so, in order to assist sentencing judges.[242] It was stated in the joint reasons that such conduct was not to be treated as a less heinous category of the offence of RCSI so that ordinarily a wholly-suspended sentence would be inappropriate. Those reasons, in which I participated, sought to correct an error in principle as to the sentencing standard that had previously been applied and provide guidance as to the type of punishment that should ordinarily be imposed.[243] Winch has now been applied in numerous decisions of this Court and other intermediate courts of appeal.[244]

184 This is not an exhaustive list of the circumstances in which an intermediate appellate court may suggest that CSP should be uplifted. Nor are the categories of circumstances in which an appellate court may entertain such an argument closed. But the circumstances in which it does must always be particular applications of the principle stated in House v The King. Hence on a prisoner’s appeal, the Crown must bring itself within one such circumstance if it wishes to submit, by way of response in a prisoner’s appeal, that CSP should be uplifted. Once established, the existence of such a circumstance provides a basis in principle for appellate review of the manner in which the sentencing discretion has been exercised.

185 In the present appeal, the Crown was unable to bring itself within any such circumstance. There was no basis residing in principle upon which we could review the adequacy of CSP. Senior counsel for the Crown acknowledged that the Director had not come forward with evidence that could support a claim that the offence was more prevalent. Nor could he substantiate the assertion that there is considerable public disquiet about public disorder at night and this type of offence. He did not go so far as to concede that the gap between CSP and the maximum penalty does not without more provide a principled basis for the expression of an opinion that CSP is inadequate but he accepted that the gulf between CSP and the maximum penalty was ‘never decisive’. He relied solely upon the fact that from some 276 cases of RCSI, it was considered that 36 were ‘alarmingly’ lenient because of that gap.

186 There are fundamental reasons why, in the absence of those circumstances which it has been recognised permit the expression of opinion that CSP should be uplifted, the gap between the maximum penalty and CSP will not alone provide a basis supported by principle for appellate review of CSP.

The gap between CSP and the maximum penalty

187 It has never been suggested that s 5 of the Sentencing Act 1991 has altered the common law position regarding the relative importance of CSP and the maximum penalty. Both factors, to which the sentencing court must have regard, continue to exert their proper influence in the sentencing process. And in all cases the sentence must be proportionate to the gravity of the crime.[245]

188 The recent decision of the High Court in Muldrock v The Queen[246] reaffirms one of the essential tenets of sentencing that the maximum penalty serves as an indicator of the relative seriousness of the offence.[247] It is prescribed for the worst class of the offence in question. In Markarian v R Gleeson CJ, Gummow, Hayne and Callinan JJ said:

Careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; second because they invite comparison between the worst possible case and the case before the court at the time, and thirdly, because in that regard they do provide, taken and balanced with all the other relevant factors, a yardstick.

189 In R v Sibic[248] I said:

The joint judgment in Markarian cites with approval a passage from Stockdale and Devlin’s book, Sentencing, to the effect a change in the maximum penalty by Parliament may be helpful where it is clear that Parliament regarded the previous penalty regime as inadequate. Their Honours also cautioned that it will generally be inappropriate to first look to the maximum penalty and then make a proportional reduction from it.

The provision of a maximum penalty of life imprisonment that the legislature regarded the worst class of case of trafficking in a large commercial quantity of a drug of dependence as an extremely serious offence. But such a high maximum is only of general assistance in determining the actual sentence to be imposed for an offence that is nowhere near the upper end of the scale.^[249]

190 The gap between CSP for a category of seriousness of RCSI and the maximum penalty has never by itself been identified by this Court as providing a basis in law upon which to express an opinion as to the adequacy of CSP.[250] There are sound reasons why it has not done so. CSP is constituted by numerous sentencing decisions, both at first instance and on appeal which have considered what sentence is appropriate for that category of seriousness of the offence. Those ‘comparable’ cases which form a part of the CSP relevant to the category of the offence before the court, were all influenced by the maximum penalty. They reflect the view of numerous judges as to what is an appropriate sentence. It must be presumed that those sentences all took account of the maximum penalty. Each of those sentences represents a sound exercise of the sentencing discretion. Any significant gap between the sentences in those comparable cases and the maximum penalty, considered over time, will ordinarily be explicable because the objective seriousness of that category of the offence were of an order that warranted sentences well removed from the maximum penalty. As I said in Sibic, in such cases the maximum penalty can only be of limited assistance.

191 Consistency in sentencing, fundamental to the administration of criminal justice, requires adherence to CSP unless a specific circumstance exists which warrants departure from that practice. The law requires that a discretionary decision must be made in conformity with the well settled principles as must appellate review of such decisions. By this judicial method the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.[251] The gap between the maximum penalty and CSP for a category of an offence does not provide a sufficient basis for an idiosyncratic view that CSP fails to reflect the objective seriousness of the offence. In Carroll v The Queen,[252] the Director had submitted before the Court of Criminal Appeal that the primary judge had failed to appreciate the objective seriousness of the offence. As the plurality reasons of the High Court state, that matter was not an error of principle as would have enlivened any form of error identified in House v The King other than the last category that the sentence was unreasonable and plainly unjust. As CSP discloses the indicative range, no error can be inferred where the subject sentence falls within that range. Implicit in the requirement of a principled basis for declaring CSP inadequate is the recognition that no judge should be at liberty to disregard CSP because of their idiosyncratic view that such sentences are disproportionate to the offence because there is too greater a gap between CSP and the maximum penalty. To act upon the view that the gap between the maximum penalty and CSP does not adequately reflect the objective seriousness of the offence requires not only a conclusion that it was not reasonably open to the judge at first instance to have fixed the subject sentence but that all of the decisions comprising CSP for that category of the offence were infected with the same error.

192 While the gap between CSP and the maximum penalty is a relevant consideration, some other factor must be present which brings the case within the principles that govern appellate intervention. Otherwise the limitation in the manner in which appellate jurisdiction may be exercised as formulated in House v The King will not have been observed. This court has not yet been willing to countenance such judicial latitude. To maintain consistency of sentencing it is necessary that a case be brought within those circumstances which, as a matter of principle, justify a departure from CSP.

If a proper foundation has been laid, may the Court express an opinion as to the adequacy of CSP or provide guidance as to sentencing standards only where to do so will dispose of the controversy before the Court or quell the dispute between the parties?

193 I now turn to consider the position once the Crown brings itself within a circumstance such as those I have specified at [180] or some other circumstance that establishes error, so that there is an unresolved issue as to the adequacy of CSP. No narrow view should then be taken of the circumstances in which an intermediate court of appeal may provide guidance with respect to standards of sentencing or when it may express an opinion about the adequacy of CSP for that category of the [253]ence CSP.253 It would unduly circumscribe the court’s function to confine its right to provide guidance or express an opinion to those occasions where its view actually affects the ultimate decision of the court. There is no principle nor any authority which dictates that it may only do so where such conclusions actually lead to the court declining to intervene in a prisoner’s appeal when hitherto it might have done so or to intervene in a Director’s appeal when hitherto it may not have done so.

194 It is well settled that a Crown appeal against sentence is concerned with establishing matters of principle ‘for the governance and guidance of courts having the duty of sentencing convicted persons’.[254] The power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing wherever the subject sentence is definitely outside the appropriate range.[255] That power is not confined to Crown appeals. The Court’s obligation is to ensure that sentences are neither unreasonably or plainly excessive or inadequate. The Court may discharge this function by correcting individual sentences or by establishing standards of sentencing or by indicating an appropriate sentence range or a category of seriousness of an offence.[256] It was the discharge of appellate responsibility for sentencing standards that explains the High Court’s observation in Veen v The Queen (No 2)[257] that the appellate court could receive evidence concerning the psychiatric services provided by the State as material relevant to the adoption of sentencing principles or sentencing policy which would be of general application.

195 The observations of Doyle CJ in Police v Cadd are pertinent. His approach was considered and approved in the joint judgment of Gaudron, Gummow and Hayne JJ in Wong v The Queen.[258] In Cadd, each of the four appeals were heard together. Terms of imprisonment imposed for the offence of driving whilst disqualified had been wholly suspended in the case of each offending driver. The Court of Appeal concluded in three of the four appeals that the suspension of the term of imprisonment could not be justified but in the exercise of its discretion the Court of Appeal refused to intervene. Doyle CJ concluded that circumstances which justified suspension of the term of imprisonment were unlikely to be found in ordinary circumstances of the offence and articulated the principles which would provide guidance in the future. Plainly, the observations of Doyle CJ as to appropriate sentencing standards did not determine the controversy between the parties as he declined to interfere with the sentences.

196 The Chief Justice stated that the function of establishing appropriate standards is an important aspect of ensuring that adequate standards of punishment are observed. The interests of the administration of justice include consideration of the public interest in the courts imposing adequate punishment for offences. Doyle CJ emphasised that the establishment of appropriate standards tended to ensure consistency of sentencing. He drew upon the observations of McHugh J in Everett who referred to the great importance of uniformity of sentencing in maintaining confidence in the administration of justice both with respect to sentences that are higher than usual and in relation to inadequate sentences. His Honour noted that both give rise to a sense of injustice while inadequate sentences also affect public confidence in the ability of the court to play its part in deterring the commission of crime.

197 Malcolm CJ in Herbert v The Queen[259] regarded the approach of Doyle CJ in Cadd to be entirely consistent with the approach adopted by the Court of Appeal in Western Australia

198 An appellate court may choose to indicate that certain sentencing standards should apply to a particular category of an offence when a proper foundation exists for that opinion. General guidance as to sentencing standards will assist judges and the profession in determining the appropriate range of penalties for a particular category of seriousness of an offence. Such guidance is likely to promote consistency of sentence and inform the community, and in particular those likely to offend as to the likely range of sentences that will be imposed for such an offence. But as I have said, an indicative range for a particular category of an offence, whether established by CSP or by a decision on appeal to uplift CSP, is not something immutable and from which no departure can be made. There will be cases which fall outside the range.[260]

199 It is clear from the judgment in Wong[261] that it is common for appellate courts, including the High Court, to examine applicable principles in terms that venture well beyond the strict requirements of the dispute between the parties. As Gleeson CJ stated in Wong, in deciding the adequacy of a sentence, an appellate court may express a conclusion about the pattern of sentencing in other cases said to bear upon the subject sentence.[262] Similarly, the court may make explicit the sentencing principles that were engaged in resolving the issues or might provide ‘authoritative guidance as to the approach to be taken in sentencing a person for a particular offence’.[263] That it may do so does not depend upon that reasoning being determinative of the outcome of the appeal.

200 Although the opinion of Doyle CJ in the form of guidance in future cases was not determinative of the appeals it is significant that the plurality judgment in Wong expressly approved his approach. Kirby J in Wong also explicitly recognised there is a traditional appellate function which involves the identification and formulation of general principles which are ancillary to the disposal of the particular case before the court.[264] The orderly application and development of the law including the identification of applicable principles would, Kirby J recognised, take appellate courts beyond the strict requirements of the dispute between the parties. However, where guidelines enunciated by an appellate court deal with ’considerations wholly extraneous to the decision in a particular “matter”,’ Kirby J considered that they would then run the risk of passing beyond obiter dicta to the impermissible resolution of other, future or theoretical matters beyond those actually before the court and divorced from the administration of the law in a particular matter.[265]

201 It is common in both this and other intermediate courts of appeal for opinions as to sentencing standards or practice to be stated in the course of reasons in a sentencing appeal even where they do not resolve the controversy between the parties. Even if such opinions are obiter dicta , their expression in the course of reasoning is an important method by which to achieve uniformity of sentencing and the maintenance of appropriate sentencing standards.[266]

A warning that CSP will be uplifted in the future

202 The method of increasing CSP without it being determinative of the appeal is ordinarily by giving a warning that CSP will in the future increase so that incremental change thereafter occurs.[267] The High Court in its joint judgment in Poyner v R[268] citing the statements of Bray CJ in R v Barber[269] affirmed as ‘useful guidance’ the process of a warning and subsequent gradual increases in CSP but stated that such a course does not constitute a ‘binding principle’.

203 Where, applying the principles in House v The King, the appellate court finds one or more of the circumstances established that would permit it to criticise the adequacy of CSP, it may indicate that sentences for a particular category of seriousness of an offence should be increased in the future. The community is then put on notice that sentences for that offending will increase in the future.

204 It is to be expected that the prisoner’s legal representatives will seek to contradict the Crown assertion that CSP should be uplifted. This was done in the present appeal by the appellant’s counsel even though the Crown at the hearing conceded that the appellant’s sentence should be reduced in conformity with CSP.[270] If it becomes apparent for some reason that the prisoner will not seek to contradict the Crown’s assertion that CSP is inadequate, and if the Court considers that it requires further assistance, it may, with the consent of the prisoner, look to others, such as Victoria Legal Aid, to advance a contradictor’s submission. Recent issues considered by this Court show that VLA is very amenable to making submissions on issues of general application.

205 Although Poyner approved the course of first giving a ‘warning’ that CSP would be uplifted, the giving of a due warning is not necessarily a prerequisite for increasing the prevailing standard of sentence for that particular offence.[271] King CJ stated in Yardley v Betts that there was no requirement in principle for a court to give such a warning before increasing the range of penalties for a particular type of crime. His Honour stated that the absence of a warning was a factor to be taken into account in the sentencing disposition. Other intermediate courts have on occasion without warning imposed a sentence above CSP and have not regarded themselves constrained by CSP.[272]

206 Where a prisoner has pleaded not guilty and the setting in which CSP has occurred has altered,[273] so that adherence to the prevailing sentencing practice need no longer be maintained, the principles in House v The King will be satisfied. The circumstances may then permit a higher sentencing standard to be visited upon the prisoner.

207 Where the prisoner has pleaded guilty, this Court has taken the position that, as a matter of fairness, it will not visit upon the prisoner a higher sentencing regime than that which the Crown accepted was applicable at the time of sentence.[274] This approach rests at least in part upon the consideration that the prisoner is to be taken as having pleaded guilty in the expectation that they will be sentenced consistently with CSP.[275] Thus where the offender has pleaded guilty and the Director has not given advance notice on the plea of his intention to seek to uplift CSP, then on a prisoner’s appeal the Crown will not usually seek to justify the sentence imposed on the basis that a higher sentencing range than CSP should apply and on a Crown appeal it will not usually seek to increase the sentence on the basis that an uplifted CSP should be applied. Notwithstanding that House v The King error may have been established, the Court, as a matter of fairness and in the exercise of its residual discretion, chooses not to allow its view of CSP to affect the outcome of the appeal. The exercise of this residual discretion enables the court to keep ultimate control by protecting a convicted person against unfairness or injustice that would flow from an adverse appellate decision.[276] Considerations of fairness have generally led other intermediate appellate courts to adopt the same position.[277]

208 Where upon proper material House v The King error has been demonstrated, a warning that CSP will be uplifted in the future may be given notwithstanding that the court’s conclusion as to the inadequacy of CSP was not determinative of the outcome of the appeal. The concept of a warning implies that the sentence the subject of appeal will not be adversely affected by the court’s opinion that CSP will in the future be uplifted but that future sentences will be. A concession by the Director during an appeal that he does not contend that the prisoner should be affected by any opinion that CSP should be uplifted, reflects an expectation that the Court would, as a matter of fairness, decline to intervene in the exercise of its residual discretion. That does not mean that the issue of the adequacy of CSP is not a live issue which the Court may consider in the course of reaching its decision. Moreover, as I have shown, there is no binding rule that the Court may not visit the prisoner with the consequences of uplifting CSP because no warning has previously been given of its intention to do so. Accordingly, although I am substantially in agreement with much of what Ashley JA has written, I am unable to agree with that part of his reasons which suggest that this Court may not express any opinion upon CSP unless that opinion will affect the sentence the subject of appeal.[278]

Must the Director have challenged the adequacy of CSP on the plea in mitigation of sentence?

209 It has been suggested in passing on a number of occasions that if the Crown wishes to challenge the adequacy of CSP it is desirable that it do so before the sentencing judge by placing material before the sentencing judge which supports the foundation for the submission that current sentencing practice should be increased.[279] I have been a member of this Court on at least two occasions on which such a suggestion has been made. Upon further reflection I do not consider that in most circumstances that is necessarily the more desirable course. Save perhaps in the case where there has been a recent increase in the maximum penalty, there is much to be said in favour of the Director initially bringing the contention that CSP should be uplifted to this Court for determination.

210 In Hudson v The Queen[280] the joint reasons recognise that though the issue was not raised before the sentencing judge, there may be circumstances in which this Court will not be precluded from considering and commenting upon the adequacy of CSP where the Director’s submissions are supported by pertinent material which permits a particular conclusion to be reached. In a recent academic paper[281] the question was raised whether a single judge at first instance is well placed to undertake such a task. To make good its assertion as to the inadequacy of CSP, the Crown would ordinarily have to tender a substantial body of material directed to both the existing practice and what it contends are the altered circumstances that call for the practice to be uplifted. The sentencing judge will be handicapped in time and by lack of resources to undertake consideration of the task. If the sentencing judge were to declare that he or she was moving outside the present range of sentences, an appeal would be almost inevitable.

211 For common offences which are frequently the subject of sentence hearings in the County Court, there is a risk that the Crown might select the judge before whom it wishes to pursue the argument. It appears undesirable that the judge should be encouraged to depart from a practice which will likely already have been applied by the Court of Appeal and which their fellow judges have followed and may currently be applying. In what circumstances would the decision of a single judge constrain other judges from following or departing from the existing practice? A single judge’s decision should not be open to the reproach that it is adventitious.[282] The orderly administration of justice requires consistency of decision making.

212 Given the complexity of the question and the likely knowledge this court will have acquired in continually supervising the sentencing discretion for the offence, the preferable course is that the Director bring such questions to this Court. This Court can review its prior decisions from the perspective of ensuring consistency in the guidance it gives sentencing judges. On the plea the Director can give notice of his intention to pursue the question of the adequacy of the CSP on appeal but advance no argument in support of his contention on the plea. This is analogous to the course that would be followed if a party wished to submit that an authority binding on the sentencing judge was wrong and should not be followed. The Crown would refrain from seeking to persuade the sentencing judge to depart from CSP so that the sentence would be fixed having regard to CSP. That is not to say that it is not open to the Director to seek to persuade the sentencing judge to impose an uplifted sentencing practice. But if he seeks to do so it must be done on proper material which establishes circumstances of the type earlier discussed which permit appellate intervention.[283] It would then be a matter for the sentencing judge whether he or she was prepared to act upon such material.

The court may express an opinion though it not be a live issue or determinative of the appeal.

213 Of immediate relevance is the fact that, whether or not the Director has followed such a course at first instance, the Crown is not precluded on appeal from raising for the first time on a prisoner’s appeal or a Crown appeal that CSP is inadequate. Where the Director establishes error by bringing himself within circumstances permitting a reconsideration of CSP[284] the adequacy of CSP may be considered by this court notwithstanding that the prosecution did not raise such an issue before the sentencing judge. The giving of a warning is not a binding requirement. The Court’s determination not to visit the prisoner with the consequences of any decision that CSP is too low does not preclude consideration of the question. In the present case the Director failed to establish such error. It was for that reason that the right of this Court to express an opinion as to the adequacy of the CSP was not enlivened.

214 When an appellate court declines to intervene because of fairness to the prisoner, the Court’s opinion as to the inadequacies of CSP will not have been determinative of the dispute between the parties as to whether the appeal should be allowed and the sentence altered. This is not the occasion to examine whether in such circumstances its consideration of the adequacy of CSP formed part of its process of reasoning and was not obiter dicta. With great respect to those who have suggested otherwise, no principle, authority or practice dictates that the Court should decline to express such an opinion because it will not affect the sentence the subject of appeal. On the contrary, it would fetter the appellate functions to limit the occasions when the court may comment upon sentencing standards to those where it will directly bear upon the outcome of the appeal.

215 The circumstances in which this Court has questioned the adequacy of CSP sentencing practice has varied and it has from time to time, with different degrees of certitude expressed the need to reconsider CSP.[285] The cases which I have footnoted are more recent examples of circumstances in which this Court has sought to discharge one of its appellate functions. In some instances the expression of an opinion about the adequacy of CSP has been offered in circumstances which did not meet the requirements of House v The King that error must first be established with respect to the sentencing discretion and that there be a sufficient nexus between such an opinion and the sentence the subject of appeal. Subject to those important limitations, the expression of such an opinion is part of the Court’s overarching responsibility to ensure that sentencing standards are maintained and to provide guidance as to the correct approach to sentencing for a particular offence or category of that offence.

- - -

APPENDIX A

SELECTION OF 27 RCSI CASES FROM CROWN COMPILATION 2007 – 2009

APPENDIX B

RCSI SENTENCE APPEALS 2005 to 2010

(Ascending order of sentence)

APPENDIX C

RCSI KNIFE CASES^[289]

(Ascending order of sentence)

APPENDIX D

RCSI NON-WEAPON CASES^[293]

(Ascending order of sentence)

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^[1] [115]–[124].

^[2] Cf Hasan v The Queen [2010] VSCA 352, [42] (‘Hasan’): see [48]–[55] below.

^[3] Winch v The Queen [2010] VSCA 141; (2010) 27 VR 658, 663, [23]–[24] (‘Winch’); see also Wills v The Queen [2010] VSCA 235, [15]–[18].

^[4] Sentencing Act 1991 (Vic) s 5(2)(b).

^[5] DPP v C P D [2009] VSCA 114; (2009) 22 VR 533, 549 [69]; DPP v D D J [2009] VSCA 115; (2009) 22 VR 444, 460 [65].

^[6] Winch [2010] VSCA 141; (2010) 27 VR 658, [24]; White v The Queen [2010] VSCA 261, [42]; Hasan [2010] VSCA 352, [48]–[51].

^[7] Winch [2010] VSCA 141; (2010) 27 VR 658.

^[8] R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

^[9] Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2004–5 to 2008–9: Causing serious injury recklessly, Sentencing Snapshot No 94 (March 2010).

^[10] [2009] VSCA 220; (2009) 24 VR 457 (‘Terrick’).

^[11] [2009] VCC 0862.

^[12] [2009] VSCA 220; (2009) 24 VR 457, 477 [84].

^[13] [2010] VSCA 119, [32] (‘Ashe’).

^[14] DPP v Castro [2006] VSCA 197, [13] (Coldrey AJA, with whom Callaway AP and Redlich JA agreed); DPP v Fevaleaki [2006] VSCA 212; (2006) 165 A Crim R 524, [12] (Redlich JA); R v Pota [2007] VSCA 198, [19].

^[15] [2010] VSCA 141; (2010) 27 VR 658, 665 [35].

^[16] [2010] VSCA 119, [27].

^[17] [2010] VSCA 141; (2010) 27 VR 658, 665 [36].

^[18] See, for example, R v Johnston [2001] VSCA 232, [6]–[8]; R v Stuttard [2006] VSCA 112, [11].

^[19] See, for example, DPP v Coley [2007] VSCA 91, [48] (Kellam AJA).

^[20] [2008] VSC 468, [12].

^[21] [2009] VSCA 220; (2009) 24 VR 457.

^[22] See R v Wyley [2009] VSCA 17, [10] (Kellam JA), [21] (Maxwell P).