SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0250
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| HAYDEN THOMAS CURRIE | Respondent |
S EAPCR 2021 0005
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| JARED DANIELS (a pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identifying the victim of sexual offending, and to protect the administration of justice, this judgment has been anonymised by the adoption of a pseudonym and initials in place of the names of this respondent, and the complainant in this proceeding, respectively.
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| JUDGES: | BEACH, McLEISH and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 20 and 21 September 2021 |
| DATE OF JUDGMENT: | 30 September 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 272 |
| JUDGMENTS APPEALED FROM: | [2020] VCC 1795 (Judge McInerney) [2020] VCC 2052 (Judge Brookes) |
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STATUTORY CONSTRUCTION – Crown sentence appeals – Director authorised associate to affix Director’s electronic signature to notices of appeal on her behalf – Whether notices invalid, depriving Court of jurisdiction – Whether notices of appeal ‘signed by’ Director ‘personally’ within meaning of Criminal Procedure Act 2009 s 288(2) – Common ground that affixing electronic signature constitutes signing – Whether necessary for Director to affix own electronic signature to ‘personally’ sign – Language of provision capable of bearing two meanings – Whether properly construed as requiring that Director affix signature personally or that notice bear her personal signature – Context agnostic – Construing as requiring that notice bear Director’s personal signature achieves statutory purpose of ensuring Director personally considers prescribed matters before commencing appeal – Requirement prevents delegation of signing or authorising signing by proxy – Alternative construction achieves no additional statutory purpose but productive of uncertainty and administrative inconvenience – Notices valid – Whether Director failed to adequately consider prescribed matters before commencing appeal – Director’s decision under Criminal Procedure Act 2009 s 287 to commence appeal not reviewable by Court – Maxwell v The Queen (1996) 184 CLR 501, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, applied – Goodman v J Eban Ltd [1954] 1 QB 550, R v Justice of Kent (1873) LR 8 QB 305, considered – Criminal Procedure Act 2009 ss 287, 288 – Public Prosecutions Act 1994 s 30 – Electronic Transactions (Victoria) Act 2000 s 9.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – One charge of rape – Opportunistic offending against intoxicated colleague, after initially providing assistance –Complainant invited some intimate contact despite inability to consent – Prior good character – Excellent prospects of rehabilitation – Guilty plea and profound remorse – Whether sentence of 3 years’ imprisonment and non-parole period of 14 months manifestly inadequate – Head sentence merciful but not outside available range – Non-parole period manifestly inadequate – Residual discretion to decline to interfere exercised – Unusual case where hardship and damage to third parties caused by extending non-parole period shortly to expire by months.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Two charges of culpable driving causing death, one charge of negligently causing serious injury, two charges of conduct endangering life and associated summary offences – Youthful respondent drove vehicle at almost 100 kph greater than speed limit in residential area – Driver of another vehicle and passenger in respondent’s vehicle killed in collision at intersection – Second passenger in respondent’s vehicle rendered paraplegic – Whether open to find driver of other vehicle failed to give way at intersection – Whether judge erred in reducing sentence because of failure to give way – Modest reduction – Failure to give way additional causal factor – No error shown – Spanjol v The Queen (2016) 55 VR 350, applied – Whether individual sentences, cumulation, total effective sentence of 11 years and 6 months or non-parole period of 6 years manifestly inadequate – Individual and total effective sentences in range given mitigating factors – Director of Public Prosecutions v Reid [2020] VSCA 247, Victorsen v The Queen [2020] VSCA 248, considered – Non-parole period manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant on the preliminary issues | Ms R Orr QC with Mr C Tran | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Appellant on the appeals | Mr B Kissane QC with Mr G Buchhorn | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Respondent, Mr Currie | Mr D C Hallowes SC with Mr J Anderson | Robinson Gill Lawyers |
| For the Respondent, Mr Daniels | Ms C A Boston and Mr J R Murphy | Furstenburg Law |
TABLE OF CONTENTS
Introduction................................................................................................................
1
First preliminary issue — the validity of the notice of appeal under s 288(2).
2
Construction of s 288(2)...............................................................................................
3
Parties’ submissions.......................................................................................
3
Analysis...........................................................................................................
7
Director’s alternative argument under ETA s 9...........................................................
14
Whether non-compliance with s 288(2) spells invalidity.............................................
16
Conclusion – s 288(2)...................................................................................................
17
Second preliminary issue — the validity of the appeal under s 287..................
18
Extension of time applications......................................................................................
20
The Director’s appeal against Daniels’s sentence.................................................
20
Circumstances of offending...........................................................................................
20
Sentencing remarks.......................................................................................................
23
Ground of appeal...........................................................................................................
26
Parties’ submissions......................................................................................................
26
Director’s submissions...................................................................................
26
Respondent’s submissions............................................................................
28
Consideration – manifest inadequacy ..........................................................................
31
Consideration – residual discretion..............................................................................
37
Conclusion.....................................................................................................................
39
The Director’s appeal against Currie’s sentence...................................................
39
Circumstances of offending...........................................................................................
42
The summary offences...................................................................................
42
Charge 5 – conduct endangering life...........................................................
43
The collision – charges 1 to 4........................................................................
43
Currie’s background......................................................................................................
46
Ground 2 – did the judge err in reducing Currie’s sentence because Mr Juriansz failed to give way?..................................................................................................................
46
Judge’s reasons...............................................................................................
47
Parties’ submissions.......................................................................................
50
Consideration..................................................................................................
52
Grounds 1 and 3 – manifest inadequacy and the non-parole period being less than 60 per cent of the head sentence.........................................................................................
53
Judge’s reasons...............................................................................................
54
Parties’ submissions.......................................................................................
57
This Court’s decisions of Reid and Victorsen..............................................
62
Consideration..................................................................................................
64
Conclusion.....................................................................................................................
69
BEACH JA
McLEISH JA
WALKER JA:
Introduction
There are before the Court two notices of appeal against sentence by the Director of Public Prosecutions. On 26 August 2021, just over a week before the date listed for the hearing of the appeals, the Director disclosed to the respondents’ lawyers that the signature which appears on the notice in each case ‘was inserted by the Director authorising her associate to affix her electronic signature’ to the document. As a result, the respondents contend that the appeals have not been validly commenced.
Both respondents contend that the fact that the Director’s associate, rather than the Director herself, affixed the Director’s electronic signature to the relevant notice of appeal means that the notice failed to comply with s 288(2) of the Criminal Procedure Act 2009 (‘the CPA’), which requires that a notice of appeal be ‘signed by the [Director] personally’. They submit that the consequence of that failure is that the notices of appeal are invalid and this Court has no jurisdiction to hear either appeal.
The Director contests both submissions. She submits, in the alternative, that even if the notices of appeal failed to comply with the terms of s 288(2) of the CPA, they are to be treated as having satisfied the requirements of that provision by virtue of s 9(1) of the Electronic Transactions (Victoria) Act 2000 (‘the ETA’).
In addition, the respondent Daniels advanced an argument that the Director had also failed to comply with s 287 of the CPA, which provides that the Director may appeal against a sentence if he or she considers that there is an error in the sentence imposed and that a different sentence should be imposed, and is satisfied that an appeal should be brought in the public interest. It was contended that, accepting that the Director had genuinely formed the states of mind described in s 287, she had nonetheless done so upon a legally inadequate basis, such that an essential precondition to the commencement of an appeal had not been met.
At the hearing of the appeals, counsel for Daniels sought to cross-examine the Director upon certain material she had provided as to the process by which she had approached the question whether or not to commence the appeal in his case. Ultimately, the Director did not place that material into evidence and argument concentrated on the question whether the Court should entertain any inquiry into the decision-making processes of the Director when considering whether to bring an appeal against sentence. As explained later in these reasons, we formed the view that the proposed argument was not justiciable, and leave to cross-examine on the Director’s decision-making processes was therefore refused.[2]
[2]Leave to cross-examine was granted on a single issue relevant to the extension of time applications, which, as discussed below, need not be determined.
Finally, the Director filed applications in respect of both respondents seeking an extension of time in which to commence an appeal, in the event that the Court should find that the notices of appeal were invalid. In each case, the Director relied on fresh notices of appeal in terms identical to those previously filed, but which had been signed in the manner which the respondents contended was required by s 288(2).
Before we address the individual appeals, it is necessary to explain why, in our view, the appeals were validly commenced. It will therefore not be necessary to rule on the applications for extensions of time.
First preliminary issue — the validity of the notice of appeal under s 288(2)
After the respondents indicated that they contested the jurisdiction of the Court to hear the purported appeals, provision was made for evidence and written submissions to be filed. The Court then heard argument as to the question of jurisdiction in the two matters together.
In both proceedings, the Director affirmed an affidavit which relevantly described the usual process by which she determined to institute an appeal. She then stated:
I instructed my Associate to affix my electronic signature to the notice of appeal.
…
I confirm that the notice of appeal … bears my electronic signature.
Construction of s 288(2)
Parties’ submissions
The respondents[3] accepted that an electronic signature was capable of complying with s 288(2) of the CPA. However, it was said that the requirement that the notice of appeal be ‘signed … personally’ meant that, if an electronic signature were to be used, it needed to be affixed by the Director herself, and not by a person acting with her authority or on her instruction.
[3]The respondents each filed written submissions and advanced oral arguments. Since they were directed to the same ends, and each respondent adopted the arguments of the other, it is generally convenient not to distinguish the arguments.
It was submitted that this followed from the clear language of the requirement that the document be ‘signed … personally’. The respondents submitted that to personally ‘sign’ a document is to write one’s name on it, not to write another person’s name on it. It was submitted that it would therefore not be permissible for a third person to write the signature of the Director. Equally, s 288(2) should not be read as permitting another person to affix the electronic signature of the Director. In neither case would the document have been signed by the Director ‘personally’.
Turning to matters of context, the respondents pointed out that the importance of the requirement that a notice of appeal be personally signed is underlined by the fact that it appears in the CPA, whereas other requirements of a notice of appeal are left to be provided by Rules of Court. The institution of a Director’s sentence appeal is one of a limited number of steps in criminal procedure where the CPA expressly provides that a document be signed personally. It was submitted that those provisions generally refer to important points in the criminal process which enliven the jurisdiction of a court, including the filing of a charge sheet by an informant (s 6(3)), the Director filing an appeal pursuant to various powers (ss 261, 288, 290B, 292) and the Director making an application for an order under s 327H.
It was submitted that the term ‘personally’ is used throughout the CPA in a manner that indicates that it is to be given its natural meaning — a meaning which excludes someone else doing something on another person’s behalf.[4] It was submitted that, where the term ‘personally’ is qualified in the CPA, this is made explicit.[5] To read the word ‘personally’ in s 288 as permitting the Director’s associate to affix her signature on her behalf would involve the term ‘personally’ taking on different meanings in different parts of the statute.
[4]Reliance was placed on ss 43A, 51, 190, 328, 357 and 410.
[5]Reference was made to s 391, qualifying the meaning of ‘personal service’, referred to, eg, in s 288(3).
It was also submitted that s 288 stands in contrast to other provisions of the CPA that require that a document be signed by someone but are silent as to whether signing ‘personally’ is required,[6] as well as others that expressly identify when a person may take a step or an action on behalf of another.[7]
[6]Reference was made to ss 159, 177, 216 and 255(4).
[7]Reference was made to ss 12(2), 29(3), 63(1) and 104(1).
In relation to legislative purpose, the respondents drew on the legislative history of s 288 and its predecessor, s 567A of the Crimes Act 1958. Since Crown appeals were first introduced in 1970, the respondents submitted that there had always been a requirement that the person vested with the power to commence a Crown appeal against sentence personally sign the notice of appeal.
The respondents submitted that s 288(2), by requiring the Director to sign a notice personally, furthers the purpose of ensuring that Crown appeals are only brought when the conditions in s 287 are met and that the Director properly engages in the decision whether to commence an appeal.
It was also submitted that uncertainty would follow if s 288(2) were construed as permitting another person to affix the signature of the Director. The validity of the notice would then not be apparent on its face, but would depend on determining whether whoever had affixed the signature did so with the requisite authorisation of the Director. It was said to be improbable that Parliament had intended such a result.
Counsel for the respondent Currie relied in particular on the exceptional nature of a Director’s appeal against sentence, her role as statutory ‘gatekeeper’, and the renewed jeopardy to punishment to which such an appeal exposes a respondent. It was submitted that the requirement that the Director sign a notice of appeal personally helped to ensure that the Director treated commencing an appeal as discharging a solemn responsibility, bearing in mind the character of such an appeal and its grave significance. It also ensured that the notice of appeal that was filed was the very document signed by the Director in person. It also served a public-facing purpose, by reassuring a respondent to an appeal that the Director had given the decision to bring the appeal proper personal attention.
The Solicitor-General, appearing on behalf of the Director in relation to the preliminary issues, submitted that s 288(2), properly construed, requires that the notice of appeal bear the Director’s signature, placed on it by the Director or her representative pursuant to a direction from the Director. That is, it permits the Director, having made the decision to commence a sentence appeal, to authorise her associate to take the final ‘ministerial or mechanical step’ of affixing the Director’s personal electronic signature to the notice.
It was further submitted by the Solicitor-General that most of the other uses of ‘personally’ in the CPA to which the respondents referred involved contexts distinguishable from the signing of documents. Other provisions requiring the personal signing of documents were said simply to raise the same issue of construction as s 288(2). In the case of provisions that provide for the Director to sign, without specifying that it is to be done personally, it was submitted that omission of the word ‘personally’ left it open to the Director to delegate the function in question under s 30 of the Public Prosecutions Act 1994 (‘the PPA’), which provides that the Director may, by instrument, delegate to the Chief Crown Prosecutor or to a Crown Prosecutor any function or power of the Director under the PPA, subject to identified exceptions. Overall, the Director submitted that matters of context were neutral as to the construction of s 288(2).
The Solicitor-General accepted that, as the respondents submitted, there is a ‘degree of solemnity’ involved in the Director making the significant decision to commence a sentence appeal. It was likewise accepted that s 288(2) both reflects the importance of that decision and ensures that it is apparent to an affected party that the Director has personally considered whether that decision ought to be made.
However, it was contended that these considerations were consistent with the construction of s 288(2) urged by the Director. On that construction, the important purpose of the word ‘personally’ in s 288(2) was to deny the possibility that the Director might delegate her function of signing a notice of appeal by instrument made under s 30 of the PPA. It also meant that another person could not sign as a proxy for the Director, which could happen without the proper degree of involvement of the Director. The effect was that the signature requirement was akin to a requirement that the Director certify that she had personally discharged the filtering role required by the nature of Crown appeals and the terms of s 287.
All parties referred to case law, some of which we consider below. It was accepted that no judicial decision bore directly upon the question now before the Court.
Analysis
As noted above,[8] the parties accepted that a notice of appeal would meet the requirement that it be ‘signed’ if it bore the signature of the Director, whether in handwriting or by the signature being affixed by some physical or electronic means. In our view, that is the correct understanding of the provision.
[8]See [10]–[11] above.
The Oxford English Dictionary defines ‘sign’, among other things, as meaning:
To confirm the authenticity or validity of (a document, contract, cheque, etc) by writing one’s signature; to render official by affixing one’s signature.[9]
[9]Oxford English Dictionary (online at 23 September 2021) ‘sign’ (v3, def 1).
In Goodman v J Eban Ltd (‘Goodman’),[10] Romer LJ cited the following from the third edition of Stroud’s Judicial Dictionary under the title ‘Signed; signature’:
[S]peaking generally a signature is the writing, or otherwise affixing, a person’s name, or a mark to represent his name, by himself or by his authority with the intention of authenticating a document as being that of, or as binding on, the person whose name or mark is so written or affixed.[11]
[10][1954] 1 QB 550.
[11]Ibid 563.
Although these definitions do not specifically refer to electronic signatures, they use the general language of affixation. There is no reason why s 288(2) would be construed as circumscribing the mode by which a notice of appeal is to be ‘signed’ according to the literal terms of these definitions, rather than permitting a signature to be affixed by any means. To the contrary, the requirement of signature is to be construed having regard to the fact that means of signing a document have varied over time, and now include the affixing of signatures by mechanical or electronic means.[12] In every case, the deployment of the signature — that is, the writing or otherwise affixing of a person’s name or mark representing it — amounts to an acknowledgment by the signatory that he or she adopts the document as their own.[13] That is capable of being done by electronic signature just as well as by more traditional means.
[12]Deputy Commissioner of Taxation v Brilliant Homes Management Pty Ltd [2011] FCA 1539 [12] (Rares J): ‘It has long been the law that it is not necessary for there to be a handwritten signature on official documents and notices. This, in fact, dates from a time at which most people in the community could not read or write and affixed their signification to formal documents by being marksmen or using seals and wax’, citing Coshott v Coshott (2010) 184 FCR 495.
[13]Schneider v Norris (1814) 2 M & S 286, 289; 105 ER 388, 389 (Lord Ellenborough CJ). There it was held that the printing of a party’s name on a bill of parcels constituted a signature.
Accepting that understanding of the word ‘signed’, the issue of construction before us concerns the meaning of the word ‘personally’ in s 288(2). The respondents contended that this imposed an additional requirement going to the means by which the notice of appeal comes to be signed, namely that the signature be effected by the personal act of the Director, rather than by her authorising another person to affix her signature. In that regard, it was submitted that the word ‘personally’ has the limiting operation contemplated by Blackburn J in R v Justices of Kent, where he said:
No doubt at common law, where a person authorises another to sign, for in the signature of the person so signing is the signature of the person authorising it; nevertheless, there may be a case in which a statute may require a personal signature. [14]
[14](1873) LR 8 QB 305, 307 (emphasis added) (‘Justices of Kent’).
The respondents submitted that the distinction between a requirement of mere signature and a requirement of personal signature could be seen from passages in the judgments in Goodman in which the significance of personal action by the signatory was emphasised. For example, Evershed MR referred to evidence that the impressing of a signature by means of a rubber stamp had ‘been done by the plaintiff personally’ using a stamp ‘available only for his own use’.[15] Later, his Lordship cited authority to the effect that there was no distinction between ‘using a pen or pencil’ to sign or using a stamp or paintbrush, provided the ‘impression is put upon the paper by the proper hand of the party signing’. In each case, the signing of the document is ‘the personal act of the party’.[16]
[15]Goodman [1954] 1 QB 550, 554.
[16]Ibid 555–6, quoting Bennett v Brumfitt (1867) LR 3 CP 28, 30 (Bovill CJ).
In our view, these authorities go no further than illustrating that the word ‘personally’ is capable of having the meaning for which the respondent contended. As counsel for the respondents accepted, they do not of themselves govern the issue now before us.
Consistently with the structure of the arguments advanced, we will frame our analysis by reference to the well-known principles of statutory construction adumbrated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT):
[T]he task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[17]
[17](2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) (citations omitted).
The respondents drew attention to the fact that the word ‘personally’ in s 288(2) is an adverb qualifying the word ‘signed’. They submitted that the clear meaning of the text is that it is the action of signing which must be done personally, not that the signature itself be personal. It may be accepted that this is the natural meaning of the text. However, it is not the only possible meaning. The expression ‘signed by the Director personally’ is also capable of having the meaning ‘bearing the personal signature of the Director’.
The latter interpretation requires, not that the action of signing be personally done by the Director, but that the signature be that of the Director rather than that of a person acting on behalf of the Director. On that interpretation, the requirement of a personal signature operates to prevent the Director from delegating the statutory task of signing to another person. The notice must bear her signature.
This is the import of the analysis in Justices of Kent. Blackburn J explained in the passage already quoted that the statutory requirement of a personal signature (in contrast to the common law position) means that the signature of an authorised person such as an agent or delegate will not suffice. Similarly, Quain J and Archibald J each explained that a statutory personal signature requirement displaces the common law maxim qui facit per alium facit per se (doing a thing through another person is doing it oneself).[18] The same point was made by Gibbs CJ in O’Reilly v State Bank of Victoria Commissioners:
There can be no doubt that as a general proposition at common law a person sufficiently ‘signs’ a document if it is signed in his name and with his authority by somebody else, but if by statute a document has to be personally signed the duty of signing cannot be delegated to a third person. Exactly the same principles apply when the power is given by statute to a designated person to issue a notice. The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated. [19]
[18]Justices of Kent (1873) LR 8 QB 305, 307. See also Hyde v Johnson (1836) 132 ER 299, 300 (Tindal CJ).
[19](1983) 153 CLR 1, 11 (citations omitted).
In other words, on this construction, the word ‘personally’ operates to prevent delegation of the Director’s function of commencing an appeal. As the Solicitor-General pointed out, s 30 of the PPA would, if not for that word in s 288(2), permit the Director to delegate the signing of a notice of appeal to another person.[20]
[20]The fact that this result could have been, but was not, achieved by providing in s 30 of the PPA that the function of signing a notice of appeal could not be delegated is not to the point.
Of course, the same effect is achieved on the respondents’ construction because it would require the Director to perform the act of signing — that is, writing or affixing her signature. To that extent, the purposes underlying the competing constructions overlap. The question of construction therefore requires us to consider, not only whether considerations of context support one construction over another, but also whether the respondents’ construction advances any purpose beyond that just identified.
In our opinion, the matters of context upon which the parties relied shed little, if any, light on the question of construction. The CPA uses the words ‘personal’ and ‘personally’ in a wide range of circumstances. While several provisions require, like s 288(2), that documents initiating a criminal process be ‘signed by the Director personally’,[21] those provisions merely raise the issue now before the Court in another context, without assisting in its resolution. The same applies to the requirement in s 6(3)(b) that a charge sheet be ‘signed by the informant personally’.
[21]CPA ss 261(1), 290B(2), 292(2), 327H(5).
Other provisions use the word ‘personally’ in completely different contexts, including preventing an accused personally from viewing child abuse material (s 43A(2)), prohibiting an accused from giving alibi evidence personally in the absence of an alibi notice (ss 51(2)(a) and 190(1)(a)), permitting appearance at a criminal proceeding by an accused personally (s 328(a)), prohibiting an accused personally from conducting certain cross-examination (s 357(1)(a)) and providing for unreasonable costs caused personally by a legal practitioner: s 410(1).
While the word ‘personally’ is plainly used in these examples to refer to the person in question acting on their own behalf, rather than through an agent, that does not help resolve the issue whether ‘personally’ in s 288(2) qualifies the signature itself or the act of signing. On either view, ‘personally’ is a reference to the Director rather than an agent. The question is which view is correct.
As mentioned, the respondents also pointed to provisions which are silent as to whether personal signature is required: ss 159 (signing of an indictment by the Director or a Crown Prosecutor in the name of the Director), 177 (signing of a notice of discontinuance by the Director), 216 (a written notice of guilty plea signed by the accused) and s 255(4) (a statement signed by the appellant indicating awareness of the risk of a sterner sentence on appeal). We have not found these provisions helpful either. Apart from involving disparate contexts, they present different language and raise different questions of construction, including as to the permissibility of delegation.[22]
[22]Unlike the present case, the power to delegate in relation to some of those matters is dealt with in s 30 of the PPA.
Similarly, the fact that further provisions such as ss 12(2), 29(3), 63(1) and 104(1) make specific reference to persons acting on behalf of another says nothing about the present issue. It was accepted on all sides that the decision to sign a notice of appeal must be that of the Director, not a person acting on her behalf. The inquiry whether the word ‘personally’ means that only the Director may do the act of signing once that decision has been made is not assisted by the fact that the words ‘on behalf of’ are absent from s 288(2).
In the end, considerations of context are not of assistance in the present case.
Returning to the question of statutory purpose, it is apparent that a significant purpose of s 288(2) is to operate as an assurance or certification that the Director, rather than a delegate of the Director, has personally considered the matters in s 287 and decided under that provision that an appeal should be commenced. That purpose is achieved on both competing constructions. We are unable to see that the respondents’ preferred construction advances any additional purpose. Both constructions ensure that, consistent with the exceptional nature of Crown appeals and the gravity of exposing an offender to renewed jeopardy of punishment, the Director personally gives the question of appeal the most serious attention. We do not accept that requiring the Director to affix the signature in person could be seen as advancing that purpose more effectively. As the Solicitor-General submitted, once the substantive decision has been made, the act of signature of the notice of appeal is ministerial or administrative in nature.
Nor would the respondents’ construction reduce the risk of uncertainty or ambiguity as to the validity of a notice of appeal. To the contrary, a requirement that the Director personally attend to the affixing of her signature would mean that, if a person wanted to be sure of the validity of a notice of appeal bearing the Director’s signature, it would be necessary to look behind the notice to determine who had performed the action of writing or effecting that signature. For that reason, the respondents’ construction would actually operate to undermine the utility of a notice of appeal as a certification that the Director had formed the state of mind described in s 287. While the signature would still purport to so certify, the efficacy of the notice of appeal would be in doubt pending investigation into a matter not discernible from the face of the document, namely the identity of the person who did the act producing that signature. No party, including the Court, could know whether a notice of appeal bearing the Director’s signature complied with s 288(2) without inquiring into the process by which the notice was signed. The presence of the signature would affirm that the Director authorised the notice, but would say nothing about the latter question.
The administrative process of affixing a signature is a matter of process, whereas the decision to commence an appeal is one of substance. It is not surprising that Parliament would require the Director to attend to the latter matter personally. For the reasons given above, however, it would be very surprising for the attendant formalities to be required to be undertaken by the Director rather than by a person acting on the instructions of the Director. Not only would this serve no apparent purpose and, as we have said, undermine the utility of the notice of appeal as a certificate of the Director’s satisfaction under s 287, but it would potentially produce administrative inconvenience. For example, the Director might be outside the jurisdiction or otherwise unable to attend to the necessary administrative processes. That could have serious ramifications, especially in the context of the limited period within which an appeal must be commenced.
For the above reasons, the better view is that s 288(2) requires that a notice of appeal bears the personal signature of the Director, but that it is not necessary that the Director be the person physically responsible for writing or affixing that signature. It is enough that she authorises her associate to do so in the case in question.[23]
[23]Argument proceeded on the basis that, as the evidence showed had happened in these matters, the Director authorises or instructs the affixing of her signature to a particular notice of appeal, rather than providing any standing authority to affix her signature to notices of appeal in general. The fact that, on the construction we adopt, the function of signing a notice of appeal is incapable of being delegated would raise issues about the use of a standing authority, but it is unnecessary to address that issue here. It is also unnecessary for us to consider the hypothetical case where the affixing of the signature is not authorised by the Director at all.
On that basis, the notices of appeal in each case complied with s 288(2).
Director’s alternative argument under ETA s 9
The Director submitted that, even if the Court accepted the respondents’ construction of s 288(2), the effect of s 9(1) of the ETA was that the provision was satisfied in any event. Section 9(1) provided, at the relevant time:
(1)If, by or under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if —
(a)a method is used to identify the person and to indicate the person’s intention in respect of the information communicated; and
(b) the method used was either—
(i)as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
(ii)proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
(c)the person to whom the signature is required to be given consents to that requirement being met by way of the use of the method mentioned in paragraph (a), having regard to the fact that it is not a sufficient reason to refuse to give consent merely because a person proposes to use a method mentioned in that paragraph.
Section 3(1) of the ETA relevantly defines ‘electronic communication’ to mean:
(a)a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both;
The Director submitted that the requirements of s 9(1) were met in this case, with the consequence that the ‘requirement’ of s 288(2) of the CPA that there be a signature of the Director was ‘taken to have been met’ in relation to the electronic communication of the notice of appeal. The Solicitor-General submitted that the two provisions worked consistently by focusing attention on whether the notice of appeal could be relied on as evidencing the Director’s personal attention to the requirements of s 287. All that s 9 did, it was said, was to approve an alternative method of complying with s 288 — the Director authorising the affixing of her electronic signature. That method, it was said, adequately identified the Director’s intentions in respect of the notice, and was as reliable as appropriate for effecting the purpose of s 288(2).
The respondents contended that s 9(1) could at most provide an alternative means of communicating a notice of appeal, including the fact of its signature. It could not alter the content of the communication or treat a signature as having been ‘personally … signed’ if it was not. In the alternative, the respondents took issue with the submission that the terms of s 9(1) were met on the facts of the present case.
In light of our conclusion as to the proper construction of s 288(2), it is not necessary to resolve these questions as to the operation of s 9(1), or to enter into the factual issues that those questions would have presented. However, we would not, in any event, have accepted the submission made by the Solicitor-General as to the scope of operation of s 9(1), even if we had been satisfied that its terms were satisfied.
That is because the effect of s 9(1) is confined to taking as having been met, a requirement that there be ‘the signature of a person’. If we had concluded, contrary to the reasons we have given in respect of s 288(2), that that provision required, not only that the notice of appeal bear the Director’s signature, but also that the Director personally undertake the act of signing, only the former requirement would have fallen within the opening words of s 9(1); the latter requirement would not have been a requirement that there be the signature of a person, and so it could not have been taken to be met by operation of s 9(1).
That operation of s 9(1) is borne out by the anomaly that would result, as submitted by junior counsel for Daniels in reply, if s 288(2) did not permit the Director to instruct a person to affix a signature stamp, yet s 9(1) permitted her to instruct the same person to affix an electronic signature. There is no suggestion in s 9, or the ETA more generally, that s 9 is intended to go beyond permitting to be done electronically that which must otherwise be done on paper. The provision instead operates upon the basis of ‘functional equivalence’ between different methods of achieving the same thing.[24]
[24]The Explanatory Memorandum for the Electronic Transactions (Victoria) Bill 2000 states that cl 9 of that Bill was based on art 7 of the UNCITRAL Model Law on Electronic Commerce 1996. One of the purposes of the Model Law was to achieve neutrality, and ‘functional equivalence’ between paper-based and electronic communications: see Guide to Enactment of the UNCITRAL Model Law on Electronic Commerce 1996 [6], [16]. The Guide also explains that, under the Model Law, electronic signing is not intended, of itself, to confer legal validity on the thing signed. The question of legal validity ‘is to be settled under the law applicable outside the Model Law’: at [61].
We would therefore have rejected this part of the Solicitor-General’s argument, had it been necessary to reach that point.
Whether non-compliance with s 288(2) spells invalidity
The respondents submitted that the notice of appeal was invalid as a result of non-compliance with s 288(2). The position was said to be analogous to the invalidity of indictments which have not complied with signature requirements.[25]
[25]R v Parker [1977] VR 22.
An indictment is invalid where it is signed by a person not authorised by the relevant statute at the time when it is filed.[26] Proceedings on an invalid indictment are irregular and cannot be regularised; they are a nullity.[27] It was submitted that, by analogy, the filing of a valid notice of appeal was essential to invest this Court with jurisdiction to determine the grounds raised in the notice. Because the notice of appeal was invalid, the Court did not have power to hear the appeal.
[26]Wang v The Queen [2020] VSCA 326R, [33]–[35] (Priest, Kyrou and T Forrest JJA).
[27]DPP v Phillips (2018) 361 ALR 635, 639 [13]–[15] (Ginnane J).
This position was said to be confirmed by the use of the word ‘must’ in s 288(2). In addition, it was submitted that Parliament can be taken to have acted on the basis that the common law traditionally requires punctilious compliance with formal requirements in criminal procedures.[28] It was further submitted that the signature requirement bore on the ‘power and responsibility of decision-making’,[29] and that its purpose would be undermined if a failure to sign the notice of appeal personally did not affect the validity of the notice.
[28]R v Janceski (2005) 64 NSWLR 10, 27–8 [90] (Spigelman CJ).
[29]Bond v The Queen (2000) 201 CLR 213, 217 [2] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
The Director submitted that non-compliance with the requirement that a notice of appeal be signed by the Director personally did not invalidate the notice.
Again it is not necessary, nor is it desirable, that we enter into this question. It depends on rejecting the construction of s 288(2) we have endorsed and it would be artificial for us to address the hypothetical consequences of the opposite construction. In particular, in the analysis according to Project Blue Sky Inc v Australian Broadcasting Authority,[30] which this aspect of the case would require, it would be necessary for us to make assumptions about the purpose underlying the competing construction.
[30](1998) 194 CLR 355, 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ).
We therefore express no view on this issue.
Conclusion — s 288(2)
For the above reasons, the notices of appeal complied with the requirements of s 288(2) of the CPA. It follows that the appeal in respect of Currie was validly commenced. We then turn to the argument on behalf of Daniels regarding compliance with s 287 of the CPA.
Second preliminary issue — the validity of the appeal under s 287
The respondent Daniels sought to establish that the Director did not properly form the states of mind referred to in s 287 of the CPA. That is, despite her subjective belief to the contrary, she could not have considered that there was an error in the sentence imposed on Daniels and that a different sentence should be imposed, and could not have been satisfied that an appeal should be brought in the public interest. Daniels disavowed any allegation of dishonesty or bad faith on the part of the Director, but contended that her consideration of the matter was incapable as a matter of law of meeting the requirements of s 287. Reliance was placed for this purpose on material going to the process by which the Director had considered the matter, including the nature of that material and the length of time involved.[31]
[31]Although the Director ultimately did not rely on some of the material in question, which she had previously foreshadowed adducing in evidence in respect of the argument concerning s 288(2), it is convenient to assume for present purposes that it was none the less material upon which the Court could have relied in relation to this argument.
Daniels accepted that it was not open to challenge the outcome or correctness of a decision of the Director under s 287, including by seeking to review the decision that the bringing of an appeal was in the public interest.[32] However, it was contended that the fact that the necessary states of mind had been formed was a precondition to the exercise of the Court’s jurisdiction and that it was open to a respondent to challenge that jurisdiction by establishing that s 287 had not been complied with. In the present case, it was said that non-compliance emerged from what was said to have been the inadequacy of the Director’s examination of the case.
[32]DPP v Energy Brix Australia Corp Ltd (2006) 14 VR 345, 352 [27] (Vincent JA), 356 [47] (Neave JA).
It may be accepted that s 287 operates as a condition upon the exercise of the Director’s right to commence an appeal.[33] The Director is not entitled to appeal if the requirements of s 287 are not met. We are also prepared to assume, without deciding, that the Court would lack jurisdiction to decide an appeal brought by the Director without her having considered or been satisfied as to the matters in s 287. However, it does not follow that the question whether s 287 has been complied with is justiciable. In our view, for the reasons that follow, it is not.
[33]DPP v Karazisis (2010) 31 VR 634, 649 [57] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’); DPP v Werry (2012) 37 VR 524, 533–4 [49] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
In Maxwell v The Queen,[34] Gaudron and Gummow JJ made the following well-known observations about judicial reviewability of exercises of prosecutorial discretion:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[35]
[34](1996) 184 CLR 501.
[35]Ibid 534 (citations omitted); see also Likiardopoulos v The Queen (2012) 247 CLR 265, 280 [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Magaming v The Queen (2013) 252 CLR 381, 390 [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
This relationship between prosecutorial and judicial functions has been described as having a constitutional dimension.[36]
[36]Elias v The Queen (2013) 248 CLR 483, 497 [33] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
In our opinion, it is inescapable that the same considerations apply to a prosecutorial decision to bring an appeal against sentence. The judicial process would equally be compromised if the courts were to be in any way concerned with decisions as to who is exposed to a Director’s appeal against sentence.
Daniels sought to avoid this result by pointing to the fact that he did not seek judicial review of the Director’s decisions under s 287. That is true, in the sense that he did not seek relief in the nature of judicial review, such as the quashing of the relevant decisions. However, by seeking to impugn the decisions by reference to an analysis of the material before the Director and the process by which she had reached her decision, Daniels in effect sought judicial review under another guise. He sought to have this Court examine and set at nought the decision of the Director that the terms of s 287 applied to the sentence in the present case. That endeavour raises the same objections as a traditional application for judicial review of such a decision. It is, like such an application would be, an impermissible attempt to involve the Court in the manner of exercise of the discretionary powers of the Director to initiate a criminal judicial process.
The challenge to the formation of the Director’s state of mind under s 287, and the competency of the appeal on that basis, therefore cannot succeed. For that reason, we refused leave for the Director to be cross-examined as to the manner in which she had made the decisions referred to in s 287.
Extension of time applications
For the above reasons, the appeals were validly commenced and there is no occasion to consider whether an extension of time would have been granted had we formed the opposite view. We would note, however, that the applications for extension of time were powerfully supported by the consideration that the notices of appeal to which they related were identical to those filed within time and of which the respondents had timely notice. This fact, together with the merits of the appeals (which we discuss below) and the Director’s explanation as to the circumstances of the making of the extension of time applications, would have led us to grant the extensions of time in the event that we had concluded that either appeal lacked validity because the Director’s electronic signature was affixed by her associate.
We therefore now turn to the merits of the two appeals.
The Director’s appeal against Daniels’s sentence
Circumstances of offending
On 29 January 2020, the respondent Daniels pleaded guilty, before a judge of the County Court, to one charge of rape.[37] That offence carries a maximum of 25 years’ imprisonment.
[37]Contrary to Crimes Act 1958 s 38(1).
On 14 December 2020, the judge sentenced Daniels to a term of 3 years’ imprisonment, with a non-parole period of 14 months.[38]
[38]DPP v Daniels (a pseudonym) [2020] VCC 2052 (‘Daniels Sentencing Remarks’).
The Director appeals against that sentence on the ground that both the head sentence and the non-parole period are manifestly inadequate.[39]
[39]CPA s 287.
The offending took place on 18 March 2017. Daniels was 29 years old at the time. In addition to working as an apprentice carpenter, he performed casual work as a boat captain for charter boat operators on the Yarra River and Port Phillip Bay.
On the date in question, Daniels and the victim (‘CK’) were working on the charter boat ‘Birrarung’, which had been chartered for a buck’s party. Daniels was the boat’s captain. At Daniels’s invitation, CK, a 25-year-old early childhood carer, had accepted casual work as a waitress on the boat.
The boat departed at 3 pm and returned at 5 pm. By this time, CK was severely intoxicated. She had undressed and consumed alcoholic drinks in the company of the guests at the party, which took place in a part of the boat separate from where Daniels was situated. Daniels helped CK disembark, and led her to another boat to drink water and sober up. He later led her to his car. There, he used her phone to order an Uber to take her home. An Uber driver arrived, but refused to take CK in his vehicle because of her state of intoxication. Daniels then decided to drive CK home himself.
Once at CK’s apartment, Daniels took her inside. CK lived alone. Daniels and CK went to her bedroom. There, Daniels engaged in penile/vaginal sex with CK. Because of her state of intoxication, she was unable to consent to any sexual activity. Daniels was aware that this was so.
Daniels departed CK’s apartment later that evening. CK awoke in her bed alone just before 3 am the next morning. Lacking any memory of any events since she undressed at about 3.30 pm on the previous afternoon, she panicked. She tried to call Daniels and others, without success.
At 9.30 am the next morning, Daniels texted CK asking, ‘Are you okay?’ CK explained that she lacked any memory of the previous night, including of leaving the boat. Daniels explained that he had escorted her from the boat but that an Uber would not accept her.
That evening, CK texted Daniels stating that she was going to the doctor to get tested. After calling CK more than a dozen times without success, Daniels texted her saying ‘You were only with me, no one else. [You’re] safe.’ She replied that she was getting a rape kit and requested he cease contacting her. In response, after continuing to unsuccessfully call her, Daniels texted:
You dont need a rape kit, You asked for me, i didnt want to but you kept saying please. im sterile so your safe. I feel sick myself as this is the last thing i wanted to happen to both of us. I have a wife and kids and have never done anything of the sorts (im all talk nothing more) Im so sorry, should have called an ambulance and had you taken to hospital. I will never ask you to work again. Please dont press charges on me.
Two days later, CK reported the matter to police. A pretext call was arranged. In that call, Daniels agreed that he had had sex with CK at her house on the evening in question. He said that CK had tried to make him ‘eat her’ while she dressed after the charter cruise. He said that he had tried but failed to sober her up and send her home in an Uber. He said that when they reached her apartment, she pulled him onto her. He said that he ‘didn’t want to do it’, it just ‘happened’ and he ‘felt like shit’ that it did.
The next month, Daniels was interviewed by police. He was charged more than a year later, in June 2018. After a contested committal hearing in late 2018 and early 2019, the matter was set down for trial in January 2020. As mentioned, Daniels entered a plea of guilty on 29 January 2020.
Sentencing remarks
After setting out the circumstances of the offending, the judge addressed its gravity. He regarded the offending as opportunistic[40] and as being at a ‘lower level’ of objective seriousness.[41] It occurred in circumstances in which CK had invited intimate contact with Daniels to which, in her intoxicated state, she was (as Daniels was aware) incapable of consenting. The judge considered that up until the commission of the offence, Daniels’s intentions were unimpeachable: he had played no role in CK becoming intoxicated, had tried to assist her after the charter concluded, and had resisted an earlier advance.[42]
[40]Daniels Sentencing Remarks [29].
[41]Ibid [96].
[42]Ibid [28].
The judge considered Daniels’s prospects of rehabilitation to be excellent, meaning that the sentencing principle of specific deterrence assumed only ‘minimal weight’. [43]
[43]Ibid [24].
Nonetheless, the judge observed that the impact on the victim was devastating. He extracted a lengthy portion of her victim impact statement. In it, she described profound and persistent psychological harm. She had been diagnosed with depression, anxiety and post-traumatic stress disorder, and continued to require a regimen of medication, counselling and other support in order to function. She had experienced a loss of identity and enjoyment, difficulties in her intimate relationships, and disruption in her professional life. She felt it would take some time before she is able to ‘trust, love and … feel again’.[44]
[44]Ibid [30].
Next, the judge turned to Daniels’s personal circumstances, which he set out at length. He noted that Daniels was married with three young children, at least two of whom are in poor mental health, and one of whom has been the victim of an unrelated sexual assault. He noted that Daniels has a close relationship with his mother, who has a terminal cancer. He described ten ‘very impressive’ character references from Daniels’s friends, family and colleagues, which attested to his ‘excellent good name and good character’ prior to the offending. One of these character references was from his wife, who remained supportive of him, and who has lost her job as his apprentice carpenter since his incarceration.[45]
[45]She was apprenticed to the respondent.
The judge concluded that it was a significant mitigatory factor that:
[Y]ou have an excellent, pre-existing character; that you have been a loyal and hard-working husband and raised a family of three daughters from a very young age and that your life up until the point of this offence had been one that could only be characterised as admirable.[46]
[46]Daniels Sentencing Remarks [67].
The judge took account of the delay of three years and nine months since the offending.[47] He also took account of the guilty plea which, albeit entered just prior to trial, had a ‘very useful utilitarian effect’ and was corroborative of the respondent’s remorse.[48] He noted that Daniels had been diagnosed with a major depressive disorder, linked in part to his distress at the effects of his offending on his family.[49]
[47]Ibid [49], [71].
[48]The respondent also expressed that remorse to a forensic psychologist: ibid [69].
[49]Ibid [70].
After acknowledging the seriousness of the offence of rape, as reflected in the maximum penalty, the judge turned to current sentencing practices for the offence.
First, he referred to sentencing statistics in respect of rape, while noting that such statistics are informative but not determinative.[50] Those statistics showed a median term of imprisonment of five years, and a mean length of imprisonment of just under five years in 2016–17. In light of the matters already identified, the judge considered that a sentence less than the median sentence was warranted.[51]
[50]Sentencing Advisory Council, ‘Sentencing Snapshot 230: Sentencing Trends for Rape in the Higher Courts of Victoria 2013–14 to 2017–18’ (22 May 2019). Regard could now be had to Sentencing Advisory Council, ‘Sentencing Snapshot 255: Sentencing Trends for Rape in the Higher Courts of Victoria 2015–16 to 2019–20’ (11 August 2021).
[51]Daniels Sentencing Remarks [81].
The judge explained that he had had regard to comparative sentences identified by the parties, as well as others identified in his ‘own research’, including by reference to cases summarised in the Victorian Sentencing Manual.[52] The judge then referred to six comparator cases.
[52]See Judicial College of Victoria, Victorian Sentencing Manual (4th ed, 28 July 2021).
Three of the cases were decisions of this Court in the years preceding the present sentence: Director of Public Prosecutions v Elfata,[53] Rootsey v The Queen,[54] and Director of Public Prosecutions v McInnes.[55]
In Elfata, this Court dismissed a Crown appeal against a sentence of 2 years for rape imposed after a trial. The respondent and complainant were in an intimate relationship. The offending constituted a ‘single, impulsive act’ of non-consensual digital penetration, unaccompanied by further violence and at the ‘lower end of seriousness’.[56] That respondent’s prospects of rehabilitation were estimated to be ‘good’.
[56]Elfata [2019] VSCA 63 [26], [37] (Priest AP, Beach and T Forrest JJA).
In Rootsey, this Court dismissed an appeal against a sentence of 2 years and 6 months for rape imposed following a guilty plea. The case involved historical offending when the applicant, who presented with a suite of mental illnesses, was a child. The applicant had achieved significant rehabilitation since the offending, although his overall prospects of rehabilitation were viewed with ‘considerable caution’.[57]
[57]Rootsey [2018] VSCA 108 [22] (Osborn and Priest JJA).
In McInnes, this Court dismissed a Crown appeal against the imposition of a 3 year community correction order for a single charge of rape following a guilty plea. The respondent was relatively youthful. The offending was opportunistic, involving the penile/vaginal penetration of a sleeping bed-companion. The respondent, who was otherwise of good character, reported himself to police, and his prospects of rehabilitation were regarded as excellent.
The judge also referred to three less recent comparators: Worsnop v The Queen,[58] R v Rowley[59] and Bourne v The Queen.[60]The details of those cases are not presently relevant. In each case, a sentence of 3 years or less was imposed on a charge of rape.
After reviewing those cases, the judge said that the relevant question was ‘whether the [C]ourt should exercise a modicum of mercy when administering justice in this case’.[61] The judge considered that he should, principally because of:
[Y]our prospects of rehabilitation and … the lower objective seriousness [of the offending and] the matters personal to you … and in particular, your previous good character. [62]
[61]Daniels Sentencing Remarks [92].
[62]Ibid [96].
Ultimately, the judge imposed the sentence already described, which he described as a merciful sentence with a shorter than usual non-parole period.
Ground of appeal
As mentioned, there is a single ground of appeal: that the head sentence and non-parole period are manifestly inadequate.
Parties’ submissions
Director’s submissions
The Director made five related submissions — several of which were more akin to independent specific error grounds.
First, the Director submitted that the judge gave insufficient weight to both the relative gravity of the offending and Daniels’s moral culpability. It was said that the judge mischaracterised the offending as at the ‘lower level of … objective seriousness’ given the presence of various aggravating features, namely that:
(a) CK was severely intoxicated;
(b) CK was alone and vulnerable;
(c) the offending took place in CK’s home;
(d) Daniels was in a position of trust in the employment setting;
(e) Daniels had assumed the role of caring for CK when he offended; and
(f) Daniels had ‘pursued his own sexual gratification’ when CK could not look after herself.
Despite the absence of other aggravating features — such as premeditation or additional violence — the offending was said to be serious, and Daniels’s moral culpability was said to be high.
Secondly, the Director submitted that the judge misapplied current sentencing practices. Elfata and Rootsey were said not to be truly comparable as they involved, respectively, low-level offending within a relationship, and offending as a child. The balance of the comparator cases were said not to reflect the post-Dalgliesh[63] increase in sentences for rape and other serious sexual offending. It was said that, by referring to those cases, the judge misunderstood the sentencing range for the offence of rape.
[63]DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 (‘Dalgliesh’).
The Director nominated this Court’s decision in Kalofolias v The Queen
(‘Kalofolias’) as a more appropriate comparator.[64] There, the Court dismissed an appeal against a sentence of 6 years’ imprisonment following a plea of guilty. The applicant was the complainant’s employer and digitally raped her at the restaurant where they worked. The 18-year-old complainant was incapacitated after having consumed a soft drink laced with alcohol.
[64][2017] VSCA 308. This decision was identified by defence counsel as a comparator sentence at the plea.
Further, the Director submitted that the judge misused the sentencing statistics to which he referred, as identifying sentencing brackets below and above the identified median. In doing so, it was said that the judge overlooked the limitations of statistics and approached sentencing in an impermissibly mathematical fashion.
Thirdly, it was submitted that the judge gave excessive weight to the sentencing principle of rehabilitation and that, in the rape of a vulnerable defenceless woman, the sentencing principles of denunciation and deterrence should predominate. Even allowing for the permissible exercise of mercy, the judge was not entitled to elevate Daniels’s rehabilitation to the primary sentence purpose.
Fourthly, it was said that the mitigatory factors identified did not warrant the fixing of a non-parole period of less than 40 per cent of the head sentence. The imposition of such a modest non-parole period indicated, it was said, the over-weighting of rehabilitation at the expense of denunciation and general deterrence.
Finally, it was said that the judge gave insufficient weight to the impact on CK, despite describing it as ‘devastating’.
Respondent’s submissions
Daniels first submitted that the Director’s submission as to errors made by the judge were not on point. As the single ground of appeal concerns manifest inadequacy, and involves no allegation of specific error, the Director’s submission as to specific errors — such as the use of sentencing comparators and statistics — could be discarded.
In any event, Daniels contended that the ground of appeal lacked merit. First, it was said the judge properly characterised the offending at the lower level of objective seriousness. To do so was not to minimise the inherent seriousness of the offence of rape, but to acknowledge the spectrum of seriousness applicable to a grave offence. Here, the offending was on the lower end of that spectrum given that it was opportunistic, of short duration, and unaccompanied by any threats or other violence or aggravating features such as the use of weapons, humiliation, the presence of others, a major age discrepancy, or a context of family violence. The judge’s identification of the offending as being at the lower end of the spectrum did not mean that he discounted or overlooked the severe impact of the offending on CK: that impact was acknowledged at length by the judge in his reasons.
The Director’s submission that Daniels’s moral culpability was properly characterised as ‘high’ was said to be contrary to the position taken by the prosecutor at the plea, and to rely on alleged aggravating features that were not identified on the plea. Only two of the matters relied on (that CK was alone and in her own home) were said to have been advanced by the prosecutor at the plea.
In any event, it was submitted, some of those features were not aggravating. For example, the complainant’s severe intoxication was said to be an element of the offence — it was what had rendered her incapable of consenting, not a further feature of the offending. Other features were said to have been mischaracterised — for example, Daniels was not, as the Director submitted, the victim’s employer but her colleague.[65] The respondent also challenged the assertion that he had offended for his own sexual gratification, in circumstances where the prosecution summary showed that he had not wanted to have intercourse with CK but had done so after she ‘pulled him onto her’.
[65]The allegation that he was her employer was abandoned in plea negotiations.
Next, it was submitted that the judge did not misapply sentencing comparators or statistics: he considered them, as he was obliged to do, as one indicative factor among many, and not as having the weight of precedents. To a considerable extent, the judge’s recourse to those comparators was explained by the prosecutor’s failure to provide comparable cases at the plea hearing. Ultimately, the prosecutor provided the judge with only a single comparator:[66] a case where an offender convicted of rape following a trial was sentenced to 5 years and 6 months’ imprisonment — virtually the same length as the judge’s s 6AAA declaration in this case.
[66]Bakshi v The Queen [2018] VSCA 83 (‘Bakshi’).
Counsel for Daniels submitted that it was entirely proper that the sentencing judge emphasised rehabilitation and exercised a measure of mercy. This was an appropriate case for a merciful sentence. Daniels was of good character and the offence, albeit serious, was an aberration. He pleaded guilty and showed true insight into his offending and its impact on the victim. There was every prospect he would grasp the opportunity afforded by a measure of leniency. At the time of sentencing he faced a series of ‘devastating personal crises’ in respect of his immediate family. In all those circumstances, a merciful sentence was not only appropriate but in the interests of the community. In any event, it was submitted, the prosecutor had not submitted at the plea that general deterrence should be the primary sentencing consideration.
Finally, it was submitted that, even if the Director persuaded the Court that the sentence was manifestly inadequate, there were three reasons why the Director could not establish that the residual discretion not to interfere should not be exercised:
(g) the prosecutor had failed to comply with the Crown’s obligation to assist the sentencing judge with relevant comparator cases;
(h) the Director had advanced arguments on appeal which were not put to the sentencing judge, in particular as to aggravating features of the offending, the need for general deterrence to be the primary sentencing consideration and the submission that rehabilitation was not the most important sentencing consideration;
(i) the impact of Daniels’s incarceration, and the appeal, on his mother, wife and daughters (to which further reference is made below).
Consideration — manifest inadequacy
It is well settled that the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options’ available to the sentencing judge. The Director must demonstrate that it was not reasonably open to the sentencing judge to come to the sentencing conclusion he did if proper weight had been given to all the relevant circumstances of the offending and the offender.[67] It is not sufficient that we might have imposed a different sentence.
[67]Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA).
We observe at the outset that rape is a serious offence, and that the offending in this case had profound effects on CK. Plainly a significant sentence of imprisonment was warranted. However, it has not been shown that the sentence of 3 years’ imprisonment imposed on the rape charge in this case was outside the range of sentences available. Certainly, as the sentencing judge himself recognised, the sentence was a merciful one, but we do not consider that it was so merciful as to fall outside the range properly available. We agree with the sentencing judge that, while rape is always a serious offence, this instance of the offence was at the lower level on the spectrum of seriousness. It was spontaneous offending, committed in a short space of time without force or additional violence. It was unaccompanied by threats or specific acts of degradation or humiliation. To the contrary, there was unchallenged material before the sentencing judge indicating that the offence occurred following the intoxicated encouragement of the victim. On the other hand, obviously CK was in no position to consent and it must be recognised that CK was alone and in her own home, where she was entitled to feel safe.
We do not accept that the other matters relied on by the Director in this case should properly have been treated as having aggravated the offending such that a greater period of imprisonment was required. First, the fact that CK was intoxicated was the explanation for her inability to consent, and for Daniels’s knowledge of that fact. However, he played no role in her becoming intoxicated. While it might be said that Daniels took advantage of CK’s state, so as to aggravate the offending, this was not put by the prosecutor at the plea hearing. In the circumstances, we do not think that the fact that CK was intoxicated was a matter that bears heavily on the sentence.
Secondly, we do not accept that Daniels was effectively the employer of CK. Although he had arranged for her to be offered work on the boat, they were colleagues. In contrast to Kalofolias, Daniels and CK were of similar age, and he was not in a position of any authority over her.
Thirdly, we also do not accept that the fact that Daniels had assumed the role of carer of CK was aggravating. While he had, as any decent person would, ensured she got home rather than leaving her intoxicated and alone in a public place, it was not suggested that he had done so with a view to offending against her. The prosecutor at the plea again did not suggest that the role adopted by Daniels aggravated the offence.
Finally, the submission that the offence took place for the sexual gratification of Daniels was again not advanced at the plea as an aggravating factor. To the extent that this argument suggested that Daniels had contrived to direct events towards his own sexual gratification, it must take account of the material in the prosecution summary indicating that CK had initiated intimate contact and that Daniels had engaged in that conduct despite initially not wishing to do so. Again, we do not think that, even accepting that Daniels committed the offence for the purposes of sexual gratification, that matter bears significantly on the sentence.
Importantly, Daniels was also able to draw on significant factors in mitigation. The judge made reference to the strong character evidence and his excellent prospects of rehabilitation. He freely admitted to what he had done and was profoundly remorseful. Although he ran a contested committal, no challenge was made to the credit of CK. He pleaded guilty, thus removing the need for CK to give evidence and be cross-examined at a trial. His guilty plea also had additional utility in a period where COVID-19 was causing a backlog of criminal trials in the County Court. Further, it was plain that the effect of his incarceration on close family members would make prison considerably more difficult for him than it would otherwise have been.
The Director submitted that excessive weight, or primacy, had been given to the sentencing purpose of rehabilitation, at the expense of denunciation and general deterrence. Similarly, she submitted that insufficient weight had been given to the devastating impact of the offending on CK. These submissions are effectively particulars of the ground alleging manifest inadequacy in the sentence. They do not assert specific legal error. As such, they are no more than possible explanations for the sentencing outcome which is impugned. They are relevant therefore as part of an overall consideration of whether the sentence was in the available range. We accept, of course, that denunciation, general deterrence and the impact on CK were important sentencing considerations which needed to be taken into account as part of the instinctive synthesis by which the sentence was determined. But they were taken into account, and Daniels’s rehabilitation was also important. It is not surprising, given that the judge regarded his prospects of rehabilitation as excellent, that he fashioned a sentence calculated to realising those prospects. It is not necessary to say more about these specific matters. They do not lead to a conclusion that the sentence imposed was outside the permissible range or otherwise not open to the sentencing judge.
As mentioned, we do not find Kalofolias, upon which the Director relied, to be a useful comparator for the purpose of the present sentence. That case involved an 18-year-old victim who was employed at a restaurant run by the family of the 44‑year-old offender. After the victim drank some soft drink during her shift, she felt unwell and told the offender. She sat on the floor fearing that she was going to vomit and he sat next to her, pushed her onto the floor, put his hand under her shirt and pulled her bra down. He sucked her nipple while she tried to fight him off, but he persisted. In the face of her physical and verbal resistance, he moved his hand under her underwear and digitally penetrated her vagina. The offender asserted that there had been no sexual contact, but when DNA results were obtained he asserted that there had been consensual sexual activity. He later pleaded guilty on the second day of the trial, before a jury was empanelled.
This Court rejected an argument that the 6 year sentence imposed in Kalofolias was manifestly excessive. It is plain from the description of the offending and the manner in which Kalofolias acted after complaint was made that there are numerous points of difference between the cases. If anything, they support the present respondent receiving a significantly lower sentence than 6 years. The Director’s claim that the cases are comparable cannot be sustained. And, in any event, a single case of this kind cannot be treated as a precedent. As Gageler and Gordon JJ said in Dalgleish:
[S]entences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. … Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[68]
To the extent that the Director invited us to define or determine the precise scope of the principle in Spanjol, we reject that invitation. We prefer to take the approach taken by the Court in Guseli by confining ourselves to the facts of the present case.[97] The precise scope of Spanjol will be determined on a case-by-case basis as those cases arise. It is sufficient for present purposes to say that we see no error in the judge’s reliance on Spanjol in the present case. The amount of the reduction of the sentence on charge 1 was modest. If there was any reduction in respect of the order for cumulation on charge 1, it could only have been something less than two months out of a total effective sentence of 11 years and 6 months.
Grounds 1 and 3 – manifest inadequacy and the non-parole period being less than 60 per cent of the head sentence
[97]Guseli [2019] VSCA 29 [67].
As we have already observed, in ground 1 the Director contended that the sentences imposed on charges 1 to 5, the orders for cumulation, the total effective sentence and the non-parole period are all manifestly inadequate. Under ground 3, she contended that the judge erred in fixing a non-parole period that constituted less than 60 per cent of the total effective sentence, and in failing to state the reasons for imposing such a non-parole period. There is some overlap between these two grounds, and it is therefore convenient to deal with them together. In order to do so, we need to describe the judge’s reasons for sentence in greater detail.
Judge’s reasons
The judge commenced his reasons for sentence by noting that Currie was 19 at the time of collision, and 20 at the time of sentencing.[98] He then referred to the profound loss caused to the families of Mr Juriansz, who was 21 at the time of the collision, and Ms Barnett, who was 19 at the time. In addition, he referred to the ‘serious injury to Mr Smeraldo and the injury and danger of death to Ms Jackson’.[99] The judge then identified the victim impact statements that he had listened to and read,[100] before saying that all of the victim impact statements tendered by family and friends were ‘powerful, brave expressions made publicly to the Court of the loss and suffering endured as a consequence of [Currie’s] driving’.[101]
[98]Currie Sentencing Remarks [1].
[99]Ibid [4].
[100]Ibid [5]–[7].
[101]Ibid [9].
The judge noted that the seriousness of culpable driving had been recognised by the Parliament in imposing a maximum penalty of 20 years’ imprisonment, and that Parliament had also classified the offence as a category 2 offence which, pursuant to s 5(2H) of the Sentencing Act 1991, ‘must be met with a custodial sentence’.[102] The judge also noted that the standard sentence for culpable driving was eight years.[103] The judge said that s 11A of the Sentencing Act (dealing with the fixing of non-parole periods for standard sentence offences) applied to the present case.[104]
[102]Ibid [13]–[14].
[103]See ss 5A and 5B of the Sentencing Act 1991 and s 318(1A) of the Crimes Act 1958.
[104]Currie Sentencing Remarks [14].
The judge summarised Currie’s offending.[105] Under the heading ‘Spanjol Principles’, the judge then dealt with the Spanjol issues to which we have already referred.[106]
[105]Ibid [18]–[42].
[106]Ibid [43]–[59].
Under the heading ‘Plea of Mr Currie’, the judge referred to the evidence tendered on the plea and submissions made to him by Currie’s plea counsel.[107] In the course of doing so:
[107]Ibid [60]–[72].
·the judge accepted that Currie was a ‘simple, naïve, unworldly person’, who was insecure; and who was, owing to his low self-esteem, ‘inclined to risk taking to impress his peers’;[108]
·the judge referred to a submission that he should accept that the remorse expressed by Currie (and demonstrated by his plea and a written apology tendered on the plea) was genuine;[109]
·the judge said that he accepted Currie’s words in his written apology, and that ‘given the horrific consequences he is responsible for, he will never be able to forgive himself’;[110]
·the judge accepted that the plea was an early plea and ‘was utilitarian and saved the grieving families, Mr Smeraldo himself and his family, the trauma of a trial’;[111]
·the judge accepted that there should be an ‘appropriate discount’ for the plea having taken place during the pandemic at a time when the listing of pleas was ‘very difficult’ and court time was ‘difficult to organise’;[112]
·the judge referred to submissions made about Currie’s prospects of rehabilitation, saying that Currie was ‘likely to effect rehabilitation’, and that his rehabilitation would be supported by his family, and noting that Currie had observed ‘quite strict bail conditions and maintained his apprenticeship and employment’ since his offending;[113]
·the judge referred to reports from the psychologists, Mr Lavery and Dr Barth, and a report from the psychiatrist, Dr Sullivan, disclosing that Currie had been diagnosed with post-traumatic stress disorder;[114] and
·the judge referred to submissions made on behalf of Currie about the difficulties he would encounter in custody, being immature and having psychological issues, as well as the impact of the pandemic on the burden which Currie would face in custody.[115]
[108]Ibid [60].
[109]Ibid [61].
[110]Ibid [62].
[111]Ibid [63].
[112]Ibid [63].
[113]Ibid [64]–[65].
[114]Ibid [66].
[115]Ibid [67].
The judge noted that Currie fell to be sentenced as a young offender (being an offender under the age of 21).[116] The judge recorded Currie’s plea counsel’s concession that in the circumstances of the ‘tragedy and the gross driving involved’, the impact of youth had to be moderated — although it was ‘in the interest of our community for rehabilitation to be effected in persons who have committed crime’.[117]
[116]See the definition of ‘young offender’ in s 3(1) of the Sentencing Act 1991.
[117]Currie Sentencing Remarks [69].
The judge accepted that there was ‘an exquisite balance to be effected between the general sentencing principles relevant to culpable driving, and the mitigatory circumstances put by [Currie’s counsel] as to his client’s age and rehabilitation prospects’.[118]
[118]Ibid [70].
Finally, with respect to s 5B of the Sentencing Act, the judge said:
As to the provisions in the Sentencing Act firstly of s 5B(5), the sentence imposed for Charge 1 relates not only to the objective criminality but all my findings in regard to that charge and all the factors put to me in this plea. As to s 5B(4)(b), can I indicate that the totality of factors referred to by me in this sentence, apart from the objective criminality, have been such that the non-parole period imposed by me is lower than statutorily imposed.[119]
[119]Ibid [80].
Parties’ submissions
Under ground 1, the Director contended that the individual sentences imposed on charges 1 to 5, the orders for cumulation, the total effective sentence and the non-parole period were all manifestly inadequate. In support of that contention, the Director made the following submissions:
(1)The bond Currie pledged to VicRoads enhanced his moral culpability. As of March 2019, Currie was fully aware of his obligation to drive within the rules of the road and that his ability to drive was consequent upon him fulfilling that obligation. However, with that knowledge Currie continued to drive dangerously and illegally — ultimately with tragic consequences.
(2)Currie’s offending was ‘objectively a high-end example of the offences of culpable driving causing death and negligently causing serious injury’. The statement ‘high-end example’ must be read against the applicable maximum penalties (being 20 years and 10 years’ imprisonment respectively).
(3)The standard sentence for culpable driving is 8 years. The standard sentence represents a sentence that is in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of that offence.[120]
(4)The devastation wrought upon the lives of those affected by Currie’s offending is profound, and will endure indefinitely into the future.
(5)The sentences on charges 1 and 2 were below those imposed in Director of Public Prosecutions v Reid[121] and Victorsen v The Queen.[122] The sentence on charge 3 did not reflect this Court’s statement in Harrison v The Queen[123] that, for the more serious cases of negligently causing serious injury, sentences of greater than 4 years’ imprisonment should be imposed. The sentences imposed on charges 4 and 5 were ‘clearly … below what current sentencing practice would reflect’.
(6)The orders for cumulation ‘fail wholly to reflect Currie’s offending in its entirety, leading to a total effective sentence that is manifestly inadequate’.
(7)While Currie is a young man, the authorities are replete with statements that in cases of this kind (involving dangerous driving that results in loss of life or the infliction of serious injury) general deterrence must hold sway, leaving youth and good character to be accorded relatively less weight.
(8)The non-parole period, representing merely 52 per cent of the total effective sentence, cannot be justified ‘notwithstanding anything that could be said in Currie’s favour’.
[120]See Brown v The Queen (2019) 59 VR 462 (‘Brown’).
[121][2020] VSCA 247 (‘Reid’).
[122][2020] VSCA 248 (‘Victorsen’).
[123](2015) 49 VR 619 (‘Harrison’).
In relation to ground 3, the Director observed that s 11A(4) of the Sentencing Act required the judge to fix a non-parole period that was at least 60 per cent of the total effective sentence, unless it was in the interests of justice not to do so. Section 5B(4)(b) required the Court to state the reasons for fixing a non-parole period that was shorter than 60 per cent of the total effective sentence. The Director submitted that it was not in the interests of justice not to fix a non-parole period of at least 60 per cent. She also submitted that, notwithstanding what the judge said,[124] his Honour did not provide any reason why it was in the interests of justice not to impose a non-parole period of at least 60 per cent.
[124]Currie Sentencing Remarks [80].
In relation to ground 1, Currie submitted that, ‘in reasons for sentence spanning 30 pages, the very experienced sentencing judge gave careful and considered attention to all of the relevant sentencing principles’. The seriousness of the offending, the tragedy of young lives lost by the offending and the impact of his offending on the victims and their families were, it was submitted, at the forefront of the judge’s reasons for sentence.
Currie submitted that there was a ‘powerful constellation of mitigating factors’. These included:
·Currie’s early plea of guilty, entered at the committal mention stage;
·genuine remorse, ‘founded on a solid evidentiary basis’;
·the utilitarian benefit of the early plea, saving further trauma to grieving families, together with the particular utilitarian value to the Court in the context of the pandemic and the stress on judicial resources;
·the burden of imprisonment to be suffered by a young man who was immature and suffering from PTSD, entering the prison system for the first time (and during the pandemic);
·the fact that, by reason of the psychological conditions Currie had been diagnosed with, his sentence of imprisonment would weigh more heavily on him than on a person of normal health;[125]
·there was a serious risk of imprisonment having a significant adverse effect on Currie’s mental health;[126]
·Currie’s youth, coupled with expert evidence that he presented as a very immature person for his age;
·the absence of any criminal history;
·Currie’s excellent prospects of rehabilitation, a finding supported by an absence of prior convictions;
·the statements of family, friends and his employer which were tendered on the plea;
·Currie’s work history; and
·his compliance with strict bail conditions, and the continuation of his apprenticeship while he was on bail.
[125]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (principle 5).
[126]Ibid (principle 6).
Currie noted that in each of the cases of Reid and Victorsen, the culpable driving charges attracted a 9 year sentence. This is to be contrasted with the 7 years and 6 months Currie received on charge 1 and the 8 years he received on charge 2 (to which the reasoning in Spanjol was found to apply). Currie submitted that the ‘relatively modest discrepancy’ between the sentences imposed on Currie and the sentences imposed in Reid and Victorsen can be justified by a comparison of the facts between those cases.
Currie observed that but for the application of Spanjol, he would have been sentenced to 8 years (the standard sentence) on each of the culpable driving charges. He then submitted that the powerful constellation of mitigating factors personal to him meant that the sentences actually imposed by the judge reflected the fact that his offending was treated by his Honour as significantly more serious than offending ‘in the middle range of seriousness’.[127]
[127]See s 5A(1)(b) of the Sentencing Act.
Currie noted that s 16(1) of the Sentencing Act provides that every term of imprisonment imposed is to be served concurrently unless otherwise directed by the Court. Currie contended that the principle of totality had work to do in this case. He then submitted that the orders for cumulation made by the judge reflected that:
·charges 1 to 4 were founded on the same ‘instance of conduct’;
·in making the cumulation orders in respect of charges 1 and 3, Mr Juriansz and Mr Smeraldo were not treated as ‘meaningless statistics’ in the sentencing process;
·the conduct found in charge 5, and the related summary offences, informed the assessment of the seriousness of charges 1 to 4, and cumulation would have amounted in those circumstances to double punishment.
Currie submitted that ‘through the product of instinctive synthesis the learned trial judge arrived at a just and individual sentence based on the facts of Currie’s case’. He then noted that the threshold for establishing manifest inadequacy is a high one — referring to this Court’s decision in Karazisis. Currie also relied upon the well-known statement of King CJ in R v Osenkowski:[128]
It is important that the prosecution appeal should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[129]
[128](1982) 30 SASR 212 (‘Osenkowski’).
[129]Ibid 212–13.
In relation to ground 3, Currie submitted that the judge explicitly found that it was not in the interests of justice to impose a non-parole period of 60 per cent or more of the total effective sentence. No error of principle was made by the judge and, devoid of any error of principle, the complaint made by the Director under this ground is merely a reformulation of her argument of manifest inadequacy.
Currie submitted that the judge provided reasons in compliance with s 5B(4)(b) of the Sentencing Act when he fixed a non-parole period of less than 60 per cent of the total effective sentence.[130] In the alternative, he submitted that any failure to provide sufficient reasons under that section would not in itself vitiate the exercise of the judge’s sentencing discretion.
This Court’s decisions of Reid and Victorsen
[130]Currie Sentencing Remarks [80].
Section 5(2)(b) of the Sentencing Act requires a court in sentencing an offender to have regard to current sentencing practices. As we have already said, culpable driving is a standard sentence offence to which ss 5A, 5B and 11A of the Sentencing Act apply. Section 5B(2) of the Sentencing Act requires a court sentencing an offender for a standard sentence offence to take the standard sentence into account as one of the factors relevant to sentencing. Section 5B(2) also provides that:
In sentencing an offender for a standard sentence offence, a court –
…
(b)despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.
Victorsen and Reid are the only two decisions of this Court which have dealt with sentences imposed for culpable driving as a standard sentence offence. Thus, as we have already noted, both the Director and Currie placed considerable reliance upon these two decisions. In the circumstances, it is necessary to examine closely the circumstances of those cases and the sentences imposed.
In Reid, the offender pleaded guilty to one charge of culpable driving and two charges of conduct endangering life. On the culpable driving charge, he was sentenced to 9 years’ imprisonment. A further 12 months was cumulated on this sentence, making a total effective sentence of 10 years. A non-parole period of 7 years was fixed. The offender in Reid was aged 21 and held a probationary licence requiring him to have a blood alcohol concentration of zero. He was also the subject of an ‘alcohol interlock’ condition, by reason of two prior court appearances for prescribed alcohol concentration offences.
The circumstances of the offending in Reid were that the offender had consumed alcohol and methylamphetamine. At the time of his offending, it was estimated that he had a blood alcohol concentration of .05 to .08. Video of his driving before the fatal collision showed speeds of up to 200 kph. The culpable driving offence occurred as the offender’s vehicle came around a sweeping bend at a speed of at least 131 kph, straddling double lines. The vehicle hit and killed a motorcyclist. The offender had a dysfunctional upbringing and had been sexually abused as a child.
In Reid, the Director contended that the individual sentences (including the sentence imposed on the culpable driving offence), the orders for cumulation, the total effective sentence and the non-parole period were manifestly inadequate. The Court of Appeal rejected those contentions, concluding that the sentence, ‘though arguably lenient, did not fall so far short of what was required as to justify the intervention of this Court’.[131]
[131]Reid [2020] VSCA 247 [114] (Priest, T Forrest and Weinberg JJA).
In Victorsen, the offender was 19 when he drove a stolen motor vehicle into an intersection against a red light at a speed of 133 kph, killing two people in another vehicle. The offender was disqualified from having a licence at the time. He fled the scene and failed to render assistance. He pleaded guilty to two charges of culpable driving and one charge of failing to render assistance. On the culpable driving charges he was sentenced to 9 years on each charge. Three years of the second culpable driving charge was ordered to be served cumulatively, as was one year of a 2 year sentence on the failing to render assistance charge — giving a total effective sentence of 13 years. A non-parole period of 8 years was fixed.
The speed limit applicable to the offender’s vehicle in Victorsen was 80 kph. The light had been red for 1 minute and 8 seconds at the time he entered the intersection. Additionally, the offender had a substantial criminal history, involving 96 offences from 13 court appearances. He also had cognitive difficulties and a dysfunctional upbringing.
In Victorsen, the offender contended that the individual sentences, orders for cumulation, total effective sentence and non-parole period were manifestly excessive. The Court concluded that, giving the offender’s youth and difficult background full weight, it could not be concluded that the individual sentences of 9 years on the culpable driving charges were manifestly excessive when due regard was paid to the serious nature of the offending.[132] As to the orders of cumulation (3 years on the second culpable driving charge and 1 year on the charge of failing to render assistance), the Court, ‘after anxious consideration’ concluded that the cumulation of 3 years between the culpable driving charges was ‘within bounds’.[133] The Court also held that the one year’s cumulation on the remaining charge was within the appropriate range.[134] Ultimately, the Court considered that the total effective sentence of 13 years’ imprisonment might be considered stern, but it was not manifestly excessive.[135] As to the non-parole period, the Court concluded that no sensible submission could be made that it was manifestly excessive.[136]
[132]Victorsen [2020] VSCA 248 [32], [43] (Priest JA, Niall JA agreeing at [43]).
[133]Ibid [40], [43].
[134]Ibid.
[135]Ibid [41], [43].
[136]Ibid.
Consideration
The offences giving rise to charges 1 to 4 were very serious examples of serious offences. A person who drives a motor vehicle (as Currie did) along a road in a residential area at a speed of almost 100 kph above the speed limit, and who thereby kills two people, catastrophically injures a third person and endangers the life of a fourth, must expect to receive a substantial term of imprisonment and non-parole period.
As has been said before, all too frequently offending of the present kind is committed by young offenders with otherwise good character, who have a limited (if any) criminal history and good or otherwise excellent prospects for rehabilitation.[137] This Court has said before that in cases of the present kind, general deterrence and denunciation are important sentencing considerations. As was said in Harrison, in relation to the offence of negligently causing serious injury by driving:
The objective seriousness of the offence is such that the importance of general deterrence and denunciation is heightened. As the importance of these factors increases, there is a corresponding diminution in the mitigating effect of factors such as the offender’s youth and prospects for rehabilitation.[138]
[137]See, eg, Harrison (2015) 49 VR 619, 645 [115] (Maxwell P, Redlich and Tate JJA).
[138]Ibid 645 [116].
To the extent that the Director submitted that this Court’s decisions in Reid and Victorsen showed that the sentences imposed on charges 1 and 2 were manifestly inadequate, that submission must be rejected. Three points may be made.
First, as has been said before, current sentencing practice is only one factor required to be taken into account in the fixing of a just sentence.[139]
[139]Dalgliesh (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ).
Secondly, and perhaps most importantly, as bad as Currie’s driving was in this case, the driving by the offenders in Reid and Victorsen was at least as bad, if not worse (in particular, at the time of the offending in those cases, Reid had consumed alcohol and methamphetamine, and Victorsen was disqualified from driving). Additionally, the mitigatory factors that Currie relies upon are greater than those that the offenders in Reid and Victorsen were able to rely upon. If anything, contrary to the submissions of the Director, the sentences in Reid and Victorsen are supportive of the sentences imposed on Currie in this case on the culpable driving charges.
Thirdly, while Reid and Victorsen provide the most useful guidance in attempting to discern a relevant current sentencing practice,[140] the paucity of appellate cases means that it is helpful to refer also to first instance sentences that shed light on current sentencing practice. Although the parties did not take us in oral argument to comparable standard sentence cases other than Reid and Victorsen, Currie’s written case drew attention to the written submissions on the plea, which identified a number of County Court standard sentence cases. Those cases reveal a range of sentences imposed for a charge of culpable driving. The lowest such sentence was 3 years;[141] most sentences were between 8 and 9 years.[142] Some of those cases might be regarded as more serious than the present offending, and others less serious. But in light of those cases, a sentence of 8 years on charge 2 is plainly consistent with current sentencing practices; and a sentence of 7 years and 6 months on charge 1 is also consistent with current sentencing practices and within range when one considers the relevance of Spanjol.
[140]R v Pham (2015) 256 CLR 550, 566 [50] (Bell and Gageler JJ).
[141]DPP v Neale [2019] VCC 2181. The circumstances of the offending in Neale were very different from the circumstances of the present offending.
[142]DPP v Bratherton [2020] VCC 1461 (8 years); DPP v Kent [2020] VCC 991 (9 years); DPP v Castle [2020] VCC 937 (8 years); DPP v Grayden [2020] VCC 279 (9 years); DPP v Phongthaihong [2020] VCC 294 (9 years); DPP v Callick [2019] VCC 2143 (8 years, 6 months); DPP v Panayides [2019] VCC 1849 (9 years); DPP v Rakatau [2019] VCC 1318 (9 years); DPP v Lim [2018] VCC 2166 (8 years).
The objective seriousness of any instance of culpable driving needs to be considered in the context of the range of possible offending that may give rise to a conviction for that charge. It also needs to be considered in the context that Parliament has created the alternative offence of dangerous driving causing death, which has a maximum penalty of only 10 years. As serious as Currie’s culpable driving was, his counsel was correct to submit that there are examples of this offence which are even more serious.
As we have already said, the standard sentence for culpable driving is 8 years. That is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.[143] Notwithstanding the objective seriousness of Currie’s culpable driving, when one gives full effect to the mitigating factors to which we have already referred, it cannot be said that the sentence of 8 years on charge 2 was wholly outside the permissible range of sentencing options. Similarly, having regard to the application of Spanjol in the case of charge 1, it cannot be said that the sentence of 7 years and 6 months on that charge was manifestly inadequate.
[143]See s 5A(b) of the Sentencing Act.
In relation to charge 3, contrary to the Director’s submission, we do not think that the judge sentenced Currie by reference to any informal, or de facto upper limit of 4 years.[144] The judge imposed a sentence of 4 years. Clearly, he would have imposed a longer sentence on that charge if Currie had pleaded not guilty. While we might have imposed a slightly higher sentence on this charge, that is not the test. The sentence of 4 years on charge 3 was within range, albeit at the lower end of the range. The same may be said of charge 4, again remembering that it was the same actions of Currie which gave rise to that charge and charges 1, 2 and 3.
[144]See Harrison (2015) 49 VR 619, 642 [102]–[105] (Maxwell P, Redlich and Tate JJA).
In relation to charge 5, we think there is force in Currie’s submissions that, if the collision had not occurred and Currie had been charged on the day of the offending which constituted charge 5, he would in all likelihood have received a non-custodial sentence. In the circumstances, we reject the submission that the sentence on charge 5 is manifestly inadequate.
Before turning to the orders for cumulation, we note for completeness that no complaint was made by the Director in relation to the sentences imposed, and the orders made, in relation to the summary offences.
The judge ordered 2 years’ cumulation between the culpable driving sentences. We note that the Court in Victorsen considered that 3 years’ cumulation between the two culpable driving sentences in that case was stern. We are not persuaded that the order for cumulation between the culpable driving charges was manifestly inadequate, although it was at the lower end of the range. It could not, however, be described as outside the permissible range. Similarly, the order for 1 year and 6 months’ cumulation on charge 3 was within range. A different judge may have ordered some cumulation in respect of charge 4, but in all the circumstances, any such order would have been relatively modest.
In relation to the judge’s failure to order any cumulation in respect of charge 5, we again note Currie’s submission that if he had fallen to be sentenced for that offence in the absence of the collision, then it is unlikely that a custodial sentence would have been imposed.
It follows from what we have said above that we are unpersuaded that the total effective sentence of 11 years and 6 months was manifestly inadequate. Giving full weight to the seriousness of Currie’s offending, but also full effect to the various mitigating factors to which we have referred, the total effective sentence was within the permissible range — albeit at the lower end of the range. It was at the lower end of the range because relatively modest (although within range) orders in respect of cumulation were made by his Honour.
The non-parole period ordered by the judge is, however, in a different position. The fixing of a non-parole period reflects the minimum time that a judge determines justice requires that an offender must serve having regard to all the circumstances of the offence.[145] Currie drove his motor vehicle along a road in a residential area at a speed of almost 100 kph above the speed limit, and thereby killed two people, catastrophically injured a third person and endangered the life of a fourth. Notwithstanding all of the matters relied upon by Currie in mitigation, the objective gravity of his offending is such that we consider that a non-parole period of 6 years was wholly outside the permissible range of sentencing options available to the judge. To that extent, we will allow the appeal and set aside the non-parole period. In its place, we will order that Currie serve a non-parole period of 7 years and 9 months. Although this non-parole period exceeds 60 per cent of the total effective sentence,[146] in our view it is the minimum period needed to satisfy the purposes for which the non-parole period is to be imposed.
[145]Bugmy v The Queen (1990) 169 CLR 525, 530–1 (Mason CJ and McHugh J), 536 (Dawson, Toohey and Gaudron JJ).
[146]Cf s 11A(4)(c) of the Sentencing Act.
Conclusion
The appeal will be allowed in part. The non-parole period of 6 years will be set aside. In its place we will order that Currie serve a non-parole period of 7 years and 9 months. All other sentences and orders of the County Court will be confirmed.
- - -
- AGLC
- Director of Public Prosecutions v Currie; Director of Public Prosecutions v Daniels (a pseudonym) [2021] VSCA 272
- Case
- [2021] VSCA 272
- Decision Date
CaseChat Overview and Summary
The Court began by addressing the validity of the appeals. The Director of Public Prosecutions had authorised an associate to affix her electronic signature to the notices of appeal on her behalf. The Court considered whether this meant the notices were invalid, thereby depriving the Court of jurisdiction. The Court found that the affixing of an electronic signature by an authorised associate constituted signing for the purposes of the relevant legislation. The Court held that the notices were valid as they bore the Director's personal signature, satisfying the statutory requirement. The Court rejected the argument that the Director needed to personally affix the signature herself, finding that this interpretation would be unnecessarily restrictive and contrary to the purpose of the legislation.
In relation to the appeal against the rape sentence, the Court found that while the head sentence was merciful, it was not outside the available range. The Court considered the circumstances of the offence, including the offender's guilty plea and remorse, and found that the non-parole period of 14 months was manifestly inadequate. The Court exercised its residual discretion not to interfere with the sentence, noting the unusual nature of the case where extending the non-parole period would cause hardship and damage to third parties.
Regarding the appeal against the driving sentences, the Court found that the total effective sentence of 11 years and 6 months, or the non-parole period of 6 years, was not manifestly inadequate. The Court considered the gravity of the offences, the offender's mitigating factors, and the judge's consideration of the failure to give way as an additional causal factor. The Court held that the sentences were within the appropriate range and found no error in the judge's approach.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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