Director of Public Prosecutions v R E E
[2002] VSCA 65
•8 May 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 256 of 2001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| R.E.E. |
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JUDGES: | PHILLIPS, C.J., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 8 May 2002 | |
DATE OF JUDGMENT: | 8 May 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 65 | |
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Criminal law - Sentence - Aggravated burglary and rape - Respondent sentenced to three years' detention in youth training centre, not including seven months' pre-sentence detention - Crown appeal - Young offender - Rehabilitation - General deterrence - Detention in youth training centre - Crown not submitting during plea that three years' detention inappropriate - Manifest inadequacy - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondent | Mr W.B. Zichy-Woinarski, Q.C. and Mr J. Lavery | Youth Advocacy Legal Service |
PHILLIPS, C.J.:
I shall ask my brother Charles to give the first judgment in this matter.
CHARLES, J.A.:
The respondent, who was born on 11 May 1983, pleaded guilty on 30 May 2001 in the County Court at Melbourne to a presentment alleging one count of aggravated burglary, one count of false imprisonment, four counts of rape, and a threat to inflict serious injury. The respondent had been before the Melbourne Children's Court in 1996 and 2000, and 17 findings of guilt had then been recorded. On 13 September 1996, the respondent had pleaded guilty to charges of arson, burglary and theft and was sentenced to probation for 18 months. Then on 11 April 2000 he had pleaded guilty to various charges of burglary and theft and was sentenced to 12 months' probation. The present offences were committed while he was still on probation. The maximum penalties for the relevant offences were as follows: for aggravated burglary, 25 years', for false imprisonment, 10 years', for rape, 25 years' and for a threat to inflict serious injury, 5 years' imprisonment respectively.
During the plea evidence was given on behalf of the respondent by Bruce Thomas Ford. A report dated 20 April 2001 from a child psychiatrist, Dr Robert Adler, was tendered. At the end of the plea the proceedings were adjourned to enable a pre-sentence report to be obtained from the Department of Human Services, and the respondent was remanded in custody.
On 24 August 2001 the respondent was sentenced on the count of aggravated burglary and the four counts of rape to three years' detention in a youth training centre in each case, and on the counts of false imprisonment and threat to inflict serious injury to two years' detention in a youth training centre in each case. The sentences were all ordered to be served concurrently, resulting in a total effective sentence of three years' detention. However, there had been 197 days of pre-sentence detention (which had all been served in adult gaols), which the sentencing judge directed was not to be taken into account. The respondent was at the time of sentence aged 18.
The Director of Public Prosecutions now appeals pursuant to s.567A of the Crimes Act 1958 against the sentence imposed on the grounds that -
"1.The sentence imposed in respect of each count was manifestly inadequate.
2. In fixing the sentence in respect of each count the judge -
(a)failed to adequately reflect the gravity of the offending conduct generally and in this case in particular;
(b)failed adequately to reflect the aggravating features of the offending conduct, in particular, the degree of planning, the employment of threats, the restraining of the complainant, the destruction of forensic evidence, the age and vulnerability of the complainant and the location and timing of the offending conduct;
(c)failed sufficiently to take into account aspects of general deterrence, specific deterrence and denunciation; and
(d)gave too much weight to factors going to mitigation, and in particular, matters of age and prospects of rehabilitation.
3. The total effective sentence imposed was manifestly inadequate.
4. In fixing the total effective sentence the judge -
(a)failed to impose a total effective sentence proportional to the offending conduct in its totality;
(b)failed to recognise the discrete nature of the offending conduct in respect of each count; and
(c)failed to recognise that the offending conduct in its totality warranted terms of imprisonment in respect of each count."
The circumstances of the offences were as follows. The respondent was at the time aged 17. He was then living at the home of his elderly grandparents in East Bentleigh. At some time after 5 p.m. on 7 February 2000, he climbed the fence of the property to gain access to the driveway of the units next door. He stood at the front door of one of those units where he was noticed by the occupant, a 58-year-old single woman, the complainant, who lived alone. The respondent spoke to the complainant, asking permission to pick some fruit from overhanging branches of fruit trees over the complainant's garage roof. He was told to go ahead and did so. That night at around 1 a.m., the respondent dressed himself in black jeans and a dark coloured jumper, placing a dishwashing glove on his left hand. He armed himself with bolt-cutters, a long-handled screwdriver, a metal file, a torch and a length of rope. He then climbed into the rear of the complainant's premises, gained access to her garage and disabled the front sensor light. He cut the telephone line and then went to the front of the premises and switched off the electricity at the mains. He gained access at the rear of the complainant's unit by using bolt-cutters to cut a section of the rear security door near the locking mechanism. Using the long-handled screwdriver he jemmied open the rear door. On entering the premises he made directly for the bedroom where he found the complainant asleep on the bed. He woke her and told her that if she did not yell he would not hurt her. He tied her hands behind her back with the length of rope he had brought with him. The complainant was at this stage shaking. He then asked the complainant whether she was married, and she said she was. The respondent asked where her husband was and was told that he was away. He then obtained a pair of stockings and blindfolded the complainant. She asked the respondent not to hurt her, to which he replied that he would not as long as she did not yell.
The respondent then removed the complainant's nightie and fondled her breasts. The complainant began to cry and the respondent asked her not to and kissed her on the lips. The complainant kept her mouth closed and the respondent asked her why she would not kiss him. When she said her mouth was dry, the respondent went to the bathroom, filled his mouth with water and returned to the complainant. He kissed the complainant again and spat the water into her mouth. The respondent then removed his erect penis from his jeans and forced it into the complainant's mouth. He took hold of her head and forced his penis back and forth for approximately half a minute. After asking the complainant whether she had any "protection", to which she said no, the respondent then removed his clothing and laid on top of the complainant and raped her by forcing his penis into her vagina.
The applicant then made the complainant turn 180 degrees and forced his penis into her mouth, while licking the lips of her vagina. He then pushed his fingers into her vagina and moved them in and out. The respondent then changed position again and laid on top of the complainant, raping her once more by forcing his penis into her vagina. The victim was trying to force her legs together to stop the respondent and complained that he was hurting her. The respondent forced the victim to kneel on the bed and raped her from behind by forcing his penis into her vagina. He asked her if she was enjoying it, but she did not answer as she was crying at the time. He then withdrew his penis and later ejaculated on the sheet.
The respondent then gathered up the sheet with the intention of taking it when he left. The victim asked him not to take the sheet, so he forced her to place it in the washing machine, and poured washing powder and Napisan over it; he later said in the record of his interview with the police that he did this in order to get rid of the evidence. In fact the washing machine would not work because the power had been switched off. The respondent returned with the victim to the bedroom and put his clothes back on, threatening her that if she called the police he would return and break her legs. He left her naked and blindfolded on her bed and returned home by climbing the fence. At some stage he had taken a dress and some of the victim's underwear from her clothes line.
On returning home the respondent changed his clothing and secreted his tools and stolen items in various parts of his room. When police arrived the respondent went to the front yard of his grandparents' premises and spoke to them, stating he had been woken by the dog next door and asking what had happened. However, the next morning detectives from the Sexual Crime Squad went to the respondent's premises and had a conversation with him and his grandmother. He was then very helpful, and made full admissions during a taped record of interview, save however in respect of his thefts from the victim's house. He could provide no explanation as to why he had committed the offences against the victim who had previously been unknown to him. In his room were found the tools that had been used to gain access to the victim's unit, and some of her underwear was also located in the room. Her dress, taken at the time of the offence, was found at a later date hidden in the rear yard of these premises.
Mr McArdle for the Director argued all grounds of the notice of appeal together. He drew our attention to the fact that the maximum penalties, especially for rape and aggravated burglary, were very severe. He put it that the uncontested evidence disclosed a particularly grave series of offences, for which deterrence and denunciation were both very important. He submitted that the judge had failed to give sufficient weight to a number of aggravating circumstances: the victim, a woman of mature years who lived alone, had been attacked at night in her bed after the respondent entered as a burglar; there had followed a persistent and merciless course of conduct during which she was tied up, raped a number of times, and threatened with injury; the offence had been premeditated and well planned, following a reconnoitre by the respondent, and skilful precautions had been taken to avoid identification or leaving biological evidence; and the consequences to the victim were severe.
Next, Mr McArdle submitted that the judge had given too much weight to mitigatory factors. The respondent had pleaded guilty and had been found to have a degree of remorse, although on the night of the offence he had volunteered ignorance and initially denied knowledge of it the next day. The respondent was obviously young but, in addition, had two prior appearances in the Children's Court and was on probation at the date of the offences; there was no explanation for these offences, the respondent not being psychiatrically disordered or of feeble intellect, with the possible exception of stress from his grandfather's illness and family discord. It had been common ground between the parties during the plea that a custodial sentence was appropriate, the only issue being whether it was to be served by detention in a youth training centre or otherwise. Mr McArdle argued that the judge's decision that a youth training centre detention would be appropriate had resulted from tailoring the penalties to accommodate the limitations on the possible length of a youth training centre order, which it was submitted had resulted in a distortion of the sentencing process. Unusual aspects of the sentence imposed were that there had been no order for cumulation, where some should have been expected, and the maximum sentence allowable for youth training had been imposed on both the counts of aggravated burglary and rape, which had prevented there being any possible accumulation in relation to these offences.
Accordingly Mr McArdle submitted that the judge had given too much weight to the option of youth training centre detention, this not being an appropriate response to the great seriousness of the offending. He emphasised that an aspect of this form of disposition is that no minimum term is fixed, and the court has no control of the time at which the offender may be released into the community by the Youth Parole Board.
Mr Zichy-Woinarski submitted that the Director in a case of this kind carries a particularly heavy onus. He put it that the sentencing judge had recognised and taken into account in sentencing all relevant matters both for and against the prisoner. In particular, each of the aggravating matters upon which Mr McArdle relied in this Court had been identified as relevant to the sentencing process by the judge and taken into account. Counsel submitted that the overall sentence imposed was not manifestly inadequate, rather, on the facts and circumstances before the Court, and having regard to the appropriate legal principles, the sentence was a proper one and could not be described as outside the range.
Counsel submitted that the judge had made it clear that one of the matters troubling her was, accepting that the respondent was to lose his liberty, where he was to be detained. The Crown had not submitted that an effective term of three years' loss of liberty was inappropriate in all the circumstances. Nor did it do so after the judge had clearly raised the question of detention in a youth training centre. The judge had correctly treated the respondent as a young offender and had had regard to the need for rehabilitation and the desirability of not placing a young offender in an adult prison. Her Honour had been satisfied that there was a reasonable chance of the respondent's rehabilitation.
Finally, counsel submitted that the judge had been entitled to order that the time "served" before sentencing was not to be deducted from the sentence of detention[1]. Reliance was placed on R. v. Hill[2] for the view that it may be appropriate to make a sentencing order of the type made by the judge in the present case.
[1]See Sentencing Act 1991 ss.35(1) and 18.
[2][1996] 2 V.R. 496 at 505.
The offences committed by the respondent were very serious indeed, a fact clearly accepted - indeed emphasised a number of times - by the sentencing judge, herself a very experienced criminal lawyer. I would accept Mr McArdle's categorisation of them as "very grave"; cf. R. v. Smith[3]. The seriousness of the offences is sufficiently demonstrated by the recitation of the facts previously given. They involved, as was submitted, not just a question of sexual gratification, but the subjection of the victim to an appalling ordeal, in which humiliation and degradation were plainly a part of the respondent's intent. Furthermore, a reading of the victim impact statement emphatically demonstrates the consequences of the respondent's actions and the impact upon the victim of his criminality. In any ordinary case these offences would have called for a much more substantial penalty and, inevitably, the subjection of the offender to a lengthy term of imprisonment in an adult gaol.
[3]Unreported, Court of Criminal Appeal, 14 September 1994 per Crockett and Teague, JJ.
This was, however, a most unusual case and it presented the judge with a very difficult sentencing problem. Her Honour was plainly alive to and indeed mentioned all the aggravating circumstances to which Mr McArdle referred and placed considerable emphasis on the importance both of deterrence and denunciation in constructing the sentence. On the other hand, the evidence on the plea included very full and helpful psychiatric assessments of the respondent. Dr Adler concluded his report by stating that -
"On the basis of this assessment it is respectfully recommended that Robert be referred to a sexual offender's treatment program for assessment and treatment during his period of detention. Such a program may be the only way to help Robert take full responsibility for his behaviour and its impact on his victim, thereby reducing the risk of a recurrence. His youth and social immaturity may make him quite vulnerable to abuse or exploitation in the adult prison system and he may require ongoing protection in this regard."
The pre-sentence report obtained by the judge, which was given by Mr David Baxter of the Department of Human Services, contained the following comments as to the respondent's suitability for detention in a youth training centre, which, although lengthy, should be set out in full -
"Robert's eligibility for assessment for YTC suitability has been considered under the provisions of section 32(1) of the Sentencing Act 1991. In spite of the fact that he has been subject to more than one supervised order in the juvenile jurisdiction, Robert remains in many ways vulnerable and naïve in his attitudes and behaviour. Robert's only experience with supervision has been in a community setting; he has never experienced a period in custody prior to his current remand. He is therefore likely to be negatively influenced by long exposure to adult offenders in custody. Robert is also quite young having just turned 18 and this also potentially adds to his vulnerability in an adult environment where he would be mixing with older more experienced offenders. Robert's present experience, where he has been deemed to need placement in a protective unit, indicates his vulnerability in the adult prison system. Robert has demonstrated that he can respond to supervision and, in spite of the fact that he has offended at the end of the most recent order, he has shown that he is generally responsive to supervision and willing to work in a positive way when he feels that he has support. This is an indication that he has reasonable prospects for rehabilitation as these offences are explored with him. Robert has also expressed remorse for his offending which is a further indication of his rehabilitative potential.
It is the writer's view that Robert requires a sex offender program which will effectively challenge him and address his offending behaviour. If he is placed in a Youth Training Centre involvement in the sex offender program would begin early in the period of incarceration. The writer believes that this would maximise Robert's prospects for rehabilitation. Astrid Birgden has informed the writer that if Robert remains within the adult system he would be placed in a sex offender program in the last twelve months of his sentence. This practice is used so that the program is fresh at the time of release on parole. This option is possibly not as effective for a younger person like Robert who would be more likely to benefit from commencing to address his sex offending issues at the earliest opportunity. Another significant disadvantage of the adult sex offender programs is that the average age of participants is likely to be 40+ according to Ms Birgden. Robert's current experience at Port Phillip, as outlined above, tends to reinforce the notion that he lacks the maturity and practical commonsense to cope effectively in an adult environment and this may hinder his prospects for rehabilitation.
Given that the assessment criteria for suitability for a sentence to a Youth Training Centre must take account of the offender's age, vulnerability, impressionability and prospects for rehabilitation, Robert is considered suitable for a Youth Training Centre sentence if the Court wishes to use this as part of the sentencing option available to it. If a sentence longer than three years is to be considered Robert can continue to participate in an adult sex offender program at a later stage of his incarceration."
The judge therefore had evidence, obviously accepted by her Honour, that detention in a youth training centre would maximise the respondent's prospects for rehabilitation, and that, on the other hand, incarceration in an adult prison would be likely to influence him negatively by exposure to adult offenders in custody. The evidence before the judge accordingly was that incarceration in an adult prison, for an offender who remained "vulnerable and naïve in his attitudes and behaviour" would positively retard his prospects of rehabilitation. In these circumstances the judge said -
"I am on balance satisfied that your chances of rehabilitation are reasonable; not good, not great, but reasonable. In fixing an appropriate sentence as a young offender, I must seek to maximise such chances of your rehabilitation as there may be. I do that not only because the law requires me to, but I do it because it is my view that if you do not receive an appropriate and useful form of sex offender's program you may continue to be a danger to women in our society. I do not wish to lock you up and release at the end of that time, a still dangerous offender. The program run for sex offenders for those in youth training centres is, in my view, one of the best treatment programs available at the current time. Such treatment is not only for your benefit but for the overall benefit of members of this community, particularly the women of our community."
The judge continued a little later -
"This has been a very difficult sentencing task. There are a number of matters I have to take into account and must consider. They include your prospects of rehabilitation, general deterrence, specific deterrence and the protection of members of the community. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. As you are aware, I have sought and obtained a pre-sentence report in your case. I have done so with a view to making you a Youth Training Centre order under s.32 of the Sentencing Act. I am satisfied that imprisonment in an adult prison is inappropriate in your case and that there are reasonable prospects for rehabilitation."
One does not need to cite authority for the view that the judge was right to seek to maximise the chances of rehabilitation of a young offender such as the respondent[4]. In arriving at the sentence imposed the judge may well have been influenced by R. v. Hill[5]. In that case an offender, 15 years old at the time, had been convicted of manslaughter. The offender had killed the deceased by striking him on the head a number of times with a beer bottle while both were intoxicated. The sentencing judge took the view that a period of three years' detention was substantially less than the nature and gravity of the offence required, and declined to make a youth training centre order, sentencing the offender to five years' imprisonment with a non-parole period of three years. The Court of Appeal allowed the appeal. The Court considered that an appropriate sentence was four years, but the offender could not be detained in a youth training centre for more than three years. Bearing in mind what was thought to be overwhelming evidence that the environment in an adult prison would be harmful to the offender, the Court held that it was appropriate to sentence him to three years' detention in a youth training centre, making no allowance for the 12 months' detention he had already served. The Court concluded[6] that if this was to be considered a "device" to circumvent the clear intention of Parliament that the period of detention in a youth training centre not exceed three years, it was none the less legitimate.
[4]See R. v. Misokka, unreported, Court of Appeal, 9 November 1995 per Vincent, A.J.A. at page 7 and the general propositions accepted by Batt, J.A. in R. v. Mills [1998] 4 V.R. 235 at 241, in a passage which has been frequently cited. But it must be remembered, as Batt, J.A. himself observed in R. v. Giles [1999] VSCA 208 and R. v. Bell [1999] VSCA 223 that these are general propositions not of universal application and each case depends on its own circumstances.
[5][1996] 2 V.R. 496.
[6]At 505.
The judge, as I have said, had accepted evidence that the respondent had reasonable prospects of rehabilitation, that imprisonment in an adult gaol was inappropriate and would be likely to damage those prospects; and, on the other hand, that detention in a youth training centre would maximise his chances of rehabilitation. Furthermore during the plea the respondent's counsel vigorously submitted to the judge that detention in a youth training centre was the proper option which required the judge to impose a term of detention of not more than three years. Although the prosecutor had submitted in opening that an immediate custodial sentence in an adult prison was appropriate, he did not in reply submit that an effective term of three years' loss of liberty was inappropriate in all the circumstances.
When a prosecutor is on notice that a sentencing court is giving serious consideration to the imposition of a non-custodial sentence in circumstances where the appropriate prosecuting authority would regard as inappropriate anything less than a sentence of immediate imprisonment, the consequence of a failure of the Crown to say so to the judge will, generally speaking, be that an appeal by the Crown against sentence should fail: R. v. Wilton[7]; Everett v. R[8].; D.P.P. v. Bulfin[9]. In R. v. Warfield[10], Hunt, C.J. at C.L. expressed the hope that the Crown's task in sentencing should include placing before the court any relevant information relating to the appropriate range of penalty.
[7](1981) 28 S.A.S.R. 362 at 367-368.
[8](1994) 181 C.L.R. 295 per Brennan, Deane, Dawson and Gaudron, JJ. at 303, McHugh, J. at 307.
[9][1998] 4 V.R. 114 at 133-135.
[10](1994) 34 N.S.W.L.R. 200 at 212.
In the present case the prosecutor had informed the judge that the Crown's position was that "an immediate custodial sentence in an adult prison was appropriate", but neither in opening nor in closing was it submitted that a sentence of three years would be regarded as manifestly inadequate, notwithstanding that it was made perfectly clear that the imposition of such a term was being anxiously considered by her Honour.
In all the circumstances I would not, in this case, hold that the Director should not be permitted to submit manifest inadequacy. But it is, I think, a factor which increases the difficulty faced by the appellant since the prosecutor's failure to respond to the relevant submissions of the respondent's counsel may well have contributed to the judge's decision, by leaving her Honour (not to mention the respondent and his counsel) under the impression that the Crown did not take the view that a sentence of three years, if to be served (subject to any period of parole) in an adult gaol, was below the appropriate range.
In all these circumstances the judge's decision may well seem lenient in the extreme. After considerable hesitation I cannot say that her Honour failed to give sufficient weight to aggravating circumstances, or gave too much weight to mitigatory factors. The judge's reasons were lengthy and very carefully considered. Mr McArdle was unable to point to any error in those reasons, his case, in effect, being limited to whether the sentence was manifestly inadequate. This was, as I have said, a most unusual case. The sentence was unquestionably at the very lowest point of the permissible range. But I am unable to conclude that the judge's sentencing discretion miscarried.
I would accordingly dismiss the appeal.
CHERNOV, J.A.:
I have found this a troubling case, given the terrible circumstances of the offending against a lone, mature woman in her own home, by the relatively youthful offender, and given the seemingly low sentence that was imposed on him.
It seems clear enough that the sentencing judge had, correctly, I think, uppermost in her mind for sentencing purposes the rehabilitation of the respondent in the interests of the community. The judge tailored the sentence and made the order that the respondent be detained in a youth training centre because she considered that, in the circumstances, this was the best way to maximise the respondent's rehabilitatory prospects, which her Honour considered to be reasonable. It was not suggested by the appellant that her Honour erred in concluding that the respondent had reasonable prospects of rehabilitation. Mr McArdle submitted, however, that what her Honour did amounted to an impermissible shrinking of the sentence in order to meet the end she had sought to be achieved and that had led to a sentence which is manifestly inadequate. There is much force in the arguments counsel presented, but, for the reasons given by Charles, J.A., I consider that her Honour's carefully exercised sentencing discretion did not miscarry and, therefore, the appeal should be dismissed.
PHILLIPS, C.J.:
In this matter I have come to a conclusion different from the other members of the Court. As the respondent stood for sentence, the learned judge, addressing him, said this:
" These crimes arise out of an horrific incident in which, while staying at your grandparents to assist your grandmother with the care of your terminally ill grandfather, you attacked their next-door neighbour. You had, some time during the day of 8 February 2001, gone to the house of your neighbour, a 58 year old woman living alone, and sought permission to collect fruit from a tree that hung over the fence
and you were given that permission. Some eight hours later you broke into her house using bolt cutters and a large screwdriver. You took a good deal of care in respect of that. You cut the power to her house. You also cut the gas and telephone lines. You were wearing gloves and you took with you items to use to tie her up. You had a torch with you which you used sparingly.
You tied this woman up. You threatened you would not hurt her if she did not yell and then over a period of quite some time, you subjected her - this woman - to oral, digital and vaginal rape. What you have done to this person can never be undone. You have violated her feelings of security in her own home. You have left her with feelings of helplessness, humiliation, insecurity and countless other traumas that only time and love and affection from those she holds dear, may partly erase.
Nothing will ever erase for her the memory of the ordeal that you have put her through that night. In very simple terms, you have shattered the world of this innocent woman and there is very little that can be done to restore it."
In order to identify the whole of the circumstances connected with the respondent's conduct so described and its consequences, there must be added the maximum penalties which were, variously, 25 years, 10 years and 5 years' imprisonment, together with the matters of the respondent's youth, his admissions to the police, his pleas of guilty and their timing (indicating remorse), his emotionally deprived background with learning difficulty, and the other matters personal to him as disclosed upon the plea, including his prospects of rehabilitation. Performing that exercise, I am obliged to say that I am unable to equate those circumstances with the sentence actually imposed.
Accordingly, in my view, her Honour's sentencing discretion has in some way miscarried to produce what I consider is a manifestly inadequate sentence. In my opinion, the appropriate sentence was a total effective sentence of imprisonment with a non-parole period which reflected the youth and other personal circumstances of the respondent.
These offences had a number of aggravating circumstances. Planning was present. Asked by the police the question: "Did you know if the lady lived there alone?", the respondent replied: "Well, I've only ever seen her come and go, I haven't seen anyone else, so ... ." The victim was attacked at night in her own bed. The rapes, threat and false imprisonment constituted a persistent and barbarous course of conduct over quite some time. The consequences to the victim were, in a word, dreadful. The respondent, who had no psychological disorder, was by no means a person of good character. He had previously had findings of guilt made against him for 17 crimes. Indeed he was on probation for a number of them when he committed the instant offences.
I would allow this appeal.
The order of the Court is that the appeal of the Director of Public Prosecutions for Victoria stands dismissed.
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