Director of Public Prosecutions v Ristic

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0137

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
GARY ALLAN RISTIC	Respondent

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JUDGES:	BEACH, KENNEDY and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2024
DATE OF JUDGMENT:	29 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 251
JUDGMENT APPEALED FROM:	DPP v Ristic (Unreported, County Court of Victoria, 2 July 2024, Judge Higham)

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CRIMINAL LAW – Sentence – Crown appeal – Multiple charges of aggravated burglary, attempted aggravated burglary, attempted burglary and theft – Sentenced to Drug and Alcohol Treatment Order (DATO) with a custodial part of 4 years’ imprisonment – Whether sentence manifestly inadequate – Whether prosecution conceded that imposition of DATO was open to sentencing judge – Whether prosecution contested availability of DATO – Sentence manifestly inadequate – Whether residual discretion to dismiss appeal should be exercised – Prosecutor did contest that imposition of DATO was open – Residual discretion exercised – Appeal dismissed.

Sentencing Act 1991, ss 18X, 18Z, 18ZC, 18ZD.

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Counsel
Applicant:		Mr BF Kissane KC with Mr E Fryar
Respondent:		Mr C Mandy SC with Ms S Locke
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	Slades & Parsons

BEACH JA
KENNEDY JA
BOYCE JA:

On 15 April 2024, the respondent pleaded guilty in the County Court to six charges of aggravated burglary (contrary to s 77 of the Crimes Act 1958); three charges of attempted aggravated burglary (contrary to ss 77 and 321M of the Crimes Act); one charge of attempted burglary (contrary to ss 76 and 321M of the Crimes Act); six charges of theft (contrary to s 74(1) of the Crimes Act); one charge of being a prohibited person possessing an imitation firearm (contrary to s 5AB(2) of the Control of Weapons Act 1990);[1] and one charge of possessing a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981).
[1]This was a rolled-up charge, encompassing the respondent’s possession of two imitation firearms.
On 2 July 2024, the respondent was sentenced[2] as follows:
[2]DPP v Ristic (Unreported, County Court of Victoria, 2 July 2024, Judge Higham) (‘Reasons’).

Charge	Offence	Maximum	Sentence	Cumulation
1	Attempted burglary	5 years	1 year	1 month
2	Aggravated burglary	25 years	1 year and 8 months	2 months
3	Theft	10 years	4 months	1 month
4	Attempted aggravated burglary	20 years	1 year and 5 months	1 month
5	Theft	10 years	5 months	1 month
6	Aggravated burglary	25 years	1 year and 11 months	2 months
7	Theft	10 years	5 months	1 month
8	Aggravated burglary	25 years	2 years and 2 months	Base
9	Theft	10 years	6 months	1 month
10	Aggravated burglary	25 years	2 years and 1 month	2 months
11	Theft	10 years	6 months	1 month
12	Aggravated burglary	25 years	1 year and 11 months	2 months
13	Theft	10 years	7 months	2 months
14	Aggravated burglary	25 years	1 year and 9 months	2 months
15	Attempted aggravated burglary	20 years	1 year and 6 months	1 month
16	Attempted aggravated burglary	20 years	1 year and 6 months	1 month
17	Prohibited person possess imitation firearm	10 years	5 months	1 month
18	Possess drug of dependence	1 year	Convicted and discharged	N/A
Total Effective Sentence:		4 years Drug and Alcohol Treatment Order for 4 years
Non-Parole Period:		N/A
Pre-Sentence Detention declaration:		834 days
Section 6AAA statement:		6 years with a non-parole period of 4 years and 4 months

On 30 July 2024, the Director of Public Prosecutions (‘the Director’ or ‘the appellant’) filed a notice of appeal against the sentence imposed by the judge. The Director’s single ground of appeal is that the individual sentences imposed on charges 1 to 16, the orders for cumulation and the total effective sentence are manifestly inadequate.

Circumstances of the offending

The offending constituting charges 1 to 16 occurred on 10 occasions between August 2021 and February 2022. In short compass:
(1)On 28 August 2021 at approximately 3:00 am, the respondent triggered a security camera at the front door of a Hawthorn East residence (charge 1). The respondent was wearing a black balaclava with mouth and eye holes cut out, and other dark clothes. He wore substantially similar clothing on the subsequent occasions.
(2)Between 11:30 pm on 4 September 2021 and 6:30 am on 5 September 2021, the respondent entered a residence in Balwyn. The victims were asleep in the residence at the time and did not wake up (charge 2). The respondent stole items including a leather wallet containing a personal document, a laptop and bag with miscellaneous items, and an Oroton brand handbag (charge 3).
(3)On 7 September 2021 at approximately 4:30 am, the respondent attempted to enter a Canterbury residence while the occupants were asleep inside. He unsuccessfully attempted to open a locked sliding door and the locked back door (charge 4). The respondent then accessed a shed in the back garden, where he stole a black bicycle valued at $2,700 (charge 5).

(4)On 7 September 2021 between 5:09 am and 6:30 am, the respondent entered a Canterbury residence while the occupants were asleep. The respondent entered through the front door, seemingly without using force (charge 6). The respondent stole a handbag containing personal items and documents, a camera, a Dyson fan and an iPhone 7 (charge 7). The respondent was in the property for over an hour. He returned a short time later with a car and placed the stolen items in the car before leaving.
(5)On 1 October 2021, at approximately 3:00 am, the respondent entered a Balwyn North residence. The residents were asleep at the time and did not wake up (charge 8). The respondent entered the property through a rear unlocked door and re-entered on three occasions. On one of these occasions, the respondent was observed, on CCTV footage, walking around with a large kitchen knife. He stole an Apple MacBook computer valued at $3,000 (charge 9).
(6)Between 3:45 am and 4:55 am on 16 October 2021, the respondent entered a Balwyn residence while the victims were asleep (charge 10). He accessed the property by damaging a lock to the back door. While moving around the house, the respondent was carrying a large knife. The respondent stole items including a Chanel purse valued at $2,000, a remote control and a laptop (charge 11).
(7)On 22 December 2021, at 4:00 am, the respondent entered a unit in Brighton while the residents were asleep (Charge 12). The respondent stole items including an Apple laptop, Apple iPad, various Apple products and two Bose speakers (charge 13).
(8)On 5 January 2022, at 2:30 am, the respondent entered a Kew residence while the residents were asleep. The respondent unsuccessfully attempted to open a door to the kitchen, before he manipulated and eventually opened a back door (charge 14). Once the respondent was inside, a dog began barking, which awoke the victim, who armed themselves with a hockey stick. The respondent left the property.
(9)On 11 January 2022 at 3:30 am, the respondent attempted to enter a house in Balwyn, in which the occupants were asleep.[3] The respondent climbed over the locked front fence. He attempted to open an internal side gate, which was locked and could not be climbed over. He then walked to the front porch and tried the front door handle (charge 15). The respondent then left the premises.
(10)On 12 February 2022 at approximately 3:15 am, the respondent attempted to enter a Brighton residence while the victim was asleep inside. He attempted to open a sliding door on the north side of the property, and then unsuccessfully attempted to enter through another door before leaving (charge 16). CCTV footage captured the respondent walking around the yard carrying a large kitchen knife.
[3]While the summary of prosecution opening did not make any reference to the occupants, a footnote in it referred to a statement of the homeowner, who also filed a victim impact statement (Exhibit 2) that disclosed the presence of people in the home at the time of the applicant’s attempt. See also Reasons [59].

On 22 February 2022, the respondent was arrested. Inside his caravan, among many of the stolen items, were a gel blaster imitation firearm in the style of an AK47 and an imitation handgun (Charge 17), as well as a small bag containing methylamphetamine (Charge 18). As we have already noted, however, the Director makes no complaint about the sentences imposed by the judge in relation to these two charges.

Significant issues in this appeal

As the written cases filed in this Court by the parties disclose, there are two significant issues in this appeal:
(1)whether it was appropriate for the judge in all the circumstances to make a Drug and Alcohol Treatment Order (‘DATO’); and
(2)whether there was any concession in the County Court (prior to sentencing) on the part of the prosecution that a DATO was a sentencing disposition that was open to the judge.
Before proceeding to the substance of the judge’s reasons for sentence, and the parties’ submissions in this Court, it is necessary to describe the circumstances in which a DATO can be imposed, and the proceeding in the County Court prior to the delivery of the judge’s reasons for sentence.

Drug and Alcohol Treatment Orders (DATOs)

The statutory provisions governing DATOs are to be found in Sub-division (1A) of Division 2 of Part 3 of the Sentencing Act 1991, namely, ss 18X to 18ZT of that Act.
Section 18Y of the Sentencing Act provides that only a Drug Court may make a DATO. ‘Drug Court’ is relevantly defined in s 3(1) of the Act to mean, in this case, ‘the Drug Court Division of the County Court’.
Section 18ZC(1) provides that a DATO consists of two parts: ‘the treatment and supervision part’; and ‘the custodial part’. Section 18ZC(3) provides that the custodial part of a DATO ‘consists of the sentence of imprisonment that the Drug Court must impose on the offender under section 18ZD’. Section 18ZD provides that a County Court Drug Court must impose a sentence of imprisonment of no more than four years. The sentence must be the sentence of imprisonment that the Drug Court would have imposed if it had not made a DATO; and, despite anything to the contrary in s 11 of the Sentencing Act, the Drug Court must not fix a non-parole period as part of the sentence it imposes.
Section 18Z of the Sentencing Act sets out the circumstances which must exist before a Drug Court may make a DATO. Relevantly for present purposes, those circumstances include:
(1)the Drug Court is satisfied on the balance of probabilities that the offender is dependent on drugs or alcohol, and the offender’s dependency contributed to the commission of the offence;[4] and
(2)the Drug Court considers that, otherwise, it would be appropriate to impose (if the proceeding is in the County Court) a sentence of imprisonment of no more than four years;[5] and
(3)the Drug Court has received a DATO assessment report on the offender under s 18ZQ.[6]
[4]Sentencing Act, s 18Z(1)(c)(i) and (ii).
[5]Sentencing Act, s 18Z(1)(d)(ii).
[6]Sentencing Act, s 18Z(1)(e).
Finally, s 18X sets out the purposes of a DATO and matters to be considered by a Drug Court when considering making a DATO. Specifically, s 18X provides:
(1)The particular purposes of a drug and alcohol treatment order are—
(a)to facilitate the rehabilitation of the offender by providing a judicially-supervised, therapeutically-oriented, integrated drug or alcohol treatment and supervision regime;
(b)to take account of an offender’s drug or alcohol dependency;
(c)to reduce the level of criminal activity associated with drug or alcohol dependency;
(d)to reduce the offender’s health risks associated with drug or alcohol dependency.
(2)Nothing in subsection (1) affects the operation of section 5(1) but, if considering making a drug and alcohol treatment order, the Drug Court must regard the rehabilitation of the offender and the protection of the community from the offender (achieved through the offender’s rehabilitation) as having greater importance than the other purposes set out in section 5(1).

Proceedings in the County Court

During 2022, there were discussions between the parties about the prospect of the respondent’s charges being settled by way of a plea of guilty. Following a case conference hearing in the County Court on 8 March 2023, the respondent made an updated offer to plead guilty. On 14 March 2023, this offer was accepted by the prosecution in an email (‘the 14 March 2023 prosecution email’) sent by a Managing Principal Solicitor of the OPP. The 14 March 2023 prosecution email provided:
I confirm that the prosecution is prepared to resolve Mr Ristic’s matter in line with your offer … and that we would not oppose an application to the Drug Court.
On 15 March 2023, at a mention in the County Court, the respondent applied for his matter to be adjourned for a Drug Court assessment. A further mention of the respondent’s matter was adjourned on 15 September 2023 ‘to allow for materials to be obtained’.[7] The matter returned to the Drug Court on 25 January 2024, and there were further hearings of the matter in the Drug Court on 2 February and 7 March 2024.
[7]Summary of Prosecution Opening for Plea (‘the prosecution opening’) dated 8 April 2024.
At the hearing on 2 February 2024, the following exchange occurred between the judge and the prosecutor:
HIS HONOUR: I was just looking while I was waiting at Mr Ristic’s Criminal History. He’s had some significant, significant sentences … Would the prosecution be saying now that a 4-year sentence would be manifestly inadequate, or does the prosecution want to keep its, preserve its, position at this stage?
[PROSECUTOR]: The latter Your Honour. I think that this matter has potential for Drug Court. However, the priors were the biggest concern of the office.
Shortly following this exchange, there was an exchange between the judge and defence counsel, during which the judge noted that a DATO had ‘not been tried’ but that ‘a difficulty may very well be the court’s sentencing powers’. This was followed by the judge addressing the respondent, saying that a matter of particular concern was whether the court’s sentencing powers were sufficient.
On 1 March 2024, the prosecution completed a document headed ‘Prosecution Response to Drug and Alcohol Treatment Court (DATC) Referral’ (‘the prosecution response to DATC referral’). In that document, the prosecution answered a number of questions. The critical question for present purposes was question five:
At this preliminary stage, does the prosecution raise as a live issue that a sentence of four years or less for the offence(s) could be manifestly inadequate?
The prosecution answered this question, ‘Yes’.
On or about 6 March 2024, the respondent filed and served a document headed ‘Defence Outline of Submissions for Directions Hearing’ (‘the defence written submissions’). That document included paragraph 24 as follows:
Following the Case Conference Hearing on 8 March 2023, the defence made a revised defence offer, which was accepted by the prosecution on 14 March 2023. The offer included a concession from the prosecution that they would not oppose Mr Ristic’s application to Drug Court.[8]
[8]Emphasis added.
At the hearing on 7 March 2024, there was further discussion between the judge, defence counsel and the prosecutor about the need for the judge to be satisfied that a sentence of imprisonment of four years or less was appropriate. In the course of that discussion, the prosecutor said:

We do submit that the 4-year limitation period is a live issue, but happy to concede at this stage perhaps not insurmountable.

On or about 11 April 2024, the prosecution filed and served a document headed ‘Prosecution Submissions on Determination and Sentence’ (‘the prosecution written submissions’). The prosecution written submissions summarised the prosecution’s position on the sentence as follows:
The prosecution submits that a term of imprisonment is within range in the current matter.
The prosecution accepts the Accused is prima facie eligible for his term of imprisonment to be served by imposed (sic) a Drug and Alcohol Treatment Order (DATO) under s 18Z of the Sentencing Act 1991 (Sentencing Act). However, in order to sentence the Accused to a DATO, the Court must be satisfied that it would otherwise have imposed a sentence not exceeding four years imprisonment.
The prosecution submits that the Court may find that, having regard to the nature and seriousness of the current offending in combination with the Accused’s criminal history, it is not open to impose a DATO in this matter.
In respect of the respondent’s guilty plea, the prosecution written submissions provided:
It is submitted on the accused’s behalf that he had indicated a serious intention to plead guilty as early as 22 June 2022. It is accepted that the ultimate resolution on 14 March 2023 resembles the original offer, although the ultimate resolution includes an additional four charges of aggravated burglary and an additional two charges overall.
It is further accepted that, due to this timeline, it is open to the Court to afford additional value to the plea of guilty on the basis of the Court of Appeal’s decision in Worboyes.[9]
[9]Worboyes v The Queen [2021] VSCA 169, [39] (‘Worboyes’).
Under the heading, ‘Eligibility’, the prosecution written submissions dealt with the relevant parts of s 18Z of the Sentencing Act, before concluding with a submission that ‘The Court should find that it cannot be satisfied that it would have otherwise imposed a sentence of not exceeding four years’.

The determination hearing

On 15 April 2024, a ‘DATC[10] — Determination Hearing’ (‘the determination hearing’) was conducted in the Drug Court. During the determination hearing, 12 exhibits were tendered: seven by the prosecution and five by the respondent. Specifically, the prosecution tendered the prosecution opening; two victim impact statements; a DATC Case Management Assessment Report completed by Santi Griffin-Achmad, a senior case manager; a DATC Clinical Advisor Assessment Report completed by Terry Sequeira, a clinical advisor; a DATC Koori Advisory Officer Report completed by Shirley Annesley, a DATC Koori Advisory Officer; and the prosecution written submissions. The respondent tendered a psychological report from Laura Fleming, a forensic psychologist; two urine screens; a letter written by the respondent to the sentencing judge;[11] a Kangan Institute certificate, ‘Certificate III in Civil Construction’; and the defence written submissions.
[10]Drug and Alcohol Treatment Court.
[11]Exhibit 12GR.
After the respondent was arraigned and pleaded guilty, the prosecutor (described in the appellant’s written case in this Court as ‘the solicitor advocate appearing on behalf of the Director’) read the prosecution opening and tendered the prosecution exhibits, including the prosecution written submissions.
Defence counsel commenced her submissions to the judge by tendering the respondent’s exhibits. During the course of defence counsel’s submissions, the judge raised paragraph 24 of the defence written submissions and said that he was ‘going to hear from the prosecution’ about the prosecution’s alleged concession that ‘they would not oppose [the respondent’s] application to Drug Court’.
A little later in the plea, defence counsel referred to an email from the solicitor who had the conduct of the matter on behalf of the prosecution (as it turns out, while the email was not provided to the judge, this was a reference to the 14 March 2023 prosecution email). The judge then said he would ask the prosecutor ‘how the prosecution understands [the Drug Court] concession’. There was then the following exchange between the prosecutor and the judge:
[PROSECUTOR]: Your Honour, I don’t propose to go too far into the discussions between parties. It’s an unusual issue to be - - -
HIS HONOUR: No. I’m always uncomfortable.
[PROSECUTOR]: Thank you. Yes. But given that the door … has been open to an extent, what I should say is, in relation to the way that it’s put, that the prosecution has conceded that Mr Ristic could go onto a drug and alcohol treatment order. I’ve sourced that email,[12] it says no application to Drug Court will be opposed. I think that has to be understood in the context of subject to whether or not the court finds them eligible. In terms of the summary jurisdiction application point, and that offer … to resolve that was put on the day at the committal, I don’t have (indistinct) anything my friend has said. We don’t shy away from the fact that, on reflection, I have to concede that that offer was not a legally appropriate one to be put and that that caused a delay in the proceedings. I don’t shy away from that. Your Honour will have seen from my submissions at paragraphs 12 and 13 effectively conceding the value of the guilty plea … and the application of Worboyes. Hopefully that might be enough to - - -
[12]The 14 March 2023 prosecution email.
HIS HONOUR: ‘Tis - - -
[PROSECUTOR]: - - - put the issue to rest without us litigating the inter partes correspondence too much.
HIS HONOUR: I don’t want to go there.
[PROSECUTOR]: No. No. But the prosecution … is making those concessions about the value of the guilty plea.
HIS HONOUR: Yes. I just want to be clear.
[PROSECUTOR]: And, in relation to conceding that summary jurisdiction would not be opposed, that wasn’t the context of the offer to a single rolled up - - -
HIS HONOUR: That doesn’t trouble me.
[PROSECUTOR]: Yes.
HIS HONOUR: That doesn’t trouble me.
[PROSECUTOR]: Yes. Does Your Honour require any further assistance without - - -
HIS HONOUR: No.
[PROSECUTOR]: Thank you.[13]
[13]Emphasis added.

After this exchange, defence counsel continued with her plea, before the matter was adjourned part-heard to 17 April 2024.
At the commencement of the hearing on 17 April 2024, the judge asked the prosecutor whether he wished to be heard on the terms upon which the matter had been resolved by the parties. The prosecutor replied:
I didn’t have anything further to submit on that point, Your Honour. I think whatever else might be said about the history of the matter, the point really is Your Honour’s consideration of the relevance of delay and what can be made of the guilty plea, but on that point, I don’t seek to cavil with anything my learned friend has submitted.
A little later, in response to the judge asking him whether there was anything else the prosecutor wanted to address him on, the prosecutor said, ‘There are submissions I wish to make, Your Honour’. Defence counsel then concluded her submissions and, despite what the prosecutor had foreshadowed, the prosecutor made no further submissions of substance to the judge.
At the conclusion of the hearing on 17 April 2024, the judge said to the respondent that he would formally remand him until 15 May 2024, when ‘we will discuss whether you are released – not on that date but on a later date into the custody of someone from the residential rehab facility’.
After the determination hearing and before sentencing
As it transpired, on 5 June 2024 (prior to sentencing) the judge (without it seems any objection from the prosecution) made an order for the respondent to be released on bail, into the custody of ‘a designated T24 Fellowship (Prison Fellowship Australia) Worker’ prior to 8:00 am on 6 June 2024 to go directly to Odyssey House to live and sleep there, pending sentence. That order was complied with and, as we have already said, the judge subsequently sentenced the respondent on 2 July 2024.

Reasons for sentence

The judge commenced his reasons for sentence by summarising the respondent’s offending.[14] The judge noted that the respondent was arrested and charged on 22 February 2022, before being remanded into custody until 6 June 2024 when he was admitted to Odyssey House.[15] Observing that ‘resolution discussions had begun long before the eventual resolution of the matter’, the judge treated the respondent’s plea as an early plea of guilty.[16]
[14]Reasons, [1]–[25].
[15]Ibid [26].
[16]Ibid [27].
In summarising the respondent’s personal circumstances, the judge noted the following matters:
(1)The respondent was an only child, from a broken home. He was 52 and 53 at the time of the offending, and 55 at the time of sentencing. Although he had no recollection of his father being part of his life, the respondent ‘now expressed an interest in [his] paternal Aboriginal heritage’.[17]
(2)After the respondent’s mother re-partnered, conflict at home led the respondent to move to Queensland at the age of 13 and live with his maternal grandmother.[18]
(3)The respondent’s mother ‘struggles with her health’. When the respondent is in the community, he is her main support. Moreover, the respondent’s mother is, in the words of the judge, ‘a motivation for [his] application to the Drug Court’.[19]
(4)The respondent left school in Year 11 and began an apprenticeship in carpentry, which he did not complete ‘due to entering the criminal justice system’. When in the community, he has obtained some qualifications in engineering and engaged in casual work in that industry, in between periods of custody.[20]
(5)The respondent has a daughter, but has also been a respondent in numerous family violence intervention orders over the years.[21]
(6)In 2017, the respondent badly injured his leg in an accident, requiring rods to be inserted and causing him ongoing pain. At the time of sentencing, he was being treated with methadone for pain relief, and his plan was to remain on such medication into the future.[22]
(7)The respondent was introduced to amphetamines in his late teens and became an intravenous user. He started using methamphetamine in his mid-30s. While he has used benzodiazepines, heroin and cannabis, he identified methamphetamine as his ‘primary drug of concern’.[23]
(8)The respondent’s motivation for the offending for which he fell to be sentenced was ‘financial’, spending money he obtained on methamphetamine and food.[24]
(9)In the words of the judge, the respondent has a ‘significant and highly relevant criminal history which reflects [his] life-long drug use and criminal offending’. In 1990, for offences of burglary, he received a term of imprisonment of 3 years. In 1997, for aggravated burglaries and burglaries, he received a sentence of 5 years and 6 months. In 2007, for aggravated burglaries, burglaries and theft, he received a sentence of 7 years and 4 months. Since that time, he has returned to court ‘on numerous occasions for more dishonesty and driving and drug offences and received further custodial terms and community based orders’.[25]
[17]Ibid [32]–[33].
[18]Ibid [34].
[19]Ibid [35].
[20]Ibid [36].
[21]Ibid [37].
[22]Ibid [38].
[23]Ibid [39].
[24]Ibid [42].
[25]Ibid [43]–[44].
In summarising the reports tendered on the plea, the judge noted:
(1)Ms Fleming’s opinion that the respondent presented as a ‘significant clinical risk of violent criminal offending’,[26] as well as her recommendation that he be placed in a residential rehabilitation facility with specialised interventions.[27]
(2)Mr Sequeira’s opinion that the respondent would benefit from residential rehabilitation.[28]
(3)Ms Griffin-Achmad’s opinion that the respondent’s chronic recidivism and entrenchment in the criminal justice system is ‘likely to continue without intensive intervention’,[29] and her recommendation (albeit with reservations) that the respondent was suitable for a DATO.[30]
[26]Ibid [47].
[27]Ibid [48].
[28]Ibid [49]–[50].
[29]Ibid [55].
[30]Ibid [56].
The judge then described the purposes of a DATO: first, to facilitate the rehabilitation of an offender ‘by providing a judicially supervised, therapeutically oriented integrated drug and alcohol treatment and supervision regime’; secondly, to take account of the offender’s drug or alcohol dependency; thirdly to reduce the level of criminal activity associated with drug or alcohol dependency; and fourthly, to reduce the offender’s health risks associated with drug or alcohol dependency.[31] The judge then said:
[Counsel] on your behalf, submitted that such a disposition was an appropriate disposition in your circumstances in the circumstances of this offending. [The prosecutor], on behalf of the Director, conceded that it was open to the court to adopt such a course, but submitted that the court may decline to make such an order having regard to nature and seriousness of the current offending, your lengthy criminal history, your past relapses back into drug use and offending when released back into the community, and your lack of prosocial supports.[32]
[31]Ibid [57].
[32]Ibid [58].
In the course of discussing the seriousness of the respondent’s offending,[33] the judge concluded that the offending was not spontaneous: the respondent being ‘appropriately disguised’ (balaclava and gloves), and the premises not being chosen at random (each having a degree of privacy, enabling the respondent’s activity to be hidden from the view of neighbours).[34] The judge said that, concerningly, on three occasions (charges 8, 10 and 16), the respondent was in possession of a large kitchen knife.[35] The judge described the respondent’s moral culpability for his offending as ‘high’, and aggravated by the fact that all of it was committed while he was subject to a community correction order.[36]
[33]Ibid [59]–[65].
[34]Ibid [62].
[35]Ibid [64].
[36]Ibid [65].
After referring to relevant sentencing principles (including general deterrence, specific deterrence, protection of the community, denunciation, current sentencing practices, statutory maximum penalties, rehabilitation and parsimony), the judge noted that, if the Court was considering making a DATO, then the respondent’s rehabilitation and the protection of the community, to be achieved through his rehabilitation, had greater importance than other sentencing purposes.[37]
[37]Ibid [66]–[68]. See s 18X(2) of the Sentencing Act.
The judge then concluded his reasons for sentence by saying:
On all the material in front of me I am satisfied on the balance of probabilities that you have a polysubstance dependency, but primarily methamphetamine, that your dependency contributed to the commission of the offending in front of me, that otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years, and that you are not charged with offending or nor are you subject to any order that would make you ineligible for a Drug and Alcohol Treatment Order. And, finally, that it is appropriate in all the circumstances to make such an order.
In so finding I have regard to your plea of guilty which has the utilitarian benefit of saving the community the time and the costs of a trial, and which indicates, I accept, a willingness to facilitate the course of justice. I also have regard to your lengthy period of remand and to your express determination to try and live a life free from drugs and offending and your reaching out for assistance in achieving that goal.
I give what weight is appropriate under the principles of enunciating Worboyes, having regard to the time of the indication of your plea of guilty. I have regard to your developing insight to the recognition of the revolving door of your life, as you wrote in Exhibit 12GR. Certain it is that custodial sentences have not deterred you, nor have they assisted you, it seems to me, in breaking free from the drugs that have dominated and determined your life for so long.
You told Mr Sequeira … that, ‘Speed and ice have ruined my life’. And when you look back over the past two decades you have lacked stability due to multiple custodial terms. You express your primary motivation as being to support your ageing mother.
The community presents too great a risk at this time; you need a long episode of residential rehabilitation to enable you to prepare for life in the community and to acquire some skills and strategies. However, with that now in place, I am prepared to give you the opportunity that a Drug and Alcohol Treatment Order represents.[38]
[38]Reasons [69]–[73].

Parties’ submissions

The appellant submitted that, having regard to the maximum penalties for the offences of aggravated burglary and attempted aggravated burglary, the objective seriousness of the offending, current sentencing practices, the need for denunciation and general deterrence, the particular need for specific deterrence and community protection, the individual sentences imposed on charges 1 to 16, the orders for cumulation and the total effective sentence of 4 years’ imprisonment were all manifestly inadequate. As a result, a DATO only being able to be imposed if a custodial sentence of no more than four years was appropriate, such a sentencing disposition (a DATO) was not an available disposition.
In support of that submission, the appellant observed that the respondent fell to be sentenced for offending committed on 10 separate occasions, relating to him entering or attempting to enter 10 residential homes. The offences were committed in the early hours of the morning, when the residents were likely to be at home. A number of relatively high value items were stolen in the course of the completed aggravated burglaries. The respondent possessed a large kitchen knife while present at three of his victims’ homes. The offending was not spontaneous: it involved the use of a balaclava and gloves on each occasion, and was targeted at residential properties which provided a degree of privacy for the respondent’s criminal activity. Moreover, all of the offences were committed during the operational period of a community correction order.
The appellant submitted that, in the circumstances just referred to, the judge failed to impose sentences which properly reflected the need for general deterrence, specific deterrence, community protection and denunciation. Moreover, the judge gave undue weight to the respondent’s prospects of rehabilitation. The appellant noted that the judge did not make a specific finding about the respondent’s prospects of rehabilitation. It was submitted, however, that the only reasonably available finding would have been that the respondent’s prospects were poor.
Referring to a number of authorities, including Comensoli v The Queen[39] and Stevens v The Queen,[40] the appellant submitted that the sentences imposed on the respondent (including the total effective sentence) were inconsistent with current sentencing practices for offending of the kind committed by the respondent.
[39][2020] VSCA 2.
[40][2021] VSCA 218.
The appellant submitted that the respondent has a ‘relevant and substantial criminal history’. In support of that submission, the appellant relied upon the fact that in 2007, the respondent was sentenced in the County Court in relation to 11 charges of aggravated burglary and other charges, for which he received a total effective sentence of 7 years and 4 months, with a non-parole period of 4 years and 6 months. The appellant also relied upon the fact that between 2012 and June 2021, the respondent incurred numerous convictions for property offences, fraud-based offences and offences involving violence, including three further convictions for aggravated burglary; and that during this period, four sentences of imprisonment had been imposed upon him in relation to his offending. The appellant thus submitted that specific deterrence and community protection were thereby significant considerations in the instinctive synthesis which were not adequately reflected in the sentence imposed.
The appellant also submitted that the inadequacy of the individual sentences, the orders for cumulation and the total effective sentence together invited the conclusion that the judge ‘contrived the sentencing outcome in order to impose a DATO, the eligibility for which requires an offender to be sentenced to a term of imprisonment of four years or less’. As the appellant pointed out, practices of that kind have been deprecated by this Court in cases such as DPP v Basic[41] and DPP v Rivette.[42] More particularly, the appellant submitted:
In the instant case, the total effective sentence of exactly 4 years’ imprisonment such that allowed the imposition of a DATO, belies an impermissive contrivance, and fortifies the conclusion that the individual sentences and total effective sentence are manifestly inadequate.
[41][2016] VSCA 99.
[42][2017] VSCA 150.
In answer to the appellant’s submissions, the respondent submitted that any comparison between a DATO and a sentence of imprisonment is ‘misplaced’. Amongst other things, he pointed to the prospect that, if his DATO were to be cancelled (in accordance with s 18ZE(2B) of the Sentencing Act) and the custodial part of the DATO activated, say after 18 months, then the respondent could be liable to serve up to 12 months’ imprisonment at that time, even accounting for his pre-sentence detention. In other words, the respondent might theoretically be liable to serve 834 days’ pre-sentence detention, plus 18 months of treatment and supervision, plus, if in breach, a further period of imprisonment.
In relation to the context in which the respondent was sentenced, the respondent submitted that the chronology was ‘telling’. The respondent noted that on the application made in March 2023 to adjourn the matter for Drug Court assessment, the Director (who was represented) did not make any submission that such an adjournment would be a waste of time or resources (and thus unfair to the accused) because the prosecution’s position was that any Drug Court sentencing judge would fall into error by imposing a DATO.
The respondent also noted that, having had 10 months to consider their submissions, when the matter returned to the Drug Court on 25 January 2024, the Director again made no submission as to the inappropriateness of the imposition of a DATO. The respondent submitted that, while the matter was ‘clearly moving with some momentum towards the imposition of a DATO’, on no occasion did the Director make a submission to the judge that he would be falling into error by imposing one. Indeed, on 5 June 2024, approximately one month before sentencing, the Director did not oppose bail — the purpose of which was to enable the respondent to commence residential rehabilitation at Odyssey House. As the respondent put it, by the time of sentencing, he had:
... served the better part of 834 days in the expectation that the Drug Court might assist him, ha[d] endured the assessment processes, ha[d] consented to the onerous conditions imposed by it, and been released on a DATO with those conditions, and without a non-parole period. Accordingly, even if the court is satisfied that the sentence is manifestly inadequate the residual discretion should be exercised.
While the respondent conceded that the custodial term of 4 years’ imprisonment ‘may be at the lower end of available sentences imposed otherwise than by the Drug Court’, he submitted that the imposition of a DATO for four years, including the custodial part of 4 years’ imprisonment, was not wholly outside the available range of sentences open to the judge. In making that submission, the respondent highlighted the following matters:
(1)At their heart, all of the respondent’s offences were ‘property offences’. On the occasions when he was disturbed, the respondent immediately left the address. He did not destroy or damage property and, in the result, no confrontation ever eventuated.
(2)All of the burglary offences were put on the basis of an intention to steal, and all of the offences, ‘clustered into a relatively brief period’, were capable of being heard and determined summarily in the Magistrates’ Court.
(3)It was (and is) not in issue that the respondent was (and is) a person with a deeply entrenched drug addiction which has blighted his life. The items stolen by him were largely items that could be easily sold to support his drug addiction.
(4)There has been a considerable delay occasioned by the prosecution’s mismanagement of the matter prior to its resolution, with further delay caused by the prosecution at the time of the original case assessment hearing in February 2023 (delay caused by the prosecution not having filed tendency or coincidence notices in accordance with the timetable set at an initial directions hearing in October 2022).
(5)The respondent’s pleas of guilty were entered at an early stage and carried significant utilitarian benefit.
(6)On 6 June 2024, the respondent was released on bail, with no opposition from the prosecution, and admitted to Odyssey House. He remained there at the time of sentencing, and has since transitioned into the community and is complying with the DATO. He has not been released from custody unconditionally — the custodial part of his DATO can be activated at any time during the period of the DATO if the Drug Court considers it appropriate and/or necessary.[43]
[43]See ss 18ZP and 18ZE of the Sentencing Act.
In his written case in this Court, in a submission which was perhaps anticipatory of the respondent’s submission that the prosecution had conceded that a DATO was open, the appellant disputed the judge’s statement at Reasons [58] that the prosecutor conceded that it was open to the Court to impose a DATO. As the appellant put it:
Respectfully, this is not entirely accurate. The Director submitted in her written outline that while the respondent is ‘prima facie’ eligible for a DATO, the court must be satisfied that it would otherwise have imposed a sentence not exceeding four years’ imprisonment. The Director then submitted that ‘The court may find that, having regard to the nature and seriousness of the current offending in combination with the [respondent’s] criminal history, it is not open to impose a DATO in this matter’. The solicitor advocate appearing on behalf of the Director was not invited to address the judge in oral argument.

In oral argument, the appellant submitted that the statement in the 14 March 2023 prosecution email that the prosecution ‘would not oppose an application to the Drug Court’ meant no more than that the prosecution would permit the matter to go to the Drug Court, while reserving its position as to whether a DATO might ultimately be open when all of the evidence has been produced. The appellant submitted that it was common for the prosecution to permit a matter to go to the Drug Court before the evidence was in and before a position could be taken on whether a DATO might be open; or, if open, whether the prosecution should oppose the making of one. The appellant contended that an examination of the chronology in this case showed no more than that the prosecution had permitted the matter to go to the Drug Court, while otherwise reserving its position as to the ultimate outcome.

Consideration

Was the sentence manifestly inadequate?

To establish manifest inadequacy in a sentence, the Director must show that the sentence was ‘wholly outside the range of sentencing options available to the sentencing judge’.[44] Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all of the relevant circumstances of the offending and of the offender. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good.[45]
[44]DPP v Karazisis (2010) 31 VR 634, 662–663 [127] (Ashley, Redlich and Weinberg JJA, with whom Warren CJ and Maxwell P agreed at 637 [1]) (‘Karazisis’).
[45]Ibid.
That said, largely for the reasons submitted by the appellant, the individual sentences imposed on at least the aggravated burglary charges, and the orders for cumulation made in respect of those charges, are all manifestly inadequate having regard to the circumstances of those offences and the circumstances of the respondent.
Each of the six aggravated burglaries committed by the respondent was a serious example of that crime, involving, as they did, breaking into residential premises in the early hours of the morning, at times when the residents would likely be home. They also involved the use of a balaclava and gloves on each occasion; and, on two occasions,[46] the respondent was in possession of a large kitchen knife. It was of course a significant aggravating feature that the respondent was on a community correction order when he committed each offence.
[46]Charges 8 and 10 (noting that the possession of the knife on the occasion of charge 16 was an attempted aggravated burglary).
When one has regard to the maximum penalty for aggravated burglary (25 years) and all of the matters to which we have referred, it is difficult to see how, in all the circumstances, sentences of less than three years could have been imposed on any (much less each) of the aggravated burglaries. Similarly, it is very difficult to see how orders for cumulation of only two months could have been imposed on any of these charges. Sentences of imprisonment ranging from 1 year and 8 months (charge 2) to 2 years and 2 months (charge 8) were each wholly outside the permissible range of sentencing options available to the judge, as were the extremely modest orders for cumulation of 2 months on each of the aggravated burglary charges other than the base sentence (charge 8).
It follows from the above that it was not open to the judge to consider that a sentence of no more than 4 years was appropriate.[47] In our view, it was not open to the judge to consider that any total effective sentence of less than 6 years (which itself would have been very modest) was appropriate. It follows that it was not open to the judge to impose a DATO, and thus the sentence he imposed was also not open. Indeed, it was wholly outside the permissible range of sentencing dispositions and therefore manifestly inadequate.

Did the prosecution concede that a DATO was open?

[47]See s 18Z(1)(d)(ii) of the Sentencing Act.

In his written case in this Court, the appellant sought to confine consideration of the issue of whether the prosecution conceded that a DATO was open to an examination of the prosecution written submissions on the basis that the prosecutor was not invited to address the judge on the issue in oral argument. There are a number of problems with that submission, not the least of which is that the prosecutor was in fact invited to address the judge on the issue on more than one occasion.
Specifically, during the plea on 15 April 2024, defence counsel referred to the concession made in the 14 March 2023 prosecution email. The judge turned to the prosecutor who, as we have already said, responded to the judge by saying that ‘The prosecution has conceded that Mr Ristic could go into a Drug and Alcohol Treatment Order’. Moreover, and importantly, by referring to the 14 March 2023 prosecution email, the prosecutor accepted that the concession had been made as part of the plea deal. There was no suggestion that the concession should be withdrawn or that the respondent should be permitted to reconsider his position on the basis that, contrary to the 14 March 2023 prosecution email, the respondent might fall to be sentenced in circumstances where the prosecution’s position was that a DATO was not in fact open.
The exchange between the judge and the prosecutor to which we have just referred is sufficient to dispose of the appellant’s suggestion that the prosecutor was not invited to address the judge on the issue of whether a DATO was open. To put the matter beyond doubt, however, when the matter returned to court on 17 April 2024, the judge again asked the prosecutor if he wished to be heard about the terms on which the matter had been resolved by the parties. As we have already observed, the prosecutor said that he did not have anything further to submit on that point.
When one looks at the chronology of appearances between 15 March 2023 and 5 June 2024, there is much to be said for the proposition that the respondent’s matter was being conducted on the basis that a DATO was open. At no point did the prosecution submit that a DATO was not open. Moreover, if the prosecution’s position was that a DATO was not open, one might reasonably expect that the prosecution would have said so at one of the hearings of the matter in the lead-up to the determination hearing on 15 April 2024. To the contrary, however, during the course of the hearing on 7 March 2024, the prosecutor said that ‘the 4-year limitation period [was] a live issue, but happy to concede at this stage perhaps not insurmountable’.
Two further documents need to be considered: first, the prosecution response to DATC referral; and secondly, the prosecution written submissions.
The appellant relies on the answer it gave to question 5 of the prosecution response to DATC referral as showing that no concession was made by it that a sentence of four years or less for the respondent’s offending was open. Question 5, however, asks whether the prosecution raises as a live issue ‘that a sentence of four years or less for the offence(s) could be manifestly inadequate’. The only options given on the form for an answer to that question are ‘Yes’ and ‘No’. While the insertion of the words ‘or less’ in question 5 give rise to the potential for ambiguity,[48] the prosecution answer to question 5 telegraphed the possibility that the prosecution might ultimately submit that a DATO was not open.
[48]As to whether the question should always be answered ‘Yes’ because the question arguably contemplates every possible sentence of less than 4 years as well as a sentence of 4 years.
Turning now to the prosecution written submissions (and in particular that part of them upon which the appellant relies in this Court), the best that might be said of them for the appellant is that they are confusing, if not confused. Quite what is meant by the statement that the prosecution ‘accepts [the respondent] is prima facie eligible for his term of imprisonment to be served by … a [DATO]’ is unclear — particularly when coupled with the statement in them that ‘the prosecution submits that the Court may find that … it is not open to impose a DATO in this matter’.
The use of the words ‘prima facie eligible’ suggests, on one reading, that a DATO is more than merely open — a prima facie entitlement has been shown to exist. On that construction, however, it is difficult to know what to make of the fact that the Court may find that a DATO is not open. Perhaps that second proposition in the prosecution written submissions should be construed as a submission that the actual making of a DATO was still a matter for the judge to determine on the merits. Statements that the respondent was prima facie eligible for a DATO but that the court may find that a DATO was not open are not reconcilable. That said, we do not read the prosecution written submissions as withdrawing any concession (either by its email accepting the respondent’s offer to plead guilty or by its conduct of the various hearings in the Drug Court) that a DATO was open in the present case.
In short, having looked at all of the prosecution conduct from March 2023 up to the time of sentencing, we see no error in the judge’s statement at Reasons [58] that the prosecutor, ‘on behalf of the Director, conceded that it was open to the court [to make a DATO], but submitted that the Court may decline to make such an order having regard to the nature and seriousness of [the matters relied upon by the prosecution]’. So much was expressly conceded by the prosecutor during the hearing on 15 April 2024 (whatever might be capable of being argued about the proper construction of any of the documents[49] created earlier in time by the prosecution).
[49]Including the earlier submission contained in the prosecution written submissions which argued that ‘The Court should find that it cannot be satisfied that it would have otherwise imposed a sentence of not exceeding four years’.
Alternatively, even if we were to conclude that there was ambiguity about the extent of any concession made by the prosecution, it seems to us that the judge was not provided with the assistance he was entitled to expect. The prosecution, at the very least, did not make its position clear.
Specifically, so far as the 14 March 2023 prosecution email is concerned, there would have been nothing wrong with the prosecution telling the respondent that it would not oppose an application to the Drug Court but that it reserved its position to ultimately submit that a DATO was not open (that is, that a DATO would be manifestly inadequate if imposed by the sentencing judge). Both sides would then have clearly understood the position and, if the respondent’s plea offer was accepted on that basis, it would be open to the prosecution to ultimately submit that a DATO was not within the range of permissible sentencing options.
For completeness, we should say that nothing in Barbaro v The Queen[50] prevents the prosecution from submitting to a sentencing judge that a particular type of sentence is not open. As this Court said in DPP (Cth) v Haynes:[51]
The joint reasons of the High Court in Barbaro make clear that, although the prosecution should not express an ‘opinion’ as to the numerical terms of the appropriate sentencing range, it has a duty to assist the sentencing court to avoid appealable error and may do so in a variety of ways. That duty includes identifying ‘the kind of sentence disposition that is appropriate or inappropriate’. Thus, in both Malvaso v The Queen and Everett v The Queen the Crown was precluded from challenging a suspended sentence on appeal given that the prosecution had not opposed it at the time of sentencing.
Contrary to a perception in some quarters, Barbaro has not reduced the burden on the prosecution to identify any sentencing disposition that is said to be inappropriate. In Matthews v The Queen the majority (Warren CJ, Nettle and Redlich JJA) observed that ‘nothing said in Barbaro detracts from the Crown’s obligation to make clear what type of sentencing disposition, whether imprisonment or otherwise, it contends is necessary or appropriate’. The majority also said:
The Crown’s duty also extends to making appropriate submissions on relevant questions of law, including statutorily prescribed maximum penalties, principles of sentencing reasonably thought to be applicable and comparable and other relevant cases. If it is submitted for an offender that he or she should receive a non-custodial disposition or a suspended term of imprisonment, the Crown should make clear whether it contends, and if so why, a disposition of the kind proposed would not be a proper exercise of sentencing discretion.[52]

The residual discretion

[50](2014) 253 CLR 58.

[51][2017] VSCA 79 (Redlich, Weinberg and McLeish JJA) (‘Haynes’).

[52]Ibid [58]–[59] (footnotes omitted).

Notwithstanding our conclusion that the sentence imposed on the respondent was manifestly inadequate, this Court retains a residual discretion to dismiss a Director’s appeal.[53] Further, the onus rests upon the appellant to persuade the Court that the discretion should not be exercised so as to lead to the dismissal of the appeal.[54]
[53]Karazisis (2010) 31 VR 634, 661 [119]. See also, Green v The Queen (2011) 244 CLR 462, 465–466 [1] (French CJ, Crennan and Kiefel JJ) (‘Green’).
[54]DPP v Zhuang [2015] VSCA 96, [47]; DPP v Mwamba [2015] VSCA 338, [154]; CMB v Attorney-General (NSW) (2015) 256 CLR 346, 359 [33]–[36] (French CJ and Gageler J), 366 [56] (Kiefel, Bell and Keane JJ); Cumberland v The Queen (2020) 379 ALR 503, 510–511 [33]; [2020] HCA 21.
As has been observed before, the residual discretion is ‘perhaps of uncertain width’ and it is not possible ‘to lay down any exhaustive statement of its scope, or to be unduly prescriptive as to how it should be exercised in any given case’.[55]
[55]Karazisis (2010) 31 VR 634, 657 [100]; DPP v Goldsmid [2023] VSCA 124, [93] (Beach, Kyrou and T Forrest JJA) (‘Goldsmid’).
In Karazisis,[56] this Court stated that:
[T]he Court might well exercise its residual discretion to dismiss a Crown appeal in circumstances where the prosecutor at first instance failed to discharge his or her responsibility to the Court adequately. For example, the Crown will not ordinarily be permitted to put submissions on appeal that were not advanced below. Nor will the Crown ordinarily, on appeal, be permitted to resile from a concession made at first instance that a particular sentence would be in range reasonably available to the sentencing judge.[57]
[56](2010) 31 VR 634, 660 [115].
[57]Citations omitted. Emphasis added.
Other factors that have been held to inform the exercise of the residual discretion include whether:
(a)the offender given a non-custodial sentence has complied with its terms for a significant period;
(b)the offender given a ‘lenient disposition’ has made productive use of that disposition, including by finding ‘employment and stability in their personal life’;
(c)the offending falls short of ‘criminality of the highest order’;
(d)there has been a delay between the imposition of sentence and the Crown appeal; and
(e)the sentence first imposed is of a type which enhances the prospects of the offender’s rehabilitation, particularly where the offender is young.[58]
[58]See DPP v Lombardo [2022] VSCA 204 (McLeish, Niall and Kennedy JJA); Goldsmid [2023] VSCA 124, [94]. Green (2011) 244 CLR 462, 479–480 [43] (French CJ, Crennan and Kiefel JJ).
On the hearing of the Director’s appeal, the respondent sought leave to rely on an affidavit affirmed by his solicitor on 21 October 2024 (‘the affidavit’). We permitted the respondent to rely upon the affidavit on the issue of whether this Court should exercise the residual discretion.
The affidavit exhibits reports demonstrating the respondent’s substantial compliance with the conditions of his DATO. It also exhibits a letter dealing with the respondent’s housing situation. That letter refers to the respondent’s progress; the support he has received in setting up a tenancy and exploring positive community connections; and the detrimental consequences to the respondent should he be returned to custody for an extended period. In that last regard, the letter provided:
Should Mr Ristic return to custody for an extended period, his secured long-term housing may be placed at risk. Should this happen, Mr Ristic will need to reapply to the VHR[59] through either housing prison-based services or an appointment through one of the housing access points post-release.
Should Mr Ristic need to reapply to the VHR, the waiting period for an additional offer of long-term housing through DFFH[60] could be longer than 20 years … .

Has the appellant established that the residual discretion should not be exercised?

[59]Victorian Housing Register.

[60]Department of Families, Fairness and Housing.

In the unusual circumstances of this case, the appellant has not established that the residual discretion should not be exercised. More specifically, the residual discretion should be exercised because of a combination of factors, including the prosecution’s concession that a DATO was open, the circumstances in which the DATO was granted, the respondent’s compliance with the DATO as evidenced by the affidavit, and the fact that the respondent has made productive use of the lenient disposition of his matter (again as evidenced by the affidavit).
Of these matters, the most significant is the concession made by the prosecution that a DATO was open. This was no mere concession made for the first time during the course of argument on the hearing of the respondent’s plea. It was, as the prosecutor recognised in the course of his submissions to the judge, a concession which formed part of the basis upon which the respondent pleaded guilty. Moreover, as we have already observed, no application was made to withdraw the concession; nor was any submission made by the prosecutor that the respondent should now be permitted to reconsider his plea of guilty in circumstances where the prosecution no longer accepted that a DATO was open. In such circumstances, the prosecution should not now be permitted to resile from the concession it made.
While the fact of the respondent’s compliance with the DATO, and the fact that he has made productive use of the judge’s most lenient disposition of the matter, are both important matters, they would not, on their own, necessarily be sufficient to engage the residual discretion. They are, however, supportive of a favourable exercise of the residual discretion in circumstances where the respondent’s decision to plead guilty was made on the basis that the prosecution would accept that a DATO was an open sentencing disposition.
Finally, even if we had concluded that the prosecution had merely been equivocal (ambiguous) about the stance it would take on the question of whether a DATO was open, we would have exercised the residual discretion for like reasons to those given above. Specifically, in being equivocal on the issue, the prosecution did not give the judge the assistance he was entitled to expect; and, in the circumstances of this case, this Court should not permit the appellant to contest an issue in this Court which was not squarely contested on the plea.[61]
[61]DPP v O’Neill (2015) 47 VR 395, 419 [93] (Warren CJ, Redlich and Kaye JJA); Haynes [2017] VSCA 79, [60] (Redlich, Weinberg and McLeish JJA).

Conclusion

The sentence imposed by the judge was undoubtedly manifestly inadequate. In the unusual circumstances of this case, however, the appellant has not established that the residual discretion to dismiss the appeal should not be exercised. In the circumstances, the appeal must be dismissed.
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[2024] VSCA 251

29 October 2024