DPP v Burgess

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 310 of 2000

THE DIRECTOR OF PUBLIC PROSECUTIONS
	v.
DIANNE LESLEY BURGESS

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JUDGES:	WINNEKE, P., PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 June 2001
DATE OF JUDGMENT:	27 August 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 135

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CRIMINAL LAW – Sentencing – Director’s appeal – Intentionally causing serious injury – Wholly suspended sentence – Sentencing judge misled by respondent as to her circumstances – Evidence admissible to prove that – Respondent ordered into custody - Crimes Act 1958, s.567A(5) and s.574 and proviso.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. G.R. Flatman Q.C., D.P.P. with Ms S. Pullen	Solicitor for Public Prosecutions
For the Respondent	Mr. J.P. Dickinson	Slades & Parsons

WINNEKE, P.:

I have had the considerable advantage of reading the draft reasons for judgment of Phillips, J.A. and Batt, J.A. I agree with their Honours, and generally for the reasons given by them, that the Director’s appeal should be allowed. I also agree that the sentence proposed by Batt, J.A. should be substituted for the sentence imposed below.

I record my assent to the conclusion reached by both Phillips, J.A. and Batt, J.A., that the proviso to s.574 of the Crimes Act 1958 does not apply, in the circumstances of this case, to prevent the Court from admitting the new evidence contained in the affidavits tendered by the Director. Nor does it prevent the Court from acting upon such material in determining the appropriate disposition of this appeal. The evidence was tendered for the purpose of demonstrating that the sentencing judge was misled in a significant manner by the material which was placed before him on behalf of the respondent, and that that material had clearly influenced the judge to exercise a sentencing discretion favourable to the respondent. It was not tendered as “sentencing material”, additional to that which was before the judge, “by reason of or in consideration of” which this Court should be moved to increase the sentence imposed.

Nothing which I have said should be taken as implying criticism of counsel who appeared for the respondent before the sentencing judge. His submissions were made, in the conventional manner, upon instructions from his client. Having regard to what we now can see to be the complex psychological make-up of the respondent, I would have little doubt that her instructions to counsel would have been accepted as convincing and reliable, and proper to be put before the Court.

PHILLIPS, J.A.:

On 15 September 2000 the respondent, then 44 years of age, pleaded guilty in the County Court to one count of intentionally causing serious injury. After a plea in mitigation on her behalf by counsel, the respondent was sentenced to 30 months’

imprisonment. The offence arose out of a serious assault that took place on 5 March 2000, in the home of the respondent's own brother, and the respondent had a number of previous convictions. In sentencing, the judge said that the assault was such as to attract a custodial sentence of some significance, but "in the circumstances" the sentence, which was otherwise appropriate, should be wholly suspended for three years. The Director now appeals alleging, inter alia, manifest inadequacy.

The reason for the Judge's leniency in ordering that the sentence be wholly suspended is in large part to be found, as the sentencing remarks make plain, in certain matters put by respondent's counsel on the plea in mitigation. Suffice it to quote two passages from the submissions then made concerning the respondent's personal circumstances. First, counsel said:-

"Her daughter, Debbie, who was going under the name of Debbie Gale at that time, met a fellow called Leadbeater of whom my client did not approve and she sought to discourage the relationship. It was a very short relationship, I might add. Deborah Gale left Mackay, the caravan park with Mr Steele, Mr Leadbeater and another fellow.
Your Honour might recall that in 1993 there was a siege in a house where some gentlemen were under siege from police. They had killed five people. One of those persons was Deborah Gale, the daughter of [my client]. There is a chilling description of the death of the daughter, which was when Mr Willesee telephoned the house where the people were being held under siege and there is a conversation. ...
.... Indeed, my client sat and listened to the description of Mr Willesee and Leadbeater having a conversation. Willesee says, 'Well, take me through it. Why did you kill the 14 year old?' Leadbeater replies, 'Well, she was going to the cops over me, mate. I didn’t actually kill her but, I mean, I okayed the death I suppose you could say.' 'How was that girl killed?' 'She was shot through the head.' Willesee: 'And then you burned the body?' 'Yes'. 'Why did you do that?' 'To give us time to get out of the state.' ... "

A little later counsel added this:-
"I haven’t mentioned the death of her son on 8 August of this year, Your Honour. On 28 June he was involved in a car accident. There had been a period of some estrangement between her and her son but that had been remedied. Her son was going to collect the three-month old grandson to bring him to see her. Whilst doing that, the son was involved in a car accident and then ultimately some time later [he died]. Your Honour, that is one more factor in that litany."

Not surprisingly the judge saw these circumstances as highly relevant to the sentencing of the respondent, commenting: "All in all, it is a very sad and tragic story". Indeed it was, but by and large it was false, as is now conceded. The teenage victim of the siege in March 1993, though known to the respondent, was not her daughter and the respondent’s only child, her son, had not been killed either in a car accident in June 2000 or at all. The Director now seeks by this appeal to have the respondent re-sentenced on the ground that the judge, having been misled as to matters of some significance which were put in mitigation, was thereby induced to impose a sentence which was altogether inadequate. It is not for a moment suggested that counsel was party to deceiving the judge, but deceived he was and error, it is said, then followed. Hence this appeal.

A number of matters now fall for consideration. First, there is the admission of the evidence upon which the Director relies to establish the errors of fact that were found in counsel's submissions on the plea. Three affidavits were relied upon. The first was sworn by the respondent’s son on 31 October 2000; the second by a solicitor on 14 December 2000, and the third by the mother of the unfortunate teenager who was murdered so horribly in the course of the siege in March 1993. All three affidavits were admitted into evidence without objection, and in my view properly so.

The power of this Court generally to receive further evidence on appeal is to be found in s.574 of the Crimes Act 1958. Subject to one qualification, s.574 is essentially still in the form in which it was first introduced in 1914, having been copied form s.9 of the Criminal Appeal Act 1907 in England: see s.9 of the Criminal Appeal Act 1914 which became in turn s.600 of the Crimes Act 1915, s.600 of the Crimes Act 1928 and s.570 of the Crimes Act 1957. Such legislation is found too in similar terms in other States: see for example the local legislation discussed in R. v. Beldan, ex parte Attorney General[1] (Queensland), in R. v. Cartwright[2] (New South Wales) and in R. v. J.[3] (South Australia). Section 574(b) authorises the appellate court (formerly the Full Court and since 1995 the Court of Appeal) to order the taking of evidence from a witness who is compellable, while s.574(c) authorises the appellate court to receive evidence from a witness (including the appellant) who is a competent witness though not compellable; and so the power of this court to receive further evidence on appeal generally cannot be doubted. Until s.574 was amended by Act No. 109 of 1994, s.574(f) also authorised the appellate court, on a criminal appeal, to exercise any other powers that the Court might exercise on appeals in civil matters and many an affidavit was doubtless received in consequence: R. v. Cox[4], R. v. Kane[5]. In anticipation of this court's commencing in June 1995, s.574 was amended to replace references to the Full Court with references to the Court of Appeal, and at the same time paragraph (f) was repealed, although, I must say, for a reason which is not at all clear to me. But the repeal of paragraph (f) of s.574 cannot be taken to inhibit or deny the power of this Court to receive on affidavit evidence which otherwise it must order to be taken viva voce[6]; so much can surely be justified by reference to this court's inherent power over its own procedures. It is consistent with that approach that no objection was taken to this Court's receiving the three affidavits tendered on this occasion.
[1][1986] 2 Qd. R. 179
[2](1989) 17 N.S.W.L.R. 243
[3](1992) 59 S.A.S.R 145
[4][1960] V.R. 665
[5][1974] V.R. 759 at 764
[6]See, for example, R. v. Bishop [1998] 1 V.R. 531 at 538 per Charles, J.A.

After argument concluded on this appeal, the Court sought from the parties submissions on the effect, if any, of the proviso to s.574 which is found at the end of s.574. It reads:-

“Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial."

This appeared in the original s.9 in England and in Victoria, and it has been copied faithfully from one statute to another ever since. Predating any right of appeal in the Crown, the precursor to s.574 was obviously framed in relation to an appeal (or application to appeal) by the offender only and in that context, the proviso, qualifying all that precedes it, is readily understood. As McPherson, J. said in Beldan[7], when speaking of the Queensland equivalent of our s.574:-
“Section 671B is one of a group of sections that were inserted in the Code by The Criminal Code Amendment Act of 1913, which constituted the Court of Criminal Appeal and, for the first time, conferred general rights of appeal in criminal cases arising out of proceedings on indictment. At that time only the offender was given a right of appeal or of leave to appeal in respect of conviction or sentence, although the Court was, on appeal by the offender against his sentence, expressly empowered by s.668E(3) to impose a more severe sentence if of the opinion that it was warranted. The proviso to s.671B was no doubt added so as to ensure that, on such an appeal by the offender, the admission on appeal pursuant to s.671B(c) [or, I would add, s.671B(b)] of further evidence not given at trial should not lead to an increase in the sentence imposed on him."

With respect, I agree. The proviso was obviously designed to remove the risk attending the calling of fresh evidence on appeal, especially, I should have thought, if led viva voce as the section appears to contemplate. It seems to be generally accepted that in s.574 (and its counterparts elsewhere) the expression "at trial" includes upon sentencing, even after a plea of guilty[8], and it would therefore be attractive to conclude that the proviso to s.574 was not only not intended to, but accordingly did not, apply at all on a Crown appeal under s.567A. But s.567A(5) appears to provide otherwise.

[7]at 188

[8]In Victoria, see Bishop at 536, but compare WJW (2000) 115 A. Crim. R. 217 at 222.

Section 567A was introduced by the Criminal Appeals Act 1970, giving the Crown the right for the first time to appeal against sentence. The section is an elaborate one and by sub-s.(5) provision is made expressly for the application on a Crown appeal of a number of sections, including s.574. So far as presently relevant, sub-s.(5) reads as follows:-

“… and the provisions of sections 573, 574, 576, sub-section (5) of section 579, and sections 580, 581 and 583 with respect to procedure shall so far as those provisions are applicable and with such modifications and adaptations as are necessary extend and apply to appeals under this section ...”,

and one adaptation expressly mentioned is that any reference to "appellant" be taken to be a reference to "respondent". Accordingly (and whatever might be the meaning of the words in s.567A(5) "with respect to procedure" and whatever the effect, if any, of the proviso to s.574)), there can be no doubt in Victoria, in the face of s.567A(5), about the power of the appellate court, on a Director’s appeal, to receive further evidence; for s.574 is made expressly to "extend and apply" to such appeals. So far as I can tell, no such express provision is to be found in the local legislation in the other States to which I have so far referred, so that in those jurisdictions the question had to be addressed how far, if at all, the general provision for admitting further evidence on appeal (which had been copied from s.9 of the statute of 1907) extended and applied to a Crown appeal against sentence, once such became possible. (As I read it, on this aspect of the case that was the principal issue dealt with by the Court of Criminal Appeal in Queensland in Beldan[9].) It has been consistently held, despite the absence of express provision to that effect, that the section which derives from s.9 in England applied not only on an appeal by an offender but also on a Crown appeal against sentence.

[9]See and compare R. v. J in South Australia.

Although since 1970 there has thus been power, first in the Full Court and now in the Court of Appeal, to admit fresh evidence even on a Director’s appeal, that says nothing at all about when and in what circumstances that power should be exercised: that is a very different matter. It is clear enough that the power to admit further evidence on appeal is to be exercised only exceptionally. For example, that power will ordinarily not be exercised where the evidence in question, being of facts in existence at the time of the hearing below, could and should have been placed before the court on that occasion, but was not[10]. (That cannot be said to be the case here, however; for the procedure on sentencing must remain loose and flexible and the prosecution is not expected to verify every fact put forward in mitigation or every character reference for an accused[11].) That the court will not allow evidence to be led for the first time on appeal when that evidence could and should have been put before the court at first instance no doubt reflects the fact that the appellate court acts principally to correct error and is not there simply to reconsider the matter afresh, by way of re-hearing generally. There is no error below when the sentencing court was correct on the material before it; and facts occurring after sentence was passed are matters for the consideration of the Executive, not the appellate court. See generally as to when evidence is exceptionally admitted on appeal: R. v. Smith[12], Cartwright[13] per Hunt and Badgery-Parker JJ. and R. v. Babic[14] per Brooking, J.A.
[10]The principle applies alike to prosecution and defence: R. v. Rumpf [1988] V.R. 466 at 477 per McGarvie, J.
[11]Beldan at 189, Bishop at 536 per Ormiston, J.A.
[12](1987) 44 S.A.S.R. 587
[13]at 257
[14][1998] 2 V.R. 79 at 80-81

In this instance we are not concerned with facts occurring after sentence was passed and so cases such as Eliasen[15] and Morgan[16] may be put to one side. Such cases demonstrate that evidence of subsequent events may sometimes be admissible, at least on the application of the offender, for the light it sheds on circumstances existing at the time of sentence. In contrast, evidence of facts in existence at the time when sentence was passed but not put before the sentencing judge is admitted, if at all, only to prevent a miscarriage of justice. Thus, in Cartwright the Court said[17]:-

"It is not the customary practice of this Court to receive fresh evidence on sentence appeals; in every case, proper grounds must be established before its discretion to do so will be exercised: R v Lanham [1970] 2 NSWR 217 at 218. No such grounds have been established in this case. It could not be said that the significance of any additional material relating to the assistance which he had provided to the authorities was not realised by the applicant at the time nor that he could not have informed his legal advisers of the existence of that material: cf R v Harris (Court of Criminal Appeal, 13 December 1985, unreported) at 9-10 and R v Saleam (1989) 16 NSWLR 14 at 20-21.
This Court has in some sentence appeals received in evidence further material which demonstrates, for example, that the sentencing judge had been unwittingly misled as to the length (or as to the nature) of an earlier sentence to which he has accumulated the sentence under appeal. So, too, will further evidence be received which demonstrates that the judge was deliberately misled in an influential respect in the evidence put before him: R v Beldan; Ex parte Attorney-General [1986] 2 Qd R 179 at 188-189; (1986) 21 A Crim R 159 at 167-168. But no error of either kind has been shown to exist in the present case.”

So in this case the evidence tendered by the Director was admissible, and was admitted, to establish that the sentencing judge had been significantly misinformed before sentence was passed. The judge was positively deceived by counsel (however unwittingly on counsel's part) about facts going in mitigation. In such a case the appellate court admits evidence to establish the deception and, if such is shown, the sentence imposed below is vitiated, as in any case of fraud: see Beldan[18] per Thomas, J. It surely follows then that the appellate court must exercise the sentencing discretion afresh; for to do otherwise must leave a miscarriage of justice unremedied.

[15](1991) 53 A. Crim. R. 391

[16](1996) 87 A. Crim. R. 104

[17]at 257

[18]at 201

Thus far, I should have thought that there could be no doubt about the power of this Court to admit the relevant further evidence and to re-exercise the sentencing discretion in the light of the facts as they are now known to be; otherwise there would be little point in the Court's receiving the evidence in the first place. But if, as I think must follow, this Court is to re-sentence in order to overcome the effect of the deception practised below, re-sentencing is more likely than not to increase the sentence imposed at first instance. (That would flow from the assumption that can fairly be made, that the deception practised by the offender was designed to secure a lighter sentence.) What then of the proviso to s.574? Does the proviso to s.574 stand in the way of the result which otherwise must probably follow, by precluding any increase in the sentence passed below?

It can be said, and with some force in my opinion, that as soon as s.574 (or its equivalent) is seen to apply on a Crown appeal against sentence, there is, at least on the face of it, an obvious tension between its application in such a case and the proviso: "a certain apparent disharmony" as Court of Criminal Appeal put it in R. v. Chanh Nghia Ly[19]. And, so it would seem here, where, if the Court is required to re-sentence, there can be no justification, I think, for wholly suspending the custodial sentence otherwise imposed. In other jurisdictions, the tension between the application on a Crown appeal against sentence of the section deriving from s.9 of the English statute of 1907 (permitting the admission of further evidence) and the proviso to that very same section (which expressly precludes any increase in the sentence “by reason of or in consideration of evidence not given at the trial") has been addressed and I turn to the cases.
[19]16 December 1992, Court of Criminal Appeal (N.S.W.), unreported, at 10.

In Beldan, the Court of Criminal Appeal in Queensland was concerned first to establish whether the equivalent to our s.574 applied on a Crown appeal to justify the admission on appeal of evidence that the court at first instance had been positively misled by the offender about the attitude of her employer. The Court divided over whether an appeal lay from the particular sentencing order made in that case, but was in agreement that when an appeal did lie at the instance of the Crown the section in question applied to permit further evidence on the appeal and that that evidence, to the effect that the sentencing judge had been misled, did not come within the proviso. McPherson, J. (dissenting, but not on this point) said[20]:-

“The proviso to s.671B must therefore be taken as extending as much to the present appeal as to any other. Nevertheless, the prohibition it contains is confined to evidence ‘not given at the trial’. Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them. The material sought to be placed before us is directed at evidence, particularly the contents of the letter dated August 14, 1985 and other statements received from the Bar table under s.650, that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect. In cases of that nature courts have shown a strong disposition to interfere on appeal: see, for example, Meek v. Fleming [1961] 2 Q.B. 367; Bills v. Roe [1968] 1 W.L.R. 925; Skone v. Skone [1971] 1 W.L.R. 812. It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind.” [Emphasis added]

Thomas, J. (who considered that an appeal did lie) said that, fraud being in issue, the evidence could be received according to the usual principles governing the reception of fresh evidence and that to receive it "does not infringe the proviso"[21]. Thus, both judges saw the evidence as lying outside the ambit of the proviso.

[20]at 188

[21]at 201

In Beldan the Court was considering evidence about how matters stood in truth at the time of sentencing. In R. v. J, another Crown appeal, the Court was concerned with events subsequent to sentencing, in that the offender, having been given a discount for undertaking to give evidence against alleged co-offenders, reneged and failed to deliver. After quoting the passage I have set out from Beldan, Olsson, J. said[22] that "as in that case" evidence of the offender's failing to honour the undertaking, admissible on appeal under the relevant equivalent in South Australia to our s.574, was not evidence of the type "which the legislature had in contemplation in enacting the proviso to" that section. In Victoria specific provision is now made in s.567A for reviewing a sentence on a Director's appeal where an undertaking of assistance is not honoured by the offender who has been sentenced, so that R. v. J can have no direct relevance in this State: see s.567A(1A) and (4A). None the less the judgments in J are instructive; for although the evidence admitted on appeal was of events occurring after sentence, those events could have been said to demonstrate the value (or more strictly the worthlessness) of the undertaking given at the time of sentencing and then taken into account according to its terms. Indeed that was the approach suggested in the similar case of Chanh Nghia Ly where the Court described the new evidence as relevant to "evaluating the strength of the evidence which was led at the trial". When so regarded, the position in both these cases was not unlike that here.
[22]at 154

Nevertheless, at least in form the evidence which was tendered on appeal in both J and Chanh Nghia Ly, being of the respondents' failure to honour the undertaking given to the sentencing judge, was not such that it could have been led at the trial; for at least in form it was evidence of events occurring after sentencing was complete. Perhaps that was ground enough on which to decide that the proviso was inapplicable, but if that be correct it means that the proviso operates only in relation to evidence that could have been but was not given at the trial. Whether that limitation can properly be imported into the proviso is a difficult question, although I note that in Beldan the Court might have been thinking along similar lines. Both McPherson, J. and Thomas, J. pointed out that the Crown could not be criticised in that case for failing to lead at first instance the evidence upon which it was now seeking to rely: it was not the task of the prosecution, they said, to anticipate every matter relied upon by an accused in mitigation on the plea. That of course bore upon the question whether the evidence being relied upon before the appellate court could and should have been led below, a matter going to the exercise of the discretion to admit further evidence for the first time on appeal (even if not determinative in every case). Whether a conclusion that the evidence was not such as could and should have been led before the sentencing judge also underlay the opinion, expressed at least by McPherson, J., that the evidence in question was not "evidence not given at the trial" is another matter; perhaps it did, but it is not clear from the judgments that that was the ground taken.

Of more immediate concern, perhaps, is the distinction relied upon by Olsson, J. in R. v. J when ruling that the further evidence there in question lay outside the ambit of the proviso. After characterising that evidence (that the offender had failed to honour his earlier undertaking to give evidence) as not of the type contemplated by the proviso, Olsson, J. added[23]:-

"When the proviso to s.359 speaks of evidence that was not given at the trial it is, in my opinion, directing its attention to matters going to either the commission of the offence or the personal circumstances of the accused. It is not concerning itself with a situation in which the Crown is merely informing the Court that the person sentenced has failed to honour a specific undertaking given to the Court as an express basis upon which sentence is imposed.” [Emphasis added]

In the case now under appeal there can be no doubt but that the further evidence is of the personal circumstances of the accused and so, on this indication, evidence within the description found in the proviso to s.574. Does the proviso therefore apply?

[23]at 154-5

First, there is the possibility, raised by the foregoing, that the evidence now under consideration was not "evidence not given at the trial" within the meaning of the proviso. With great respect to those who might take a different view, I must say that I would have some difficulty in so concluding in this instance. It seems to me that evidence which is tendered to establish that the sentencing judge was positively misled as to the facts upon which he proceeded (or indeed which is led to enable evaluation of the strength of evidence given at trial) can readily enough be characterised, simply as a matter of fact, as "evidence not given at the trial" (once "trial" is accepted as extending, as it does, to the sentencing process even after a plea of guilty). Certainly, I see no reason why the evidence in the affidavits now relied upon could not have been led before the sentencing judge, had it been to hand, to answer the case being made on behalf of the offender; and it is difficult, then, I think to characterise it as other than “evidence not given at the trial” when it is led for the first time on appeal, having come to hand in the meantime. Even if one were to conclude that the evidence now put forward was not such as could and should have been led at first instance, I am not sure that that matters. Reasonable availability may be a criterion of "fresh evidence", but that may not make it a criterion of evidence which falls outside the proviso and so is unaffected by its inhibition on increasing the sentence. If it were to be taken as such, that could impinge significantly upon the safeguard originally intended.

On the other hand, it is true that when further evidence of past events is admitted, as in this instance, to demonstrate that the judge below was positively misled by what was put by respondent's counsel on the plea, the evidence is not being led for its intrinsic worth, but only to negate or deny facts put forward by the offender in mitigation. In such circumstances it may well be open to conclude that when the offender is being re-sentenced on appeal, he or she is not being re-sentenced “by reason of or in consideration of” the further evidence - and it is on that account that the proviso is not called into play. In my opinion that is the better view. In other words, if the further evidence goes simply to negate or destroy the facts otherwise put in mitigation, the offender when re-sentenced is re-sentenced “by reason of or in consideration of” the evidence as it stands otherwise – that is, the evidence before the sentencing judge but minus the facts in question which were put, falsely, in mitigation. In this respect it is I think significant that the proviso does not speak of the sentence being increased “in consequence of” the further evidence.

This was the approach suggested by King, C. J in R. v. J; it is also an approach suggested by the course taken by the Full Court in Kane. In J, King, C.J. said[24] in relation to the offender's not honouring his undertaking to give evidence:-

“It must be kept in mind that the basis of principle for the review of the sentence is not the punishment of the offender for departing from his undertaking or stated intention, but that the sentence was imposed on a wrong basis. Leniency has been granted on a ground which has proved to be baseless. The reason for the offender’s failure to give evidence against the alleged co-offenders is therefore immaterial. He is simply not entitled to the leniency which was based upon the expectation that he would co-operate in the administration of justice by giving such evidence.”

[24]at 147

In Kane, the further evidence went to show that there had, in truth, been no reformation of the offender: he had, in truth, been guilty of further offending although that had not been put to the sentencing judge who had therefore been misled in that respect. The Full Court considered that it was entitled to re-sentence upon the basis that there had been no reformation, not because of the evidence of further offending, but because, in the Court’s opinion, it was up to the offender to demonstrate that there had been reformation (if that was to be relied upon) and such had not been demonstrated. So here, where the false facts put before the sentencing judge were put in mitigation: such facts, if to be relied upon, had to be proved (or otherwise established to his Honour’s satisfaction) by the respondent and, as is now known by reference to the further evidence, they could not be so established. Therefore, on re-sentencing, this Court is entitled to proceed without regard to those further facts – the false facts – and it re-sentences, and increases the sentence, not "by reason of or in consideration of" that further evidence, but by reason of or in consideration of the evidence as it stands without regard to the false facts.

That would be sufficient without more to justify concluding in this case that the proviso does not stand in the way of our re-sentencing the respondent by increasing the sentence imposed below. There is in Victoria, however, another solution to the problem apparently posed by the proviso - and again it is a solution which was at least suggested in Kane. In Victoria, unlike the position elsewhere, s.574 is expressly extended and applied to a Crown appeal by s.567A(5), as I have said, but that extension and application of s.574 is itself expressly qualified. It is extended and applied only "so far as ... applicable and with such modifications and adaptations as are necessary”. I have said already that there is, at least at first glance, an obvious tension between the admission of the further evidence on a Crown appeal against sentence, as authorised by s.574 when applied by s.567A(5), and the proviso to s.574 if that operates to limit the powers of the appellate court to re-sentence. But if there is such tension, surely it must give way in view of the words directing adaptation and modification. I see no reason why one of the necessary "modifications and adaptations" should not be that the proviso must not be taken, in a case like the present where fraud by the respondent is alleged, to preclude re-sentencing to the disadvantage of the respondent. At least in part the proviso may be reflective of the common law, given what was said by the High Court in Dimozantos (No. 2)[25] and in particular the reference there made to the judgment of Mason, C.J. and McHugh, J. in Radenkovic[26], as cited by Brooking, J.A. in WJW[27]. The respondent is ordinarily not to be prejudiced by some change in circumstances after sentence was passed, whereas here re-sentencing is authorised in order to correct the deception practised on the sentencing judge - and surely in such a case the sentence can be increased. The proviso must thus far give way to commonsense. In the parlance of s.567A(5), s.574 is then being applied with such modification or

adaptation as is necessary. There is no need then to explore the other possibility left open in both Kane[28] and WJW[29] and which would focus on the words in s.567A(5) “with respect to procedure”. It may simply be assumed, in line with cases elsewhere, that if s.574 applies, then it applies with the proviso and that to that extent the proviso is operating “with respect to procedure”.

[25](1993) 178 C.L.R. 122 at 132

[26](1990) 170 C.L.R. 623 at 632

[27](2000) 115 A.C.R. 217 at 222

[28]at 766

[29]at 222

Subject to the foregoing I agree with Batt, J.A. that the evidence was properly admitted on this Director's appeal, that in consequence the appeal should be allowed and the sentence below set aside, and that the respondent should be re-sentenced as his Honour proposes.

BATT, J.A.:

On 15 September 2000 the respondent, Dianne Lesley Burgess, who was born on 30 December 1955, pleaded guilty on arraignment in the County Court at Melbourne to one count of intentionally causing serious injury. The maximum penalty for that offence is imprisonment for 20 years. She admitted 20 prior convictions and two prior findings of guilt from four court appearances. Only one of them, sustained as long ago as 12 April 1988, was for an offence of violence, namely, unlawful assault. But the instant offence was committed in breach of an undertaking to be of good behaviour given by the respondent as the price of her release on two charges on 13 December 1999. The judge heard a plea for leniency, during which three letters relating to the health of the respondent together with transcripts of “Willesee” telephone calls mentioned later were tendered. On the same day his Honour sentenced the applicant to be imprisoned for 30 months and ordered that the sentence be wholly suspended for a period of three years. He also made an order for the disposal of the knife used in the commission of the offence.

The circumstances of the offence were as follows. At approximately 5 a.m. on Sunday 5 March 2000 the respondent attended at the home address of her brother,

Barry Burgess, at a unit in Footscray. She was accompanied by Rosemary Sebbens, her brother’s then de facto wife. She requested entry, which her brother refused. On being refused entry, she commenced to smash the two front windows of the unit. As soon as they had been smashed, her brother granted her entry in an attempt to calm her down. Once inside, the respondent entered the loungeroom area where George William Taylor, a man of 52 years of age with a criminal history, was seated in an armchair. He and Burgess had been drinking for a number of hours. They were in fact alcoholics. The respondent walked up to Taylor and commenced to abuse him, calling him a dog and other offensive names. She grabbed Taylor’s glasses from his face and smashed them to the floor. She took hold of a serrated-edged knife approximately 10 inches in length and commenced to attack Taylor in a violent manner. She stabbed him in the throat. He raised his arms to protect himself and was stabbed in the hands. She then fled the unit and threw the knife over a neighbour’s fence.

The attack caused serious injuries to Taylor, which resulted in his losing a substantial amount of blood. One of the police witnesses, for instance, described Taylor as holding a blood-soaked towel to his neck. He was conveyed to the Western Hospital at Footscray by ambulance, where he remained for five days under treatment. The injuries which he sustained were a stab wound to the neck, lacerations to the right hand and palm, bruising to the face and body and extreme shock.

The respondent was interviewed by police on the morning of 5 March. She made no admissions, denying involvement in the infliction of injuries on Taylor and stating that she had actually assisted him by providing him with a towel. She did not then or through her counsel on the plea offer any reasons for committing the offence. It seems that she was affected by liquor at the time, but the genesis of the attack may be found in the apparently bad relations between her brother and herself. She had met Taylor only once or twice before, though she did advance criticism of his living habits in the interview, which, however, as the sentencing judge said, is pretty close to worthless as a credible account.

The respondent did not give evidence on the plea. Matters personal to her were put to the judge from the Bar table, she of course being present. It was said that she had experienced an extremely disadvantaged upbringing. His Honour was told the following. Her mother had been an alcoholic and the respondent had suffered sexual and physical abuse as a child. She had been in care in an institution between the ages of nine and 15½. She then went to Shepparton fruit picking. She was 21 when she married a Mr. Blake. They had two children when she was 23 and 24. Things were all right for a number of years and then her husband started drinking. She suffered a broken jaw, nose, and right arm and broken ribs as a result of an assault by him at Christmas 1989 and was in hospital for three months. On her discharge her husband threatened her with a firearm and stalked her, so she went to Queensland, changing her name to Gale.

The judge was told that her daughter, Debbie, who was going under the name Debbie Gale at the time, met a person called Leadbeater of whom the respondent disapproved. Her daughter left her and lived with Leadbeater and others in a caravan park at Mackay for a short time. His Honour was reminded of a much publicised siege by police of some men in a house in Queensland in 1993. The men had killed five people, one of whom was Deborah Gale, “the daughter of this defendant”. Counsel referred to the incident, quoting from the journalist Willesee’s telephone conversation with Leadbeater, in which the latter said that the girl was shot through the head and her body burnt, in order to give the killers time to get away. Counsel said that he recalled the respondent’s doctor describing one of the flashbacks the respondent experienced as a burning smell, which was related to the death of her daughter in 1993. A little earlier, when counsel had referred to the interview with Willesee and articles from various newspapers, his Honour was moved to say, “I remember at the time. It was disgraceful.”

Counsel also stated that the respondent’s son had died on 8 August 2000 as a result of a car accident on 28 June, when he had been going to collect his own three month old son to bring him to see the respondent, to whom, after some estrangement, he had been reconciled. Counsel then said that the respondent dated the death of her daughter as 4 March and that there were references in one of the medical reports to “anniversary depression”, saying that perhaps that explained the consumption of alcohol and the offending behaviour on 5 March 2000. He then informed the judge that the respondent was in a stable relationship and that she had fallen pregnant in an unplanned pregnancy and “was due in early June of next year”, which was at least eight and a half months after he was speaking. He again referred to the “anniversary aspect” and, in response to his Honour, said that his ultimate submission was that, whilst a sentence of imprisonment might be an appropriate penalty, it ought to be wholly suspended, “bearing in mind the circumstances I have outlined and her present situation”. His Honour enquired as to the Crown’s attitude and the prosecutor said, “We don’t disagree with that, sir. Custodial sentence, given the serious nature of the offending, but we don’t say it has to be immediate.” A little later the prosecutor said, “Yes, it is a tragic case all round.”

In his sentencing remarks his Honour summarised the offence and the respondent’s prior convictions. He noted that the undertaking to be of good behaviour was in force at the time of the offence and described the assault upon Taylor as “a serious example” of the offence in question. He then summarised much of what he had been told concerning the respondent’s background and personal circumstances. He said that it was “as tragic a background as one could hear”. He referred to the murder of the respondent’s daughter “in most extraordinary, public and tragic circumstances”, saying that the situation relating to that incident as he recalled it would be enough to affect anyone severely. He therefore accepted that the respondent was a very fragile person at the time the instant offence was committed and that in all probability she suffered from post traumatic stress disorder. He then said in substance that the probabilities were strong that the respondent’s offending had been triggered by its being the day after the anniversary of her daughter’s death. He said that the respondent was not an anti-social person as such nor one with a drinking problem although she binged from time to time to overcome her distress. He noted the recent death of her son and the fact that she had in the past been diagnosed and treated for a brain tumour. He completed his review by saying, “All in all, it is a very sad and tragic story”.

His Honour said that he gave weight to those matters but he had to balance them against the fact that it was a serious assault, for which the maximum penalty was 20 years’ imprisonment, and that ordinarily a person convicted of such an assault would be dealt with by the imposition of a custodial sentence of some significance. He then proceeded to pass the sentence referred to earlier.

The Director of Public Prosecutions has appealed pursuant to s.567A of the Crimes Act 1958 against the sentence so passed. He considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest. In the circumstances mentioned later, although they are somewhat unusual, such a state of mind is amply open to the Director. The conditions on which the Director’s right to appeal depends are thus satisfied, as indeed counsel for the respondent accepted. There are two grounds of appeal, which, slightly edited, are as follows:

1.Upon the plea in mitigation, the respondent made several factual assertions which, although false, were accepted by the sentencing judge, namely:
(i)that the respondent was the mother of Deborah Maree Gale, who was killed in 1993, and
(ii)that the respondent’s son Jason had been killed in a motorcycle accident in June 2000 in Victoria,

and, as a consequence of making findings of fact favourable to the respondent with respect to those assertions, the judge gave excessive weight to matters of mitigation.
2.As a consequence of the erroneous findings of fact and of excessive weight being given to matters in mitigation, the judge erred in that he:
(i) imposed a sentence which was manifestly inadequate; and
(ii)ordered the whole of that term of imprisonment to be wholly suspended.

In support of his appeal the Director filed without objection an affidavit sworn on 4 December 2000 by the solicitor who appeared as prosecutor on the plea, one sworn by Jason Andrew Blake on 31 October 2000 and one sworn by Susan Deborah Thorogood on 14 December 2000. It is unnecessary to set out the contents of those affidavits and the exhibits to them. It is sufficient to say that they demonstrate beyond peradventure and beyond reasonable doubt[30] –
[30]R. v. Chanh Nghia Ly (unreported, New South Wales Court of Criminal Appeal, 16 December 1992), p.10.

·    that a Deborah Maree Gale, aged 14 years, did die of gunshot wounds to the head on 28 March 1993 (not 4 March 1993) at Lake Broadwater, Dalby;
·    that she was not a child of the respondent, but of Wayne Francis Gale and Susan Deborah Gale, now Thorogood, the latter of whom, after separating from the former, lived at a caravan park at Bundaberg, Queensland;
·    that the respondent had in fact met Deborah Maree Gale when the latter was living at a caravan park in Bundaberg with her mother and the respondent was living at the same caravan park with her son, Jason, referred to below;
·    that the respondent had not acted as mother to Deborah Maree Gale, though the child had lived with the respondent for a month or two against the wishes of her mother, for part of that time in Victoria;
·    that the respondent subsequently understood that Deborah Maree Gale had been raped and burned to death;
·    that the only child of the respondent, at least at the date of sentence, was Jason Andrew Blake, who was the son of Garry Robert Blake and the respondent, they having married on 24 December 1975;
·    that the relationship between Jason Blake and his mother, the respondent, is, in his expression, “non-existent”;
·    that Jason Blake was not involved in a motor accident in August 2000 and, rather than dying in August 2000, was alive at least as late as 4 December 2000, when he swore the abovementioned affidavit;
·    that the prosecutor on the plea was unaware of any of the foregoing facts.

Jason Blake’s affidavit also shows that his only son was aged 18 months at the beginning of December 2000 and was therefore about 12 months old in June 2000, not three months. With regard to the statement on the plea that the respondent was then pregnant, this court was first told by counsel for the respondent that he was instructed that she had lost the baby. The court then drew attention to medical records showing that the respondent had had a complete hysterectomy in May 1986 and to the eight and a half month period that the previous instructions involved, and gave counsel the opportunity to take further instructions. After the luncheon adjournment counsel stated that his client had believed that she was pregnant and that there had either been a miscarriage or a quirk of nature. I am quite unable to accept any of that.

The cases appear to show that the three affidavits and the exhibits to them (excluding the hearsay information in one exhibit) are clearly admissible as tending to establish an induced misapprehension by the judge as to material matters (namely, tragic bereavements suffered by the respondent and going to palliate her offence or to mitigate punishment), producing a miscarriage of justice, a principle applicable in criminal as well as civil cases: R. v. Cox[31]; Meek v. Fleming[32]; R. v. Kane[33]; R. v. Rumpf[34]; R. v. Beldan; ex parte Attorney-General[35]; R. v. Cartwright[36]; Fox and Freiberg, Sentencing – State and Federal Law in Victoria, 2nd edn., para.13.213, n.110. (Having regard to the way in which the pleas in mitigation of penalty are conducted in Victoria, it cannot be – and it was not – suggested that the Crown must be prepared to verify or challenge every unheralded assertion made from the Bar table on a prisoner’s behalf as soon as it is made.[37])
[31][1960] V.R. 665 at 666.
[32][1961] 2 Q.B. 366 especially at 378-379, 381 and 383. In those passages respectively the three Lords Justices stated that the evidence was admissible under another principle than that relating to fresh evidence (which may not have been satisfied), namely, to prevent a miscarriage of justice.
[33][1974] V.R. 759 at 764 (a Crown appeal).
[34][1988] V.R. 466 at 472 and 478.
[35][1986] 2 Qd.R. 179 at 180-1, 188-9 and 200-1.
[36](1989) 17 N.S.W.L.R. 243 at 257.
[37]cf. Beldan at 189 per McPherson, J. (dissenting, but not on this point) and 201 per Thomas, J.

However, after the conclusion of argument the court was concerned about the possible application of the proviso to s.574 and accordingly it sought the written submissions of the parties upon the question whether, in substance, the proviso precluded the Director’s reliance upon the three affidavits and their exhibits. Having received and considered the submissions, I am of the opinion, for the reasons that follow, that the proviso does not have that effect and that the first sentence in the immediately preceding paragraph of these reasons is a correct statement of the law.

Section 574 is a provision supplementing the powers of the Court of Appeal particularly, but not solely, in relation to the procuring or reception of evidence. It provides, “For the purposes of this Act the Court of Appeal may if it thinks necessary or expedient in the interests of justice” do certain things. The section has, even after paragraph (f) was repealed, as mentioned later, been treated as permitting the reception of certain evidence by affidavit on a prisoner’s application for leave to appeal against sentence: R. v. Babic[38]. This is so even though paragraph (c), authorising the reception of evidence if tendered – which is apt to extend to affidavits - relates to the evidence of witnesses who are “competent but not compellable”, whilst paragraph (b), which does apply to “compellable witnesses”, only authorises ordering the attendance and examination – that is, orally – of such witnesses. Paragraph (c) seems to be treated as though the word “even” were understood before the expression “of any witness … who is a competent but not compellable witness”. Certainly it was expressly under the corresponding paragraph, s.671B(c) of the Criminal Code of Queensland, which, though not identical, contains the words just quoted, that like evidence showing misleading of the sentencing judge was admitted in Beldan.
[38][1998] 2 V.R. 79 at 80.

There is a proviso to the whole of s.574 reading:

“Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.”

Section 567A, under which this appeal is brought, provides in sub-s.(5) that “the provisions of sections 573, 574, 576, sub-section (5) of section 579, and sections 580, 581 and 583 with respect to procedure” shall so far as those provisions are applicable and with such modifications and adaptations as are necessary extend and apply to appeals under s.567A and in particular with the modification that any reference to “appellant” shall be read and construed as if it were a reference to “respondent”. When it is recalled that the proviso to s.574 derives from provision introduced in those terms as long ago as 1907 in England and 1914 in Victoria, it is remarkable how little commentary on the proviso there is in the books here or elsewhere and how few cases there are which have considered it. Counsel referred us to only two cases which considered the proviso directly and I have been able to find only a few others.

It does not appear to be suggested that the expression “the trial” in the proviso should be read literally so that the proviso is inapplicable where an accused person pleads guilty, and that was not the ground on which proviso was held inapplicable in Beldan, where the respondent to an Attorney-General’s appeal had pleaded guilty. I am prepared to assume that the words “at the trial” are to be understood as meaning “at first instance”.[39] Section 574 is widely expressed, its powers being given “[f]or the purposes of this Act”, not merely for the purposes of Part VI, let alone the purposes of appeals and applications under s.567. It cannot, in my view, be said that the proviso to s.574 has no application in a Director’s appeal on the ground that s.567A, authorising such an appeal, was inserted in the Act much later and by implication repealed or excluded the proviso as regards Director’s appeals. This is because s.567A(5) expressly picks up s.574, which is, at any rate with modifications and adaptations, applicable, and the proviso is part of s.574 and, in any case, qualifies its empowering provisions. McPherson, J. in Beldan[40] certainly considered that the proviso ordinarily applied to a Director’s appeal, as by implication did Olsson, J. in the South Australian Court of Criminal Appeal in R. v. J[41] and the New South Wales Court of Criminal Appeal in Chan Nghia Ly[42]. The view which I have just expressed is subject, in the case of this State, to a possible qualification arising from the words “with respect to procedure” in s.567A(5). I agree with the appellant that the sub-section is inelegantly expressed. There are several difficulties of interpretation relating to the expression quoted. The Second Reading Speech for the Bill for the Criminal Appeals Act 1970, which inserted s.567A, is of no help, merely stating that procedural provisions are contained in proposed sub-s.(5). There is a question whether the expression applies to all the provisions enumerated or only to the last three sections mentioned. Even if the former view is correct (as I think, for as a matter of syntax[43] the expression qualifies ”the provisions”) it is not necessarily the case that each provision is not entirely procedural. I consider that s.574 is entirely procedural. Clearly paragraph (g) is procedural, but the evidentiary powers also are, in my view: the law of evidence, being adjectival, is often treated as part of the law of procedure as opposed to substantive law, and, after all, s.574 is found in a Division headed “Procedure”, that heading being part of the Act: Interpretation of Legislation Act 1984, s.36(1)(a). Indeed all the provisions enumerated in s.567A(5) are procedural.[44] This leads me to think that the expression quoted is not definitive (“those provisions of sections ... that relate to procedure”), and that it does not denote extent (“so far as the provisions of sections ... relate to procedure”), but rather that it is merely a descriptive parenthesis (“the provisions of ..., which relate to procedure”, the commas being critical, i.e., “the procedural provisions consisting of sections ...”), a device found more frequently in English statutory drafting than Victorian. In short, Parliament is simply pointing out that all the provisions enumerated are procedural. The proviso is integral to, and qualifies the body of, s.574[45]. If, as I think, s.574 applies to a Director’s appeal, so, subject to its proper interpretation, does the proviso. I do not accept the appellant’s submission to the contrary[46]: fresh evidence in the ordinary acceptation of that term may by leave be adduced by appellant or respondent, but the respondent is protected as a matter of high principle by the proviso from suffering an increase[47] in sentence by reason of the fresh evidence, as opposed to by reason of correction of error made on the evidence and other material that was before the sentencing judge.
[39]The appellant in this case submitted that this was generally the meaning of the word in the Crimes Act, in contrast to s.80 of the Commonwealth Constitution (as appears, e.g., from Cheng v. The Queen (2000) 74 A.L.J.R. 1482 at para.[51]). In R. v. WJW (2000) 115 A.Crim.R. 217 at 222 Brooking, J.A., with whom Ormiston and Chernov, JJ.A. agreed, refrained from expressing a view on the point, but noted that in R. v. Bishop [1998] 1 V.R. 531 the Court of Appeal had used s.574 on a sentencing application after a plea of guilty, despite the reference in the relevant paragraph to “the trial”. In Babic the applicant had pleaded guilty, but the evidence was held inadmissible.
[40]At 188.
[41](1992) 59 S.A.S.R. 145 at 154.
[42]At p.10.
[43]The absence of the conjunction “and” before “sub-section” points strongly against the other view.
[44]I think this is the true view even of s.583, which authorises the making of rules of court.
[45]It is, accordingly, in my opinion, not “non-procedural”. It would be curious if, of all the provisions, only the proviso were not procedural and the quoted expression were designed merely to exclude the application of it alone, when that could have been done far more directly. Compare, however, the tentative remark in R. v. Kane at 766.
[46]Nor, it follows, with great respect, do I adopt the tentative remark in R. v. Kane at 766 based on the words “with such modifications and adaptations as are necessary” in the proviso, which would mean that the proviso was inapplicable on any Director’s appeal, a result at which one would be, for reasons of policy and justice, reluctant to arrive unless absolutely compelled to do so.
[47]The reference to a “less severe” sentence in s.567A(4) should be noted.

It might be thought on a literal view that, whether or not the proviso is treated as an independent enactment, since at the least it qualifies the power in paragraph (c) the Director cannot in any appeal he brings rely on any evidence whatsoever not given at first instance for the purpose of having the sentence increased. If that were the position, it would reveal a regrettable lacuna in a case such as the present, when justice has miscarried through the conscious misleading of the sentencing court. For that would mean that no appeal against the leniency of a sentence which a judge had been induced by deliberate misrepresentation by an accused person to impose could be brought; and, even if the accused person were prosecuted for and convicted of an offence alleged to arise out of the misleading of the sentencing judge, the penalty for that offence could not be increased to compensate for the leniency of the first sentence. In short, the error in the latter could not be corrected. That, however, is not the interpretation or operation that was given to the equivalent provision, the proviso to s.671B of the Queensland Code, in Beldan, where the appellant Attorney-General sought to tender under s.671B(c) new evidence to show that the sentencing judge had been misled by the respondent, just as the Director seeks to do here. That evidence was objected to on the ground of the proviso, but the objection was overruled. The most detailed discussion of the proviso appears in the judgment of McPherson, J. Although his Honour dissented on another and decisive point, the Court of Criminal Appeal of Queensland was unanimous in admitting the evidence. (The majority went on to rely on the evidence in allowing the appeal.) Having noted that there was no reason why the provisions of s.671B including the proviso should not be applied to an appeal by the Attorney-General against sentence under s.669A[48] once that section had been inserted, McPherson, J. said[49]:

“Nevertheless, the prohibition [the proviso] contains is confined to evidence ‘not given at the trial’. Whatever may be the limits of the prohibition in the proviso, the evidence now sought to be adduced by the Crown does not fall within them. The material sought to be placed before us is directed at evidence ... and other statements received from the Bar table ... that was in fact given at the trial and which is said to have involved a deliberate misleading of the court in an influential respect. In cases of that nature courts have shown a strong disposition to interfere on appeal: see, for example, Meek v. Fleming; Bills v. Roe; Skone v. Skone. It would be surprising if the prohibition contained in the proviso was designed to cover evidence of that kind.
Here there is no doubt that the evidence sought to be adduced by the Crown ... satisfies the tests that have been laid down in the many cases governing the reception of further evidence on appeal.”

[48]This section contained no equivalent to the Victorian s.567A(5). Nor did the New South Wales Act nor, it seems, the South Australian Act.

[49]At 188-189 (citations omitted).

Andrews, C.J. simply said[50] that the principles regulating the admission of fresh evidence were satisfied. Thomas, J.[51] said:

“It is enough to say that if material fraud has been practised upon a sentencing court, evidence of that fact would normally be received on an appeal such as this so as to allow the true facts to be known and understood. It is in the interests of justice to do so. The reception of such evidence meets the usual principles governing the reception of fresh evidence ..., and does not infringe the proviso to s.671(B) of the Code.”

On the question of admissibility, then, the ratio decidendi of Beldan was that the proviso to s.671B applies to appeals by the Attorney-General, but does not preclude the admission of evidence of the kind there in question. The passage in the judgment of McPherson, J. was approved and applied in R. v. J[52] by Olsson, J. (with whom King, C.J. and Mullighan, J. agreed) and in Chanh Nghia Ly[53], both of which were Crown appeals where prisoners had failed to honour undertakings to give evidence against co-offenders on the basis of which they had been sentenced.[54] The passage had earlier been referred to with approval by Hunt and Badgery-Parker, JJ. in R. v. Cartwright[55]. Finally, I refer again to R. v. Kane. That also was a Crown appeal. Although the Full Court did not find it necessary to have resort to the additional evidence tendered by the Crown, and provisionally admitted, it said[56], “[T]hat evidence would appear to be admissible ... as tending to establish an induced misapprehension by the judge as to a material matter ..., producing a miscarriage of justice.”[57] In my view, considerations of policy and justice support the interpretation and operation given to the proviso by McPherson, J. and this Court should follow the decision of the Queensland Court of Criminal Appeal. The evidence is received and used, not on the merits of the respondent’s personal circumstances, but to destroy or negate[58] false material as to those matters put to the sentencing judge.

[50]At 180.

[51]At 200-201 (emphasis added).

[52]At 154.

[53]At p.10, as Spender, J. noted in Todhunter v. Attorney-General (Cth.) (1994) 52 F.C.R. 228 at 246; affd. without reference to the point sub nom. Todhunter v. United States of America (1995) 57 F.C.R. 70.

[54]The South Australian Act as then in force seems not to have had an equivalent of the Victorian s.567A(1A) and (4A). The New South Wales Act did not have one.

[55]At 257.

[56]At 764.

[57]It is true that the Full Court went on to say that evidence admissible for the purpose identified on an appeal in civil proceedings was equally admissible on an appeal in criminal proceedings, referring to R. v. Cox. In the latter case the Full Court had said at 666 that the reception of the affidavits there tendered could be justified on more than one ground, but that it was sufficient to refer to s.574(f), which enabled the Full Court to exercise any powers which might for the time being be exercised on appeals in civil matters. Paragraph (f) was, however, repealed by the Constitution (Court of Appeal) Act 1994 with effect from 7 June 1995.

[58]In Chanh Nghia Ly at p.10 the Court said that it was a matter of “evaluating the strength” of the evidence which had been given at trial.

If I am wrong in following McPherson, J.’s view, I would respectfully adopt the reasoning of Phillips, J.A. (whose reasons for judgment I have had the benefit of reading) so far as it turns on the words “by reason of or in consideration of” in the proviso.

This appeal was originally listed before a court constituted by Tadgell and Callaway, JJ.A. and me on 6 December 2000, when it was ordered to be taken out of the list and re-fixed. The principal reason for the court’s so ordering was that the solicitor then appearing as counsel for the respondent stated that he desired to file psychiatric (or, it may be, psychological) evidence and evidence to be gathered from Tasmania, New South Wales and Queensland. In the afternoon of 13 June 2001, the day before the re-fixed hearing of the appeal was due to commence, the court received an affidavit sworn that day by the respondent’s solicitor to which were exhibited voluminous records relating to the respondent. They were child protection and social welfare records from Tasmania; her medical records from hospitals in Rockhampton, Mackay and Melbourne and from a Shepparton medical practice; records relating to the conviction of the respondent’s husband Garry Robert Blake on 7 March 1989 for recklessly causing injury to her on 2 December 1988, for which he was sentenced to three months’ imprisonment wholly suspended; records relating to the conviction on 21 February 2000 of Stephen Michael White, the respondent’s then de facto husband, for unlawful assault upon her on 25 October 1999 and again on 17 February 2000 and for other offences on the latter date, including breach of an intervention order and threatening to kill her, for which he was sentenced to three months’ imprisonment in aggregate, as well as convictions on 5 June 2000 for a later breach of the intervention order and associated offences, for which he was placed on a two year community-based order. (I interpolate that the respondent’s record of interview concerning the instant offence shows that White was in the St. Kilda lockup at the time of her interview.) Finally, there was a medical report from Dr. Sneyd of the above-mentioned Shepparton medical practice dated 13 June 2001. All but the last of those exhibits were in existence at the time of the plea and could have been produced on the plea. The last exhibit relates to the respondent’s health at the time the appeal was heard. It follows that none of the exhibits can be used to support the orders below, though all may be used on any re-sentencing by this Court.

The position, then, is as follows. The two factual assertions impugned in the grounds of appeal were indeed made by counsel for the respondent on the plea. (I disregard as immaterial that the fact that the middle name of the girl was not used and that the accident to the son was said to be a motor car (not motorcycle) accident which occurred in June, not August, 2000.) The sentencing judge accepted those assertions and, as his statements which I have set out in direct and indirect speech show, relied heavily upon them in mitigation of the penalty which, as he stated, would ordinarily have been imposed. Those assertions, made on the instructions of the respondent, were false. By reason of his reliance on them the judge was led to give excessive weight to mitigation on the material before him. A miscarriage of justice has occurred as a result of the misapprehension as to material matters induced in the sentencing judge by the false assertions. Accordingly, there was specific error on the part of the County Court judge and the sentencing discretion is re-opened for exercise by this Court. Counsel for the respondent accepted that the position was as I have set it out in this paragraph.

It must be steadily borne in mind in re-sentencing the respondent that she is to be re-sentenced only for the offence to which she pleaded guilty on 15 September 2000. Re-sentencing presents a particular problem in this case. For myself, having regard to what has happened in relation to the two significant factual matters challenged by the Director and certain other factual matters I have mentioned and to the unreliability of the respondent which her record of interviews makes manifest, I am not prepared to act as a sentencing judge on other assertions as to matters personal to the respondent that were made to the sentencing judge from the Bar table, unless corroborated, or upon statements in the medical reports that are based on any history given by the respondent, as opposed to statements as to conditions found on examination or as to medical or surgical treatment administered to her. Counsel indeed accepted that this approach was proper.

But Mr. Dickinson, in the course of a sustained plea before us, was able to rely upon the voluminous additional material exhibited to the affidavit of 13 June 2001. That reliance, at least so far as I was concerned, was subject to the same qualification as mentioned already, namely, that statements which derived ultimately from any history given by the respondent were, by themselves, of no weight. The same qualification applied to statements made to us from the Bar table on the instructions of the respondent. Counsel was judicious in his use of the additional material, indicating that the court could confine itself to the references which he gave. From the material he demonstrated –

·    that the respondent had been made a ward of the State in Tasmania on 10 August 1970 and had thereafter been largely in foster or institutional care as a child;
·    that she has had a long history of hysteria and mental disturbance, the first instance of this being an hysterical outburst on 16 October 1970, not long before her fifteenth birthday, when she was admitted to a psychiatric clinic;
·    that she had hydrocephalus secondary to a previous head trauma from violent parenting and relationships and that a ventriculo-peritoneal shunt was inserted in November 1997 and replaced in March 1998;
·    that she had been assaulted by her husband in December 1988 and by her de facto husband in 1999 and 2000, as stated earlier, with the result that she suffered severe injuries necessitating hospitalisation and surgical or dental treatment;
·    that after an altercation, especially with alcohol, she became suicidal and harmed herself;
·    that as a result of one such incident she was briefly admitted under the Queensland mental health legislation as a regulated patient on 26 January 1999;
·    that she was a patient of the Goulburn Valley Area Mental Health Service from 28 October to 23 December 1999, having presented with a depressive episode and intense suicidality and being diagnosed or provisionally diagnosed as suffering from a depressive disorder and post traumatic stress disorder;
·    that in the history the respondent gave to several doctors and others she spoke of Deborah Maree Gale as her daughter, both before and after the latter’s death.
It is clear, too, that, to speak in general terms, the respondent had a deprived childhood and has had, for much of it at any rate, a difficult adulthood and that her health has been poor.

The court was concerned about how, if at all, the matters demonstrated from the material bore upon the respondent’s offending conduct in question. Despite the fact that the order of 6 December last had been made for the purpose, amongst others, of enabling the respondent to provide to the court a psychiatric or psychological report about herself, this was not done, the reason for that being explained by counsel. Wishing to be sure that it had a proper understanding of the respondent’s mental condition, particularly at the time of the instant offence, the court at the conclusion of argument on 14 June 2001 adjourned the further hearing of the appeal sine die to enable the respondent to obtain for the court as soon as possible a psychiatric report prepared after the psychiatrist had perused the material exhibited to the affidavit of 13 June and been informed that the respondent’s statements did not appear to be fully reliable, as evidenced with respect to factual matters central to the appeal. On 30 July and after some inquiries by the court an affidavit sworn that day by the respondent’s solicitor was filed exhibiting reports by Dr. Ruth Vine, consultant psychiatrist, dated 18 May and 27 July 2001 and a report on the respondent dated 30 July 2001 from the director of psychiatry at Goulburn Valley Area Mental Health Service.

The last-mentioned report confirmed what has been stated above about the respondent’s being a patient of that Service in 1999 and stated that no psychotic symptoms were recorded in that period. The report then dealt with the respondent’s second presentation to the Service on 11 April 2001 under similar stressful situations, facing the present court case, stating that she had had a stroke recently, appearing angry and anxious, harbouring suicidal thoughts and having increased her consumption of alcohol. A psychiatrist’s review on 20 April 2001 described her as having a depressive syndrome in remission with no suicidality and her affect as bright and spontaneous. She was later discharged to the care of her general practitioner.

Dr. Vine, having interviewed the respondent for her earlier report, re-interviewed her on 20 July. The respondent again stated that, in her opinion, it was likely that she had informed her legal advisers regarding the manner and time of death of her “daughter”, Deborah Gale, and that it was likely that she had informed them that her son was dead, as at that time she was angry with him. Dr. Vine then summarised the relevant background material, some of which is referred to above. For present purposes I need only note the following. The respondent told Dr. Vine that there was no validity in the assertion she was recorded as having made in 1988 of having lost two twins at two and four months. Dr. Vine indicated her understanding to be that a past history of carcinoma of the liver or stomach had never been substantiated. More significantly, Dr. Vine noted that during the admission of the respondent to the Royal Melbourne Hospital in February 1992 the assessing doctor raised the question of Munchausen Syndrome, now also referred to as Factitious Disorder, which Dr. Vine described as a poorly understood disorder in which a person consciously feigns physical or psychological symptoms with the apparent motivation being to assume the sick role and to receive treatment from health providers. It differs from malingering in that with malingering there is a clear external incentive not present with Munchausen Syndrome. Dr. Vine stated that it seemed that any question of Munchausen Syndrome was not followed up at that time and that the assessing psychiatric staff were satisfied that the respondent’s physical presentation was based on a reasonable concern regarding physical symptoms. At the time of re-interview the respondent was abstinent from alcohol, having been so shocked and frightened at what had occurred that led up to these legal proceedings.

After interviewing the respondent twice and closely perusing the materials provided to her, Dr. Vine then expressed her opinions.. She remained of the opinion that the respondent does not suffer, and has no history of having suffered, a psychotic disorder and that her comments regarding her son and her “daughter” are not based on delusional beliefs. During periods in her life the respondent has suffered from significant somatic problems and, while very often they have had a basis in objective pathology, at other times their cause has been exaggerated or elaborated. This tended, according to Dr. Vine, to represent a selective exaggeration rather than complete falsehood. Thus, she saw Deborah as her daughter, but Dr. Vine did not form the opinion that she ever believed that she was the biological mother of Deborah. Her giving of the same history concerning Deborah to her legal adviser as previously to her medical advisers, while it certainly may have been done to generate sympathy, was not equivalent, Dr. Vine considered, to deliberately misleading with an intention for personal gain. The assertion that her son Jason had been killed a few months earlier would appear to have been a new assertion, understandable, Dr. Vine considered, in the light of his rejection of her, and representing, Dr. Vine opined, exaggeration or stretching of the truth rather than a complete falsehood. When intoxicated by alcohol the respondent demonstrated emotional lability, impulsivity and disinhibition, though the episode in which alcohol was associated with violence against another was unusual. It was encouraging that the respondent had been able to establish stability in her accommodation, her relationship (with a man having the first name of Graham) and her abstinence from alcohol.

Although there is, perhaps strangely, no direct evidence of it other than the respondent’s statements to the police, which cannot be relied upon, it seems reasonable to infer, from a neighbour’s evidence and from references in the medical and hospital records to the respondent’s drinking, that the respondent was affected by alcohol at the time of this offence, and Dr. Vine, I note, is inclined to this view. It seems that under the influence of alcohol the respondent becomes unstable and disinhibited, giving way to hysteria and violence.

Mr. Dickinson argued that the court should not come to the conclusion that a different sentence should have been passed, to use the language of s.567A(4). He submitted that the head sentence of 30 months’ imprisonment was appropriate and that the total suspension of that term was itself appropriate. He pointed out that a wholly suspended term of imprisonment can satisfy the need for general deterrence, citing R. v. Schwabegger[59] and D.P.P. (Cth) v. Carter[60]. But it cannot be denied that a suspended sentence of imprisonment is more lenient than a sentence of imprisonment for the same term that is not suspended. In support of the sentence imposed below, Mr. Dickinson put it that the prior convictions, including that for unlawful assault, were largely irrelevant, so that the offence was “utterly out of character” and this was the first occasion on which he had done harm to others. The offence was not premeditated. The respondent’s criminality was reduced by the effect of drink upon her and by her psychological problems. Although he could not say that the double jeopardy jurisprudence applied, the respondent had been at liberty for nine months and indeed had served that period of her sentence. He reminded the court that she had pleaded guilty.
[59][1998] 4 V.R. 649 at 657.
[60][1998] 1 V.R. 601 at 607-608.

The Director took a somewhat ambivalent approach in the light of the material exhibited to the affidavit of 13 June. It was not significant, he submitted, that there had, in effect, been no prior violence against the third parties committed by the respondent. On the other hand, there were mitigatory factors of considerable weight. She clearly had a dysfunctional personality. The misinformation she put forward was so extreme as to raise a question as to her ability to function in the community and he queried whether an appropriate sentence was one of suspension in the absence of evidence of continuing support available to her.

I think that a different sentence should have been passed and would allow the appeal. As the President pointed out during argument, the primary consideration must be the nature and gravity of the offending together with the criminality of the offender. The offence of intentionally causing serious injury is a very serious one, as is shown by the maximum penalty provided for it, and ordinarily an immediate custodial sentence of some duration is the only appropriate disposition despite even youth, good prospects of rehabilitation, lack of prior convictions and a plea of guilty (by no means all of which are present here): R. v. Teichelman[61]. The instant offending was, as the sentencing judge observed, a serious example of the offence, involving as it did the use of a knife to stab the victim in the neck, a very vulnerable part of the human body. Whilst the respondent is fortunate that the knife missed vital organs and the laceration was not permanent, the amount of blood lost shows the seriousness of the injury. Moreover the attack, although unpremeditated, was unprovoked. The offence was aggravated by being committed in breach of the undertaking to be of good behaviour, and the applicant had some prior convictions, though only a minor and old one for violence. The mere fact that the respondent was prone to lose control and become violent under the influence of alcohol is not, in my view, a mitigating factor. Nor does the fact that this was in effect the first occasion on which the respondent did real violence to another person reduce her criminality. It merely negates what might otherwise be an aggravating circumstance. The respondent’s emotional or mental instability and unfortunate background do go in mitigation, as does the plea of guilty. But, where the psychiatric reports do not show a psychosis or mental illness directly causative of the offending, those factors do not, in my view, moderate[62], or at any rate moderate sufficiently for the respondent, the principal sentencing purposes of general deterrence and specific deterrence, which, along with denunciation of the offence and just punishment, require immediate imprisonment for this offence.[63] Moreover, on the material that I accept, the prospects of rehabilitation are not very strong, though Dr. Vine’s concluding remarks offer some hope.
[61][2000] VSCA 224 at [20].
[62]Compare, for example, R. v. Anderson [1981] V.R. 155; R. v. Tsiaras [1996] 1 V.R. 398; and R. v. Yaldiz [1998] 2 V.R. 376.
[63]This is simply to say that the recently-tendered reports do not work a reduction of sentence. It is not to increase the sentence by reason of or in consideration of them in contravention of the proviso to s.574.

In his written outline of argument Mr. Dickinson submitted that, in the alternative to a suspended sentence of imprisonment, a community based order with special conditions requiring the respondent to undergo psychiatric or psychological treatment or an intensive correction order was an appropriate sentence in all the circumstances. In my view, an intensive correction order is not appropriate since the maximum period of imprisonment to be served in the community that may be imposed, namely, one year, is insufficient. The nature of a community based order and the fact that it must not exceed two years, in my opinion, make that form of disposition, too, inappropriate. Since I and, as I understand it, the other members of the court were always of those views it was not necessary to make an order under s.95(2) of the Sentencing Act 1991.[64]
[64]Compare R. v. Wright [1999] 3 V.R. 355 at 364.

Although the respondent is standing for sentence a second time, that comes about in the peculiar circumstances set out earlier and accordingly the so-called double jeopardy principle does not apply to inhibit this Court as regards its sentence. In fixing the period of immediate incarceration I bear in mind the fact that the respondent has been at large for over eleven months.[65]. I would confirm the sentence of thirty months’ imprisonment passed below, but would quash the order for suspension and in substitution for it direct that the respondent serve a minimum of eighteen months before being eligible for parole. The use of the parole regime will, in my view, be more beneficial to the respondent than suspension without supervision.
[65]That fact does not preclude the court from allowing a Director’s appeal: D.P.P. (Cth.) v. Milne [2001] VSCA 93.

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[2001] VSCA 135

27 August 2001