DPP v Stewart
[2003] VSCA 197
•21 November 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 194 of 2003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| DARYL LESLIE STEWART |
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JUDGES: | WINNEKE, A.C.J., CHARLES and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 November 2003 | |
DATE OF JUDGMENT: | 21 November 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 197 | |
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Criminal law - Sentence - Rape and nine counts of indecent assault - Crown appeal - Sentence of two years' imprisonment wholly suspended - Whether suspension of whole term led to manifest inadequacy - Exceptional circumstances - Appellate court's discretion on Crown appeal - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms K. E. Judd | Solicitor for Public Prosecutions |
| For the Respondent | Mr J.P. Dickinson | Slades & Parsons |
WINNEKE, A.C.J.:
I will invite Charles, J.A. to give the first judgment in this appeal.
CHARLES, J.A.:
The respondent, Daryl Leslie Stewart, was born on 31 January 1969 and is now aged 34. On 31 March 2003 He pleaded guilty to 7 counts of indecent assault contrary to ss.44(1), 42 and 39 of the Crimes Act 1958, two counts of committing an indecent act with a child under the age of 16 years and one count of rape. The maximum penalty for indecent assault pursuant to s.44(1) (count 1) and s.42 (count 2) was five years' imprisonment. The maximum penalty for indecent assault in relation to counts 3 to 7 was 10 years' imprisonment. The maximum penalty for committing an indecent act with a child under the age of 16 was 10 years' and for rape was 25 years' imprisonment.
After a lengthy plea, to the circumstances of which I shall turn later, the sentencing judge on 16 June 2003 convicted and sentenced the respondent on various counts to terms of imprisonment as follows.
1.Indecent assault - 3 months
2.Indecent assault - 3 months
3. Indecent assault - community-based order, 2 years operational
period with 350 hours unpaid work
4. Indecent assault - 6 months
5. Indecent assault - 6 months
6. Indecent assault - 9 months
7. Indecent assault - 9 months
8. Indecent act with - 9 months
a child under 16
9. Indecent act with 9 months
a child under 16
10. Rape 2 years
The judge made no order as to cumulation. The sentences of imprisonment were wholly suspended for a period of 3 years. The judge did not make a declaration that the respondent was a serious sexual offender.
The circumstances giving rise to these offences were as follows. There were five complainants, three brothers, RS, PS and BS, and two other boys, DM and JA. The offending involved incidents over a period of 11 years, that is, from 1991 to 2002. The respondent had met the complainants through their mutual association with a sporting club. He formed friendships with them and often provided them with cigarettes and alcohol. The offending occurred when the respondent went on holidays with the complainants and their families or slept over at their houses or they went in his car. On all occasions, the boys were or appeared to be asleep, at least at the commencement of the behaviour. All but one offence consisted of some form of indecent but non-penetrative assault or touching. The one exception involves the count of rape in which the respondent performed fellatio upon BS.
The offences against RS commenced in about June 1991 when RS was 15. The respondent was staying at the house of his parents. RS awoke in his darkened bedroom to find that the respondent had his hand on RS's inner right thigh and was moving it up towards the groin area. RS pushed the hand away and the respondent said, "Don't worry, just go back to sleep" (count 1). Two months later in about August 1991 a similar incident occurred. The respondent was sleeping on the couch at the house of RS's parents. He entered RS's room and touched his penis and testicles. RS's parents were away on that occasion (count 2). About three years later in about November 1994, when RS was 18 years old, he and the respondent went to the Lower Plenty Hotel together. On the way back to RS's family home, RS dozed off, feeling pretty drunk. He awoke to find that his zipper was undone and that the respondent had his hand inside RS's boxer shorts on his penis. RS pushed the hand away and made the respondent stop the car (count 4). RS told the respondent that he would report the matter if he touched him again or heard that the respondent had done the same to anyone else. When interviewed by the police the respondent made admissions to each of these matters, the evidence in relation to count 2 arising entirely out of his own admissions since RS had made no complaint of this incident.
Two offences were alleged involving DM. In about August of 1994, when DM was 17, he went to a nightclub in Fitzroy with the respondent and his girlfriend. On the way home the respondent stopped the car to drop off his girlfriend. Before she left the car the respondent and she, who were in the front seat, began kissing. DM was in the backseat. Whilst kissing the girl the respondent placed his hand on the inside of DM's thigh about half-way between his knee and groin. As the respondent's hand moved up his leg DM pushed it away and said, "Come on, let's go home". The respondent then drove him home (count 3). Then in about October 1995, when DM was 18, he attended a Halloween party at his baseball club. The respondent also went to the party. Afterwards, a few people went to DM's parents' house, his parents being at home. In the middle of the night DM awoke in his bed to find that the respondent had half pulled off the doona and had his hand up on the inside of his right thigh towards the groin area. DM was wearing boxer shorts. He asked the respondent, "What the hell are you doing?" and made it clear that he should not repeat this behaviour. The respondent left the room and the house (count 5). When interviewed by the police the respondent made admissions about both incidents.
Two incidents were alleged involving PS. During 1997, when PS was 16, he went on a weekend camping trip to Warburton with his parents and other friends including the respondent. After the parents had gone to bed, the others stayed up drinking. PS slept on a couch in an annexe and the respondent in a tent nearby. Early in the morning PS awoke to find the respondent's hand on his inner right thigh inside his boxer shorts. PS sat up and threw off the doona and the respondent stood up and said he was going fishing (count 6). Then in about November 2001, PS, the respondent and others went on another camping trip to Warburton. PS's parents were not present. The respondent slept in a bunk bed in the annexe and PS slept on the couch. During the night the respondent got out of his bed and, while PS was asleep, slipped his hand under the doona and fondled PS's genitals for about five minutes. The respondent then went back to bed (count 7). When questioned by the police the respondent could not recall the first incident, but admitted that it could have taken place. The evidence for the second offence arose entirely out of the respondent's own admissions as PS had made no complaint of such an incident.
One offence was alleged involving JA. On 28 August 2002 JA, then aged 15, and others, attended a funeral. Afterwards JA went to the house of BS's family with BS. The respondent was also present. JA went to sleep on a couch in the lounge. He later awoke to find the respondent undoing JA's pants. JA pretended to be asleep because he was afraid. The respondent then undid JA's boxer shorts and rubbed his penis with his fingers for about 10 seconds. During this period JA sat up and opened his eyes but got the impression that the respondent thought he was still asleep. When the respondent ceased this activity he walked away. JA complained to BS the next morning (count 8). When questioned by police the respondent made admissions as to this incident.
Two offences were alleged involving BS. Also on the night of the funeral, 28 August, the respondent entered BS's bedroom and lay on the floor but could not sleep. He touched BS on his boxer shorts and tried to put his hand under them, but BS awoke, although he did not say anything. The respondent left the house. BS was then aged 15 (count 9). Three days later, on 31 August, BS and the respondent went to stay at RS's house in Watsonia. BS and the respondent slept in the loungeroom. BS later awoke to find the respondent rubbing and scratching BS's back. He fell asleep again but awoke to find both of the respondent's hands and his head under the doona. The respondent had both hands on BS's penis and was moving the penis in and out of his mouth. At the same time the respondent placed BS's hand on the respondent's penis. BS eventually turned away and went to sleep. BS felt there was nothing much he could do about the incident at the time because the respondent was older and bigger than he (count 10). When questioned by the police the respondent made admissions to both incidents, the evidence for count 9 arising entirely out of the respondent's own admissions since PS had made no complaint of any such incident.
The respondent was interviewed by police on 25 October 2002. He made admissions to almost all allegations put, conceded the possibility of those incidents he could not recall and volunteered admissions to matters that had not been put. He was committed for trial through a straight hand-up brief. He pleaded guilty at the committal mention which was the first practical opportunity to do so.
At the time of sentence the respondent had no prior convictions of any kind.
The Director of Public Prosecutions now appeals against the sentence pursuant to s.567A of the Crimes Act 1958 on the ground that the suspension of the whole of the total effective sentence of two years' imprisonment for a period of three years resulted in a sentence which was manifestly inadequate. The notice of appeal, giving particulars of this ground, alleges that the sentencing judge failed adequately to reflect the gravity of the offences generally and in this case in particular, in relation to the count of rape, erred by failing to identify any circumstances of mitigation sufficiently exceptional as to justify the suspension of the whole sentence, failed to take into account that the respondent was a serious sexual offender, failed to take into account specific and general deterrence and gave too much weight to factors going to mitigation.
I now turn to the circumstances of the plea, which were unusual. The plea commenced on 31 March 2003. During the plea the defence tendered a psychological report from Pamela Matthews dated 20 March 2003 and Ms Matthews, a forensic psychologist, was called to give evidence. During the plea victim impact statements were tendered from RS, PS, BS, the three previous witnesses' mother, JS and DM. At the end of the hearing on 31 March the judge called for a psychiatric report and a report prepared by Dr Adam Deacon, a psychiatry registrar of the Victorian Institute of Forensic Mental Health, was supplied dated 30 April 2003. The plea then resumed on 10 June 2003, at which time a further report from Ms Matthews dated 10 June was also before the court.
Ms Matthews has been a registered psychologist since 1986. She has several relevant degrees and was previously employed as a senior psychologist at Community Services in Victoria. She has been working with sex offenders since 1989. In her written report of 20 March 2003 Ms Matthews said of the respondent that he had never lived independently (he lived at home) and had failed to establish functional adult relationships. She said that "this pattern of family dynamics is suggestive of a dysfunctional family unit which is undermining of adult development and independence". In her view this was related to pathological grief associated with the death of the respondent's older brother when the respondent was 14. Her view was that the respondent's overall emotional presentation was one of arrested development. In stating her opinion she said:
"It is the psychologist's view that this man has been and will continue to be co-operative with treatment and that Mr Stewart himself acknowledges the need to make significant changes in his life and to address his behaviour.
He is apologetic towards the victims and their families and is ashamed of his behaviour in particular the breaking of the victims' and their parents' trust.
Mr Stewart represents a low risk to the community of re-offending were he to remain in treatment and as such would be suitable for a community based order were the court to consider this option.
Were the court to consider a community based order the psychologist would recommend continuance of treatment with the psychologist as part of the order or attendance at a Level One Sex Offender Program offered through CORE.
It is the psychologist's further view that in addition to sex offender treatment the developmental issues of family dynamics and development of adult independence need to be further addressed. These issues could continue to be addressed by continuance of treatment with the psychologist, individual treatment through Forensicare or with another treating professional with specific skills in the treatment of sex offenders. It is the psychologist's respectful recommendation to the court that Orders specify individual treatment for these issues.
Were the court to consider an incarcerative option for Mr Stewart then the psychologist's above recommendations also apply. It is the psychologist's understanding that it is unlikely a prison setting will provide the individual treatment on developmental issues and independence recommended by the psychologist without a specific direction from the court."
In her oral evidence, Ms Matthews said that it was unusual for sex offenders to make full admissions to police in relation to their offending, because it was more usual for there to be quite a lot of minimisation and for them only to admit what had been proved. She said that the respondent acknowledged he had broken the young people’s trust and was very repentant and very sad about that, and he had not sought to blame the victims at all or place any responsibility on them, which was also unusual. She said that he was prepared to accept responsibility and to recognise that he had damaged those young people and their families. The fact that he had apologised to his victims before being interviewed by the police showed in her view a level of responsibility and some remorse. She said that her opinion was that the respondent was "quite developmentally stuck, and... bisexual". Her view was that the respondent's offending was opportunistic, which was shown by the fact that his victims were asleep at the time when they were approached. She also agreed that she thought he had not been sufficiently brave to approach his victims when they were awake. Her view was that the respondent was making progress in the treatment with her. At the time of giving evidence she had seen him on six occasions and he had been "very, very co-operative" in those sessions. She said he had always done his homework and always worked hard in sessions. Her view was that he would work well within a sex offender treatment program and gain a lot from it. She repeated her view that he presented little risk of re-offending subsequent to treatment. She put it in evidence as follows:
"He understands what he's done is wrong. He can't continue to do it. He has his family support now. I don't think he'd risk his family support by re-offending again. I think they would be most upset with him were he to re-offend again. And he's got a very close relationship with his family. He knows that he has done wrong and he must do something about it."
The psychiatric report prepared by Dr Deacon of Forensicare contained the following opinion:
"1.Mr Stewart is a 34 year old man with a diagnosis of hebephilia rather than paedophilia which requires the victims to be prepubescent 13 years or younger. He displays clinical features of an adult who is developmentally stunted in his adolescence. He has not separated and individuated from his family and continues to indicate his preference for befriending children and adolescents rather than people of his own age. He is also sexually attracted to young people, both male and female. He indicated some sexual identity confusion. Mr Stewart's choice to continue living with his parents has fostered the dysfunctional attachment to his parents and his inability to detach and explore his adult life successfully. Alcohol has been a likely disinhibiting contributor to Mr Stewart's behaviour and has been utilised as a means of grooming his victims to gain their trust and friendship.
2.In respect to risk, Mr Stewart continues to be at high risk of reoffending given the chronicity of his problems and the limited changes that appear to have evolved since being treated by Pamela Matthews, forensic psychologist. Despite this, Mr Stewart has been co-operative with attendance for treatment and is seemingly motivated to not offend again.
3.If the Court were to apply a non-custodial order, I would recommend he be referred to the CORE sex offender program for ongoing management. Issues of personal development and family dynamics would also need to be addressed. If a custodial order is given then Mr Stewart would need to be referred to a prison sex offender program with appropriate follow-up at the CORE sex offender program as an outpatient upon release."
When the hearing of the plea resumed on 10 June 2003 to consider the psychiatric assessment there was also before the court a second report from Ms Matthews dated 10 June which stated that the respondent "continues to attend treatment and makes steady progress". The last two paragraphs of this second report were in the following terms:
"Were the court to decide on a sentence of imprisonment the psychologist recommends individual treatment focusing on the above issues as part of a parole plan delivered by either Forensicare or a return to individual treatment with the psychologist.
Were the court to decide on a Community Based Order it is the psychologist's recommendation that individual treatment, in addition to the CORE delivered program, focusing on the above issues is delivered by Forensicare or continued treatment with the psychologist as part of the order."
During the plea the judge was clearly troubled by two matters raised in the psychiatric assessment of Dr Deacon which conflicted somewhat with Ms Matthews' views. Dr Deacon had said in his report on the respondent that:
"Whilst he indicated some remorse for his actions this was described in respect of himself feeling ashamed and being identified potentially as a threat or as different in the community. "
Dr Deacon had expressed the view that the respondent indicated no recognition of the likely impact of his actions on the victims themselves. Of particular concern to the judge was the difference between Dr Deacon and Ms Matthews in that Dr Deacon opined that the respondent "continues to be at a high risk of offending" whereas Ms Matthews considered that the respondent represented a low risk to the community of re-offending if he continued to receive treatment. When these matters were taken up with counsel during argument on the plea, defence counsel's response was that Ms Matthews had then (that is, 10 June) seen the respondent on 10 occasions for treatment, whereas Dr Deacon had seen him only once for 45 minutes. Ms Matthews had given oral evidence in court, to which no cross-examination had been directed. Furthermore the clear evidence before the court was that the respondent had been very co-operative with attendance for treatment and was motivated not to offend again.
These differences plainly continued to trouble the judge when sentencing the respondent. His Honour said in his reasons that on the question of remorse, he was unable to resolve the dilemma posed by the differing opinions of Dr Deacon and Ms Matthews. Then, after noting that Ms Matthews considered that the applicant represented a low risk to the community of re-offending if he continued to receive treatment, his Honour came to the submission made by counsel for the Crown that a gaol sentence to be immediately served was the only appropriate disposition. His Honour dealt with this submission as follows:
"Yours was serious offending, particularly is this so in a case of count 10, and your case presents the dual problem of a first offender who is in need of treatment for an entrenched condition and also who must be punished for his crimes. In the circumstances the Director's submission that your offending be visited with an immediate custodial sentence is perfectly understandable.
However, having considered the matter I have decided that the community's best interests will be satisfied by compelling you to undergo a sex offenders treatment program in the community if you are deemed suitable for such a disposition. I therefore with some considerable hesitation will accede to [counsel's] submission that issues of general and specific deterrence can be met by the imposition of a gaol sentence on count 10 which I will suspend for a period of three years. The matters relied upon by your counsel in mitigation, to which I have referred, have considerable weight, and have just tipped the balance in your favour."
It is necessary now to set out at some length the submissions made on behalf of the respondent at the plea. Counsel for the respondent submitted that the offending could not be described as prolific or unrestrained, being nine offences over an 11 year period during which there were gaps and including the final three counts all occurring in the month of August 2002. All the offending had occurred without violence and without the threat of violence, and no threats had been made to keep the victims quiet or intended to hide the offending. The respondent had made frank admissions to the police and to his victims before any police involvement. He had a history of full-time employment since leaving school. There was evidence before the judge of progress being made in his treatment by the psychologist, Ms Matthews. In the view of Ms Matthews, the respondent presented little risk of re-offending subsequent to treatment. He had pleaded guilty at the earliest possible time and was unusual in the level of his co-operation with the police, both making full and frank admissions, and admitting to offences to which the victims themselves had made no reference. He had no prior convictions. The respondent would experience particular difficulties as a prisoner in protection in a custodial setting since he was patently ill-equipped to handle the conditions of incarceration. Counsel relied upon the principles of totality and proportionality, and the judge was urged to give less weight to general deterrence because of the peculiarity of the respondent's diagnosed condition. It followed that less weight than normal should be attributed to general deterrence. Furthermore, since the respondent had taken steps to seek treatment since the offending, less weight also need be placed on specific deterrence.
Counsel for the Crown submitted that the only appropriate sentencing disposition was an immediate custodial sentence.
In this Court Ms Judd for the Director submitted that the sentences imposed in this case are so manifestly inadequate that they constitute error in principle, that complaint being made in respect of the sentences imposed on each of the counts and the decision wholly to suspend the sentence. She argued that the judge had erred in making no order as to cumulation. Ms Judd's principal submission, however, was that rape was a particularly serious offence and that the starting point for a sentence for rape had to be much higher than that chosen by the judge in the present case. It was submitted that rape, generally speaking, should result in an immediate custodial sentence of substantial duration and that the sentencer should ensure that a substantial part of that sentence will be actually served. Reliance was placed on R. v. Schubert[1]; DPP v. Browne[2]; DPP v. Fellowes[3]; R. v. Mason[4]; DPP v Grieves[5]; R. v. Harris[6]. Furthermore the respondent was not only being sentenced for rape, but for a series of other offences. The respondent was being sentenced on count 10 as a serious sexual offender. Ms Judd submitted that a wholly suspended sentence was completely outside the appropriate sentencing range having regard to the fact that this was a serious abuse of trust by the respondent, and there was a significant age difference between the respondent and his victims, particularly in respect of the offences in 2002 when the victims were only 15 years old. She submitted that the respondent had taken advantage of his victims' vulnerability, in BS's case on the very night of the wake after the funeral of BS's father. She submitted, with justification, that the respondent's criminal activity had left the victims feeling insecure, distressed, angry, upset and betrayed. Ms Judd's principal argument was that, irrespective of the kind of rape, the starting point for sentencing for this offence must be higher having regard to the importance of general deterrence and so that rapists will be aware that they will be sent to gaol upon conviction.
[1][1999] VSCA 25 at [16].
[2][2002] VSCA 143 at [29].
[3][2002] VSCA 58 at [35].
[4][2001] VSCA 62 at [7].
[5][2003] VSCA 10.
[6][1998] 4 V.R. 21 at [27].
The Director's notice of appeal contained a single ground, as I have said, claiming that the suspension of the whole of the total effective sentence of 2 years' imprisonment resulted in a sentence which is manifestly inadequate. The particulars then subjoined are framed expressly upon the wording of this ground. There is therefore no challenge in the notice of appeal to the length of any individual sentence or the total effective sentence or the absence of any order for cumulation of sentence. No application was made to this Court to amend the notice of appeal during argument. It seems to me, therefore, that the Director's arguments must be confined by the wording of the ground and the particulars stated in the notice of appeal and that he is not entitled on this appeal to argue that the individual sentences or the total effective sentence are inadequate, or that there should have been some cumulation of sentence. Ms Judd's arguments to this effect in this Court cannot therefore be considered.
Rape is, of course, a most serious offence. The authorities to which we were referred establish the unsurprising proposition for which Ms Judd contended, that, generally speaking, a rapist stands in very grave danger of an immediate custodial sentence and that the sentencer should ensure that a substantial part of that sentence will be actually served. The alternative way of putting that proposition is to say that only in exceptional circumstances will a rapist not receive an immediate custodial sentence and actually serve a substantial part of it.
The sentencing judge was well aware that generally a rapist receives an immediate term of imprisonment upon conviction for the offence, of the seriousness of all the respondent's offending, and of the fact that the respondent would be sentenced in respect of Count 10 as a serious sexual offender. His Honour found the matter to be a "very, very troublesome case". The difficulty the judge experienced in dealing with the arguments on the plea is shown by a reading of the transcript of the plea together with the exhibits which were before the judge and His Honour's sentencing reasons. All the arguments now made to this Court were considered during the plea in one form or another and the judge was well aware of the Director's opinion that this case called for a custodial sentence to be immediately served.
This is, on any view, a most unusual case. I have no doubt, after reading the victim impact statements, that the victims, particularly the family of RS, PS and BS, have been damaged and seriously affected by the respondent's actions. One of the striking elements of this case is, however, the forbearance of members of this family. It was disclosed during the plea that some of the victims actually took the course of approaching the respondent in sympathetic fashion to deal with his offending. He became a groomsman at RS's wedding in 2002 after all the incidents referred to in counts 1 to 7 had taken place. The judge was told that RS, who is clearly a young man of exceptional quality, had discussed the offending with his brothers and their mother and invited the respondent to meet him, talking the matter over with him and offering to help the respondent get assistance.
The judge had before him the following matters: a plea of guilty entered at the earliest opportunity; co-operation with the police at the highest level, including the respondent volunteering matters of which the victims had not been aware; that the offending occurred, save in 2002, sporadically over an 11-year period; that the offending occurred without violence or the threat of violence; the respondent's previous good character and work record, with a history of full-time employment since leaving school; the evidence of Ms Matthews as to the respondent's response to continuing treatment and his willing co-operation in that treatment (it being submitted that Ms Matthews' views should be accepted where there was conflict with Dr Deacon's because of her much greater knowledge of the respondent); and the difficulties which the respondent would unquestionably face if incarcerated as a prisoner under protection, he not being equipped to cope in that setting or to fend for himself in that environment.
It is clear from the passage in the judge's sentencing reasons quoted above at [18] that his Honour, after a lengthy plea hearing, and very careful consideration, came to the conclusion that it was in the best interests of the community that the respondent not be incarcerated but be compelled under a suspended sentence and community-based order to undertake a sex offenders treatment program.
I share the judge's view that this is a very difficult and troublesome case. The sentence imposed is unquestionably a most merciful one and either at the very lowest point of the appropriate range or manifestly inadequate. I bear in mind, at this point, the words of King, C.J. In R. v. Osenkowski[7] that "a prosecution appeal should not be allowed to circumscribe unduly the sentencing discretion of judges" - particularly, one might add, a judge of such long criminal experience. A further problem arises from the fact that the Director's ambit of argument is, as I have said, confined by the terms of the notice of appeal to the sole question whether the judge was entitled to suspend the whole of the total effective sentence of 2 years' imprisonment.
[7](1982) 30 S.A.S.R. 212 at 212-213.
The respondent's plea hearing began on 31 March of this year and was adjourned to 10 June. He was sentenced on 16 June and has been at liberty for more than five months. In that time he has, we were told, continued to seek treatment from Ms Matthews and to comply with the other terms of the community-based order imposed under count 3.
It is unnecessary for me to decide whether the sentence was manifestly inadequate, a question upon which I have continuing doubts; because even if I had concluded that the sentence was manifestly inadequate, in the sense that the judge was not entitled to suspend the whole of the total effective sentence of 2 years, I should, in resentencing, have been required to bear in mind the discount which this Court must apply in resentencing after a Director's successful appeal. I should not in all the circumstances have proposed that more than six months of the original 2-year sentence be immediately served.
The Court has a discretion on a Director's appeal to decline to interfere[8]. The applicant has now been at liberty for over five months since the date of his sentence, and is complying with the obligations imposed upon him. I would, in all the circumstances, dismiss the Director's appeal.
WINNEKE, A.C.J.:
[8]R. v. Clarke [1996] 2 V.R. 520 at 522; DPP v. Leach [2003] VSCA 96 at [48] per Eames, J.A.
In the exceptional circumstances of this case as described by Charles, J.A. I agree that the Director's appeal should be dismissed for the reasons he gives.
EAMES, J.A.:
For the reasons given by Charles, J.A. I agree that the appeal should be dismissed.
WINNEKE, A.C.J.:
The formal order of the Court will be that the Director's appeal is dismissed.
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