DPP v Wilson
[2000] VSCA 112
•23 June 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 256 of 1999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| JAMES ANTHONY WILSON |
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JUDGES: | WINNEKE, P., BATT and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 May 2000 | |
DATE OF JUDGMENT: | 23 June 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 112 | |
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Criminal law – Sentence – Director’s appeal – Respondent pleading guilty to counts of failing to stop after accident and failing to render assistance – Prior convictions for driving with blood alcohol content exceeding .05% and driving whilst unlicensed – Sentence of six months’ imprisonment to be served by way of intensive correction order – Sentence already served – Sentence not manifestly inadequate.
Criminal law – Pre-sentence reports – Contents – s.96(2) Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | C.G. Hillman | P.C. Wood, Solicitor for Public Prosecutions |
| For the Respondent | P.F. Tehan, Q.C. and K. J. Doyle | Simon Northeast |
WINNEKE, P.:
The Director of Public Prosecutions, by Notice dated 14 October 1999, has appealed pursuant to s.567A of the Crimes Act 1958, against the sentences imposed upon the respondent by the County Court at Melbourne on 23 September 1999.
On 13 September 1999, the respondent had pleaded guilty to a presentment containing two indictable offences arising out of events which had occurred on 5 November 1998. In summary terms, count 1 alleged that, being the driver of a motor vehicle involved in an accident as a result of which another person had suffered serious injury, the respondent had failed to immediately stop his vehicle. Count 2 alleged that on the same date, and being the driver of the vehicle alleged in count 1, he had failed to immediately render such assistance as he could. These two offences are created by s.61 of the Road Safety Act 1986 and each carries a maximum penalty of two years’ imprisonment and/or a fine of $8,000 (s.61(3)).
In addition to the above mentioned charges, the respondent admitted two summary offences of “careless driving” and “driving whilst disqualified” in respect of which jurisdiction of the County Court is invoked by s.359AA of the Crimes Act 1958. The offence of “careless driving” is punishable by a fine up to a maximum of $2,500, whilst a second or subsequent offence of driving whilst disqualified, which this one was, carries a term of imprisonment of not less than one month and not more than two years.
Upon the hearing of the plea, the respondent admitted a number of previous convictions which would, on any view, appear to be significant, extending from June 1993 to September 1997. There were 25 such previous convictions arising from seven court appearances. They included three convictions for driving with a blood alcohol content exceeding .05%, the last of which (recorded on 25 September 1997) involved a reading of .201%, two prior convictions for “driving a motor vehicle whilst disqualified”; four convictions for “driving whilst unlicensed”; one for “careless driving”; one for driving an unregistered vehicle and one for “failing to stop after an accident”.
From an objective viewpoint, this record of the respondent, who is aged 30 years, demonstrated at least three things about him at the time when he stood for sentence – first that he is prepared, but incompetent, to drive motor vehicles after he has been drinking to excess; secondly that he has little regard for the rights of other road users; and thirdly that he has scant respect for the relevant road laws and the warnings which have been uttered to him by a succession of courts. Disqualification or non-possession of licences means apparently nothing to him because, within a total period of some five years, he has received disqualification orders respectively for 18 months (8 June 1993), 12 months (13 July 1993), three years (30 July 1996), 6 months (14 October 1996) and four years (25 September 1997). Thus, at the time when he pleaded guilty to these offences, he had served a little more than 12 months of a four year disqualification period imposed in September 1997 for unlicensed and careless driving, with an excess of alcohol, combined with a failure to stop after an accident.
It was against the background of this prior history that the applicant stood for sentence on 13 September 1999. The circumstances giving rise to the offences are in short compass. A collision occurred between a car driven by the respondent and a pedestrian, one Emad Abu-Awad, in Sydney Road, Fawkner at about 8.55 p.m. on 5 November 1998. At the time of the collision Abu-Awad was one of a number of men standing on the northbound carriageway of Sydney Road giving directions to his brother-in-law, as the latter was reversing a truck carrying building materials into a site on the western side of the road. The vehicle driven by the respondent was, according to bystanders, travelling at a speed estimated by police to be approximately 70-80 k.p.h.. He apparently did not see either the truck or persons on the roadway until the last moment, and his vehicle struck the victim knocking him some distance forward under the truck. The vehicle driven by the respondent was apparently leased by his wife who was, at the time, living at Nathalia. She had taken their children, some four weeks previously, to stay with her parents at Nathalia, and had been content to leave the vehicle in the respondent’s possession so that he could use it in his plasterer’s business. He also used it, according to his wife, to drive to and from Nathalia. On the night of the accident the respondent had left his own premises in Ardeer at about 6.30 p.m. He drove the vehicle to an hotel in Sydney Road, Coburg where he had stayed until about 7.30 p.m. He had drunk a quantity of spirits mixed with coca-cola both on his way to and at the hotel. His wife said that, at a time which she thought was about 8.30 p.m., the respondent had telephoned her parents’ home at Nathalia and told her father that he was “coming up” that night.
A number of people witnessed the accident which occurred shortly thereafter. The respondent kept going, whilst others stopped to assist. The victim was clearly badly injured; an ambulance was called and he was taken to the Royal Melbourne Hospital where he was urgently treated for major internal and head injuries, a broken right leg and a fractured pelvis. He was subsequently admitted to the Bethesda Rehabilitation Centre where it became apparent that his injuries had had both a physical and mental effect. For a young man of 29 years, those effects have been very severe.
Following the collision, at about 10 p.m., the respondent’s wife said that she had received a telephone call from him. She said that he had told her that he would not be coming to Nathalia because he had been in an accident and had “hit someone he had not seen”. She said he was “hysterical” and she tried to “calm him” so as to get the details. It would appear that she came to Melbourne the following day and spoke to police at Broadmeadows. The police then attended at the respondent’s Ardeer premises, where they found him hiding in a cupboard. He then took them to the garage where he had parked the vehicle. On inspection, it had sustained significant damage to the front near-side and a shattered windscreen. In the course of an interview which followed, the respondent told police that he had seen a person standing on the carriageway of Sydney Road and had “gone around” that person. He then “went to come back into the lane” when he heard “a bang on the car”. He said he looked in the mirror but saw nothing; he “panicked and kept going”. He said he did not see any truck in the left hand lane. He conceded that he needed glasses, but had not been able to afford them. He also said that his vision might have been affected by the alcohol he had consumed; and that others had told him that he had an “alcohol problem”.
During the course of the plea hearing, the learned judge was urged, if she considered that a gaol sentence was the appropriate option, to order its service within the community by way of an “intensive correction order” (s.19 Sentencing Act 1991). Her Honour in fact adopted this course. She imposed terms of five months’ imprisonment for the offences alleged in each of counts 1 and 2 on the presentment and two months on the charge of driving whilst disqualified; and imposed a $250 fine on the charge of careless driving. She ordered that one month of the sentence imposed on count 2 be cumulated upon the sentence imposed on count 1. Thus the total effective sentence was six months’ imprisonment. She ordered that sentence to be served by way of intensive correction order, which incorporated the “core conditions” specified in s.20 of the Sentencing Act. In addition, her Honour cancelled any licences the respondent had and disqualified him for a period of five years from the date of sentence from obtaining any further licence.
It is against those sentences that the Director has brought this appeal, contending that in all the circumstances they are manifestly inadequate and that, in ordering the sentences to be served by way of an Intensive Correction Order, the judge has failed to adequately reflect the gravity of the circumstances of the offences, the respondent’s driving record, his consumption of alcohol and the need to protect the community from the respondent. It is also contended that her Honour has given insufficient weight to the effect of the offences on the victim and principles of general and specific deterrence; and has given too much emphasis to the respondent’s plea of guilty and his prospects for rehabilitation. Notwithstanding that the respondent has already served, within the community and by way of intensive correction order, the periods of imprisonment imposed by the judge, counsel for the Director submits that this Court should conclude that a different sentence should have been passed and now substitute a more severe sentence involving immediate incarceration of the respondent.
At the plea hearing on 13 September 1999, counsel for the Crown contended that the only appropriate penalty which could be imposed was one involving immediate incarceration. Counsel for the respondent submitted that it would be appropriate for the judge to impose a sentence of imprisonment, but to order that it be served by way of intensive correction in the community or, alternatively, to order a “combined custody and treatment order” pursuant to s.18Q(1) of the Sentencing Act. The relevant provisions of the Sentencing Act dictate that, if the court is considering sentencing a prisoner to a term of imprisonment of not more than twelve months, but is satisfied that it may be desirable that the term imposed should be served by way of intensive correction or combined custody and treatment, the court must call for and receive a pre-sentence report. At the conclusion of the plea, her Honour said that she wished to have the respondent assessed to determine his suitability for either a combined custody and treatment order or an intensive corrections order. She accordingly called for a pre-sentence report pursuant to s.96(2) of the Sentencing Act. Such a report was provided to her Honour on 14 September 1999 and recommended that the respondent was “considered suitable for either a combined custody and treatment order or an intensive correction order”. The report is conspicuous for its absence of any details suggesting why its author regarded the respondent as so suitable. Although the report stated, on its face, that copies of it had been provided to the Crown Prosecutor and defence counsel, it appeared from later events that such copies had not been so provided. This was in breach of s.98 of the Sentencing Act and denied to the prosecution an opportunity to dispute the report in the manner contemplated by s.99 of the Act.
Her Honour, no doubt satisfied by the face of the report, that copies had been provided to the respective parties, proceeded to pass sentence in the manner to which I have previously referred. At the conclusion of her sentencing remarks, counsel for the Crown indicated that he had not received a copy of the pre-sentence report, but did not ask the judge to recall her orders until the report had been circulated, and an opportunity to “dispute” it had been afforded. Her Honour was simply asked to provide a copy of the report to the Crown. Her Honour agreed to do so.
Although the Director alleges, in his grounds of appeal, that sentencing error has occurred because the judge accepted a pre-sentence report which failed to adequately comply with the relevant provisions of the Sentencing Act and proceeded to pass sentence without ascertaining whether a copy of the report had been supplied to the Crown, I would not regard such non compliance – if such it was – as warranting, by itself, interference with the sentences imposed in the circumstances which I have recited. Each party had made full submissions to the judge as to what it or he regarded as the appropriate disposition to meet the circumstances of the case. No one contended that the judge should not call for a pre-sentence report. Whilst, as I have said, the report is bereft of detail which would enable its reader to understand the basis upon which its author had reached the conclusion to which he had come, I am not persuaded that it fails to comply with the provisions of s.97 of the Sentencing Act and was, thus, not a report upon which her Honour was entitled to act. There is nothing to be found in Division 2 of Part 6 of the Sentencing Act which imposes an obligation upon the judge to ensure that each of the parties has been furnished with a copy of the report. The judge was entitled, I think, to proceed to pass sentence in the belief that such a copy had been provided. Although the parties knew that her Honour intended to call for such a report, the Crown did not inform her Honour before she proceeded to pass sentence that it had not received a copy of the report. Once it became apparent that she had received the report, and that her sentencing disposition had been influenced by it, the proper course was for the Crown to have requested her Honour to recall her orders until such time as a copy of the report had been made available to the prosecutor and an opportunity afforded to dispute it. It is now too late, in my view, to contend that her Honour’s discretion miscarried on the ground that she should not have proceeded to pass sentence until she was satisfied that the Crown had received a copy of the report.
In any event, it seemed to me that the Director did not, on the hearing of this appeal, strongly contend that the appeal should be allowed on the basis of the grounds referred to in the preceding paragraph. In truth, the real contention of the Director was that, having regard to the respondent’s bad driving record, to the fact that he knew that he had struck a pedestrian in circumstances where it was likely that the victim would have been injured and to the fact that he had, knowing of these circumstances, deliberately fled from the scene presumably to protect himself, demonstrated that the sentences were so manifestly inadequate that this Court should conclude that a different and more severe sentence ought to have been passed. In opposition to these submissions, Mr. Tehan’s primary submission was that it would be inappropriate, and contrary to principle, for this Court to accede to the Director’s submissions because, to do so, would be to expose the respondent to double jeopardy in circumstances where he has already served the sentence imposed upon him by the judge, and is entitled, pursuant to the provisions of s.19(9) of the Sentencing Act, to have the certification of the Secretary to the Department of Justice that he has served the sentence of imprisonment imposed by her Honour and is now wholly discharged from it. Indeed, so Mr. Tehan contended, this Court lacks jurisdiction to intervene because, rather than “substituting” a sentence for the one passed, it would be passing a sentence in addition to the one he has already served.
I do not agree with the submission made by Mr. Tehan that this Court has no jurisdiction to entertain a Director’s appeal under s.567A of the Crimes Act where the sentence passed by the sentencing judge has already been served. No such limitation is imposed by the section expressly and, in my view, no such limitation can or should be implied. If it were otherwise, the Director’s power to appeal against inadequate sentences would be curtailed in a manner not contemplated by the legislation. The more manifestly inadequate the sentence, the more likely it would be that service of the sentence was completed by the time the Court of Appeal had time to consider it. In the case of R. v. Allen[1], Lush, J. speaking for the Full Court in regard to different, but similar, legislation said:
“In my opinion, s.74 of the Magistrates Court Act cannot be read so as to imply any requirement that the appeal must be brought or heard before the sentence below has been served. There may be situations in which the service of the sentence under appeal may be relevant to the decision of the Court on an Attorney-General’s appeal, but the clear intention of the statute is that the appeal will lie without reference to the question whether the sentence has been served or not, and that may be seen clearly enough by the consideration that one form of sentence which may be appealed against is the imposition of a fine, and it is simply not possible that the Attorney-General’s right to appeal terminates as soon as the fine is paid.”
There have been many Director’s appeals which have been upheld by this Court where the sentencing judge has imposed wholly suspended sentences or community based orders or low non-parole periods, and this Court has allowed the appeal and substituted sentences of immediate incarceration notwithstanding that the sentences imposed below have, at least, been partially served, or the respondent has been released on parole.[2] True it is that in the cited cases, the sentences imposed were still operative. However, although the fact that a sentence has been served will almost always play a significant role in applying the “double jeopardy” principle in a Director’s appeal, it cannot oust the Court’s undoubted jurisdiction to quash the original sentence and substitute a more severe sentence where it considers that a different sentence ought to have been passed.
[1][1980] 4 Crim.L.J. 311 at 312.
[2]See, for example, Director of Public Prosecutions v. Kostikidis & Anor., Court of Appeal, unreported, 12 September 1996; Director of Public Prosecutions v. Patching [2000] VSCA 14, per Brooking, J.A. at [19]; Director of Public Prosecutions v. Daniel Lindsay Best, unreported, Court of Appeal, 16 April 1998; Director of Public Prosecutions (Cth.) v. Reynolds [1999] VSCA 224.
Mr. Tehan submitted that, even if the Court is empowered to substitute a more severe sentence, involving immediate incarceration, it ought decline to do so in this case where the term of imprisonment imposed by her Honour – namely 6 months – was adequate to meet the circumstances of the case and the only dispute is as to the manner in which the term should be served. He submitted that, in those circumstances, it is not practicable for the Court to impose a sentence which will properly take account of, or give credit for, the sentence which has already been served and that it will be almost inevitable that the “deep rooted notions of fairness and decency which underlie the common law principle against double jeopardy” will be offended.[3] He submitted, correctly in my view, that the scheme of the Sentencing Act dictates that, for all relevant purposes, a term of imprisonment ordered to be served by way of intensive correction is to be regarded as a sentence of imprisonment. It is through no fault of the respondent, he submitted, that this appeal is now being heard at a time when the sentence has been served.
[3]cf. Malvaso v. R. (1989) 168 C.L.R. 227 at 234 per Deane and McHugh, JJ.
Whilst it was submitted on behalf of the Director that the terms of imprisonment imposed by her Honour were, in themselves, manifestly inadequate, I am not persuaded that they were. Having regard to the maximum sentences of two years prescribed by the legislature for the offences of “failing to stop” and “failing to render assistance”, the sentences of five months’ imprisonment imposed by her Honour for each of these offences were reasonably within the range of sentences available to her, as was the sentence of two months’ imprisonment imposed for the offence of “driving whilst disqualified”. The real question is whether, because she exercised her discretion to order the sentences to be served by way of intensive correction, this Court should now say that the sentences are so manifestly inadequate as to betoken error of principle warranting the quashing of her Honour’s sentence and the substitution of a sentence involving immediate incarceration.
In the peculiar circumstances of this case, I would dismiss the appeal. Even though, on the material to which I have referred, I would have been disposed to have ordered the term of imprisonment imposed to be served immediately, I believe it would be wrong for the Court to now order a period of immediate incarceration when the term of imprisonment imposed by her Honour has now been served, albeit in a manner which has involved the service of that term within the community. Although “Crown appeals” against sentence are now commonplace – indeed, perhaps, because they are – the Court needs to remind itself that its discretion to interfere with a trial judge’s sentencing discretion at the instance of the Director is not unfettered and that such appeals should only be allowed in those rare cases in which it is necessary for the Court of Appeal to intervene to avoid those kinds of manifest inadequacy or inconsistency in sentencing standards which arise from clear error in principle.[4] In addition, it is well recognized that appellate courts, entertaining Director’s appeals against sentence, should pay careful heed to the factor of double jeopardy which arises from the fact that the prisoner is being asked to stand for sentence for a second time in respect of the same offence. Particularly will this factor apply where the sentence imposed in the first instance has been served and the delay in entertaining the appeal has been through no fault of the respondent.[5]
[4]Griffith v. R. (1977) 137 C.L.R. 293 at 310 per Barwick, C.J.; Malvaso v. R., supra, at 234-5; Everett v. R. (1994) 181 C.L.R. 295 at 300.
[5]cf. R. v. Smallacombe & Anor., unreported, Court of Criminal Appeal (Vic.) 28 October 1993 at p.6; R. v. Campbell (No.2) (1981) 6 A.Crim.R. 208 at 214.
As I have said, this case is peculiar in its own facts, but at the end of the day I do not believe that the public interest demands that this Court set aside the judge’s sentence of imprisonment, otherwise appropriate, simply because she has ordered – in the exercise of her discretion – that it be served in a manner different from that in which I might have been disposed to order it to be served. To do so would, in my view, offend proper sentencing standards rather than enhance them because, not only would it result in the service of a term of imprisonment beyond that which has already been served – and which I consider to have been appropriate – but it would also destroy the process of rehabilitation which her Honour’s sentence clearly had in mind.
BATT, J. A.:
I agree that this Court should dismiss this appeal by the Director of Public Prosecutions. Subject to what follows, I agree in the reasons for judgment of Winneke, P., which I have had the opportunity of reading in draft. The fact that a sentence has been fully served before an appeal against it by the Director of Public Prosecutions can be heard does not deprive this Court of jurisdiction. I have no doubt, for instance, but that this Court, in an appropriate case, could increase a “straight” term of imprisonment which had been fully served or could increase a fine that had been paid or order “in substitution”[6] for the fine that the offender serve a term of immediate incarceration.[7] So far as a “straight” term of imprisonment is concerned, what I have said appears to be supported by R. v. Cook[8], a case admittedly decided on other legislation. It has also been held in this State that there may be substituted for a concurrent sentence of imprisonment already served a cumulative term of imprisonment of the same length: R. v. Allen[9]. In Queensland imprisonment has been substituted for a fine that had been paid and a community service order that had been served: R. v. Howe. But the fact that a sentence of imprisonment has been fully served or that the offender has already been released on parole is, it would seem, always be a factor to be taken into account in the exercise of the appellate court’s jurisdiction and may from time to time be decisive against the allowing of the appeal. The absence from the provision in s.567A that authorises the kind of Director’s appeals I am discussing, namely sub-s.(1), of the words “whether or not the sentence has been served“ found in the provision relating to Director’s appeals where an undertaking has not been fulfilled (sub-s.(1B)) does not show that this Court has no jurisdiction under s.567A(1) when the sentence has been served. For sub-s.(18) was not introduced at the same time as sub-s.(1), but later (in 1997), after the cases cited had been decided, and as part of amendments dealing with a conceptually different matter, requiring different treatment, as can be seen by comparing sub-ss.(4) and (4A).
[6]As Buchanan, J.A. pointed out during argument, these words in s.567A(4) of the Crimes Act 1958 simply ensure that this Court puts itself in the place of the sentencing judge (subject, no doubt, to any subsequent facts).
[7]The Crown no doubt would be liable, and could be ordered, to re-pay the fine in the latter case. Compare R. v. Howe; ex parte Attorney-General (Queensland) [1994] 2 Qd.R.307.
[8]unreported, New South Wales Court of Criminal Appeal, 26 July 1957, as noted in Rinaldi, “Dismissal of Crown Appeals Despite Inadequacy of Sentence”, (1983) 7 Crim.L.J. 306 at 314.
[9]unreported, Court of Criminal Appeal, 28 February 1980, as noted in [1980] 4 Crim.L.J. 31.
A certificate under s.19(9) of the Sentencing Act 1991 would not, in my opinion, deprive this Court of jurisdiction to entertain an appeal by the Director against an order that a sentence of imprisonment be served by way of intensive correction in the community. That subsection provides that, on certification by the Secretary to the Department of Justice that an offender has complied with the conditions of an intensive correction order, “the sentence of imprisonment must be taken to have been served and the offender shall by wholly discharged from it.”[10] To my mind, that simply means that, on certification, the offender is wholly discharged from the particular sentence of imprisonment that was ordered to be served by way of intensive correction. Certification would not, in my view, prevent the Court of Appeal, for example, from substituting on a Director’s appeal a sentence of imprisonment for nine months and ordering it to be served by way of intensive correction in the community[11] in place of a sentence of imprisonment for three months with a like order. There was in any event no evidence of any such certification in this case, and there seemed to be some hesitation whether a certificate would be forthcoming, though that was not a matter which the Court could explore.
[10]Emphasis supplied.
[11]Provided, however, the offender agreed to that: s.19(2).
I turn to the merits of the appeal. I did not take counsel for the appellant really to be concerned to have an increased fine imposed for the offence of careless driving. It needs to be remembered that the manner of the respondent’s driving was not the subject of any offence carrying a term of imprisonment. I therefore put aside the question of the adequacy of the penalty for careless driving. So far as the individual terms of imprisonment imposed and the total effective sentence of imprisonment are concerned, I consider them to be within the range of terms of imprisonment fairly open to her Honour or, in the words of s.19(3) of the Sentencing Act, “appropriate in the circumstances having regard to the provisions of” that Act. But I am of opinion that the order that the total effective sentence be served by way of intensive correction in the community was clearly not an appropriate disposition, for the respondent’s prior record for driving offences and the similarity in nature of those offences to the subject ones (or to the circumstances attending them, such as drinking) showed his utter contempt for the laws of the road and the law generally, and, taken with the facts of the offences the subject of Counts 1 and 2, required an immediate and actual custodial sentence to effect the necessary sentencing purposes of general deterrence, specific deterrence, denunciation and protection of the community: cf. Veen v. The Queen (No.2)[12] and R. v. O’Brien & Gloster[13]. But by s.19(5) an intensive correction order is a sentence of imprisonment for all relevant purposes, and by s.19(6) the period of it is the period of the term of imprisonment imposed. Since I consider that a total effective sentence of six months’ imprisonment was within range and since the effect of s.19(5) and (6) is that the respondent was given exactly that sentence (though s.5(4) and (4A) show that it is regarded by the law as less severe)[14], no “different sentence” within s.567A(4) of the Crimes Act could be passed and the appeal must therefore be dismissed. I reach that conclusion without needing to have regard to the so-called principle of double jeopardy applicable to the consideration of, and re-sentencing on, Director’s appeals or to the related residual discretion in the Court to refrain from intervening, though the discretionary considerations discussed by Winneke, P. strengthen my conclusion.
[12](1988) 164 C.L.R. 465 at 477-8
[13][1997] 2 V.R. 714
[14]Compare The Queen v. Bice [2000] VSC 223 at paras.7 and 21. Note also s.18(2)(ba), discussed later. Compare, as to s.7(1), Aitken v. Moten-Connor (unreported, Smith, J., 9 February 1995).
What I have said is not intended to mean that the Court, where satisfied in a particular case that a sentence of, say, six months’ imprisonment with an order that it be served by way of intensive correction in the community was manifestly inadequate, could not substitute a sentence of, say, three years’ imprisonment and fix a non-parole period, though care would need to be taken in formulating the order to ensure that full credit was given for the period of time served notionally as imprisonment under the original order.[15] It is unnecessary to decide whether that could be done by way of a recital, by some form of direction or by a declaration under s.18(4) having reference to s.18(1).[16]
[15]See s.19(5) and (6). Allowance, which in the nature of things could not be precise, was given for time served under a community-based or like order in D.P.P. v. Kostikidis (unreported, Court of Appeal, 12 September 1996), R. v. Howe and D.P.P. v. Sullivan [2000] VSCA 99.
[16]By sub-s.(2)(ba), sub-s.(1) does not apply to an intensive correction order. The matters to which sub-s.(1) is stated not to apply are, variously, certain periods of custody (which are, therefore, not reckoned as periods already served) and certain sentences (from which, therefore, no deduction is to be reckoned). Paragraph (ba) seems to fall in the latter category.
I turn to the pre-sentence report. The statutory obligation under s.98(2) of the author of a pre-sentence report to provide a copy of it, within a reasonable time before sentencing is to take place, to the prosecutor and the offender’s legal representatives is not a token matter, as is shown by s.99, which sets out a procedure whereby the prosecution or the defence may dispute the whole or part of the pre-sentence report and which prevents the report or the part in dispute from being taken into consideration until the disputant has had an opportunity to lead evidence on disputed matters and to cross-examine the author. I agree that nothing in Division 2 of Part 6 of the Sentencing Act imposes an obligation upon the sentencer to ensure that each of the parties has been furnished with a copy of the report. The sentencer is entitled to presume regularity. But a sentencer who becomes aware that the prosecution or the defence have not been furnished with a copy of a pre-sentence report would, in my opinion, deny procedural fairness by passing sentence without affording the party concerned the opportunity of considering a copy of the report. Here, however, the prosecutor, by not asking her Honour to recall her sentence, waived any objection.
I am conscious that the pre-sentence report in this case was made with great promptitude, on the day on which it was ordered, and was forwarded to the County Court the next day. I am conscious, too, of the pressure of work under which community corrections centres must labour. Moreover, neither the departmental Secretary nor the author was represented before us. But I am bound to say that I regard the report as perfunctory. I trust that constructive criticism will be helpful I accept that s.97(1) does not require that the pre-sentence report set out any of the matters listed in it, though it contemplates, I should have thought, that the author would set out such of those matters as, being ascertainable by him or her, appear to the author to be relevant, in order to assist the court. The bare statement in the printed form that “An assessment considering the matters outlined in section 97 of the Sentencing Act 1991 has been undertaken” does not inform the recipient which of those matters appeared to the author to be relevant. A report of this nature makes it difficult, though, I acknowledge, not impossible, for the prosecution to exercise its right under s.99.
More importantly, it seems to me that the essential nature of a pre-sentence report where a court is considering making any of the orders mentioned in s.96(2) and has not given a direction within s.96(4) or s.97(2) is indicated by the first-mentioned sub-section. It requires the court in such a case to order a pre-sentence report:
“... so that it[17] may –
(a) establish the person’s suitability for the order being considered; and
(b) establish that any necessary facilities exist; and
(c)if the order being considered is an intensive correction order or a community-based order, gain advice concerning the most appropriate program condition or conditions to be attached to the order.”
I take the words “so that” to be an instance of their frequent modern day use as equivalent to “in order that” and thus to introduce a purpose clause rather than a result clause.[18] Since I take paragraph (c) to be referring to special program conditions within s.21(1), which are, by definition, not attached to every intensive correction order, I would understand at the end of the paragraph some such words as “if any condition is to be attached”. Now, it is important to note that it is the court that orders the pre-sentence report, not the author of the report, that is to establish the person’s suitability, establish the existence of necessary facilities and gain advice concerning program conditions. Nor can the word “it”, used earlier of the court, here refer to the report, if only because that reading would not fit with “gain advice” in paragraph (c). If, contrary to my view[19], the author was purporting to tender advice within paragraph (c), then she did so extremely obliquely. More importantly, it is strongly arguable that a court cannot “establish”, that is, place beyond dispute, satisfy itself of, or make out, a person’s suitability for a particular order simply from an assertion in the report that the person is so suitable. It is to be observed that the pro forma pre-sentence report provides for reasons to be given where the person is reported not to be suitable. It might be thought that there is no good reason why the same should not be done where the author reports that the person is suitable. It is to be remembered that s.97(1) at the least encourages an author to set out such of the listed matters as, being ascertainable, appear to him or her to be relevant to the sentencing of the offender. In addition, s.96(4) requires the author to conduct any investigation that he or she thinks appropriate. One might expect some of the relevant listed matters and the results of any such investigation to be mentioned in this section of the report. But this report is laconic. I stress that, in the circumstances in which pre-sentence reports are made, I am not suggesting that they should be lengthy. But three or four lines of reasons for reporting that, in the author’s view, the person is suitable could easily be added by a person who has, after all, reached a view as to suitability, and would make the report meaningful and of assistance to the court which ordered it.
[17]My emphasis.
[18]Compare Quirk and others, A Comprehensive Grammar of the English Language, paras.15.48 and 15.49.
[19]Despite the last printed words on the first page of the report, the author seems in what follows in handwriting simply to be reporting whether the respondent would be able to report to and participate at the appropriate community correction centre. The reference to “alcohol counselling” seems to me to be, not a reference to a special program for a special condition, but rather a reference to the “counselling ... for a specified ... alcohol problem” that the Regional Manager might direct pursuant to s.20(1)(d)(ii). Regulation 10 of the Sentencing Regulations 1992 does not require a different view.
For the reasons I have given, I am inclined to think that the pre-sentence report does not comply with s.96(2). But counsel for the Director did not in the end, as it seemed to me, really persist in reliance on this ground (ground 2) if ground 1, alleging manifest inadequacy and in effect particularised by ground 4, failed, as I consider it should. In any event, even if ground 2 is treated as in part made out, I would dismiss the appeal both for the reason already given on the merits and also in the exercise of the court’s residual discretion to decline to interfere.
BUCHANAN, J.A.:
I agree that the appeal should be dismissed for the reasons stated by Winneke, P. Apart from the application of the principle of double jeopardy, I consider that the sentence imposed below was one which was within the range available to the sentencing judge for the reasons stated by Batt, J.A. I also agree with Batt, J.A.'s remarks concerning the pre-sentence report.
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