R v Ngo

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 45 of 1999

THE QUEEN

v

THUY NGO

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JUDGES:	PHILLIPS, C.J., ORMISTON and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 November 1999
DATE OF JUDGMENT:	22 December 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 222

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CRIMINAL LAW - Sentencing – Pre-sentence report – Whether report must be prepared by Secretary to Department or his delegate pursuant to formal written delegation under s.10 of Corrections Act 1986 or s.8A of Health Act 1958 – Application of Carltona principle – Report prepared within Department sufficient – Whether judge had regard to possibility of executive action when referring to incidents of youth training centre order – s.5(2AA) of Sentencing Act 1991 – Whether Court should receive evidence of subsequent events – Sentence not manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr R. Bourke	Clarebrough Pica

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Ormiston, J.A. in draft form. I concur with his Honour’s conclusions.

In my opinion, this application should be dismissed.

ORMISTON, J. A.:

The circumstances leading to this application for leave to appeal against sentence were not complicated but it has raised some issues of general concern and one which goes beyond the confines of sentencing and the criminal law, namely, the power to delegate and the method of delegating by ministers, heads of departments and other statutory office-holders. In the present case the issue would be of some consequence, if the applicant's contentions were made out, for it would throw into doubt the making of all pre-sentence reports since the Sentencing Act 1991 came into operation, at least all those made before 30 April 1999, inasmuch as it is said that the Secretary to the Department of Human Services (as it is presently called) must either prepare the report or, if it were desired to delegate the power to prepare such reports, that power could only be exercised in writing and it is agreed that no such written delegation had been made in relation to pre-sentence reports as to suitability for admission to youth training centres or youth residential centres.

The applicant, who is presently aged 19 and was aged 18 at the time of her offence, pleaded guilty in the County Court on 15 March last to one count of armed robbery. This offence, which was committed at Noble Park on 12 November 1998 and which carries the maximum penalty of 25 years' imprisonment, arose out of the applicant's threatening a service station attendant with a knife and the consequent theft of some $170. The applicant admitted four previous convictions for heroin-related offences resulting from two court appearances in January and August 1998. As to the first she had been placed on a community based order without conviction for a period of 12 months upon being found guilty of possessing and using heroin, the order being subject to special conditions that she undergo assessment and treatment for drug addiction. On her second court appearance she was likewise placed on a community based order for 12 months with similar special conditions.

After hearing a plea for leniency in the present case and after obtaining, in oral form, what appeared to be a pre-sentence report, the learned judge sentenced her to be detained in a youth training centre for two years, with the customary declaration made as to pre-sentence detention.

The applicant lodged notice of application for leave to appeal against that sentence relying in the first place on the sole ground that the sentence was in all the circumstances manifestly excessive. On 26 October last the learned Registrar gave leave to add the following grounds:

"2.The learned sentencing judge erred in having regard to the possibility that the length of time actually spent in custody by the applicant would be [a]ffected by executive action.
3.The applicant should be sentenced having regard to the new evidence, which throws light upon the applicant's prospects for rehabilitation.
4.The learned sentencing judge erred in imposing a sentence of detention in a youth training centre without first having received a pre-sentence report as required by sections 32 and 96 Sentencing Act 1991 in that the author of the report received by the Court was not a delegate of the Secretary of the Department of Human Services as required by section 96 of the Act."

The facts of this matter may be simply stated. Not long before midnight the applicant entered the customer service area of a service station in Noble Park. She appeared to want to buy a hot-dog and asked for some sauce, but there was none in the bottle on the counter. As a result the attendant went out to a storeroom to get the sauce. When he returned to the shop area where he had left the applicant waiting, he found her crouched down behind the till. She immediately stood up and held a steak knife against his stomach. He was ordered to open the till which he immediately did. The applicant seized the notes from the cash drawer and walked out of the area and from the service station. The victim was not physically harmed but thought the applicant was affected by drugs because her face was very pale and her eyes appeared to be glazed over. Two customers at the petrol bowsers outside saw the applicant walk calmly away from the service station. The police were quickly summoned and, after a short search, the applicant was found lying in the back seat of her mother's car.

The applicant readily admitted the offence stating that she needed the money to repay a friend. She told the police where the knife was. She later participated in a tape recorded interview in which she repeated her admissions indicating that she had given the money to her friend shortly after the robbery in repayment of the debt. The friend, described as "Hung", has never been identified and the money never recovered. The offence was filmed by a video security camera.

It is necessary, in the circumstances, to say something in greater detail about the events which occurred on the making of the applicant's plea before the learned sentencing judge. At the outset three incidental orders were made without serious opposition, namely, confiscation and compensation orders as well as an order for an intimate sample. Counsel for the applicant (who was not the same as appeared on this application) then turned to her prior convictions and what had resulted from them. She informed the judge not only that the two community based orders made the previous January and August had been broken, which was obvious, but that after her arrest for the present offence she had been dealt with for those breaches at the Dandenong Magistrates' Court on 18 January 1999, when she was sentenced to a period of four months' detention at the Parkville Youth Residential Centre.

Thus at the time of sentencing the applicant had been in custody and under some form of treatment either at the Deer Park Women's Prison or at Parkville Youth Residential Centre since her arrest on 12 November 1998. On the plea two of her key workers were present but it was only necessary for one, Ms Nerinda Giles, to be called. The learned judge immediately asked whether they supported the view that a youth training centre order was appropriate and that the applicant was "performing" satisfactorily. To this counsel replied: "She's doing very well there … that would be the evidence. It's been quite a remarkable transformation in her life …". Counsel then drew attention to the applicant's efforts and to her "positive attitude". When Ms Giles was called she confirmed these matters. Initially the applicant had been very quiet but very open with and responsive to staff members, working steadily on a plan for her release. Ms Giles referred to the programme undertaken by the applicant through the Kangan Institute of TAFE. She had begun a fashion and design course, as well as a programme devised by a health team, involving individual and group sessions to which she had been "quite responsive" in "quite difficult peer dynamics". The learned judge intervened to say that it was unnecessary to call the other worker as, so he understood, she would do no more than corroborate the first witness. A witness from the Melbourne Juvenile Justice Centre, Ms Le Duc Trin, gave evidence of her contact with the applicant at the youth training centre, saying that her task was to counsel her and liaise with her family. She confirmed that the applicant had a most positive attitude.

At the conclusion of the evidence the learned judge then remarked that, unless the prosecutor wished to urge the contrary, a youth training centre order was appropriate and the period he had in mind was two years. The prosecutor did not urge any other course, but the judge continued, by way of explanation, so it would seem, by making a comment on which reliance is now placed for the purposes of ground 2:

"That's in the full knowledge, of course, that Judge Cullity [who was then Chairman of the Youth Parole Board] very benignly administers these orders and allows release at an appropriate time. It's not in contemplation that the individual be actually in the establishment for that period."

Counsel appeared to agree with the latter observations, but as to the period she queried: "It certainly is quite a lengthy period … ". After the judge had responded by commenting: "very serious offence, serious prior convictions", counsel for the applicant then informed the judge by way of submission, to which there was no objection, that the applicant's heroin usage was "no longer a problem for her" and that she had "availed herself of all opportunities to address any problems". She had a supportive mother and family and was anxious to complete Years 11 and 12 at school and to finish her fashion course. Counsel concluded by saying as to the period in a youth training centre that it was important to get the applicant back into the community as quickly as possible "so she can get her life back on track".

The learned judge then turned to the need for a pre-sentence report. On being informed that it should be in writing, his Honour said that he would need to stand the matter down for Ms Giles "to prepare a pre-sentence report for me". However, a few minutes later he was told that Ms Giles was "not in a position to do that". It was necessary to telephone Melbourne Juvenile Justice and that Mr Steve Riordan would normally do the report. After some inconclusive discussion as to how the relevant bureaucracy worked, the hearing was adjourned for a short time.

Thereafter one Samantha Hopkins arrived in court from what she called "Juvenile Justice Court Liaison", stating that she had prepared a pre-sentence report. Perhaps that was an exaggeration for it was apparently not in writing and, as presented orally to the Court, extends for less than one page of transcript, although that may only be the conclusions of a longer report. She stated that, after consulting with Parkville Youth Residential Centre and the Southern Juvenile Justice Community Based Office, she had assessed the applicant as suitable for a youth training centre order on the grounds that, having not been previously incarcerated, she was vulnerable, susceptible and lacked "offending history". The applicant had been "maximising the opportunity" provided by the youth training centre and was addressing various problems including both drug use and her family relationships. It had been arranged for her to participate in a community based educational programme, so that she was making steps "to rebuild her life so that she would not be likely to offend again".

For the purposes of this appeal the applicant relies upon an affidavit exhibiting a letter from the Assistant Director of Legal Services for the Department of Human Services in which he stated that "there was no instrument of delegation by the Secretary in place under s.96(3)(a) of the Sentencing Act 1991 (Vic.) on 15 March 1999" and appended a purported delegation dated 30 April 1999 to persons named only by reference to their office. It would follow that, if such a formal delegation were required, then Ms Hopkins was not authorised at the time to make the required pre-sentence report.

At the sentence hearing the learned judge then proceeded to give his reasons for sentence. He stated the applicant's age and the circumstances of the offence, characterising the event as "a most upsetting experience", although he conceded that he did not have any victim impact statement. His Honour then referred to Ms Giles and the opinion of Ms Trin that the effect of that material was that the applicant was "making very positive steps towards rehabilitating [herself], indeed reforming [herself] and therefore [she had] received strong support" from the two women. He "readily" accepted that the applicant was vulnerable and that it would be undesirable to place her in an adult custodial situation, although he allowed that she had already spent two months in a women's prison before being dealt with in the Magistrates' Court. In consequence he said that he was "well satisfied that, bearing in mind both the need to punish you, but also to have regard to your rehabilitation and reformation", he should impose a custodial sentence but it would be served in a youth training centre. Of that he observed that the applicant would be under the discretion of the Youth Parole Board and it would be a matter for that Board to decide when it was appropriate for her to be released. Nevertheless, he said that, although it could be expected that, because she was progressing well at that time, she may not have too long to wait before being released on parole, he was obliged, because of the seriousness of her offending and her prior convictions, to impose a significant order in respect of her detention at the youth training centre. He therefore imposed the sentence to which I have already referred, declaring also that some 67 days should be reckoned as the period of imprisonment already served.

Ground 4 - Validity of Pre-sentence Report

It is convenient to turn first to ground 4 which was argued before each of the other grounds of the application. In the course of an exceptionally well ordered and presented argument, Mr Richard Bourke contended on behalf of the applicant that it was a prerequisite for the imposition of a sentence of detention in a youth training centre that the sentencing judge should first have received a pre-sentence report prepared by the Secretary to the Department of Human Services or a person who had the relevant power delegated to him or her in writing and that, for the following reasons, no report had been prepared by the Secretary and that no other person including Ms Giles and Ms Hopkins had been lawfully authorised to prepare such a report. Counsel took as his starting point s.32(1) of the Sentencing Act 1991 which provides in substance as follows:

"(1) … [I]f a sentence involving confinement is justified in respect of a young offender a court may make a youth training centre order or a youth residential centre order if it has received a pre-sentence report and –
(a) it believes that there are reasonable prospects for rehabilitation of the young offender; or
(b)it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison."

He then referred to s.96 of the Act which for relevant purposes provides in sub-ss.(2) and (3):
"(2) A court must order a pre-sentence report if it is considering making … a youth training centre order … so that it may –
(a)establish the person's suitability for the order being considered; and

(b) establish that any necessary facilities exist …
(3)If a court orders a pre-sentence report, it must be prepared by –
(a)the Secretary if the court is considering making a youth training centre order …".

Section 3 of the Sentencing Act defines "Secretary" as having the same meaning as in the Community Services Act 1970. In turn counsel pointed out that in s.3 of the Community Services Act the Secretary "means the Secretary to the Department" and the latter section now defines the "Department" as meaning the Department of Human Services.

Thus counsel contended any pre-sentence report "must" be prepared by the Secretary to the Department of Human Services unless some power express or implied would allow that power to be delegated. There were, he said, only two possible sources of the power to delegate. In the first place he referred the Court to sub-s.(2) of s.10 of the Community Services Act which provides that -

"With the approval of the Minister the Director-General may assign in writing to any employee of the Department any of the functions or powers of the Director-General under this Act … or under any other Act … either generally or in any particular case …".
(Emphasis added.)

Counsel contended that this power was now capable of being exercised by the Secretary to the Department of Human Services by reason of the definition, also in s.3; viz "'Director-General' means the Secretary to the Department". (This would not appear to be correct inasmuch as this definition of "Director-General", though in the latest print (No. 5) of the Act, was repealed from 1 July 1998 by Act No. 46 of 1998. However, the same result would seem to follow from the amendment made at the same time to s.4(b) of the Act, which requires references to the "Director-General of Social Welfare or any like expression" (emphasis added) to be taken to refer now to the Secretary. See also s.47 of the Interpretation of Legislation Act 1984.)

The second possible source of authority to delegate was said to be s.8A of the Health Act 1958. "The Secretary" referred to in that Act is again the Secretary to the Department of Human Services: see the definition in s.3. The provisions of s.8A relied upon by counsel are in substance in the following terms:

"(1) The Secretary may, by instrument, delegate to –
…..
(b)an employee or class of employees in the Public Service; or
(c)any public authority or the Chief Executive Officer (however described) of any public authority; or
(d)any council or officer of a council –

any power or function of the Secretary under this or any other Act or under the regulations under this or any other Act, other than this power of delegation.
(2) Despite sub-section (1), any power or function delegated to a person under paragraph (c) of that sub-section may be delegated by that person to an officer or employee of that person."
(Emphasis added.)

As there was at the time of sentencing no written assignment or delegation by the Secretary to any person of the function to prepare pre-sentence reports, so Mr Bourke argued that nobody other than the Secretary could prepare such a report. The Secretary had not done so and the attempt by Miss Hopkins to give her report to the Court was ineffectual to satisfy s.96. Counsel maintained that, because of the explicit statutory powers to assign or delegate, there was no room to imply that the Secretary had the power by virtue of his office to authorise another to perform functions invested in him under the Sentencing Act. Moreover, even if a number of officers of the Department might assist the Secretary, whether authorised in that behalf or not, to prepare reports of this kind, the present report did not purport to be one prepared by the Secretary. A mere internal or casual authorisation or delegation to prepare the report would not suffice. Nor could s.42 of the Interpretation of Legislation Act 1984 avail the respondent, as its operation depended upon a valid delegation of the relevant function or power.

As counsel conceded, the question whether the power under s.96 of the Sentencing Act could only be exercised personally by the Secretary or his delegate authorised in writing or could be exercised by him through the officers of his department depends on the nature of the power and all the other circumstances of the case: see O'Reilly v. State Bank of Victoria Commissioners (1983) 153 C.L.R. 1 at 11 per Gibbs, C.J. The applicant's case was that the function here performed by the Secretary was of such importance to an accused that it must be exercised personally or by a specifically authorised delegate. This flowed not only from the language of ss.32 and 96-99, but also, so it was said, from the fact that a report might, in effect, result in the accused's being deprived of his or her liberty or, at least in other ways, being significantly and adversely affected. Counsel contended, moreover, that there was no room to imply that it was a matter of mere administrative convenience how these reports were prepared, nor was it a practical necessity, for the Secretary had ample power by statute to assign his function or delegate his power to prepare reports. Nor was there any room for the application of what has come to be known as the Carltona principle (see Carltona Ltd. v. Commissioner of Works [1943] 2 All E.R. 560, applied by the High Court in O'Reilly and in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 C.L.R. 24), whereby, broadly, it may be assumed that in a large government department powers will be devolved, as a matter of practical convenience, among those officers or employees of the department whom the Secretary (and his or her delegates) choose for administrative purposes, and to whom all necessary powers are allocated, in order that certain functions, powers or duties may be performed for or on behalf of the Secretary to the Department. Here the existence of the express powers in ss.10 and 8A, albeit each requiring assignment or delegation in writing, was said to make it clear that no other method should be permitted.

These contentions, both separately and in combination, would appear at first sight to make it difficult to justify the method which the Secretary and the Department apparently adopted by simply allocating the task of making pre-sentence reports to persons chosen for that purpose according to the ordinary internal administrative practices of the Department. On reflection, however, there are factors raised by a consideration of all the relevant statutory provisions and their practical application to circumstances such as the present, which suggest that counsel's argument, inexorably logical though it may seem, should be looked at in a different light. For these purposes it must be remembered that the question in each case is whether, having regard to the task imposed upon the minister, department head or other office holder designated by the statute, the task may be carried out by others at the behest of the designated person without the need for a formal instrument of delegation, assignment or the like.

The issue of the power to delegate where statutory functions, duties or powers are concerned is frequently seen as a vexed question, having given rise to a large volume of authority, much of it unnecessarily reported since the cases throw light usually only on the meaning of particular insignificant statutes. However, genuine difficulties of greater consequence are sometimes thrown up which may be seen from the detailed examination of authority contained in two major works on the subject of administrative law, namely, De Smith, Woolf and Jowell: Judicial Review of Administrative Action (5^th ed.) paras.6-103 - 6-118 and Aronson and Dyer: Judicial Review of Administrative Action (1996) pp.333-347. Each work starts with a reference to the Latin maxim delegatus non potest delegare which may be loosely translated as requiring that a person to whom a power has been delegated is not able to delegate its exercise to others, and thus must exercise it personally. Outside the fields of legislative and judicial (and quasi-judicial) powers the so-called rule may have little practical operation, such that Gibbs, C.J. in Dainford Ltd. v. Smith (1985) 155 C.L.R. 342 at 349 said that he was "not convinced that recourse to the maxim … is of much assistance in deciding upon the validity of an exercise of statutory powers". It is at the other end of the spectrum, as the respondent sought to argue, where the rule has a greatly attenuated operation such that it would be unlikely to restrict the manner in which a departmental head or official might exercise powers given to him by statute or regulation. It is frequently said that it rarely has practical effect because the person designated more often than not has a specific power to delegate such that the exercise of that power may be organised to suit the administrative convenience of the relevant department. That, to my way of thinking, is an oversimplification, for at least in this jurisdiction the great majority of such powers of delegation appearing in statutes require the delegation to be in written form.

That is the problem in the present case for there would seem to be little doubt that the Secretary might delegate in writing the relevant function of preparing pre-sentence reports, if the Secretary had chosen to do so, under one or other of the statutes which would appear to give the relevant power. It is conceded that there was no written assignment or delegation, although it is equally conceded that, if written assignment or delegation were not necessary, there is no evidence upon which the Court might conclude that the carrying out of the task of preparing the pre-sentence report in this case was not properly done at the behest of and on behalf of the Secretary, notwithstanding that it seems to have been neither in writing nor couched in terms which conveyed that the Secretary was the author, was involved in its preparation or had expressed views on any of the required subjects: see especially s.99.

Of course, the argument in the present case is that the Secretary's functions are of such significance and importance to the accused that they cannot be equated with mere administrative powers customarily given to some departmental functionary. In truth, so it is said, the Secretary has been chosen because it is his opinion which is sought and, if it is not obtained directly, then those functions ought only to be carried out by a person specifically chosen by the Secretary, on one view and in accordance with s.10(2) of the Community Services Act, also with the approval of the Minister. To my way of thinking, however, the contention does not answer the present question for the purpose of sections such as s.10(2), as well as s.8A of the Health Act, is rather different and more narrow. The object of each of those sections is to permit the assignment, or giving away, or delegation, or passing down of functions or powers, to a person other than the Secretary. Once an assignment or delegation takes place, then in my opinion each time a relevant function or power is exercised it is exercised in the name of the assignee or delegate and the Secretary is no longer responsible for the decision, except to the extent that he or she chose to delegate the particular power to the named individual. That may be the reason why in s.10(2) such a high flown expression using in combination the words "assign" and "functions" has been used, terms which do not appear together in more than two or three other Victorian statutes, to my knowledge, and which are more redolent of constitutional vesting of powers of a fundamental kind. Indeed, the words appear in combination in both s.2 and s.126 of the Constitution, referring respectively to functions assigned by the Queen to the Governor-General and by the Governor-General to any deputy: cf. Commonwealth v. Colonial Combing Spinning and Weaving Co. Ltd. (the "Wooltops Case") (1922) 31 C.L.R. 421 at 453-454 per Higgins, J. "Delegate" is the word most frequently used in Victorian legislation.

The question, however, remains whether that section and s.8A of the Health Act are intended, in relation to the preparation of pre-sentence reports, to state exclusively the circumstances under which others may be engaged by the Secretary to prepare reports of that kind. (See also now the power to delegate contained in s.18 of the Public Sector Management and Employment Act 1998, not referred to in argument.) In other words, are the sections intended to preclude the Secretary acting as one must assume he did in the present case?

It is argued that the legislature intended by the language it employed that pre-sentence reports should only be prepared by the Secretary or a formally appointed delegate of the Secretary. In other words it must be implied that the Secretary could not act through others except by means of delegation. Those delegates had to be chosen by the Secretary, and, under s.10, approved by the Minister. On the other hand, the Carltona line of authority suggests that that solution is impractical inasmuch as the Secretary could not be expected to prepare the number of reports that the Sentencing Act envisaged would be needed and delegation would take out of the Secretary's direct supervision the preparation of those important reports, important in the sense that they should not be prepared except under the Secretary's general control.

Gibbs, C.J. (with whom Murphy, J. agreed) stated the issue in O'Reilly at 11: "However they [scil. the line of authority] also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally." Cf. Carltona at 536 per Lord Greene, M.R. and O'Reilly at 31 per Wilson, J. It seems likewise to be recognised that the problem arises in relation to, and thus the general principle should also apply to, the powers and functions given to heads of departments and certain other statutory office holders. Wilson, J. in O'Reilly at 31 found "the logic of the principle equally persuasive in its application to the head of any large government department … No permanent head of a department in the Public Service is expected to discharge personally all the duties which are performed in his name and for which he is accountable to the responsible Minister." See also per Gibbs, C.J. at 11-12. The same principles would appear to apply both to the preparation of reports and the appointment of required delegates.

To these propositions counsel for the applicant responded that none is relevant where there are comprehensive rights of delegation which would, if exercised, relieve the named repository of the function or power of the burden so described. The Secretary need not be concerned in the preparation of individual reports as long as he had applied his mind to the choice of an appropriate delegate. That, however, in my opinion is an oversimplification for reasons already stated. Assignment of function, or delegation of power, may, in truth, deny practical overall control to the very person chosen by Parliament to exercise it. Moreover, under s.10 of the Community Services Act, a function or power cannot be assigned without the approval of the responsible Minister. Most importantly it would lead to the consequences described by Wilson, J. in O'Reilly at 32. His Honour asked whether the existence of a power of delegation required that the named official in that case (the Commissioner of Taxation) or his delegate to "direct his mind personally to the exercise of every power or function vested in him". His Honour considered the question admitted of only one answer:

"The practical administrative necessity to allow a Deputy Commissioner to exercise the powers delegated to him by the actions of officers authorised by him is evident. The opposing argument would oblige the Commissioner himself to delegate his powers, not only to the Deputy Commissioners, but to a host of departmental officers throughout Australia, rendering each of them a Commissioner in his own right. It would be utterly destructive of any semblance of administrative order and efficiency."

Of course his Honour's comments were directed to one of the largest and most complex departments of state in this country, but it is not entirely inappropriate to compare it with the functions and powers of the Secretary to the Department of Human Services in this State with his manifold responsibilities under legislation passed in recent years, in particular the Sentencing Act. Cf. per Gibbs, C.J. at 12-13. Moreover, this passage emphasises the fact that delegation takes a power out of the day to day control of the delegator or of those directly responsible to the delegator. As will be seen below, preparation of these reports was intended, at least after 1991, to be a matter requiring a degree of consistency and of organisation which should remain under the umbrella of the relevant head of department. For similar reasons the choice of any delegate (if that were seen to be appropriate) also called for overall supervision, but personal selection by the Secretary would again not be a necessary element of an efficient system for preparing reports.

The principle was again recognised by the High Court in Peko-Wallsend. Importantly the dissentient in the earlier case, Mason, J. (with whom on this occasion Gibbs, C.J. and Dawson, J. substantially concurred), said at 37-38: "The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others". After referring to Carltona and O'Reilly, he continued (at 38):

"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise and through his officer or officers responsible to him."

It would seem therefore that the inquiry in the present case must be as to the "nature, scope and purpose" of the function or power vested in the Secretary to the Department of Human Services. To that end some further examination of the nature of pre-sentence reports and their preparation, and of the present legislative framework relating to them, is called for.

The history of pre-sentence reports and the evolving system adopted to evaluate them shows, perhaps, little more than that the courts have relied on them in one form or another for many years. One may compare, for example, what appeared in the first edition (1985) of Fox & Freiberg: Sentencing: State and Federal Law in Victoria, at paras.2.401-2.416 with what now appears in the second edition (1999) at paras.2.401-2.413. If the discussion is a little less elaborate, that merely reflects the rather more systematic provisions now contained on the subject in Victorian legislation. That may be partly explained by the detailed discussion in the Starke Report: Sentencing. Report of the Victorian Sentencing Committee, published in 1988: see Chapter 15 at pp.585-608 in volume 2, as well as the research paper in Appendix O in volume 3. Although that report was widely seen and recognised in the second reading speeches as a foundation for much of what was enacted in the Sentencing Act when passed in 1991, the scheme proposed by the Starke Report for pre-sentence reports was only partially adopted: cf. the draft bill in volume 2 of the Report clauses 11-14 and clause 29. The proposal contemplated that the "report preparing function" should be centralised so as to "result in the standardisation of report preparation and format, and the maintenance of more consistent standards in the preparation of reports": para.15.6.10. Unfortunately, the recommendations suggested that the "single agency" to be set up should form "part of the Judicial Studies Board" (para.15.6.17), which was intended to have the benefit that a group of professionals with the necessary knowledge and experience in making pre-sentence reports would be available for that purpose: see paras.15.6.15-15.6.17.

As it turned out, the resulting system, for reasons which do not appear in any explanatory material to which we were referred or of which I have any knowledge, was a compromise. The responsibility was not given to the Judicial Studies Board which for various reasons, though formally set up by legislation, fell into desuetude. In fact responsibility for pre-sentence reports fell into three hands, all statutory office holders, indeed effective heads of department. Section 32 made it a condition precedent that a report be obtained before a youth training centre order be made, as it still does. Sections 96-99, then as now, made provision for a variety of pre-sentence reports, although they have been subject to some amendments. Sub-section (1) of s.96 gave and still gives a sentencing court power to "order a pre-sentence report" and to adjourn proceedings to enable it to be prepared. Sub-section (2) listed then three kinds of sentencing orders for which it was mandatory first to order and secondly to obtain a pre-sentence report, namely youth training centre orders, intensive correction orders and community based orders, to which two other kinds of orders have since been added. Sub-sections (3) and (4) originally read:

"(3) If a court orders a pre-sentence report, it must be prepared by –
(a)the Director-General of Community Services if the Court is considering making a youth training centre order; or
(b)the Chief General Manager if the Court is considering imposing a suspended sentence of imprisonment under s.28; or
(c)the Director-General of Corrections in any other case.

(4)The author of a pre-sentence report must conduct any investigation that he or she thinks appropriate or that is directed by the Court."

It should be noted that the persons referred to in paragraphs (a) and (c) were defined, as might be expected, in s.3 as the respective Directors-General within the meaning of the Community Services Act 1970 and the Corrections Act 1986. The "Chief General Manager" was also defined in that section as meaning the person so described within the meaning of the Health Act 1958. Of course at that time the functions and powers of the persons named in paragraphs (a) and (b) were not vested in the same person, as the Community Services Act and Health Act had not then been recast so as to reflect the combination of many of the functions of those two Departments. The word "author" in sub-s.(4) is not defined, and so it was contended before us that the word was used so as to refer distributively to each of the three (now two) people named in sub-s.(3), but, for reasons which will appear below, I am not persuaded that that necessarily was Parliament's intention.

In order to determine who Parliament intended should be responsible for the preparation of reports it is desirable first to see how the Parliament intended the section to work when it was originally enacted. It should be noted at this point that subsequently paragraph (b) with its reference to the Chief General Manager was repealed (in 1997) and the persons now named in paragraphs (a) and (c) are different, as presently enacted:

"(3) If a court orders a pre-sentence report, it must be prepared by –
(a)the Secretary if the court is considering a youth training centre order or a youth residential centre order; or
.....
(c)the Secretary to the Department of Justice in any other case."

The Secretary in paragraph (a) is, as already stated, the Secretary to the Department of Human Services and that person has powers of assignment and delegation under ss.10 and 8A of the respective Acts referred to above. However, as may be seen above, when the Sentencing Act was first passed the responsibility for preparing reports of this kind was given to the Director-General of Community Services. That post was effectively abolished in the following year when the Department of Health and Community Services was set up pursuant to Act No. 69 of 1992. In consequence the definition of "Director-General" was altered so as to mean the "Secretary to the Department", as then set up. That Department changed its name on at least two occasions, it being now known, since 1 July 1998, as the Department of Human Services.

Moreover until 1 July 1998 there was no Secretary to the Department of Health or any other department which administered the Health Act. Before that time the named head of the Health Department was the Chief General Manager, as referred to in the now repealed paragraph 3(b) of s.96. That person and the body corporate which also went under that name (see s.6 of the Health Act before amendment) were not abolished but renamed by Act No. 46 of 1998 (see ss.4 and 5 of that Act), at least as I would understand that legislation.

For present purposes, however, the person originally required to make pre-sentence reports under s.96 as to youth training centre orders was the Director-General of Community Services who, it would seem, then only had a limited power of delegation which did not include that now claimed for him under s.8A of the Health Act. The Director-General of Community Services was at the time of the passing of the Sentencing Act 1991 the head of the Department of Community Services and possessed but one power of delegation, that referred to in s.10(2) of the Community Services Act and which in substance was the same as in the present section permitting only the assignment in writing of functions or powers with the approval of the Minister. There would appear to have been no power given for relevant purposes pursuant to the Public Service Act 1974. Counsel referred us to s.42 and 42A of the Interpretation of Legislation Act 1984 but each of those sections assumes the existence of a power to delegate and makes provision, broadly, for the manner in which that delegation may be effectuated.

Consequently, if one were confined to considering the nature of the power given in 1991 to the person by statute required to prepare pre-sentence reports for the purpose of youth training centre orders, then the very limited powers given under s.10 of the Community Services Act would suggest that there must be some other method of delegation or authorisation permitted by law, howsoever that might be achieved. It would be a good example, especially because of the restriction requiring ministerial approval in each case, of a provision for delegation which was not intended to cover the field but must have been intended to permit the holder of the office to administer the relevant department in such a way as to place relevant responsibilities in the hands of those best suited to exercise them, as suggested in both O'Reilly and Peko-Wallsend. I would concede, however, there may be some qualification to this conclusion by reason of the giving of power to prepare reports to the other two persons named in sub-s.(3) of s.96 when the Act was passed in 1991. Although the Chief General Manager's powers were relevantly confined to preparing reports for the purpose of suspended sentence orders pursuant to s.28, the Chief General Manager referred to in para. (b) had the power of delegation then and now permitted under s.8A of the Health Act, albeit that that delegation also requires a written instrument in each case.

Likewise the Director-General of Corrections, who could at that time have been required to prepare pre-sentence reports in other cases pursuant to para. (c) of s.96(3) of the Sentencing Act, also had a similarly expressed power by instrument to delegate any function or power of the Director-General under the Act: see s.8(1) and (2) of the Corrections Act 1986. In the amended version of para.(c), the expression "Secretary to the Department of Justice" has been substituted for the Director-General, for that position was abolished in 1996 and the head of the department in charge of the Corrections Act is the said Secretary. Cf. also s.8 of that Act.

Nevertheless, in my opinion, the restriction contained referentially in the powers of the Director-General of Community Services to delegate must suggest that generally the Carltona principle should be applied, at least to the extent of saying that the Director-General, as well as the other two named officials, were not intended to delegate to specific persons the power to prepare reports but rather that duty was to be exercised by the relevant heads of department in accordance with customary and well-understood administrative procedures. That would enable each of them to decide who should be engaged and with what staff and with what other facilities to prepare and write the necessary reports for presentation to the court. If there were a true delegation, then there would be given opportunity to the delegates to go about the collation, preparation and writing of these reports in varying ways without appropriate supervision from the head or other senior members of the department, although no doubt they might take account of accepted practices. It would, however, be consistent with the suggestions made in the Starke Report that in relation to each class of report there should be overall supervision by the head of the department, while he or she would employ customary procedures to select those who would be best suited to prepare the relevant reports on each occasion, taking full account of all relevant matters, such as, for example, the workload imposed on each member of the department. Whatever may have been the practice, it might also allow the relevant department head, under present procedures, to select persons not employed within the department to prepare such reports but who could not be contemplated as appropriate delegates of statutory functions or powers for the purpose of s.10 and s.8A respectively. It is, however, not now necessary to resolve this question.

However, this convoluted examination of the statutory framework relating to the departments whose responsibility it was and now is to prepare pre-sentence reports, which has extended to perusing well over 15 reprinted Acts in addition to other amending Acts, shows how difficult the exercise is to determine what was in Parliament's mind in 1991 and whether that should be presumed to continue to be the legislative intention. It may be preferable, in the end, to examine what was and is involved in the preparation of such reports to see whether it was truly intended by Parliament at any time that they should be written by the head of department (or named senior officer) or in addition only by persons to whom the relevant function was assigned or delegated in writing pursuant to the relevant statutory power. I shall also endeavour to ascertain whether the word "author" used in sub-s.(4) ever reflected an intention that the departmental heads should be the authors of these reports or that the task of "preparation" should be confined to them and to those to whom there has been a formal written assignment or delegation.

It is necessary to return to ss.96 to 99 of the Sentencing Act for this purpose. Fortunately, apart from the differences in sub-s.(3) of s.96, which have already been described in detail, there has been but one amendment otherwise to those sections, in sub-s.(2) of s.96, which merely reflects the wider variety of alternative sentencing options presently available to judges and magistrates.

As to s.96, it should be noted that sub-s.(1) itself gives the court power, when a person is found guilty of an offence, to "order a pre-sentence report in respect of the offender and adjourn the proceeding to enable the report to be prepared". As noted above it is sub-s.(2) which makes in specified circumstances a pre-sentence report a necessary pre-condition to the making of certain sentencing orders. The sub-section is also relevant for understanding the nature of a report and use to which it may be put. It says:

"A court must order a pre-sentence report if it is considering making a combined custody and treatment order, an intensive correction order, a youth training centre order, a youth residential centre order or a community based order so that it 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."

The only change since 1991 is the inclusion in the opening part of the sub-section of the first and fourth kinds of order now listed. Sub-section (2) makes it clear that it is not merely the person's individual suitability for a proposed order that is under consideration (and the attachment of certain related conditions), but whether "necessary facilities" exist, a fact which may not be within the "author's" own knowledge but will ordinarily involve inquiries from responsible persons authorised to give the information within the Department as to the appropriateness and availability, measured presumably in physical and financial terms, of the proposed facilities for the offender. Doubtless that is why sub-s.(4) requires the "author to conduct any investigation thought appropriate".

Moreover s.97 shows clearly the width of the inquiries which an author may consider to be relevant to the sentencing of an offender. Thus, without setting out the whole of that section in full, sub-s.(1) states that reports of this kind may set out matters "which, on investigation, appear to the author of the report to be relevant … and are readily ascertainable by him or her", as to the offender's: age; social history and background; medical and psychiatric history; educational background; employment history; other offences of which he or she has been found guilty and their circumstances; compliance with other sentences currently in force; financial circumstances; special needs; and any courses, programmes, treatment therapy or other assistance that could be available to the offender from which he or she may benefit. Sub-section (2) requires further matters to be set out by the author which the court has directed to be included in the report. The width of these inquiries cannot be said to be surprising, nor indeed unfamiliar to those who have the duty of reading these reports, but the task of making them is neither simple nor capable of being done in a short time, and they are thus the very matters which one would expect the author of the report to go to some pains to find out and which would require detailed inquiries from a number of other sources. To my way of thinking it is clearly not the task which might be expected to be carried out by the head of a department as part of his or her everyday functions, although one might expect the head of a department, with appropriate advice from those experienced in the area, to set up systems and methods to enable all the relevant information to be obtained quickly and efficiently. It would also follow that the person chosen to be the author of such a report ought to be a person selected upon appropriate advice from within the Department and who may be a person employed by the Department or possibly, in certain circumstances which not need here be examined, on behalf of the Department, assuming that they have the necessary qualifications and experience to be the author of a report of this kind. A delegate might well be capable of putting together a report but would not have the capacity or authority to set up all systems for the necessary information gathering, which is thus left under the responsibility of the Secretary, but without requiring him to be the "author" of any report, obliging him only to set up the necessary system for "preparation" of reports.

The remaining two sections of this division should also be noted. Section 98 requires (by sub-s.(1)) that a pre-sentence report must be filed with the court no later than the time directed, although, as we were told, it seems that filing is not a step always carried out, and sub-s.(2) requires the author within a reasonable time before sentencing to provide a copy to the prosecutor, the offender's legal practitioners and, if directed, the offender. Again, one might say that, although such a task may not be difficult for an author of a report, it is not the sort of everyday task that one would expect the Secretary to a department to carry out. On the other hand he or she might well be expected to set up systems within the Department whereby that obligation could be carried out on behalf of the author. It would not follow that, if, as has been argued, a delegate of the Secretary ought always to be the author, then that delegate would necessarily be able to put such systems in place, nor could such a delegate be expected to be responsible for them, howsoever familiar they might be with the operation otherwise of the Department. The responsibility under sub-s.(2) is however placed on the author. The "author", therefore, should be seen as a suitably qualified person who forms part of the departmental scheme under the Act for making reports to the courts.

Finally s.99 deals with the possibility of a pre-sentence report being disputed. Sub-section (1) requires the prosecution or defence to file a notice of intention to dispute the whole or any part of a report which it is intended to question. Sub-section (2) at all times has read:

"(2)If a notice is filed under sub-section (1) before sentencing is to take place, the court must not take the report or the part in dispute (as the case requires) into consideration when determining sentence unless the party that filed the notice has been given the opportunity –
(a)to lead evidence on the disputed matters; and
(b)to cross-examine the author of the report on its contents."

This last paragraph (b) confirms that Parliament never intended the author to be the relevant head of department but always intended a person engaged in that behalf. It could hardly be envisaged that in relation to reports of this kind that the Secretary would be cross-examined even on the relatively infrequent occasions when that occurs. It is not that heads of departments are not from time to time cross-examined, but it is hard to believe that not only the burden of preparing the report and expressing the necessary opinions should be placed on the Secretary, but also that he or she might be on call for those occasions when one party or the other wishes to cross-examine. Of course, it is easier to envisage a delegate being cross-examined if that delegate happened to be merely a person ordinarily engaged to make reports, but, as I have said, that is not the kind of delegation which is here contemplated. Rather it is to be seen that the Secretary should set up procedures which will enable the reporting process to be carried out as efficiently as practicable. Moreover, as this paragraph makes plain, it is highly unlikely that "the Secretary" and "the author" were intended to be the same person.

All these matters point to the conclusion that reports of this kind are seen to be part of the everyday functions of the relevant department for which, as is not unfamiliar, the head of that department, here the Secretary to the Department for Human Services, is to be responsible in the sense that he or she is obliged to set up machinery for the proper implementation of this division and for the preparation of reports in conformity with the Act and with any directions of the courts. If it were merely a matter of delegation then, theoretically, after allocation of the task by the Secretary, the delegate would be entirely responsible for preparation, writing and distribution of the report. However efficient that person might be, the preparation of such reports requires more than personal attention and requires a system to be in place, responsibility for which must lie with a head of department. Whatever manner the Secretary adopts to achieve the end of properly preparing the reports is a matter for the internal administration of the Department, for which the head of department is responsible, requiring the employment of professional and experienced persons, but also requiring an administrative system designed to support the authors in the preparation of their reports by the provision of information and the like, especially as to proposed facilities.

When one looks at the language employed by the legislature one may, perhaps, glean what was intended by the expressions used. The Secretary is not required merely to "give" or "furnish" a report of the relevant kind but to "prepare" it. "Preparation" connotes much more than the expressing of opinions or the making of a recommendation: it refers to the whole process which leads to such opinions or recommendations. (The distinction is well drawn in the cognate provisions in s.136(a) of the Children's Court Act 1958.) The scheme of the legislation requires the Secretary to have in place the necessary system and staff for efficient preparation, whereby the author, as so described, will best be able to write a report containing the material the statute and the courts contemplate, expressing all necessary opinions, and, in the end, to ensure that the report is brought to the attention of all parties and that the author is available for cross-examination where necessary. The section requires the setting up of a system whereby reports can best be prepared and, to the extent contemplated by the Starke Report, in a way which encourages consistency and efficiency. As it is not designed to obtain the opinion of the Secretary nor, I would hold, the opinion of any delegate as such, it therefore does not require the author to be a delegate appointed, in these circumstances, with the concurrence of the Minister, or pursuant to s.8A of the Health Act, for this would involve a heavy-handedness which would be the very antithesis of the efficient and adaptable system contemplated.

There is only one other aspect of the applicant's argument which it is necessary to deal with, namely, that the task of writing pre-sentence reports is so important that it should only be exercised by the head of department or by a specifically authorised delegate, because the recommendations in the report may well result in the accused being deprived of his or her liberty or being otherwise adversely affected. One would not wish in any way to treat reports of this kind as insignificant in the sentencing process. Far from it, but two things should be noted in this regard. In the first place these reports are not given a role which makes the statements of opinion contained in them unchallengeable: I have already pointed to the specific provision which enables the author to be cross-examined as to its contents. Nor is there anything in the statutory provisions which would deny the sentencing judge full power to disregard what was said in the report if he or she thinks fit. As with any other report or opinion obtained in the course of a plea it should only be given the weight to which it is entitled. Even as to the availability of places in specific institutions and of any necessary facilities, about which it might be more difficult for a judge to have specific knowledge, the judge is still not obliged to accept that advice, although disregarding it might prove embarrassing, but this very material would come best, to my way of thinking, from the general information resources which are available to the Department and from the ad hoc enquiries of particular individuals to whom the task was informally given. In other words one would assume that for the purpose of preparing this aspect of these reports, there would be well recognised lines of communication which would be employed by those responsible on a day to day basis for putting together and writing reports of this kind. Moreover, it would seem preferable to have a consistent standard of report preparation, achieved by appropriate supervision of the Department and its head, than by leaving it to the opinion of a person chosen as a delegate for a specific report. In the end, although it may be said to be a matter of opinion, the standards of reports are likely to be higher when prepared as part of an organised system and the accused is likely to be better protected if their authors form part of that system than if the decision were left merely to the opinion of an individual chosen by formal delegation in the manner suggested.

Finally, it was suggested that the manner in which the report was given did not satisfy the requirements of the legislation even if formal assignment or delegation were not required. It was said that the report was not made by the Secretary even in the sense described. Undoubtedly something went wrong with the system on this occasion for there was both confusion as to who was to deliver the report and then only a brief informal oral statement was provided to the Court. No objection, however, was taken at the time, the informal presentation being made with the encouragement of counsel then appearing for the applicant. Having regard to what I have already said, I consider it was sufficient that the report appeared to have been prepared under the auspices of the Department.

In my opinion ground 4 has not been made out.

Ground 2 – Possibility of Executive Action

The applicant here has specifically relied on s.5(2AA) of the Sentencing Act and in particular paragraph (a) which reads:

"Despite anything to the contrary in this Act, in sentencing an offender a court must not have regard to –
(a)any possibility or likelihood that the length of time actually spent in custody by the offender will be affected by executive action of any kind …".

This statement restates the position at common law but it should not be taken to mean that during the course of a sentencing plea discussion cannot be held with the judge as the different dispositions available to the judge and the differing effects each sentence contemplated might have. In the present case the first reference in the course of argument was one where, in my opinion, the judge was merely stating to counsel, and no doubt for the benefit of her client, how he understood an order for detention in a youth training centre might be administered. Of course he referred to the fact that a prisoner so detained might be released during the period of detention, but that was only to indicate that detention in a youth training centre had somewhat different incidents from imprisonment.

Again, although the nature of a youth training order is described in the judge's sentencing remarks, I do not believe thereby the judge wrongly "had regard to" the possibility that the time actually spent in custody in the centre would be affected by executive action. No doubt he referred to the fact that the Board would decide when it was appropriate for her to be released on parole but that I believe was again an attempt to explain to the prisoner the nature of the custody she would be undergoing, different from that which would be experienced in an adult gaol where one might expect the term imposed in most cases to be qualified, if that be the right expression, by a direction as to release on parole. Again, the judge said that it was "to be anticipated" that the prisoner would not have "too lengthy a time to wait" before he was released on parole. Nevertheless that comment was not made, in my opinion, because he was fixing a different sentence because of that possibility or likelihood. He was merely informing the prisoner that the nature of detention in a youth training centre was different from that of incarceration in an adult gaol and that it had different incidents. It would be unfortunate if the "codification" of the common law principle now contained in s.5(2AA) were to be rigidly interpreted so as to prevent a judge from explaining the nature of the kind of penalty that was being imposed to a young offender, who was and is precisely the kind of offender for which such explanation is desirable. If the meaning advanced on behalf of the applicant were the proper interpretation it would again prevent, in a case other than this, where other accused are being ordered to be imprisoned in adult gaols, the judge from describing the difference between the two kinds of detention so as to prevent any perception of injustice by reason of the failure to impose a specific non-parole period in the case of any youth training centre order, where by reason of the provisions of the Sentencing Act no such minimum period can be directed.

Fortunately, I do not believe that, upon a proper understanding of the section, that kind of explanation, and more particularly the kind of explanation given by the judge to the applicant in the present case, would carry with it also the inference that the judge had wrongly had regard to the possibility or likelihood that, under a youth training centre order, executive action, by reason of the decision of the Youth Parole Board, might affect the length of time spent in custody. In essence the vice which should be avoided is one whereby a judge imposes a longer sentence upon what has been held, and is now statutorily deemed, to be an incorrect appreciation of the nature of orders by way of release on parole. If the judge had here indicated that he was giving a longer period in a youth training centre than he otherwise would have imposed, then his discretion would have been vitiated by the common law principle now embodied in this sub-section.

I do not believe this experienced judge had any such intention, so that this ground is likewise not made out.

Ground 3 – New Evidence as to Prospects for Rehabilitation

To support this ground an attempt was made to file and rely upon an affidavit which had exhibited to it a detailed "court report" dated 27 October 1999 apparently prepared by four members of the Department of Human Services setting out over eight pages the very satisfactory attempts at rehabilitation made by the applicant since the time she was sentenced to detention in the youth training centre. In substance the affidavit of Carol Tomnay and the report exhibited to it stated that –

·    the applicant had demonstrated remorse, embarrassment and a sense of guilt;
·    that she had been "heavily engaged" in counselling with a drug counsellor;
·    that she had successfully concluded a fashion design course in May 1999;
·    that because she had suffered a serious leg injury in the meantime, she had now commenced a retail course requiring attendance on only three days a week;
·    that she had expressed a desire to complete her secondary education and had attempted to enrol in a TAFE course;
·    that she had been assessed as suitable for the Community Residential Outreach Programme;
·    that she had successfully put into effect strategies as to maintaining a drug-free life;
·    that while on leave, though having the opportunity to use drugs, she had remained free of any 'substance use';
·    and that those responsible for the report expressed confidence in her progress and prospects for rehabilitation.

Although these matters obviously showed, arguably, more than satisfactory progress since the learned judge had imposed his sentence, the question is whether the report threw new light on any subjects raised at the time of sentence or threw a significantly different light on any such subject to justify its reception upon appeal. The principle is anomalous, for ordinarily events of that kind are not relevant in determining whether a sentencing judge had erred in the exercise of the sentencing discretion: see s.568(4) of the Crimes Act 1958.

This is not the occasion upon which to review the authorities relating to the reception of evidence of subsequent events on applications of this kind, many of which were analysed by Brooking, J.A. in R. v. Babic [1998] 2 V.R. 79 at 80-82: see also per Charles, J.A. in R. v. Rostom [1996] 2 V.R. 97 at 99. Nevertheless, a number of later decisions have formulated the relevant considerations in varying ways, in part seeking to rely upon each of those reported cases as well as the earlier decision in Eliasen (1991) 53 A.Crim.R. 391: see e.g. R. v. Norman & Briggs (Court of Appeal, 17 April 1998, unreported) per Tadgell, J.A. at 17-21 (with whom I agreed) and per Buchanan, J.A. at 1-2, R. v. W.E.F. [1998] 2 V.R. 385 at 388-389 per Winneke, P. and R. v. Zehir (1998) 104 A.Crim.R. 109. In broad terms it would seem that the evidence has been accepted as being admissible only in circumstances where the evidence would tend to show the true significance of facts which were in existence at the time of passing sentence. In the present case reliance was placed on an earlier decision, R. v. Prior [1966] V.R. 459 at 460, a decision briefly referred to by Brooking, J.A. in Babic at 81-82. I would observe in passing that in Prior there seems to have been no objection by counsel appearing for the Crown, Mr Irvine, Q.C., nor any discussion by the Court as to the admissibility or otherwise of the evidence. Again, in that case, the evidence related to the subsequent rehabilitation of the applicant which, however, seemed to go a good deal further than any material before the sentencing judge.

Although I would be very cautious in accepting any view of these authorities which would permit the calling of evidence as to the rehabilitation of offenders after sentence was passed, for that might let in evidence in 50% or more of applications to this Court, it is not necessary to reach any conclusion upon the matter. Although comprehensively expressed and clearly indicative of the applicant's continued success in rehabilitating herself, the affidavit and report presently relied upon in effect says nothing new about what was already known at the time of sentencing and which was put before the sentencing judge. Those matters I have already briefly described in paragraphs 8, 10 and 12. From that it appeared that the applicant had already demonstrated remorse and a sense of guilt which had led her to participate successfully both in rehabilitation and other programmes at the youth training centre in which she was already detained. So even at the time the judge passed sentence it was known that she was "maximising" her opportunities to overcome her problems, was participating successfully in the programmes and was making steps in rehabilitating herself so as "not be likely to offend again". Her success had already been described as a "remarkable transformation" in her life. She had already been involved in a TAFE programme and was thereby seeking to "link herself" into the fashion and design course, which, according to the proposed new evidence, she successfully concluded in May this year. In my opinion, the evidence sought to be adduced merely shows that she had gone down that line of rehabilitation, the evidence providing support only for the conclusion that she is successfully continuing to put in practice that which she had already embarked upon when the judge passed sentence. Likewise, it merely emphasised that she had continued to remain drug-free. All these matters were recognised by the learned sentencing judge who had found that she had been making "very positive steps towards rehabilitating" herself and had been receiving strong support in those endeavours. In the light of those findings and in the light of the clear and undisputed evidence available before the learned judge, I would conclude that there is nothing in the additional material, which the applicant would seek to lead, which would add to or have any material bearing upon the decision which the judge made in ordering her to be detained in a youth training centre for a period of two years. In those circumstances I would refuse leave to adduce the evidence and hold that the ground had not been made out.

Ground 1 – Was the Sentence Manifestly Excessive?

Essentially counsel for the applicant relied on the matters already the subject of specific grounds. However, he also drew attention to the following factors, whether in addition or by way of exposition, namely – the applicant's youth, her limited criminal history, her early plea of guilty, her early expressions of remorse, her personal history, her prospects for rehabilitation, the fact that this was in effect the first custodial sentence she would serve and the fact that the offence was committed during a crisis situation related to her drug addiction. Having regard to those matters it was argued that the term of two years' detention in a centre was manifestly excessive.

In my opinion the sentence imposed was well within the range available for this kind of offence and for this kind of offender. The applicant had pleaded guilty to a serious offence, namely, armed robbery which ordinarily would call for significant custodial sentence and, although it was not the worst example of that kind of offence, it was carried out with a degree of deliberation, with the threat of using a knife taken for the purpose and after deceiving the attendant to leave the till. Moreover, it was committed while she was undergoing sentence by way of two community-based orders, so that, although those offences were unrelated in kind to the present, she had thereby been released upon condition that she would not break the law. The judge rightly took into account her prospects for rehabilitation but those did not, upon any reasonable interpretation of them, require the judge to impose a lower sentence than he in fact did. The ground is not made out.

The application must therefore be dismissed.

CALLAWAY, J.A.:

I agree that, notwithstanding Mr. Bourke's admirable argument, this application must be dismissed for the reasons given by my brother Ormiston.

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[1999] VSCA 222

22 December 1999