“QUOTEWORTHY” 1998

1. “Plutarch tells us that Homer died of chagrin because he was unable to solve a riddle. Ever since I encountered s568(1) of the Crimes Act 1958 I have wondered what it meant”. per Brooking JA in R v Gallagher [1998] 2 VR 671; (1997) 96 A Crim R 300, Vic Court of Appeal, 28 August 1997.

2. “Positive obligations are expressed in the Planning and Environment Act 1987, in some instances understandably, by force of “must”, rather than by means of “shall”. This practice makes the questionable assumptions, first, that “shall”, in order to be understood, needs to be fixed and absolute in meaning and, secondly, that the average reader is incapable of perceiving that it need not. So be it. What is less understandable is the substitution throughout for “shall not” of the blunt instrument “must not”, apparently heedless of the shades of meaning that each has borne for many a long day: see eg, Genesis, 29:26, comparing the Authorized Version with the Revised Standard Version. The absurdity of an indiscriminate use of this latter enjoinder was nicely illustrated in the 1872 Punch cartoon bearing the caption “Go directly – see what she’s doing and tell her she musn’t”. So too, the undiscerning use in a statute of “must not” produces its own form of ridiculousness. The use of “must” as a modal auxiliary may often appropriately express an obligation, but the mere addition of “not” may fail as an apt expression of a prohibition. Moreover, a prohibition may not be seemly or fitting, where, as in many current statutes, it is directed to a minister of the Crown (cf. s97(2) of the Act), to a superior court or even – with determined insensitivity – to the Governor-in-Council. In truth, “must” is a ticklish auxiliary: Though useful in its proper place it deserves careful handling. John Richard Green, in A Short History of the English People, ch 7, records that in 1603 the younger Cecil’s exhortation to a moribund Queen Elizabeth, propped up with pillows on a stool, that she “must” go to bed “…roused her like a trumpet. ‘Must!’, she exclaimed, ‘is must a word to be addressed to princes? Little man, little man! thy father, if he had been alive, durst not have used that word.'”.

Even those who do not tolerate much history might admit that there are places where “must” carries its own stamp of absurdity; and that “must not”, when ill-used, is even worse. There are several examples of the latter in the Planning and Environment Act 1987.” per Tadgell JA in Halwood Corporation Limited v Roads Corporation [1998] 2 VR 439; Vic Court of Appeal, 30 June 1997.

3. “The provisions of the Corporations Law that include s553C are, as I observed in the course of argument, drafted in the language of the pop songs. Section 435A speaks of “maximis[ing] the chances” and s435C of “[t]he normal outcome” and “the deed’s administrator”. Section 435C(3) begins with the word “However” and a comma, a style that, at least until recently, has been eschewed by good writers. I am aware, of course, that there are those who believe that a statute should be drafted like a notice to quit or even a novel: their distinguished predecessors were the draftsmen of the Code Napoleon, later called the Code Civil: but an Australian Stendhal would not refresh his spirit or purify his style by dipping into legislation where the quest for simplicity pays the price of vulgarity and ends in obscurity”. Per Callaway JA in Pearce & Co Pty Ltd v RGM Australia Pty Ltd [1997] VSC 63; [1997] VICSC 63, Vic Court of Appeal, 22 December 1997.

4. “Attempts were made today, and discouraged by the Court, to refer to sentences passed by a number of judges in individual cases. This is rarely a helpful exercise, as Tadgell JA observed only the other day in R v Cohen [1998] VicSC 232, 11 May 1998. Other references were made to decisions of this Court or its predecessor dismissing applications for leave to appeal against sentence. The decisions relied on showed no more than that the Court was not persuaded that the particular sentence passed was manifestly excessive. Finally we were referred to one or two sentences passed by this Court on a successful Director’s appeal, but sentences of this kind are not sentences which would have been passed if the offender had not already been sentenced once.

As Phillips JA has said, these offences were large-scale, highly planned and most ingenious. The applicant has shown the necessary formidable combination of intellectual power, criminal skills, diligent application and amorality to fit him to become the Professor Moriarty of Victorian crime.” per Brooking JA in R v Bahntoff [1998] VSC 314; [1998] VICSC 99, Court of Appeal, 14 May 1998.

5. “Youth and good character and a plea of guilty and good prospects of rehabilitation do not confer immunity from a sentence of YTC detention, which, unlike a prison sentence is, after all, specifically designed to further rehabilitation. It will, from time to time, be quite appropriate to sentence a young first offender to a period of YTC detention … Rehabilitation is the primary consideration with youthful offenders. A sentence of YTC detention is, however, very different from a sentence of imprisonment in an adult prison. It is oriented towards rehabilitation and is treated by the Sentencing Act, and especially by s32 of that Act, as a form of sentence designed to achieve that purpose.” per Brooking JA in R v Vassallo & Tasioulas [1998] VSC 306; [1998] VICSC, Court of Appeal, 7 May 1998.

6. “…[D]espite the special claim to consideration which youth gives, a point may be reached at which someone who has been leniently dealt with in the past, and who has nevertheless gone on to commit a large number of serious offences, must go to prison for a substantial period.” per Brooking JA in R v Best, Court of Appeal, 16 April 1998.

7. “In support of his argument on Grounds 2, 3 and 4 Mr Tehan submitted that in general terms the authorities established the following propositions:
i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s5(4) of the Sentencing Act.)

Mr Ryan, who appeared for the respondent, informed the court that he did not cavil with those propositions as general propositions. In my view, that attitude was correct: R v Martin [1973] VicRp 86; [1973] VR 854 at 856; R v Seymour (1983) 5 CrAppR (S) 85 at 87; R v Smith (1988) 33 ACrimR 95 at 97;  (1988) 9 MVR 96; R v GDP (1991) 53 ACrimR 112 at 116; R v Edwards (1993) 67 ACrimR 486 at 489 (a very strong case, albeit that it was a Crown appeal); and R v Misokka [1995] VicSC 612, Vic Court of Appeal, 9 November 1995 at pp6-7 per Callaway JA and at pp10-11 per Vincent AJA. Mr Tehan accepted that, for the purpose of determining whether the applicant was “youthful” within the propositions, the relevant date was the date of sentencing.

By that date the applicant was 21 years of age and therefore no longer a “young offender” within s3(1) of the Sentencing Act. He was also of full age in law. But those factors do not mean that he was not “youthful” for the purpose of the propositions, and a case such as Edwards (where the applicant was 22 years old at the date of the hearing of the application and at least 21 at the date of sentence) shows that the applicant is to be treated as youthful in the application of the above propositions. No doubt, as the age in question increases the force of the propositions diminishes.” per Batt JA in R v Mills [1998] VSC 241; [1998] VICSC 7, Vic Court of Appeal, 26 February 1998.

8. “Sentencing is not an arithmetical exercise. It is a matter of justice tempered by mercy, not foolish leniency. It involves a balanced consideration of all the relevant factors, of which the maximum penalty, although important, is but one.” per Callaway JA in R v Maher [1998] VicSC 262, Vic Court of Appeal, 21 May 1998.

9. “The idea that guilty conduct may betoken guilt is a very old and simple one, founded on common sense. Equally old and simple is the recognition that what looks like guilty conduct may have an innocent explanation, so that care is necessary. Sir Edward Coke (3 Inst. 232) reports from the reign of James the First the case of a man hung for the murder of his disappearing niece, who was later found to be alive and well. The uncle, Coke tells us, being unable to find his niece and fearful of conviction, had tried to pass off another girl as the missing child and had been caught out in his deceit. Coke treats this as a cautionary tale:

“Which case we have reported for a double caveat: first to judges, that they in case of life judge not too hastily upon bare presumption: and secondly, to the innocent and true man, that he never seek to excuse himself by false or undue means, lest thereby he offending God (the author of truth) overthrow himself, as the uncle did.”

… Lies have been relied on by prosecutors for 400 years, but of late the Crown has become more reluctant to do so. It would be unfortunate if a legitimate, and often powerful, weapon in the prosecutor’s armoury were to fall into disuse. … I share the view that this should not be an arcane region of the criminal law but a field ruled by common sense and relative simplicity. Let any necessary distinctions be drawn and let all necessary directions be given in each particular case, but let us not deter prosecutors and trial judges from allowing juries where appropriate to rely on lies – or other guilty conduct – as an indication of guilt.” per Brooking JA in R v Chan [1998] VSC 250; [1998] VICSC 39, Vic Court of Appeal, 12 March 1998.

10. “In the course of his sentencing remarks addressed to the applicant Tien, the learned judge said:

‘… I reject the submission that the principle of parity should apply to the sentence imposed on your co-offender.’

… There was debate before us upon the meaning of the passage I have just quoted and, I am obliged to say, understandably so. Apart from its ambiguity and infelicity, the passage seems to me to foster a misunderstanding of the concept with which the judge was required to deal. Although it is no doubt convenient as a matter of shorthand expression to refer to “the principle of parity”, the concept is not to be likened to a principle of physics or mathematics which is necessarily to be applied, or necessarily to be withheld from application, in a particular case.

As I understand it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. In the absence of such an explanation a more lenient sentence imposed on one of them will be likely to engender a justifiable sense of grievance in the other or others, and a justified sense of grievance is inconsistent with a fair system of justice. It is, as I should think, inappropriate ever to say that “the principle of parity”, understood in that way, should not apply as between co-offenders. The concept is always to be borne steadily in mind when co-offenders are to be sentenced, whether together or separately, or by one judge or more than one.” per Tadgell JA in R v Tien and Ors [1998] VSCA 6, Vic Court of Appeal, 22 July 1998.

11. “I had previously thought that the majority judgment in Storey’s Case [1998] 1 VR 359; (1997) 89 A Crim R 519 was silent on the rule to be applied to facts that are aggravating or mitigating depending on how you interpret the evidence and silent on the difference between a circumstance of aggravation and the absence of a mitigating factor. Re-reading the majority judgment … I am no longer confident that that is so but, as Sir Owen Dixon said in one of the Transport Cases, a judge who disagrees with a doctrine is the wrong person to explain it.” per Callaway JA in R v Pickard [1998] VSCA 50, Vic Court of Appeal, 28 September 1998.

12. “As if to demonstrate empirically the Newtonian law of centrifugal force, which makes particles fly from the centre of rotation, originating proceedings seem often drawn by some inexorable force towards the extremity of the limitation period. So it was in this case: the writ was filed on or about the last available day. To do this leaves no margin for error … [W]hile I have no desire to encourage laggards who put their rights at hazard by suing at the last minute, I confess I shall be sorry to find that the appellants have lost their rights because of what they have done – or not done – in this case. But a hard case must not make bad law.” Per Brooking JA in Arthur Young (A Firm) v Brunswick NL [1998] VSCA 87; [1999] 1 VR 387, Court of Appeal, 3 October 1998.

13. “The fact that an offender was motivated to the commission of the crimes in question by an addiction to gambling will, no doubt, usually be a relevant, and may be an important, consideration for a judge sentencing the offender for these crimes. But as Tadgell JA said in R v Cavallin [1996] VicSC 328, Vic. Court of Appeal, 24 July 1996) at 10:
“It is … important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment.”

It is considerations such as these which have led this Court to say more than once that it will be a rare case indeed where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction”. Per Charles JA in R v Petrovic [1998] VSCA 95, Vic Court of Appeal, 22 October 1998.

“A steady indulgence in gambling requires a ready supply of money. A compulsive gambler can either financially afford the pastime or not. If not, other people’s money will necessarily be used to feed the addiction. Being thus in need of other people’s money, the addict will resort to criminal dishonesty to obtain it.” Per Tadgell JA in R v Petrovic [1998] VSCA 95, Vic Court of Appeal, 22 October 1998.

14. “This case is another illustration of the financial catastrophe that may ensue when neighbours go to war over some minor dispute about their common boundary instead of working out a peaceable solution. Sometimes hostilities break out over some slight and longstanding encroachment of a fence or building. Sometimes the casus belli is the encroachment, not of a structure, but of tree roots. Here it is the ancient and dilapidated timber coach-house at the rear of what is no doubt a fine old home in Boston Road, Balwyn. …

But, however much one may deplore the amount of public and private time that has been devoted to litigation having its ultimate origin in petty disputes … the Abrahams, having set in motion the numerous and diverse engines of the law, are entitled to expect that the Heath Robinson machine will continue to clank and whirr until yet another decision drops out of it.” Per Brooking JA in Abrahams v Wainwright Ryan [1998] VSC 335; [1998] VICSC 113, Court of Appeal, 4 June 1998.