“QUOTEWORTHY” 2005

1. Sentencing – when a court is considering fixing a non-parole period, the court should not take into account the possible effect of executive action or policy. Accordingly a court was in error in declining to fix a non-parole period because it was likely the accused would be deported upon release from prison.

“9. In the course of her reasons for sentence given on 2 September 2004, her Honour accepted the appellant’s explanation for the offending and the fact that he had shamed himself and his family and was likely to be deported. Ultimately she sentenced him to eight months’ imprisonment on counts 8 and 10; six months on counts 1, 2, 3, 4, 5, 6 and 7 and three months on counts 9 and 11. She ordered that one month of the sentences imposed on counts 1, 3, 5 and 6 and three months of the sentence imposed on count 8 be served cumulatively upon each other and upon the sentence of eight months imposed on count 10. The total effective sentence was therefore one of 15 months. Her Honour said that she would not fix a non-parole period because it was likely that the appellant would be deported upon release from prison. She declared that a period of 106 days had already been served. At the present time, the appellant has thus served nearly nine months in prison.

10. On 5 November 2004 a judge of this Court gave leave to the appellant pursuant to s582 of the Crimes Act.

11. On the hearing of the appeal, Mr Croucher submitted that the sentencing judge was in error in failing to fix a non-parole period pursuant to s11 of the Sentencing Act; and was in error in assigning the reasons which she gave for not doing so. In my view this ground is made out. With respect, her Honour was wrong to take into account the possible effect of executive action or policy in determining not to set a non-parole period (cf. per Marks J in R v Binder and Langer [1990] VicRp 50; [1990] VR 563; (1989) 42 A Crim R 221; see also Shrestha v The Queen [1991 HCA 26; (1991) 173 CLR 48; (1991) 100 ALR 757; (1991) 65 ALJR 432; 54 A Crim R 217.)

The error of this approach is also reflected in s5(2AA)(a) of the Sentencing Act 1991. I also agree with Mr Croucher that the circumstances of this case, including the youth and personal characteristics of the appellant, his “otherwise good character” and his rehabilitation made it highly desirable for her Honour to fix a minimum term following which he would become eligible for parole. It would seem that the respondent agrees that her Honour fell into error in the reasons she gave for not fixing a non-parole period. That much was conceded, quite properly, by Mrs Quin this morning. However, it is said on the respondent’s behalf that this Court should nevertheless, in re-exercising the sentencing discretion, impose the same sentence of 15 months which her Honour has imposed.”
Per Winneke P, in R v Vu [2005] VSCA 18, Vic Court of Appeal, 9 February 2005.

2. “Contributory negligence
6. Reasonable care does not require over-caution. That is true of defendants and it is also true of plaintiffs. I was, for a time, attracted by Mr Saccardo’s argument that what the plaintiff did was exactly what any normal 16 year-old boy would do, given his and his peers’ previous experience of the swimming hole. For better or worse, the law of negligence affects the kind of society in which we live and we do not want the law to nurture a nation of ninnies. Mr Garling persuaded me, however, that even a normal 16 year-old could be expected to realise that diving into the opaque waters of an alluvial anabranch after an exceptional flood posed a danger against which at least some precaution should have been taken. It need not have been, as the judge suggested, wading into the hole first. There were other ways in which the depth of the water could have been tested.

Concluding unscientific postscript
7. The relationship between duty and breach in the law of negligence is causing more perplexity than it used to do but, as I have said, this case is not at the cutting edge. I would leave the quelling of that perplexity to the High Court. I simply wish to make two brief observations.

8. The first is that the imposition of general duties of care in negligence has no sure foundation in legal principle. It involves trade-offs and value judgments that may have been better left to the legislature in 1932 and again in 1963 and 1976. The search for a principle is worse than looking for a needle in a haystack. The needle is not there. The second observation is that, however the difficulties are to be resolved, duty is a question of law and breach is a question of fact. The discipline of civil juries, which we still have in Victoria, conduces to clear thinking. It reminds us that questions of breach, unlike questions of duty, cannot involve legal policy. At common law the same is true of causation.”
Per Callaway JA in Berrigan Shire Council v Ballerini & Anor [2005] VSCA 159; (2005) 13 VR 111, Vic Court of Appeal, 22 June 2005.

3. “Publication of reasons
8. Before proceeding further we draw attention to one matter of concern. His Honour had hoped to give judgment on the s85B application on 3 November 2004 but had not been able to complete his written reasons by the time fixed. The transcript records on a page headed “Judgment” his Honour stating:

“… I find that the threshold provisions of Part VBA Wrongs Act 1958 have no application to a claim for compensation [under s85B of the Act]. I find that the provisions of Part VB Wrongs Act 1958 do not apply to restrict the scope of the compensation order made in this case.

… I find that Mr Robertson has suffered injury as a direct result of the offences committed by the respondent …

The injury is post-traumatic stress disorder of mild to moderate severity. I conclude that the proper order for compensation for Mr Robertson’s injury is $100,000. I order that the respondent pay Mr Robertson the sum of $100,000 for that compensation.”

After that his Honour said that he would have his Associate e-mail his full judgment to the parties the following day after it had been completed. His Honour enquired of senior counsel for both parties whether it was necessary to sit again the following day (scil., for delivery of the full reasons). Both said that it was not. The detailed reasons bear date 5 November 2004 and the authenticated order shows the order to have been made on that date.

9. There are questions whether his Honour’s statements on 3 November as recorded on the page headed “Judgment” are not in truth his reasons for judgment[9] and whether the order should have recorded the date on which it was given as 3 November 2004, being the date on which his Honour orally ordered the present applicant to pay the respondent compensation in the sum of $100,000 and ordered it to pay his costs. It would have been better if his Honour, finding himself in difficulties, had on 3 November announced that, for reasons to be published thereafter, he made the orders in question (and, if desired, that they should bear a specified date later than that day). More important, however, is the fact that the full reasons were apparently transmitted by e-mail to the parties. It must be clearly understood that the Supreme Court of Victoria, save in certain exceptional and well-known cases, sits in public for the hearing and determination of proceedings. That means that judgment is delivered in open court even if it be by the handing to the Associate of the court’s written reasons and even though they may be available on the Internet very soon thereafter. Members of the public are entitled to be present in court to hear judgment being given and to obtain a copy of the reasons. Other instances of the posting or e-mailing by judges of their written reasons have come to this Court’s notice. Tribunals may be authorised to do that, but the practice should be entirely discountenanced for a court. The foregoing observations do not apply to the making of consent directions in busy managed lists. About any such practice we say nothing, though it might be possible for the judge to read out or hand down any such directions in open court.” Esso Australia Pty Ltd v Robertson [2005] VSCA 138, Vic Sup Ct, Court of Appeal, 2 June 2005.

4. “Honesty and the Legal Profession
27. All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct.

28. Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation.”
Per Gillard J in Frugtniet v Board of Examiners [2005] VSC 332. Vic Sup Ct, 24 August 2005.

Lawyers to assist the Court in resolving issues
5. “1. The parties to this litigation have again taken up their position in trenches which are separated by a distance just beyond voice range…

2. The failure of the practitioners to attempt to resolve the timetable issues is a contravention of paragraph 3.10 of the Commercial List Practice Note. I take this opportunity to remind the practitioners concerned, if reminder be necessary, of the expectation of the Court that, in litigation of this kind, their role is to assist the Court to resolve matters in a just and efficient way. This requires a degree of co-operation so as to avoid needless expense and delay: See Unioil International Pty Ltd v Deloitte Touche Tohmatsu (1997) 18 WAR 190 at 194, per Ipp J.”
Per Byrne J in ANZ Banking Group Ltd v ANZCover Insurance Pty Ltd (No. 3) [2005] VSC 329, Vic Sup Ct, 19 August 2005.

Significance of a plea of guilty
6. “16. Counsel also relied heavily on the undoubted significance of a plea of guilty. By s5(2)(b) of the Sentencing Act, a plea of guilty and, if it is made, the stage in the proceedings at which the offender’s intention to make it is indicated, must be taken into account on sentence. This is so whether or not the plea is accompanied by indications of remorse in addition to those that, ordinarily, are encompassed within, or evidenced by, it. In the words of Eames JA in R v Tasker [2003] VSCA 190; (2003) 7 VR 128 at 133 “pleas of guilty are … worthy of a significant sentencing discount even if the only factor worthy of being given particular weight was the avoidance of expense and inconvenience of a trial.” Consistently with this, Coldrey AJA said, in R v Taing [2004] VSCA 46 at [20] that practitioners must be able to assure their clients, and their clients must be able to accept, that “any purported sentencing discount is real and not illusory.”

17. The magnitude of the discount will nevertheless be affected by the degree of remorse demonstrated by the particular offender. While serial offenders may of course suffer as deeply from remorse as anybody else, a sentencing judge may, before accepting that such an offender is as remorseful as he or she would have the judge believe, require a greater degree of satisfaction from them than from others. In this case, for example, her Honour was constrained to consider the question of remorse not only against a history of sexual offences against women, but also bearing in mind that, on sentencing Vivona in Geelong on 31 March 1994, the then sentencing judge expressed the view that the prisoner had “no respect or regard whatsoever for women.” Her Honour was also entitled to take into account the fact that no remorse was evident during Vivona’s interview with the police after his arrest. His position then was that what he did was consensual.

18. The proposition that Vivona is remorseful rests on his plea of guilty, the acceptance of responsibility that that entails, and on his willingness to participate in sex offender programs. These matters must indeed be taken into account. But Vivona relies on nothing else as evidence of his true state of mind. Any attempt accurately to assess the strength of the totality of the evidence on this point could not avoid an assessment of the strengths (and weaknesses) of the prosecution case with which Vivona was confronted, the contrast between the prisoner’s present remorse, if any, and his earlier attitude towards women, and the possible influence on his mind of prospects of parole. When all the relevant factors are taken into account, her Honour’s conclusion that in this case the prisoner’s remorse was “slight” was in my opinion open to her. She was, accordingly, entitled to frame an appropriate sentence on that basis, bearing in mind the principles enunciated in R v Tasker and R v Taing.”
Per Harper AJA in DPP v Vivona [2005] VSCA 205, Court of Appeal (Vic Sup Ct), 24 August 2005.