Secret letters reveal duel between top Victorian judge and prosecutors
SECRET letters have revealed an extraordinary attempt by Victoria’s then Chief Justice to temporarily halt a High Court appeal against a lenient sentence for a man who impregnated his stepdaughter.
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SECRET letters have revealed an extraordinary attempt by Victoria’s then Chief Justice to temporarily halt a High Court appeal against a lenient sentence for a man who impregnated his stepdaughter, 13.
In a major slapdown for the state Court of Appeal, the nation’s top court on Wednesday unanimously upheld a Crown appeal against its refusal to increase a 2015 County Court jail term of 3½ years for incest.
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The Court of Appeal did not alter the penalty, despite acknowledging it was “extremely lenient”, because it wasn’t “outside the range of sentences ... based upon existing sentencing standards”. It then ruled those sentencing practices in incest cases were inadequate.
Wednesday’s High Court ruling that current sentencing practices were “not the controlling factor” in sentencing has effectively given the state’s judges more freedom to impose longer jail terms.
But the Herald Sun can reveal that as the court deliberated, an extraordinary drama played out behind the scenes, as then chief justice Marilyn Warren accused Chief Crown Prosecutor Gavin Silbert, QC, of misleading the High Court.
In a June letter to Director of Public Prosecutions John Champion, SC, Ms Warren accused Mr Silbert of having made “assertions and implications that were false” during the High Court hearing.
She demanded that “at a minimum” Mr Champion “advise the High Court immediately that you are addressing an important issue which has arisen … and request that in the meantime the Court proceed no further with the appeal.”
After seeking advice from Neil Young, QC, Mr Champion refused, saying he was satisfied the High Court had not been misled and proposing “in the interests of complete transparency” to provide it with the chief justice’s letters.
She replied this would be “entirely inappropriate” as “the High Court is not the forum to resolve conduct of the Chief Crown Prosecutor.”
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In July, the ethics committee of the Victorian Bar backed Mr Champion’s position, ruling that he “does not commit an ethical offence by failing to submit a memorandum to the High Court in the presently reserved case as directed by the Chief Justice”.
The dispute concerned an exchange in the High Court between Mr Silbert and Justice Michelle Gordon over an email from the Court of Appeal deputy registrar, saying its “decision on the general question (would) not, of course, affect the outcome of the appeal”.
Justice Gordon asked whether that could be read as saying “whatever happens, this is not going to affect the outcome of the appeal?”
Mr Silbert replied it “means that the court is going to have a discussion about current sentencing practices but will not alter the sentence and effectively will not allow the Director’s appeal on the grounds of manifest inadequacy”.
Ms Warren also accused Mr Silbert of misrepresenting current sentencing practices.
The High Court ruled that while judges must take into account current sentencing practices, it was only one factor.
Yesterday’s decision will be greeted with relief by the Andrews Government, which had been watching the case closely.
The man will now be resentenced in the appeal court.