An appeal by ACT director of Public Prosecutions, Victoria Engel, SC, has been dismissed by a Full Bench of the ACT Court of Appeal after only three minutes of deliberation.

The most senior judge, Justice Robert Bromwich, said of the director’s submissions, “Never have I seen an appeal of this nature with such a paucity of reasoning.”

The appeal was against a sentence imposed on a sex offender by Justice Belinda Baker of the ACT Supreme Court. Justice Louise Taylor and Acting Justice Andrew Muller completed the Full Bench of the Court of Appeal.

Such searing condemnation of the director’s submissions, delivered directly in Court, is set to solidify the view being expressed increasingly in the Canberra legal community that the director is pursuing unworthy prosecutions and appeals.

Engel produced 27 pages of submissions, of which Justice Bromwich said only 2½ were “operative”. And, of that fraction, half a page had been devoted to quoting a well-known High Court authority on totality.

The director had relied on another well-thumbed authority in relation to maximum penalties, saying the five individual sentences imposed had been unreasonable and plainly unjust: “It is also submitted that the degree of concurrency between sentences is excessive, such that the total effective sentence is manifestly inadequate.”

Justice Bromwich said of the director’s contentions: “Never have I heard of a practitioner tallying up the sentences and saying it’s not enough.

“That’s the American way. We don’t do that in this country.”

The test for the director’s appeal to succeed was a finding of “manifest inadequacy”.

Justice Bromwich said, “My difficulty is even identifying a basis for the sentence being inadequate, let alone manifestly so, and I speak from a position of considerable experience.”

Indeed. Justice Bromwich was the Commonwealth Director of Public Prosecutions from 2012 to 2016 before being appointed a judge of the Federal Court. He has served as an Acting Judge of the ACT Supreme Court since 2016.

After the judicial criticism, the director was given a chance to respond, after which the senior judge declared, “Well, if that’s your stance, I’ve given you a chance.”

As is customary, the director had supplied a list of comparative cases, but Justice Taylor added to the criticism, saying “In my brief review of the materials, I’ve not been able to find any place where the comparative cases were discussed to distinguish them or otherwise.”

Appearing for the respondent (the sentenced person) was Jon White, SC, a former ACT DPP. He was asked in court about the comparative cases provided, and said he could only agree with Justice Taylor.

Justice Taylor advised that the court would adjourn for “five minutes or so”. Unusually, the accused was not even taken back to the cells, but simply waited.

In three minutes, his sentence was confirmed.

The reasons for the decision are to be published. The expectation is that they will include everything said in court and, quite possibly, more.

A leading Canberra criminal barrister noted that Justice Bromwich was one of the most experienced criminal lawyers on the Federal Court and his comments on the director’s submissions “carry considerable significance in terms of what should be important in the director’s mind before an appeal is launched”.

Another criminal barrister pointed out a growing view that the DPP is choosing to simply try to rerun matters on appeal when she is unhappy with how prosecutions went at the first instance.

“There’s a way in which she can address that, and this isn’t it,” the barrister said.

The Court of Appeal was there to fix error in the lower courts. It was for the DPP to run tighter prosecutions, and make all appropriate submissions below, and not simply seek a second bite of the cherry upstairs.

Yet another senior criminal defender described the Bromwich view as unsurprising: “it confirms the view of many in the defence fraternity.”

The Court of Appeal criticisms, while clearly the strongest yet, have echoes down the line.

Individual Supreme Court judges have questioned why some matters were being prosecuted before them.

Magistrates have suppressed exasperation when ready to hear matters, only to have the DPP’s office pull inadequate prosecutions at, or on, the steps of court.

Even registrars in both the Supreme and Magistrates courts have been gently chiding prosecutors over delays in matters advancing, most often because more and more matters have to be “signed off” by more senior staff, with discretion evaporating.

One recent Supreme Court matter stood out like dog’s ears. It was a common assault, of which, the ACT Sentencing Data Base tells us, 4184 have been dealt with in the Magistrates Court versus only 185 in the Supreme Court over the past dozen years.

This one made it to the Supreme Court only because the defendant had been originally accused of forcible confinement (10-year maximum), aggravated choking (7 years) and aggravated assault occasioning actual bodily harm (7 years) in what one of the defendant’s legal team described as “a typical example of over-charging”.

That legal team negotiated strongly and all that remained was the common assault (three years), removing the three “serious offences”, legislatively defined as anything carrying five years or more.

The defendant was a mother trying to restrain her 12-year-old daughter, in line with what she had been told to do by child-protection authorities, but admittedly assaulting the child in the process.

Before the other, unreasonable, matters were negotiated away, she had spent some 55 days in custody.

Justice Taylor presided, noting, “The prosecution accepted that the offender was entitled to assert parental authority over the victim which included physical restraint…

“The physical acts of the offender were forceful, but they did not have the appearance of being uncontrolled or unrestrained. The force of the offender’s restraint appeared to be in direct response to the force used by the victim in continuing to resist and pull away …

“The director did not submit that a period of imprisonment was warranted. As I have already recorded, the offender spent 55 days in custody for the offence and she has been on bail for 18 months without breach. In light of that, it could hardly be said that the offender has not been punished for her conduct.”

The outcome to this matter that saw a mother in custody for two months on three serious charges that were all dropped?

A non-conviction order: no (further) penalty for the defendant – but surely pause for thought for the office of the DPP.

The views expressed in this article may or may not reflect those of Pearls and Irritations.