Harsh and outdated language

Last Friday, the Herald Sun and associated News Limited outlets run a story with this opening:

Appeal judge Justice Geoff Nettle said the sentence handed down to Brett Janson, 40, was so inadequate it would "shock the public consciousness".
By a 2-1 majority the court held that the sentence was "manifestly inadequate" and they re-sentenced him to a total of four years with a two-year minimum.

Over the weekend, Alan Howe, sentencing expert in chief at the Herald Sun (or so it seems), wrote an opinion piece with this opening line:

Perhaps she is a delicate petal, County Court judge Felicity Hampel. But it seems she might be among our worst judges.

The case itself, DPP v Janson [2011] VSCA 19, only became available on Austlii today.
In the decision, Justices Nettle, Neave and Kyrou all agree that Judge Hampel made a series of errors when sentencing Brett Janson for dangerous driving causing death. The errors fell into four categories:

1. Characterising the seriousness of 10 seconds of inattention
2. Applying principles of parity and comity to adopt the same approach to the changed maximum penalty as another judge had done, with the agreement of the Crown, which the Court of Appeal held was a wrong approach
3. Mistaking another case as a relevant comparator when assessing current sentencing practices
4. Mistaking the need for general deterrence in dangerous driving cases characterised by inattention
5. Reaching a sentence that was outside the range that was open

The case itself is legally uninteresting, in my view (Neave JA dissents, but only on the basis that resentencing to actual custody would, given the hardship suffered by the offender and the clear remorse, achieve little). The case certainly doesn't rate the extensive treatment provided by the Herald Sun. The strange part about the case, however, is that Nettle JA uses particularly outdated language in disposing of the appeal:

38 In my view, the sentences imposed on the two counts of dangerous driving causing death, and thus the total effective sentence, are manifestly inadequate. Given the nature and gravity of the offending and the maximum penalty of ten years’ imprisonment applicable in respect of each offence, I consider that a wholly suspended sentence of only three years’ imprisonment for the two offences is so disproportionate to the seriousness of the crimes as to shock the public conscience. It reflects the several errors made in the sentencing process to which I have already referred.
...
40 In this case I consider that appellate intervention is warranted. In my view, the inadequacy of the sentences imposed on the counts of dangerous driving causing death is so ‘clear and egregious’ as to ‘undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes’. That is the ‘something more’ which warrants intervention. (emphasis added)

Nettle JA even cites DPP v Bright in paragraph 40. But despite acknowleding in the very next paragraph that the Criminal Procedure Act 2009 applies and so double jeopardy does not apply to the appeal, he makes no reference to DPP v Karazisis, Bogtstra & Kontoklotsis, the case that held, very clearly, that Bright is no longer instructive on the degree of error required for a Crown appeal (see paragraph 56. Other aspects of the case are discussed here). The result is that Nettle JA uses language when allowing the appeal far harsher than was necessary. Given the removal of the rarity principle, it should follow that it is no longer necessary to consider whether the sentence shocks the public conscience, involves clear and egregious error, or undermines public confidence in the courts. Instead, the test under the Criminal Procedure Act is simply whether the sentence is manifestly inadequate, without any consideration of double jeopardy.

That said, the test for manifest excess and manifest inadequacy is already very unkind to original decision makers. As Maxwell P has remarked on several occasions, it is analogous to Wednesbury unreasonableness - A decision so unreasonable that no reasonable sentencing judge could have imposed such a sentence. Several years ago, Justice Keith Mason of the NSW Court of Criminal Appeal, delivered a speech entitled "Throwing Stones: A cost/benefit analysis of judges being offensive to each other" where he called for appellate judges to be no harsher than necessary when finding error. The use of the language from Bright is curious, but it would be dangerous to read too much into it and suggest that it was a targeted attack on Judge Hampel, or that the errors involved in this case were worse by an order of magnitude than in other cases. However, the reaction of the Herald Sun does serve as a timely reminder that judicial language that may be appropriate and adapted in one context, can take on a far harsher tone when selectively extracted into the pages of a newspaper.