Victoria

Court of Appeal

  • Lewis (a pseudonym) v The Queen [2018] VSCA 40 (27 February 2018) – Victorian Court of Appeal
    Admissibility of evidence’ – ‘Hearsay rule’ – ‘Interlocutory appeal’ – ‘Physical violence and harm’ – ‘Tendency evidence

    Charges: Aggravated burglary x 1; Intentionally cause injury x 2; Recklessly cause injury x 2; Intentionally damage property x 1; Extortion with a threat to kill x 1; False imprisonment x 1; Making threat to kill x 1; Contravening family violence intervention order x 1; Attempt to pervert the course of justice x 2.

    Case type: Application for leave to appeal against interlocutory decisions.

    Facts: The charges related to an incident of violence committed by the applicant against the aggrieved, his partner. The aggrieved was to be the central witness for the prosecution ([5]-[7]). The aggrieved invoked s 18 Evidence Act 2008 (Vic), which provides that a person can avoid giving evidence against their partner if there is a sufficient likelihood that harm would be caused to the person ([9]-[11]). The prosecution then gave notice under s 65 Evidence Act 2008 that they would rely on statements that the aggrieved had made to the police as tendency evidence as an exception to the hearsay rule ([16]).

    Issues: The applicant appealed against 3 main interlocutory decisions made by the judge. First, admitting the statements the aggrieved made to the police. Second, refusing to certify the appeal, which is a precondition to appeal against an interlocutory decision under s 295(3) of the Civil Procedure Act 2009 (Vic). Third, refusing to sever the proceedings for each of the applicant’s charges.

    Decision and Reasoning: The Court dismissed all grounds of the appeal. On the first ground, it was reasonably open for the judge to admit the evidence as an exception to the hearsay rule. The applicant argued that admitting the evidence might lead to prejudice because the aggrieved could not be cross-examined (since she had invoked the protection against giving evidence against a de facto partner) ([58]). The Court held that there were sufficient protections available to ensure a fair trial, including directions against giving too much weight to untested statements ([59]). Accordingly, in relation to the second ground, it was reasonably open for the judge to refuse to certify ([64]). On the third ground, the Court held that many charges stemmed from the same factual basis, so there was no basis to sever the charges ([68]).

    The Court observed that the applicant did not seek to challenge the judge’s ruling that the tendency evidence satisfies the requirements of ss 97 and 101, ‘presumably’ because ‘he regards a submission of that kind as foredoomed to fail, based upon the recent decision of the High Court in Hughes v The Queen[2017] HCA 20 (14 June 2017). [72] The Court stated at [73] that:

    It is, however, worthy of note that the general evidence of the history of domestic violence, which forms the basis of the tendency notice, may not have quite the probative force in relation to the allegation of the threat to kill and extortion, as it does in relation to the other charges brought against the applicant.

    The Court concluded by cautioning trial judges about the use of tendency evidence: ‘[if the tendency] evidence were led, the judge would have to give a careful direction as to how it could be used and, more importantly, how it could not be used’ ([75]).

  • Saxton v R [2017] VSCA 357 (5 December 2017) – Victorian Court of Appeal
    Appeal against sentence’ – ‘Assault’ – ‘Controlling behaviour’ – ‘Financial abuse’ – ‘Mental health’ – ‘Suicide threat’ – ‘Women

    Charges: Recklessly cause injury x 4; Common law assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The applicant and victim were married and had two children. The applicant worked as a solicitor and the wife, the victim, as a librarian. The applicant had an epileptic seizure, which caused him to stop work and his mental health to decline. The applicant became increasingly controlling of the victim, forcing her to relinquish her financial independence and remain at home with him rather than going to work. The ‘recklessly cause injury’ charges occurred when the applicant punched and hit the victim at home and in their bed. The common assault charge occurred when the applicant twisted her arm so violently that her arm broke. The applicant threatened suicide, and the victim went to the police (see [5], the remarks of the sentencing judge).

    The applicant was sentenced to 7 months and 14 days’ imprisonment and a 2-year community correction order ([1]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and reasoning: The appeal was dismissed (see [28]). The applicant argued that the injuries sustained were at the lower end of the scale, and the broken arms was not intended ([21]). The Court did not accept that submission. Justices Santamaria and Coghlan JJA stated that the offending was ‘serious’ and stemmed from an ‘abusive relationship between the applicant and the victim, who was vulnerable and frightened of the applicant’ ([29]). The Court quotes Kalala v The Queen [2017] VSCA 223, discussing the scourge of domestic violence:

    The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen [2014] VSCA 212 [23], the Court acknowledged the ‘shameful truth’ that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.

    The Court concluded that the principles of general deterrence and denunciation loomed large in the present case, and the sentence was, if anything, merciful ([31]).

  • DPP v Lade (a pseudonym) [2017] VSCA 264 (21 September 2017) – Victorian Court of Appeal
    Attempting to pervert the course of justice’ – ‘Breach of family violence intervention order’ – ‘Family law’ – ‘Intimate photos’ – ‘Post-separation violence’ – ‘Property proceedings’ – ‘Sexual assault’ – ‘Stalking’ – ‘Suicide threats’ – ‘Technology and abuse

    Charges: Sexual assault x 1; Stalking x 2; Attempting to pervert the course of justice x 1; Contravention of family violence intervention order (‘FVIO’) x 1; Making threats to kill x 1; threatening to distribute intimate images of another person x 1.

    Appeal type: Appeal against sentence.

    Facts: The victim was the defendant’s ex-wife. The offences occurred over an 18-month period after they had separated ([7]). The offences included: the defendant forcing the victim onto her bed and ejaculating on her; threatening to distribute intimate photos to the victim’s father and employer if she did not agree to his terms for their property settlement; entering her house and leaving videos of himself; and sending mail to her house ([7]-[22]); threatening to kill himself if the victim did not drop the charges (attempting to pervert the course of justice). The defendant was originally sentenced to 16 months’ imprisonment (see table at [2]).

    Issues: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed.

    The Court (Priest, Hansen and Coghlan JJA) re-sentenced the defendant to 2 years and 11 months imprisonment with a non-parole period of 2 years. The primary judge treated the offences as ‘situational in the sense that it was based within a relationship, not that that condones it in any way, shape or form’ [34]. But the Court of Appeal placed more emphasis on the fact that the domestic context, breach of FVIO and offending while in jail were all aggravating factors [49].

    The Court appeared to endorse the DPP’s description of the sexual assault as ‘particularly serious … being violent, non-consensual and humiliating for C who was treated as though a marital chattel’ [40].

  • Nolan v The Queen [2017] VSCA 240 (6 September 2017) – Victorian Court of Appeal
    Aggravating factor’ – ‘Causing serious injury’ – ‘Gratuitous violence’ – ‘Manifest excess’ – ‘Not manifestly excessive’ – ‘Presence of children’ – ‘Sentence’ – ‘Youth

    Charges: Recklessly causing serious injury x 1; False imprisonment x 1; Making threat to kill x 1.

    Appeal type: Application for leave to appeal against sentence.

    Facts: The appellant and complainant were in a de facto relationship with two children. Over one afternoon, the appellant inflicted the following actions on the complainant in the presence of the children: throwing a pot of boiling water over her; punching and kicking her; whipping her with a kettle cord; hitting her with a broom; rubbing salt and curry powder into her wounds; and threatening to kill her (see [3]-[11]). The applicant pleaded guilty and was sentenced to 8 years’ imprisonment with a non-parole period of 5 years and 6 months. The applicant had previously been refused leave to appeal against sentence, but renewed the application to the full Court.

    Issues: First, whether the sentencing judge erred in not applying principles relevant to young offenders; and second, whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    The Court (Beach, Ferguson and Coghlan JJA) dismissed the first ground on the basis that the judge took into account the applicant’s age, but also took into account the seriousness of the offences, the fact that the offences took place in a domestic relationship and in the presence of the applicant’s and victim’s children, and the serious injuries inflicted on the victim ([30]-[31]).

    The Court dismissed the second ground on the basis that the sentencing judge took into account the applicant’s disadvantaged upbringing, lack of relevant antecedents, plea of guilty and remorse, and no comparable case established that the sentence fell outside the reasonable range ([38]). The Court appeared to endorse the sentencing judge’s comments that this was an unusual case with many aggravating factors ([24]), and that the use of weapons, boiling water and salt as ‘gratuitous and sickening behaviour’ ([22]).

  • Kalala v R [2017] VSCA 223 (30 August 2017) – Victorian Court of Appeal
    Approaching "worst category of case"’ – ‘Current sentencing practices’ – ‘Incitement to murder’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Sentencing’ – ‘Women

    Charges: Incitement to murder x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and victim were in a de facto relationship ([4]). While the victim was visiting relatives in Burundi, the applicant became suspicious that she was seeing another man ([7]). The applicant arranged and paid for the victim to be killed ([8]). While speaking with the victim on the phone, the applicant told her to go outside ([9]). Upon walking outside, the victim was forced into a vehicle, held captive for 2 days and told that she would be killed. However, the kidnappers did not kill her because she was a woman ([10]). The victim returned to Australia. The applicant pleaded guilty and was sentenced to 9 years’ imprisonment with a non-parole period of 6 years ([1]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The main argument advanced by the applicant was that the sentence was the highest yet imposed for the offence, and the circumstances of the offending were not more serious than previous offences ([3]).

    President Maxwell and Redlich JA (‘the joint judgement’) made some general conclusions ([3]), including:

    • previous sentences do not impose an upper limit on a sentencing judge (see [51]-[54]);
    • the circumstances of the offending were more serious than previous sentences (see [44]-[50];
    • inciting the murder of a partner is an extreme form of family violence; and
    • previous sentences for incitement to murder have not reflected the objective gravity of the crime, and must be increased (see [66]-[70]).

    The joint judgement remarked that the case had many aggravating factors, including the fact that the applicant played an active role in initiating the plan and delivering her into the hands of the kidnappers ([24], [46]). Since it was not suggested that the case warranted the maximum penalty, it was inappropriate to classify the case was a ‘worst category’ case (citing R v Kilic [2016] HCA 48) ([28]). However, the sentence was reasonably open to the sentencing judge ([54]).

    The joint judgement stated at [62]:

    The applicant’s motivation — to have NR killed as punishment for perceived infidelity — is expressive of the very worst of male attitudes towards women … It follows that this offending must be viewed as involving moral culpability at the highest level.

    Justice Osborn agreed with the joint judgement, but was reluctant to express a global view on the adequacy of current sentences for incitement to murder ([92]).

  • Fitzpatrick v The Queen [2016] VSCA 63 (6 April 2016) – Victorian Court of Appeal
    Common assault’ – ‘Criminal damage’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Persistent contravention of a family violence intervention order’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Repeated breach of protection orders’ – ‘Risk factors’ – ‘Strangulation’ – ‘Theft’ – ‘Threat to kill’ – ‘Women

    Charge/s: Persistent contravention of a family violence intervention order, common assault, threat to kill, theft x 2, criminal damage.

    Appeal Type: Appeal against sentence.

    Facts: The principal victim of the offending was the applicant’s former female domestic partner. After the relationship broke down, the victim obtained a family violence intervention order, which the applicant repeatedly breached. One night, the applicant broke into the victim’s house and wrapped a telephone cord tightly around her neck. He threatened to kill her and cut off 40cm from her hair, saying he wanted to disfigure her to the point that no-one else would find her attractive. He then took the victim’s phone, house and car keys and drove away. The applicant was sentenced to a total effective sentence of four years and nine months with a non-parole period of two years and nine months.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The objective gravity of the offending warranted severe punishment, certainly extending to a sentence of the overall length here. In that regard, Beach JA noted that the persistent contravening of a family violence intervention order was itself extremely serious and was ‘no mere breach of an intervention order of the kind so frequently seen’. The conduct on the night of 29 October 2014 was also extremely serious because it must have been terrifying for the victim, the applicant knew there were children in the house, and the assault was not spontaneous. This was not an act brought about by a temporary loss of self-control, resulting from something said or done by the victim. His Honour stated that instead, ‘it was an act of wanton cruelty intended to humiliate and terrify a defenceless woman in her own home’ (See [37]-[41]).

  • Byrnes v The Queen [2015] VSCA 341 (10 December 2015) – Victorian Court of Appeal
    Contravening a family violence intervention order’ – ‘Denunciation’ – ‘Deterrence’ – ‘False imprisonment’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Sexual and reproductive abuse’ – ‘Threat to kill

    Charge/s: False imprisonment, threat to kill, contravening a family violence intervention order, assault with a weapon, assault police, resist police.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female victim were in a relationship and the victim was 17 weeks pregnant with their child. The applicant wanted the victim to terminate the pregnancy and had made numerous threats against the victim and the baby. A family violence intervention order was made. On the day of offence, the applicant locked the victim inside the house, held a knife against her, and threatened to kill her if she screamed or called the police. He then tried to force the victim into the bath, saying that he was going to abort the baby. He continued to threaten the victim and the baby until he became tearful. The applicant was sentenced to a total effective sentence of three years and nine months imprisonment with a non-parole period of two years and six months.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. In light of the applicant’s mitigating circumstances (his mental condition, his lack of prior convictions and his steps towards rehabilitation), the sentences imposed were high. However, the circumstances of the offence were particularly serious and required the imposition of a sentence that was sufficient to reflect the gravity of offending and to serve the purposes of sentencing including general deterrence and denunciation (See [24]). In particular, at [22]-[23], Kaye JA held:

    ‘The applicant’s offending had a number of very serious characteristics. As the respondent has pointed out, it was premeditated, and the applicant had clearly prepared for it. The victim was vulnerable. She was carrying the applicant’s baby. The applicant took advantage of his greater strength, and the fact that he had a weapon, to overwhelm her. The threat to abort the baby was, as the judge correctly said, a ‘most ugly’ aspect of the false imprisonment. The whole experience, to which the applicant subjected her, must have been extraordinarily terrifying. She was justifiably in grave fear for her own life and that of her baby. While the imprisonment did not extend for hours or days, it lasted for over one hour, during the whole of which the applicant terrorised his victim.

    In those circumstances, the offending by the applicant, comprising charge 1, called for a stern sentence. In such a case, involving wanton domestic violence, general deterrence, specific deterrence, and denunciation were important considerations: Filiz v The Queen [2014] VSCA 212 at [21] and Mercer v The Queen [2015] VSCA 257 at [54]. While the judge accepted that the applicant’s psychological condition moderated the weight to be given to those considerations, nevertheless, they rightly remained important factors in the determination of the applicant’s sentence: R v Yaldiz [1998] 2 VR 376, 381’.

  • DPP v O’Neill [2015] VSCA 325 (2 December 2015) – Victorian Court of Appeal
    Arson’ – ‘Murder’ – ‘People with mental impairment’ – ‘Physical violence and harm’ – ‘Principles in r v verdins’ – ‘Sentencing

    Charge/s: Murder, arson.

    Appeal Type: Crown appeal against sentence.

    Facts: The male respondent and the male deceased were in a relationship. The deceased had a dominant and controlling personality while the victim was submissive and often demeaned and belittled by the deceased in public. On the morning of offence, the respondent rejected the deceased’s sexual approach and the deceased called him a ‘frigid bitch’. The respondent tried to apologise but the deceased repeated his abuse. The respondent snapped. He hit the deceased over the head with a steel pan and strangled him with a dog lead. The respondent acted if the deceased was alive for several days before setting fire to their home with the deceased’s body inside. He acted as if the deceased had died accidently until he was arrested.

    At sentence, Dr Barth, a psychologist, provided evidence of the respondent’s psychological condition. He diagnosed the respondent as having a maladaptive personality adjustment and as suffering from pervasive feelings of worthlessness, inadequacy and insecurity. The sentencing judge accepted that the respondent’s personality disorder played some role in his offending, and therefore operated to reduce his moral culpability and to moderate to some extent the need for general and specific deterrence. A total effective sentence of 18 years imprisonment, with a non-parole period of 13 years, was imposed.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was dismissed. The Court provided extensive consideration of the six circumstances identified in R v Verdins in which impaired mental functioning is considered relevant to the appropriate sentence to be passed on an offender (See [66]-[84] in particular). The Court rejected a purely mechanistic approach and they emphasised that careful consideration must be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances in Verdins are engaged. This requires rigorous evaluation of the evidence (See [68]). Here, the respondent did not establish on the balance of probabilities that he suffered from a mental impairment. As the principles in Verdins do not extend to personality disorders such as those relied upon, the relevant principles (in particular, the moderation of the need for general and specific deterrence, and the reduction of moral culpability) were not engaged (See [85]).

    Nevertheless, the respondent’s mental condition was still of some relevance to sentence, it just did not attract the level of mitigation of sentence that must be allowed where Verdins principles are applicable. First, the sentencing judge did not err in accepting that the respondent’s personality disorder operated to moderate, to some extent, the need for general and specific deterrence. Second, the Court also held that on the evidence it was open to the sentencing judge to conclude that the murder of the deceased was not premeditated, vindictive or gratuitous but rather the result of a very complex and conflicted personality structure. In that way, the sentencing judge was correct in taking the respondent’s disorder into account in making an assessment of the moral culpability of the respondent (See [99]-[100]).

  • DPP v Barnes & Barnes [2015] VSCA 293 (12 November 2015) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Denunciation’ – ‘General deterrence’ – ‘Intentionally cause serious injury’ – ‘Just punishment’ – ‘Physical violence and harm’ – ‘Protection of the community’ – ‘Protection order’ – ‘Sentencing’ – ‘Specific deterrence’ – ‘Women

    Charge/s: Aggravated burglary, intentionally cause serious injury x 2.

    Appeal Type: Crown appeal against sentence.

    Facts: Trevor Barnes (‘the first respondent’) and his younger brother (‘the second respondent’) entered into the premises of the first respondent’s estranged wife, without her consent. Three days prior to the home invasion, the first respondent had been released from prison for offences including assaulting his wife and multiple breaches of an intervention order she had in place against him. The first respondent saw his wife and her new partner in the shower together and smashed the door of the shower. He struck his wife’s new partner and his wife with a jemmy bar before pulling out a Stanley knife. He only stopped when his wife said she loved him. The first respondent was sentenced to six years imprisonment with a non-parole period of three years.

    Issue/s: One of the issues was that the sentence imposed on the first respondent was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. First, in relation to the charge of aggravated burglary, Redlich JA noted that this was a very serious offence of ‘intimate relationship aggravated burglary’. The first respondent entered into the house, uninvited and in company, carrying a jemmy bar, with the intention to assault his estranged wife, whom he knew was frightened of him because of his past instances of violence. He had just been released from prison and committed these offences in breach of an intervention order and a partly suspended sentence. As Redlich JA stated at [48]-[49]:

    ‘General deterrence, denunciation and just punishment are important purposes in sentencing for such an offence … Specific deterrence and protection of the community are also important in this case, given that Trevor had not long since been released from prison for offences that included assaulting Ms Bethune and breaching an intervention order in her favour’.

    However, the sentence here failed to adequately reflect these purposes.

    Second, in relation to the charges of intentionally causing serious injury, in sentencing the first respondent for these offences, the sentencing judge stated: (See [68])

    ‘I make it plain that I consider that you are the main offender in this criminal enterprise and the whole appalling saga was dictated by your immaturity and inability to control your anger in the context of your possessive and controlling behaviour of Ms Bethune, whom you had subjected to domestic violence on earlier occasions. In sentencing you, the court must denounce your conduct, give emphasis to general deterrence, and impose just punishment. A strong message needs to be sent to males in the community who are inclined to be violent towards their female partners. You do not own them. You have no right … menacingly [to] control them. If you lay a hand on them in anger, the law will not spare you punishment. Men who are bullies towards women usually have some psychological inadequacy. They need to look long and hard at themselves to try to understand why they are inclined to behave with anger and brutality, and seek professional help to overcome such inclinations.

    In your case, emphasis must also be placed upon specific deterrence because of your prior history of violence towards Ms Bethune. As I have indicated, your history of offending whilst on a suspended sentence, and breaching an intervention order, do not inspire optimism’.

    Redlich JA noted that while the sentencing judge was clearly alive to the need to place considerable weight on the need for general deterrence, denunciation, just punishment, specific deterrence and protection of the community, the sentences imposed did not adequately reflect these purposes (See [69]).

  • Uzun v The Queen [2015] VSCA 292 (27 October 2015) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Common assault’ – ‘Community education’ – ‘Contravening a family violence intervention order’ – ‘General deterrence’ – ‘Making threat to kill’ – ‘Persistent breach’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Reckless conduct endangering a person’ – ‘Sentencing’ – ‘Tendency evidence

    Charge/s: Aggravated burglary, making a threat to kill x 3, common assault, contravening a family violence intervention order, reckless conduct endangering a person x 2.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The male applicant and his wife were married and had three children together but separated in 2007. A family violence intervention order was later made against the applicant. In 2013, the applicant went to his wife’s home and committed a number of offences including aggravated burglary, breach of a family violence intervention order, threatening to kill and common assault. At trial, evidence was adduced of three previous incidents where the applicant had been physically and verbally abusive towards his wife and their children. It was adduced as tendency of the applicant to act in a particular way namely, to make threats to kill family members, to assault family members, to falsely imprison family members, and to contravene family violence orders. The applicant was sentenced to a total effective sentence of ten years imprisonment, with a non-parole period of eight years.

    Issue/s:

    1. The trial judge erred in admitting tendency evidence sought to be adduced by the prosecution.
    2. The sentence was manifestly excessive or ‘crushing’.

    Decision and Reasoning: Priest JA (Maxwell P and Beale AJA agreeing) dismissed the appeal against conviction. The principles governing the admissibility of tendency reasoning were formulated in Velkoski v The Queen where it was said that:

    ‘The features relied upon must in combination possess significant probative value which requires far more than ‘mere relevance’. In order to determine whether the features of the acts relied upon permit tendency reasoning, it remains apposite and desirable to assess whether those features reveal ‘underlying unity’, a ‘pattern of conduct’, ‘modus operandi’, or such similarity as logically and cogently implies that the particular features of those previous acts renders the occurrence of the act to be proved more likely. It is the degree of similarity of the operative features that gives the tendency evidence its relative strength’.

    Here, consistent with the principles in Velkoski, ’the evidence impugned by the applicant met the necessary high threshold of admissibility. Indeed, the conduct revealed by the tendency evidence was, as I have mentioned, conceded to be strikingly similar to the charged conduct. Given that the live issue for the jury was whether the charged conduct occurred, the evidence introduced as tendency evidence had the potential to shed considerable light on that issue, in circumstances where it could hardly be realistically contended that the probative value of the evidence did not substantially outweigh its prejudicial effect’ (See [27]).

    Priest JA (Maxwell P and Beale AJA agreeing) also dismissed the appeal against sentence. The total effective sentence and non-parole period could not be said to be excessive in light of the applicant’s extensive and persistent history of criminal offending, the need for general and specific deterrence, his lack of remorse and rehabilitation, and the need for denunciation of his conduct. In particular, Priest JA stated that: ‘general deterrence is important in cases such as this of violence against domestic partners, so as to deter other like-minded individuals from similar offending’ (See [32]-[40]).

    Maxwell P (Beale AJA agreeing) made some additional observations at [48]-[50]:

    ‘Priest JA has referred to the importance of general deterrence and this Court’s repeated statements that sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.

    Plainly enough, the sentences which the courts impose will not serve that purpose unless the sentences and the reasons for them are properly publicised. As the Court said last year in DPP v Russell (in relation to sentences for random street violence) at [5] and [6]:

    ‘Obviously enough, … a prison sentence can only have that wider deterrent effect if it is publicised across the community, especially amongst those … who are at risk of offending in this way. Courts have neither the expertise nor the resources to engage in the kind of sustained community education which is necessary if general deterrence is to be a reality. That is a task for government.

    After all, it is the responsibility of government to ensure public safety. And government must therefore take responsibility for communicating the deterrent message to those who need to hear it. That requires sustained effort and the commitment of substantial resources. Without that, the community simply will not derive the benefit — in greater public safety — which should flow from the painstaking work of sentencing judges and magistrates in this State. Self-evidently, if the message is not getting through no change in sentencing law can make the difference’.

    In view of the community concern about domestic violence and the importance of deterring it, those considerations are particularly pertinent in this area. A copy of the Court's decision in this matter will be forwarded to the Royal Commission on Family Violence for its consideration’.

  • Mercer (a pseudonym) v The Queen [2015] VSCA 257 (17 September 2015) – Victorian Court of Appeal
    Assault’ – ‘Deterrence’ – ‘False imprisonment’ – ‘Intentionally causing injury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious consequences’ – ‘Threatening to inflict serious injury

    Charge/s: Assault x 5, intentionally causing injury, threatening to inflict serious injury, false imprisonment.

    Appeal Type: Appeal against sentence.

    Facts: The female victim was the male applicant’s domestic partner. The applicant accused the victim of concealing drugs, becoming increasingly angry and aggressive. He slapped her, punched her to the side of the face, threw her to the floor, and whipped her with a coat hanger. The applicant then accused the victim of having a relationship with another man. He banged her head against a wall, punched her and threatened to physically harm her. The victim managed to escape but only after she had been confined for several hours. The applicant was sentenced to a total effective sentence of three years and six months imprisonment, with a non-parole period of 2 years and six months.

    Issue/s: One of the issues was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. This was a serious example of serious offending. As per Maxwell P and Beach JA at [54]:

    ‘This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts: R v Gojanovic [2002] VSC 467, [31]; R v Robertson [2005] VSCA 190, [13]; DPP v Smeaton [2007] VSCA 256, [21]–[22]; R v Hester [2007] VSCA 298, [19]. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences’.

    The sentence imposed could not be regarded as manifestly excessive. Indeed, in light of the objective seriousness of the applicant’s conduct and giving full effect to considerations of totality, the sentence imposed by the judge was entirely appropriate (See [55]).

  • Portelli v The Queen [2015] VSCA 159 (22 June 2015) – Victorian Court of Appeal
    Aggravating features’ – ‘Assault police officer’ – ‘Denunciation’ – ‘Deterrence’ – ‘Effects of family violence’ – ‘Intentionally cause serious injury’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Statistics’ – ‘Women

    Charge/s: Intentionally cause serious injury, assault police officer x 3.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant was in a de facto relationship with the female victim. A week prior to the offending, the applicant became enraged and, fearful of violence, the victim obtained an interim intervention order. Despite the intervention order, the victim let the applicant stay at her place. On the day of the offence, the applicant cut the complainant’s throat with a razor blade. He then tried to suffocate the complainant with a pillow before producing a serrated knife and trying to cut her throat again. After some time, the applicant stopped attacking the complainant and she asked him to cuddle her because she did not want to die alone. Police arrived and the applicant attacked them with knives in both hands. The applicant was sentenced to a total effective sentence of 11 years and six months imprisonment with a non-parole period of eight years and three months.

    Issue/s: The sentencing judge erred in making adverse findings about the seriousness of the applicant’s offending namely,

    1. that because of the applicant’s prior experience with drugs, he was aware when he ingested drugs at the time of offending that he was more likely to behave in an abusive, violent manner;
    2. and that there had been an element of planning in the attack on the victim.

    Decision and Reasoning: The appeal was allowed. Neither finding had been sought by the prosecutor on the plea and the applicant’s counsel were not given notice that the sentencing judge was considering making such findings. Further, there was insufficient evidence to establish beyond reasonable doubt that the applicant had the relevant foreknowledge of the effect the drugs would have on him (See [4]). The court also made a number of observations about family violence at [29]-[30]:

    ‘The sentencing judge described the attack on C as ‘extremely vicious and intolerably abhorrent’. It was clear, His Honour said, that C was terrified:

    You made her believe she was going to die. To ask you, her attacker, to comfort her after your attack because she thought she was going to die reveals how frightening the experience must have been for her. Yet she was in her home in the presence of an intimate partner and entitled to feel safe and secure. She was doing no more than going about her ordinary life. I do not think that she trusted you; rather, she was in fear of your confrontations when denied what you wanted. Undoubtedly, your vicious attack will be an ongoing nightmare for her. It is clear that the community is intolerant of violent behaviour in such circumstances and expects the courts to send a strong message that behaviour of this kind is totally unacceptable. Women in domestic situations are entitled to feel safe from the violently abusive behaviour of their ex-partners. This circumstance is a significant aggravating feature.

    We respectfully agree. What his Honour said accords with recent statements of this Court on the subject of violent attacks by men on their current or former domestic partners. In Filiz v The Queen , the Court said:

    It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners.

    In Pasinis v The Queen, the Court said:

    Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.

    General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

    Most recently, in Director of Public Prosecutions v Meyers, the Court said:

    Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking’. See also DPP v Portelli [2013] VSC 588.

  • Hopkins v The Queen [2015] VSCA 174 (19 June 2015) – Victorian Court of Appeal
    Aggravating circumstances’ – ‘Mitigating circumstances’ – ‘Murder’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Worst category of offending

    Charge/s: Murder.

    Appeal Type: Application for extension of time for leave to appeal against sentence.

    Facts: Following a plea of guilty, the applicant was sentenced to life imprisonment with a non-parole period of 30 years for the murder of his de facto partner. Both the applicant and the victim were heavy users of illicit drugs and the relationship was characterised by violence committed by the applicant against the victim. On the day of the offence, the applicant poured petrol over the victim at a petrol station and set her alight. The victim was conscious and screaming the entire time while the applicant taunted her. He actively prevented bystanders from helping the victim by threatening them with a knife. In sentencing the applicant, the judge concluded that the applicant’s behaviour was an example of ‘the worst kind of viciousness and sadistic behaviour that a court is likely to ever see’.

    Issue/s: The head sentence and the non-parole period were manifestly excessive. In particular, the sentencing judge erred in placing this murder in the worst category of the offence.

    Decision and Reasoning: The application was refused. While the applicant’s conduct arose out of a drug-fuelled rage, it was very clear the applicant understood what he was doing. In this context, his drug consumption did not reduce his moral culpability in any way (See [42]). Further, significant aggravating circumstances were present which explained why the objective gravity of the offence was elevated namely, the circumstances of the death, the applicant’s conduct at the time of offence, and the fact that others were exposed to this horrific event (See [45]). The applicant’s guilty plea and criminal history were given adequate weight.

  • DPP v Maxfield [2015] VSCA 95 (12 May 2015) – Victorian Court of Appeal
    Community correction order’ – ‘Intentionally causing serious injury’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Intentionally causing serious injury.

    Appeal Type: Crown appeal against sentence.

    Facts: The female respondent stabbed her male partner four times: twice in the shoulder, once in the lower back and once in the chest. The respondent suffered from a mild intellectual disability and PTSD. She was sentenced to a Community Correction Order (CCO) for 12 months, with conditions including mental health treatment, compliance with a justice plan and the supervision of a community corrections officer.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. In light of the respondent’s intellectual disability and mental illness, her moral culpability was reduced, as was the significance of general and specific deterrence. However, even allowing for the respondent’s reduced moral culpability, the sentence imposed was insufficient to satisfy the requirements of just punishment and denunciation, given the objective gravity of the offence (See [36]-[38]).

    In re-sentencing the respondent, the Court had regard to the Court’s guideline judgment in Boulton v The Queen. The Court praised the trial judge for imposing a CCO, which was appropriate in an unusual case such as this. The objective of community protection was more likely to be achieved – through the reduction of the risk of reoffending – by making such an order with appropriate conditions attached, rather than imposing a prison sentence (See [34]-[35]). However, the length of the CCO was increased to three years and greater conditions imposed.

  • Marocchini v The Queen [2015] VSCA 29 (25 February 2015) – Victorian Court of Appeal
    Alternative sentencing orders’ – ‘Assault police’ – ‘Community correction order’ – ‘Criminal damage’ – ‘Damaging property’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Reckless conduct endangering serious injury’ – ‘Recklessly causing serious injury’ – ‘Sentencing’ – ‘Threat to kill

    Charge/s: Criminal damage x 2, reckless conduct endangering serious injury, recklessly causing serious injury, threat to kill, assaulting police, various summary offences.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and one of the victims were married. The applicant suspected his wife was having an affair with their neighbour. Accordingly, he placed a tracking device on his wife’s car, located her, drove dangerously, threatened to kill her and damaged her vehicle. The total effective sentence was 3 years and 3 months, with a non-parole period of 2 years.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. The Court considered whether the imposition of a ‘Community Correction Order’ (CCO) would have been more appropriate than imprisonment. Beach JA quoted extensively from Boulton v The Queen, an important guideline judgment about CCO’s. In Boulton, it was noted that imprisonment should always be the last resort, and that a CCO is an alternative punitive option, even for ‘relatively serious offences which might previously have attracted a term of imprisonment’ (See at [23] – [26]).

    While Beach JA acknowledged that this was a serious offence, with a number of aggravating features, a CCO should have been ordered here. The offending occurred over a relatively short time, the appellant was married with four children, had no criminal history and he had the support of his wife who was the principal victim. The sentence was set aside and substituted for a sentence of four months’ imprisonment and a CCO of three years’ duration with conditions including 300 hours of unpaid community work (See at [30]). This case confirms that where such mitigating factors exist (particularly a lack of criminal history), the sentencing objectives can be achieved by combining a short term of imprisonment with a CCO. However, Beach JA noted that this would not have applied if the appellant had a criminal history.

    The relevant passage in Boulton that his Honour referred to is – ‘The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender’s circumstances and the causes of the offending’.

  • DPP v Meyers [2014] VSCA 314 (4 December 2014) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Damaging property’ – ‘Deterrence’ – ‘False imprisonment’ – ‘Intentionally causing injury’ – ‘Physical violence and harm’ – ‘Risk factor - strangulation’ – ‘Sentencing’ – ‘Seriousness

    Charge/s: Damaging property, aggravated burglary, false imprisonment, intentionally causing injury, possessing an unregistered firearm.

    Appeal Type: Crown appeal against sentence.

    Facts: The female victim was the male respondent’s ex-partner. On the day of the offence, the respondent drove to the victim’s premises with a double-barrelled shotgun, a power nail gun, a crow bar, cable ties and rolls of gorilla tape, various knives and cutting tools, and a plastic drop sheet. He smashed his way into the house and attempted to restrain the victim with cable ties. The victim struggled and the applicant struck her with the shotgun and started strangling her. He eventually managed to restrain the victim. After three and a half hours, police attended the premises and the applicant let the victim go. The respondent was sentenced to three years and six months imprisonment with a non-parole period of 18 months.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed and the respondent re-sentenced to five years and six months imprisonment with a non-parole period of three years. For the fourth time in six months, the Court here was concerned with sentencing for an offence of aggravated burglary committed by a male offender against his former domestic partner, ‘intimate relationship aggravated burglary’ (See [3]-[4]). At [5]-[6] the Court said:

    ‘On this appeal, as in each of the previous appeals, the offender submitted that what was said by the Court in Hogarth — about the need to increase sentences [for confrontational aggravated burglary] — had little or no application to aggravated burglary where the victim was a former domestic partner. That submission failed on each previous occasion, and we likewise reject it.

    As these reasons demonstrate, the task of applying Hogarth does not require the classification of offences into categories. Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held’.

    In reaching this decision, the Court made some observations about domestic violence offending. At [45]-[46] they stated:

    ‘We would wish to endorse the remarks in Filiz at [21]-[23] about the particular seriousness of offending involving former domestic partners. Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.

    General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison’.

  • Filiz v The Queen [2014] VSCA 212 (11 September 2014) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Contravention of family violence intervention order’ – ‘Deterrence’ – ‘Intentionally cause serious injury’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of prior relationship to sentencing’ – ‘Sentencing’ – ‘Theft

    Charge/s: Aggravated burglary with intention to assault, intentionally causing serious injury x 2, theft, contravening a Family Violence Intervention Order.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant had been in a relationship with the female complainant for ten years and they had three children together. A Family Violence Intervention Order was made against the applicant in relation to the complainant and their children. On the night of the offence, the complainant was lying in bed with her new partner. The applicant kicked open her bedroom door and started striking the complainant and her partner with a curtain rod. The complainant telephoned the police and the applicant fled. Another intervention order was obtained which prohibited the applicant from contacting the complainant. He breached this order on two occasions. The applicant was sentenced to three years and six months imprisonment with a non-parole period of one year and ten months.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Redlich JA’s comments at [21]-[23] have often been cited in subsequent cases:

    ‘Senior counsel for the applicant rightly conceded that general deterrence is a significant sentencing factor in this case, not only in relation to aggravated burglary generally, but most particularly in relation to violent offending against a former domestic partner: Felicite v The Queen at [20]; DPP v Pasinis at [53]. Of particular significance is the fact that the applicant was already subject to a Family Violence Intervention Order. Offending of this nature is too often perpetrated by men whose response to the breakdown of a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. This Court has made it clear that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order which exists for the victim’s protection: Cotham v The Queen at [14]; DPP v Johnson at [38]-[49].

    At the oral hearing it was said that the complainant’s fear would have been greater if her home had been invaded by strangers seeking to steal personal property. It was suggested that the context of the offending affected its seriousness. We do not accept that these matters affect the objective gravity of the offences. The level of fear engendered by the applicant, in kicking in the locked bedroom door and proceeding to beat the victims with an iron rod, did not have to be evaluated according to such niceties. The attack the applicant launched upon his ex-partner was strongly suggestive of a desire to do her and her partner serious harm, and anybody in their position would have feared that such harm would occur. The complainant’s victim impact statement makes clear that the physical and emotional effects will be lasting.

    It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners. In such circumstances, the submission that the complainant’s level of fear when being attacked by her ex-partner was less than it might have been if she had been attacked by a stranger should be rejected’.

    Although there were a number of relevant factors in mitigation – that is, the applicant’s relatively early plea (but absent any remorse), his previous good character, his rehabilitation, both actual and prospective, work history and solid family support, and the difficulties he would suffer in prison when separated from his children, these had to be balanced against the aggravating factors of the offending and the need for general deterrence discussed above, as well as the need for specific deterrence, just punishment and denunciation. In light of this, it could not be said that the sentence was manifestly excessive (See [29]).

  • Curypko v The Queen [2014] VSCA 192 (29 August 2014) – Victorian Court of Appeal
    Context evidence’ – ‘Delay’ – ‘Denunciation’ – ‘Deterrence’ – ‘Intentionally causing serious injury’ – ‘Just punishment’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim impact statement

    Charge/s: Intentionally causing serious injury.

    Appeal Type: Appeal against sentence.

    Facts: The female complainant was the male applicant’s de facto partner. The applicant repeatedly and brutally assaulted the complainant over a four year period. The charged offence occurred in 1989 and concerned a ten hour assault by the applicant which included striking the complainant multiple times and breaking her jaw, hitting her with various objects, heating up a knife and dragging this across her neck, and stabbing her with a syringe. The applicant was sentenced to five years imprisonment, with a non-parole period of two and a half years. There was a substantial delay between the offending and the applicant being charged – some 24 years.

    Issue/s:

    1. The sentence was manifestly excessive in light of the maximum penalty, the long delay and the applicant’s rehabilitation during that period, the guilty plea, the applicant’s youth when he offended, and sentencing practice at the time of offence.
    2. The sentencing judge erred in concluding that the gravity of the offending required the applicant’s youth at the time of offending, the delay and his rehabilitation in the interim must ‘give way’.
    3. The sentencing judge erred in departing from the agreed statement of facts and in relying on the Victim Impact Statement as evidence of uncharged offending providing context for the charged offence.

    Decision and Reasoning: The appeal was dismissed. First, the sentence was not manifestly excessive. Ashley JA acknowledged that the delay was substantial and as such merited substantial consideration as a matter of fairness to the accused. During that period, the applicant had ‘reformed’ (at [65]), was in a stable relationship, had a child, and was able to demonstrate rehabilitation. Notwithstanding this, the sentence imposed at trial, though harsh, was within the discretion of the primary judge.

    Second, the sentencing judge did not fall into error by concluding that mitigating factors including delay, rehabilitation and the applicant’s youth, ‘had to take a back seat to circumstances which favoured a greater sentence’ (at [41]). The seriousness of the offending as an example of severe domestic violence meant that just punishment, denunciation and general deterrence took prime consideration. An argument that the delay in bringing the proceedings reduced the need for general deterrence was dismissed. The delay here was connected to the complainant’s fear and trauma and then further delay was caused by change in investigators (See [53]-[56]).

    Third, the sentencing judge did not err in referring to statements made by the victim to the police, in supplementing the general description of the assaults relied upon for contextual purposes by recourse to statements made by the complainant, and by referring to the victim impact statement. In particular, the circumstances of earlier assaults were, as the judge repeatedly stated, admitted for contextual purposes only (See [34]-[39]).

  • Marrah v The Queen [2014] VSCA 119 (18 June 2014) – Victorian Court of Appeal
    Aggravating factor’ – ‘Animal abuse’ – ‘Contravening an intervention order’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Rape’ – ‘Recklessly causing serious injury’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Threat to kill

    Charge/s: Recklessly causing serious injury, rape, threat to kill.

    Appeal Type: Appeal against sentence.

    Facts: There numerous family violence incidents between the male applicant and the female respondent during their relationship. A family violence intervention order was active at the time of offending. On the day of offence, the applicant and the complainant were arguing after the applicant accused her of having sexual relations with other men. The applicant punched the complainant, picked her up by her hair and threw her to the floor, kicked her several times, and banged her head on the floor. He also grabbed her around the neck such that she could not breathe and the applicant repeatedly shoved his fingers in the complainant’s vagina. He retrieved two knives and said he would kill her and her dog. The applicant was sentenced to 12 years imprisonment with a non-parole period of ten years.

    Issue/s: One of the issues was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. The gravity of the applicant’s conduct was aggravated by the fact the applicant was subject to a family violence intervention order. As Tate JA said at [25]:

    ‘The gravity of the offending was aggravated by the fact that the applicant was at the time the subject of an intervention order, which he flagrantly disregarded. Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship’.

    However, the orders for cumulation did not produce an aggregate sentence that was commensurate with the gravity of the whole of the offending (See [21]-[22], [27]-[28]).

  • Pasinis v The Queen [2014] VSCA 97 (22 May 2014) – Victorian Court of Appeal
    Deterrence’ – ‘Effects of family violence’ – ‘Intentionally causing serious injury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Serious consequences for victims

    Charge/s: Intentionally causing serious injury (ICSI) x 2.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female complainant were in a de facto relationship. On the day of the first offence, the applicant began punching the complainant and went to kick her in the face. The complainant put up her left arm to protect herself and the applicant’s kick broke her arm. After some delay, the applicant took her to the hospital. Three months later, the applicant started hitting the complainant and again the complainant put her arm up to defend herself and the applicant broke her right arm. Despite her excruciating pain, the applicant did not take the complainant to the doctor until the following day.

    When the incidents were first charged, the applicant and the complainant had resumed their relationship and concocted a false version of events to exonerate the applicant. The relationship subsequently ended and the complainant went to the police. They were both charged with conspiracy to pervert the course of justice. The applicant was also charged with two counts of ICSI and sentenced to eight years imprisonment with a non-parole period of six years.

    Issue/s: The sentence was manifestly excessive and the sentencing judge failed to give appropriate consideration to the totality principle.

    Decision and Reasoning: The appeal was dismissed. The sentence imposed could not be said to be manifestly excessive. Further, the totality principle was appropriately applied. Kyrou AJA made a number of observations about family violence that have been cited in a number of subsequent judgments. The Court considered the serious consequences of violent domestic assaults and emphasised the importance of general deterrence in cases involving offences committed in the context of family violence. As at [53]-[54]:

    ‘Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.

    The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable … Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and longlasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim’s confidence can also affect their ability to participate in paid work and have other serious financial effects’.

    His Honour reiterated at [57]:

    ‘General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm’.

  • Benson v The Queen [2014] VSCA 51 (28 March 2014) – Victorian Court of Appeal
    Exposing children’ – ‘Miscarriage of justice’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Rape.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The male appellant and the female complainant had been in a relationship for 13 years. The complainant alleged that in April 2011 the appellant hit her after she refused to have sex with him. She described this as the ‘last straw’ and told the appellant she was leaving him. They remained living in the same house. One month later, the intoxicated appellant forced her into bed and penetrated her with his penis. Their son saw the incident and called the police.

    At trial, the Crown sought to admit evidence of physical assaults by the appellant against the complainant that occurred between 1999 and 2003 (none of these assaults happened after the complainant refused to have intercourse with the appellant). The Crown argued that this evidence explained the context in which the alleged rape occurred, and was relevant to whether the complainant had freely agreed to have intercourse with the appellant and whether the appellant was aware that the complainant was not consenting or might not be consenting on the night of the alleged offence. The trial judge took account of the highly prejudicial nature of the evidence but considered that it was both relevant to and probative of the facts in issue and should be admitted for the limited purpose described in her ruling (see [19]-[23]).

    Issue/s: The trial judge erred in admitting evidence of past conduct by the appellant because the evidence was not relevant.

    Decision and Reasoning: The appeal was allowed. Neave JA held (Bongiorno and Coghlan JJA agreeing) that the evidence was inadmissible. Bongiorno and Coghlan JJA also held that there was a miscarriage of justice (Neave JA in dissent). Neave JA first considered whether the ‘relationship evidence’ (evidence of physical assaults) was relevant. Her Honour stated generally at [29]:

    ‘Evidence of the relationship between an accused and the alleged victim of an offence may be relevant and admissible for the purpose of placing the event which is the subject matter of the offence in context, where such evidence may assist the jury to evaluate the conduct of the complainant and the applicant on the occasion which gave rise to the charge. Where the evidence is of criminal or other disreputable acts committed by the accused, so that there is a danger that the jury will treat it as evidence that the accused has a propensity to commit acts of the kind charged, the judge must warn the jury of the limited purpose for which the evidence can be used. In particular the jury must be told that the relationship evidence cannot be regarded as a substitute for the evidence that the accused committed the charged acts, or for the purpose of showing that the accused is ‘the kind of person’ likely to have committed that offence (R v Grech (1997) 2 VR 609)’.

    Neave JA went on to consider the circumstances in which relationship evidence may be relevant. At [31], Her Honour noted that relationship evidence of prior violence by the accused towards the complainant may be admissible in sexual offence cases ‘because it assists the jury to evaluate whether the complainant had freely agreed to sexual activity on the occasion to which the charge relates, or whether the accused knew that the complainant had not consented or might not have consented to having sex on that occasion’: see, for example, R v Loguancio [2000] VSCA 33; (2000) 1 VR 235, 23 (Callaway JA).

    At [33], Her Honour noted that relationship evidence of prior acts of violence by the accused ‘may also be admissible where a person is charged with homicide or an offence arising out of the infliction of injury on a victim, because such evidence is relevant in evaluating the accused person’s claim that he or she had an amicable relationship with the victim, or that he or she acted in self-defence’: see, for example, Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334 and R v Mala (Unreported, Court of Appeal, Brooking, Ormiston, Batt JJA, 27 November 1997).

    In this case, the appellant correctly conceded that evidence of the April 2011 assault when she refused to have sexual intercourse with him only a month before the alleged rape was relevant in assessing the likelihood that she had in fact voluntarily agreed to have intercourse with him or he believed that she had done so (see [35]). However, Neave JA held at [36]-[37] that:

    ‘[D]espite the appalling nature of the earlier assaults, I consider that the evidence of those assaults was not sufficiently relevant to the nature of the relationship which existed at the time of the alleged rape to the admission of that evidence. There was a lengthy time lapse between the earlier assaults and the alleged rape. Of itself, that time lapse might not have made the evidence irrelevant...’

    ‘However in this case there was not only a significant time delay between the alleged rape and the earlier assaults, but the complainant remained with the applicant despite the assaults and bore him children after those assaults had occurred. It may be that she did not leave him earlier because she was afraid of him, but there was no evidence that he had assaulted her because she refused to have sex with him, prior to April 2011’.

    Bongiorno and Neave JJA agreed with the reasons set out by Neave JA as to why the evidence was inadmissible. However, they also held that there was a substantial miscarriage of justice as a conviction in this case was not inevitable: see Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469. Neave JA in dissent at [52]-[61].
  • Freeman v The Queen [2011] VSCA 349 (9 November 2011) – Victorian Court of Appeal
    Children’ – ‘Desire to inflict emotional harm on another parent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The applicant had recently divorced from Ms Barnes, the mother of his four year old daughter (the victim). Consent orders were made in the Family Court which reduced the applicant’s share of custody. The applicant was distressed by this outcome. A few days later, he was driving with his three children and had a telephone conversation with Ms Barnes, telling her that she would never see her children again. He pulled the car over and threw his four year old daughter off a bridge.

    Issue/s: One of the issues was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. There were a number of aggravating circumstances on the facts including that the applicant killed an innocent child, the circumstances of the killing were horrendous and the child’s death would have been painful and protracted, the applicant’s conduct was a fundamental breach of trust, the killing was in the presence of his two sons, the applicant killed his daughter in an attempt to hurt his former wife as much as possible, the crime was committed in a public place, the applicant offended the public conscience, and the applicant threatened his ex-wife in the presence of their children (see [15]). The most heinous nature and gravity of the applicant’s offending, his lack of remorse and poor prospects for rehabilitation, meant that a non-parole period of 32 years was not manifestly excessive.

  • DPP v Johnson [2011] VSCA 288 (23 September 2011) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Assault’ – ‘Breach involving a child’ – ‘Contravening/breaching a family intervention order’ – ‘Exposing children’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Aggravated burglary, assault, contravening a family intervention order.

    Appeal Type: Crown appeal against sentence.

    Facts: The male respondent entered the house of his former female partner, the complainant, with two knives and with the intention of killing himself in front of her. The complainant awoke and started screaming. This woke their daughter and the respondent left the premises (aggravated burglary and assault). The applicant was also charged with breach of a family violence intervention order which included conduct of a home invasion four days prior to the aggravated burglary, telephoning the complainant and threatening her and her family, and by coming within 200 metres of the complainant’s house on the night of the offence.

    He was sentenced to 15 months imprisonment for aggravated burglary, six months imprisonment for assault, and six months imprisonment for contravening a family intervention order. The sentencing judge took the view that the circumstances surrounding the burglary and assault were ‘almost identical’ to those surrounding the breach and ordered the sentence for breach to be made wholly concurrent with these sentences. After cumulation, a head sentence of one year and nine months imprisonment was imposed, with a non-parole period of ten months.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed, with Redlich, Neave and Bongiorno JA providing separate reasoning. The judges gave detailed consideration to matters relevant to sentencing for breach of an intervention order.

    Neave JA (Bongiorno JA agreeing) agreed with Redlich JA in part but held that the sentence imposed for the breach of the intervention order was manifestly inadequate. Her Honour stated that the frequency with which intervention orders are breached – and the potentially tragic consequences of this – warrants strong judicial condemnation of the contravention of such offences. As per Her Honour at [4]-[5]:

    ‘All Australian states have enacted legislation which is intended to protect potential victims of family violence from physical injury and from being placed in fear by harassment or threats. Family violence is a serious problem in Australia. In 2004, it was reported that family violence is ‘the leading contributor of death, disability and illness in women in Victoria aged 15 to 44 years’. Breach of intervention orders is relatively common. In its Report on Breaching Intervention Orders, the Sentencing Advisory Council said that, between July 2004 and June 2007, the Magistrates’ Court of Victoria and the County Court of Victoria imposed on average approximately 14,000 intervention orders per year. Over a quarter of all intervention orders imposed were breached.

    Further, offenders who breach orders and continue to threaten and assault their partners may go on to seriously injure or even kill them. As was recognised during parliamentary debates on the Family Violence Protection Bill 2008, intervention orders can only protect victims of threatened violence if they are effectively enforced and if breach of an order attracts an appropriate sentence. The Victorian Law Reform Commission, in its report which ‘underpin[ned]’ many of the changes in the Bill, observed:

    The response to a breach of an intervention order is crucial to ensuring the intervention order system is effective in protecting family violence victims. If police or the courts do not respond adequately to breaches of intervention orders, they will be perceived as ineffectual – ‘not worth the paper they are written on’ – by victims and perpetrators alike’.

    Here, the respondent’s conduct that formed the basis of the breach was conceptually distinguishable from the other offences, including the aggravated burglary. The respondent also had a significant history of breaching these orders and displayed contempt for such orders. Accordingly, the sentence imposed for breach an intervention order was manifestly inadequate.

    Redlich JA (with whom Neave JA and Bongiorno JA agreed in part) held that the sentence imposed for the aggravated burglary was manifestly inadequate. In dissent, His Honour held that the sentence for the breach of the intervention was not manifestly inadequate. However, upon re-sentencing the respondent, the sentence imposed for breach of an intervention order was lenient and thus a substantially higher sentence was warranted in the circumstances.

    Redlich JA concluded that the sentencing judge erred by having regard to the respondent’s claims that his previous breaches were ‘innocuous or insignificant’ (at [49]). In reaching this conclusion, His Honour noted that it was an aggravating feature of the offending that the respondent had repeatedly contravened intervention orders. Accordingly, the principles of general and specific deterrence had to assume particular importance here (See [42]-[43]). As per the Court in R v Cotham at [14]:

    ‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant’s actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated’.

    It was also an aggravating feature that the breach involved a child who was protected by the order because such orders are granted pursuant to a legislative regime that places ‘particular emphasis on the protection of children from family violence’ (See [45]).

    Redlich JA also concluded that the sentencing judge erred in ordering the sentence for the breach to be wholly concurrent. The offence of breach was not part of a single episode of offending (See [52]-[53]). As per the comments in R v Maher at [16] relating to cumulation and concurrency:

    ‘I turn to the relationship between, on the one hand, the stalking counts and the burglary and aggravated burglary, and, on the other hand, the breaches of the intervention order. It appears to me that the distinct criminality of the offending means that there should be some cumulation between the sentences imposed. Breaches of the intervention order, were in terms, disobedience of a court order. It would be inappropriate if that was not reflected in the breaches having real impact upon sentence. But, to meet the totality point, some amelioration of the individual sentences for the breaches and on the other counts is, in my view, required’.

  • Felicite v The Queen [2011] VSCA 274 (9 September 2011) – Victorian Court of Appeal
    Denunciation’ – ‘Deterrence’ – ‘Just punishment’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The relationship between the male applicant and his wife, the victim, was characterised by the applicant’s ‘inability to control his anger’ (at [2]). The victim met another man and said she was ending her relationship with the applicant. A few days later, during the course of an argument, the applicant stabbed the victim repeatedly in the neck and throat. At least part of the attack was witnessed by their four year old son. He was sentenced to 19 years imprisonment, with a non-parole period of 16 years.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. As per Redlich JA at [20]:

    ‘The taking of a domestic partner’s life undermines the foundations of personal relationships and family trust upon which our society rests. The sentence must reflect both the sanctity of human life and societies’ abhorrence of violence towards vulnerable and trusting partners who could legitimately have expected the offender to be the protector, not the perpetrator of violent abuse. An outburst of homicidal rage in such contexts is totally unacceptable. The community expectation is that the punishment assigned to such conduct must be condign so as to denounce in the strongest terms the abhorrent nature of domestic murder and to deter others from taking a similar course. Accordingly the principles of general deterrence, denunciation and just punishment will ordinarily be given primacy in sentencing for the murder of a partner in a domestic setting even where there are present, circumstances of provocation or great emotional stress’.

    The sentence could not be said to be manifestly excessive. It appropriately reflected the considerable weight given to the principles of general deterrence and just punishment arising from the spousal relationship between the applicant and the victim (See [36]).

  • El Tahir v The Queen [2011] VSCA 46 (4 March 2011) – Victorian Court of Appeal
    Breach of intervention order’ – ‘Exposing children’ – ‘Intentionally causing serious injury’ – ‘Mitigating circumstances’ – ‘Non-parole period’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sentencing’ – ‘Women

    Charge/s: Intentionally causing serious injury, breach of intervention order.

    Appeal Type: Appeal against sentence.

    Facts: The complainant was the applicant’s estranged wife. The complainant obtained an intervention order against the applicant. In the presence of their two children, the applicant stabbed the complainant in the back, slashed her fingers, punched her, kicked her and pulled some of her hair out.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The Court held at [23] that ‘the sentence was not manifestly excessive and, indeed, properly reflected the gravity of the offence after taking into account all mitigatory factors including the plea of guilty. The Court rightly treated with the utmost seriousness the appellant’s knife attack on his defenceless wife in the presence of their children and in circumstances which included the invasion of her home in breach of a court order. Further, the relative brevity of the non-parole period might be thought to properly and adequately take into account the personal circumstances of the appellant’.

  • Kane v R [2010] VSCA 213 (23 August 2010) – Victorian Court of Appeal
    Assault’ – ‘Breach of intervention order’ – ‘Criminal damage’ – ‘Damaging property’ – ‘Intentionally causing serious injury’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Specific deterrence

    Charge/s: Intentionally causing serious injury, intentionally causing injury, common assault, criminal damage, breach of an intervention order.

    Appeal Type: Appeal against sentence.

    Facts: The offending was spread over two indictments. The male applicant and Rachel Delaney were in a de facto relationship. She was married to, but separated from, Daniel Smyth. During the applicant’s relationship with Ms Delaney, there were repeated incidents of tension and conflict between him and Mr Smyth. After Ms Delaney informed the applicant that their relationship was over, he broke into her house and attacked Mr Smyth (who was also present). He bit of a large part of Mr Smyth’s nose and held Ms Delaney by the throat. The applicant was sentenced to eight years imprisonment.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. Nettle JA cited with approval the sentencing judge’s remarks that, ‘it is incumbent on a sentencing judge to impose condign punishment in a case like this in order to send a clear message to likeminded people that a civilised society does not condone people using physical violence to take the law in their own hands to settle disputes and deal with domestic partners in a violent way. Her Honour also observed, correctly, that inasmuch as these attacks were cowardly, unprovoked and unexpected attacks, there was a particular need for specific deterrence’.

    However, as the Crown conceded here, the sentence was manifestly excessive (See [24]-[25]). Nettle JA further noted that, although this was not the case in which to do so, there was a need to revisit sentencing practices in relation to offences of intentionally causing injury (See [25], [29]-[30]).

  • Smith v The Queen [2010] VSCA 192 (29 July 2010) – Victorian Court of Appeal
    Attempting to pervert the course of justice’ – ‘Deterrence’ – ‘Need to condemn family violence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Recklessly causing serious injury’ – ‘Relevance of victim's wishes’ – ‘Sentencing’ – ‘Victim contribution

    Charge/s: Recklessly causing serious injury, attempting to pervert the course of justice.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and female complainant were in a relationship. They were arguing and the applicant started punching and striking the complainant. The applicant was sentenced to three years and three months imprisonment with a non-parole period of two years and three months.

    Issue/s:

    1. The sentencing judge erred in failing to have any regard or sufficient regard to the attitude of the victim.
    2. The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. There was an assertion from counsel for the applicant that the complainant did not want these charges to be pursued (but no evidence from the complainant to substantiate these assertions). Beach AJA held that the sentencing judge was not bound to give any weight to the unsupported assertions made about the complainant’s attitude to the prosecution. His Honour referred to Neave JA in R v Hester at [27] and held that, ‘even in cases where there is evidence of forgiveness of the victim of domestic violence, this evidence should be treated with extreme caution’ (See [8]).

    Further, notwithstanding the applicant’s attempts to deal with his drug and violence problems since being remanded in custody, the sentence imposed was well open and could not be said to be manifestly excessive. The sentencing judge properly took into account the personal circumstances of the appellant, the appellant’s bad criminal record, principles of general deterrence, specific deterrence and denunciation. As per Beach AJA, ‘this Court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts’. In the circumstances, the sentence could not be said to be manifestly excessive (See [11]).

  • Kanakaris v The Queen [2010] VSCA 120 (28 May 2010) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Aggravating factor’ – ‘Breach of protection order’ – ‘Common assault’ – ‘Deterrence’ – ‘Exposing children’ – ‘Intentionally causing injury’ – ‘Intentionally causing serious injury’ – ‘Kidnapping’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Threat to kill

    Charge/s: Common assault x 4, intentionally causing injury x 3, threat to kill x 2, aggravated burglary, kidnapping, intentionally causing serious injury.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant pleaded guilty to 13 offences, involving appalling physical violence, humiliation and abuse committed against his female de facto partner, sister, mother and four year old daughter. The total effective sentence was nine years and three months’ imprisonment, with a non-parole period of seven years.

    Issue/s: Some of the grounds of appeal included –

    1. The sentencing judge failed to give sufficient weight to the applicant’s plea of guilty.
    2. The sentencing judge erred in fixing the non-parole period.

    Decision and Reasoning: The first ground of appeal was dismissed but the second ground of appeal allowed. The applicant’s contention that the sentencing judge failed to give sufficient weight to his plea of guilty was dismissed. The offending here was extremely serious. The conduct involved constituted breach of an intervention order, it was well planned and involved the use of an accomplice, the applicant was armed and threatened his partner, he took away her children, and she was unable to escape for six hours. His Honour also noted the that maximum penalties for aggravated burglary and intentionally causing serious injury as 25 years and 20 years respectively (See [70]-[72]). It was clear that the trial judge incorporated the discount for the plea of guilty in her orders of accumulation, which were only 12 months on the base sentence.

    However, the appeal was allowed on the basis of the non-parole period. It was noted that a seven year non-parole period is ‘very substantial’. Coghlan JA concluded that the primary judge must have imposed such a substantial non-parole period because of a ‘guarded view taken of the applicant’s prospects of rehabilitation’ (at [83]). However, the applicant had no criminal history and had pleaded guilty. As such, His Honour concluded that the primary judge erred in imposing such a long non-parole period on the basis of her conclusion on rehabilitation alone. The non-parole period was reduced to six years.

    Neave JA agreed with Coghlan AJA but made some brief remarks about the complaint of manifestly excess. She noted at [4]:

    ‘Notwithstanding the mitigating circumstances to which the learned sentencing judge referred, the shocking violence which the offender inflicted on those he professed to love required strong denunciation and considerable emphasis on both general and specific deterrence’.

  • R v Bastan; DPP v Bastan [2009] VSCA 157 (4 August 2009) – Victorian Court of Appeal
    Arranged marriage’ – ‘Rape’ – ‘Relevance of prior relationship’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape.

    Appeal Type: Appeal against conviction and sentence; Crown appeal against sentence.

    Facts: The complainant gave evidence that her marriage to the applicant was arranged by her parents. After the applicant was aggressive, she fled to a women’s refuge. They were divorced and the complainant obtained a family violence intervention order. The applicant began sending text messages to the complainant, masquerading as another man. The complainant invited this man to her house but told the applicant to leave when he arrived. He then dragged her to the bedroom, forced her onto the bed and penetrated her vagina with his penis. The applicant was found guilty after a trial and sentenced to four years imprisonment, with a non-parole period of two years and three months.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

    Decision and Reasoning: The Crown appeal against sentence was allowed. In upholding the appeal, Buchanan JA said at [36]:

    ‘I consider that the sentence would generally be regarded as inadequate if imposed upon an offender who tricked his way into the house of a stranger and raped her. The fact that the applicant and the complainant, in the past, had shared a consensual sexual relationship may have played a part in producing this sentence. In my opinion it should have played no part save insofar as those who have been in a relationship should be deterred from asserting any right or power in a like fashion against their former partners. This rape constituted an act of dominion by the applicant over the complainant’s body, which is not to be tolerated. In my opinion, the sentence, and in particular the non-parole period, was manifestly inadequate and represents an error that warrants interference by this Court’.

  • Earl v The Queen [2008] VSCA 162 (25 August 2008) – Victorian Court of Appeal
    Deterrence’ – ‘Offences at home’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Recklessly causing injury’ – ‘Sentencing’ – ‘Women

    Charge/s: Recklessly causing injury.

    Appeal Type: Appeal against sentence.

    Facts: During the course of an argument, the applicant punched his wife, the complainant, six times in the head. The complainant did not seek medical attention for two days. She was admitted to hospital and found to have a large sub-arachnoid haemorrhage. She was also discovered to have carotid aneurysms. As a result of the carotid aneurysms, the complainant suffered permanent changes to her life and could no longer live independently. It was acknowledged by the sentencing judge that, on the basis of medical evidence, it was not possible to know for certain whether there was a causal link between the applicant’s attack and the serious medical events that followed. The applicant was sentenced to 14 months imprisonment suspended after 10 months for a period of 12 months.

    Issue/s: One of the issues was whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The sentence could not be said to be beyond the range of sound sentencing discretion. Despite the limited nature and extent of the attack, and the injuries which it was shown to have caused, the offence was still serious. The complainant was a person with limited cognitive impairment and, to that extent, she was vulnerable and in need of care and support. The complainant was entitled to the applicant’s love and protection as his wife but was instead assaulted by the applicant in their own home. Nettle JA said at [23]:

    ‘As such, the offence involved a gross breach of trust in the place where the victim was most entitled to feel safe. General deterrence is of real importance in cases of domestic violence, especially in cases where victims are particularly vulnerable. And because of the applicant's prior convictions, aged as they were, it was apparent that there was a need for some measure of specific deterrence’.

  • R v Hester [2007] VSCA 298 (29 November 2007) – Victorian Court of Appeal
    Deterrence’ – ‘Difficulty of leaving’ – ‘Evidence of forgiveness’ – ‘False imprisonment’ – ‘Intentionally causing injury’ – ‘Intentionally causing serious injury’ – ‘Need to condemn’ – ‘Physical violence and harm’ – ‘Relevance of victim's wishes’ – ‘Sentencing’ – ‘Victim contribution’ – ‘Victim impact statements’ – ‘Women

    Charge/s: Intentionally causing injury, intentionally causing serious injury, false imprisonment.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female complainant were in an intimate relationship. On two occasions the applicant physically assaulted the complainant while intoxicated. On the second incident of assault, he also detained the complainant for 45 minutes and refused to let her seek medical attention. At sentence, a victim impact statement was tendered in which the complainant said she was partly to blame for the second incident and that she wanted to resume a relationship with the applicant. The applicant was sentenced to four years imprisonment, with a non-parole period of three years.

    Issue/s:

    1. The sentencing judge erred in ignoring the victim impact statement for sentencing purposes.
    2. The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. First, the sentencing judge did not err in not taking into account the part of the victim impact statement in which the complainant assumed blame for the second offending. There was also no substance in the claim that the sentencing judge failed to have regard to have proper regard to the complainant’s attitude to her relationship with the applicant (see [13]). Second, the sentences imposed were balanced, if not lenient, in all the circumstances. The offending was very serious – it was a savage, brutal and cowardly act on a victim who was physically much weaker than the attacker. Chernov JA also noted that the Courts have stated on a number of occasions that ‘such domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition’ (see [19]-[20]).

    Neave JA agreed with Chernov JA and added at [27]:

    ‘It is a common pattern of behaviour for perpetrators of domestic violence to express penitence and persuade their victims to reconcile. For a number of complex reasons which have been discussed in the social science literature dealing with this issue, many victims are assaulted on several occasions before they summon the courage to leave an abusive relationship. Often they require considerable support in order to do so. In my view, these are matters which should be given considerable weight by a judge who is considering the weight that should be given to a victim impact statement made by a person who has been the victim of domestic violence. I therefore agree with the comments of Simpson JA in R v Glen at 4 that evidence of forgiveness of the victim of domestic violence should be treated with extreme caution’.

  • DPP v Smeaton [2007] VSCA 256 (15 November 2007) – Victorian Court of Appeal
    Blaming the victim’ – ‘Intentionally causing serious injury’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Women

    Charge/s: Intentionally causing serious injury.

    Appeal Type: Crown appeal against sentence.

    Facts: The respondent saw the victim, his ex-girlfriend, at a Shopping Centre and became abusive and aggressive after she refused to help him ‘score’ heroin. He punched her and kicked her repeatedly in the head when she fell to the ground. The respondent was sentenced to three years imprisonment, with a non-parole period of 20 months.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. It was possible to infer that after being refused heroin, the respondent ‘snapped’ and his moral culpability was therefore less than it otherwise might have been. However, having said that, ‘this was a vicious, cruel and unprovoked attack on a small and virtually defenceless woman. To kick anyone in the head is grossly dangerous. To do it more than once, deliberately, is courting the worst kind of disaster. Fortunately, that did not occur. But her injuries were serious, and they are to some extent likely to be permanent’. The offence was aggravated by the fact that it was committed in a busy shopping centre and it represented a gross breach of trust the victim reposed in the respondent. Accordingly, the respondent’s moral culpability was high (See [13]). Given the nature and gravity of the offending and the extent of the respondent’s criminal history, Nettle JA held the sentence was manifestly inadequate (See [16]).

    Dodds-Streeton JA added further comments regarding some particularly troubling features of this offending. At [21], Her Honour stated:

    ‘Violence, and in particular violence by men against women as a means of control in current relationships or in relationships which have ended, is a prevalent and even critical social evil. As in the present case, the perpetrator not uncommonly expresses remorse immediately after a violent assault, but nevertheless seeks to blame the victim for causing the attack. Although the respondent did appear to regret the assault, as the sentencing judge observed, his letter to the court denigrated the victim's character and effectively sought to blame her for his backsliding into drug use and for provoking the attack. In the police interview, he denied the crime, at one point apparently claiming that the victim had assaulted him, and called her a lying dog’.

  • R v Gojanovic (No 2) [2007] VSCA 153 (14 August 2007) – Victorian Court of Appeal
    Deterrence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Murder.

    Appeal Type: Appeal against conviction and appeal against sentence.

    Facts: The female deceased entered into a de facto relationship with the applicant. The relationship deteriorated, in part due to the deceased’s gambling habit. The relationship ended and the deceased moved into separate premises. The applicant started stalking her, largely to monitor her treatment of his son. The applicant followed her home one evening, clubbed her on the head a number of times with a rubber mallet and strangled her with cord. The applicant was found guilty by a jury of murder and was sentenced to 20 years imprisonment, with a non-parole period of 15 years.

    Issue/s: One of the issues was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The sentencing judge was justified in concluding that the applicant was not remorseful for killing the victim. The evidence before the judge was of a vicious, determined and brutal attack by a person with a significant advantage in size and weight over his victim. The sentencing judge was further entitled and correct to regard general deterrence as a significant factor in such a case in the exercise of his sentencing discretion. As per the Court at [140]:

    ‘[O]ur courts have stated on more than one occasion that in cases of killings of the type which occurred here in a “domestic” setting, the concept of general deterrence is an important and weighty sentencing consideration. The sentence, in such cases, must be such as to provide a strong message that outbursts of homicidal rage, in contexts such as this case are totally unacceptable and will be dealt with by stern sentences of the type imposed upon the applicant’.

    The Court continued at [141]:

    ‘As (the sentencing judge) correctly observed many individuals have to confront circumstances of difficulty in the course of the breakdown of relationships. The Court must send a clear message to estranged parents that custody and other such disputes are to be resolved by proper processes and not by horrendous violence such as that imposed on the deceased in this case. In all the circumstances it cannot be said that the sentence imposed in this case is manifestly excessive’. See also R v Gojanovic [2005] VSC 97 (27 January 2005).

    Note: the High Court refused special leave to appeal (see Gojanovic v The Queen [2011] HCATrans 66).

  • R v Duncan [2007] VSCA 137 (22 June 2007) – Victorian Court of Appeal
    Aggravating factor’ – ‘Breach of intervention order’ – ‘Breach of intervention orders’ – ‘Damaging property’ – ‘Deterrence’ – ‘Double punishment’ – ‘Following, harassing, monitoring’ – ‘Intentionally causing injury’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Sentencing’ – ‘Totality

    Charge/s: Damaging property, intentionally causing injury, breach of an intervention order.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant engaged in protracted stalking of the female complainant for a number of years, in an attempt to initiate a relationship. The complainant obtained an intervention order against the applicant. In breach of this order, the applicant attended the complainant’s workplace, smashed her car’s windscreen and caused injury.

    Issue/s: Some of the issues were that –

    1. The sentencing judge failed to have sufficient regard to the need to avoid double punishment and thus the sentences imposed were excessive. This was based on the principle of double jeopardy i.e. where two offences of which an offender stands convicted contain common elements, it is wrong to punish the offender twice for the commission of the elements that are common (Pearce v The Queen).
    2. The trial judge failed to have sufficient regard to the principle of totality.

    Decision and Reasoning: The appeal was dismissed. Vincent JA remarked at [37] that:

    ‘I would add that the sentencing judge was clearly correct in attributing a high level of seriousness to the appellant's conduct and reflecting that in the sentences imposed. Not only did the appellant’s conduct involve a savage and sustained attack upon his unfortunate victim but, it must not be forgotten she had sought the protection of the law against his continued and frightening criminal harassment. He responded to her endeavours, and to the imposition of a sentence of imprisonment upon him, by seeking to punish her and damage her property. Obviously the community cannot accept that those who avail themselves of its protection may be subject to revenge or retribution if its structures and that protection are to possess credibility and operate to deter potential offenders’.

  • R v Elias [2007] VSCA 125 (19 June 2007) – Victorian Court of Appeal
    Battered woman syndrome’ – ‘Theft’ – ‘Verdins principles’ – ‘Where the victim is an offender

    Charge/s: Theft x 19.

    Appeal Type: Appeal against sentence.

    Facts: The offending took place between 2000 and 2004 when the female applicant was employed as an accountant at a firm. She diverted funds paid by bankrupt estates for creditors to her own accounts. The applicant was sentenced to a total effective sentence of 20 months imprisonment, with a non-parole period of 12 months. The sentencing judge accepted evidence that the applicant’s offending behaviour was symptomatic of ‘battered woman syndrome’. There was a history of physical and sexual abuse at the hands of the applicant’s husband.

    Issue/s: One of the issues was that the sentencing judge erred:

    1. In failing to sufficiently reduce the weight to be accorded to specific deterrence and moral culpability on account of the applicant’s psychological condition; and
    2. In failing to sufficiently reduce the weight to be accorded to general deterrence on account of the applicant’s psychological condition.

    Decision and Reasoning: The appeal was dismissed. The sentence imposed did not suggest that the sentencing judge failed to give any or sufficient weight to the impact of the applicant’s mental state upon the significance of general deterrence, specific deterrence or moral culpability. His Honour’s sentence, reflecting moderation in individual sentences, and a small extent of cumulation, was in fact merciful (See [16]-[28]).

    In obiter, Ashley JA observed that the Verdins principles had not as of yet been applied in respect of offences of this kind, where the offender asserts battered woman syndrome, as the relevant mental impairment, reduced moral culpability and the weight to be accorded to specific and general deterrence in sentencing. The battered woman/learned helplessness situation had typically been raised in homicide cases in relation to the question – why the offender did not leave their abusive partner? His Honour left open the possibility of the Verdins principles applying in a case where learned helplessness is given as the explanation for the commission of, for example, property offences. But this case was not an appropriate vehicle for making such a determination because there was insufficient evidence of the impairment to the applicant’s functioning arising from the history of abuse (See [12]-[14]).

  • R v Roach [2005] VSCA 162 (8 June 2005) – Victorian Court of Appeal
    Battered woman syndrome’ – ‘Burglary’ – ‘Conduct endangering persons’ – ‘Deterrence’ – ‘Negligently causing injury’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Theft’ – ‘Where the victim is an offender

    Charge/s: Burglary, theft, conduct endangering persons, negligently causing serious injury x 2.

    Appeal Type: Appeal against sentence.

    Facts: The female applicant and Mr O’Neill, her partner and co-offender, broke into a milk bar and stole goods and cash. The applicant drove off from the store with Mr O’Neill as her passenger. They were chased by police, with Mr O’Neill threatening to kill her if she slowed down. The applicant crashed the car into another vehicle driven by Mr Hahn. The impact caused both vehicles to be engulfed in flames, trapping Mr Hahn inside his vehicle. He suffered extensive burns to his body. Mr O’Neill also suffered injuries as a result of the crash. The applicant was sentenced to a total effective sentence of six years imprisonment, with a non-parole period of four years.

    Issue/s: One of the grounds of appeal was that the sentencing judge erred in his assessment of the applicant’s moral culpability by giving insufficient weight to the threats made to her by her partner.

    Decision and Reasoning: The appeal was dismissed. As per Callaway JA at [15]:

    ‘the judge did accept that O'Neill's threats motivated the appellant to drive as she did and that she took those threats seriously because of the history of violence directed towards her. There was an element of "battered woman" syndrome. Nevertheless, His Honour said, the police were present and protection would have been immediately available to her. I appreciate that she would have feared what O'Neill might do subsequently, but it is one thing to engage in shop-lifting or the like under a threat of violence; it is another thing altogether to engage in conduct so dangerous that it results in the kind of injuries sustained by Mr Hahn. General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat. The judge was not in error in saying that general deterrence must be the paramount sentencing consideration for offences of the kind the subject of counts 3 to 5 and that a substantial period of imprisonment was required to deter others minded to act in a similar way. I do not consider that his Honour undervalued the threats from O'Neill, particularly when the sentences he imposed on counts 3 to 5 are taken into account’.

  • R v Pham [2005] VSCA 57 (7 March 2005) – Victorian Court of Appeal
    Children’ – ‘Deterrence’ – ‘Intentionally causing serious injury’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing

    Charge/s: Intentionally causing serious injury x 2.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant was in a relationship with the female victim and lived with her and her son, the other victim, for a few months. The relationship ended but they maintained an association. The applicant married the victim’s sister but started to harass both the victim and her sister. The victim obtained an intervention order protecting her and her children. In breach of the intervention order, the applicant entered into the victim’s house. He stabbed her with a knife to the face, mouth, chest and neck approximately eight times (count 3). The victim’s son tried to intervene but the applicant struck him with the knife twice times, almost severing the child’s hand (count 4). The applicant was sentenced to a total effective sentence of ten years imprisonment, with a non-parole period of seven years.

    Issue/s: The sentencing discretion miscarried as the judge was required to sentence the applicant on the basis that the verdict on count 4 rested not upon a finding by the jury of the deliberate infliction of serious injury to the victim but upon their application of the instructions of the trial judge concerning the concept of transferred malice.

    Decision and Reasoning: The appeal was dismissed. There was no error on the part of the sentencing judge. His Honour did not impose a sentence on the basis that the applicant deliberately stabbed the victim (See [14]-[19]). Vincent JA further noted that the proper exercise of the sentencing discretion in this case required an order that effectively cumulated part of the sentence imposed on count 4 upon the sentence imposed on count 3. This was necessary to reflect the seriousness of the two separate offences and the particular aggravating features attaching to each, some of which were common and other not. In this context, it was particularly serious that the applicant act in flagrant violation of an intervention order the female victim had obtained to protect herself and her children. This is because the intervention order is:

    ‘… designed by parliament to provide the protection of the law to vulnerable individuals, usually, as in this case, women and children, who legitimately fear for their safety. Offenders who disregard such orders and occasion injury to persons whose personal security is intended to be guaranteed through this means must anticipate that an extremely stern view will be adopted by the courts of their conduct and, save in the most unusual circumstances, will be subject to condign punishment’ (See [21]-[22]).

  • DPP v Muliaina [2005] VSCA 13 (2 February 2005) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Causing serious injury recklessly’ – ‘Common assault’ – ‘False imprisonment’ – ‘Indecent assault’ – ‘Need for denunciation’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Threat to kill

    Charge/s: Presentment 1 – false imprisonment; Presentment 2 – causing injury recklessly, indecent assault x 2, rape; Presentment 3 – aggravated burglary, common assault, false imprisonment, making a threat to kill, causing injury recklessly.

    Appeal Type: Crown appeal against sentence.

    Facts: The primary victim was the male respondent’s former de facto partner and mother of their child. The circumstances of the first presentment were that the victim said she wanted to end their relationship. The respondent dragged her to his house and tied her to a chair. The false imprisonment ended when she was able to convince the respondent to call her mother because their daughter needed feeding. The second presentment related to the respondent’s offending after he had resumed living with the victim. He slapped the victim and hit her with a leather strap. He then tried to force the victim to perform oral sex on him and engaged in penile-vaginal intercourse with her without her consent. The victim obtained an intervention order against the respondent. The offences that were the subject of the third presentment occurred when they had ceased co-habitation and the respondent forced his way into her parent’s home. He assaulted the victim’s friend who was there at the time, threatened to kill the victim, and punched and hit her. The respondent was sentenced to a total effective sentence of four years imprisonment.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed, The sentence imposed did not equate with the gravity of the crimes. As per Chernov JA at [21]:

    ‘It seems plain enough that the respondent's offending conduct had the aggravating features for which the Director contended. It was brutal and cowardly and was, in the relevant sense, ongoing. It involved, in the main, ferocious physical attacks by the respondent on a much weaker victim whom the respondent claimed to love. On those occasions he treated her as if she were his slave who had to do his bidding or be severely punished if she refused. Such conduct is clearly unacceptable to this community and must be denounced by the courts. That the respondent experienced the brutal upbringing for which he contended does not make his behaviour, even though it may have been a manifestation of his uncontrolled anger, any more acceptable’.

  • R v Sa [2004] VSCA 182 (7 October 2004) – Victorian Court of Appeal
    Aggravated burglary’ – ‘Cautious approach to victim forgiveness’ – ‘Exposing children’ – ‘Intentionally causing serious injury’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Role of apology’ – ‘Sentencing’ – ‘Victim contribution’ – ‘Victim's wishes

    Charge/s: Aggravated burglary, intentionally causing serious injury.

    Appeal Type: Appeal against sentence.

    Facts: The applicant and the victim, his cousin, were born in Western Samoa. They had a heated argument over the phone, in which the applicant said he would ‘chop [the victim’s] head off’. The applicant armed himself with a machete and went to the victim’s home. The applicant entered through an unlocked door and struck the victim twice with the machete to the back of the head and neck, in front of two small children. After the offence, a cultural ceremony of apology and reconciliation was performed. At sentence, the victim expressed his desire that the applicant not be imprisoned, his forgiveness of the applicant and that they now had a very good relationship. The applicant was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two years.

    Issue/s: Some of the grounds of appeal included that the sentencing judge erred in that he failed to take into account the attitude of the victim and the remorse of the offender.

    Decision and Reasoning: The appeal was dismissed. As per Eames JA at [38]-[40]:

    ‘The statement of his Honour that the attitude of the victim could not ‘govern’ the sentencing approach was consistent with the principles stated in Skura. In the present case, however, there was good reason why the judge would be cautious in evaluating the weight to be given to the evidence of the victim. In the first place, he was not the only victim of the appellant’s crime; the two children also witnessed what must have been a horrifying incident, although there was no evidence of any long lasting adverse effects on the children. Crimes of violence frequently create alarm and distress to people other than the immediate victims, and in assessing the need for general deterrence a sentencing judge must have regard to the impact of crime more broadly than merely upon the immediate victim.

    An additional reason for being cautious about the weight to be given to the evidence of the victim related to the nature of [the victim’s] evidence. One reason why courts do not allow the wishes of the victim to determine the sentence to be imposed is that the victim might not always be able to assess what is in his or her own best interest. For example, when considering what weight to give to factors of general and specific deterrence in a case of a woman assaulted by her partner a sentencing judge would be minded to have regard to the imperatives which might motivate a battered wife to plead for leniency towards her attacker. In such circumstances the sentencing judge might be cautious about giving undue weight to such a plea for leniency.

    In the present case, the victim was himself in a difficult position among other members of the Samoan community, and his acceptance of the apology might have been motivated by a range of considerations’.

    The sentencing judge accepted that the ceremony was of great cultural significance and that it represented a traditional apology of the most humble and sincere kind. He further accepted that the applicant had expressed genuine contrition and remorse. These statements reflected that the sentencing judge did in fact give weight to the performance of the cultural ceremony and to the factors of remorse and forgiveness (See [43]). Eames JA was not persuaded that the weight given to these factors displayed error in the sentencing judge’s approach. On the contrary, having regard to the seriousness of the offences, the sentences imposed were merciful (See [44]).

  • R v Skura [2004] VSCA 53 (7 April 2004) – Victorian Court of Appeal
    Incitement to murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Victim impact statements

    Charge/s: Incitement to murder.

    Appeal Type: Appeal against sentence.

    Facts: The female applicant pleaded guilty to a single charge that she incited Jason Dorrian, an undercover police officer, to murder her husband, the complainant. She was sentenced to seven years imprisonment, with a non-parole period of four years and six months. At trial, her husband submitted a victim impact statement that stated his forgiveness of the applicant, his desire that she return to live with the family and his willingness to offer her support to enable her to re-enter society. The sentencing judge stated that the relevance of the victim’s attitude was doubtful.

    Issue/s: The sentence was manifestly excessive in light of the way the sentencing judge dealt with evidence of a number of factors including the victim impact statement of her husband.

    Decision and Reasoning: The appeal was allowed, with the judges providing separate reasoning. Smith AJA stated at [48] that:

    ‘So far as the attitude of the victim to the degree of sentence is concerned, that is generally irrelevant. But evidence that the victim has forgiven the offender may indicate that the effects of the offence had not been long-lasting. It may mean that ‘psychological and mental suffering must be very much less in the circumstances. Accordingly, some mitigation must be seen in that one factor’: R v Hutchinson (1994) 15 Cr App R (S) 134, 137. Where the offence occurs in a domestic situation, the attitude of the victim may also be relevant to the question of rehabilitation’.

    Here, the sentencing judge considered one aspect of the victim impact statement – the attitude of the victim and whether it could affect the sentence. His Honour did not appear to consider the impact of the crime on the victim or the relevance of the victim impact statement, and the attitude shown in it, to the question of rehabilitation. However, ‘the evidence revealed by the victim impact statement was in fact significant and, in particular, showed that there was no adverse impact on the victim’. Further, the applicant’s prospects of rehabilitation were enhanced because of the willingness of the victim and the daughter to help the applicant deal with her serious personality disorders. Accordingly, the sentencing judge erred in failing to have regard to this relevance of the victim impact statement (See [50]).

    Eames JA also held that the sentencing judge did not give sufficient weight to the victim impact statement of the applicant’s husband (See [13]). His Honour stated at [12]:

    ‘This Court has often acknowledged that the introduction of victim impact statements has served an important purpose of ensuring that sentencing judges have a full appreciation of the consequences of criminal conduct to the victims of the crimes, thereby ensuring that judges properly weigh the factors relevant to victims which must be considered by virtue of s.5 of the Sentencing Act 1991. The courts have also warned that the victim impact statements should not be misused so as to produce a sentence which is unfair, and that an articulate or emotional victim impact statement could not justify a sentence being imposed which was not just in all the circumstances’.

    However, while judges must ensure the contents of victim impact statements do not unbalance the sentencing process so as to cause a miscarriage of the sentencing discretion, Eames JA held that there may be many instances where the victim impact statement may have the effect of producing a more severe sentence. Likewise:

    ‘If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence’ (See [13]).

  • R v MFP [2001] VSCA 96 (15 June 2001) – Victorian Court of Appeal
    Aggravating factor’ – ‘Domestic context as an aggravating factor’ – ‘Physical violence and harm’ – ‘Recklessly causing serious injury’ – ‘Risk factors’ – ‘Sentencing’ – ‘Strangulation’ – ‘Women

    Charge/s: Recklessly causing serious injury.

    Appeal Type: Appeal against sentence.

    Facts: The applicant was married to the victim and they had three children together. The applicant forcibly dragged his wife out of the house and into the shed, where he had set up a noose. There was a struggle and he placed a noose so tightly around her neck that she passed out. The applicant was sentenced to four years imprisonment with a non-parole period of one year.

    Issue/s: One of the grounds of appeal was that the sentencing judge erred in finding that the offence was aggravated because it occurred in a domestic context.

    Decision and Reasoning: The appeal was dismissed. The sentencing judge in fact stated that the legislature and the community regarded the offence of recklessly causing serious injury as serious, an attitude that was correct particularly in a domestic context. Ormiston JA held that the sentencing judge was entirely justified as seeing this as a factor to be born in mind (See [19]). His Honour further stated that:

    ‘ I think [the domestic context] can be seen to be aggravating both as to its potential consequences and also inasmuch as a husband (or a wife) is in a privileged position in relation to a spouse. They each know the everyday movements, the habits, the likes and dislikes, the fears and pleasures of their spouse, which might enable them not only to effect an attack more easily on their victim but also to devise the kinds of attack which could more seriously affect their spouse, not merely physically, but so as to cause mental anguish. Now it was not suggested that there were special advantages which the applicant had in the present case, but he was certainly able to know whether the children would be up or asleep and where they would be, and where to take his wife to gain privacy for this cruelly devised attack. The matter need not be examined any further, for in truth the advantages that he had, including that of surprise, justified the judge in holding that it was proper to view more seriously this attack occurring in the domestic context of this family. The consequences for both his wife and children were manifest, as fairly could have been expected’ (See [20]).

  • R v Mason [2001] VSCA 62 (2 May 2001) – Victorian Court of Appeal
    Common assault’ – ‘Digital rape’ – ‘Existence of prior relationship not mitigating’ – ‘Indecent assault’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Indecent assault, common assault, digital rape.

    Appeal Type: Appeal against sentence.

    Facts: The offences were committed by the applicant against his estranged wife, the complainant, with whom he had two children. During the course of an argument, the applicant grabbed the complainant by the crotch and lifted her up, slamming her into the bed on a number of occasions. Three days later, the applicant broke into the complainant’s house and started to choke and slap her. She struggled against him and he pushed her to the floor and penetrated her vagina with his finger. The applicant was sentenced to a total effective sentence of three years and four months, with a non-parole period of 14 months.

    Issue/s: One of the issues was that the sentencing judge erred by failing to give sufficient weight to a number of factors including the pre-existing relationship between the applicant and his wife.

    Decision and Reasoning: The appeal was dismissed. Winneke P addressed the submission that where the rape occurs against the background of a previous settled sexual relationship, it should generally be regarded by a sentencing court as less serious than a rape by a total stranger. Winneke P considered the authorities led in support of this submission and at [7] and [8] expressed the following conclusions:

    ‘I do not regard them as laying down a sentencing principle of inflexible or universal application. A rape committed in the context, and against the background, of a previous settled relationship may in certain circumstances be a factor which a court can take into account in mitigation where it can be seen that the impact upon the victim has, for that reason, been less traumatic than otherwise it might have been. But, equally, it is not difficult to imagine a rape, committed by a man who has been in a previous relationship with his victim, which would be every bit as frightening as a rape committed by a stranger. The one thing which the authorities to which this Court has been referred demonstrate is that the crime of rape, whatever the circumstances, and upon whomsoever committed, is regarded by the courts as a grave insult to its victim and a crime which can rarely give rise to a non-custodial sentence.

    It should not be forgotten that the crime of rape is an intensely personal crime which, for sentencing purposes, cannot be divorced from its effects on the victim. But the effects include not only those which flow from the physical invasion of the victim's person and security, but also those which flow from the violation of the more intangible intellectual properties of the victim's rights and freedoms. In a society in which there is an increasing number of couples becoming estranged, the courts have a heightened obligation to deter those who have previously lived in a stable relationship with a wife or partner from regarding such wife or partner as akin to a chattel devoid of rights or freedoms, and as an object readily available for their sexual gratification’.

  • R v Boaza [1999] VSCA 126 (5 August 1999) – Victorian Court of Appeal
    Attempted murder’ – ‘Denunciation’ – ‘Deterrence’ – ‘Domestic homicide’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Attempted murder.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female complainant formed a relationship, which the complainant subsequently ended. One evening, the applicant tailgated the complainant, forcing her to stop her vehicle. He dragged her out of the car and threw her down an embankment. Stating that he was going to kill her, the applicant punched the complainant and stabbed her multiple times before he was restrained by passers-by. Despite losing massive amounts of blood, the complainant survived. The applicant was sentenced to 14 years imprisonment with a non-parole period of 11 years.

    Issue/s:

    1. The sentence was manifestly excessive.
    2. The sentencing judge failed to give sufficient weight to the applicant’s plea of guilty and other matters put in mitigation on his behalf.

    Decision and Reasoning: The appeal was dismissed, with separate reasoning provided by Chernov JA and Winneke P but each concurring with the final orders. Chernov JA found that the sentence could not be said to be manifestly excessive in the circumstances. The offence was in the upper range of the scale of seriousness for the crime of attempted murder – it was a brutal, cowardly and unprovoked attack induced because the complainant had left their relationship. The applicant showed no remorse and repeatedly lied to police. A sentence reflecting the principles of denunciation and general and specific deterrence was warranted in the circumstances. Further, without the intervention of others the applicant would have killed the victim. Finally, it was clear the sentencing judge took into account all relevant mitigating factors (See [27]-[31]).

    Winneke P similarly held that the sentence could not be said to be manifestly excessive. His Honour said at [50]:

    ‘[T]his was truly a case where the court’s sentence must mark the community’s condemnation of the applicant’s conduct and must be such as to deter others like-minded from resorting to such conduct as a means of resolving emotional disputes. The type of conduct engaged in by the applicant, reflecting as it does a lack of self-discipline and self-centred lack of respect for the freedom of choice of his victim, was rightly viewed by his Honour, I think, as a serious example of this crime’.

  • R v Harris (1998) 4 VR 21 (3 December 1997) – Victorian Court of Appeal
    Deterrence’ – ‘Existence of a prior relationship’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Recklessly causing serious injury’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charge/s: Rape, recklessly causing serious injury.

    Appeal Type: Crown appeal against sentence.

    Facts: The respondent was convicted of raping and recklessly causing serious injury to his estranged wife. During the assault, which lasted one and a half hours, the respondent punched the complainant over 200 times, predominately to the face. He was sentenced to two years imprisonment, with a non-parole period of one year. The sentencing judge relied on four matters in deciding to impose a sentence at the lower end of the scale: (a) the offender was unlikely to reoffend, (b) the confusion in his mind as to where his relationship with the complainant was going, (c) the offender’s previous good record (which indicated the actions were out of character), and (d) the fact that, since the complainant was his wife, she would not have suffered the long-term traumatisation endured by other rape victims.

    Issue/s: The sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Charles JA (Phillips JA agreeing) held that the sentences imposed were manifestly inadequate. None of the first three factors (a), (b) or (c) identified by counsel justified the low penalty for the rape of the complainant. Charles JA did not accept the Crown’s submission that factor (d) disclosed a significant error of principle. The sentencing judge’s statement as to traumatisation was no more than a finding of fact in the circumstances of this particular case, and not purely premised on the fact that the complainant was his former wife. Notwithstanding this, a substantially heavier sentence was warranted in the circumstances.

    Charles JA further held that the imposition of such a lenient sentence here undervalued two important sentencing considerations. First, general deterrence plays an extremely important role in warning the community that rape, within or outside of marriage, will not be tolerated and will attract condign punishment. Second, the considerations which influenced the sentencing judge to impose a lower sentence suggested that His Honour gave little weight to specific deterrence. In light of the respondent’s lack of remorse for his actions, specific deterrence ought to have played a significant role in the construction of an appropriate sentence. Error was also shown in the sentencing judge’s decision not to direct any cumulation of sentence for the serious physical violence inflicted upon the complainant (See 27).

    Tadgell JA also agreed with Charles JA but provided some additional observations. In particular, at 28-29, His Honour stated:

    ‘In particular, it cannot be said that [the sentencing judge] purported to apply any principle to the effect that rape by a man of his wife or former wife or of a person with whom he is or has been in a close relationship is to be treated more leniently than a rape by a stranger. The authorities do not appear to support any such principle. The most that can be said, in my opinion, is that the penalty to be imposed for the crime of rape cannot be regarded as necessarily conditioned by the relationship of the parties to it. Any relationship or lack of it between them will no doubt usually fall to be considered as one of the circumstances to be taken into account in a determination of the appropriate penalty. In some circumstances a prior relationship may serve as a factor of mitigation, but it need not, and it may indeed serve to aggravate the offence’.

    There was no error of that kind here but the sentence was still manifestly inadequate for the reasons articulated by Charles JA.

  • R v Cotham [1998] VSCA 111 (17 November 1998) – Victorian Court of Appeal
    Breach of intervention order’ – ‘Community protection’ – ‘False imprisonment’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Repeated and contemptuous breaches of intervention orders’ – ‘Sentencing’ – ‘Theft

    Charge/s: False imprisonment, theft x 3, breach of intervention order x 5, unlicensed driving.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and female complainant were divorced and the complainant had obtained multiple intervention orders against the applicant over a period of time. The applicant broke into the complainant’s home, threatened the complainant with a knife and tapped the complainant’s mouth and legs and tied her to the bed. He then took the complainant’s credit cards and left the premises in the complainant’s car. Some days later, the applicant again broke into the complainant’s house. The complainant fled the premises and the applicant took credit cards and various other items. On a final occasion, the applicant telephoned the complainant at work, trying to persuade her to drop the charges against him. All these incidents were in breach of an intervention order. The applicant was sentenced to a total effective sentence of two years and six months imprisonment, with a non-parole period of 15 months.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Charles JA held that the sentence could not be said to be manifestly excessive. The applicant committed serious crimes which adversely affected the victim and her children quite significantly. The applicant was contemptuous of the intervention order, disregarding it and its terms as and when he pleased. And he had been in court on two previous occasions for breaching the same order (See [16]). As per Charles JA at [14]:

    ‘Intervention orders must be strictly adhered to, and it is very much in the interests of the community that those against whom such orders are made be under no misapprehension that the courts will punish severely those who breach such orders. The applicant's actions suggest that he believed he could breach the intervention order with impunity. Only by appropriately severe penalties can the courts make clear to the applicant and the broader community that such conduct will not be tolerated’.

  • R v Yaldiz (1998) 2 VR 376 (9 October 1997) – Victorian Court of Appeal
    Attempted murder’ – ‘Background of emotional and physical abuse’ – ‘Exposing children’ – ‘Manifestly inadequate’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Attempted murder.

    Appeal Type: Crown appeal against sentence.

    Facts: The respondent was convicted of the attempted murder by stabbing his wife. He attacked her in a frenzy in public in front of their children. At the time of the incident, the respondent was suffering from post-traumatic stress disorder. He was sentenced to six years imprisonment, with a non-parole period of four years.

    Issue/s: One of the grounds of appeal was that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. Batt JA stated that ‘general deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap’ at 381 (See also R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (23 May 2007) and R v Tsiaras [1996] 1 VR 398 (28 November 1995)). His Honour held that the sentence failed manifestly to meet the gravity of the respondent’s crime. The fact the offence occurred in a domestic situation did not decrease its heinousness. The crime warranted a sentence reflective of the considerations of general and specific deterrence, the community’s expectation of proper punishment and the possibility of rehabilitation (See 381).

    Winneke P agreed with Batt JA but added his own observations. His Honour agreed at 382 that the sentence was manifestly inadequate and stated:

    ‘[T]his was a very serious example of the crime of attempted murder. It was premeditated and vicious and carried out upon a defenceless woman, in a public place, in the presence of the terrified children of both the respondent and the victim. I agree with the learned sentencing judge that the crime is not to be regarded as any the less heinous because it was committed against the background of an emotional domestic dispute. That is merely an explanation and not an excuse for the crime.

    Winneke P also held at 383 that ‘whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused’.

  • R v Towns (unrep, 21/9/1992, VCCA) – Victorian Court of Criminal Appeal
    Murder’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing’ – ‘Seriousness

    Charge/s: Murder.

    Appeal Type: Appeal against sentence.

    Facts: The victim was the applicant’s wife. Throughout the marriage, there were episodes where the applicant drank to excess and subjected the victim to mental and physical abuse. The victim obtained an intervention order against the applicant. The applicant stabbed the victim in the throat on a train. The applicant was sentenced to 20 years imprisonment, with a non-parole period of 15 years.

    Issue/s: The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was allowed. The sentence imposed on the applicant was outside the range of sentences imposed for comparable offences. In re-sentencing the applicant, Phillips CJ stated at 7:

    ‘[T]here appears to be an implication in counsel’s submissions on behalf of the applicant that, in some way, cases involving a murder arising out of a relationship, or arising out of a domestic situation are less heinous as a class than other types. There is no doubt in my mind that the court must set its face against such an implication’.

Supreme Court

  • Re Kele [2018] VSC 159 (10 April 2018) – Supreme Court of Victoria
    Application for bail’ – ‘Breach of protection order’ – ‘Exposing children to domestic and family violence’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Show cause

    Charges: Contravention of family violence intervention order x 1; Intending to cause harm or fear x 1; Unlawful assault x 2; Home invasion x 1; Aggravated burglary x 1; Theft x 2.

    Case type: Application for bail.

    Facts: The applicant was arrested for a family violence incident and an unrelated home invasion ([1]). The family violence incident occurred between the applicant and the victim, who were in a relationship for 4 years and had a 22-month-old son ([7]). The applicant accused the victim of changing his Centrelink account details and cheating on him. He grabbed the victim by her arms, pushed her to the ground, and hit her face, head and hands. The victim left the house and called for help with a payphone ([8]-[9]). The applicant pleaded guilty to one charge of assault and one charge of breaching a family violence intervention order.

    Issues: Whether bail should be granted. Because the home invasion charge involved the use of an offensive weapon, the applicant was required to show cause why his detention in custody is not justified, pursuant to s 4(4)(c) of the Bail Act 1977 ([23]).

    Decision and Reasoning: Bail was granted.

    Champion J considered the following factors in favour of the applicant:

    • the applicant’s youth, being 21 years old ([44]);
    • the applicant’s relative lack of criminal history ([45]);
    • limited instances of domestic violence ([46]);
    • the defence submitted that the likely penalty for the family violence incident would be higher than the time the applicant has already spent in custody ([48]);
    • the likely of up to 12 months delay in having the matter heard in the County Court ([50]);
    • the victim had moved to a secret location ([54]); and
    • if the applicant was remanded in custody, he would not be able to access a men’s behaviour change program ([54]).

    Champion J considered the following factors against the applicant:

    • the prosecution submitted that the penalty for the breach of domestic violence order would include imprisonment, because it was a serious breach and occurred in front of their child ([56]); and
    • the applicant did not have accommodation ([61]).

    Champion J considered that the applicant has shown cause why his detention in custody is not justified ([62]). His Honour remarked that while the level of violence towards the victim was unacceptable, it did not involve the use of a weapon, threats to kill or the infliction of significant physical injury ([64]).

  • Director of Public Prosecutions (Vic) v Walker [2018] VSC 83 (28 March 2018) – Supreme Court of Victoria
    Imprisonment’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘Perpetrator a battered woman’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Manslaughter x 1.

    Case type: Sentence.

    Facts: The defendant and deceased were in a relationship for 2 years. There was a history of arguments, physical violence and cannabis and methylamphetamine use ([2]-[7]). On the day of the offence, the defendant and deceased argued for 3 hours, during which the defendant tried to leave the house, and the deceased dragged her back inside ([9]). The defendant stated in later interviews that the deceased would not let the defendant leave and goaded her into stabbing him ([25]). By the time the police attended, the defendant had stabbed the deceased ([11]-[12]).

    Issues: Sentence to be imposed.

    Decision and Reasoning: Hollingworth J imposed a head sentence of 7 years’ imprisonment with a non-parole period of 4 years ([50]).

    Her Honour had regard to the fact that the defendant had a limited criminal history and displayed some evidence of post-traumatic stress disorder and major depressive disorder ([40]). Her Honour also reduced the sentence for the defendant’s early guilty plea: the defendant was charged with murder but pleaded guilty to manslaughter a month before her trial was due to begin ([43], [50]). The defendant displayed remorse for her actions ([45]) and had begun counselling in custody ([46]).

  • Re Williams [2018] VSC 76 (23 February 2018) – Supreme Court of Victoria
    Application for bail’ – ‘Challenge to complainant's evidence’ – ‘Physical violence and harm’ – ‘Show cause’ – ‘Word-on-word case

    Charges: Intentionally causing injury x 3; Recklessly causing injury x 5; Unlawful assault x 3; Contravening family violence intervention order x 3.

    Case type: Bail application.

    Facts: The applicant and the complainant had been in a relationship for 10 years and had 2 children ([2]). The complainant alleged three events forming the basis of the charges. First, the applicant kicked and punched her, drove her to the hospital, dragged her from the car and left her at the entrance. Second, the applicant chased her in his car, dragged her out of her car, and punched her. Third, the applicant forced his way into her house, urinated on her, and punched her ([14]-[22]).

    Issues: The applicant was required to ‘show cause why his detention was not justified’, under s 4(4)(ba)(i) of the Bail Act 1977 (Vic).

    Decision and Reasoning: Bail was refused.

    The applicant argued that he was entitled to bail because he had stable accommodation, was willing to comply with strict bail conditions, and that the prosecution case was not strong because it relied mostly upon the complainant’s evidence. The applicant intended to challenge the credibility of the complainant ([24]). The prosecution argued that the applicant had a lengthy criminal history including violence, has shown disregard for previous family violence intervention orders, and has committed offences while on bail ([47]-[48]).

    Justice Champion at [57]-[59] discussed the applicant’s contention that the prosecution case is weak because it relies on the complainant’s evidence:

    … the prosecution points out that cases involving family violence frequently involve ‘word on word’ evidence and that this is often the very nature of these types of cases. The prosecution submits that this circumstance does not of itself warrant the prosecution case as being regarded as weak, or without merit.

    It is clear enough that the case will be strongly defended, and that there are arguable issues to be decided. That said, it was not submitted to me that the case should be regarded as inherently weak.

    From what I have been able to glean in this application I cannot conclude that the prosecution case is weak.

  • Director of Public Prosecutions v Paulino (Sentence) [2017] VSC 794 (21 December 2017) – Supreme Court of Victoria
    Current sentencing practices’ – ‘Post-separation violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Stalking’ – ‘Threats to kill’ – ‘Victorian systemic review into family violence deaths unit’ – ‘Women

    Charges: Murder x 1.

    Appeal type: Sentence.

    Facts: The defendant and victim were estranged. The defendant made open threats to kill the deceased, slut-shamed her to her family and friends, nuisance-calling her at work, and following her and her new boyfriend. The deceased took out a protection order against the defendant. Shortly before a Family Court hearing, she was stabbed by the defendant, and was found dead by her sons ([7]). At a pre-trial hearing, relationship evidence was admitted (see DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017)) After a jury trial, the defendant was found guilty.

    Justice Bell referred the case to the Victorian Systemic Review into Family Violence Deaths unit at the Coroners Court. The function of the unit includes identifying risks associated with deaths resulting from family violence. His Honour highlighted features of this case, including that:

    • the murder was preceded by threats to kill, assassination and blaming directed towards the deceased that were open and persistent;
    • there was an intervention order on foot, which was not a sufficient deterrent;
    • Family Court proceedings, initiated by the deceased, had reached a critical stage;
    • the parties had separated; and
    • the deceased had expressed a fear that her husband would kill her.

    Issues: Sentence to be imposed.

    Decision and Reasoning: The defendant was sentenced to a period of 30 years with a non-parole period of 25 years.

    Justice Bell placed importance on the fact that current sentencing practices being more condemnatory of men murdering women ([25]), the circumstances of stalking and breaches of intervention orders leading up to the murder ([27]), and the murder was premeditated ([29]).

  • Re Kumar [2017] VSC 742 (6 December 2017) – Supreme Court of Victoria
    Bail’ – ‘Bail conditions not sufficient’ – ‘Bail refused’ – ‘Immigration detention’ – ‘Past breaches of protection orders’ – ‘Protection orders’ – ‘Show cause

    Charges: Contravention of a family violence safety notice intending to cause harm or fear for safety x 1; Destroying or damaging property x 1; Aggravated burglary x 1; Attempted murder x 1; Intentionally causing serious injury x 1; and Recklessly causing serious injury x 1.

    Case type: Bail application.

    Facts: The applicant attended the house of his former partner and her new partner (the victim), and forced his way in by breaking the window ([7]-[8]). The applicant stabbed the victim’s head and hands with a piece of broken glass, leaving him with permanent injuries ([9]).

    Issues: The applicant was required to ‘show cause why his detention was not justified’, under various sub-sections of s 4(4) of the Bail Act 1977 (Vic). For example, the appellant was charged with contravening a family safety notice in which he was alleged to have used violence and, in the previous 10 years, had been found guilty of the same charge (s 4(4)(ba)(i)) ([12])..

    Decision and Reasoning: Bail was refused.

    The applicant had argued that because he has been given notice that he is an unlawful non-citizen, he would be put straight into immigration detention and therefore would not pose a risk of committing another offence ([14]).

    Priest JA held that there was an unacceptable risk that the applicant would commit further offences against his former partners. Most importantly, the applicant had a history of breaching family violence orders ([20]). Therefore, the risk of the applicant committing further violence could not be mitigated by strict bail conditions ([21]). Furthermore, there was no guarantee that the applicant would be put straight into immigration detention ([17], [20]).

  • Re Easson [2017] VSC 565 (20 September 2017) – Supreme Court of Victoria
    Bail’ – ‘Firearms’ – ‘Kidnapping’ – ‘Show cause’ – ‘Strangulation’ – ‘Strict conditions’ – ‘Threats

    Charges: Intentionally causing injury x 1; Recklessly causing injury x 1; Unlawful imprisonment x 1; Unlawful assault x 3; Unlawful assault using an instrument x 2; Unlawful assault by kicking x 1; Threatening to inflict serious injury x 1; Unlawful assault with a weapon (a steak knife) x 1; Making a threat to kill x 2; Kidnapping x 1; Common law assault x 2; Reckless conduct placing a person in danger of death x 1.

    Case type: Bail application.

    Facts: All charges related to one 12-hour period, where the applicant allegedly assaulted his wife by: banging her head on the floor and striking her with an iron; punching, kicking and strangling her with a lamp cord; and threatening to take her somewhere to be raped, and threatening to kill her while holding a steak knife ([6]).

    Issues: Since the applicant was charged with an indictable offence involving the use of a weapon, the issue was whether he could ‘show cause’ why his detention was not justified (s 4(4)(c) Bail Act 1977 (Vic)) ([3]).

    Decision and Reasoning: Bail was granted, with strict conditions. Significant factors against granting the applicant bail included: the charges are serious; and it could not be said granting bail would pose no risk to the complainant ([14]). On the other hand, significant factors in favour of granting bail to the applicant were: he had no criminal history; and the risk to the complainant could be ameliorated by strict conditions such as requiring him to reside with his mother, engage in drug treatment, and removing his access to firearms ([14], set out in full at [17]). Justice Beach stated: ‘There is considerable merit (and potential benefit for both the applicant and the wider community) in addressing the applicant’s drug, and any mental health, issues now rather than later’ ([15]).

  • Director of Public Prosecutions (Victoria) v Turner [2017] VSC 358 (23 June 2017) – Supreme Court of Victoria
    Respect of women’ – ‘Role of sentencing

    Charges: Manslaughter x 1; Breach of domestic violence order x 1.

    Case type: Sentence.

    Facts: The defendant and deceased had been in a relationship. After consuming alcohol and methamphetamines, the defendant beat the deceased in their home with punches, kicks, and hit the soles of her feet with a hammer ([5]). The deceased was discharged from hospital, but died of internal bleeding the next day ([8]-[9]). The defendant pleaded guilty to manslaughter.

    Issues: Sentence to be imposed.

    Decision and Reasoning: Bell J imposed a sentence of 12 years’ imprisonment, with a non-parole period of 9 years. His Honour considered that the contravention of a domestic violence order made it a serious example of manslaughter ([32]).

    Bell J at [33]:

    “Denunciation and specific and general deterrence are sentencing principles through which the law gives effect to the fundamental purpose of protecting individuals and the community from crime. Ms Cay and all other women have an inviolable human right to life, to equality – not just the appearance of equality but to real equality, to physical and emotional integrity, to respect for their dignity and personal autonomy, to loving relationships with children and others, and to freedom from fear of physical or mental harm. They look to the law for protection from men who would perpetrate crimes of assault or homicide upon them in a domestic setting by reason of failing to control their anger, aggression and rage. While the police cannot be present in every home on every occasion of risk, the values and standards of human behaviour that the criminal law demands are omnipresent. The courts must respond appropriately through the sentencing process when those standards are severely or seriously breached, as they have been in this case, for this vindicates the individual interests of victims in seeing that perpetrators are brought to justice, as well as the general interests of the community in seeing that justice is so done, and also performs the important educative function of positively influencing how the community, and especially men, value, respect and treat women.”

    His Honour thought that the defendant had good prospects of rehabilitation, but the defendant’s efforts to stop drinking was not a mitigating factor ([27-[28]).

  • DPP (Victoria) v Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017) – Supreme Court of Victoria
    Admissibility’ – ‘Relationship evidence

    Charges: Murder.

    Case type: Pre-trial hearing.

    Facts: The defendant and deceased had been in a relationship, and had two children ([3]). They separated acrimoniously in 2010 ([3]). The defendant was accused of murdering the deceased. The prosecution wished to lead evidence relating to the relationship between the accused and deceased ([4]) in order to establish that the accused’s enmity and hatred towards the deceased was the motive for the murder ([5]). The evidence included: threats made by the defendant; relationship evidence; the fact that the accused had an intervention order taken out against him by the deceased; and the accused’s actions in relation to a pornographic video allegedly depicting the deceased.

    Issues: Whether the ‘relationship evidence’ should be admitted.

    Decision and Reasoning: Justice Bell set out the relevant principles in relation to the Court’s mandatory duty to exclude evidence where the probative value is outweighed by the danger of unfair prejudice to the accused (see [33]-[36]). In this context, evidence of a poor relationship between the accused and deceased has been admitted where that evidence may be relevant to whether the accused killed the deceased and whether the accused had a motive to do so ([37]).

    Threats

    The deceased’s statements about her fear of the accused (for example, that if something happened to her, it would be because of the accused) were not admissible. In deciding the admissibility of a victim’s fear of the accused perpetrator, the issue is ‘whether the evidence of the deceased’s fear of the accused was relevant to the probability of the existence of a fact in issue, usually whether the accused had a motive for killing, and actually did kill, the deceased’ ([57]). However, the statements were merely evidence of her subjective state of mind, not the accused’s ([70]). Further, the content and volume of evidence would be highly prejudicial to the accused ([71]).

    By contrast, evidence of threats made by the accused to kill the deceased and her family were admissible, because it was relevant to the accused’s state of mind towards the deceased ([76]).

    Relationship evidence

    Evidence of the defendant’s feelings of hatred and enmity towards the deceased was admissible ([42]-[43]). However, most the evidence of the state of their marriage before 2010 was not relevant ([41], [51]). Bell J held that the jury should be told generally that the marriage was unhappy ([85]-[87]), but not the precise details of the aggressive behaviour of the accused ([88]).

    Intervention order

    Evidence of the intervention order was admissible as a feature of the relationship leading up to the death of the deceased ([91]). There was a danger of unfair prejudice to the accused, but that could be mitigated by proper instruction ([92]).

    Pornographic video

    The accused had alleged that the deceased had participated in a pornographic video, and had shown his colleagues and the deceased’s family ([94]). Evidence of the video and the accused’s actions were admissible to demonstrate the extremely negative attitude of the accused towards the deceased ([96]).

  • DPP v McDermott (Rulings Nos 10 & 11) [2016] VSC 822 (27 April 2016) – Supreme Court of Victoria
    Anti-tendency warning’ – ‘Murder’ – ‘Prejudicial evidence’ – ‘Propensity evidence jury discharge

    Charges: Murder.

    Case type: Application to discharge jury.

    Facts: The defendant was on trial for stabbing his former partner. His son gave evidence that the defendant usually carried a knife. Defence counsel applied to discharge the jury on the ground that the ‘propensity evidence’ was highly inflammatory and could not be cured by a direction ([2]). The next day, a newspaper article was published about the son’s evidence ([35]-[36]).

    Issues: Whether the jury should be discharged.

    Decision and Reasoning: Jane Dixon J declined to discharge the jury ([31], [45]). Her Honour considered that any prejudice to the accused could be cured by a direction to the jury ([31]). Her Honour gave two anti-tendency warnings ([35], [43]), and intended to give another curative direction in her Honour’s final address ([44]).

  • The Queen v Cook [2015] VSC 406 (19 August 2015) – Supreme Court of Victoria
    Denunciation’ – ‘Deterrence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Murder.

    Hearing: Sentence.

    Facts: The victim was the male offender’s de facto wife. After drinking 15 beers at their house party, the offender started punching and pushing the victim. A friend tried to intervene but was pushed away. He then picked up a steel-framed chair and hit the victim with such force that that one of the legs went through her skin and bone and penetrated her brain.

    Decision and Reasoning: Elliot J sentenced the offender to 21 years and six months imprisonment with a non-parole period of 17 years and six months. In passing this sentence, His Honour made some general observations on domestic violence at [28]-[30]:

    ‘The courts clearly recognise that they must forcefully condemn domestic violence (See, e.g., R v Earl [2008] VSCA 162, [23]). When domestic violence manifests in murderous conduct, that conduct must be denounced in the strongest terms (Felicite v The Queen (2011) 37 VR 329, [20]; Portelli v The Queen [2015] VSCA 159, [30]).

    Moreover, general and specific deterrence have special significance in cases involving domestic violence. In such circumstances, general deterrence is more important as “[t]he victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities” (Pasinis v The Queen [2014] VSCA 97, [57]).

    Also, specific deterrence is often more important, as it is in this case, because “women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously”’ (Pasinis v The Queen [2014] VSCA 97, [53]).

  • DPP v Williams [2014] VSC 304 (27 June 2014) – Supreme Court of Victoria
    Aggravating factor’ – ‘Defensive homicide’ – ‘Emotional and psychological abuse’ – ‘Evidence’ – ‘Expert evidence - academic’ – ‘History of violence’ – ‘Lack of disclosure of family violence’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing

    Charges: Defensive Homicide.

    Hearing: Sentence.

    Facts: The defendant was charged with murdering her de facto partner but was found guilty of defensive homicide. She struck the deceased to the head 16 times with an axe. She buried the deceased’s body in the backyard and lied about his whereabouts to family and friends for more than four years, claiming that he had gone interstate. The defendant gave an account of a violent fight which led to the deceased’s death which included the deceased taunting and goading the defendant. She attested to a long history of family violence by the deceased.

    Issue/s: The appropriate sentence to be imposed.

    Decision and Reasoning: The defendant was sentenced to 8 years’ imprisonment, with a non-parole period of 5 years. In finding the defendant guilty of defensive homicide, the jury had to be satisfied that the killing took place in the context of a serious history of family violence. Hollingworth J noted at [20] that, while there was no evidence that the defendant or her children had ever complained about family violence, this is not uncommon.

    The deceased was the dominant person in the relationship. He had a long history of violence and drank heavily. His behaviour towards the defendant ‘over many years, was abusive, belittling and controlling, and involved both physical and psychological abuse’ ([26]). Her Honour noted, ‘The final act or acts of the deceased may well be relatively minor, if looked at in isolation; but what happens in such cases is that the victim of family violence finally reaches a point of explosive violence, in response to yet another episode of being attacked. In such a case, it is not uncommon for the accused to inflict violence that is completely disproportionate to the immediate harm or threatened harm from the deceased’ ([32]).

    The Court heard (largely unchallenged) expert evidence from Professor Patricia Easteal regarding the complex dynamics of family violence, the reasons why women often do not leave violent partners and the use of weapons by female victims of family violence against male partners ([33]-[34]). Given this evidence, Her Honour noted that while ordinarily, striking 16 blows with an axe in response to a minor physical and verbal attack by an unarmed attacker would seem disproportionate, this may not be the correct conclusion in family violence cases involving a female offender ([36]). However, aggravating factors included the defendant’s deceit and a lack of remorse. Her offending had a large impact on the deceased’s family.
  • DPP v Bracken [2014] VSC 94 (12 February 2014) – Supreme Court of Victoria
    Emotional and psychological abuse’ – ‘Evidence’ – ‘Expert evidence’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Self-defence’ – ‘Social framework evidence

    Charges: Murder.

    Proceeding: Pre-trial hearing.

    Facts: The defendant was on trial for the murder of his de facto partner. He argued that he shot his de facto partner in self-defence. He alleged that his partner perpetrated psychological and physical violence against him over the course of the relationship. He successfully argued that the killing was in self-defence and was thus acquitted.

    Issue/s: One of the issues concerned whether evidence of family violence or ‘social framework’ evidence within the meaning of the then s 9AH of the Crimes Act 1958 (Vic) was admissible.

    Decision and reasoning: The evidence was admitted. Maxwell P held that family violence was alleged as required by the section. As such, evidence such as ‘the cumulative effect, including psychological effect, on the person or a family member of (family) violence’ was relevant in determining whether self-defence was made out. Significantly, his Honour held that, ‘There will be no basis for an objection on grounds of relevance…’, though there could be other available grounds of objection (see at [16]).
  • DPP v Neve [2013] VSC 488 (13 September 2013) – Supreme Court of Victoria
    Criminal damage’ – ‘Denunciation’ – ‘Deterrence’ – ‘Intentionally causing injury’ – ‘Make threat to kill’ – ‘Physical violence and harm’ – ‘Reckless conduct endangering life’ – ‘Sentencing

    Charge/s: Criminal damage, make threat to kill x 2, reckless conduct endangering life, intentionally causing injury.

    Hearing: Sentence hearing.

    Facts: The offender and the complainant were married. After an argument, the offender fatally shot the complainant’s dog. He then reloaded the rifle and began chasing the complainant as she ran towards the road yelling, ‘I’m going to fucking kill you…You’re fucked’. The complainant stopped running and tried to negotiate with the offender. She managed to grab hold of the gun and forced the applicant to fire both of the shots from the rifle. The offender then pushed her over and started punching her repeatedly in the head and chest, trying to reach other cartridges he had in his pocket. The complainant managed to get up and flag the attention of a passerby.

    Decision and Reasoning: The offender was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two and a half years. In passing sentence, Bell J noted at [67]:

    ‘Denunciation of your crimes and general deterrence are powerful sentencing considerations in your case, leading to an immediate sentence of imprisonment. Ms Fuller was your wife. You are guilty of committing appalling domestic violence towards her. Many of your actions were not only violent but calculated to belittle and demean her and place her in abject fear. The double barrel shotgun was a common feature of all five charges and it was loaded when the first four offences were committed. This criminal conduct deserves the strongest condemnation of the court. Others must be made to appreciate the consequences of committing crimes of this nature’.

  • DPP v Huynh [2010] VSC 37 (19 February 2010) – Supreme Court of Victoria
    Denunciation’ – ‘Deterrence’ – ‘Forcible confinement’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Violation of trust between husband and wife

    Charge/s: Intentionally causing serious injury.

    Hearing: Sentence hearing.

    Facts: The offender and the victim, his wife, came to Australia from Vietnam on tourist visas. After the offender became suspicious the victim was seeing another man, he stabbed the victim multiple times in the chest and abdomen.

    Decision and Reasoning: In sentencing the offender, Curtain J took into account the offender’s plea of guilty, his lack of prior criminal history, the fact that the offender would be separated from his children for a number of years, and that the offender was remorseful and distressed by his conduct. Her Honour also accepted that the offender’s prospects for rehabilitation were favourable. However, in opposition to these factors, Curtain J held at [42]-[43]:

    ‘Against these matters stand the nature and gravity of the offence here committed. This is a serious example of a serious offence. It involves the infliction of serious violence upon your wife which is a gross breach of the trust which reposes between husband and wife. I take into account also the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and also give due weight to special and general deterrence.

    Although such considerations are to be sensibly moderated, nonetheless, the sentence imposed must signal to the community that acts of violence, including domestic violence, are not tolerated and warrant condign punishment’.

    In the circumstances, a sentence of seven years imprisonment with a non-parole period of five years was appropriate.

  • R v Gojanovic [2005] VSC 97 (27 January 2005) – Supreme Court of Victoria
    Murder’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentence hearing.

    Facts: After being in an ‘on and off relationship’ for some years, the male offender and the female victim separated. One evening, the offender entered the victim’s home and battered her repeatedly on the head with a rubber headed mallet. He then took a dressing gown cord and strangled her to death.

    Decision and Reasoning: Osborn J noted that while the killing was not premeditated and it occurred in a state of high emotion arising out of the disintegration of the offender’s relationship with the victim, there were nevertheless five seriously aggravating circumstances associated with this crime. First, the killing was brutal, protracted and vicious. Second, the killing was selfishly callous. The offender knew he was not only taking the life of another individual but also taking away the mother of four innocent children. Third, the killing took place in what should have been the safety of the deceased’s own home. Four, a substantial penalty was warranted in light of the need for general deterrence. As per His Honour at [31]:

    ‘The Court and the community which it represents cannot tolerate resort to violence, let alone homicidal violence, in circumstances of this kind. The Court must send a clear message to estranged parents that they cannot act as you did and expect to receive other than a penalty which affirms the sanctity of individual human life and condemns in the strongest terms the deliberate taking of another life even in circumstances of strong emotion’.

    Finally, the offender displayed a total lack of remorse for his conduct. The offender was sentenced to 20 years imprisonment, with a non-parole period of 15 years.

    See also R v Gojanovic (No 2) [2007] VSCA 153 (14 August 2007).

  • R v Kibble [2002] VSC 52 (1 March 2002) – Supreme Court of Victoria
    Intentionally cause serious injury’ – ‘Physical violence and harm’ – ‘Relevance of prior relationship’ – ‘Right to leave a relationship’ – ‘Sentencing

    Charge/s: Intentionally cause serious injury.

    Hearing: Sentence hearing.

    Facts: The female victim ended her relationship with the male offender and gave him money to fly back to London, where he was from. Upon returning to England, the offender felt humiliated and angry and decided to return to Australia to punish the victim. He purchased a rubber mallet to break into the victim’s house and a roll of duct tape. When the victim arrived home, the offender started stabbing her with a knife. She managed to fight him off and called the police.

    Decision and Reasoning: This offence was serious. As per Gillard J at [57]:

    ‘A person in a relationship with another has every right to terminate the relationship and walk away without fear of reprisal. Too often, upon the termination of a relationship, the physically stronger person pursues a course of conduct of harassment and violence towards the other person. That is what has happened here. Your conduct was serious and has had a long-lasting, emotional effect upon the victim. The Legislature views any offence under s16 as serious. The circumstances surrounding the commission of this offence supports that conclusion and you are guilty of a high level of criminality’.

    There were a number of factors that aggravated the offending namely that the conduct was premeditated, the offender waited for the victim in her home, his conduct caused the victim terror and fear, and the conduct had a long-lasting emotional effect on the victim. His Honour was satisfied that specific deterrence was not warranted on the facts but that general deterrence was important i.e. the sentence had to send a message to those who are like-minded to use their superior physical strength to punish a partner in a relationship after it has terminated.

    His Honour also took into account a number of mitigating factors namely, the offender frankly admitted his involved, he pleaded guilty at the first opportunity, there was no criminal history, the physical injuries were at the lower end of the scale, the sentence would be onerous because the offender was English, the offence was out of character, it was unlikely he would reoffend, and his prospects for rehabilitation were good. The offender was sentenced to six years imprisonment with a non-parole period of four years.

  • DPP v Williamson [2000] VSC 115 (31 March 2000) – Supreme Court of Victoria
    Murder’ – ‘Parents who kill children’ – ‘Physical violence and harm’ – ‘Relationship killings’ – ‘Sentencing

    Charge/s: Murder.

    Hearing: Sentence hearing.

    Facts: The offender and a young woman, Ms Park, had been in a relationship and had a child together, the victim. This relationship was characterised by the offender’s jealousy and possessiveness towards Ms Park and the victim. Eight months after the victim was born, Ms Park left the relationship. The offender resented his obligation to financially support the child and began to deeply resent Ms Park. Four months before the victim’s death, the offender began telling people he was going to kill himself and his son, to take him away from Ms Park. One night, the offender took the child to a hotel and smothered him. He then wrote a letter to Ms Park telling her he had killed the victim.

    Decision and Reasoning: In sentencing, Cummins J took into account, as mitigating factors, the offender’s poor family situation, the burdensome quality of imprisonment to the offender, his age, his lack of prior convictions and the rehabilitative courses he undertook while in custody. However, His Honour stated at [25]:

    ‘Of all the rights of the child, the most fundamental right of all is the right to life. It is necessary that parents and others in charge of children unmistakably understand that child abuse will be met by the full force of the law. The intentional killing of a child by a person without psychiatric illness or other significantly mitigating factor will ordinarily be met with life imprisonment of the offender’.

    Cummins J also noted the significant importance of condemnation, punishment, general deterrence and specific deterrence. The offender was sentenced to life imprisonment with a non-parole period of 24 years.