Court of Appeal
Sturt (a pseudonym) v The King [2024] VSCA 102 (20 May 2024) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘Sexual and reproductive abuse’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Separation ’ – ‘Evidence ’ – ‘Admission’ – ‘Rape’ – ‘Jury directions’
Charges: Rape x 2; sexual assault x 1.
Proceedings: Appeal against conviction.
Facts: Following a trial by jury, the male appellant was found guilty and sentenced to 8 years and 4 months’ imprisonment for the offences of rape and sexual assault. The complainant was the appellant’s wife.
At trial, the prosecution led evidence from the complainant that, following the second incident of rape, the appellant stated, “I shouldn’t have done that”. [5] Neither party made any request pursuant to the Jury Directions Act 2015 for a jury direction concerning the relevance or use of this statement.
Grounds of Appeal: The appellant proposed five grounds of appeal, the second of which concerned the prosecution’s use of the appellant’s statement:
•
The learned Judge erred in failing to direct the jury not to engage in impermissible reasoning relating to the statement “I shouldn’t have done that” resulting in a substantial miscarriage of justice.
Decision and Reasoning: Appeal allowed. The Court (Macauley, Kaye and T Forrest JJA) held that it was mandatory for the trial judge to give the jury the direction required under s 21 of the Jury Directions Act 2015, irrespective of whether either party requested or failed to request it. [33] This is because the statement was ‘capable of being construed as an implied admission’, the prosecution sought to use the evidence to establish that the appellant ‘had no reasonable belief in the complainant’s consent’, and the jury’s acceptance of the admission on one occasion had the capacity to influence the jury’s view about the appellant’s belief about consent in all instances [30]–[32].
The omission of a jury direction was material: ‘Evidence as to the state of mind of the appellant was, apart from the impugned statement, entirely a matter of inference from the circumstances of and surrounding the events, in the context of the nature of the relationship between the parties’ [35]
Accordingly, the judge’s failure to direct the jury ‘deprived the appellant of a most significant mandatory safeguard in the context of the trial’ [37]
Dragovic v The King [2024] VSCA 95 (16 May 2024) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Protection order’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse’ – ‘Attempt to pervert court of justice ’ – ‘Damaging property ’ – ‘threats’
Charges: criminal damage x 1; common assault x 6; persistent contravention of protection order x 1; attempting to pervert the course of justice x 1.
Proceedings: Appeal against sentence.
Facts: On 28 November 2023, the male applicant was sentenced to two years’ imprisonment after pleading guilty to all charged offences. The primary complainant was the applicant’s ‘on and off’ again intimate female partner. The applicant physically assaulted the complainant on several occasions (e.g., punching, kicking, and throwing her on multiple occasions).
The applicant was arrested and remanded in custody. The complainant sought a protection order against the applicant, prohibiting the applicant from contacting her. Two months later, the complainant sought to withdraw her complaint of assault(s) against the applicant, stating that the applicant had contacted her from prison and threatening her to ‘get rid’ of the case. [10]
Grounds of Appeal: The applicant sought leave to appeal against on a single proposed ground:
•
The sentencing Judge erred in imposing a sentence in respect of charges 2–7 (common assault) and making orders for cumulation in respect of the remaining offences, that was manifestly excessive having regard to all relevant circumstances.[3]
Decision and Reasoning: Leave to appeal refused. The Court (Kennedy and T Forrest JJA) held the aggregated sentence of 16 months’ for the common assault charges was not manifestly excessive. The Court emphasised the inherent difficulty in establishing tis particular ground, and the aggravating fact of the assaults being committed against the applicant’s partner.
Any ground of manifest excess is difficult to establish. An applicant must demonstrate that the sentence or sentences imposed are ‘wholly outside the range of sentencing options available’ in the reasonable exercise of sentencing discretion [29]
[T]he applicant involved himself in serious violence against his intimate partner. Violence towards an intimate partner can never be justified but in this case, there seems little if any reason for this sustained course of violence. The applicant’s apparent grievance seems to be that the complainant, having cared for him during his illness, called an ambulance against his wishes. She then had the temerity to leave his presence for a few hours [31]
Those (mostly) men who elect to engage in violent activity within the home can expect little sympathy from sentencing courts [33]
Gardner (a pseudonym) v The King [2024] VSCA 83 (30 April 2024) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘ Physical violence and harm’ – ‘Evidence’ – ‘People with disability and impairment ’
Charges: false imprisonment x 1; rape x 4.
Proceedings: Application for an extension of time to seek leave to appeal against conviction.
Facts: Following a trial by jury, the male applicant was found guilty of one count of false imprisonment and four counts of rape. The victim was the male applicant’s long-term female partner of 18 years (although the par separated for a period of three years). [2]; [8] The offences occurred in one instance. The prosecution case was that the applicant restrained the complainant to the bed and penetrated her four times, all without consent. [2]
The primary evidence was given by the complainant, who was opined by a clinical neuropsychologist to have a tendency to ‘exaggerate and embellish’: a tendency exacerbated by the removal of a large tumour from the complainant’s brain in 2001. [4]
Grounds of Appeal: The applicant sought leave to appeal against on two grounds:
•
The guilty verdicts were unreasonable or could not be supported by the available evidence; and
•
The guilty verdict pertaining to the charge of penile penetration was unreasonable, as the complainant’s evidence indicated uncertainty as to whether the applicant had in fact penetrated her anus [6]
Decision and Reasoning: Application dismissed. The Court (Emerton P, McLeish and Macaulay JA) held the complainant to be an ‘unreliable witness’ in many respects. [75]
The complainant was clearly ‘prone to embellishment’ and gave ‘conflicting evidence’ on the nature and extent of digital penetrations, such that an unreliable evidence direction under s 32 of the Jury Directions Act was appropriate. [76]
Despite these matters, the jury accepted the complainant’s evidence as ‘credible and reliable’. [79] Accordingly, the question is ‘whether the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy[ies] in the complainant’s evidence’. [85]
The evidence of the clinical neuropsychologist might have suggested that the jury ought rationally to have doubted the applicant’s guilt. However, the Court did not accept that the jury have must have done so. [93] The jury did not have to accept the applicant’s account of consensual activity. Further, the evidence of the complainant was corroborated by medical evidence, concerning the nature of her injuries. [94]
Russo (a pseudonym) v The King [2024] VSCA 40 (22 March 2024) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘ Physical violence and harm’ – ‘Protection order’ – ‘Threat to kill ’ – ‘ Economic and financial abuse ’ – ‘ Emotional and psychological abuse ’ – ‘ Exposing children to domestic and family violence ’ – ‘ separation ’ – ‘ threats’
Charges: common assault x 9; causing injury intentionally x 3; conduct endangering persons x 1; threat to kill x 2; persistent contravention of protection order x 3.
Proceedings: Application to leave to appeal against sentence.
Facts: The male applicant pleaded guilty in the County Court to several offences committed against his former wife. [1] The applicant was sentenced to 12 years’ imprisonment. Over the course of their relationship (2012–2017), the applicant was physically violent to the complainant, and her son from a previous relationship. [5]–[6]
This violence persisted after the complainant sought a protection order against the complainant in 2014. The applicant assaulted the complainant after she communicated her decision to terminate the relationship and her pregnancy due to the ‘violent nature of the relationship’ and choked her on another occasion when she re-attempted to end the relationship. [7]–[8]. Further, while serving time in prison, the applicant contacted the complainant 281 times, with 100 calls involving ‘economic, electronic, financial and psychological and emotional abuse’. [8]
Grounds of Appeal: The applicant sought leave to appeal against on three grounds:
•
The sentencing judge erred in their approach to the issue of totality by failing to impose appropriate individual sentences;
•
The learned sentencing judge erred in failing to recognise that the applicant’s guilty plea was worthy of additional credit; and
•
The individual charges, total effective sentence and non-parole period are manifestly excessive.
Decision and Reasoning: Leave to appeal refused.
With respect to ground one, the Court (Niall and Boyce JJA) recognised a ‘broad brush’ approach by the sentencing judge in not drawing any ‘fine distinctions … to the imposition of individual sentences on each of the respective charges of common assault, intentionally causing injury and threat to kill’. [35]
Leaving aside whether distinctions in ‘months’ or ‘years’ were in fact made between the separate charges of intentionally causing injury, on the one hand, and the instances of make threat to kill on the other, in circumstances where there were only two instances each of these particular charges, it is difficult to conclude that the circumstances of those charges alone permitted … utilisation of the so-called broad-brush approach [41]
Accordingly, the Court held that a broad-brush approach was inappropriate in this case, with the applicant entitled to have ‘the sentencing discretion brought to bear properly upon each individual charge in the conventional manner’. [45]
With respect to ground two, the Court noted the applicant’s plea was late, indicated on the first morning of the trial after the Crown withdrew a charge of rape. [54] In this capacity, the plea had ‘all the hallmarks of a pragmatic decision taken by the applicant upon the Crown’s decision to withdraw’. [64] Accordingly, the Court dismissed ground two.
Lastly, with respect to ground three, the Court held that there was ‘no reasonable prospect’ that this Court would impose a lesser total effective sentence. [71] This view is informed by the fact that the case concerns family violence. [70]
Dhal v The King [2023] VSCA 289 (29 November 2023) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘ Sentencing’ – ‘Manifesttly excessive’ – ‘Intentionally cause serious injury ’ – ‘ Recklessly cause serious injury ’ – ‘ Physical violence and harm ’ – ‘ Jealousy ’ – ‘ History of domestic and family violence ’ – ‘ separation’
Charges: Intentionally causing serious injury x 1; recklessly causing injury x 1; commit indictable offence whilst on bail x 1; possess a controlled weapon without lawful excuse x 1.
Proceedings: Application for leave to appeal sentence.
Facts: The male applicant pleaded guilty to several offences perpetrated against his former female partner (‘Ms Malith’) and friend. In the days following the end of the relationship, the applicant assaulted Ms Malith and a friend in the gaming room of a hotel, swiping and stabbing both with a knife ([13]–[19]). The applicant received a sentence of 12 years’ imprisonment with a non-parole period of 8 years and 6 months’ imprisonment.
Grounds of Appeal: The applicant sought leave to appeal against the sentence on three grounds:
1.
The sentencing judge erred in finding that the offending was premeditated;
2.
The sentencing judge afforded insufficient weight to the applicant’s ‘deprived’ childhood; and
3.
The sentences imposed on the charges of intentionally causing serious injury, recklessly causing serious injury and the total effective sentence were manifestly excessive [3]
Decision and Reasoning: The Court (Osborn and Whelan JJA) denied the applicant leave to appeal.
First, the Court upheld the trial judge’s assessment of the CCTV footage as making clear the applicant’s determination ‘to attack Ms Malith with knife as he entered the gaming room’ [43].
Second, the Court affirmed the trial judge’s application of the Bugmy principles. Childhood deprivation may reduce moral culpability, but it may also ‘bear upon the weight of other sentencing principles’, including the need for community protection [56]:
[T]his is a case where consideration of the applicant’s deprived background, and the effects of that background on his psychological make-up, particularly insofar as current and former intimate partners are concerned, significantly increases the need for community protection [58]
Lastly, the Court observed the original sentence as appropriate in light of the applicant’s limited prospects of rehabilitation, heightened risk of reoffending and history of violence towards intimate partners:
The evidence reveals he represents a significant risk of violence to intimate partners and former partners in the future. The applicant’s criminal history is more concerning than that in either Packard or Lukudu, particularly in relation to intimate partners and former partners, and he has repeatedly disobeyed intervention orders [66]
The fact that the victim was the former partner of the applicant, and the fact that the applicant has prior convictions for assaults on a partner or former partner, were significant. As this Court said in Smith v The Queen, male violence against women is a ‘scourge of our society’, and those who engage in it ‘should be in no doubt that offending of this kind will attract very heavy sentences’ [67]
The offending in this case visited horrific injuries on a 21-year-old former partner. The applicant was motivated by jealousy and revenge. He used a boning knife. As a result of his work as a butcher, he was familiar with the effect of the use of such a knife [68]
Harlen (A Pseudonym) v The King [2023] VSCA 269 (09 November 2023) – Victorian Court of Appeal
‘Appeal ’ – ‘ Rape’ – ‘Rendency evidence’ – ‘Stalking ’ – ‘ Physical violence and harm ’ – ‘ control ’
Proceedings: Application for leave to appeal an interlocutory decision of the County Court concerning the admissibility of tendency evidence.
Facts: The applicant was charged with several offences, including stalking and rape, arising from ‘the breakdown’ of his relationship with the complainant ([9]–[19]). At pre-trial, the judge allowed the prosecution’s application to adduce tendency evidence to demonstrate the applicant’s willingness to engage in — or to actually engage in — verbal violence and physical violence towards the complainant (and another previous intimate partner) as a ‘means of control’ over them ([2]; [12]–[17]).
Grounds of Appeal: The applicant’s appeal was advanced on the ground that the judge erred in ruling the tendency evidence as disclosed in the ‘Tendency Notice’ was admissible [40]. In particular:
1.
The evidence did support the alleged tendency that the applicant’s alleged conduct was engaged in as ‘a means of control’ ([44]–[45])
2.
The evidence concerning a previous intimate partner was ‘irrelevant’ to the present proceedings ([43]); and
3.
The evidence was ‘not significantly probative’, and if it were, it did not substantially outweigh its prejudicial effect ([46]–[49])
Decision and Reasoning: Leave to appeal refused. The Court (McLeish, Niall and Kennedy JJA) emphasised that a consideration of the admissibility of tendency evidence (as governed by the principles of House v The King) is “fact specific” [69].
The conduct the subject of each charge involves verbal or physical violence undertaken in an effort to control Ms Abbott at the end of her relationship with the applicant during October 2020. We do not consider the concept of “control” lacks substance in this context where ethe conduct evinced a tendency to become threatening or violent so as to regain control during a relationship breakdown.
The evidence was not just relevant … but had a significant value in making more likely the facts making up the other charged offences [73]
The applicant’s tendency to engage in verbal and physical violence as to exercise control (in the non-rape charges) was clearly relevant to whether he might have also sought to manifest physical control, as alleged by the rape charges. His willingness to engage in such verbal and physical violence in the past was also highly relevant to whether he reasonably believed there was consent on the part of Ms Abbott [74]
The Court also upheld the trial judge’s admission of the evidence concerning the former intimate partner:
Although it is not a condition of admission that the tendency evidence have similarities with the conduct in issue, similarities can still have significance provided they are addressed in the manner Hughes requires. In this case, those similarities include that: both women were in an intimate relationship with the applicant which was breaking down; the applicant used aggressive behaviour in an effort to control each women; and threats were made to each woman and/or her family [79]
Headland v The King [2023] VSCA 269 (03 October 2023) – Victorian Court of Appeal
‘Interlocutory Appeal ’ – ‘ Aboriginal and Torres Strait Islander people’ – ‘History of domestic violence’ – ‘Admissions ’ – ‘ Victims as (alleged) perpetrators ’
Charges: Aggravated burglary x 1.
Proceedings: Application for leave to appeal interlocutory decision.
Facts: The Applicant was allegedly complicit in an aggravated burglary committed by her former partner and his accomplice ([6]–[7]). In her record of interview with police, the applicant admitted that she drove her partner (and his accomplice) to the victim’s home and did not protest her involvement in the plan ‘because she still loved’ her former partner [14].
Prior to the empanelment of a jury, the applicant sought the exclusion of admissions contained in the record of interview [2]. The applicant submitted that the truth of any admission made was ‘adversely affected’ by her illicit substance abuse and intoxication in the lead up to, and at the time of, the interview, her cognitive disfunction, Aboriginality and experience of domestic violence [24]. The judge refused this application.
Grounds of Appeal: The applicant appeals the decision via one ground:
1.
When exercising discretion under sections 85 and 90 of the Evidence Act, the judge failed to take into account the applicant’s status as an ‘Aboriginal woman who has been a victim of domestic abuse’ ([4]; [29]–[30])
Decision and Reasoning: Leave to appeal refused. The Court (Emerton P, Priest and Kennedy JJA) affirmed the trial judge’s conclusion that the truth of the admissions was not adversely affected by the circumstances in which the admissions were made [57].
In our opinion, there was nothing in the evidence in this case which would have justified a finding that the applicant was at a disadvantage or was vulnerable by reason of a lack of comprehension of English or for cultural reasons. English was her primary language, and there was nothing in the evidence which might have founded an inference that the applicant might have answered questions “in the way in which they think the questioner wants” [63]
Indeed, having viewed the record of interview ourselves, it is far from obvious to us that the applicant’s cognition is impaired, whether through alcohol consumption, drug use or fatigue (or a combination of factors)’ [71]
Skeates (A Pseudonym) v The King [2023] VSCA 226 (19 September 2023) – Victorian Court of Appeal
‘Appeal against sentence ’ – ‘ Threats’ – ‘Rape’ – ‘Beach of protection order ’ – ‘ History of family violence offending ’ – ‘ Manifest excess ’ – ‘ Gravity of offending ’ – ‘ Miscarriage ’ – ‘ Coercive control ’
Charges: Common assault x 5; intentionally cause injury x 5; recklessly cause injury x 1; threat to inflict serious injury x 1; rape x 1; persistent contravention of a family violence intervention order x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant pleaded guilty to 15 charges across two indictments. The charges concerned threats, various assault offences, rape and breaches of family violence intervention orders committed against four previous intimate partners between July 2016 and September 2019 ([8]–[41]). The applicant received a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years.
Grounds of Appeal: The applicant sought leave to appeal the sentence on the ground that the individual sentences imposed on the charges, and the orders for cumulation between charges and indictments, were manifestly excessive [3].
Decision and Reasoning: Leave to appeal dismissed. The Court (Emerton P, Niall and Taylor JJA) rejected the applicant’s submission that the gravity of his offending ought to be understood by separately measuring the ‘relatively limited physical consequences’ of his assaults [77].
It is incorrect to deconstruct the whole in an attempt to divorce each individual offence from its context. While the degree of physical injury sustained in each assault is relevant, the applicant’s offending must be understood in the context of his persistent perpetration of family violence. His behaviour towards each of the victims was degrading. He exhibited an alarming attitude of ownership and control. He created domestic environments in which there was an ongoing latent threat of physical violence if he was displeased. He was prepared to engage in physical and verbal violence in front of his children. He minimised the harm he caused to his partners. The learned sentencing judge’s characterisation of him as a “serial woman basher” and “a classic example of a perpetrator” was apt [77]
In doing so, the Court affirmed the sentencing judge’s emphasis on general and specific deterrence, along with community protection, ‘as being of primary significance’ in the sentencing determination:
The sentence imposed needed to carry heavy opprobrium of the applicant’s conduct, to both punish him adequately for it and deter him from such conduct in the future, as well as to signal to other family violence perpetrators that such behaviour will not be lightly regarded. Community protection is also a very important consideration, given the applicant’s apparent inability to learn — despite the intervention of the justice system on a number of occasions — that violent, controlling behaviour towards domestic partners will not be tolerated by the community [79]
The Court has “made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable”. The strength of the language used in these statements is not accidental. Family violence is contemptible. It warrants both condemnation and appropriate punishment. [59]
The Court also specified that the gravity of family violence offending is aggravated if ‘it breaches an extant FVIO [ie, prevention order] or is committed in front of children’ [59]. Further, the Court emphasised the multifarious nature of family violence, as constituting more than physical injury:
[T]he seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury. Family violence is now understood — and defined in law — to encompass behaviour that is physically, sexually, emotionally, psychologically and economically abusive or threatening or coercive, even if such behaviour does not constitute a criminal offence. That kind of behaviour produces situations where people disproportionately women, live in “real and justified fear of men who are, or were, their intimate partners”. It produces a domestic atmosphere steeped in dread. It robs victims of capacity and agency and also engenders shame. [61]
DPP v Cormick [2023] VSCA 186 (15 August 2023) – Victorian Court of Appeal
‘Application for leave to appeal on a question of law ’ – ‘ Beach of protection order ’ – ‘ Emotional and psychological abuse ’ – ‘ Protection order ’ – ‘ Mens rea ’
Charges: Persistent contravention of family violence intervention order x 1; contravention of a family violence intervention order x 4.
Proceedings: Application for leave to appeal on a question of Law.
Facts: The male respondent was subject to an interim protection order on 12 May 2021. The protected person was the respondent’s female former partner, with whom he shared a daughter. On 2 September 2021, the respondent was charged with several contraventions of the order. The alleged contraventions involved committing family violence against the protected person in the form of telephone calls and text messages which amounted to emotionally and psychologically abusive behaviour.
A Magistrate rejected the prosecution’s argument that the contraventions were strict liability offences and determined that the prosecution had been unable to prove the respondent’s intention to breach the order. The DPP unsuccessfully appealed the Magistrate’s decision.
Grounds of Appeal: An appeal was brought by the DPP on the following question of law:
1.
What is the correct relationship between the physical element and the fault element under section 123 of the Family Violence Protection Act 2008 (‘the Act’), and in particular, what is the correct relationship where the form of ‘family violence’ is the type described in section 5(1)(a)(ii) and section 7 of the Act?
Decision and Reasoning: Leave to appeal granted and appeal dismissed.
The majority accepted the DPP’s submission that the language of sections 5 and 7 of the Act separate the act (of family violence) from its consequences [70]. Accordingly, behaviour is abusive ‘because of its effect’ and not because it is intended to be so [70].
The majority (Emerton P and Osborn JA) held that there was nothing in the text of the relevant provisions, construed in the context of the Act as a whole and having regard to its purpose to support the implication of a specific intent to section 123. [77]
As a matter of fact, emotional or psychological abuse can occur without the perpetrator intending to intimidate, harass or offend. [82]
The Act seeks to address a pervasive social problem, the victims of which are vulnerable people caught in dysfunctional domestic arrangements. It therefore seeks to capture forms of abuse that, while subtle, are nonetheless pernicious. Tearing the buds off a rose bush at the family home might be regarded a trivial, but in the context of a family relationship that has broken down and a pronounced power imbalance (which might be based on physical strength or financial control or both), that act might well be perceived as menacing or “offensive”. It is notorious that those who are alleged to have committed family violence offer other reasons for their conduct. In many cases, it will be difficult to ascribe a particular or specific intention to an act which results in emotional or psychological abuse. [96]
The majority granted leave to appeal, but ultimately dismissed the appeal for two reasons:
1.
The prosecution should not be permitted to ‘rerun’ its case before the magistrate on a different basis from that which it contended at first instance (ie, that section 123(2) is a strict liability offence) [101]; and
2.
The order served on the respondent did not explain the extent of the order with respect to emotional and psychological abuse nor that it prohibited the ‘giving of offence whether intentionally or unintentionally’ [102] Justice Forrest agreed with the conclusions of the majority but favoured a construction of section 123(2) that incorporated an element of specific intent. His Honour considered the majority’s preferred construction to encourage ‘criminal prosecution for actions that by any sensible measure are harmless or benign’. [112]
Perry v King [2023] VSCA 218 (12 September 2023) – Victorian Court of Appeal
‘Appeal against sentence ’ – ‘ Manifestly excessive ’ – ‘ Physical violence and harm ’ – ‘ Attempted rape ’ – ‘ Common assault ’
Charges: Attempted rape x 1; common assault x 2; sexual assault x 1.
Proceedings: Application for leave to appeal sentence.
Facts: The male applicant received a sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 2 years, after pleading guilty to offences perpetrated against his former female partner. The conduct constituting the charges included forcibly attempting vaginal penetration, punching the complainant in the face, non-consensually touching the complainant’s breasts and biting her arm ([6]–[9]).
Grounds of Appeal: The applicant sought leave to appeal the sentence on the ground that the sentences imposed, the orders for cumulation, the non-parole period and the total effective sentence were manifestly excessive [18].
Decision and Reasoning: Leave to appeal granted. The Court (Beach and Walker JJA) held that the sentences imposed on the charges concerning common assault and sexual assault were manifestly excessive.
The punch to the face, though ‘violent’, was outside the range reasonably open to the sentencing judge, bearing in mind the applicant’s ‘good prospects of rehabilitation, and his relative youthfulness’ [35]. Similarly, the act of touching the complainant’s breast was without force and concluded when the complainant articulated her lack of consent [37]. In this capacity, the applicant’s conduct was ‘at the low end of the spectrum’ of sexual assault offending [37]. Further, the act of biting the complainant’s arm was observed to be ‘minor in nature’ [38].
The Court, however, upheld the original sentence imposed on the offence of attempted rape:
The offence of attempted rape is an objectively serious offence … Sexual violence within an intimate partner relationship is a particularly insidious and degrading form of domestic violence. Denunciation of such behaviour plays an important role in sentencing for this offending. In that regard, we agree with the trial judge’s remarks to the effect that the sentence imposed for such offending must send a signal that all sexual exchanges must be consensual [28]
The total effective sentence was re-formulated to be 3 years and 3 months’ imprisonment with a non-parole period of 20 months [44].
Morey (a pseudonym) v The King [2023] VSCA 153 (23 June 2023) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Evidence’ – ‘Manifest excess’ – ‘Open to jury to convict’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual assault’ – ‘Significant probative value’ – ‘Strangulation’ – ‘Tendency evidence’ – ‘Theft’ – ‘Whether convictions were unreasonable and unsupported by evidence’ – ‘Whether probative value of tendency evidence substantially outweighed prejudicial effect’
Charges: Rape x 3; Common assault x 1; Theft of motor vehicle x 1.
Proceedings: Application for leave to appeal against both conviction and sentence.
Facts: Following conviction at trial the male applicant was sentenced to 12 years and 4 months, with a non-parole period of 8 years. The trial judge allowed the prosecution’s pre-trial application to adduce tendency evidence to demonstrate the applicant to engaged in a pattern of threats of violence to compel the complainant’s compliance. The prosecution’s pre-trial tendency notice (s97(1)(a) Evidence Act 2008 (Vic)) noted their intention to rely on the tendency of the applicant to:
•
Act in a particular way, namely:
(a)
To threaten to assault, or cause harm to [the complainant], if she did not comply with his demands.
(b)
To threaten to kill [the complainant], or members of her family, if she did not comply with his demands.
(c)
To assault [the complainant] in order to compel her to comply with his demands. [26]
•
Have a particular state of mind, namely:
(a)
A belief that [the complainant] would do as he demanded if he threatened to assault, or cause harm, to her.
(b)
A belief that [the complainant] would do as he demanded if he threatened to kill her or members of her family.
(c)
A belief that [the complainant] would do as he demanded if he assaulted, or caused harm to her. [27]
It was asserted that the ‘demands’ referred to included that the complainant not report his behaviour to police. [28]
Grounds:
Conviction
(1) The convictions are unreasonable or cannot be supported by the evidence; and (3) the judge erred in ruling the tendency evidence admissible, particularised as follows:
(a)
The judge erred in finding that the tendency evidence showed the applicant acted in a particular way that was significantly probative of the sexual offences on indictment.
(b)
The judge erred in finding that the tendency evidence showed the applicant had a particular state of mind that was significantly probative of the sexual offences on indictment.
(c)
The judge erred in finding that the 2017 threats of dumping the complainant in a shit dam was significantly probative of the offences of rape.
(d)
The judge erred in finding that the 2018 SMS messages of threats made by the applicant in the context of frustration regarding a friend’s marriage breakup were significantly probative of the offences of rape.
(e)
The judge erred in finding the 2017 and 2018 threats as not unfairly prejudicial.
(f)
The judge erred in finding the 2017 and 2018 threats was not a generalised assertion of general bad character.
(g)
The judge erred in finding the 2017 and 2018 threats was probative of committing the rapes with the requisite intent.
Sentence
1.
The judge erred in characterising of the objective gravity of his offending as ‘serious’;
2.
the judge erred in applying the standard sentencing regime;
3.
the judge erred in finding that offending in 2018 was a relevant sentencing consideration in respect of the rape charges; and
4.
the sentence is manifestly excessive.
Reasoning and decision: Leave to appeal granted, appeal was allowed on conviction ground 2 and the applicant’s conviction and sentences on charges 5 to 8 will be set aside, retrial ordered.
Beach JA, Forrest JA and Kaye JA refused leave to appeal on conviction ground 1.
Conviction ground 1: Nothing in the evidence relied upon by the applicant required the jury to have a reasonable doubt about the guilt of the applicant on charges 5, 6, 7 and 8 [24].
Conviction ground 3: The court held the prosecution tendency evidence ‘barely established the asserted tendency’ [47]. The court also identified that charges 5 to 8 did not involve any threat by the applicant [48]. It was held the tendency evidence had no probative value and had a prejudicial effect. It was therefore deemed inadmissible [50].
Sentencing: Due to the court’s decision on conviction ground 2, it was not necessary for the court to consider sentencing grounds 1-3. However, the court held that 18 months was for the theft of the complainant’s vehicle was manifestly excessive [54]. The sentence was reduced to 1 month of imprisonment [55].
Giudice v The King [2023] VSCA 105 (8 May 2023) – Victorian Court of Appeal
‘Adverse effect of imprisonment on mental health’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Damaging property’ – ‘Denunciation’ – ‘Deterrence’ – ‘Extensive criminal history’ – ‘Intentionally causing serious injury’ – ‘Just punishment’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Serious consequences for victims’ – ‘Strangulation’
Charges: Damaging property x 2; Intentionally causing serious injury x 1; Contravention of family violence intervention order x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The male offender entered his female former partner’s bedroom and repeatedly punched her in the face, stomach and head before strangling her until she could not breathe [3]-[5]. The offender then went to the victim’s parent’s home and damaged the complainant’s car. The offender pleaded guilty to charges of damaging property, intentionally causing serious injury and contravention of protection orders [10].
The offender had an extensive criminal history, commencing in 2011, including offences of violence against other women he had shared relationships with. The seriousness of offending had escalated, and the offender had persistently breached previous community correction orders.
The offender had suffered significant trauma throughout his life and had a diagnosis of borderline personality disorder, post-traumatic stress disorder and major depressive disorder [21].
In the County Court, Dean J held that the offender’s borderline personality disorder did not moderate his moral culpability, as he had not taken any steps to address his mental health despite numerous acts of serious violence since 2011 [18]. The offender was sentenced to 8 years, with a non-parole period of 5 years 6 months [10].
Grounds: The sentencing judge failed to give appropriate weight to the adverse effect of an excessive term of imprisonment on the applicant’s mental health, particularly given the offender’s history of self-harming in prison.
Decision and reasoning: Ferguson CJ, Emerton P and Osborn JA refused the application for leave to appeal.
A psychological report stated the offender required ongoing treatment, which he was receiving in prison. The report confirmed that the offender’s mental health was not being exacerbated in prison. The offender was free from stressors, such as alcohol, and was not self-harming [34]-[35].
It was held that Dean J appropriately balanced the requirement to protect the community from the offender per s 6D of the Sentencing Act 1991 and the adverse effects of imprisonment on the applicant’s mental health during sentencing [37].
Rowan (a pseudonym) v The King [2022] VSCA 236 (28 October 2022) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘Battered wife syndrome’ – ‘Bestiality’ – ‘Common law duress’ – ‘Continuing or ever-present threats sufficient’ – ‘Criminal law’ – ‘Defence of duress’ – ‘Duress of circumstances’ – ‘Expert evidence’ – ‘Incest’ – ‘Indecent act with child under 16’ – ‘Inferred threat’ – ‘People with an intellectual disability’ – ‘People with mental illness’ – ‘Post-traumatic stress disorder’ – ‘Psychologist evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual abuse’ – ‘Specific, overt threat’ – ‘Threat by implication’ – ‘Threat of physical and sexual abuse’ – ‘Victim as (alleged) perpetrator’
Note: a Crown special leave application to appeal to the High Court of Australia was granted on 16 June 2023 and the matter has been listed for hearing in October 2023. The Crown argues that the Court of Appeal “committed an error in principle by extending the law of duress as it applies to both common law and by operation of statute, to cover what is known as duress of circumstances”.
Charges: Incest x 11; indecent act with a child under 16 x 1.
Proceedings: Application for leave to appeal against conviction and sentence.
Facts: The applicant was convicted following trial of 11 counts of incest (s 44(1) and one count of indecent act with a child under 16 (s 47(1)) contrary to the Crimes Act 1958 (Vic). Her partner, JR, was the father of the two complainant daughters and had previously been convicted of sexual offences against them. At the applicant’s trial it was argued that JR had directed the applicant to commit the offences, and she had complied due to an ever-present threat of physical and sexual violence by JR if she did not do what he demanded of her. It was submitted that this constituted duress. The judge, however, ruled that this did not constitute duress, as duress required there to have been a specific or overt threat, not just an ever-present threat. Consequently, duress was not left to the jury and the applicant was convicted of the offences on the basis that she was present and encouraged the daughters to comply with his abuse.
The applicant and JR’s relationship commenced when the appellant was 18 years old. They lived on a rural property owned by JR’s father and had 4 children. The applicant had a mild intellectual disability and was financially and socially dependent on JR. There was evidence that JR was physically, emotionally and sexually violent to the applicant, he isolated her on the farm, was highly controlling of her movements and had a bad temper. The prosecution accepted that JR’s violence towards the applicant was ‘severe’ [57]. It was reported that the applicant had tried to leave in the past but had returned because she ‘would struggle with the kids’ and that she had not reported the violence to the police because ‘noone would believe her because she was nothing.’ [107] A psychologist gave evidence that the applicant suffered from learned helplessness and low self-esteem characteristic of ‘battered women’s syndrome’, a subset of post-traumatic stress disorder. The applicant’s counsel submitted that ‘JR’s conduct created and maintained a serious, standing threat of significant, ongoing harm, namely, angry subjection to the domineering, violent, rape-embracing regime of life imposed by a brute upon a traumatised, vulnerable person. Under that regime, refusal was said to always have its consequences and this had the effect of overbearing the applicant’s will so that she always submitted to the will of JR.’ [132]
Grounds: The trial judge erred in ruling that the defence of duress was not open on the evidence and thereby caused a substantial miscarriage of justice.
Decision and Reasoning: Leave to appeal granted; appeal against conviction upheld; new trial ordered; unnecessary to consider appeal against sentence.
Kyrou & McLeish JJA:
Their Honours found there was ‘considerable overlap’ in the elements of each form of the defence [188].
They made the following remarks regarding element (i) of common law duress in the context of the case:
[155] We accept that no previous case has expressly accepted the proposition that a continuing or ever present threat — whether overt or tacit — as distinct from a specific, overt threat, is sufficient. However, no case has expressly considered that proposition and rejected it. …. Further, the analysis of the Full Court of the Supreme Court of South Australia in Runjanjic [(1992) 56 SASR 114] is consistent with the proposition that a continuing or ever present threat may be sufficient.
[156] In our opinion, a continuing or ever present threat which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out. We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence. In this context, it is relevant to note the additional limiting factors identified in element (iii) [common law duress above] which requires that the threat be present and continuing, imminent and impending at the time each offence is committed.
[169] Having regard to the above features of the relationship between JR and the applicant … it would have been open to the jury to conclude that it was reasonably possible that the applicant understood that there was a continuing or ever present threat of physical and sexual violence (including rape) by JR if she did not do what he demanded of her. If the jury reached this conclusion, it would have been open to them to find that it was reasonably possible that, when JR requested the applicant to be involved in each of the sexual offences against the complainants, she understood that, if she did not comply, he would physically and sexually harm her, including by raping her.
[174] We are also of the opinion that it is not fatal in this case that there is no direct evidence that JR told the applicant shortly prior to each offence that, unless she performed the acts that constitute each of the charged offences, he would physically and sexually abuse her. That is because it would be open to the jury to infer that this was a reasonable possibility based upon the history of the relationship between JR and the applicant as set out in the …[evidence].
Their Honours made the following remarks regarding element (ii) of common law duress in the context of the case:
[180] A person of ‘ordinary firmness of mind’ in the present case would be a female domestic partner of JR who was of the applicant’s age and who has lived with JR in the same circumstances as the applicant and has endured the physical and sexual abuse that she has experienced. That person would also have the same isolated lifestyle as the applicant and possess her knowledge of JR’s personality and behaviour. However, that person would not have the applicant’s history of sexual abuse as an adolescent or her mild intellectual disability.
There was evidence that the AR suffered ‘battered woman syndrome’:
[181] In our opinion, upon the basis of the [evidence], it would have been open to the jury to conclude that there was a reasonable possibility that a person of ordinary firmness of mind having the characteristics described… above would have been likely to:
(a)
develop a battered woman syndrome with the consequence of learned helplessness, and yield to JR’s continuing or ever present threat in the way the applicant did; and
(b)
not seek to escape the situation.
Their Honours then briefly considered elements (iv), (v), (vii) and (viii) of Common Law duress in turn but did not consider element (vi) because the accused was not charged with murder, or any other crime excepted from common law duress:
[184] In relation to element (iv), the jury could find that there was a reasonable possibility that the applicant reasonably apprehended that the threat would be carried out based upon JR’s history of punishing her if she sought to disobey him.
[185] In relation to element (v), the jury could find that there was a reasonable possibility that the applicant was induced by the continuing or ever present threat to commit the charged offences based upon our previous analysis regarding her will being overborne by that threat.
[186] In relation to element (vii), the jury could find that there was a reasonable possibility that the applicant did not, by fault on her part when free from the duress, expose herself to its application. That is because the threat was a continuing or ever present threat and the jury could conclude that there was a reasonable possibility that the applicant was not free of the threat at any time during the period of the offending.
[187] In relation to element (viii), the jury could find that there was a reasonable possibility that the applicant did not have the means, with safety to herself, of preventing the execution of the threat. That is because the jury could conclude that there was a reasonable possibility that the applicant’s battered woman syndrome rendered her incapable of escaping from her abusive relationship with JR.
McLeish JA agreed with the reasons given by Kyrou and Niall JJA in respect of elements of the defence of duress’ both under common law and under 32O.’ [228] McLeish JA also observed:
[208] It is not necessary that the threat which underpins a defence of duress be the subject of direct evidence of the accused. There is no reason in principle why the requisite threat might not be found by a process of inference from other evidence. That inference may, in principle, be drawn from evidence about an ongoing course of conduct. The threat may also be conveyed to the accused by implication rather than express words. Naturally, the defence may very well be weaker in the absence of direct evidence from the accused; but that is not the only way it may be raised.
Shiryar v The Queen [2022] VSCA 96 (25 May 2022) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Attempt to pervert course of justice’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘Manifest excess’ – ‘People with mental illness’ – ‘Persistent contravention of protection order’ – ‘Separation’ – ‘Stalking’ – ‘Threat to kill’ – ‘Use of third party’
Charges: 1 x attempting to pervert the course of justice; 1 x persistently contravening a family violence intervention order.
Case type: Application for leave to appeal.
Facts: The applicant pleaded guilty to one charge of attempting to pervert the course of justice and one charge of persistently contravening a family violence intervention order. These offences were committed whilst the applicant was on remand for separate charges (to which he also pleaded guilty): two charges of criminal damage, one charge of stalking, one charge of making a threat to kill, and two charges of committing an indictable offence while on bail. The charge of stalking related to the applicant’s former partner, ES. The charge of making a threat to kill related to her father.
The applicant’s relationship with ES ended shortly before the offending. An interim family violence intervention order was made against the applicant. Whilst on remand for the initial offending, the applicant instructed someone to phone ES to ask that she and her father drop the charges against him, and to tell her that if the charges were dropped, he would give her a car that had been the subject of a dispute between him and her family. The sentencing judge imposed a head sentence of 2 years and 6 months imprisonment for attempting to pervert the course of justice.
Issue: Whether the sentence was manifestly excessive?
Held: The Court refused leave to appeal. The applicant had an extensive criminal history, which predominately involved contravening family violence intervention orders and breaching bail. The sentencing judge viewed the applicant’s convictions on the initial offending as relevant to the present offending, because the present offending occurred shortly after the applicant was remanded in custody and informed the applicant’s prospects of rehabilitation ([19]). The sentencing judge took into account, inter alia, the applicant’s early guilty plea, mental health difficulties, apparent insight into the offending and support from his family. The offending was described as “premeditated, repeated and persistent, involved enlisting others, and employed veiled threats and inducements” ([25]).
The Court of Appeal found that any attempt to pervert the course of justice is to be denounced, and that, within a family violence context, it is a very serious matter ([38]).
Frecker v The Queen [2021] VSCA 331 (2 December 2021) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Common assault’ – ‘Following, harassing and monitoring’ – ‘No prior convictions’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Sentencing appeal’
Charges: Common law assault x 2, intentionally damage property x 1, intentionally cause serious injury x 1, persistent contravention of family violence intervention order x 1.
Proceedings: Appeal against sentence.
Facts: The 23-year-old appellant received a sentence of 6 years’ imprisonment with a non-parole period of 3 years and 8 months, and a 2-year alcohol exclusion order after pleading guilty to offences perpetrated against two of his former female partners. The appellant repeatedly punched and pushed each victim on several occasions, often after consuming alcohol [7]-[11]. On one occasion, the appellant repeatedly punched the second victim’s face and neck, which fractured her jaw and seriously injured her left eye [12]-[26]. The appellant persistently contravened a protection order by repeatedly contacting the second victim while she was in hospital, and parking near her house ([28-35]). The appellant had been diagnosed with depression, anxiety and alcohol use disorder, had no prior criminal history, was employed and supported by his family [42]-[45].
Grounds:
The sentencing judge erred in failing to consider:
1.
As a form of additional punishment, the alcohol exclusion order imposed upon the appellant.
2.
The appellant’s youth at the time of the offending.
Decision and Reasoning: Appeal dismissed.
Kyrou and T Forrest JJA dismissed both grounds of appeal. ‘[T]he judge did not err by failing to explain in his sentencing remarks how any punitive elements of the AEO informed the exercise of his sentencing discretion… because defence counsel did not submit that the AEO had an additional punitive impact upon the appellant which warranted discrete moderation in his sentence’ [76]. Furthermore, the j sentencing judge remarked on the applicant’s youthfulness as a relevant sentencing consideration, especially in relation to his ‘very positive’ prospects of rehabilitation [92]while noting the appellant was at the ‘upper end of youthfulness’, and his offending was of a ‘particularly egregious nature’ such that the judge appropriately gave more weight to the sentencing considerations of community protection, denunciation, specific deterrence and just punishment [94]).
Dunford v The Queen [2021] VSCA 304 (9 November 2021) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Attempt to control using extended family’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Covid 19 pandemic’ – ‘Exposing children to domestic and family violence’ – ‘History of drug and alcohol abuse’ – ‘Past domestic and family violence’ – ‘People with mental illness’ – ‘Step-child’ – ‘Strangulation’ – ‘Threats to kill’
Charges: intentionally cause injury x 1; false imprisonment x 2; make threat to kill x 1.
Proceedings: appeal against sentence.
Facts: The applicant pleaded guilty to the charges and received a total effective sentence of 4 years and 9 months ([1]). The sentencing judge reduced the applicant’s sentence by 9 months due to his guilty plea because it showed remorse and saved the Court’s time ([19]-[20]).
The female victim and male applicant did not reside together. In January 2020, the applicant assaulted the victim in the presence of her nine-year old daughter The applicant punched, kicked and strangled the victim, threatening to kill her or her daughter whenever they attempted to leave, for approximately 2.5 hours ([3]-[6]). While in custody, the applicant told family members to persuade the victim not to cooperate with police and to accuse her of ‘just keeping him away from the kids’ ([12]). The applicant suffered from a mental health condition and had a history of alcohol abuse ([16]-[17]) and family violence offending([15]).
Grounds: The individual sentences, orders for cumulation, total effective sentence and non-parole period were each manifestly excessive.
Decision and Reasoning: Beach JA dismissed the appeal ([45]). His Honour affirmed her Honour’s description of the applicant’s behaviour as ‘a protracted ordeal of violence… threats and control… that did not cease upon the applicant being remanded into custody’ ([25]). His Honour accepted that the applicant’s plea of guilty during the COVID-19 pandemic entitled him to a ‘more pronounced amelioration of sentence’ as in Worboyes v The Queen [2021] VSCA 169 (18 June 2021) ([43]). Honour found that the individual sentences could only be described as ‘modest’ ([38]), and the non-parole period as ‘very moderate’ ([39]), due to the objective seriousness of each offence. In his Honour’s view, ‘[t]he imprisoning of the victim and her daughter, resulting in the victim’s daughter witnessing the acts of violence perpetrated by the applicant against her mother, was undoubtedly very serious offending. Any submission to the contrary is not reasonably arguable.’ ([38]).
Newton v The Queen [2021] VSCA 207 (29 July 2021) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Breach of protection order’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘People affected by substance abuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Sentencing appeal’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Verdins principles’
Charges: Persistent contravention of a family violence safety notice, aggravated burglary, intentionally causing injury x 2, making threat to kill, damage property, making threat to inflict serious injury.
Proceedings: Appeal against sentence.
Grounds:
1.
The orders for cumulation breached the principle of totality and produced a total effective sentence that was manifestly excessive.
2.
The learned sentencing judge was wrong not to find that:
(a)
The Appellant’s anti-social personality disorder and clinical depression meant his sentence of imprisonment would weigh more heavily on him compared to a person in normal health; and
(b)
Imprisonment would have a significant adverse effect on the Appellant’s mental health [5].
Facts: The 35-year-old male appellant received a sentence of 9 years imprisonment, with a non-parole period of 6 years and 4 months, after pleading guilty to offences perpetrated against his 28-year-old former female partner. The couple had been in a ‘volatile’ relationship for three years, and shared a 2-year-old son [6]. The appellant made threats to kill or injure the victim via text for several days before forcing entry into her home. Armed with a kitchen knife, the appellant made several ‘chilling’ threats to kill the victim, before punching, strangling, and eventually pushing her head through a plaster wall. The appellant’s conduct constituted persistent breaches of a family violence safety notice and occurred in the presence of a child [6]. The applicant had a ‘significant criminal record’, and had been diagnosed with a substance abuse disorder, depression, anxiety, and mild psychosis [9],[12]. The appellant identified as Aboriginal [11].
Decision and Reasoning: Appeal allowed, appellant resentenced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment. The appellant’s psychological assessment stated that R v Verdins [2007] VSCA 102 ‘may’ apply [43] and on this basis, the appellant’s legal counsel had not raised Verdins at the plea hearing. Niall JJA (Priest JA concurring) found that this reasoning, which was incorrect, had led the sentencing Judge into a specific error that vitiated the sentence [46]. His Honour stated that ‘whether any of the Verdins principles’ apply ‘to mitigate sentence’ is ‘a matter for the judge to determine on the basis of the evidence’ [44].
In resentencing, Their Honours found that psychological evidence of the appellant’s ‘impaired mental functioning and his deprived and violent upbringing’ reduced his moral culpability and required consideration of whether incarceration would be more onerous [31]. The appellant’s substance abuse severely compromised his judgment and capacity to control his behaviour [27] and was caused by ‘childhood trauma’, which had also impacted on his ‘development of empathy and distinction between right and wrong’ [28], and had arisen ‘through no fault of his own’ [61]. Their Honour’s noted that the appellant’s conduct had ‘escalated over a number of days, giving him an opportunity to desist which he failed to take’. However, it was accepted that the appellant’s ability to regulate his behaviour was significantly impaired [60].
Baker (a pseudonym) v The Queen [2021] VSCA 158 (9 June 2021) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the court of justice’ – ‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Intellectual impairment’ – ‘Manifest excess’ – ‘People affected by drugs or alcohol’ – ‘People affected by trauma’ – ‘People with illness or impairment’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Threat of image abuse’ – ‘Threat of suicide’
Proceedings: Application for leave to appeal against sentence.
Facts: The male applicant pleaded guilty to 14 charges arising out of abuse of his female domestic partner over a period of 18 months. He sought leave to appeal in relation to charges 5, causing injury recklessly, and 8, attempting to pervert the course of justice.
Charge 5 related to causing injury by pushing the victim’s face into a pot of boiling water, following which he did not call an ambulance and instructed the victim to conceal his role in her injuries and return home the same day, not remaining in hospital for treatment. There was dispute as to whether permanent injury was caused. The offending was in breach of a protection order, occurred after earlier offending against the same victim and when the applicant had only just been released from prison. Charge 8 related to sending a large number of text messages to the victim demanding the withdrawal of charges against him, threatening variously to keep their stillborn child’s ashes and urn from her, distribute intimate images of her and commit suicide stating it would be her fault if he did so.
The applicant had a history of prior violent offending (having only just been released from jail) including against the victim, had intellectual impairment, a traumatic upbringing and was abusing methylamphetamine at the time of the offending. It took place in the context of a history of violence, manipulation and coercion against the victim and sought to exploit her emotional and psychological vulnerability by threatening her ability to access the ashes of her stillborn child and also threatening her dignity and right to privacy with the exposure of intimate images.
Grounds:
Ground 1: The sentence imposed on indictment charge 5 is manifestly excessive in all the circumstances.
Ground 2: The sentence imposed on indictment charge 8 is manifestly excessive in all the circumstances.
Ground 3: The cumulation order fixed in respect of charge 8 is manifestly excessive in all the circumstances.
Held: leave to appeal refused.
Ground 1: The court held that notwithstanding the mitigating factors raised by the applicant which ought to be taken into account, this was horrific violence inflicted on a woman by her domestic partner in her own home. The offending was at the upper end of the range with a maximum penalty of 5 years imprisonment, and 3 years was within the appropriate range:
In all the circumstances, the infliction of such horrific violence against a woman at the hands of her domestic partner in their own home called for denunciation, just punishment and general deterrence, especially in the context of persistent defiance of a family violence intervention order and bearing in mind the applicant’s criminal history. In that context, specific deterrence also remained a relevant consideration. We accept that the mitigating features to which the applicant referred were matters of weight that fell to be taken into account, as we have discussed. However, even when that is done, we are unable to conclude that the sentence was outside the range available to the sentencing judge. To the contrary, bearing in mind that this was an offence at the upper end of the range, punishable by a maximum term of 5 years’ imprisonment, a sentence of 3 years on a guilty plea was well open. [32]
Ground 2: While at the lower end of the scale for attempting to pervert the course of justice, any attempt to pervert the course of justice is serious and should be denounced. The offending occurred in the context of violence, manipulation and coercion of the victim, with “especially unpleasant features of seeking to exploit Ms Anderson’s emotional and psychological vulnerability by threatening her ability to access the ashes of her stillborn child and also threatening her dignity and right to privacy with the exposure of intimate images.” [36]
Ground 3: The applicant’s submission that accumulation of 12 months of the charge 8 sentence on the balance of the sentences failed to accord with the principles of totality and was therefore manifestly excessive was dismissed:
An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation…[37]
Charge 8 involved repeated attempts by the applicant to conceal his wrongdoing over the previous 18 months, by means of emotional and physical threats directed at Ms Anderson. It was distinct offending that called for significant additional punishment. [40]
Mercer (a pseudonym) v The Queen [2021] VSCA 132 (14 May 2021) – Victorian Court of Appeal
‘Application for extension of time within which to file application for leave to appeal against conviction and sentence’ – ‘Attempting to pervert the course of justice’ – ‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘False imprisonment’
Charges: False imprisonment x 1; Attempt to pervert the course of justice x 1; Persistent contravention of a family violence intervention order (FVIO) x 1.
Proceedings: Application for extension of time within which to file application for leave to appeal against conviction and sentence.
Facts: The male applicant was charged with 5 offences against his de facto female partner (the complainant). The applicant instructed her to drop the charges over telephone calls while remanded in custody. At trial, she gave evidence unfavourable to the prosecution case, recanting statements previously made to police, and giving evidence that the applicant had neither imprisoned nor assaulted her. The judge gave the prosecution leave to cross-examine the complainant about prior inconsistent statements she had made and in relation to her evidence on charges 1-4. The applicant was sentenced to a total effective sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 9 months.
Grounds of appeal:
1.
The trial judge should not have given any direction on incriminating conduct as: (a) The prosecutor did not rely on the relevant phone calls as incriminating conduct in his final address; and (b) Using phone calls as evidence of incriminating conduct involved the jury engaging in impermissible ‘bootstraps’ reasoning.
2.
The sentence imposed on the charge of attempting to pervert the course of justice, the total effective sentence and the non-parole period was manifestly excessive.
Held: Application for extension of time within which to file application for leave to appeal against conviction and sentence dismissed.
Re conviction:
Re Ground 1(a), it was difficult to see how there was any miscarriage of justice in the judge giving a direction under s 21. If defence counsel had raised the prosecutor’s failure to address the incriminating conduct, the judge would have granted the prosecutor leave to address the jury further and given the same direction.
Re Ground 1(b), it was well open to the jury to conclude beyond reasonable doubt that the applicant was attempting to persuade the complainant to lie in the relevant phone conversations. There was no issue that the applicant told the complainant:
•
she should tell the police that she was not in her right state of mind when she made the allegations and that she wished to drop the charges;
•
he would pay for a lawyer to make a statutory declaration for her, in which she would state that she was not in her right mind when she made her statement and could not remember making the allegations against him; and
•
she should not talk on the phone about him assaulting her, as the calls between them were being recorded.
These words were not neutral as to the applicant’s guilt or otherwise of the offending. Nothing he said suggested that the complainant’s allegations were false or that the alleged events had not taken place. On the contrary, it was open to the jury to view the statements as demonstrating his belief that he was guilty.
Re sentence:
The court made the following observations relevant to coercive control at [65]:
In our view, the applicant’s persistent and cynical assertion of control over the complainant, and his exploitation of her known vulnerabilities, made this case just as serious as if there had been explicit threats or actual violence. The transcripts of the calls make plain his exertion of coercive psychological pressure on her, encouraging her to think that they can ‘work things out’ between them and asking questions like ‘Do you want me to get out or not?’ The fact that the conduct about which he was asking her to lie involved his own criminal violence against her was a further aggravating feature. In our view, the applicant’s moral culpability for this offence was high.
The sentence could not be said to be manifestly excessive including in light of: the applicant’s high moral culpability, not guilty plea, seriousness of the offending, significant prior criminal history, and the importance of general and specific deterrence.
Re delay:
The lack of an adequate explanation for months of delay was unsatisfactory. It provided further basis upon which to refuse the extension of time applications.
Hardwick (a pseudonym) v The Queen [2021] VSCA 67 (19 March 2021) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Common assault’ – ‘False imprisonment’ – ‘Manifest excess’ – ‘Protection order’ – ‘Separation’ – ‘Threat to kill’
Charges: False imprisonment x 1; Common assault x 1; Aggravated burglary x 1; Making a threat to kill x 1.
Proceedings: Appeal against sentence.
Facts: The appellant man pleaded guilty to offences committed against his wife following their separation. The appellant waited until she returned home, restrained her (including using cable ties), prevented her from escaping, and threatened to kill her. The wife managed to escape. The appellant pleaded guilty and was sentenced to a total effective sentence of 4 years and 6 months’ imprisonment, with a 3 year non-parole period. He had also breached an order protecting his wife on numerous previous occasions.
Grounds of appeal: The sentence was manifestly excessive.
Held: Appeal was dismissed but noting that the sentence was “very stern” and “at the uppermost extremity of the appropriate range.”
The sentence for the aggravated burglary charge was not manifestly excessive. Previous decisions reinforced “the seriousness with which the courts view aggravated burglaries” and identify typical matters that might aggravate a particular instance of the offence. While the offending was not “an act of extreme domestic violence,” as characterised by the sentencing judge, overall the offending was serious. The sentencing judge was entitled to have significant reservations regarding the appellant’s remorse and insight which underpinned the importance of specific deterrence. General deterrence was also important in the context of family violence.
The sentences for false imprisonment and threat to kill were also not manifestly excessive. In particular, “[t]he false imprisonment extended over a period of time and involved physical restraint. The imprisonment in her own home, in the context of family violence would have been extremely distressing to the victim. It deserves powerful denunciation. Equally, the threat to kill was serious. The threat was made in circumstances where the appellant told his victim that he was concealing things ‘that you don’t want to see’. The whole incident did not have an obvious end point and the appellant’s behaviour would have instilled a substantial sense of dread and fear.” The degree of cumulation was also not manifestly excessive.
Packard (a pseudonym) v The Queen [2021] VSCA 56 (15 March 2021) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Forgiveness of victim’ – ‘Intentionally cause serious injury’ – ‘Lack of history of domestic violence’ – ‘Listening to Victims’ – ‘Mercy’ – ‘Separation’ – ‘Weapons and threats to kill’
Charges: Intentionally causing serious injury x 1.
Proceedings: Application for leave to appeal against sentence.
Facts: The male applicant pleaded guilty to stabbing his wife 5 times. There was no prior history of domestic and family violence. He was sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 6 months.
Grounds of appeal:
1.
The sentencing judge erred in failing to take into account the victim’s full recovery.
2.
The sentencing judge erred in treating the victim’s forgiveness with extreme caution, and having regard to it only insofar as it boded well for the applicant’s rehabilitation, rather than also taking it into account in assessing the impact upon the victim and in considering the application of the principle of mercy. In particular:
(a)
Her Honour took into account irrelevant considerations namely forgiveness of a victim is often attributable to a pattern of behaviour on the part of perpetrators of family violence and her family had “persuaded” her to forgive the applicant.
(b)
Her Honour failed to take into account relevant considerations which indicated that the victim’s forgiveness was genuine/informed.
(c)
Her Honour’s conclusion was not reasonable open.
(d)
The applicant was denied procedural fairness.
3.
The sentence was manifestly excessive in light of all the relevant matters, including that the applicant called emergency services, his confessions, his very early guilty plea, his lack of relevant prior convictions, his lack of history of violence, and the fact that he was of no risk of reoffending.
Held: Application for leave to appeal dismissed.
Ground 1: It was fortunate that the victim had made a good physical and emotional recovery but this did not negate that this was a serious example of the offence causing serious injury. The applicant’s moral culpability was also high.
Ground 2: Counsel for the applicant was plainly on notice that the judge was minded to apply the principles regarding victims’ forgiveness stated by Neave JA in R v Hester at [27]. It was not open to argue he was denied procedural fairness.
It could not be reasonably maintained that the judge erred in failing to extend “mercy” to the applicant. This was a serious instance of intentionally causing serious injury, noting “[i]t would be most difficult to comprehend how mercy can be properly extended in a case in which a man has overpowered his wife in her home, and proceeded to violently stab her five times with a knife, thereby penetrating her vital organs and putting her life at risk” at [45].
While it seemed the sentencing judge incorrectly inferred that the victim had been persuaded by male family members to express forgiveness (with reference to Hester), that observation “could not materially have affected the question whether her Honour should have extended mercy to the applicant.” Further, the judge correctly took into account the relevance of the victim’s forgiveness to motivating the applicant’s rehabilitation.
Ground 3: Without the compelling mitigating circumstances present in this case, the sentence would have been properly characterised as lenient. Accordingly, the sentence appropriately reflected the mitigating factors referred to by the applicant. In light of the gravity of the offending, and the importance of general deterrence and denunciation, the sentence could not be said to be manifestly excessive: [53]-[57].
Edwards v The Queen [2020] VSCA 339 (23 December 2020) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Dysfunctional upbringing’ – ‘Female perpetrator’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Manslaughter’ – ‘Moral culpability’ – ‘People affected by substance misuse’ – ‘Victim as (alleged) perpetrator’
Charges: Manslaughter x 1.
Proceedings: Appeal against sentence.
Facts: The applicant woman stabbed the male victim, her partner for just over 12 months, in the neck and he died of the injuries inflicted. The applicant pleaded guilty to one charge of manslaughter and was sentenced to 9 years’ imprisonment, with a non-parole period of 6 years and 9 months: R v Edwards [2019] VSC 234 (12 April 2019).
Grounds of appeal:
1.
The sentencing judge erred in finding that her moral culpability was not lessened in any way by the violence perpetrated upon her.
2.
The sentencing judge erred in finding that her moral culpability was high notwithstanding her severely disadvantaged background.
3.
The sentence was manifestly excessive.
Held: The appeal was refused.
Ground 1: The sentencing judge’s finding of moral culpability was open on the evidence for the reasons she gave. This included evidence that the applicant and victim had been violent towards each other, but with the applicant as most often the aggressor; the offending took place in the context of heavy methamphetamine use; and the applicant had a traumatic childhood, and a history of controlling and abusive relationships. Had there been evidence of a causal link between the applicant’s stabbing of the victim and his acts of violence towards her, the sentencing considerations may have been quite different (at [15]-[23]).
Ground 2: It was well open to the sentencing judge to find that notwithstanding the applicant’s severely disadvantaged background her moral culpability remained high. The applicant’s offending was heavily influenced by her drug use at the relevant time (at [24]-[27]). It was also not open for the applicant to contend that her moral culpability was lessened as her offending was causally linked to her drug use. She had expressly disavowed such a causal link on the plea and the submission was not supported by the authorities (which instead related to instances where a person commits an offence to satisfy a drug addiction, relevant to moral culpability and rehabilitation) ([28]-[32]).
Ground 3: The sentence could not be said to be manifestly excessive. The sentencing judge gave proper consideration to all relevant features of the offending and the offender. After finding that high moral culpability was established, it was not reasonably arguable that the sentence was outside the range open to the sentencing judge given the objective seriousness of the offending (“planned and deliberate”), the maximum penalty for manslaughter, and the weight to be given to the sentencing purposes identified by the sentencing judge (particularly “just punishment, denunciation…and general deterrence”) ([33]-[39]).
Shau v The Queen [2020] VSCA 252 (25 September 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘No history of domestic violence’ – ‘People who are pregnant’
Charges: Recklessly causing injury x 1; Reckless conduct endangering life x 1.
Proceedings: Appeal against sentence.
Facts: The appellant man punched, kicked and stomped on his pregnant wife. The attack started in a car, which his wife was driving, and ended up at a service station.
[18] Footage captured on CCTV at the service station depicts the appellant grabbing and dragging Lee by the hair on at least two occasions; punching and striking her with his hands and fists, mostly in the region of her head, on at least seven occasions; and kicking and stomping her to the head, neck, shoulder and torso region on at least 19 occasions. Lee curled up into a ball to protect her unborn child and raised her hands to protect her face.
The wife suffered extensive injuries. The appellant then drove his car at speed into the service station where his wife had sought shelter, smashing through the wall and wedging the vehicle inside the store. That conduct endangered the life of the service station attendant who had locked the doors of the shop to prevent the appellant from coming in after his wife. The victim gave evidence that there had been ‘no earlier instances of domestic violence’ and that the appellant was ‘drunk at the time of the offending’.
Issues: (1) Whether the sentence is manifestly excessive.
Decision and reasoning: Appeal dismissed.
Aggravating factors considered by the sentencing judge included that:
[32] … the offending occurred in the context of domestic violence …
[the victim] was five months’ pregnant at the time …
It was a lengthy, repetitive and violent bashing of a woman who was considerably smaller and of much lesser strength than you …
You must have been aware of the likelihood of injury to her …
You must have been aware that she would be terrified as a consequence of your attack upon her and terrified of the serious risk of injury to her and to her unborn child.
Priest JA referred to his own comments in granting the application for leave to appeal observing that the seriousness of the offence in this case ‘is not only to be gauged by the injuries caused, but also the manner of their infliction (in this case a protracted and very violent assault on a vulnerable victim)’.
Niall JA observed:
[46] Compounding, to a significant degree, the seriousness of the offence is the fact that it occurred within the context of a family relationship. That fact had two relevant consequences. First, it meant that the offending arose in a relationship of trust. Lee was five months’ pregnant and ought to have enjoyed protection and care from her husband. The breach of trust necessarily made the offending more serious.
[47] Next, the courts must respond to the blight of family violence by imposing punishment that denounces the conduct and adequately addresses general deterrence. Unlike in many cases, there was no basis in the evidence to suggest that there had been earlier incidents of violence. In her evidence, Lee said that the appellant had never assaulted her before. For that reason, the conduct was, on the evidence, an aberration. Lee expressed support for her husband on the plea. However, there remains a very high public interest in punishing family violence, both for its denunciatory and deterrent effect, even where the victim seeks leniency and incarceration would place great pressure on the domestic relationship.
…
[50] Accommodating all of the relevant factors, both aggravating and moderating the sentence, may result in a sentence that represents a high proportion of the maximum, even on a plea of guilty.
Hardwick (a pseudonym) v The Queen [2020] VSCA 227 (7 September 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘False imprisonment’ – ‘History of domestic and family violence’ – ‘Manifestly excessive’ – ‘Separation’ – ‘Strangulation’ – ‘Technology-facilitated abuse’ – ‘Threats to kill’
Charges: False imprisonment x 1; Common assault x 1; Aggravated burglary x 1; Making threats to kill x 1.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant man, who was subject to a protection order, entered the marital home and repositioned the CCTV cameras away from the house. When his female former partner (the victim) came home, he grabbed and restrained her, putting her in a headlock, then pinning her to the ground. The applicant tried to tape the victim’s mouth with duct tape and bound her hands with cable ties before forcing her inside the house. The applicant locked the door and bound the victim’s feet with cable ties. The applicant threatened to kill her. When one of the children arrived at the house, the victim was able to escape from the house. A neighbour called the police.
Grounds: (3) Whether the sentence was manifestly excessive.
Decision and reasoning: Leave to appeal granted for Ground 3.
[55] Coincidentally, on the very day that this application was argued before me, this Court delivered judgment in Hill v The Queen. That case concerned a home invasion by a woman who had been left by her former partner. She armed herself with a knife, forced her way into the house, and stabbed both her former partner and his new girlfriend. She faced charges not only of aggravated burglary, but also two counts of intentionally causing injury. The offending seemed to have been premeditated, and was described by the judge as ‘grievance driven’ and ‘purposeful’. The total effective sentence is 6 years and 3 months, with a non-parole period of 3 years and 6 months. In effect, the motive for the applicant’s conduct in was anger at abandonment, and animosity towards her husband’s new partner.
…
[57] It is noteworthy that the offender in Hill received a non-parole period which was only 6 months greater than that fixed for the applicant. That minimal disparity, of itself, raises a question in my mind as to whether he was treated in accordance with current sentencing practice. It is of some interest to note that the sentencing judge in Hill was the same judge who sentenced the applicant in the present matter. I recognise, of course, that this Court described the sentences imposed in Hill as ‘moderate’, as indeed they were. Be that as it may, I regard the offending in Hill as far more serious than that in the present case.
Hill v The Queen [2020] VSCA 220 (3 September 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Causing injury intentionally’ – ‘Female perpetrator’ – ‘Home invasion’ – ‘Separation’ – ‘Threats to kill’ – ‘Weapon’
Charges: Threat to kill x 1; Aggravated burglary x 1; Causing injury intentionally x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant and her husband separated seven months earlier, when the husband formed a relationship with his new partner. The applicant regularly accused her former partner of infidelity and made disparaging comments about his new partner. The applicant occasionally made threats about killing her former partner and his new partner to the applicant’s daughter, but the daughter did not take these seriously. On 19 October 2017, the applicant assaulted her daughter. The applicant was charged with assault and a protection order was taken out against her to protect her daughter. On the same day, the applicant threatened to kill her former husband, his new partner and his next-door neighbour. Later that day, the applicant carried out the violent home invasion.
The female applicant armed herself with weapons (a length of pipe and a knife) and smashed a window to enter the home of her ex-husband and his new partner. The applicant attacked her ex-husband and his new partner, stabbing them both.
Grounds: The sentencing judge erred in (a) failing to find, on the balance of probabilities, that the applicant had experienced protracted family violence; and (b) finding that the offending was ‘purposeful and grievance-driven’.
Decision and reasoning: Leave to appeal refused.
[4] In seeking leave to appeal, the applicant disputed the judge’s characterisation of the offending as ‘purposeful and grievance-driven’. According to the submission, the true explanation for the applicant’s conduct lay in the history of violence inflicted on her by [former partner] during the marriage. Instead of aligning the case with those involving male-to-female violence following a relationship breakdown, it was said, the judge should have viewed the applicant’s conduct as reflecting the ‘very different psychological pathway’ which results from protracted domestic violence.
That submission was rejected as there was no objective evidence to establish a link between the offending and violence experienced by the applicant during the marriage. All of the evidence before the sentencing judge supported the conclusion that “what drove this very serious offending was the applicant’s distress at having been ‘abandoned’ by her former partner and anger towards [his new partner] for ‘taking’ her husband”.
[37] … in Filiz [v The Queen (2014)], the Court said:
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. … 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 …
[38] In the present case, the offending was perpetrated by a female against her former male partner (and his new partner). But, in our respectful view, the judge was quite correct to view it as falling into the same category of post-separation, anger-driven violence.
[39] In our view, no other conclusion was reasonably open on the material before the Court but that it was that anger — directed both at [her former partner and his new partner] — which was the driving force behind this offending. This was well illustrated by the applicant’s having said to [the victim] that she would ‘never stop’ stabbing her. It may be accepted that the applicant was not making ‘an assertion of possession and control’. But that seems to us to be immaterial. What matters is that, seemingly unable to accept the fact of the separation, the applicant gave vent to her anger and distress by this appallingly violent invasion of [her former husband’s] home.
[40] The position would have been entirely different had there been any evidence before the sentencing judge that prior violence (or threats of violence) by [her former partner] towards the applicant had so affected her as to provide an explanation for the offending. The profound and long-lasting psychological effects of domestic violence are well-established and, where a proper evidentiary basis is established, can have a very significant impact on the court’s view of the culpability of an offender and may even preclude criminal responsibility.
[41] But that was not this case. As defence counsel properly conceded on the plea, there was no such evidence. There was no suggestion, for example, that the applicant had been driven to act in this way by things done to her during the marriage. On the contrary, all the evidence showed that what prompted this attack was the ending of the marriage and [her former partner’s] commencement of a relationship with another woman.
Freeburn v The Queen [2020] VSCA 155 (17 June 2020) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Controlling, jealous, possessive behaviour’ – ‘Intention’ – ‘Past domestic and family violence’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’
Charges: Murder
Case type: Application for leave to appeal against conviction
Facts: The applicant man was convicted of the murder of his female intimate partner and sentenced to 25 years’ imprisonment, with a non-parole period of 20 years. The victim was mildly intellectually disabled and had been the victim of domestic violence in a prior relationship. The applicant acted in a jealous and possessive manner towards her, which sometimes included acts of violence. After the assault which resulted in the victim’s death the applicant left the victim alive, but in a debilitated state and failed to seek assistance. He admitted to having "lost control" and seriously injuring the victim. An autopsy showed the victim suffered around 43 injuries, mostly soft tissue injuries caused by moderate blunt force trauma. Toxicology testing revealed the presence of GHB in her body. Expert witnesses disagreed as to whether the assault caused the victim’s death: one forensic pathologist believed the victim died as a consequence of soft tissue injuries sustained in an assault in the context of her using GHB; another said that the cause of death could not be determined.
Grounds:
1.
The jury’s verdict of guilt was unreasonable and cannot be supported having regard to the evidence. Particulars:
(a)
The evidence failed to prove beyond reasonable doubt that the applicant had caused the death of the deceased.
(b)
The evidence failed to prove beyond reasonable doubt that the applicant had intended to cause grievous bodily harm to the deceased.
2.
The trial miscarried due to the admission of prejudicial evidence that a closed circuit television system had been deactivated prior to the death of the deceased.
Held: Ground 1 was allowed, the murder conviction was set aside, and the Court substituted a verdict of manslaughter. Ground 2 was dismissed.
The Court found that whilst it was open for the jury to be satisfied beyond reasonable doubt that the applicant’s actions, in assaulting the victim, were the substantial and operative cause of her death, it was not reasonably open to be satisfied beyond reasonable doubt that the applicant intended to cause her really serious injury ([106]). Taken at its highest, the admission the applicant made to Witness A was that as a result of causing her death, he had enjoyed or experienced a significant rush of adrenalin ([93]). Further, the Court accepted that a jury could not reasonably conclude that Witness A’s evidence was either truthful or reliable ([94]). Whilst the assessment and credibility of a particular witness is essentially a matter for the jury, that proposition does not preclude the assessment by an appellate court of the evidence given by that witness (Pell v The Queen [2020] HCA 12 (7 April 2020)) ([95]).
The verdict of manslaughter was substituted because the applicant caused the victim’s death by an unlawful and dangerous act and it was inevitable that the jury would conclude that a reasonable person in the applicant’s position would have realised they were exposing the victim to an appreciable risk of serious injury [104]. Leaving the victim in a severely debilitated state and refraining from obtaining medical or other assistance constituted criminal negligence for the purpose of the offence of manslaughter. The evidence was that the applicant was well-aware that the victim required assistance and treatment. It was inevitable that the jury would have been satisfied the applicant’s actions fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk of death or really serious bodily injury, as to merit criminal punishment ([105]).
Ground 2 failed because the prosecution did not put to the jury that the evidence could or should be used as evidence of incriminating conduct by the applicant ([120]) and the judge gave a clear and specific direction to the jury that it should not rely on the evidence, and explained why it was of no probative value ([121]).
Note: The applicant was subsequently resentenced to 12 years imprisonment, with a non-parole period of 9 years: Freeburn v The Queen (No 2) [2020] VSCA 176 (1 July 2020) – Victorian Court of Appeal.
Carter v The Queen [2020] VSCA 156 (15 June 2020) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Covid-19 pandemic’ – ‘Double punishment’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Weapon’
Charges: Recklessly cause injury x 1; intentionally damage property x 1; possess a firearm while a prohibited person x 1; attempt to pervert the course of justice x 1; persistently contravene a family violence intervention order x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant pleaded guilty to recklessly causing injury (grabbing her by the throat causing bruising and breathing difficulty), intentionally damaging property, possessing a firearm while a prohibited person, attempting to pervert the course of justice (a number of phone calls demanding the victim retract her statement), and persistently contravening a family violence intervention order. He also pleaded guilty to a series of related summary charges, including failing to store a firearm in a secure manner, possessing cartridge ammunition while unlicensed, and committing an indictable offence while on bail. The offending occurred in the context of family violence within a domestic relationship. The applicant was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.
At the time of the offending, the applicant lived with his former partner (the victim). They had been in a ‘turbulent "on again, off again"’ relationship for around 16 years. The applicant had been subject to 3 intervention orders and a family violence safety notice prior to the present offending. The relationship came to an end, however, the victim and their daughters had continued to visit the applicant in custody until the recent COVID-19 pandemic.
In relation to the most serious charge of attempting to pervert the course of justice, the sentencing judge noted the fear that the victim must have experienced as a result of the applicant’s threats over the phone ([20]). The offences involving the possession of the firearm were linked to, and committed "because of [the applicant’s] mental state with the intention of self-harm" ([22]). With regard to the applicant’s prospects of rehabilitation, his Honour accepted that the offending occurred "in the context of a daily methamphetamine habit". The applicant had a long history of addiction to drugs, and his prospects of rehabilitation were considered guarded ([25]). The applicant’s guilty pleas, however, entitled him to a reduction in sentence ([26]). His criminal history related mainly to driving or drink-driving offences ([27]). With regard to the applicant’s Indigenous background, the judge took into account the fact that he came from a disadvantaged background, experienced deprivation and poverty, suffered from learning difficulties, and had been exposed to substance abuse and mental health issues ([28]).
•
The sentence was manifestly excessive.
•
The applicant had suffered double punishment in that the base sentence of 2 years imposed on charge 4 (attempt to pervert the course of justice), and the sentence of 6 months imposed on charge 5 (persistent breach of intervention order), had resulted in 3 months cumulation.
•
The totality principle was offended in cumulation of sentencing.
•
Insufficient weight was given to prospects for rehabilitation based on the applicant’s limited history of prior offending, his not having served a previous term of imprisonment, Aboriginal background, difficulties faced while in prison and efforts made to participate in programs while on remand.
Held: The Court of Appeal held that the sentence imposed on the charge of attempting to pervert the course of justice was not manifestly excessive. The applicant’s conduct was persistent and involved repeated threats of violence to the victim ([69]). "An attempt to pervert the course of justice is a substantive, and not an inchoate offence", and "any conduct that meets [its] description must be viewed seriously and denounced appropriately" ([70]). The submission in relation to double punishment was rejected as the elements of charges 4 and 5 were separate and distinct: "The criminality involved in attempting to persuade [the victim] to withdraw her complaint against the applicant, through the use of threats, harassment, and a form of emotional blackmail, was conceptually, and practically, separate from the deliberate and persistent contraventions of the family violence intervention order". The judge was therefore entitled to order some degree of cumulation between them ([72]). Ground 4 also failed as the judge considered all relevant matters, and it was open, on the evidence, to conclude that the applicant’s prospects of rehabilitation were guarded ([73]). As there was no error by the sentencing judge, the Court refused leave to appeal.
Stapleton v The Queen [2020] VSCA 147 (4 June 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Application for leave to appeal against sentence’ – ‘Gambling’ – ‘Guilty plea’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Theft’
Charge(s): Aggravated burglary x 1; intentionally causing injury x 1; intentionally damaging property x 1; theft x 1; unlawful assault x 1
Case type: Application for leave to appeal against sentence
Grounds: The sentence was manifestly excessive, in particular:
1.
the sentences imposed on the charges of aggravated burglary, intentionally causing injury and unlawful assault were manifestly excessive;
2.
the learned sentencing judge placed excessive weight on a finding of a lack of remorse, and insufficient weight on compelling mitigating factors (such as his guilty plea, prior good character and the absence of prior convictions); and
3.
the orders for cumulation infringed the totality principle and produced a manifestly excessive total effective sentence and non-parole period.
Facts: In 2018, the applicant man pleaded guilty to a series of offences committed against his wife of 20 years (the victim). The offending occurred in the context of the breakdown of their domestic relationship, in the early hours of the morning at the victim’s home. He broke into the house, pushed the victim against the wall, and assaulted her boyfriend. When the victim sought to intervene, the applicant verbally abused her and threw her against the bedroom wall, causing her head to go through the plaster. The applicant continued to punch the victim’s boyfriend, and after another attempted intervention by the victim, he threw her across the room. He also damaged her boyfriend’s car. The applicant left the premises but returned about half an hour later. Once again, he barged through the front door, entered the bedroom, grabbed the victim’s hair and threw her against the wall, and continued to physically abuse her boyfriend. He also punched the victim in the face. While she was attempting to contact her friend, the applicant snatched her phone and left the house with it. The applicant was arrested later the same morning.
At sentence, the judge noted that the applicant had been drinking heavily and told police that there had been a slow build-up of emotion. His account to police was also seen as an attempt to minimise his conduct ([23]-[25]). Further, the sentencing judge stated that "offending of this nature is all too often perpetrated by men who respond to difficulties in a relationship, with possessive, violent rage" ([27]). Mention was also made to the victim impact statements which detailed the applicant’s history of domestic violence towards the victim, specifically in the form of mental abuse ([28]-[29]). The applicant had a lengthy history of heavy drinking and extensive difficulties with gambling, which resulted in the sale of the family home in order to pay his debts ([32]). The judge characterised the motive for the applicant’s offending as a desire to exact revenge for the victim’s having interfered in his relationship with another woman, and observed that his return to the house on the second occasion demonstrated a degree of premeditation. The applicant had no prior convictions ([33]). His guilty plea was not made at the earliest opportunity, and in his record of interview, he sought to downplay the gravity of the offending, blamed the victim for his behaviour, and falsely denied having punched her boyfriend ([34]). In these circumstances, her Honour was not persuaded that the applicant "deeply regretted his wrongdoing and desired to atone for it". While there was some level of remorse, this was not given much weight ([36]). Her Honour also explained that a combination sentence was inappropriate as the offending was too serious ([38]). He was sentenced to a total effective sentence of 3 years’ and 7 months’ imprisonment, with a non-parole period of 2 years.
Held: The Court of Appeal granted leave to appeal and dismissed the appeal. It stated that "aggravated burglary, where the offender’s intent is to assault and injure a former domestic partner, must always be regarded as an offence of a serious nature" ([60]). The appeal ground of manifest excessiveness was difficult to maintain in light of the aggravated burglary and serious assaults committed on that second occasion ([62]). The Court held that the sentencing judge took into account and gave weight to all relevant mitigating factors. The applicant did not succeed in his submission that the judge erred in her finding that little weight should be given to his remorse, as she "took great pains to explain why, putting to one side the remorse associated with the plea of guilty, she could give little weight to what the applicant had told various third parties about how he felt" ([64]-[65]).
Johns v The Queen [2020] VSCA 135 (29 May 2020) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mental element’ – ‘Obsessive behaviours’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Unsafe and unsatisfactory verdict’
Offences: Recklessly cause serious injury in circumstances of gross violence; Intentionally destroy property
Proceedings: Application for leave to appeal against conviction; Application for leave to appeal against sentence
Grounds (conviction):
1.
The jury verdict was unsafe and unsatisfactory, where there was a marked disparity between the size and weight of the appellant’s car and the victim’s truck and trailer such that it was not open to the jury to find that by consciously voluntarily and deliberately colliding with the truck and trailer she:
(a)
Foresaw the likelihood that the collision would cause serious injury, or
(b)
When planning her conduct, either intended, was reckless that or foresaw it was more likely than not that her conduct would cause serious injury to the victim.
2.
The judge incorrectly directed the jury that the Intentionally destroy property charge could be established by an intent to damage or destroy the truck, when the indictment alleged that the appellant intended to destroy the truck, resulting in a miscarriage of justice.
Grounds (sentence):
1.
The judge erred by applying the wrong test under s 10A(2)(e) Sentencing Act 1991 (Vic) when considering whether "special reasons" existed to justify imposing a non-parole period of less than four years.
2.
The judge should have imposed a large, if not complete, degree of concurrency in relation to the sentences for the two charges.
3.
The head sentence imposed was outside the permissible range, the non-parole period was excessive, and the judge failed to give sufficient weight to the appellant’s previous good character and prospects of rehabilitation.
Facts: The female applicant was driving a Toyota Camry car when it collided with a truck and tanker trailer which was driven by the male victim. The vehicles were travelling in opposite directions on an open stretch of highway; the applicant’s car crossing the centre line and colliding with the front right-hand side of the truck. The truck rolled, causing the victim serious injury (a severe laceration to his scalp and two fractured vertebrae in his neck) and extensive damage ($900,000 worth) to the truck and trailer (which were later written-off). The applicant sustained minor injuries.
The applicant and victim had been in a sexual relationship for some time and had a daughter together, although they disagreed as to the nature of the relationship (the victim believed it to be only sexual/physical while the applicant was "besotted" with the victim). When the victim was driving his truck, the appellant would often follow him in her car and turn up at his home. On the day of the offending, the victim had stopped for a break at a parking bay and was approached by the applicant who threw the remote control to the victim’s garage at him, told him she was pregnant and yelled "I’ll kill you" before driving off. The applicant had stated on numerous occasions that "if she couldn’t have [the victim], nobody would" and that she should "take him out" by "driving straight into him".
The applicant was convicted of recklessly causing serious injury in circumstances of gross violence and intentionally destroying property, and sentenced to seven years’ imprisonment with a non-parole period of five years.
Judgment: The court dismissed the application for leave to appeal against conviction. The court rejected Ground 1, finding that it was open to the jury to conclude that the appellant knew the collision would probably cause serious injury to the victim because of the nature of the collision (high speed, head-on, on an open road) and the threats made by the applicant [40]. The court noted that "The issue for the jury was not which of the two drivers bore the greatest risk of injury but whether the applicant knew the truck driver would probably be seriously injured" [39]. The court also rejected Ground 2, finding that the applicant did not seek to make a distinction between damage and destruction at trial [48] and in any event, any disconformity between the indictment and the way the case was run at trial could have been resolved by amending the indictment [49].
The court also dismissed the appeal against sentence. The court rejected Ground 1, finding that while the judge incorrectly approached s 10(1) as if it called for an assessment of a non-parole period for the s 15B offence alone, the answer the judge gave to that assessment demonstrated that "there was never any possibility of a non-parole period for the whole of the offending of less than four years" and that there was no basis to consider that the judge could have found substantial and compelling circumstances justifying a non-parole period of less than four years [94]. The court further held that, "When regard is had to the additional criminality of the conduct underpinning [the Intentionally destroy property charge], we are satisfied that any error in applying the ‘special reasons’ provisions could not have played any role in the sentence imposed on the individual charges or in setting the non-parole period" [94].
The court also rejected Ground 2, holding that the two charges were very serious, and separate, offences and the extent to which the sentences were to be made concurrent was the discretion of the sentencing judge [99]. The court further rejected Ground 3, holding that neither the sentence nor its constituent parts were wholly outside the permissible range [100]. The court noted that the offending was grave and "exceptionally dangerous conduct" that had "very serious consequences" for which the conduct needed to be denounced and punished [103]. The appellant did not have the utilitarian benefit of a plea and there was no evidence of remorse [103].
Laa v The Queen [2020] VSCA 136 (28 May 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Children’ – ‘Manifestly excessive’ – ‘Misuse of alcohol’ – ‘Non-fatal strangulation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Threats to kill’
Offences: Using a carriage service to menace, harass or cause offence; Aggravated burglary; Common assault; Making a threat to kill.
Proceedings: Application for leave to appeal against sentence
Grounds:
1.
The sentence was manifestly excessive.
2.
The findings by the judge concerning the applicant’s level of remorse, and his prospects for rehabilitation, were not supported by the evidence.
Facts: The male applicant commenced a relationship with the female victim in 2006 and the couple had two children together. Their relationship involved periods of separation and reconciliation. During the periods of separation, the applicant would stay at the victim’s house overnight on the days he would see the children. However, the overnight stays and the regular visits to see the children ceased after several arguments between the applicant and the victim. One night, the applicant sent the victim 14 text messages, threatening to come after her and kill her. The next morning, the applicant went to the victim’s house and banged on the front door repeatedly. The victim told the applicant to leave and that she had called police. The applicant tried to break open a sliding door with an outdoor chair but failed, so smashed two front windows and entered the house through the unlocked front door. The victim secured herself and the children in her bedroom by placing a wedge under the door but the applicant forced the door open. The victim was on the phone to 000, so the applicant took the phone, terminated the call and hit the victim repeatedly on the head, face and neck with the phone. The children were crying as this occurred.
The victim fled outside but the applicant followed her and dragged her indoors where he forced her to the ground, choked her and told her he would kill her and her family. The applicant took the children and placed them in the car, then returned and punched the victim in the face, knocking her to the ground. He drove off (during which time the victim called 000) but returned and started banging on the front door again. The victim let him in because she did not want to antagonise him. The applicant locked the front door and punched her in the face a number of times, telling her that he would kill her whole family. Police arrived and arrested the applicant who denied the assaults and the threats to kill. He was convicted on all charges and sentenced to four years’ imprisonment with a non-parole period of two years and two months.
At trial, the court accepted that the applicant was a refugee from South Sudan [20] and that he began drinking excessive quantities of alcohol due to his financial struggles and it was in this context that the offending occurred [23].
Judgment: The court dismissed the appeal. In rejecting Ground 1, the court held that the offending was particularly serious and the applicant’s moral culpability was high [53], despite the mitigating factors being "quite substantial" [55]. The court noted that "confrontational aggravated burglaries, in the setting of an underlying domestic dispute, are all too prevalent in our society. They are calculated to cause lasting and serious physical and emotional harm to the victim. By their nature, such offences have the potential to escalate into incidents that result in serious harm and, on occasion, human tragedy" [50]. As a result, general deterrence is of significance in such cases [50], as is condemnation by the courts of such conduct [51]. The court further noted that "The courts have made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable" and the fact that the assaults occurred in the presence of the couple’s children was a serious aggravating factor, a "serious breach of [the applicant’s] duty as a parent towards his own children" and an "appalling example" of behaviour for the children, particularly the son [52].
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Ballantyne v The Queen [2020] VSCA 115 (11 May 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Early plea’ – ‘Loaded firearm’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Substance abuse’ – ‘Suicide threat’ – ‘Threat to kill’
Offences: Carrying a loaded firearm in a place with reckless disregard for the safety of another x 1; Making a threat to kill x 1; Possessing drug of dependence x 1; Contravention of family violence intervention order x 2; Failing to store a category A/B long arm correctly x 1; Failing to store category A/B long arm ammunition correctly x 1; Possessing a prohibited weapon x 1
Proceedings: Application for leave to appeal against sentence
Issue: Whether sentence was manifestly excessive.
Facts: The appellant man and female victim had been in a relationship for 14 years and were married at the time of the offending. The appellant threatened to kill himself in front of the victim, leaving the house and returning with a shotgun. He swung the shotgun in front of the victim like a baseball bat, then touched the barrel to her forehead before pushing it into her eye socket and threatening to kill her "slowly" [25]. The appellant fired a shot into the TV then pointed the gun back at the victim’s head and threatened to shoot her again [25]. The victim was held like this for around three hours. The appellant plead guilty and was sentenced to four years and three months’ imprisonment, with a non-parole period of three years and six months. At the sentencing hearing, the appellant alleged that he did not remember the incident. Medical evidence was also tendered showing that the appellant had a history of depression and alcohol abuse, but that he had committed to make improvements and had ceased alcohol and prescription medication [17].
The appellant appealed against this sentence on the following grounds:
1.
The individual sentences on charges 1 and 2 and the total effective sentence are manifestly excessive.
2.
The non-parole period is manifestly excessive and in particular:
1.
The ratio of 17.65% of the head sentence is manifestly low having regard to the fact that the applicant had no relevant prior convictions and his prospects for rehabilitation were relatively good;
2.
The purported reason for this ratio that ‘… there is potently no remorse …’ … was not a good reason for denying the applicant a greater period of parole; and
3.
The learned sentencing judge erred in finding that in the circumstances there was ‘… potently no remorse …’ ….
3.
The learned sentencing judge erred in finding that there was a complete absence of remorse, and as a result the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
Held: The court refused to uphold ground 1 as the sentences were not manifestly excessive. The conduct founding the Making a threat to kill charge "constituted a very serious example of the offence" [25] and that, balancing the seriousness of the offending with the mitigating factors (see [24]), the sentence was proportionate [26] and punished the appellant to an extent just in all the circumstances [28]. Even though the sentence imposed was more lengthy than the general trend for the offence of threat to kill in recent cases, "[s]entences in comparable cases … are not precedents which must be applied", but each case must turn on its own facts [28].
However, the court upheld ground 2, providing that the finding by the sentencing judge that the appellant was not remorseful did not justify the imposition of a relatively high non-parole period [32]. The purpose of fixing a non-parole period is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate" (Power v The Queen (1974) 131 CLR 623 at 629). The court substituted a non-parole period of two years and six months [33].
Furthermore, the court partially upheld ground 3, finding that the trial judge erred in finding that there was a complete absence of remorse. The court provided that it considered "that there was some evidence of remorse to be drawn from the early pleas of guilty and from the applicant’s insight and incipient commitment to reform" [19]. The court referred to its reasons for finding against the remainder of ground 3 (namely, whether the sentences and non-parole period were manifestly excessive).
Zakkour v The Queen [2020] VSCA 72 (26 March 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Breach of protection order possession of weapon’ – ‘Separation’
Charges: Criminal damage x 1; attempt to pervert the course of justice x 1; possess prohibited weapon x 1; contravene family violence intervention order x 1
Case Type: Application for leave to appeal against sentence for possess prohibited weapon
Facts: In 2019, the applicant went to his former partner’s property and caused damage. He was arrested the next day, and police searched his vehicle and found a home-made laser pointer. While in custody, he made telephone calls whereby he attempted to have people call his former partner and ask her to withdraw her police statement. The applicant pleaded guilty to criminal damage, and attempting to pervert the course of justice. He also pleaded guilty to 2 summary offences, carrying a prohibited weapon and contravening a family violence intervention order. The applicant was sentenced to a total effective sentence of 2 years’ imprisonment, with a non-parole period of 15 months. The individual sentence imposed on the weapon offence was 2 months’ imprisonment to be served cumulatively on the sentences for the other offending.
Ground: The sentence and the order for cumulation on this charge was manifestly excessive because, inter alia, the offending was not aggravated in any material way and the accused pleaded guilty to the offence at the earliest available opportunity.
Held: The Court allowed the appeal, set aside the sentence on the weapon offence, and ordered that the applicant be convicted and discharged on that charge. The applicant’s counsel submitted that the laser pointer had not been used as a weapon, and that it was not used in connection with any of the other offending. Despite the fact that the applicant had prior convictions for possessing controlled and prohibited weapons, it was clear that the sentence for the weapon offence was "egregiously excessive", given the intrinsic nature of the weapon, the lack of material as to whether the applicant had or would have used it, and the complete absence of evidence supporting the sentencing judge’s findings that it was potentially dangerous and could cause injury ([18]). As a consequence, the total effective sentence was amended to 22 months’ imprisonment with a non-parole period of 13 months.
Tedford v The Queen [2020] VSCA 71 (26 March 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Attempted murder’ – ‘Guilty plea’ – ‘Manifestly excessive’ – ‘Motor vehicle’ – ‘Older people’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Suicide attempt’
Charges: Attempted murder x1; Reckless conduct endangering persons of serious injury x1.
Appeal Type: Application for leave to appeal against sentence
Ground: The individual sentence on Charge 2, order for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the five-year maximum penalty for the offence, the fact that it was committed in the context of a suicide attempt, and the significant factors in mitigation, including the applicant’s early pleas of guilty, advanced age and ill health, and prior good character.
Facts: The applicant was sentenced to eight years’ imprisonment on the charge of attempted murder of his wife and two years and six months’ imprisonment on the charge of reckless conduct endangering persons of serious injury for driving his vehicle into a train. On year of the sentence or chare 2 was cumulative on the sentence for charge 1, resulting in a total effective sentence of nine years’ imprisonment.
The applicant 77 year old man and female victim were married but had separated at the time of offending, the wife moving out of the family home into a bungalow at the back of the property. On the day of offending, the applicant and victim had consumed a large amount of alcohol together and the applicant became argumentative [5]. The victim suggested the applicant see a psychologist. That evening, the applicant told a friend that he felt depressed, he needed his wife to look after him to survive and that "if anything were to happen to him, [the friend] should make sure he claimed a Holden Kingswood motor car presently garaged at the applicant’s home" [5]. Two hours later, the applicant entered the wife’s bungalow and deadlocked the door behind him before saying "I’ve got something for you" and producing a large knife [6]. He proceeded to stab the victim 13 times, including defensive injuries, mostly to the chest and arms. The applicant stated that he was going to kill both himself and the victim during the attack. The victim also suffered blunt force trauma and other lacerations before managing to escape the offender when he fell over and struck his head.
The applicant then drove away from the property. "A dash camera recorded him in a confused, angry and emotional state of mind. He expressed disbelief that he had not killed his wife [and] then discussed with himself how he could kill himself" [8]. The applicant then proceeded the drive his car into a train. "The train struck the driver’s side of the applicant’s car, pushing it for a considerable distance. No one on the train was injured" [8] and the applicant did not sustain substantial injuries.
Judgment: Leave to appeal against sentence was refused [41]. To demonstrate manifest excess "an applicant must demonstrate that the impugned sentence is ‘wholly outside the range’ of sentences available for that particular offence in the relevant circumstances" [29]. Likewise "arguments for excessive cumulation must fail unless an applicant can demonstrate that the order for cumulation is manifestly excessive" [30]. The sentence for the reckless conduct charge was not manifestly excessive: "[w]hilst a sentence of 50 per cent of the maximum available upon a plea of guilty to a man in the applicant’s circumstances can reasonably be viewed as ‘stern’, we are not persuaded that it is beyond the range of sentences reasonably available to his Honour."[36] The cumulation of one year upon the base sentence for attempted murder was also not manifestly excessive. The sentence for attempted murder "represents less than a third of the maximum penalty available for what was an appalling example of domestic violence, committed with homicidal intent. Whilst old age, ill health and an almost pristine criminal history all counted in the applicant’s favour, in the face of his conduct towards his wife, it could not count for a great deal" [38]. The sentence was moderate in all the circumstances. In considering the appropriate degree of cumulation the sentencing judge appropriately considered "the temporal and circumstantial relationship between the offences" and specifically considered the sentencing factors such as overall criminality, general deterrence and the principle of totality.
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Guirguis v The Queen [2020] VSCA 48 (13 March 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Children’ – ‘Community correction order’ – ‘Family violence’ – ‘Guilty pleas’ – ‘People affected by substance misuse’ – ‘Sexual and reproductive abuse’ – ‘Threats to kill’ – ‘Uncharged act’
Charges: Sexual assault x 1; Make threat to kill x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant man and the female victim were in a relationship for 11 years and had 2 children. The relationship terminated in 2016. Before the relationship ended the applicant allegedly forced the victim to engage in oral sex (Charge 1) and, months later, told the victim that he would ‘slit her throat’ if she ever left with the children (Charge 2). The applicant also said he would ‘take [the children] out too’ which constituted an uncharged act. In 2016, an interim protection order was granted in favour of the victim and the children, and in 2017 a final intervention order was made for an indefinite period. Relevantly, the applicant had been sentenced at the Magistrate’s Court in early-2017 to 91 days’ imprisonment, combined with an 18 month Community Correction Order for other offending against the victim that occurred on the same date on which the offending giving rise to Charge 2 in the present matter occurred ([3]-[14]).
In sentencing the applicant, the judge recognised that the victim suffered profound trauma as a result of the applicant’s degrading, cruel and humiliating treatment of her. These adverse effects continuously and significantly affected her. Given the seriousness of the offending, there was a need for stern punishment to achieve general and specific deterrence and denunciation ([22]). The applicant, on pleas of guilty, was sentenced to 23 months’ imprisonment in combination with a 3-year Community Correction Order (CCO). The sentence imposed in early-2017 and time that the applicant had spent in a residential drug rehabilitation clinic were relevant to totality.
Issue: The applicant completed the term of 23 months’ imprisonment in February 2019 and sought leave to appeal on the grounds that the sentence of imprisonment followed by a 3-year CCO is manifestly excessive.
Held: The Court refused leave to appeal ([38]). The two offences constituted serious acts of family violence and the offending was not isolated ([33]). Further, a CCO was necessarily and properly punitive, and was structured towards advancing the applicant’s rehabilitation and community protection ([34]). It could not be said that the decision to attach a CCO to the term of 23 months’ imprisonment was clearly or wholly outside the range open to the sentencing judge, and there was no error of principle ([36]). The offending was ‘grave’ as the applicant’s conduct towards the victim was ‘cruel and degrading’, ‘designed to be humiliating and hurtful’, and resulted in substantial trauma ([37]). The sexual assault was described as a ‘humiliating and degrading act’. Further, the threat to kill was ‘chilling and menacing, and had a traumatic and ongoing effect’ on the victim ([33]). The conduct resulted in profound trauma.
Vu v The Queen [2020] VSCA 59 (23 March 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Totality principle’
Offences: manslaughter x1; attempted murder x1and recklessly causing serious injury x1.
Proceedings: Appeal against sentence
Facts: The applicant man and the female victim lived together in a domestic relationship for many years and had two children together. In 2013 the applicant was charged with drug-related offences and imprisoned for three years. During this time, the female and male victims commenced a relationship and were married. Shortly before the applicant was released, the male victim moved out of the female’s house and into a nearby residence. They continued their relationship in secret after the applicant was released and resumed living with the female victim.
The applicant was later informed of the victims’ relationship and confronted them about it. The victims’ stated they were just friends, but the applicant refused to accept their denials. The applicant then grabbed a hunting knife he had previously hidden and stabbed both victims in the chest. The male victim died at the scene and the female was seriously injured, though there was no evidence of any permanent or ongoing impairment as a result of the injury.
Applicant was charged with murder of the male victim and attempted murder of the female victim and in the alternative either intentionally or recklessly causing serious injury. Prior to trial the applicant offered in writing to plead guilty to manslaughter. No offer was made in respect to the charges relating to the female victim’s injuries. Following trial he was convicted of the manslaughter of the male victim and recklessly causing serious injury to the female victim. He was given a total effective sentence of 15 year’s imprisonment with a non-parole period of 11 years.
Grounds of appeal:
•
The order for cumulation was excessive and thereby infringed the totality principle.
•
The learned sentencing judge erred by granting the applicant only a modest benefit for the utilitarian value of his plea offer.
•
The learned sentencing judge erred by granting the applicant no benefit for his plea offer other than for its utilitarian value.
•
The learned sentencing judge erred by not treating the applicant’s post-offence conduct as mitigatory.
•
The individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly excessive, particularly in light of:
◦
The totality principle (see ground 1 above);
◦
The finding that the recklessly causing serious injury was mid-range example of the offence;
◦
The applicant’s offer to plead guilty (see grounds 2 and 3 above);
◦
The mitigatory effect of the applicant’s conduct immediately after the offending (see ground 4 above);
◦
There being, it is argued, some evidence of remorse, acceptance of responsibility and a willingness to facilitate the course of justice;
◦
The finding that the applicant’s prospects of rehabilitation are ‘quite good’;
◦
The finding that specific deterrence ‘does not loom large’ in this case.
Held: The Court allowed the appeal on against sentence on grounds 1 and 5 (in part), limited to the order for cumulation only. The order for cumulation was quashed and ordered a total effective sentence of 13 years and six months’ imprisonment with a non-parole period of 10 years.
In regard to Grounds 2 and 3, the Court held the sentencing judge was entitled to consider the utilitarian value of the applicant’s offer to plead guilty as ‘relatively modest’ given the overall circumstances of the case and rejected the second ground. While the offender offered to plead guilty, this is not necessarily a sign of remorse and agreed with the sentencing judge’s conclusion that the offer was most likely motivated by pragmatic considerations [40], thus also rejecting the third ground. In light of the Court’s rejection of an inference of remorse, they noted that the sentencing judge’s reasoning "embraced a consideration of the entirety of [the] post-offence conduct, favourable and unfavourable to the applicant" and rejected the fourth ground [44].
Turning to Grounds 1 and 5, the Court noted that while the individual sentences were each particularly stern but not wholly outside the range of sentencing discretion [48], this was not the case for the order for cumulation. "Given the very significant overlap in time, context and conduct, and particularly, the high sentences imposed on both charges, [the Court] consider[s] that the principles of totality and proportionality ought to have operated to moderate the order for cumulation to a considerably greater extent" [54]
Brown v The Queen [2020] VSCA 26 (20 February 2020) – Victorian Court of Appeal
‘Credibility’ – ‘Fair trial’ – ‘Fresh evidence’ – ‘Lack of disclosure’ – ‘Physical violence and harm’ – ‘Retrial’
Charges: Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury – acquitted following trial); Charges 3 and 4 (intentionally causing injury – acquitted - and alternatively recklessly causing injury - convicted); Charge 5 (common law assault - acquitted)
Case Type: Application for leave to appeal against conviction on charge 4
Facts: The charges related to two occasions on which the applicant man was alleged to have assaulted the complainant woman, with whom he was then in a de facto relationship. Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury) concerned an allegation that the applicant threw the complainant, causing her to hit her head. Charges 3 and 4 (intentionally causing injury and alternatively recklessly causing injury) related to an allegation that the applicant, on a different day, grabbed the complainant’s arms and held her down, causing bruising to her arms and back. It was alleged that immediately after that incident, the applicant also pushed her, constituting the basis of Charge 5 (common law assault). The applicant was found guilty of Charge 4, acquitted on the other charges and, following a plea, was convicted and fined $4,000 ([1]-[4]).
After verdict, the prosecution served a victim impact statement from the complainant, to which a document called ‘Initial report - Recommendation for more than five hours of counselling’ was attached. The report noted that the complainant consulted a psychologist and recounted events the subject of Charges 3 and 4. The appellant submitted that this was the first occasion, known to him, that the complainant had given a different account in which it was suggested that he had thrown her across the room against the wall ([9]-[10]). Applying the principles in R v Nguyen and Tran to the relevant evidence, the appellant submitted that although the report existed at the time of trial, he exercised reasonable diligence in obtaining relevant records and this had failed to result in the production of the report. It was argued that his legal representatives sought disclosure of various documents which would have included the report; that he sought production of the victim impact statement during committal proceedings and the complainant refused to provide it at that time; and that he obtained a subpoena to compel the complainant to produce the victim impact statement. The appellant contended that as he was acquitted on Charges 1, 2 and 5 and given the case largely turned on the complainant’s evidence, the existence of a different version of events as evidenced in the report potentially further undermined the complainant’s credibility ([12]-[13]).
Grounds of appeal:
1.
The prosecution failed to disclose relevant information in its possession; and
2.
fresh evidence that is now available since the time of conviction would have led the jury to hold a reasonable doubt as to the applicant’s guilt or would have given rise to a significant possibility that the jury would have held such doubt.
The respondent conceded Ground 2, and in light of this, the applicant did not press Ground 1 ([5]-[6])
Held: Having decided Ground 2 was established, the Court was required to determine whether to order a new trial or enter a judgment of acquittal. The report met the threshold for fresh evidence and, had the evidence been before the jury, there was a significant possibility that the appellant would have been acquitted on Charge 4 ([18]).
In determining whether to order a new trial, the Court considered that the appellant would be compromised in his ability to test the complainant’s evidence on Charge 4 by reference to the inconsistencies in the complainant’s account of events which underpinned Charges 1, 2 and 5. Any disadvantage to the appellant would be particularly acute in relation to Charge 5 which was so closely tied in time and context to Charge 4 ([35]). The Court drew an analogy with R v Bartlett ([37]), and held that a retrial of Charge 4 alone would be ‘unfair’. Consequently, the Court allowed the appeal, set aside the conviction on Charge 4 and entered judgment of acquittal on that charge ([39]).
The Court emphasised the public interest in seeing allegations of domestic violence, where there is sufficient evidence to sustain a conviction, being prosecuted in accordance with the law ([25]). The gravity of domestic violence is not solely measured by the extent of the physical injury. Women and children ‘who suffer the brunt of domestic violence’ are entitled to feel safe and secure in their own homes. Other ‘very important factors’ the Court will consider in assessing the severity of a particular offence include the breach of trust reposed in a domestic partner and the compromising of the security of the home ([26]).
Director of Public Prosecutions v Ristevski [2019] VSCA 287 (06 December 2019) – Victorian Court of Appeal
‘Manifestly inadequate’ – ‘Remorse’
Offence: Manslaughter
Proceedings: Crown appeal against sentence
Issues: Whether sentence was manifestly inadequate;
Whether sentence was manifestly inadequate;
(a)
failed to fix a sentence commensurate with the circumstances of the offending, giving too much weight to the lack of information about the unlawful and dangerous act;
(b)
failed to have sufficient regard to significant aggravating features when determining the nature and the objective gravity of the offending (cf the circumstances of the killing), particularly in the context of family violence and the breach of trust;
(c)
failed to have sufficient regard to the impact of the Respondent’s offending on the victims;
(d)
failed to give sufficient weight to the principles of general deterrence, specific deterrence, denunciation and just punishment;
(e)
failed to have sufficient regard to the maximum penalty for the offence; and
(f)
placed too much weight on the matters in mitigation, particularly in light of the lack of remorse, including the Respondent’s plea of guilty and prospects of rehabilitation.
Facts: The exact events surrounding the offence are unclear. What is known is that the respondent husband "killed [the victim (his wife) by unlawful and dangerous act(s); put her body into the body of her car; and disposed of [and concealed] her body in a remote location" [4]. When later questioned about his wife, the offender lied to relatives and police by claiming that she "had left the family home after they had an argument saying that she was going to clear her head" but never returned [5].
There was no evidence of earlier domestic violence in the relationship. He was convicted on his plea of guilty to manslaugter following a contested committal where the charge was murder.
Held: The offender was resentenced by majority to 13 years’ imprisonment with non-parole period of 10 years.
The sentence was held to be manifestly inadequate, with Priest JA stating the "sentence imposed on the respondent was far too low to reflect the needs of general deterrence, denunciation and just punishment". The disposal of the wife’s body was treated as a significant aggravating factor and "emblematic of [the offender’s] complete lack of remorse" [73]. The domestic setting of the offence was also an aggravating circumstance, with Ferguson CJ and Whelan JA providing that while "there was a time when the seriousness of such domestic violence offences was not properly recognised. That is no longer the case…[The wife] should have been able to live without any fear in her own home. It should have been a safe place for her" [10]. General deterrence and denunciation were particularly significant. These factors were not sufficiently outweighed by the offender’s previous good character, prospects of rehabilitation or the utilitarian value of his guilty plea.
DPP v Smith [2019] VSCA 266 (21 November 2019) – Victorian Court of Appeal
‘Intervention order’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’
Charges: 3 x causing injury intentionally; 1 x false imprisonment; 1 x rape; 1 x make a threat to kill; 2 x contravention of Final Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence.
Facts: The offending involved intentionally causing physical injury, threatening to kill, false imprisonment, rape and breaching FVIOs. The respondent and complainant were in an intermittent de facto relationship for a few years prior to the offending. The respondent was sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
Issue: The appellant appealed against the sentence on the grounds that it was manifestly inadequate, and that the learned sentencing judge failed to:
•
Properly consider the objective gravity of the offending;
•
Give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and community protection;
•
Give sufficient weight to the maximum penalties for the offences; and
•
Give sufficient weight to the impact of the offending on the victim.
Held: Manifest inadequacy is difficult to establish ([28]). Nevertheless, the respondent was re-sentenced to 10 years and 6 months’ imprisonment with a non-parole period of 8 years. Notwithstanding the factors relied upon in mitigation ([21]), several of the individual sentences imposed and the orders for cumulation were found to be inadequate, and therefore produced a total effective sentence that was below the range of sentences available to the sentencing judge so as to reveal an error of principle ([28]). Personal factors included: history of drug and alcohol abuse; criminal history which included a number of dishonesty and drug matters, assault and robbery, intentionally and recklessly causing injury, and failure to comply with court orders; a disadvantaged and dysfunctional upbringing; and low cognitive functioning. However, in the Court’s view, there was a need for both specific and general deterrence, given the respondent’s long history of violence, especially towards the complainant ([34]-[35]). The offending in question was ‘brutish, cowardly…and calculated to humiliate and degrade a powerless, diminutive woman’ ([32]). The Court also noted that ‘people considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of [the] community and will not hesitate to impose stern punishment upon wrongdoers’ ([35]).
DPP v Evans [2019] VSCA 239 (25 October 2019) – Victorian Court of Appeal
‘Attack on former partner's new partner’ – ‘General deterrence’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’
Charges: Causing serious injury intentionally x 1
Proceedings: Appeal against sentence
Facts: The respondent pleaded guilty following a self-serving confession 4 years after the assault having previously denied all involvement several times. The DPP appealed the sentence and non-parole period. The complainant, who had been involved in a domestic relationship with the respondent’s estranged wife, sustained life-altering and life-threatening injuries as a result of being struck with a metal bar. The original sentence was 5 years and 6 months with a non-parole period of 2 years and 9 months.
Issues: Whether the individual sentence and non-parole period are each manifestly inadequate.
Decision and reasoning: Appeal allowed and resentenced to 7 years and 6 months with non-parole period of 4 years 6 months. The discount given for the respondent’s confession was too great, as the respondent’s admissions did not go so far as to warrant a full discount.
The court also considered that the seriousness of offending called for a stern response and strong denunciation, as this was a case of extraordinary violence which had a devastating impact on the victim ([83]).
"[84] There is a further important consideration, that of general deterrence. This was a violent act of reprisal following the breakup of the respondent’s marriage, expressing his animosity and anger towards the person who had been his wife’s partner. Although there are differences between a case like this and a direct attack against a former partner, they are closely related. Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
[85] For similar reasons, nothing should be said in sentencing reasons to suggest that statements by such an offender to the effect of ‘I just snapped’ or ‘I’d had enough’ in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But a resort to violence can never be condoned.
Tan v The Queen [2019] VSCA 226 (14 October 2019) – Victorian Court of Appeal
‘Manifestly inadequate’ – ‘Physical harm and violence -separation’ – ‘Sentencing’ – ‘Strangulation’
Charges: Recklessly causing serious injury x 1
Proceedings: Application for leave to appeal against sentence
Facts: The applicant was sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months. The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive given that the offending was not at the median of offending for the type of offence.
The victim of the incident was the applicant’s de facto partner. Around the time of offending, the applicant sent the victim a series of text messages asking for money, which the victim refused. The applicant was angered by the refusal and when he returned to the couple’s home, he started verbally abusing her. He pushed her off the bed, injuring the victim’s knee, before pulling back on to the bed with his hand around her throat. Threatening to kill the victim, the applicant obtained a knife from the kitchen and pushed it against the victim’s throat while she was still on the bed. This caused a superficial laceration. The owner of the apartment became aware of the altercation and called the police. While the owner was on the phone the victim tried to push the applicant off her, causing him to slash her on the left arm with the knife.
The applicant pleaded guilty prior to the committal hearing despite previously denying he was the aggressor. The judge "accepted this plea as being ‘indicative of some remorse’" [19].
Issue: Whether sentence was manifestly excessive
Decision and reasoning: The sentence was manifestly excessive. A sentence of 4 years 3 months was substituted.
There was no finding that the wound to the victim’s arm was deliberately inflicted, unlike the laceration to her neck. When compared to more serious cases (Marrah, Nolan [63]) of the same offence this was significantly less serious. Ashley and Weinberg JJA state that ‘it is the fact that, despite the limited utility of raw sentencing statistics, the sentence imposed in this case was not far short of twice the median length of imprisonment for the offence over the 2016/2017 year, and that over the five-year period ending 2017 only a very small number of those imprisoned for this particular offence were subject to a sentence exceeding five years. Underlining the severity of the sentence imposed here, by no means did all persons sentenced for this offence in the five year period receive a custodial disposition.’[65]
Nevertheless, the court also pointed out that despite the sentence being manifestly excessive, this conclusion "does not gainsay the need for sentences for this offence, committed in a domestic setting, to reflect the need for general deterrence, specific deterrence … and protection of the community as pertinent sentencing considerations" and noted that "sentences for this offence, committed in a domestic setting, have increased in recent years." ([63]).
Ivanov (A Pseudonym) v The Queen [2019] VSCA 219 (8 October 2019) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Exceptional circumstances’ – ‘Manifestly excessive’ – ‘Perpetrator self-reported to police’ – ‘Rape’ – ‘Remorse’ – ‘Separation’ – ‘Victim testified in favour of perpetrator’
Offences: Rape x 2
Proceedings: Application for leave to appeal against sentence
Issues: Whether the individual sentences, the total effective sentence and non-parole period were manifestly excessive
Facts: The male appellant and female victim had been partners for 22 years and had three children together. The appellant found out that the victim had been having an affair for the last five years. He lost self-control and raped the victim, verbally abusing her during the assault while she just lay there. Afterwards, the appellant felt terrible and apologised. Two days later, the appellant discovered more details of the affair and lost control and raped the victim again. The couple cried together afterwards and the appellant apologised many times. The day after this, the appellant became concerned that the victim would try to harm herself and the appellant felt guilty about what he had done, so he reported his actions to a mental health clinician. The clinician alerted police and arrested the appellant who plead guilty immediately. The victim never intended to report the offending and saw police involvement in their marriage as ridiculous.
At the sentencing hearing, the victim gave evidence in support of the appellant and told the court that this was a private matter for the appellant and the victim to work out together. She testified that she wanted the appellant to be released as soon as possible so that the couple could start repairing what had happened, but that this had not been allowed to occur because of the imposition of an Intervention Order. Despite this, the judge sentenced the appellant to nine and a half years’ imprisonment with a non-parole period of seven years.
Grounds:
1.
The sentencing judge failed to synthesise properly the sworn and mostly unchallenged evidence of the victim. Specifically, the sentencing judge made findings on the impact of the offending that:
(a)
were not open to the judge or not properly founded on the victim’s evidence, and
(b)
failed, in the circumstances, to accord the appellant procedural fairness.
2.
The sentencing judge’s discretion miscarried as a result of the judge’s findings regarding remorse and the circumstances of the appellant’s own reporting of his crime. Specifically, the judge erred by:
3.
The individual sentences, the total effective sentence and non-parole period were manifestly excessive.
(a)
departing from the agreed statement of facts, and
(b)
denying the appellant, in the circumstances, procedural fairness.
Judgment: The court allowed all grounds of appeal, holding that the sentences were manifestly excessive and resentencing the appellant to four years’ imprisonment, with a non-parole period of two years. The court held that while the appellant’s behaviour was reprehensible [2] and involved a "grave breach of trust and violation of … bodily integrity" [153], "the prison sentences in this case must be much shorter than would ordinarily be required" [10]. This was because of two exceptional factors: 1) the appellant’s self-reporting and confession (without which he never would have been prosecuted), and 2) the victim’s "remarkable and powerful evidence" [10]. The court stressed that this was "an exceptional case" [1] and "these are wholly extraordinary circumstances calling for an equally extraordinary response" [10]. However, the court noted that denunciation and just punishment were relevant sentences factors in this case [153].
The court noted that a twelve-month Intervention Order was previously taken out against the appellant on behalf of the victim for smashing food into the victim’s face. However, the couple remained living together and their sexual relationship continued [17]. The court noted that the couple got divorced (because the appellant was frustrated that the victim worked so much), but continued to live together as if nothing had changed [20]. They did not tell the children of the divorce. The victim testified that she was the "Alpha female" and "glory parent" and would only see the children two or three times a week, and that the appellant was the sole carer of the children, the one who did all the hard work [21].
Regarding Ground 1, the court accepted that the sentencing judge erroneously found that the impact on the victim (who would now have to arrange for care of the children and explain the appellant’s absence to them) was an aggravating factor, as opposed to a mitigating factor [84]. The court also accepted that it was not open to the judge to have qualified the mitigation resulting from the reduced psychological and emotional impact of the offending on the victim in the way the judge did [95] and that the judge erred in qualifying the mitigatory effect of the victim’s evidence by being "mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent" [102]. While the court accepted the sentencing judge’s comments regarding the nature of sexual violence in a family setting and held that it was "therefore appropriate for sentencing judges to be cautious when confronted with evidence of forgiveness by victims of violence, whether sexual or otherwise" [103], the court held that each case turns on its own facts. In this case, there was no evidence that the relationship was afflicted by family violence or that the victim was persuaded to reconcile by the appellant [106]. The court noted that "There is not the slightest suggestion that [the victim] gave this evidence as woman ground down by years of ill-treatment and ensnared in a relationship from which she found it impossible to escape" [5].
The court also upheld Ground 2, finding that the fact that the appellant could not remember certain things was "not inconsistent with a high level of remorse" in part because the appellant consistently make extensive admissions about his conduct to police but also consistently told police that there were parts he could not remember [123]. The court accepted that there was overwhelming positive evidence of remorse [124]. The court considered that it was not open to qualify the level of the appellant’s remorse on the basis that his reporting of the offending was about the victim, not the appellant’s crimes [125].
The court further upheld Ground 3, holding that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive because they failed to reflect all relevant considerations (including the appellant’s early pleas, remorse, previous good character, hardship involved in his imprisonment, and strong prospects of rehabilitation) and the sentencing judge failed to give sufficient weight to the two exceptional factors outlined above [139].
The court noted that the resentenced non-parole period was shorter than what otherwise might be imposed, but that this would still adequately reflect all of the sentencing purposes mentioned [166].
Degney v The Queen [2019] VSCA 183 (19 August 2019) – Victorian Court of Appeal
‘Appeal’ – ‘Family violence’ – ‘Guilty plea’ – ‘Physical violence and harm’
Case type: Appeal against sentence
Facts: The applicant sought leave to appeal against the sentence imposed for the offence of attempted aggravated burglary (3 years’ and 6 months’ imprisonment) on the ground that it was manifestly excessive. The applicant and victim lived together at the time of the offending, and were in a relationship ‘on and off’ for around 6 years.
Issue: The issue for the Court was whether the sentence was manifestly excessive, having regard to the objective gravity of the offending, the applicant’s limited criminal history and youth, the early plea of guilty and current sentencing practices.
Held: The applicant submitted that his criminal history was ‘limited and relatively minor’ ([32]). He had previously been sentenced, without conviction, to a community correction order (‘CCO’) for offences, including a charge of unlawful assault, charges of possession and use of cannabis and descending onto a railway track ([26]). He did not complete the CCO and was subsequently fined ([27]). The applicant contended that the offending was not towards the ‘serious end of the spectrum’ as it was brief, was not committed in company, and there was limited evidence of planning. He argued that there was only an intention to assault, not an intention to inflict actual physical harm ([31]).
The Court held that the seriousness of the offending was increased by factors, such as the fact that it involved ‘an attempted forced intrusion into a residence’ during the night, while possessing a ‘menacing weapon … with an intention to assault a terrified and vulnerable domestic partner’ by creating fear ([45]). His efforts to enter the premises were persistent and threatening ([46]), and his conduct could not be described as brief or short-lived as had been submitted by the applicant ([48]). His conduct was viewed within the context of his earlier abusive behaviour towards the victim ([47]). The absence of an intention to physically harm the victim and of a history of family violence was found not to diminish the inherent gravity of the offending ([49], [53]). Significantly, the offending was committed in circumstances of family violence, which aggravated the offending ([50]). His conduct was motivated by a sense of entitlement, which reflected on his moral culpability and exemplified ‘the very worst of male attitudes towards women’ ([51]). As a result, general deterrence was an important sentencing purpose ([52]).
Mitigating factors included the applicant’s early guilty plea, relative youth, limited prior history and remorse ([62]); however, when balanced against the objective gravity of the offending, these factors did not persuade the Court that the sentence was wholly outside the range of sentences reasonably available to the sentencing judge ([62]). The Court also noted the dearth of sentencing decisions involving attempted aggravated burglary ([58-[59]). Nevertheless, the Court dismissed the appeal against the sentence.
Lim v The Queen [2019] VSCA 182 (16 August 2019) – Victorian Court of Appeal
‘Assault’ – ‘Contravening a family violence order’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Mitigating circumstances’ – ‘Obsessive behaviour’ – ‘Past domestic and family violence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-child in the family’ – ‘Threat to kill’
Offences: Aggravated burglary; intentionally causing injury x2; threat to kill x2; persistently breaching a family violence intervention order; summary assault x1; summary offence of using a drug of dependence; and unlawful assault.
Proceedings: Application for leave to appeal against sentence
Grounds:
•
Whether sentence on summary assault exceeded maximum penalty;
•
Whether the individual sentences and orders for cumulation, the total effective sentence and the non-parole period were manifestly excessive;
•
Whether the sentencing judge paid insufficient regard to the principle of totality; and
•
Whether the sentencing judge erred in treating the applicant’s prior convictions as relevant to the assessment of the gravity of the applicant’s offending.
While drunk and drug-affected, the applicant forced his way into the home of his female ex-partner, the protected person in a FVIO to which he was the respondent. Upon entering, he grabbed KC’s father, threatened to kill him and chocked him in a sleeper hold to the point of unconsciousness. He followed KC as she fled the home and similarly choked and threatened her in the presence of her young daughter, continuing the choke hold until a police officer struck him with a torch and placed him in a headlock, having failed to subdue him with pepper spray. An elderly neighbour tried to comfort those at the scene but was also threatened by the applicant. When police arrived, they were only able to subdue the applicant with force.
The applicant persistently breached a family violence intervention order during the month leading up to the offence and had previously committed violent offences against KC and her father. He entered pleas of guilty and was sentenced to a total effective sentence of nine years and seven months’ imprisonment with a non-parole period of seven years. The sentencing judge described the offending as "very grave", "sustained and dangerous", "gratuitous" and "cruel and chilling". Sentencing considerations were general deterrence, specific deterrence, denunciation and protection of the community. Weight was placed on the applicant’s significant criminal history and "selfish and cowardly" approach to relationships. Significant mitigating factors were raised on his behalf including his early pleas of guilty, remorse, medical conditions causing particular hardship in custody, and reasonable prospects of rehabilitation.
Held: The first ground was conceded by the Crown. In respect to the second and third grounds, it was held that the sentence for aggravated burglary, cumulation, base sentence and resulting total effective sentence were all manifestly excessive and in breach of totality, providing that it is "likely that the judge placed too much weight on Mr Lim’s prior criminal history, was overwhelmed by the gravity of the offending or gave insufficient weight to the mitigating factors, or that some combination of these factors was operative" [122]. The sentence for unlawful assault was also held to be manifestly excessive.
The Court rejected the fourth ground of appeal as they considered using the offender’s prior convictions to inform an ‘assessment of the gravity of his crimes [was] not the same "as speaking of an assessment of the objective gravity of a crime" [53].
Nicholson (a Pseudonym) v The Queen [2019] VSCA 177 (14 August 2019) – Victorian Court of Appeal
‘Appeal’ – ‘Damaging property’ – ‘Intervention order’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Social abuse’
Charges: 1 x stalking; 1 x damage property; 1 x intentionally causing injury; 1 x sexual assault; 1 x commit indictable offence on bail; 3 x contravention of Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence
Facts: The appellant and victim were in a relationship for about 3 years, and had married. They separated in 2016 due to infidelity and domestic violence issues. The charges to which the appellant pleaded guilty were contained in 2 separate indictments. 2 summary charges were brought against him. The appellant was subject to a Final FVIO in 2016 which he breached by attending the victim’s address, damaging her car, and coming within 5 metres of her on two occasions. He also stalked the victim by contacting her in breach of the Intervention Order ([9]-[17]), damaged her car ([21]), pinned her to the ground, and choked and sexually assaulted her by kissing her on the lips ([25]-[26]). The appellant also wrote the victim letters and emails over a period of several months that were threatening in nature. At the time of committing the offences, the appellant was on bail for other matters ([29]). The victim was injured as a result of the attack ([30]).
The sentencing judge concluded that the offending was serious, ‘protracted, violent and terrifying’, and sentenced the appellant to 6 years’ imprisonment with a non-parole period of 4 years.
Issue: The issue for the Court was whether the sentence and orders for cumulation were manifestly excessive, given the mitigating factors of the applicant’s health issues and the characterisation of offences.
Held: The Court dismissed the appeal as the total effective sentence imposed by the sentencing judge was not manifestly excessive and did not fail to adequately reflect the principle of totality ([75]-[81]). The offences were committed over a period of many months within the context of family violence. The damage caused to the victim’s property was found to be significant, planned and executed to cause harm ([56]). At [62], the Court noted that the sentencing judge correctly emphasised the seriousness of the offence of intentionally causing injury. The victim was frightened and threatened with words, such as ‘You are going to get it’ and ‘Just die’ ([61]). Further, the context of the sexual assault was considered to be ‘significant and inextricable’, as it occurred during a ‘frightening physical attack’, and was motivated by hatred and contempt ([66]). As for the 2 charges of contravention of the FVIO on the separate indictment, the Court did not consider the individual sentences to be manifestly excessive and that despite the applicant having no ability to carry out the threat as he was in custody, the fact that they contained death threats and were sent by someone who had previously employed threats of death made it very serious offending ([69]-[74]). As each offence was committed over an extended period of time, directed at the one person within the context of family violence, and escalated and continued even in custody, the overall criminality meant that the orders for cumulation was not manifestly excessive ([79]-[80]).
Kiril (A Pseudonym) v The Queen [2019] VSCA 133 (14 June 2019) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Delay’ – ‘Elder abuse’ – ‘Manifestly excessive’
Offences: Reckless conduct endangering life
Proceedings: Appeal against sentence
Issues: Whether the sentence was manifestly excessive, in particular that the Learned Sentencing Judge gave insufficient weight to the delay in these proceedings being finalised.
Facts: The male appellant and his wife severely neglected the 83-year-old victim, the appellant’s mother, who relied entirely upon them for care. The victim previously lived in a supported residential service where she was very healthy and active, and would routinely visit the doctor. However, her visits to the doctor (which included filling her prescriptions) declined and ceased altogether when she returned to live with the appellant. The victim was found dead in her bed in squalid conditions. She died as a result of bronchopneumonia in a setting of cerebral infarction, weighing only 34kg and covered in bruises and abrasions. The appellant plead guilty to the charges and was sentenced to 18 months’ imprisonment, with a non-parole period of 12 months. The appellant appealed this sentence on the ground that it was manifestly excessive because the sentencing judge failed to give sufficient weight to the delay in the proceedings being finalised.
Judgment: The court refused to allow the appeal, holding that the sentence was not manifestly excessive but could even be regarded as "lenient" [49], [54]. The court noted that "the proper approach for this Court to adopt is to consider the circumstances of the offence and those of the applicant, instinctively synthesising the aggravating features and those going in mitigation – including the considerable delay – to determine whether the sentence imposed by the judge is wholly outside the range open in the sound exercise of discretion" [41]. While the delay had been considerable (five years from the offending to sentencing) and the court held that "ordinarily, a delay of that order would constitute a very powerful mitigating factor" [43], in this case, the appellant did not have a lengthy period of rehabilitation (the court accepting that he had developed no insight into his offending and did not have good prospects of rehabilitation) nor did he suffer stress or anxiety as a result of the delay [43]-[45]. Beyond the delay, the court emphasised, there was little that mitigated the offence [46].
The court noted the seriousness of the offending, holding that the victim was in such poor condition "because of the applicant’s callous disregard for her welfare" [48]. It further accepted that the appellant’s treatment of his mother was "cruel, heartless and inhumane" [48]. Forrest JA held that the appellant "admitted he foresaw that his conduct placed [the victim] at an appreciable risk of death, and yet he continued to neglect her … I consider that conduct to be truly reprehensible" [53].
Milosev v The Queen [2019] VSCA 121 (3 June 2019) – Victorian Court of Appeal
‘Breaches of community correction order’ – ‘Domestic violence’ – ‘Drug dependency’ – ‘History of abuse of accused’
Charges: Aggravated burglary x 1; theft x 1; recklessly causing serious injury x 1; conspiracy to commit theft x 1; breach of community correction order (CCO) x 1.
Case type: Appeal against sentence.
Facts: The applicant pleaded guilty to charges of aggravated burglary, theft, recklessly causing serious injury and conspiracy to commit theft. She was ordered to serve a community correction order (CCO), but was later charged with breaching that order and the mandatory terms contained in it. The applicant was sentenced to a total effective term of 15 months’ imprisonment, with a non-parole period of 9 months.
Issue: The applicant sought leave to appeal against the sentence on two grounds. The first ground was that the sentences imposed were manifestly excessive. It was also contended that the sentencing judge failed to give sufficient weight to 1) the impact of family violence suffered by the applicant, which compromised her ability to comply with the CCO; and 2) the applicant’s prospects of rehabilitation. The second ground was that the sentencing judge erred by not deferring sentencing before making a finding that the applicant was ‘unwilling and unable’ to comply with a further CCO.
Held: The application for leave to appeal against the sentence was refused. The applicant’s counsel contended that the applicant’s capacity to fully comply with the terms of the CCO was affected by the domestic violence perpetrated on her by her partner ([20]). It was argued that the applicant was the ‘captive of her partner throughout the term of the [CCO]’, and found it difficult to leave him and the drug infected environment in which she was then living ([25]). Although the Court recognised that the applicant was clearly subjected to domestic violence by her ex-partner, their Honours noted that the materials placed before the sentencing judge did not sufficiently explain her substantial and repeated failures to comply with the conditions of her CCO ([48]). While it was understandable that the applicant, under the pressure of the domestic circumstances in which she was living, relapsed into drug use, it appeared that she sometimes managed to remove herself from the abuse. Taking those matters into account, and giving full weight to the impact of her partner’s conduct towards her, their Honours did not accept that the sentencing judge erred in concluding that the applicant was either unwilling or unable to comply with a further CCO ([49], [56]). No sufficient circumstances were put to the sentencing judge which would require him to defer sentencing ([56]).
Neil v R [2019] VSCA 64 (25 March 2019) – Victorian Court of Appeal
‘Children’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Application for leave to appeal against sentence.
Facts: For about four months leading up to the victim’s death, the applicant and the victim were in an intimate relationship. In the period leading up to the incident, the applicant, Marmo (the applicant’s co-accused) and the victim were heavy ice users. On the day of the incident, the applicant was angry with the victim because she made a family violence complaint against him to police. The victim was savagely beaten by the applicant for ‘snitching and dobbing’ ([9]). Marmo and two other people were present. The applicant’s attack on the victim escalated, and involved kicking her to the head and body with extreme force. The victim later died and the applicant and Marmo agreed that Marmo should ‘dispose of her’, by dumping her body down a mineshaft and then burning it using petrol ([12]). The trial judge sentenced the applicant to a term of 26 years’ imprisonment, with a non-parole period of 22 years. Marmo was sentenced to a term of 24 years’ imprisonment ([3]).
Issues: The applicant seeks leave to appeal against his sentence on the following grounds:
•
The judge erred in applying the parity principle, for example, in that she imposed a greater sentence on the applicant than Marmo, even though the applicant pleaded guilty and Marmo pleaded not guilty, and where the applicant offered to give evidence against Marmo.
•
The non-parole period is manifestly excessive.
Decision and reasoning: The Court refused the applicant’s application for leave to appeal against the sentence. In determining the first ground of the appeal, the Court found nothing wrong with the trial judge’s conclusions about the respective roles of the applicant and Marmo. It was the conduct of the applicant that was ‘at the heart’ of the horrific offending and but for his anger with, and treatment of, the victim, her death would not have occurred ([42]). The Court was also unpersuaded that the applicant’s late plea of guilty required the trial judge to impose a lesser sentence than the sentence she imposed on Marmo ([43]). Overall, her Honour correctly differentiated the cases of the applicant and Marmo, and the Court therefore rejected the first ground of appeal ([44]).
The Court found that there was no substance in the applicant’s second ground of appeal, that the non-parole period was manifestly excessive. The fact that the non-parole period was almost 85% of the head sentence did not indicate any error. The higher the head sentence, the higher the percentage of the head sentence the non-parole period will likely be, and often it will exceed 80% ([46]). The non-parole period was not manifestly excessive in light of the circumstances of the applicant’s offending. The Court also held that the trial judge’s conclusions that a lower non-parole period need not be fixed on the basis that the applicant’s prospects for rehabilitation ‘appear reasonable’.
DPP v Elfata [2019] VSCA 63 (21 March 2019) – Victorian Court of Appeal
‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’
Charges: Rape x 1; reckless conduct endangering serious injury x 1 (acquitted); common law assault x 1 (acquitted); stalking (intent to cause physical harm) x 1.
Case type: Appeal against sentence.
Facts: The respondent was convicted of rape and stalking with intent to cause physical harm. He was acquitted of reckless conduct endangering serious injury and common law assault. The respondent and the complainant had been in a relationship for two years before the offending conduct. In relation to the charge of rape, it was alleged that the respondent placed his fingers inside the complainant’s vagina, so as to constitute digital, rather than penile, penetration ([5]).
The respondent was sentenced to two years and three months’ imprisonment with a non-parole period of one year. The Crown appealed on the ground that the individual sentence imposed for the rape charge (two years), the total effective sentence and the non-parole period were manifestly inadequate, and that the sentences imposed failed to:
•
Have sufficient regard to the maximum penalty for the prescribed offences;
•
Properly reflect the objective gravity of the offending;
•
Have sufficient regard to the impact of the offending on the victim;
•
Give sufficient weight to principles of community protection, general deterrence, specific deterrence, denunciation and the need for just punishment; and
•
Give weight to mitigating factors that was not excessive ([28]).
Issues: Whether the sentence and non-parole period were manifestly inadequate.
Decision and reasoning: The Court (Priest AP, Beach and Forrest JA) noted the difficulty in establishing a ground of manifest inadequacy as it requires the Crown to show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion reached, and that the sentence imposed was ‘wholly outside the range of the sentencing options available’ ([35]). The appeal was dismissed because the objective gravity of the offending was lower than is often seen for rape offences. The Court distinguished Shrestha v The Queen [2017] VSCA 364 as the respondent did not display the same degree of criminality as the offender in that case ([36]). The Court agreed with the sentencing judge’s findings that the incident was a single, impulsive act, which did not appear to be premeditated. Excessive violence was not involved and the duration of the incident was relatively brief. Further, as the rape involved digital, rather than penile, penetration, ‘the offence could properly be described as a breach of an agreement as to the limits of intimacy, in the context of a longstanding relationship in which intimacy occurred throughout.’ ([37])
Moreover, the Court, agreeing with the sentencing judge, held that the fact the respondent exhibited little remorse and ran a trial was an important mitigating factor ([38]). Their Honours also did not disagree with the sentencing judge’s finding that the respondent had ‘relatively good’ prospects for rehabilitation ([27]). Although the sentence imposed was lenient, the Court held that is was within the range of available sentencing options.
DPP v Weaver (a Pseudonym) [2019] VSCA 26 (21 February 2019) – Victorian Court of Appeal
‘Emotional and psychological abuse’ – ‘Evidence issues’ – ‘Physical violence and harm’ – ‘Pretext call’ – ‘Sexual and reproductive abuse’ – ‘Suicide threats’
Charges: Rape x 2; common assault x 1.
Case type: Application for leave to appeal.
Facts: At the time of the offending, the respondent and the complainant were in a relationship. Their relationship was characterised by physical and emotional abuse. On two separate instances, the respondent raped the complainant ([2]-[3]). He also assaulted her by punching her in the face ([4]). In the past, the respondent had generally acted in a possessive and aggressive manner towards the complainant ([8]). He had previously made threats to commit suicide if she left him and had insisted on having sex with her on many occasions ([6]-[7]). An important piece of evidence in this application was a pretext call between the respondent and complainant. In the pretext call, the respondent made an admission to one or more of the allegations made by the complainant. Before the empanelment of the jury, the trial judge made a ruling excluding the admission into evidence of the contents of the pretext call.
Issues: Whether leave to appeal should be granted. Whether the exclusion of the evidence would eliminate or substantially weaken the prosecution’s case.
Decision and reasoning: The Court held that the trial judge did not err in considering that the jury could not reasonably conclude that the complainant specifically referred to either of the incidents subject to the two rape charges in the pretext call ([45]). Further, it was held that the trial judge correctly accepted that the jury could conclude that the respondent did make an admission of sexual misconduct in the pretext call. However, this admission was of limited probative value in the context of the case. The trial judge did not err in concluding that the probative value of the evidence would be outweighed by its prejudicial effect ([54]). Consequently, the Court concluded that the applicant should not be granted leave to appeal the decision of the trial judge to exclude the contents of the pretext call from evidence ([55]).
DPP v Missen [2019] VSCA 32 (4 February 2019) – Victorian Court of Appeal
‘Murder of parent’ – ‘People affected by substance abuse’ – ‘People with mental illness’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his father (the victim). The offence took place at the offender’s house that he occupied with the victim and his then girlfriend. The offender had an argument with the victim which erupted into a violent altercation, leading him to physically assault the victim until he was dead. Following the murder, the offender and his then girlfriend approached two men to help remove the body from the house and take it to a disused mineshaft for disposal. The offender’s relationship with his father at the time of the offending was ‘intensely troubled’; however despite the difficulties, they had a close and co-dependant bond. Further, he suffered from a range of emotional and psychological problems and was prone to drug abuse ([9], [57]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Dixon J sentenced the offender to 21 years’ imprisonment with a non-parole period of 17 years. The offender had a limited criminal history which included contravening a family violence safety notice and offences against police ([74]). Further, he pleaded guilty late and therefore was not entitled to the same degree of mitigation as if he had pleaded guilty at the earliest possible stage. There was also delay in the finalisation of proceedings which was due to factors beyond the offender’s control. For example, his then girlfriend changed legal representation more than once, and he was also diagnosed and treated for testicular cancer. As a result of these matters, the offender had been on remand since March 2016 ([75]-[78]). Her Honour noted that he had used this time productively, having enrolled in several programs open to remand prisoners, and received training in drug education ([79]). The offender’s prospects of rehabilitation were found to be reasonable, particularly if he remained on stabilising medication and avoided illicit drugs upon release ([82]-[83]).
The objective gravity of the crime was aggravated by the way the offender continued to assault the victim when he was already severely incapacitated. It was further increased by the nature of the physical violence, together with his efforts to dispose of the body and involve other people in that conduct. The concealment of the offence meant that the victim’s relatives did not learn of his death for some time after it occurred. Regardless of the pressures that the offender may have endured, her Honour found him to be solely responsible for the victim’s death ‘in an episode of appalling brutality’ ([84]-[85]).
The offending was not premeditated but arose in circumstances of sudden rage in the context of a highly dysfunctional household. Her Honour accepted that the offender was contrite but noted that expression of sincere remorse gave way to self-interest in the aftermath of the murder. She gave weight to denunciation, just punishment, general and specific deterrence, and the need for rehabilitation. However, specific deterrence was somewhat diminished as a factor given his limited criminal history and conduct on remand ([86]-[90]).
The parties only referred to a small number of cases involving the murder of a parent, none of which were comparable to the present case. A notable feature of this case was that despite the history of conflict between the offender and the victim, he ‘accepted responsibility for murdering the person [he] had come to depend on most’ ([91]-[93]).
Forbes (a Pseudonym) v The Queen [2018] VSCA 341 (18 December 2018) – Victorian Court of Appeal
‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’
Charges: Multiple counts of assault and rape.
Appeal type: Appeal against sentence.
Facts: The applicant was charged with 12 counts of assault and rape. The first five charges involved intentionally causing injury and rape against his former domestic partner. The remaining seven charges concerned offences of assault, rape, making a threat to kill and intentionally causing injury against the same domestic partner, however, the parties had separated at the time these particular offences were alleged to have been committed. The applicant pleaded not guilty to the offences. The sentencing judge imposed a sentence of 10 years 10 months’ imprisonment, with a non-parole period of seven years and three months.
Issues: The applicant sought leave to appeal because the sentence imposed was manifestly excessive in that:
•
The individual sentence imposed for one of the counts of rape (count 11) was excessive; and
•
The sentencing judge incorrectly characterised each offence as a serious example of that kind of offence; and
•
The sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
Decision and reasoning: The Court emphasised that the ground of manifest excess will only succeed if it can be proven that the sentence imposed fell wholly outside the range of sentencing options available to the sentencing judge. Their Honours considered the applicant’s limited criminal history to be relevant, but given his lack of remorse, denial of the offending and the circumstances of the offending, the sentencing judge was open to conclude that his prospects of rehabilitation were ‘guarded’ ([39]). The offending was found to be very serious, and the context of domestic violence significant ([42]). The applicant’s personal circumstances were also considered, including his previous experiences as a victim of sexual abuse, and his medical and psychological history (including brain damage and bipolar disorder). Ultimately, the Court refused the appeal as the total effective sentence imposed by the sentencing judge was not outside the range of sentencing options available to him.
The Court observed that the context of domestic violence is also very important. The Court quoted from Pasinis [2014] VSCA 97:
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 Court noted the importance of general deterrence in this context.
Hayden Samuels (a pseudonym) v The Queen [2018] VSCA 251 (1 October 2018) – Victorian Court of Appeal
‘Cumulative sentence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Women’
Charges: Rape x 2; make a threat to kill x 1.
Case type: Application for leave to appeal against sentence. Determined ‘on the papers’.
Facts: The victim was the applicant’s wife of many years. The applicant and the victim married in 1996 and have 2 children. The family emigrated from Egypt in 2009, and practise the Coptic Christian Orthodox faith. The rape offences involved penile-anal penetration, contrary to the Coptic religious faith (charges 3 and 4). The applicant also threatened to kill the victim, telling her that if she saw a counsellor he would kill her and tell everyone that she was mentally unstable and had committed suicide (charge 5). The victim suffered an anal injury as a result of the rape the subject of charge 4. The applicant was sentenced to 10 years and 6 months’ imprisonment, with a non-parole period of 7 years and 9 months. For the charge of making a threat to kill, the individual sentence was 2 years, and for the two rape charges, the individual sentences were 8 years each. The applicant was also sentenced as a serious sexual offender in respect of charge 5.
Issue: The applicant sought to appeal against the sentence. One ground of appeal was that the sentences imposed on each of the individual counts, and the order for cumulation of the sentence imposed on charge 4, were excessive.
Held: Tate JA refused leave to appeal as she was not persuaded that it was reasonably arguable that the sentences imposed against the applicant went beyond a sound exercise of the sentencing discretion ([48]). The sentences imposed against the applicant in relation to the rape charges were ‘very stern’. However, the offending was ‘extremely serious’ and, as the sentencing judge acknowledged, there has been a recent shift towards sterner sentencing for rape and other sexual offences. This has been a conscious decision of the courts to reflect the seriousness of domestic violence and sexual crimes committed against women in Victoria ([39]).
Her Honour noted the extreme seriousness of the offending and the absence of remorse. Therefore, there was a need for specific and general deterrence in the context of protecting the community from a serious sex offender in respect of charge 5 ([43]). Having regard to the facts, circumstances and available data regarding current sentencing practices, the sentence of 2 years’ imprisonment in respect of charge 5 was not manifestly excessive nor was the relatively modest cumulation of 6 months ([46]). Further, the order for cumulation with respect to charge 3 was found to be necessary to reflect the fact that the 2 rape offences occurred as ‘distinct and separate episodes’ ([47]).
McLean v The Queen [2018] VSCA 209 (24 August 2018) – Victorian Court of Appeal
‘Damaging property’ – ‘Factors affecting risk’ – ‘Sentencing’
Charges: Aggravated burglary x 1; Criminal damage x 1; Resisting an emergency worker on duty x 1.
Appeal type: Applicant for leave to appeal.
Facts: The applicant and his ex-partner argued by text message, culminating in the applicant’s text: ‘Addie won’t had no mother from today’ and ‘I’ll have the last laugh I promise you that’. Addie was their six-month old daughter. On the same day, the applicant broke into his ex-partner’s home, causing damage and turning on the gas before leaving. The applicant was charged with aggravated burglary, in that he entered as a trespasser, intending to destroy property with reckless disregard as to the presence of another person. He was also charged with causing criminal damage and resisting an emergency worker. He was sentenced to two years and six months’ imprisonment, with a non-parole period of two years.
Issues: The applicant sought leave to appeal on the basis that (1) the sentencing judge erred by imposing a manifestly excessive non-parole period of 80% of the total effective sentence; and (2) his Honour did not explain the necessity for the imposition of the relatively high non-parole period.
Decision and reasoning: The high ratio between the non-parole period and the head sentence was such that leave to appeal was granted, but the appeal was dismissed ([27]). Given the nature of the offending and the applicant’s criminal history, the sentences imposed (leaving to one side the non-parole period) were very modest and not excessive. The Court found that the explanation for the moderate sentence was largely the significance placed by the judge on the prospect of deportation. As the sentence exceeded two years’ imprisonment, the sentencing judge was required by s 11(1) of the Sentencing Act 1991 (Vic)to fix a non-parole period, unless he considered it inappropriate to do so, having regard to the nature of the offence or the offender’s past history. Clearly, his Honour considered it appropriate to fix a non-parole period. s 11(3) required that period to be at least six-months less than the term of the sentence. Here, the non-parole period fixed was, in a sense, the ‘maximum’ period that could be fixed. In determining the non-parole period, the judge was required to take into account the purpose of parole, namely, to provide for mitigation of punishment in favour of rehabilitation after the offender had served the non-parole period (see Power v The Queen [1974] HCA 26). The seriousness of the offending was such that justice required a non-parole period of at least two years. Therefore, the high ratio between the head sentence and the non-parole period was explicable by the very modest sentences imposed (and cumulation ordered) for the offences. There was no error in his Honour fixing the non-parole period.
Sawyer-Thompson v The Queen [2018] VSCA 161 (22 June 2018) – Victorian Court of Appeal
‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Defensive homicide x 1
Appeal type: Appeal against sentence
Facts: The female appellant had been in an abusive and violent relationship with her male partner for 12 months prior to her offending. Her partner threatened to kill her family unless she killed the victim. Acting under the fear of this threat, she killed the victim. The appellant pleaded guilty to defensive homicide.
Issues: Whether the sentence imposed was manifestly excessive.
Decision and Reasoning: Maxwell ACJ and Tate JA held that the sentence of 10 years’ imprisonment with a non-parole period of seven years was manifestly excessive. The appellant was re-sentenced to six and a half years’ imprisonment, with a non-parole period of five years.
The sentencing judge accepted that the killing took place at the direction of the appellant’s violent and abusive partner who had threatened to kill her family unless she killed the victim. She had been subjected to ‘repeated acts of violence, degradation and humiliation at the hands of her partner, who was… a highly dangerous person’. The fact that she proceeded to kill the victim rather than attempting to flee, and that she used excessive violence, ‘could only be understood through the lens of the sustained family violence she had experienced’ ([7]).
Maxwell ACJ and Tate JA held that the sentence imposed reflected a mischaracterisation of the gravity of the offending and of the appellant’s culpability. Insufficient weight was also given to the mitigating factors of cooperation with authority and youth ([65]).
The appellant’s undertaking to assist, and the provision of her statement, reflected remorse and a genuine desire to bring a person to justice ([55]). As a result, discount for cooperation was necessary because ‘there [was] some personal risk’ to the applicant, as a result of which she had already spent some time in protective custody.
Beach JA held that whilst the sentence was stern, it was not manifestly excessive ([133]).
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 Criminal 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 212at [21] and Mercer v The Queen [2015] VSCA 257at [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
‘Appeal against sentence’ – ‘Arson’ – ‘Coercive control’ – ‘Male victim’ – ‘Murder’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘People with mental impairment’ – ‘Physical violence and harm’ – ‘Principles in R v Verdins’ – ‘Sentencing’ – ‘Strangulation’
Charge/s: Murder, arson.
Appeal Type: Crown appeal against sentence.
Facts: The male respondent and the male deceased were in a relationship. The trial judge accepted that 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.
In setting out the background to the matter the Court observed:
The deceased was the dominant partner in the relationship, with the respondent by and large acquiescing to the deceased’s directions. Over the term of the relationship there was regular verbal conflict which intensified with time. The respondent told his psychologist how he was abused and humiliated in front of others by the deceased. Sometimes the conflicts involved verbal abuse and sometimes pushing and shoving. He also told the psychologist that the deceased was sexually demanding of him and if he declined the deceased’s approaches he would call him a ‘frigid bitch’. The respondent said he felt as if the deceased treated him as his own property. Despite all this, the deceased was regarded by the respondent as being loving and affectionate towards him. [7]
The Court also quoted from the earlier sentencing judgment of the Supreme Court, for example:
27 The personalities of both the deceased and the respondent were considered by the judge. Her Honour said this:
Mr Rattle was strong, confident and successful. He also had a dominant, controlling personality; everything had to be done his way, both personally and professionally. No doubt that was part of the key to his professional success. And, because of your own psychological make-up, you felt inadequate; it suited you to be with someone who took control and made all the decisions. But many of your mutual friends have described how Mr Rattle used to demean and belittle you in public. He frequently complained to them that you were not satisfying him sexually. In front of others, he would call you lazy, a parasite; he would threaten to send you back to where you came from. He was critical of your lack of business acumen. There were financial and business pressures on the relationship. In the work context, he treated you like the office boy, not his partner.
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]).
The appeal court noted that the sentence was mid-range in light of the trial judge’s rejection of the Crown’s characterisation of the crime as premeditated; the trial judge had noted that while the controlling and belittling behaviour that had characterised Rattle’s relationship with O’Neill did not justify killing him, it did mean that the sentence to be imposed for murder should be towards the lower end of the range for that offence.
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 Filizat [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 Queenat [20]; DPP v Pasinisat [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 Queenat [14]; DPP v Johnsonat [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
‘Coercive control’ – ‘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:
(a)
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
(b)
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 [1992] VCCA (unrep, 21 September 1992) – 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
DPP v Lindemann [2024] VSC 220 (22 May 2024) – Victorian Supreme Court
‘Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Exposing children to domestic violence’ – ‘No genuine remorse’
Charges: Murder x1; Recklessly causing injury x1.
Proceedings: Sentencing.
Facts: The male defendant pleaded guilty to the murder of his female partner and to recklessly causing injury to their young daughter.
The relationship was strained, owing in part to the defendant’s insecurity and jealousy, and dislike of the victim’s parenting style. [5]–[6]. The victim had developed a relationship with another individual and attempted to end the relationship with the defendant. [13]–[15] The defendant had trouble accepting the termination of the relationship, ‘exploding in a violent, jealous rage’, stabbing, kicking and strangling the victim in her bedroom. [29] Their daughter witnessed this entire incident and attempted to intervene. The victim’s mother also attempted to intervene (she resided in the home and suffered from Parkinson’s disease). The daughter suffered several knife injuries to her hands, elbow and shoulder. [28]–[36] The defendant stabbed the victim 17 times with multiple knives. [49]
The defendant then completed an internal transfer of $71,000 from his accounts before stabbing himself multiple times. [38]
Decision and reasoning: 31 years’ imprisonment, with a non-parole period of 25 years.
Justice Hollingworth found the defendant’s conduct to be ‘very serious examples of each offence’, motivated by ‘jealously, rage and a sense of entitlement’. [85] Her Honour held each offence to be ‘well above the mid-range’. [120]
The defendant has no prior criminal history and positive prospects of rehabilitation. [93] However, these prospects are tempered due to the defendant’s ‘limited insight’ into the impact of his conduct and victim-blaming mentality [93]
Accordingly, the defendant’s moral culpability was very high, [83] with the defendant possessing a ‘range of problematic gender-based beliefs’ [81].
DPP v Griffiths [2024] VSC 263 (22 May 2024) – Victorian Supreme Court
‘ Ruling’ – ‘Psychological support for jurors during a trial’ – ‘Vicarious trauma’ – ‘Audiovisual evidence’ – ‘Evidence from child witnesses’ – ‘Murder’ – ‘Physical violence and harm’
Charges: Murder x1; Recklessly causing serious injury x 1.
Proceedings: Ruling on the provision of support for jurors during a trial.
Facts: The accused is charged with the murder of his wife, and recklessly causing serious injury to his step-daughter. The accused has pleaded not guilty to these charges. Upon empanelment, the jury were notified that the trial would involve confronting audio-visual evidence: namely, body-worn camera footage of the scene of the crime, and the injured victim. In the presence of his two step-children, the accused poured petrol on his wife and lit the petrol using a cigarette lighter. The victim suffered burns to 90% of her body, dying four days later in hospital. The accused’s step-daughter suffered serious burns in the incident.
Members of the jury, experiencing vicarious trauma, notified the court and queried if counselling would be made available during the trial.
Issue: Whether counselling or other psychological support can and should be provided to a jury during a trial.
Decision and reasoning: Psychological support for jurors should be provided during trials.
When read as a whole, the Juries Act 2000 (Vic) does not prevent ‘a jury from being provided assistance during the trial if it becomes necessary’. [29]
Accordingly, there is ‘no impediment’ a court providing jurors psychological support should, like the present, ‘graphic or confronting evidence’ be played and members of the jury indicate the need for such support. [38] The nature of this support may vary, but typically may involve an information session on vicarious trauma, [49] or ‘a group information session which all jurors attend, or private counselling sessions between individual jurors and a psychologist’. [40]
Re Harris [2024] VSC 226 (09 May 2024) – Victorian Supreme Court
‘ Bail application’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Exposing children to domestic and family violence’
Charges: Common law assault x 1; Assault x 2; Resist x 2; Assault an emergency worker x2; Threat x 1;
Proceedings: Application for bail.
Facts: The male applicant strangled and threw his wife against a wall in their house. One of their children witnessed the incident, and immediately contacted the grandfather and 000. The applicant threw a lit candle at his father (upon his arrival) and pinned him to the ground. The applicant resisted police, punching two officers. The applicant was taken to the hospital, following his father’s concern that he had consumed an illicit substance. Therein he threatened to kill ‘them all’ and punched a security guard several times. [3]
Decision and reasoning: Application for bail approved with conditions
Justice Champion was satisfied that the applicant’s sustained violent behaviour occurred after ‘he had taken an overdose of tablets’. [24] The applicant has no prior criminal history and may spend longer on remand that on any sentence of imprisonment that may be imposed for the charged offences. [22] Accordingly, HH accepted the bail application on the condition the applicant receive residential treatment at a health clinic.
Re Mahat [2024] VSC 140 (01 February 2024) – Victorian Supreme Court
‘ Bail application’ – ‘Protection order’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse ’ – ‘Strangulation ’ – ‘Threats of violence ’ – ‘Damaging property ’
Charges: Attempted armed robbery x1; robbery x1; Reckless conduct endangering life x1; Intentionally causing injury x2; Recklessly causing injury x 2; Making threats to kill x1; Assault with a weapon x3; Using a prohibited weapon without approval x1; Committing an indictable offence whilst on bail x1; Contravening certain bail conduct conditions x1; Contravention of protection order, intending to cause harm or fear x4; Contravening an interim protection order x 10; Unlawful assault with a weapon x1; Unlawful assault x3; Intentionally damaging property x1; Driving whilst suspended x1.
Proceedings: Application for bail.
Facts: The female complainant is the male applicant’s former partner. [15] The present charges cover various incidents of actual and threatened physical harm, emotional/psychological abuse, and withholding and damaging personal property[17]–[39]
Decision and reasoning: Application for bail denied.
Justice Champion held the allegations to be ‘serious examples of family violence’. [96] The incidents escalated in severity and involved weapons: ‘the alleged use of a knife and a taser is highly concerning’. [96] Further, certain incidents involved strangulation, ‘which are commonly accepted to be an indicator of, or risk factor for, homicide’, and the most violent involved the assistance of a third party. [97]–[98]
Lastly, each of these incidents were committed in disregard of protection orders, indicating that the applicant has no ‘insight into the relationship or the seriousness of’ protection orders. [99]
DPP v Malovski [2023] VSC 748 (13 December 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Attempted murder’ – ‘Firearm’ – ‘significant criminal history ’ – ‘Family violence intervention order ’ – ‘Coercive control ’ – ‘Jealousy ’ – ‘Separation ’
Charges: Attempted murder x 1; Being a prohibited person in possession of a firearm x 1.
Proceedings: Sentencing.
Facts: The defendant confronted, pursued and repeatedly shot a friend of his ex-wife while he assisted her in a flower stall in 2022. The defendant shot no fewer than five shots at the victim, one of which rendered him an incomplete paraplegic. The defendant’s 10-year-old son witnessed the event. The defendant was motivated by anger at the victim for supplanting him in the life of his family and a desire to maintain control over his ex-wife ([6]). The defendant was on a family violence intervention order at the time, issued in 2021 [8]. The defendant was found guilty of attempted murder and pleaded guilty to being a prohibited person in possession of a firearm.
Decision and reasoning: 20 years’ imprisonment with a non-parole period of 15 years. In handing down the sentence, Tinney J noted:
For reasons of anger, resentment, jealousy and probably also a desire to maintain control over your former wife, you carried out a shocking and senseless public attack upon an entirely innocent man in full view of your former wife, your 10 year old son and many others. The very idea of an angry and embittered man chasing his quarry around in circles in a public reserve bordering a busy main road in a suburb of Melbourne and firing a large number of shots from a pistol intending to kill him is quite appalling. You failed to achieve your aim, but not for want of trying. You have left Mr Grant with terrible injuries which will blight his life forever and reduce the quality of that life. This was a terrible crime, as your counsel fairly conceded, and is deserving of condign punishment [79]
Turning to general deterrence, male violence towards former intimate partners, or towards new friends of former intimate partners, is a depressingly frequent occurrence in our society, and is to be deplored and discouraged. The sentence I pass on you must be such as to clearly bring it home to any male, or any person, who would seek to wreak violent retribution against another person motivated by a refusal to accept or deal with the end of a relationship, that such conduct will be met with very strong punishment’ [81]
DPP v Charlton (No 2) [2023] VSC 707 (29 November 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Cold Case’ – ‘16-year gap between offense and laying of charge ’ – ‘Strangulation ’ – ‘Active steps to conceal involvement ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: Following a trial by jury, the defendant was found guilty of the murder of Joanne Howell in 2007.
The defendant and Howell were in a relationship, living together for approximately five months prior to Howell’s death. During this period, the defendant and Ms Howel were experiencing ‘relationship difficulties’ [4]. On the morning of Ms Howell’s death, Ms Howell demanded the defendant move out, giving him 30 days to do so. That evening, after having taken the dog for a walk, the defendant called emergency services, reporting the discovery of Ms Howell unconscious at the bottom of the stairs in their home.
No charges were initially laid in 2007. A coronial inquest into Ms Howell’s death was conducted in 2011 and in 2020, the investigation was revived, and charges of murder laid against the defendant [16]–[18]. Based on the whole evidence, the jury concluded that the defendant struck the back of Ms Howell’s skull, strangled her with a ligature with an intention to kill [13].
Decision and reasoning: 24 years’ imprisonment with a non-parole period of 19 years. In passing sentencing, Elliot J noted:
Murder is a gravely serious offence. You brutally murdered Ms Howell in her home where she was entitled to feel safe. It is a significant aggravating factor that your offending was an extreme act of domestic violence [42].
The delay between the date of your offending and you being charged is significant. … That being so, the delay cannot simply be characterised as undue and nothing more in circumstances where you took active steps to conceal your involvement in Ms Howell’s murder [48].
DPP v Basham [2023] VSC 655 (14 November 2023) – Victorian Supreme Court
‘ Application for forfeiture of property’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Tainted property ’
Charges: Murder x 1.
Proceedings: Application for forfeiture of property connected to offence.
Facts: The respondent was convicted of the murder of his estranged wife. The murder took place in the victim’s home (‘the home’). The respondent drove his motorcycle to and from here. The DPP applied for forfeiture of the home and motorcycle under s 32 of the Confiscation Act 1997, which empowers the DPP to apply for a forfeiture order of property ‘used in or in connection with certain criminal offences’. [3]
Decision and reasoning: Application for forfeiture granted. Both the home and motorcycle were judicially determined to be ‘tainted property’; each was instrumental to the offence, and the respondent obtained an interest in them by survivorship following the victim’s death. [50];
In outlining the relevant considerations attached to a grant of an order of forfeiture, Taylor JA emphasised the gravity and nature of the offender’s crime as both relevant. [16] The application of these considerations further reinforced the grant:
The objective gravity of Basham’s offending and his moral culpability for it are of the highest order. It was a premeditated murder that occurred against a background of family violence and seven days before Ms Fraser was to give evidence in the committal hearing of rape allegations she made against Basham. The offending itself consisted of Ms Fraser being subjected to a savage beating in which she sustained 41 separate blunt force injuries before being hanged. The forfeiture of [the home] is proportionate to the nature and gravity of the offending, being a ‘worst case’ murder. [53]
Forfeiture also advances deterrence in relation to serious crimes. Deterrence is of particular note when offending occurs in the context of family violence. [53]
DPP v Pandilovski [2023] VSC 514 (30 August 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Strangulation ’ – ‘Concealment ’ – ‘History of family violence ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The accused pleaded guilty to the murder of his wife. In the morning of 14 July 2020, the accused strangled his wife, before moving her body into a storage room. The accused took photos of the victim’s body using the victim’s mobile phone. [5] Not long after leaving the victim’s home, the accused attempted to commit suicide by veering into the path of oncoming traffic. [6] No one was killed. When taken to the Royal Melbourne Hospital, the accused threatened to harm himself. [6] Police discovered the victim’s body in the evening.
Decision and reasoning: 24 years’ imprisonment with a non-parole period of 17 years. [48]–[49]
Justice Beale considered the victim impact statements of the victim’s family, which referred to the ‘great suffering’ caused by the accused’s actions. [13] His Honour considered the objective gravity of the accused’s offending to be in the ‘upper-mid range example of murder’: it was a ‘domestic murder, carried out in [the victim’s] own home against the backdrop of past violence’ committed by the accused towards her. [16]
His Honour accepted the accused’s plea of guilty, remorse and reasonable prospects of rehabilitation as circumstances of mitigation. [40]
DPP v Tan [2023] VSC 416 (21 July 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Late confession ’ – ‘Following, harassing and monitoring ’ – ‘Exposing children to domestic and family violence ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The male offender was found guilty of the murder of his former female partner. In the month leading to the victim’s death, the victim’s interest in the accused waned. The accused, however, maintained strong possessive feelings for the victim and soon began monitoring the victim, accessing her phone and reading her private messages. One night, following a heated argument concerning the victim’s waning interest, the accused stabbed the victim multiple times in the chest in her home. [9] The victim’s son was in the house. The accused proceed to dispose of the victim’s body in a wheelie bin. [15]
Decision and reasoning: 28 years’ imprisonment with a non-parole period of 23 years. [60]
Justice Fox considered the victim impact statements of the victim’s family and friends, including the victim’s son who has been ‘left traumatised’ by the accused’s actions. [31]
Justice Fox noted that it was only after hearing the victim impact statements that the accused accepted the jury’s verdict and admitted to murdering the victim. [41] A confession ‘after a verdict attracts none of the benefits which attach to a guilty plea’. [42]
The accused had no prior convictions or history of family violence. [45] However, it remained a troubling aspect of the accused’s character that ‘after a relationship of only on month, [he] became so jealous and proprietorial that, when faced with rejection, [he was] capable of murder’. [45]
DPP v McDonough [2023] VSC 352 (23 June 2023) – Victorian Supreme Court
‘Expert evidence’ – ‘Extensive criminal history’ – ‘High moral culpability’ – ‘History of domestic and family violence’ – ‘Homicide’ – ‘Manslaughter’ – ‘People affected by drug and alcohol misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Poor prospects of rehabilitation’ – ‘Post-offence conduct’ – ‘Sentencing’
Charges: Manslaughter x 1.
Proceedings: Sentencing.
Facts: The male offender pleaded guilty to manslaughter of his female partner. In the course of assaulting the victim, the offender punched the victim in the face, causing her to fall over and hit her head. The fall caused bleeding to the brain, resulting in the victim’s eventual death.
Issues: Sentence to be imposed.
Reasoning and decision: Fox J sentenced the offender to 11 years and 6 months’ imprisonment with a non-parole period of 8 years and 6 months.
In assessing the offender’s personal circumstances, Fox J acknowledged the offender’s drug abuse led to an unstable lifestyle and significantly contributed to his offending behaviour [27]. Fox J also recognised the offender had a very lengthy and relevant criminal history, dating back to 2001. The offender breached good behaviour bonds, suspended sentences and community correction orders imposed by the courts [29]. The offender was on bail for other matters when he committed manslaughter, aggravating his offending [29].
Mental illness diagnoses were not consistent, but experts discussed schizophrenia, substance use disorder, depression, personality disorder, and a mild acquired brain injury [30]-[34]. However, Fox J held Verdins has no application as there was no evidence prison would be a burden on the offender’s mental health [35].
Fox J provided a sentencing discount for the early-stage guilty plea [36] and accepted prison COVID-19 restrictions as a mitigating factor [38]. The judge also regarded the offender’s post-offence conduct as relevant; he called an ambulance, expressed he knew what he did was seriously wrong, and handed himself into police the same day [41].
However, Fox J considered the offender’s remorse limited [40]. The judge also held the offender’s prospects of rehabilitation were poor, as he had declined to engage in prison-based services and had a long-history of breaching court orders [43]. Fox J held that neither the offender’s drug use nor mental health issues mitigate his offending. His moral culpability for the crime was high [45].
Fox J stated when sentencing violence against female partners, ‘the courts must send a message to other would-be offenders that if you commit such crimes, you should expect to receive a substantial term of imprisonment’ [48].
Re Thompson [2023] VSC 274 (17 May 2023) – Victorian Supreme Court
‘Application for bail’ – ‘Compelling reason’ – ‘Expert evidence’ – ‘No prior criminal history’ – ‘Past defence service’ – ‘Physical abuse’ – ‘Psychologist evidence’ – ‘Rape’ – ‘Separation’ – ‘Serious alleged offending’ – ‘Sexual abuse’ – ‘Stalking’ – ‘Suicide threat by perpetrator’ – ‘Technology facilitated abuse’ – ‘Unacceptable risk’
Charges: rape x 7; rape by compelling sexual penetration; attempted rape x 2; assault x 6; sexual assault x 3; assault with intention to commit sexual offence x 2; recklessly causing injury; false imprisonment x 6; criminal damage x 4; stalking; installation use and maintenance of optical surveillance devices; threatening to distribute intimate image; theft. (Also unrelated charges of driving under the influence of alcohol x 3).
Proceedings: Bail application.
Facts: The applicant man and complainant woman had been in a relationship since 2015. Following unsuccessful IVF treatment their relationship deteriorated and it is alleged the applicant’s violence towards the complainant commenced. The relationship ended in 2021 but despite this, the couple continued a sexual relationship, while agreeing to also see other people, which the complainant commenced to do. They agreed the complainant could keep storing belonging’s in the shed of the home and stay in the shed when visiting Bendigo (he had moved to Melbourne). It was during this period that the offending occurred.
The applicant allegedly broke into the complainant’s house on multiple occasions, including while she was sleeping with another man, and on one occasion secretly filmed her having sexual intercourse with someone else and threatened to distribute the resulting film. The applicant also came to the complainant’s house and tampered with and damaged her car, came into her bedroom while she slept, monitored her phone and sent her images of a cut on his arm, insinuating that he would kill himself.
After the complainant told the applicant she needed space apart from him, he became aggressive, verbally and physically, grabbing the complainant and ripping a door off its hinges. On another occasion, the complainant came home to find the applicant hiding under her bed and there were multiple instances of rape. While the complainant left her house for a period and changed the locks, the applicant later confronted her at her home again and attempted to rape her again, chasing her out onto the street and physically assaulting her.
The applicant admitted to stalking but denied the sexual offences and was initially denied bail. A ten-year protection order was made with a full no-contact condition. The applicant relied heavily on evidence from his psychologist (Cummins) to demonstrate his lack of risk. Cummins opined that the offending was ‘situationally motivated,’ having arisen in the context of a relationship breakdown in which the agreement to see other partners was ‘very provocative’ and difficult for the applicant [82], [87]. Cummins undertook a risk assessment using the ‘Risk for Sexual Violence Protocol’ guidelines (and not the Static-99R), concluding that the applicant displayed none of the markers of re-offending. He was not able to complete a full assessment of the applicant’s risk profile for violence, as he felt limited by the need to distinguish allegation from established fact. The prosecution challenged Cummins’ characterisation of the offending and finding of low risk, which they saw as being largely based on his focus on the applicant’s lack of criminal history and lack of completion of the risk-assessment tests.
Reasoning and decision: Bail refused.
There was no contention that the offender had compelling reasons for bail and Champion J accepted this based on his stable accommodation, possible future employment, substantial surety, ongoing treatment opportunities and lack of criminal history.
Champion J found that the applicant demonstrated an unacceptable level of risk given the degree and protracted, premeditated nature of the offending, his disturbing surveillance of the complainant and his willingness to travel significant distances for the offending, consistent with the prosecution’s rejection of the offending as ‘situationally motivated.’ The complainant had an entitlement to live in peace and privacy which would be undermined by his bail.
While there was no mental health diagnosis, Champion J noted Cummins’ lack of access to historical records, refusal to draw connection between the offending and the applicant’s military history, and limited ability to commit a full sexual offending risk-assessment. Given the arrangement for the committal hearing in a few weeks, the judge concluded that the prosecution case and thus his bail could more realistically be assessed at that time. The applicant relied heavily on evidence from his psychologist (Cummins) to demonstrate his lack of risk. Cummins opined that the offending was ‘situationally motivated,’ having arisen in the context of a relationship breakdown in which the agreement to see other partners was ‘very provocative’ and difficult for the applicant [82], [87]. Cummins undertook a risk assessment using the ‘Risk for Sexual Violence Protocol’ guidelines (and not the Static-99R), concluding that the applicant displayed none of the markers of re-offending. He was not able to complete a full assessment of the applicant’s risk profile for violence, as he felt limited by the need to distinguish allegation from established fact. The prosecution challenged Cummins’ characterisation of the offending and finding of low risk, which the court saw as being largely based on Cummin’s focus on the applicant’s lack of criminal history and lack of completion of the risk-assessment tests.
DPP v Tan (Ruling No 1) [2023] VSC 296 (2 May 2023) – Victorian Supreme Court
‘Allegations of infidelity’ – ‘Application to lead hearsay evidence’ – ‘Evidence’ – ‘Evidence of accused accessing text messages of victim’ – ‘Hearsay’ – ‘Monitoring’ – ‘Murder’ – ‘Relevance’ – ‘Short relationship’
Charges: Murder.
Proceedings: Prosecution pre-trial application to lead hearsay evidence.
Facts: The accused objected to the admissibility of two statements in the Crown’s noticer of hearsay evidence filed pursuant to s67 of the Evidence Act 2008 (Vic) (‘the Act’). The deceased woman was in a relationship with the accused which commenced on 1 January 2021. She was killed on 1 February 2021, after the accused became aware that she was friendly with another man.
The prosecution submit the hearsay representations for part of the evidence detailing the relationship evidence, and relevant and admissible as an exception to the hearsay rule pursuant to s65(2)(b) and/or s65(2)(c) of the Act.
Issue: The admissibility of the disputed evidence, two hearsay statements of the deceased to the deceased’s friend Ms Chi, namely:
1.
‘That the accused deliberately ejaculated in her vagina without her permission, and that she was angry as a result’ (the parties agree ‘deliberately’ and ‘without her permission’ should be deleted); and
2.
‘The accused had been accessing her mobile phone and reading her messages’.
Objections: The defence objects to the admission of the statements on the following bases:
1.
The first statement is not relevant, does not come within a recognised exception to the hearsay rule, and in any event should be excluded pursuant to s 137 of the Act.
2.
The second statement does not come within a recognised hearsay exception.
Reasoning and decision:
1.
The first statement is not relevant pursuant to s 55 and therefore not admissible pursuant to s 56(2):
In my view, the evidence that the deceased told Ms Chi that the accused ‘came inside my vagina’, and she was very angry and yelled at him about it, could not rationally affect (directly or indirectly) the assessment of the probability of whether the accused killed the deceased, and if so, whether he killed her with murderous intent. The evidence does not provide a motive or reason for the killing. It does not assist a jury to determine whether the accused in fact killedthe deceased. It does not provide necessary context or background. It is not relevant and therefore not admissible. [53]
2.
The second representation is hearsay and admissible pursuant to s 65(2(c):
Turning to s 65(2)(c). The phrase, ‘made in circumstances that make it highly probable that the representation is reliable’ creates a stringent test. It may be contrasted with the language employed in s 65(d)(ii), which provides that the representation must be ‘made in circumstances that make it likely that the representation is reliable’. Clearly, s 65(d)(ii) sets a lower bar than s 65(2)(c).[59]
There are a number of relevant circumstances which bear upon the question of whether it is ‘highly probable’ that the representation is reliable. The deceased and Ms Chi were close friends, and the evidence shows the deceased shared intimate and personal information with Ms Chi. The deceased told Ms Chi a number of things about her relationship with the accused, and not only things that portrayed the deceased positively and the accused negatively. For example, the deceased told Ms Chi that she was not in love with the accused, but liked his money and that he cleaned her house. She said she did not really want to have sex with him, but did it so he would keep paying for things. These disclosures suggest Ms Chi and the deceased had an honest and frank relationship. [60]
The deceased had no reason to lie or embellish, or mislead her friend Ms Chi. She was not drug or alcohol affected. She did not suffer from any physical or mental illness or other issues that would have impacted her reliability. The event about which she spoke had occurred recently, in circumstances where she was still seeing the accused. This was a simple, uncomplicated narrative, made to a close friend who she communicated with multiple times a day. [61]
R v Basham (Sentence) [2023] VSC 79 (27 February 2023) – Victorian Supreme Court
‘Coercive control’ – ‘Controlling, jealous or obsessive behaviours’ – ‘Monitoring’ – ‘Murder’ – ‘Past domestic and family violence’ – ‘Physical violence’ – ‘Protection order’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual abuse’ – ‘Stalking’ – ‘Tracking’
Proceedings: Sentencing hearing for a conviction of murder (Category 1 offence).
Issue: Was the murder in the ‘worst category’ of offending such as to justify the imposition of a life sentence?
Facts: The male defendant and female deceased separated after 10 years of a marriage in which the defendant subjected the deceased to physical and emotional abuse.
The victim lived in ‘abject fear’ of the defendant, who monitored her movements and communications and made threats to destroy her. The victim obtained a protection order following the separation, installed security in her home and made two allegations of rape against the defendant, who was charged.
One week before the committal hearing for the rape offences, the defendant hid himself outside the victim’s house while she took her children to school. When she returned into the garage, he brutally beat her (inflicting 41 separate blunt force injuries) and hanged her, attempting to stage the scene as a suicide.
Reasoning and decision: Taylor JA imposed a life-sentence with a non-parole period of minimum 30 years describing the offence as an instance of the ‘worst case’ of murder.
Taylor JA considered both the objective seriousness of the crime itself and the personal circumstances of the criminal (R v Kilic). The premeditated and vicious nature of the attack, the defendant’s motivations of rage, jealousy and preventing the victim giving evidence at his rape trial, and the background of sustained family violence supported the conclusion that the offence was in the most serious category of murders.
Taylor JA was satisfied beyond reasonable doubt that the murder was a ‘long held, sustained goal,’ apparent in the defendant’s attempts to conceal his presence in the area, stalking of her house and the immediate nature of the attack. Taylor JA rejected the defence suggestion that the attack was a result of a momentary loss of temper, as the victim’s fear of the defendant meant she would not voluntarily have remained in his presence.
Taylor JA was further satisfied that a large part of the defendant’s motive was to prevent the victim from giving evidence in the rape proceedings against him, as well as his rage and jealously at no longer being in control of her.
The defence argued that the defendant’s good character, lack of prior conviction and good prospects for rehabilitation made specific deterrence and community protection of limited relevance. However, Taylor JA refused to accept that equal weight should be given to the criminal’s personal circumstances and the ‘objectively heinous’ nature of the crime. Importantly, Taylor JA drew attention to the fact that domestic violence is pernicious due to its invisibility and frequent perpetration by men with otherwise good reputations.
The defendant was also found to lack remorse – continuing to deny responsibility and remaining impassive during the victim impact statements – and have no ameliorating personal circumstances.
The defendant’s moral culpability was at ‘the highest end’ and the sentence must reflect ‘the abhorrence with which society regards violence towards domestic partners.’ The principles of general deterrence, denunciation, community protection and just punishment guided the decision:
“such violence is pernicious largely due to the fact that it is often invisible in public life, committed disproportionately by men who might otherwise enjoy a reputation for being good fathers, hard-working providers, reliable friends or community minded citizens” [94]
DPP v Cormick [2022] VSC 786 (16 December 2022) – Victorian Supreme Court
‘Appeal on a question of law pursuant to s272 criminal procedure act 2009’ – ‘Breach of protection order’ – ‘Emotional and psychological abuse’ – ‘Mens rea’ – ‘Protection order’ – ‘Separation’
Matter: Appeal on a question of Law pursuant to s272 Criminal Procedure Act 2009.
Facts: The male respondent was subject to an interim protection order in which the protected person was the respondent’s female former partner made on 12 May 2021. On 2 September 2021 charged with 1 x persistently contravening a protection order section 125A Family Violence Protection Act 2008 (Vic) and 4x contravening a protection order s 123 Family Violence Protection Act 2008 (Vic) (the factual basis of charge 1 was the contraventions alleged in charges 2-5).
The alleged contraventions involved committing family violence against the protected person in the form of telephone calls and text messages that amounted to emotionally and psychologically abusive behaviour.
The magistrate found that the messages were emotionally and psychologically abusive, making the protected person feel unsafe and threatened. However, the magistrate rejected the prosecution’s argument that contraventions were strict liability offences and determined that the prosecution had been unable to prove the respondent’s intention to breach.
Issue: An appeal was brought by the DPP on two grounds, the first of which was withdrawn.
1.
Contraventions of protection orders are strict liability offences
2.
The learned magistrate erred when construing the relationship between the physical element and the fault element under s 123.
At issue was whether the offence created by s 123 was concerned only with prohibited conduct and not whether the result of that conduct was intended.
Reason and decision: Appeal dismissed. The Magistrate properly directed themselves as to whether the order had been breached.
Niall JA premised the construction of the nature of the mens rea under s 123 on the general principle that mens rea is an essential ingredient and considered authorities that distinguished between specific and general intent offences.
In relation to the offence of contravening a protection order (s 123(2)) by engaging in family violence in the form of emotional or psychological abuse (ss5, 7), it was observed that divorcing the physical act from its impact was impossible and excluding consequences from the mental element would ‘substantially alter the nature of the offence’ [54].
It was concluded that a ‘person must intend to commit an act that has the physical or emotional consequences which form part of the offending conduct’ [61]. In this case, the prosecution was required to prove the accused sent the messages ‘with the intent to torment, intimidate, harass or be offensive to the recipient’ [62]. Niall JA observed that this construction would not undermine the statute’s protective purpose or be unduly burdensome, as intent ‘will be proved inferentially’.[58]
The Queen v Surtees [2022] VSC 124 (11 March 22) – Victorian Supreme Court
‘Burning’ – ‘Covid-19’ – ‘Dousing’ – ‘Exposing children to domestic and family violence’ – ‘History of domestic and family violence’ – ‘Immolation’ – ‘Immolation threat’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘Physical violence and harm’ – ‘Post traumatic stress disorder’ – ‘Sentencing’ – ‘Victims as (alleged) perpetrators’
Charges: manslaughter by unlawful dangerous act x1.
Proceedings: Sentencing.
Facts: The female offender pleaded guilty to the manslaughter of her husband. The offender and her husband had been in a relationship for 10 years and had two daughters, aged six and four. The offender’s 11-year-old son from a previous relationship also lived with the couple. The couple would often argue, at times have screaming matches and sometimes hit each other.
In 2016 Victorian Child Protection Services received a report of children being exposed to violence, but an investigation was not pursued [7]. In 2017 the victim pleaded guilty to unlawful assault against the offender [8].
On the night of the offence the victim had been drinking and yelling at people at a party they attended. After returning home he continued to yell at the offender. After the victim had calmed down and was sitting on the couch the offender, angry about the victim’s behaviour through the day, doused the victim in petrol and threatened him with a lighter by igniting it near him. He ‘burst into flames’ leading to serious injuries which resulted in his death [15]. The three children all witnessed their father in flames.
Proceeding: Sentencing.
Decision and Reasoning: 12 years imprisonment with a fixed non-parole period of 8 years [132].
Justice Tinney noted that 17 victim impact statements were filed, and all detailed the kind and decent nature of the victim. His Honour specifically noted the ongoing financial and emotional impact on the victim’s brother and his wife, who took in the children [111].
The offence was a serious example of manslaughter and the objective gravity of the offence as very high [85], [125]. There was a very high and obvious level of dangerousness inherent in the offender’s actions [90], aggravated due to it occurring in such proximity to her young children [92].
His Honour significance of family violence and provocation [71], however it was not a relationship “marked by frequent violence and controlling behaviour” [81]. The offence was not a long-considered crime; however, it involved several deliberate steps and was not unpremeditated [83]. There was no evidence that justified any contention the victim was physically abusive the day or night of the offence [72] and the offender’s actions were a “very extreme overreaction” [82].
Justice Tinney considered the offender’s PTSD diagnosis as cumulative from childhood sexual abuse, and violence in previous relationships but found no realistic or causal connection between the PTSD and the offence [61]. The victim deliberately attempted to shift a degree of blame onto the victim by giving conflicting accounts [67].
DPP v Kingdon [2021] VSC 858 (21 December 2021) – Victorian Supreme Court
‘Guilty plea’ – ‘Impact of covid-19 pandemic’ – ‘Murder’ – ‘No criminal history’ – ‘Older people’ – ‘People with mental illness’ – ‘Remorse’ – ‘Sentencing’ – ‘Separation’ – ‘Verdins principles’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The 65-year-old male accused pleaded guilty to the murder of his female de-facto partner of three years. The accused stabbed the victim with a kitchen knife 11 times in the chest and neck following an argument about the accused’s divorce settlement, during which victim had attempted to end the relationship.
Decision and Reasoning: 23 years imprisonment, with a non-parole period of 16 years and 3 months).
Lasry J considered victim impact statements of the victim’s family, which referred to the ‘lifelong’ and ‘severe’ impact of the accused’s actions (20). His Honour explained that while the accused intended to cause really serious injury, and was being sentenced on that basis, his moral culpability would be ‘determined by the nature of the killing… rather than the… intent’ behind the conduct (55). The accused’s moral culpability was high (56). The 5th and 6th limb of R v Verdins [2007] VSCA 102 applied due to the accused’s diagnosis of major depressive disorder, and likelihood of internalising ‘the punitive aspects of sentencing’, age, and ‘demographic divergence from… other prisoners’ (43). His Honour stated that general deterrence is an important sentencing principle in the context of domestic violence (60), noting the accused’s explanation for the crime “carries the implication “Look what you made me do”[58]:
People are entitled to leave relationships and, men in particular, who are told their relationships are finished do not have any form of licence, rationale or excuse to then inflict fatal violence as a reaction in order to quell their feelings of rejection [59].
The accused had no prior criminal convictions, was of an ‘advancing age’ and had previously been ‘of good character’ (62) and the utilitarian value of his guilty plea was ‘very high’ due to the Covid-19 pandemic (34), (62).
Re Strachan [2021] VSC 538 (31 August 2021) – Victorian Supreme Court
‘Bail’ – ‘Breach of protection order’ – ‘Children’ – ‘Exceptional circumstances’ – ‘History of family violence’ – ‘People with mental illness’ – ‘Separation’
Charges: Persistent contravention of a family violence intervention order (‘FVIO’) x 1, contravening a FVIO x 7, committing an indictable offence whilst on bail x 1, contravening a conduct condition of bail x 7.
Proceedings: Application for bail.
Issues:
1.
Whether there were exceptional circumstances to justify the grant of bail.
2.
Whether the applicant posed an unacceptable risk.
Facts: The male applicant and female victim were married for 10 years and shared four children. They separated in March 2021. The victim reported to police that throughout the relationship the applicant was frequently verbally abusive, intimidating towards the children, and physically abusive two to three times per year, strangling her on one occasion. The applicant was charged with various offences and bailed on those offences. An interim protection order and then a final protection order was made. The applicant allegedly breached these orders on numerous occasions by contacting the victim via phone and being near his daughter’s school. On one occasion the applicant visited his daughter at school and asked her to leave with him. The applicant suffered from severe mental health issues, including depression and anxiety, and a pain condition. He was charged in relation to the breaches of bail and protection orders and sought further bail.
Decision and Reasoning: Bail refused.
Lasry J found that the applicant had not established exceptional circumstances. His Honour found that the applicant could receive treatment for his mental health issues while in custody and that his pain condition, while serious, had not prevented him from engaging in community sports. Therefore, ‘special vulnerability’ had not been established. Furthermore, it had not been established that without bail the applicant’s time in custody would be ‘far in excess’ of any likely sentence.
Re Windley [2021] VSC 432 (20 July 2021) – Victorian Supreme Court
‘Assault’ – ‘Bail’ – ‘Breach of protection order’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Homeless applicant’ – ‘Sexual and reproductive abuse’
Charges: Sexual assault x 2; unlawful assault x 2; persistent contravention of a family violence order; contravention of family violence orders x 9.
Proceedings: Application for bail.
Issues:
1.
Whether there were exceptional circumstances to justify the grant of bail
2.
Whether the applicant posed an unacceptable risk
Facts: The applicant was charged with persistently breaching a Family Violence Intervention Order (‘FVIO’) by refusing to move out of his female former partner’s house [1], harassing the victim via phone [25], and perpetrating sexual and unlawful assaults against the victim [3]. The applicant had an extensive criminal record and a history of contravening bail conditions and community corrections orders.
Decision and Reasoning: Bail granted.
Coghlan J found that there were exceptional circumstances, and that by the imposition of appropriate conditions, the risk represented by the applicant was not unacceptable [24]. His Honour acknowledged that conditions of imprisonment had become more difficult due to quarantine requirements [18], and noted that if released the applicant would reside with his aunt, Ms Terri Brown, at a location ‘significantly removed from… the complainant’ and with very few means of transport [21]. Ms Brown had agreed to report any breaches of the applicant’s bail conditions. His Honour highlighted that the applicant had complied with court orders and requirements while previously residing with Ms Brown, and that ‘it was in part due’ to the applicant being homeless ‘that he continued to impose upon the complainant’ [7-8]. The conditions of bail included that the applicant reside with Ms Brown and not leave the house unless accompanied by her and produce his phone to police for inspection [29].
R v Margolis [2021] VSC 341 (15 June 2021) – Victorian Supreme Court
‘Murder’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation’
Proceedings: Sentencing.
Charge: Murder.
Facts: The male offender killed the female victim, his domestic partner of one week, by applying force to her neck by holding her in a chokehold. A jury convicted him of murder following a trial in which the issues were whether the victim was killed by a conscious, voluntary and deliberate act and, if so, whether the offender had murderous intent. The offender was diagnosed with long-term Post Traumatic Stress Disorder and alternately borderline or severe personality disorder by psychiatric experts. There was evidence he had mental health issues dating from his teens. He argued he killed the victim in the course of a flashback provoked by the behaviour of the victim, in pushing and haranguing him in the course of an argument which extended over a number of hours. Following the murder, the offender sent text messages to the victim’s family purporting to be from the victim. The offender had no prior history of violent offending and alleged he had been a victim of abuse as a child.
Held: Sentenced to 23 years imprisonment with a minimum term of 17 years. It was noted that this was less than the standard 25 year head sentence to take into account the offender’s prior good character and Verdins principles.
Re Charlton [2021] VSC 342 (11 June 2021) – Victorian Supreme Court
‘14 year gap between alleged offence and laying of charge’ – ‘Alleged murder of partner’ – ‘Bail’ – ‘Exceptional circumstances’ – ‘No relevant criminal history’ – ‘No unacceptable risk posed by applicant’ – ‘Poor mental and physical health of the applicant’ – ‘Separation’
Matter: Application for bail.
Facts: The applicant is alleged to have killed his female domestic partner in 2007, approximately 6 months after they had commenced residing together in her unit. He was arrested but released the day after his partner’s death. A coroner found the applicant likely contributed to the death of the deceased in 2011 but the applicant was not re-arrested until 6 January 2021 and has been in custody since then. There is some evidence of a history of violence by the applicant towards the deceased, including an incident where he drove dangerously with the deceased in a vehicle in the days prior to her death which allegedly was a source of arguments between them. There is evidence the deceased asked the applicant to move out of her apartment the day of her death.
Issues: Unacceptable risk and exceptional circumstances.
Held: Bail granted. The fact the applicant remained in the jurisdiction for the many years before he was charged, including while being dealt with for earlier historic offending, and failed to reoffend went a long way to establish that there was no unacceptable risk posed by a grant of bail. The applicant’s counsel’s assertion the prosecution case was weak was rejected, but exceptional circumstances were established by the passage of years and the good behaviour of the applicant during the delay, his lack of relevant prior offending or breach of bail, his serious physical and mental health issues and the effect of incarceration thereon, the conditions he would likely spend remand in, the likely future delay in reaching trial, his stable relationship and accommodation, and the availability of substantial surety.
R v Dellamarta [2021] VSC 220 (4 May 2021) – Victorian Supreme Court
‘Impact of covid 19 pandemic’ – ‘Imprisonment’ – ‘Manslaughter’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Sentencing’
Charges: Manslaughter.
Proceedings: Sentencing.
Facts: The female offender, who had an intellectual disability, pleaded guilty to the manslaughter of her male partner. She stabbed her partner once to the upper chest during the course of an argument. She admitted to stabbing the deceased but was unable to say why she had done so. She said that she had never been scared that he would physically hurt her, but that he had called her abusive and hurtful names.
Issues: Sentence to be imposed.
Decision and reasoning: A sentence of 7 years and 6 months imprisonment was imposed, with a non-parole period of 5 years.
The following factors were relevant to objective seriousness: First, the offender deliberately stabbed the deceased with a large kitchen knife. Second, the deceased was her partner, and the offence took place in her home. Third, she grossly overreacted to whatever feelings of hurt and anger she was experiencing in the face of the deceased’s aggression. Fourth, she immediately attempted to revive the deceased, called for help and assisted police.
The offender’s moral culpability for the offending, and the relevance of general deterrence, were somewhat reduced by her intellectual disability and depressive disorder (notwithstanding the lack of a causal link established by expert evidence). Specific deterrence was also modified by her personal factors (genuine remorse, ability to manage the limitations of her intellectual disability and fair prospects for rehabilitation). The guilty plea was also taken into account.
Finally, the court recognised the burden of prison on her at [45]:
“I accept that your deficits mean that your will find prison more burdensome than a person without your disability. Mr Newton described you as a vulnerable prisoner at risk of victimisation and other negative attention in the custodial environment. It seems that this risk has, in fact, materialised. Mr Newton further stated that there is some risk that the intensity of your depressive symptoms will increase as a result of your incarceration. I accept these opinions. I also accept that your experience of custody to date has been difficult given the lack of physical visits between March and December 2020 consequent upon the COVID-19 pandemic.”
Re Dinatale [2021] VSC 104 (9 March 2021) – Victorian Supreme Court
‘Animal abuse’ – ‘Bail application’ – ‘Breach of protection order’ – ‘Children’ – ‘Exceptional circumstances’ – ‘Impact of covid-19 pandemic’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons’
Charges: Numerous family violence charges and protection order breaches.
Proceedings: Application for bail.
Facts: The applicant was charged with numerous family violence offences and intervention order breaches over multiple years, but principally in 2019 and 2020, in respect of his wife (the complainant) and their 2 young children. The alleged offending involved physical violence (including use of weapons and strangulation), exposing the children to family violence, animal abuse, threats to kill (including if the complainant failed to revoke a protection order), and repeated breaches of intervention orders. Due to the delays brought about by the COVID-19 pandemic, there was a real prospect that the applicant’s trial would not proceed until 2023.
Issues:
1.
Whether exceptional circumstances existed to justify the grant of bail.
2.
Whether there was an unacceptable risk.
3.
Whether there would be a risk that the applicant would commit family violence if released on bail, and whether such risk might be mitigated.
Decision and reasoning: Application for bail was allowed on strict conditions.
At the outset, counsel for the respondent informed the court that “the children of the applicant are apparently petrified of him, and that Child Protection have indicated an intention of stepping in should the applicant make any attempt to have contact with them. She pointed out that the two children are eye witnesses to some of the offending, and that the risk of interference with them as well as with the complainant herself is a live concern.
Further, counsel for the respondent emphasised that the applicant’s conduct while incarcerated “showed his malevolence towards his wife and aggression towards some other individuals which would itself raise concerns about the safety of his family and others.” The charges were serious, “notwithstanding that no serious injuries had been caused. This was more by good luck than good management, and there was still the risk of psychological harm and ongoing consequences for the children. The seriousness of the offending was amplified by the constant undertone of family violence, encompassing control and actual violence.”
Exceptional circumstances existed. In particular, the possible period of remand due to the COVID-19 delay (2-3 years) would highly likely exceed any term of imprisonment. The obvious risk of the applicant endangering the safety and welfare of any person or committing an offence while on bail could be mitigated by stringent bail conditions so as not to be an unacceptable risk noting: “Any attempt to contact in any way, much less, harm, his wife or children, would have the inevitable consequence that he would be taken again into custody, with little hope of release until the resolution of the charges he faces.”
Re Application for Bail by Wilson [2021] VSC 22 (29 January 2021) – Victorian Supreme Court
‘Application for bail’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘Mild traumatic brain injury’ – ‘Murder’ – ‘No unacceptable risk’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Support services’
Charge: Murder.
Proceedings: Application for bail.
Facts: The female applicant killed her male domestic partner by stabbing him in the back during the course of a domestic dispute. At trial, the applicant intended to argue that she acted in self-defence and that she did not intend to cause death or really serious injury. The applicant had a history of drug addiction, mental illness, and had been in a car accident a few weeks prior to the offending, potentially resulting in a mild traumatic brain injury.
Decision and reasoning: The applicant was granted bail.
There were sufficient matters to establish exceptional circumstances. The two central issues that would arise at trial (self-defence and intent) were “live” and needed to be finely judged, in combination with the delay in the matter (which in itself would not be sufficient) and the circumstances of detention due to COVID-19 (unable to receive visits with her mother or daughter) ([45]-[48]).
The respondent had not demonstrated that the applicant was an unacceptable risk of endangering the community, offending whilst on bail or failing to answer bail. The applicant had a criminal record but this included relatively minor offences and the more serious conviction had no particular resonance in relation to the present offending. There was evidence that she would receive support with accommodation, and in relation to any ongoing problems of drug addiction and mental health from Women’s Housing Ltd. The applicant had further motivation in restoring her relationship with her mother and re-engaging with her young daughter, supported by the Department of Health and Human Services ([50]-[56]).
Re Chambers [2020] VSC 758 (17 November 2020) – Victorian Supreme Court
‘Application for bail’ – ‘Compelling reason’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Past domestic and family violence’ – ‘Pregnancy of victim’ – ‘Protection orders’ – ‘Strangulation’ – ‘Stringent bail conditions’ – ‘Unacceptable risk’
Charges: Reckless conduct endangering life x 2; Aggravated assault of a female x 6; Contravening a family violence intervention order (FVIO) x 1; Recklessly causing injury x 1; Making a threat to kill x 1.
Proceedings: Application for bail.
Facts: The applicant man and complainant woman were in a domestic relationship, and she was 3 months pregnant with their child. The applicant was subject to two FVIOs, one involving his ex-wife and child, and one involving the complainant. The charged offending involved the application of pressure to the complainant’s neck until she lost consciousness on the first occasion, and until she sustained a fractured larynx on the second occasion. The applicant owned his own business, had no criminal history (but been the subject of a number of reports of family violence), and had a history of depression/anxiety and substance abuse issues.
Issues:
1.
Whether the applicant had demonstrated a “compelling reason” to justify the grant of bail.
2.
Whether the respondent had demonstrated that there was an “unacceptable risk”.
Decision and reasoning: The applicant was granted bail.
First, on “compelling reason”, the offending alleged was very serious. It involved a man in the context of an ongoing intimate relationship applying pressure on 2 occasions to the neck of his pregnant partner rendering her unconscious and fracturing her larynx. The case against the applicant was of reasonable strength in view of the objective evidence ([50]-[51]).
Nevertheless, his Honour was satisfied that a compelling reason existed to justify the grant of bail ([53]). The applicant had no prior convictions or adverse bail history, stable employment and accommodation, and the situation of the offending had ended. There was no evidence to suggest he would further attack the complainant, with a traumatic period in custody being a strong disincentive to do so. The applicant was seeking treatment for his drug problem. He also stood to spend significant time in custody in difficult circumstances in the absence of bail ([52]).
Second, the court was not satisfied that the risk posed by the applicant (that he would contact and possibly harm the complainant) was unacceptable. This was in light of the very stringent bail conditions imposed to mitigate the risk including a curfew, requirement to comply with a full FVIO that had been put in place concerning the complainant, prohibition on drug use (including testing), requirement to undergo drug treatment, and a broad geographical exclusion to further protect the complainant ([54]).
Application for bail by LP [2020] VSC 764 (16 November 2020) – Victorian Supreme Court
‘Attempts to dissuade victim’ – ‘Bail application’ – ‘Exceptional circumstances’ – ‘History of abuse’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Perpetrator interventions’ – ‘Perverting the course of justice’ – ‘Protection orders’ – ‘Unacceptable risk’
Charges: Four groups of charges, including alternative charges. Group 1: Reckless conduct endangering serious injury x 1; Unlawful assault x 1. Group 2: Intentionally causing injury x 2; Recklessly causing injury x 2; Unlawful assault x 2. Group 3: False imprisonment x 1; Intentionally causing injury x 2; Recklessly causing injury x 2; Theft x 1; Unlawful assault x 2; Unlawful assault with a weapon x 1. Group 4: Common law assault x 1; Common law charge of attempting to pervert the course of justice x 1.
Proceedings: Application for bail.
Facts: The applicant man was charged with a number of family violence offences against the female complainant. The charges related to a series of incidents in November 2017 and subsequent text messages aimed at dissuading her from pursuing the complaints. At the time of the bail application, there were three Family Violence Intervention orders (FVIOs) in force (protecting the complainant, another former intimate partner, and the applicant’s further former partner/children). The applicant had expressed a desire to change submitting evidence of, inter-alia, the support of his sister and rehabilitative programmes undertaken in custody.
Issues:
1.
Whether exceptional circumstances existed to justify the grant of bail.
2.
Whether there was an unacceptable risk.
3.
Whether, if the applicant were released on bail, he would pose a risk of committing family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.
Decision and reasoning: Bail refused.
While the matter was finely balanced, the applicant met the threshold of exceptional circumstances through a combination of factors namely, the death of his mother whilst in custody and deferral of her funeral until his release, the likely delays in the matter proceeding to trial, the legitimate criticism levelled at aspects of the prosecution case, and the overall delays in the matter being prosecuted which were not attributable to the applicant (at [78]-[80]).
Nevertheless, there was an unacceptable risk that that the applicant would endanger the safety or welfare of a person, commit offences on bail, interfere with a witness (the complainant), or fail to answer bail. The applicant’s most recent conduct on bail showed that despite awaiting court for family violence charges (including those alleged by the complainant) he was prepared to engage in very similar conduct towards another partner (at [81]-[84], [88]).
Further, the risks the applicant posed not only of committing further family violence but also of trying to dissuade the complainant from proceeding with her complaint could not be mitigated by FVIOs or additional bail conditions. The court noted: “Preventing family violence in the community can be difficult because victims are often reluctant to come forward and/or may be easily dissuaded from pursuing complaints” (at [86]). Risks could not be ameliorated with bail conditions given the applicant’s poor history of compliance with previous bail orders, CCOs, and other court orders, his family violence history committed against different partners and his persistent drug use and offending (at [87]).
OP v XY [2020] VSC 754 (16 November 2020) – Victorian Supreme Court
‘18-year period for protection order’ – ‘Coercive control’ – ‘Culturally and linguistically diverse (cald) people’ – ‘Judicial review’ – ‘Protection order’ – ‘Unborn child added to protection order’ – ‘Whether child in utero at the time of offending is a child who has been 'subjected to family violence'’
Proceedings: Application for judicial review.
Facts: In protection order proceedings in the County Court, XY (female partner) claimed that her husband OP (male partner) had committed numerous instances of family violence during their relationship. This ranged from physical violence and unwanted sex to psychological manipulation and humiliation.
[28] XY alleged that, over the course of the marriage, OP emotionally controlled her, isolated her (from others), and continually abused her — for example, by writing on a whiteboard numerous ways in which she was a bad wife and stepmother. She claimed that OP made her sleep on the floor, limited her food intake and gave her no money. XY said that she felt pressured to have sex and that she could not say no as OP would say that she was a bad wife. She said she made numerous attempts to leave the relationship, but that OP would contact her and manipulate her to return. XY alleged that OP physically assaulted her on several occasions. He also ejected her from the home numerous times, including without shoes. He abused her for being selfish and using money on herself instead of the children. [Also see paragraphs [47]-[51] and [57]].
While OP denied these claims, and made his own against XY, he ultimately consented (without admissions) to a protection order. OP’s claims against XY included ‘falsified and exaggerated claims of being assaulted by her’ [29], also see [79]-[80]. The magistrate made mutual protection orders against OP and XY for a period of two years. OP filed a notice of appeal against the protection order made against him. XY did not appeal the order made against her. On appeal, her Honour extended the length of the DFV protection order against OP from a two-year term to one of 18 years’ duration. Her Honour also added XY’s child to the order on the basis that the child had been subjected to family violence in utero. OP now applies to this court for judicial review of the judge’s decisions and orders.
Decision and reasoning: Application for judicial review dismissed.
The County Court judge’s reasons for extending the DFV protection order to 18 years’ duration and including the child in the order are set out at [221]. The applicant (self-represented) made submissions with respect to, but was unable to demonstrate, actual or apprehended bias, a denial of procedural fairness, inadequacy of the judge’s reasons, Wednesbury unreasonableness, illogicality or irrationality in the judge’s decision, and a failure to apply the Briginshaw test to the serious claims of DFV made against him [373].
[17] The difficulty for OP, however, is that this application is not an appeal of the kind in which I am entitled or required to substitute my views on the evidence for those of the County Court judge. Instead, this Court’s jurisdiction on an application for judicial review is merely supervisory, not appellate, and is strictly confined in consequence. In exercising this jurisdiction, I am not to assess the merits of the decision, but must consider only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decisions. Perhaps counter-intuitively, as I have already intimated, even if the judge below erred, but did so within jurisdiction, still there would be no relief by way of judicial review.
[18] In my opinion, while aspects of the judge’s decision are very close to being afflicted with Wednesbury unreasonableness, illogicality or irrationality, in the end, those high hurdles for relief are not cleared. Nor am I satisfied that OP’s claims of actual or apprehended bias are established, whether examined with or without the fresh evidence. Instead, I am persuaded by [counsel for the complainant] that the asserted errors (except perhaps one) are not established or are otherwise within jurisdiction. While it is, I think, plain that the judge exceeded her jurisdiction by including the child in the order by reliance on a power that was not available on the evidence, that order is supported by another power which turns upon OP’s lack of opposition, and the consent XY implicitly gave, at the hearing.
…
[449] I do not accept that, for the purposes of the first limb of s 77(2) (or its later equivalent), it can be said that the child [in utero] “has been subjected to family violence”. While, as I have said, strictly, I need not decide whether there ever could be a case in which a child-to-be in utero may come within the provision, I very much doubt it. Indeed, given that a “child” is “a person who is under the age of 18 years” and that the words “has been subjected to family violence” connote the present tense, I think it is extremely unlikely that the definition of family violence in s 5(1)(b) could extend to behaviour directed at or experienced solely by the mother when the child-to-be is in utero.
Re Busari [2020] VSC 572 (7 September 2020) – Victorian Supreme Court
‘Application for bail’ – ‘Breach of protection order’ – ‘Child’ – ‘History of abuse’ – ‘Misuse of alcohol’ – ‘People with mental illness’ – ‘Strangulation’ – ‘Unacceptable risk’
Charges: Reckless conduct endangering life x 1; Reckless conduct endangering serious injury x 1; Aggravated assault x 1; Common law assault x 1; Unlawful assault x 1.
Proceedings: Bail application.
Facts: The complainant is the male applicant’s female partner. It is alleged that the present charges occurred against a background of long-term, largely unreported domestic violence by the applicant against the complainant. In March 2018, the applicant is alleged to have threatened to burn down the family home resulting in the issuing of a protection order (the applicant is alleged to have breached the DFV protection order on numerous occasions, but these breaches were not reported at the time). In June 2020, the applicant is alleged to have been aggressive and verbally abusive. In July 2020, the applicant is alleged to have verbally abused the complainant. Later, he is alleged to have become increasingly aggressive and assaulted the complainant in front of their child, including pulling chunks of her hair out before allegedly strangling her. After a ‘prolonged period of strangulation’, the complainant managed to free herself and escape. The applicant is alleged to have been intoxicated during the various offences. Bail was previously refused on the basis that the applicant posed an unacceptable risk of committing an offence while on bail.
Issues: Whether risk can be mitigated by imposition of condition.
Decision and reasoning: Bail granted.
[56] There is no question that the applicant does pose a risk of contacting the complainant, and interfering with her as a witness and exposing her to danger. The question is whether there are conditions of bail which could be imposed so as to mitigate that risk so that it is not unacceptable.
…
[60] Taking into account all of the surrounding circumstances of this case, I am not satisfied that the applicant poses an unacceptable risk of any of the matters prescribed in s 4E of the Act. He does certainly pose a risk but I believe that the risk can be ameliorated to an acceptable level by the imposition of the stringent conditions [including residential requirements, curfew, prohibition against drugs or alcohol, mental health care plan, no-contact order for the protection of the complainant and their daughter and compliance with an interim DFV protection order].
R v Sturt [2020] VSC 317 (10 June 2020) – Victorian Supreme Court
‘- people affected by substance misuse’ – ‘Cannabis-induced psychosis’ – ‘Controlling behaviour’ – ‘History of sexual violence’ – ‘History of abuse’ – ‘Mitigating and aggravating circumstances’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Personality disorders’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Suffocation’
Charges: Murder x 1
Case type: Sentence
Facts: The accused murdered his long-term intimate partner by suffocating and strangling her while he was in a cannabis-induced psychosis. He surrendered himself to police the same day as the killing, made a full confession and pleaded guilty to murder at the first available opportunity. The offence was not an isolated instance of domestic violence, as the accused had been physically and sexually violent towards the deceased in the past. He had also been previously admitted to a psychiatric unit, on which occasions the deceased reported that his mental state had deteriorated in the context of substance abuse, and that he had tried to strangle her in her sleep. He also assaulted the deceased in 2010.
Issue: Whether the voluntary drug taking was an aggravating circumstance; whether his Schizotypal Personality Disorder was a mitigating circumstance.
Held: After an assessment, a forensic psychiatrist made several observations about the accused, including that he used various coercive behaviours, such as violence and threats of violence and suicide, to mitigate the persistent likelihood of the deceased abandoning him. It appeared that the fatal attack was motivated by delusional beliefs. The psychiatrist also found that notwithstanding his prior history of domestic violence, the killing would not have occurred in the absence of the psychotic episode ([26]). In the police interview, the accused described his childhood as "troubled". His stepfather physically and emotionally abused his mother, and the accused used cannabis for many years, and has "dabbled" with other drugs ([52]-[58]).
The Court did not accept the prosecution’s submission that the accused’s cannabis use was an aggravating feature, as it could not be established beyond reasonable doubt that he knew that he was likely to become violently psychotic from the cannabis use during the relevant period ([27]-[30]). Further, his moral culpability was not reduced by his psychosis at the time of the offending, because he had voluntarily taken the cannabis in the knowledge that it might make him violently psychotic ([32]). His forensic psychiatrist considered that his Schizotypal Personality Disorder indirectly contributed to his offending because (1) his problems with social anxiety and depression predisposed him to the heavy use of cannabis, and (2) it lowered the threshold for developing psychosis following ingestion of psychotogenic substances ([37]). The defence counsel’s submission that his personality disorder was a mitigating circumstance was also rejected by the Court ([40]). Cannabis was not the only way to deal with his anxiety. The accused should have undertaken a drug rehabilitation program instead, particularly since he was aware that cannabis might cause him to become violently psychotic ([39]).
Aggravating circumstances included the fact that the deceased was the accused’s long-term intimate partner, she was murdered in her own home, and the offence was not a "one-off instance of domestic violence". The fatal conduct, however, was not motivated by the same considerations which led to the earlier domestic violence instances, and was not planned ([45]-[50]). Mitigating circumstances included the accused’s cooperation with authorities, remorse, and his reasonable prospects of rehabilitation, given his excellent insight into his psychological issues and his positive response to medication while in custody ([65]-[71]). Consequently, he was sentenced to 22 years’ imprisonment, with a non-parole period of 16 years.
R v Cameron [2020] VSC 334 (5 June 2020) – Victorian Supreme Court
‘Controlling behaviours’ – ‘Drug misuse’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suicide threats by perpetrator’ – ‘Weapon’
Charges: Murder x 1
Proceedings: Sentencing
Facts: The male offender and female victim had been in a relationship for three months and lived together. The couple argued in the days leading up to the offending and the victim appeared nervous and scared to those she met. She told several friends that she could not leave, even though the offender had choked her. On the night prior to the offending, the victim visited her friend after a fight with the offender. The victim received text messages from the offender saying that he would kill himself if the victim did not come back. The offender went to the friend’s house and spoke to the victim, but the victim said she was not ready to come back home now but would come soon. The offender left the house and travelled to the house of a friend. On the way, he slashed his right forearm repeatedly; the friend wrapped the offender’s arm in a tea towel. In the meantime, the victim returned home but did not find the offender there, so she texted her friend, indicating that she thought she would be okay. A text message exchange then occurred between the offender and the victim in which the offender asked the victim if he could come home and told her that he loved her, but the victim said she did not want to talk and that "If you love someone you would not harm them and control them". The victim exchanged text messages with other people but these ceased abruptly around 4:55am.
At this time, the offender returned home and stabbed the victim numerous times to the face, scalp, neck and arms with a kitchen knife while she was on her bed. She died quickly after this attack. The offender tried to clean the scene with bleach and hid the body and bloody sheets under the bed. He then tried to burn down the house by lighting a fire in a cabinet next to the bed, but this only smouldered as the cabinet was closed and the fire was starved of oxygen. The offender went to his friend’s place and told him that he had killed the victim, but only because she had attacked him in his sleep. He repeated this account of events to police, claiming that the victim had attacked him when he refused to get her more ice.
Judgment: The judge sentenced the offender to 29 years’ imprisonment, with a non-parole period of 23 years. His Honour noted that the offender’s "crime of murder is a very serious example of that always serious crime" [118]. In addressing the offender, his Honour emphasised the aggravating features of the offending: "In the context of an ongoing domestic relationship which left your partner strongly fearing you, at least in the days leading up to her death, for reasons which have not in any honest way been explained by you, you took to her with a dangerous knife while she was in the sanctuary of her own bed in her own home … You ignored her futile and desperate attempts to ward off your blows. Having killed her, you showed your lack of regard for her by hiding her under her bed, conducting a cursory clean-up, then setting the fire in the cabinet intent on burning the crime scene. Then you left her, dead on the floor, covered in blood" [118]. And further, "Yours was a sustained and outrageously violent attack upon a helpless woman," such that his Honour held that the lack of planning or premeditation "said nothing about its seriousness" [121]. His Honour further stated that "You were in a position of trust where she was concerned. She should have been able to look to you for love and protection. You chose, however, to kill her by extravagant, protracted and shocking acts of violence. Each single act of stabbing her entailed serious danger to the welfare of your helpless victim. You carried out many such individual acts" [123] and that "Your breach of trust and lack of normal human decency are simply stunning" [140].
His Honour held that rehabilitation would have little part to play in the sentence, because the offender’s prospects of rehabilitation were "exceedingly dim," given he had not honestly acknowledged his crime nor dealt with his drug and other issues [131]. Instead, just punishment, denunciation, general deterrence, specific deterrence and protection of the community were important to the sentence [141]. His Honour noted that "The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort, especially against a domestic partner" and that "the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence upon a domestic partner, for whatever reason, that such conduct will be met with strong punishment" [141]. His Honour was satisfied beyond reasonable doubt that the physical altercation did not commence as the offender claimed and that his account was a complete fabrication; that is, it did not begin with the victim attacking the offender because the victim was evidently very scared of the offender and "would have known that to [attack the offender] would only serve to inflame [the offender] and might trigger a violent reaction from a person of whom she was in fear" [50], [51], [55]. In rejecting the offender’s claim, his Honour held that there was no explanation for the shocking crime [56].
His Honour rejected that the plea of guilty was made at a reasonably early stage, having been made 16 months after the offending [59], but noted that there was still a significant utilitarian benefit to the plea, which would constitute a mitigating factor [61]. His Honour also rejected that the offender was remorseful [64], taking into account his conduct after the offending (in attempting to clean the scene and hide the body), his false assertions of the victim attacking the offender first, and his obvious sorrow for his own position, not the death of the victim. His Honour accepted that the offender had a substantial history of methylamphetamine use, and that the offender was using that drug at the time of offending [80]. However, his Honour also noted that the offender had an extensive criminal history for matters of violence, dishonesty, weapons and driving, and that he had been imprisoned numerous times and received numerous community-based dispositions which were frequently breached [83]. His Honour was not convinced that the offender actually suffered from PTSD and noted that even if he did, this would not result in any term of imprisonment weighing more heavily on the offender than a person in normal health [102]. His Honour therefore held that the principle enunciated in the fifth limb of R v Verdins [2007] VSCA 102 did not have any application in this case [103].
Re Brzezowski [2020] VSC 294 (28 May 2020) – Victorian Supreme Court
‘Animal abuse’ – ‘Bail application’ – ‘Compelling reasons’ – ‘Past domestic violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of covid-19 pandemic’ – ‘Sexual assault’ – ‘Strangulation’ – ‘Unacceptable risk’
Offences: Common assault x 2; Unlawful assault x 2; Sexual assault x 2; Criminal damage; Threaten to commit a sexual offence; False imprisonment; Contravention of a Family Violence Intervention Order (FVIO) x 4; Persistent contravention of a FVIO; Committing an indictable offence whilst on bail; Contravening condition of bail.
Proceedings: Bail application
Issue: Whether compelling reasons exist justifying the grant of bail.
Facts: The applicant and complainant commenced a ‘romantic’ relationship in August 2019. The applicant moved into the complainant’s home which she shared with her 23-year-old daughter. On the day of the offending, the complainant came home from work and found the applicant intoxicated. They argued before the applicant told the complainant to join him in the shower. The complainant initially refused but eventually agreed to appease the applicant who appeared angry. The applicant suggested they have sexual intercourse but the complainant refused. The applicant became violent towards her, pushing her into the shower door. The complainant tried to leave the shower but the applicant pushed her onto the bed, held her wrists above her head and thrust his knee into her thigh. The complainant kicked the applicant in the genitals. The applicant then punched the complainant in the abdomen about ten times. The applicant left the house but came back shortly later, yelling "Right, time for round two". The complainant attempted to leave in her car but was initially blocked in by the applicant’s car. She managed to leave but returned to the house to collect her dogs as she was fearful the applicant would harm them.
The complainant went to the toilet when she arrived but found the applicant in there. The applicant rubbed faeces over the complainant’s face and hair, then pushed her up against a wall using his forearm under her chin. She broke free and called 000, while the applicant began hitting things in the house. The applicant grabbed the complainant, threw her onto the bed, pushed his forearm to her throat and punched her in the abdomen, stating he was going to give her anal with his clenched fist. The applicant got off the complainant when she grabbed his genitalia with her fingernails. She cancelled the police request but asked her sister to come and help her. The complainant’s sister and daughter arrived, followed by police.
A full and final non-contact FVIO was granted after this incident which the applicant breached by texting and calling the complainant. On one occasion though, the complainant visited the applicant at a motel room for about five minutes.
Judgment: The judge granted bail on the applicant’s own undertaking with strict conditions (including he: provide a $3000 surety, reside at his parent’s residence, abide by a curfew, comply with the FVIO, not contact any prosecution witness, not enter the suburb the complainant lives in, not consume alcohol or drugs), finding that the applicant had established that a compelling reason exists to justify the granting of bail, despite the offending being "serious and distasteful" [65]. The applicant argued that the following were compelling reasons to justify bail: the applicant’s limited criminal history (he has only come before court twice); his first time in custody; weakness of the prosecution case (the complainant’s credibility is likely to be successfully challenged); delay (one year on remand); implications of the COVID-19 pandemic (lockdowns and the possibility the virus could enter prisons); availability of stable accommodation with the applicant’s parents; his ties to the jurisdiction, including his parents and children; $3000 surety from his mother; other conditions to reduce the magnitude of risk (for example, imposition of a curfew) [32].
His Honour noted that the applicant conceded that the offending was serious, finding that "the offending alleges multiple acts of family violence committed by a more powerful male upon a relatively vulnerable female who would have been entitled to look to him for protection, rather than physical violence and threatening conduct" [49] and that the applicant "flagrantly breached requirements" of the FVIO [50]. While his Honour did accept that the complainant’s credit "will be subject to strong and justifiable attack", he found that the prosecution case could not be described as weak due to other things supporting the complainant’s account [52]-[53].
His Honour further found that the applicant’s criminal history included a finding of guilt for an assault upon a previous domestic partner and that the applicant had "deliberate and flagrant disregard" for previous grants of bail. As such, his Honour held that there was a "real concern as to [the applicant’s] willingness to abide by conditions of bail" that might be imposed in the future [57]. Furthermore, his Honour noted the existence of the FVIO and that the complainant was very frightened of the applicant and dreaded his release on bail [60].
His Honour accepted that a full year on remand would be a significant period of time for a case which would remain in the summary stream [61] and that such a period would be particularly significant in light of the onerous conditions as a result of the COVID-19 pandemic [62]. Additionally, his Honour held that the applicant was likely to receive a sentence lower than the period of time he would spend on remand if not bailed [63]. In considering the "unacceptable risk" test, his Honour noted that there was a legitimate concern that the applicant would try to contact the complainant again, but that, since his arrest, the applicant had not attempted to contact the complainant and had not been violent towards her. His Honour considered that the risk posed by the applicant could be ameliorated with imposition of strict bail conditions.
Re Ilpola [2020] VSC 578 (21 May 2020) – Victorian Supreme Court
‘Allegations of family violence’ – ‘Application for bail’ – ‘Breach of orders’ – ‘Charges of schedule 2 offences while subject to community corrections order for schedule 2 offences’ – ‘Community corrections order for schedule 2 offences’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘History of domestic and family violence’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Unacceptable risk’
Proceedings: Bail application.
Charges: attempted rape, sexual assault, persistent contravention of FVIO, making a threat to inflict serious injury x 3, false imprisonment, intentionally causing injury, common law assault.
Facts: The male applicant and female complainant had been married and had one daughter together but were separated at the time of the offending. A protection order was in place prohibiting the applicant from contacting the complainant or their daughter, or coming within 100m of them or 200m of their home.
The offences predominantly arose on one day. It was alleged the applicant first telephoned the complainant while she was at home with her son and threatened them, following which they left the house. When the complainant returned home later that day, the applicant was inside her house and grabbed her, punching her head and face, and later attempting to anally penetrate her. The following day he returned to her house and was further verbally abusive. The complainant reported the incident to the police.
The applicant denied all the allegations apart from having attended the complainant’s residence on three occasions. At the time of the offending he was subject to a 12-month CCO following convictions for recklessly causing injury, contravening an FVIO, intentionally damaging property and failing to answer in relation to the same complainant.
Reasoning and decision: Lasry J had regard to the serious nature of the attempted rape offence, his view that the strength of the prosecution case was not compromised by his dependence on the complainant’s evidence, the accused’s criminal history and existence of the CCO at the time of the offending, the lack of evidence of the availability of treatment opportunities and his view that if bail were refused the applicant would not be likely to spend more time in custody than the likely sentence.
Exceptional circumstances were found to exist in the substantial delay of the trial of two and a half to three years, owing to the COVID-19 pandemic. However, Lasry J found that there was an unacceptable risk of reoffending and that this risk would not be sufficiently mitigated by imposing bail conditions. Given that the applicant had been subject to a CCO for similar offences at the time of the incident and a protection order had already been put in place seeking to protect the complainant, it was concluded that bail was not acceptable.
Re Mazzitelli [2020] VSC 288 (21 May 2020) – Victorian Supreme Court
‘Bail application’ – ‘Covid-19 pandemic’ – ‘Exceptional circumstances’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Pregnancy of victim’ – ‘Protection order’ – ‘Separation’ – ‘Substance abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons’
Offences: Intentionally cause injury x 3; Common assault x 8; Making a threat to inflict serious injury x 2; Attempt to pervert the course of justice x 2; Being a prohibited person in possession of an imitation firearm x 2
Proceedings: Bail application
Issues: Whether exceptional circumstances exist justifying the granting of bail; Whether there is an unacceptable risk that the applicant would reoffend or endanger the community if released.
Facts: The male applicant and female complainant were in a relationship from November 2017 until September 2018, during which there were a number of separations and reconciliations. From February 2018, there were numerous instances of violence by the applicant towards the complainant. These included: using a chain like a whip to hit the complainant; pushing her out of the car; splashing hot wax on her hair, face and arms; tasering her; hitting her on the back of the head; throwing drinking glasses at her; kicking her hard in the stomach when she was pregnant; burning her on her back with a blow torch; and hitting her with a metal pole. The applicant also made several threats towards the complainant, including: a threat to cut her hands off; threatening to kill her (while holding a gun); threatening to shoot different limbs; threatening her so that she would recant her testimony to police. The applicant’s sister told the complainant that she had to tell police that she made up the allegations, and the complainant later made a statutory declaration to this effect. However, she maintained the allegations at the committal hearing and explained why she made the statutory declaration.
Judgment: The judge refused the bail application, holding that the applicant failed to establish exceptional circumstances existed that justified the granting of bail and even if this had been established, the risk posed by the applicant of reoffending or endangering the community if released would be unacceptable. The applicant relied on the following matters as proof of exceptional circumstances: delay (about two years from arrest until trial), onerous nature of remand due to the COVID-19 pandemic, weakness of the prosecution case, absence of any contact with the complainant while on bail, availability of support through CROP (a drug intervention program), family support and stable accommodation, modest criminal history (no convictions for violence), first time in custody, no pending matters other than the trial, and the applicant’s medical condition [43]-[44].
His Honour found that the applicant did not challenge the proposition that the offending was serious, noting that "Whilst not anywhere near the higher end of the range of seriousness of offences of family violence, the alleged attacks by the applicant upon his then partner were repeated, nasty, and had some disturbing elements to them, including the use of weapons and the infliction of a kick to the abdomen of a pregnant woman" [58]. His Honour considered that the complainant was scared of the applicant and a FVIO was in place with her as a protected person [71].
His Honour also found that the prosecution case was not weak, the applicant’s criminal history "reveal[ed] some signs of a lack of respect by the applicant for the orders of the court", and the applicant had already been imprisoned in the past for failing to answer bail. His Honour noted that the applicant’s conduct in respect of bail "paint[ed] a picture of a person who is entirely unwilling to comply with the requirements of bail when they do not suit him" and that this was an important consideration when assessing exceptional circumstances [67].
While his Honour accepted that the applicant had an extensive history of illicit drug use as a form of pain relief for an accident the applicant suffered eight years ago, his Honour held that it was completely unacceptable for the applicant to do this, particularly where the applicant knew this would breach his bail conditions [69]. Furthermore, his Honour held that the provision of family support was "not an important matter in the overall mix of circumstances in this case" where the applicant had family support in the past but still offended [70]. His Honour noted that the applicant was likely to spend 17 months on remand before trial, but that this "is not, on its own, or in combination with other factors, exceptional" [72]. In any event, any sentence imposed was likely to exceed this period anyway [73].
Re Sepehrnia [2020] VSC 247 (6 May 2020) – Victorian Supreme Court
‘Bail application’ – ‘Controlling behaviours’ – ‘Extensive criminal history’ – ‘Firearm’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of covid-19 to bail application’ – ‘Separation’ – ‘Step-children in home’ – ‘Substance abuse’ – ‘Threat to kill’ – ‘Weapon’
Offences: Rape x 2; Infliction of injury; Threats; Damaging property.
Proceedings: Bail application
Issue: Do exceptional circumstances exist justifying the grant of bail; does the applicant pass the unacceptable risk test.
Facts: The male applicant threatened to kill and physically harm his female ex-partner, MZ, on multiple occasions, including by pointing a firearm at her and threatening to throw acid in her face. Following an argument between the couple, the applicant punched MZ in the face and kicked her in the middle of her back, before pushing her on the bed, covering her face with a pillow and stating that he was going to rape her. He removed the pillow and grabbed MZ around the throat before raping her. The assault lasted several minutes before the applicant left MZ alone at his house. MZ reported the assault (but not the rape). When the applicant learnt of this, he threatened to kill MZ’s family. A Family Violence Intervention Order (‘FVIO’) was issued to protect MZ.
The applicant also threatened to kill and physically harm another female ex-partner, SB, and her children, and frequently damaged her property. On a number of occasions, the applicant slapped, spat on, choked, scratched, pulled SB’s hair and threw her to the ground. He also physically assaulted SB’s 16-year-old daughter and one of SB’s friends, and detained SB in her home on one occasion. SB ended the relationship, but the applicant continued to abuse her until he was remanded for other matters. After his release, the applicant attended SB’s house, forced her onto her bed, threatened to kill her if she was ever with another guy, and raped her.
The applicant applied for bail twice in relation to the charges arising out of these events, but both applications were refused as the applicant failed to establish exceptional circumstances and there was an unacceptable risk of further offending.
Held: The judge refused to grant bail as the applicant failed to establish that exceptional circumstances existed justifying bail and if the applicant were released, there was a high risk that he would endanger the safety of the public, commit offences while on bail, interfere with witnesses and/or fail to answer bail. The applicant contended that various matters, when considered together, constituted exceptional circumstances. These included: delay (his trial was unlikely to occur until next year because of the COVID-19 pandemic and he already spent 252 days in custody); the onerous circumstances of his custody (he has been held in protection due to physical attacks upon him and receives no visitors due to COVID-19 restrictions); lack of strength of the prosecution case; his criminal history occurred in the context of drug use; he has used his time in custody well (by completing courses and maturing); the availability of stable residence, employment and family supports; and the availability of a surety of $500,000 [33].
His Honour held that the offending was very serious [47], the cases against the applicant were not weak [48], his criminal history (violence, dishonesty and weapons offences, breaches of FVIOs, failing to answer bail) rose questions as to his character and ability to abide by any court orders [49], he had previously been convicted for failing to answer bail [50], at the time of offending he was already subject to bail and CCOs [51], he was very unlikely to be willing and able to comply with any bail conditions [52], there were already several FVIOs against the applicant [53], the proposed living arrangements if he were to be released were unsatisfactory as the applicant has committed family violence against his mother and sister in the past (with whom it was proposed he should live) [54], there was no evidence he had taken major steps towards dealing with his drug issues [55], both victims were frightened of the applicant [56], and he would receive a much longer term of imprisonment if convicted for even one rape offence than he would on remand [57].
His Honour also noted the implications of the COVID-19 pandemic, but approved Re Tong [2020] VSC 141 in which the court held that the pandemic is "simply part of the surrounding circumstances required to be taken into account in a consideration" of steps in the bail process. His Honour therefore was "far from satisfied that the applicant … discharged the onus resting on him to establish the existence of exceptional circumstances" [59].
Even if the applicant had established exceptional circumstances, His Honour concluded that the risk of the applicant harming the victims and/or their families was so high that His Honour would have refused bail in any event [62].
Re Bertucci [2020] VSC 88 (2 March 2020) – Victorian Supreme Court
‘Bail application’ – ‘Children present’ – ‘Contravention of protection orders’ – ‘History of domestic violence’ – ‘No exceptional circumstances’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Uncharged acts’
Charges: Various offences, including contraventions of FVIO, recklessly causing injury, unlawful assault, failing to answer bail and committing an indictable offence on bail
Case type: Application for bail
Facts: On 19 April 2019, the applicant man was charged with contravention of a FVIO and persistent contravention of a FVIO (‘the informant Sidorovska matter’). He was released on bail, however, after failing to appear in the Sunshine Magistrates’ Court, an order was made forfeiting his bail and a further bench warrant was issued for his arrest. On 2 October 2019, the applicant was charged with recklessly causing injury, unlawful assault (x 2), contravention of a FVIO, failing to answer bail and committing an indictable offence on bail (‘the informant McKay matter’). The applicant had been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges.
The applicant and complainant woman were in a relationship and have 3 children together. At the time of the relevant alleged offending in the informant Sidorovska matter, the applicant and complainant were separated and a final no-contact FVIO was in place against the applicant, listing the complainant and the children as the affected family members. In relation to the informant McKay matter, the applicant allegedly assaulted the complainant woman by striking her to the leg with an implement, as well as to the head. This occurred in contravention of a FVIO and in close proximity to the children.
Issue: The issue for the Court was whether exceptional circumstances existed to justify bail and whether the previous history of family violence towards the complainant not resulting in findings of guilt should be taken into account.
Held: The Court refused bail as the applicant failed to discharge the onus to prove the existence of exceptional circumstances to justify his release on bail ([64]). In considering the submissions for a finding of exceptional circumstances, the Court found that:
•
the decision on bail would not interfere long-term with the prospects of the family being reunited ([49]);
•
allowing the applicant to live with the complainant and children would do nothing to mitigate the risk of reoffending as such a living environment was ‘far-from stable’ ([50]);
•
the applicant’s two-months of part-time employment leading up to the date of the contested hearing was relatively insignificant ([51]);
•
the prosecution’s case in respect of the two sets of charges was not weak ([52]);
•
the multiple breaches of the intervention order indicated a deliberate disregard and lack of respect for the court order imposed to protect his partner and children from him ([53]); and
•
striking a female with an implement cannot be described as trivial offending ([54]).
Although the applicant’s criminal history was not lengthy, it was deemed highly significant. For example, he had previous convictions for persistent contravention of a FVIO, and had previously acted with violence towards another female partner, both of which resulted in imprisonment ([57]). This indicated that he had not been adequately deterred and showed a lack of regard for court-imposed sanctions and for the importance of bail ([63]). There had also been a number of alleged incidents of family violence towards the complainant, which did not result in findings of guilt. The Court considered these matters as relevant to whether the applicant posed a risk of future endangerment to the complainant and her children ([58]-[59]).
R v Eckersley [2020] VSC 22 (30 January 2020) – Victorian Supreme Court
‘Children exposed’ – ‘Controlling behaviour’ – ‘Domestic homicide’ – ‘Guilty plea’ – ‘Misuse of drugs and alcohol’ – ‘Mitigating circumstances’ – ‘Moral culpability significantly reduced by psychosis’ – ‘Murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Verdins principles’
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male offender and female victim had been in a domestic relationship from 2001 until the victim was killed in July 2018. They had three children together. There was a history of controlling behaviour by the offender towards the victim. The offender’s mental health had deteriorated in the lead up to the offence, with his GP recording that the offender was "struggling with depression due to a loss of income and employment, and that [he] had been self-medicating with alcohol and cannabis but had stopped consuming these substances" [9]. The GP did not observe any homicidal ideations or psychosis symptoms at the time.
The morning of the offence, the neighbours heard a large argument ensuing within the offender’s home. The offender threw food and cleaning products into the rubbish and damaged items in the kitchen with a hammer before suddenly attacking the victim by punching her in the face. The victim fell to the ground and was kicked by the offender before he grabbed a knife and stabbed her in the head, neck, chest and upper body. The attack was witnessed by two of their children, one of whom unsuccessfully tried to stop the attack. The offender then proceeded to set fire to a near-by fabric couch and applied the lighter flame to the older daughter’s shoulder. He then forced the children and family dog into a car and drove away. Police later found the offender and children unharmed.
The offender suffered from ‘severe, acute and transient’ drug-induced psychosis at the time of offending [62]. The offender’s psychosis meant that his degree of moral culpability was of significant dispute.
Held: Eckersley was sentenced to 22 years’ imprisonment with a non-parole period of 18 years.
The judge provided that ordinarily, "a drug-induced psychosis does not commonly result in the application of the Verdins principles and a mitigatory outcome" [88]. However, as the offender was prescribed the drug by his GP and was not aware that they could cause psychotic symptoms, the judge was satisfied of the offender’s low moral culpability [92]. This lower culpability lessened denunciation and deterrence as sentencing factors, however the judge noted that this did not "take away from the fact that the killing of an intimate partner is an inherently terrible act" [108]. The judge also noted that while the murder did not occur in the context of a history of family violence, "the killing of an intimate partner is a most serious form of offending which must again be tragically emphasised by the Court" [112].
In sentencing Eckersley, Justice Champion considered the children witnessing the offence, the offender’s destruction of the victim’s body and fleeing the scene as aggravating factors. The unreasonable delay in sentencing was also accounted for.
Re Rodgers [No 2] [2019] VSC 760 (20 November 2019) – Victorian Supreme Court
‘Bail’ – ‘Delay’ – ‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Strangulation’
Charges: 33 offences, including strangulation
Case type: Bail application
Facts: The applicant was charged with 33 offences, 32 of which arose out of incidents alleged to have occurred over 3 days. The other charge involved the contravention of an undertaking given to the Magistrates’ Court. The primary complainant was the applicant’s wife, however, the alleged offending also involved the complainant’s children. It was alleged, among other things, that the applicant grabbed the complainant’s throat and pushed her head through a wall, while threatening her that he would ‘drain’ their bank account and take their daughters to the United States ([6]).
The applicant was refused bail in August 2019, and applied for bail again ([3]-[4]). The applicant contended that a compelling reason to justify a grant of bail could be established based on his personal and financial circumstances, the strength of the charges against him, the likely delay until determination of the charges, and the lawful sentencing range open to the sentencing court. He also submitted that, without being granted bail, he was likely to spend a significantly longer period of time on remand ([11]-[12]). On the issue of unacceptable risk, the respondent pointed to the applicant’s ‘history of contravention of court orders’ and his addiction to illicit substances which appeared ‘to be linked to his offending and violence against the complainant and [her] children’ ([17]-[21]).
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held: The applicant was admitted to bail on strict conditions. In the Court’s view, bail conditions, such as daily reporting to police, prohibition from approaching the vicinity of the complainant’s residence and curfews, would sufficiently mitigate any risk posed by the applicant ([33]). The applicant was 33 years of age, and had a limited prior criminal history and no prior criminal history involving violence. He had no prior convictions for breaching court orders, however, he previously admitted to breaching a family violence order ([26]-[27]). The applicant ran a trucking business, which would likely suffer financially if he was not granted bail. Factors militating against the applicant included the seriousness of the allegations of strangulation and the fact that the complainant was afraid of him. Nevertheless, the Court found that the applicant had established a compelling reason to justify the grant of bail, given his lack of a negative bail history, the modesty of his criminal history, his personal and financial circumstances, the time already spent in custody, the period of any likely sentence and the material and recommendations in the CISP Remand Outreach Program (CROP) report ([30]).
The Queen v Karatzas [2019] VSC 658 (26 September 2019) – Victorian Supreme Court
‘Depression’ – ‘Evidence’ – ‘Mitigating factors’ – ‘Murder’ – ‘Past domestic violence’ – ‘People with mental illness’ – ‘Remorse’ – ‘Sentencing’ – ‘Strangulation’
Charges: Murder
Proceedings: Sentencing
Facts: The accused and victim were married. After an argument with the victim, the accused strangled her with an electrical extension cord until she collapsed and fled the scene. Expert evidence that the accused was suffering from a major depressive episode at the time of the offence ‘which may have clouded [his] thought processes and [his] appreciation of the consequences of [his] actions’ [24] was accepted at trial along with evidence that the accused loved his wife and had been violent to her before.
Issues: Appropriate sentence
Decision and reasoning: The accused was sentenced to 16 years’ imprisonment with a fixed non-parole period of 11 years.
The court accepted that the fact the accused was suffering from a major depressive episode significantly reduced the accused’s moral culpability [24]. Beale J said ‘[d]omestic violence murders are often upper range examples of the offence of murder, particularly where there has been a history of domestic violence. This is not your case. The fact that you killed your wife of nearly 50 years was a gross breach of trust which elevates the seriousness of your offending but, having regard to all circumstances, and particularly your mental illness, I find that yours is a mid-range example of the offence of murder’ [25]. The other mitigating factors considered by his Honour include the accused’s: remorse; previous good character; excellent prospects of rehabilitation; age; and ‘the punishment [the accused will] continue to experience knowing you killed your beloved wife’ as other mitigating circumstances [54].
The Queen v Bufton [2019] VSC 621 (13 September 2019) – Victorian Supreme Court
‘Controlling, possessive, jealous behaviour’ – ‘Female perpetrator’ – ‘Lack of remorse’ – ‘Murder’ – ‘Protection order’ – ‘Separation’
Charge: Murder
Proceedings: Sentencing
Facts: The female offender was found guilty following trial of the murder of her male domestic partner, her various offers of a guilty plea to negligent manslaughter, then dangerous driving causing death (following the death of the sole living witness to the offence), and then again negligent manslaughter having been rejected. The pleas offered appeared to relate to the Crown’s perceived prospects of proving their case with the evidential difficulties occasioned by the death of the witness.
The offender and victim had a turbulent relationship involving many arguments and periods of separation from January 2016 until his death in October 2017. The victim was attempting to remove his caravan from the offender’s property when the offender became verbally abusive and refused to let the victim move it. The victim walked away to call police for assistance but was followed by the victim in her car and struck by the vehicle. The call to 000 remain connected during the accident and picked up the ensuing conversation between the offender and a witness in which the offender claimed that the victim jumped in front of her car and she was unable to avoid him. This false story was later repeated to police.
The offender was 68 years of age and had no prior criminal convictions. She had been diagnosed with cancer. She was subject to an intervention order prohibiting the commission of family violence against the victim at the time of offending.
Held: Bufton was sentenced to 24 years’ imprisonment with a non-parole period of 18 years.
The Court treated this protection order as an aggravating feature along with the use of a dangerous weapon and noted that the ‘crime occurred in the context of [Bufton] having been in a domestic relationship with [the victim], and of [Bufton] having acted out of anger and frustration at the state of the relationship [36]. Her persistence in the false account of events and the fluctuating pleas were considered to be indicative of a lack of contrition or remorse[46-52]. Assistance rendered by the offender to the accused was conduct which could be explained by the crime being carried out in full view of the witness[53]. The judge said at [52]:
"For completeness, I make it clear that you are not to be punished for your refusal to admit what you had actually done, or for pleading not guilty to murder. Rather, these facts point to the absence of a possible mitigating feature of your crime which would have existed were you to have been willing to accept the true criminality of your conduct."
Just punishment, denunciation and general deterrence were treated as the most important sentencing purposes, with the significance of specific deterrence being reduced in light of Bufton’s age and cancer diagnosis.
Re Rodgers [2019] VSC 553 (20 August 2019) – Victorian Supreme Court
‘Bail’ – ‘Children’ – ‘Intervention order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk’
Charges: Multiple charges of causing injury intentionally and recklessly, a charge of recklessly causing serious injury, charges of reckless conduct endangering life and endangering person, a charge of making a threat to kill, drugs charges, a charge of criminal damage, and numerous breaches of Family Violence Intervention Orders (FVIO)
Case type: Bail application
Facts: The applicant applied for bail on a number of charges, which arose out of family violence related incidents. The complainants include his former wife and children.
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held: The Court refused the bail application as there would be an unacceptable risk that the applicant would endanger the safety and welfare of the complainant and her children, or commit further offences while on bail ([65]). The nature and seriousness of the offending was considered to be the most important matter for the Court. Tinney J described the offending as ‘quite disturbing, with a significant and worrying risk of causing serious injury or death’ ([51]). Some of the alleged violence occurred in the presence of one or more of the children, and occurred in the family home ([54]). Although the applicant’s criminal history was limited, he had been found guilty of assaulting the complainant in the past. Further, he was on an adjourned bond for that assault ([56]), and was also subject to a FVIO at the time of the alleged offending ([57]).
There were many personal circumstances favourable to the applicant. For example, he had a supportive family and was the operator of a company which, in his absence, struggled financially ([58]). According to Tinney J, the applicant’s prolonged drug use had a significant impact on the alleged offending, and would increase the risk of failure to comply with his bail conditions ([59]). The complainant’s attitude to bail was also a relevant consideration. She was afraid of the applicant and did not want him to be released on bail ([60]). His Honour concluded that there were sufficiently compelling reasons to deny the applicant a grant of bail ([63]).
Additional matters of concern included ([64]):
•
The applicant allegedly repeatedly and violently assaulted his wife;
•
The offending allegedly occurred in the context of ongoing drug use by both the applicant and the complainant;
•
The offending occurred despite there being an intervention order in place and the fact that he was subject to an adjourned bond for a previous assault on the complainant; and
•
If bail was granted, the conditions imposed on the applicant would not have sufficiently reduced the risks to a level where they would be acceptable.
Note: An appeal against this decision to refuse bail was rejected by the Victorian Court of Appeal - Rodgers v The Queen [2019] VSCA 214 (26 September 2019)
The Queen v Solmaz [2019] VSC 530 (12 August 2019) – Victorian Supreme Court
‘Arranged marriage’ – ‘Denunciation’ – ‘Domestic violence’ – ‘Expert evidence’ – ‘Lack of remorse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence and harm’
Charges: 1 x murder
Case type: Sentence
Facts: The offender pleaded guilty (shortly before the trial was due to commence) to the murder of his former wife, with whom he entered into an arranged marriage when he was 18 years of age. They had 2 children. The murder occurred in the context of an unhappy relationship which had subsisted for many years leading up to her death. The offender claimed that the deceased attacked him with a broken leg of a table and that he took the piece of wood from her and hit her repeatedly. He then used an extension lead to strangle her ([10]). In the aftermath, the offender left the deceased dead on the floor and went to his step-sister’s home where he confessed to the killing. He then fled Melbourne, and was intercepted by Queensland police two days after the killing.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The Court sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years. The offender was 60 years of age and was born in Bulgaria. He had one prior conviction of unlawful assault, but this had limited significance to his case ([33]). Medical evidence indicated that he was diagnosed with Adjustment Disorder, and was likely depressed at the time of the deceased’s death. One expert considered that his Adjustment Disorder contributed to his offending by diminishing his ability to reason and make sound judgment ([45]). The Court, however, noted several deficiencies in this expert’s evidence, such as the fact that he heavily relied on the truthfulness of the offender’s account to him about his relationship with the deceased and that it conflicted with other expert evidence ([86]-[94]). Consequently, the Court did not accept this expert evidence and rejected the defence’s submissions in respect of the Verdins principles to reduce the sentence, other than for the purpose of the hardship of imprisonment ([95], [99]). According to the Court, the offender’s conduct could not be connected to any defect in his reasoning abilities or be characterised as an impulsive crime. He inflicted multiple, forceful blows to the deceased. The ‘shocking and protracted nature of the crime’ indicated that any impairment to mental functioning was not causally connected to the offending, and that he intended to kill her ([96]-[97]). The crime was described as one of ‘extravagant and drawn-out violence committed against a physically weaker person whom [the offender] apparently detested and who had offered some provocation to [him] by striking [him] with the leg of the table’ ([97]).
While the offending was not premeditated, the Court considered it to be at the high end of the range of seriousness. The crime was an extreme overreaction to modest provocation by the deceased and the challenges of their ‘sad and troubled relationship’ ([102]). The Court also found that the offender had not exhibited true remorse ([111]). His prospects of rehabilitation, however, were found to be good ([117]).
Relevant sentencing principles included just punishment, denunciation and general deterrence. The Court found it necessary to make ‘perfectly clear’ that it deplores violent crimes of this nature, particularly those committed against domestic partners. The deceased’s life was ‘precious’, and was brutally and deliberately taken away by the offender as a result of his anger, resentment and frustration. He had full knowledge of the severity and criminality of his actions ([121]-[122]).
R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court
‘Exposing children’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Separation’
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male victim and female offender (Stone) had been married for 22-years and had five children together. Evidence tendered during trial was that the male victim had reported an incident of the offender chasing him from the house with a knife. Neighbours also reported sounds of arguing and physical violence coming from the home prior to the incident that lead to the victim’s death. There was evidence that the victim told members of his extended family that he intended to leave the relationship the day of the incident that lead to his death.
The Crown case was that Stone doused the victim with highly flammable enamel thinner and set him on fire. While none of the children saw the victim committing the offence, one of the daughters saw their father engulfed in flames and heard him say that he was going to die. Another daughter saw the trail of debris left by the victim as he ran to the bathroom after being set alight.
The victim was found conscious by paramedics despite sustaining burns to 95% of his body, including his airways. He was placed on life-support and interviewed but did not recover. Both the victim and Stone gave false versions of the events, claiming that the victim had been attacked by three men. Stone provided the names of the alleged offenders but failed to identify them during police interviews and was subsequently arrested herself.
Held: The accused was sentenced to 34 years’ imprisonment with a non-parole period of 28 years. The Court provided that murder is "the ultimate act of family violence", with the offender’s ‘vicious and barbarous’ conduct constituting a "a violation of the security of the sanctity of the home and a massive breach of trust" [32]. With the offender’s conduct being ‘a most serious example of murder’, the Court found the objective gravity of the offence and offender’s moral culpability to be ‘extremely high’. As such, denunciation and deterrence were the primary sentencing considerations along with protection of the community [42].
Note: Subsequent applications for leave to appeal against conviction (on grounds that the trial judge erred in finding the applicant’s alleged lies were reasonably capable of amounting to ‘incriminating conduct’; (2) the verdict was unsafe and unsatisfactory or cannot be supported having regard to the evidence; and (3) a substantial miscarriage of justice occurred because of the failure of the prosecution to disclose telephone records); and sentence on the ground that the sentence was manifestly excessive were dismissed: Stone v The Queen [2021] VSCA 186 (24 June 2021) – Victorian Court of Appeal.
See also R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court and R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court.
R v Willis [2019] VSC 398 (20 June 2019) – Victorian Supreme Court
‘History of family violence’ – ‘Murder of parent’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Verdins’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his mother. The case raises important community issues and the connection between drugs, mental health and family violence. The evidence showed that the offender and his mother had significant mental health issues, which strained their relationship and ultimately led him to stab her to death ([2]). The offender admitted to killing his mother to police, and made further admissions to his father and former partner. Lasry J described the murder as ‘grave and tragic’. The victim was vulnerable and defenceless in the face of the attack, and her death was the culmination of a lengthy history of hostility and family violence between them ([17]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J noted the offender’s personal circumstances at [21]-[25], and the issue of mental health and substance abuse at [26]-[33]. He started using drugs as a teenager, however remained drug free for several years. His deteriorating mental health and increasing drug use led to the breakdown of his relationship with his former partner and the loss of his job. The offender had also been diagnosed with Delusional Disorder and subject to various treatment orders. A forensic psychiatrist gave evidence of the offender’s long history of major mental disorder and substance misuse, but noted that he had no history of being violent or anti-social other than when he was psychotic or affected by drugs. The offender also suffered from paranoid schizophrenia which was likely precipitated by his cannabis use and aggravated by his methamphetamine use.
The offender pleaded guilty at a relatively early stage of the proceedings. An element of remorse was identified in his post-offence conduct; however his Honour noted that the offender’s hostility towards his mother had not completely abated ([41]-[43]).
Further, the offender had no criminal history and made efforts to improve himself while in custody through education and work opportunities. Lasry J was satisfied that there was some evidence that he was capable of leading a law-abiding and productive life, and that his prospects of rehabilitation depended on his compliance with treatment for his mental health and substance misuse ([44]-[45]).
Lasry J was satisfied that the principles arising from Verdins meant that the offender’s moral culpability was significantly reduced. Community protection was not a significant sentencing consideration provided that his serious mental health issues were properly managed ([53]). The offender was sentenced to 20 years’ imprisonment with a non-parole period of 14 years.
R v Considine & Anor [2019] VSC 386 (31 May 2019) – Victorian Supreme Court
‘History of abuse of accused’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to murdering the victim. The offender’s partner of around 9 years, Hogan, pleaded guilty to assisting him. The relationship between the offenders involved homelessness, drug use and domestic violence. In 2015, while the offender, Considine, was serving a term of imprisonment, Hogan and the victim met on Facebook and commenced an intimate relationship. When the offender was released from prison, Hogan and the victim ended their relationship, but resumed social media communication in 2017. The offender, Considine, became aware of this relationship. Considine and Hogan arranged a threesome with the victim. The offender became jealous of the sexual activity between Ms Hogan and the victim, and strangled the victim to death. Ms Hogan assisted the offender to dispose of the body.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: The offender, Considine, began consuming alcohol and taking drugs as a teenager. A forensic psychiatrist diagnosed the offender with Borderline Personality Disorder and believed that he likely had an acquired brain injury (ABI). He therefore concluded that it was likely the offender was experiencing severely impaired impulse control at the time of the offending due to his intoxication with multiple substances and Borderline Personality Disorder and probable ABI ([49]). Champion J accepted this opinion at [71]. The offender also had an extensive criminal history, however very few of his convictions involved violence ([52]). The offender’s moral culpability was reduced by various factors, including his intellectual impairment and personality disorder ([71]). The offender’s guilty plea showed a willingness to accept responsibility for the victim’s death and spared the victim’s family and friends from the traumatic effects of a contested trial ([73]). His Honour also accepted that the offender was remorseful for having killed the victim, even though this took some time to develop ([76]). The offender was sentenced to 21 years’ imprisonment with a non-parole period of 16 years ([115]).
Ms Hogan also commenced using drugs at an early age and had a minor criminal history ([56]-[57]). It was submitted that her role in the offending could not be separated from the nature of her relationship with the offender which was ‘marred by domestic violence, control and drug use’. It was also submitted that these circumstances reduced her culpability ([86]). Champion J considered that her experience of domestic violence was a factor relevant to the establishment of her state of mind, and mitigated the circumstances of her offending to some extent ([90]). She also decided to cooperate with the police and offered to plead guilty at an early stage ([94]). His Honour accepted that she was genuinely remorseful for the victim’s death ([96]). Ms Hogan was sentenced to one year and 10 months’ imprisonment ([118]).
R v Davsanoglu [2019] VSC 332 (24 May 2019) – Victorian Supreme Court
‘Children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Suicide pact’
Charges: Murder x 1.
Case type: Sentencing.
Facts: The accused ‘[inflicted] his will on a woman [the deceased] by the use of fatal violence in her home’. They had maintained a relationship over several years, which ended as a result of her family’s disapproval. The deceased later remarried and had a child. The accused and the deceased later re-established their relationship, but it was ‘marked by periods of instability’ [8]. In 2017, the deceased became engaged to another man. On 13 July 2017, the accused visited the deceased’s residence, where they ‘apparently had a sexual encounter’ while her child was asleep [10]. The accused killed the deceased by holding her underwater in a bath. The accused then removed her body from the bath, partially dressed her in clothes, and placed the body in his car. He drove the deceased’s body from Melbourne to South Australia, as he intended to deposit it in the ocean. He also purchased 2 knives and inflicted superficial incisions to his wrist. The accused decided to return to Melbourne where he deposited the body in the garage of an unoccupied property that he had previously leased. He confessed to killing the deceased to his friends and family, but said that she had told him to kill her and that he had tried to kill himself. At the police station, the accused gave conflicting evidence on his feelings about the deceased’s relationships with other men.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J inferred that the appellant’s self-inflicted injuries were not a genuine attempt to suicide, but a means of explaining his involvement in the killing by reference to a ‘suicide pact’ ([14]). By reference to Ron Felicite v The Queen [2011] VSCA 274, his Honour noted that the seriousness of the offending required the imposition of significant punishment ([27]). It represented the accused’s endeavour, through the use of fatal violence, to control the deceased, and to overpower her rejection of their relationship ([23]). Relevant sentencing principles included general deterrence, denunciation and just punishment. His Honour also noted aggravating circumstances, including the fact that the killing occurred in the deceased’s home while her child was asleep in the nearby room, and that he abandoned the child when he drove off with the deceased’s body ([26]).
Lasry J also considered the peculiarity of the accused’s guilty plea. It was given in circumstances which made it difficult for his Honour to determine whether it was a sign of genuine remorse over the deceased’s death. The accused would have derived a greater benefit had he pleaded guilty at an earlier time ([31]-[34]). Personal circumstances of the accused were also considered. He was born in Turkey, raised in an environment of domestic violence, lived in foster homes, did not receive any formal education in Australia, maintained employment since the age of 18, and had no prior convictions for violence ([35]-[37]). The accused’s steady employment throughout his adulthood and lack of prior criminal convictions indicated positive rehabilitation prospects ([38]). The sentence was also determined in light of victim impact statements ([28]-[30]).
His Honour sentenced the accused to 23 years’ imprisonment with a non-parole period of 18 years ([42]). He allowed some discount for the accused’s guilty plea. As his Honour was not satisfied that the accused’s guilty plea reflected significant remorse or acceptance of responsibility for his conduct, only a small discount was made ([44]).
DPP v Jensen [2019] VSC 327 (17 May 2019) – Victorian Supreme Court
‘Attempted murder’ – ‘Binge drinking’ – ‘Intentionally causing serious injury’ – ‘Sentencing’
Charges: Attempted murder x 2; intentionally causing serious injury x 1.
Case type: Sentence.
Facts: The offender had maintained an incestuous relationship with his sister since he was 17 years old, and they have a child together. While they were still living together, but after their relationship ended, his sister began an intimate relationship with the first victim. The offender, while intoxicated, entered the first victim’s house which he shared with his mother. The offender found the first victim and his sister asleep in bed together, and stabbed them both repeatedly and also stabbed the first victim’s mother who intervened. The offender pleaded guilty to 3 offences: the attempted murder of the first victim (charge 1) and his own sister (charge 2), and intentionally causing serious injury to the first victim’s mother (charge 3).
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held: Beale J sentenced the offender to 19 years’ imprisonment, with a non-parole period of 14 years. The offender was sentenced as a Serious Violent Offender on charges 2 and 3 pursuant to the Sentencing Act 1991.
Notwithstanding the offender’s relative youth, good work history, limited prior convictions and guilty plea, his Honour could not accept the submission that the offender had good prospects of rehabilitation. The violence was extreme and sustained, and the offender had a history of binge drinking. Even though his intimate relationship with his sister had ended, his ability to cope with any future relationship difficulties and to control his drinking was uncertain ([48]).
The offender’s personal history is discussed at [29]-[41]. He was born in the Cook Islands and raised by his grandparents after his parents abandoned him as an infant. He moved to Australia in 2009 with his parents and his sister. Beale J noted the possibility that he would be deported from Australia at the end of his sentence. This was a relevant factor in determining the sentence ([52]).
The mitigating factors of the case were summarised at [56]-[64]. The offender had a difficult childhood which partly caused him to develop an incestuous relationship with his sister. A lack of parental supervision when they were teenagers was also found to be a contributing factor. The offender pleaded guilty at a relatively early stage, showed remorse, is relatively young, and has a limited criminal history and no violent antecedents.
Aggravating circumstances, noted at [65]-[70], were that the offending involved a ‘terrifying’ home invasion; the attack with knives was not momentary, but sustained; the offending against his sister was an instance of domestic violence given their long-term incestuous relationship; the injuries inflicted on his sister and the first victim were life-threatening; and the offender had a prior conviction for incest, which clearly did not lead him to end his intimate relationship with his sister.
A useful table of summaries of various sentencing cases in respect of attempted murder is also annexed to the judgment. In addition to these cases, his Honour also had regard to the Judicial College of Victoria Sentencing Manual’s attempted murder case collection and the Court of Appeal overview regarding intentionally causing serious injury ([54]).
DPP v Gibson [2019] VSC 328 (16 May 2019) – Victorian Supreme Court
‘Dementia’ – ‘Guilty plea’ – ‘Life expectancy’ – ‘Murder’ – ‘No prior convictions’ – ‘People with mental illness’
Charges: 1 x murder
Case type: Sentencing
Facts: The accused pleaded guilty to the murder of his wife to whom he had been married for 44 years. The accused was 65 years old and had retired. He had four children with the victim, as well as grandchildren. The accused regarded his relationship with the victim as having ‘broken down’. He shot her twice in the head and then attempted to kill himself. The accused’s sister and their grandson were present at the time of the offending.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: To determine the appropriate sentence, Coghlan JA took into account the accused’s personal circumstances. He suffered from depression and anxiety since he was a teenager ([27]). He had stopped working a few years prior to the offending, and experienced financial difficulties ([28]). He was resentful of the amount of time his wife was spending with her parents ([6]), and over time, he started to scrutinise her spending habits, including the cost of caring for their grandchildren and her parents ([29]). Further, the accused and victim had made significant contributions to their local community ([30]-[31]).
The accused’s mental health was a major consideration for the Court. There was medical evidence indicating that he suffered recurrent depressive disorder of moderate severity ([38]), and that aspects of his processing speed, working memory, complex new learning skills, executive and language skills, and impulse control had deteriorated ([40]). There were suggestions by medical professionals that he might have suffered from either frontotemporal dementia or Alzheimer’s related dementia. Another expert suggested that his frontal lobe might have been damaged as a result of his attempted suicide ([43]). It was important to determine the precise cause of the brain damage as his life expectancy differed depending on his diagnosis ([45]). His Honour sentenced the accused on the basis that he had been diagnosed with frontotemporal dementia, which had a life expectancy of 8 years ([51]). This diagnosis affected the weight to be attributed to sentencing principles, such as just punishment, denunciation and deterrence ([52]). As a result of the accused’s ‘complex medical condition’, there was a significant delay in sentencing ([2]), which was also taken into account ([3]).
Coghlan JA was satisfied that the accused’s mental condition would render his prison sentence more onerous than it would for a prisoner without his condition ([54]), and that his moral culpability and the need for denunciation, general and specific deterrence were reduced ([53]). The accused pleaded guilty, had no prior convictions and was found to have led a ‘worthwhile and…blameless life’ ([56]). Taking into account all relevant matters, the accused was sentenced to 15 years’ imprisonment with a non-parole period of 10 years.
R v Eustace [2019] VSC 189 (26 March 2019) – Victorian Supreme Court
‘Factors affecting risk’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender and victim met while visiting Australia from India, and eventually married. Three months later, the offender killed the victim in a knife attack in their shared home ([3]). On the night of the murder, the offender and victim argued, which ultimately resulted in the offender obtaining a knife and stabbing the victim ([9]-[14]). She suffered 12 wounds to her chest, abdomen, arm and leg. The offender’s actions were described as ‘sustained, purposeful and ruthlessly determined’. Even after the offender was restrained in a head lock and dragged from the bedroom by a man with whom they lived, he returned to the room to resume the attack ([15]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Taylor J took into account the offender’s personal circumstances at [26]-[31]. He was 43 at the time of the offending and his work history showed him to be ‘a man of industry’ ([29]). However, his father was an aggressive alcoholic ([28]). Prior to meeting the victim, he had been in two significant relationships, one of which was an arranged marriage ([31]).
The offending was found to be ‘self-evidently extremely serious’, as the killing of a domestic partner violates a fundamental principle underpinning society, namely, that all persons have the right to safety, respect and trust in intimate relationships. Whether or not the marriage was one of convenience, his Honour noted that the offender had voluntarily entered into a relationship in which he owed the victim kindness and safety. Rather, the offender betrayed her trust and the expectation that, even where issues in family relationships arise, violence is not tolerated. Even if the offender was fearful, angry, intoxicated or frustrated, he should have just walked away ([33]). Women should not fear or suffer physical harm because their partner loses their temper. The offender’s actions were found to be at the extreme end of the scale of ‘abominable acts’ ([34]). Aggravating circumstances included the fact that the victim was his wife, that she was murdered in their home, that a knife was used, and that despite the number of wounds already inflicted, the offender continued his attack, even after being physically restrained by another person ([35]-[36]). The public has an interest in matters involving family violence. Principles of general deterrence, denunciation and just punishment are relevant to sentencing ([35]). The objective gravity of the offending and the moral culpability of the offender was also found to be very high ([38]).
The offender pleaded guilty after the committal hearing, demonstrating a willingness to facilitate the course of justice ([39]). He also surrendered himself to the police station and admitted the killing. His remorse was further expressed in a letter of apology to the victim’s family ([40]).
Taylor J sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years ([46]). After the expiry of his sentence, it was noted that the offender would be deported to India. Knowledge of this deportation was said to make imprisonment more burdensome ([41]). Taylor J also noted that the offender would be isolated in custody ([42]). The offender’s prospects for rehabilitation were found to be good, as a result of some positive references indicating his good character and hardworking nature ([43]).
DPP v Ristevski (Ruling No 1) [2019] VSC 165 (15 March 2019) – Victorian Supreme Court
‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Post-offence conduct’
Charges: Murder x 1.
Case type: Ruling as to evidence.
Facts: The prosecution alleged that the accused killed the deceased at their home on the morning of 29 June 2016, put her body in the boot of her car and drove it to Macedon Regional Park where he concealed it between 2 logs in a forest. It was discovered approximately 8 months later. The accused and deceased had been married for over 20 years and had a daughter. There was no prior history of physical violence on the part of the accused. However, he admitted to pushing the deceased on occasions if she ‘got in his face’ during arguments ([34]). The prosecution conceded that the evidence at most supported an inference that their financial difficulty was significant and may have fuelled an argument between them ([24]).
Issue: Whether the prosecution was entitled to rely on evidence of post-offence conduct to prove not only an unlawful killing but also murderous intent.
Held: Beale J noted some similarities with R v Baden-Clay [2016] HCA 35. However his Honour found that the differences between the two cases were ‘more striking’. At [37], his Honour stated -
‘First, there was compelling evidence of a motive for Baden-Clay to kill his wife – a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.’
In the present case, the prosecution submitted that the accused’s post-offence conduct was inconsistent with his having unintentionally killed the deceased, as one would expect him to report the incident, and not bundle her body into the boot of a car, drive to a remote location, conceal the body and lie about the circumstances of her disappearance to family, friends and investigators ([35]). Counsel for the accused submitted that he could well have feared that the unlawful killing of the deceased would attract a substantial prison term and cause permanent damage to his relationship with his daughter ([36]). Beale J found that those submissions made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent ([36]).
Beale J held that while the evidence of post-offence conduct referred to in the prosecution’s amended Notice of Incriminating Conduct could be relied on as evidence that the accused killed his wife, it could not be relied on to prove that the accused did so with murderous intent ([31]–[39]).
R v Robertson [2019] VSC 145 (6 March 2019) – Victorian Supreme Court
‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Social abuse’ – ‘Technology facilitated abuse’
Charges: Murder x 1.
Case type: Sentence.
Facts: The defendant pleaded guilty to murder of his partner (the deceased) with whom he fathered a daughter. After their daughter’s birth, their relationship became strained. The defendant resented the deceased’s change of employment and her being around other men. He became jealous and constantly concerned about possible infidelity. The deceased’s behaviour became more obsessive and paranoid. He even set up a fake Facebook and Instagram account to contact the deceased’s work colleagues under the fake name to establish if anything was happening between the deceased and her male colleagues ([3]-[11]). After a heated argument in which the deceased expressed her desire to end the relationship, the defendant picked up a dumbbell bar and hit her multiple times to her face and head. The blows, forceful and vicious, killed her immediately. After committing the offence, the deceased rang his mother and admitted to his actions. His mother rang the police ([12]-[19]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Champion J sentenced the defendant to 24 years’ imprisonment, taking into account general and specific deterrence, denunciation, rehabilitation and protection of the community. His Honour considered the defendant’s personal circumstances at [39]-43]. The defendant grew up in a close, supportive and loving family. Through his job he was able to buy a home for himself, thus demonstrating his independence and self-sufficiency. Friends and family observed that he became agitated and alienated after his daughter was born.
Champion J did not accept a complete lack of premeditation even though the defendant committed the offence in a highly emotional state. The ‘savagery’ of the assault affected the sentencing. The act in question was terrible and grossly violent. It was not fleeting and involved multiple deliberate blows to the face and head. His Honour noted the defendant’s intention to kill. An aggravating feature was the fact that she was his intimate partner ([65]-[66]). Champion J therefore concluded that his offending was a grave example of murder and above the middle range of seriousness ([67]). However, it was noted that the extreme violence was out of character as there was no evidence of previous domestic violence incidents ([90]).
Champion J discussed his culpability and degree of responsibility at [68]-[73]. The offending occurred in the context of the defendant being extremely jealous, possessive and controlling. At [73] Champion J stated: ‘I note that these features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner.’ The attack was described as grievously inappropriate and a wildly disproportionate response to the situation. Therefore, his culpability and degree of responsibility was within the higher range. A mitigating factor was the fact that the defendant admitted to killing the deceased very soon after the act, and thus his Honour found that it he should receive the full benefit of that early plea as it facilitated the course of justice and relieved the deceased’s family and friends from having to give evidence and endure the trauma of a trial ([76]). With these factors in mind, his Honour accepted that the defendant has positive prospects of rehabilitation.
The Queen v Samaras [2019] VSC 120 (1 March 2019) – Victorian Supreme Court
‘Firearm’ – ‘Guilty plea’ – ‘Misuse of alcohol’ – ‘Physical harm and violence’ – ‘Sentencing’ – ‘Weapon’
Charges: Manslaughter
Proceedings: Sentencing
Facts: Before moving to Australia from America, the victim sent four packages containing firearms to the accused’s parents’ address in Australia. Three of these packages were intercepted by the Australian Border Force. ‘The [female] victim and [male] accused were charged with the importation and possession of firearms and were bailed’ [10]. They decided to ‘go on the run’, packing their belongings and purchasing a caravan to escape in. Arrest warrants were issued after the pair failed to appear in court, but they managed to evade the police [11].
The couple lived in the caravan for a couple of weeks prior to the incident. On the night of the shooting, both the accused and the victim were intoxicated and were arguing. The accused physically assaulted the victim during the argument while the victim was in possession of the loaded firearm. The two struggled for the weapon, with the accused eventually gaining possession and deliberately pulling the trigger. The accused did not aim the weapon or deliberately shoot the victim, although ‘there is no suggestion the firearm was defective in anyway’ [17].
The accused later pleaded guilty to manslaughter.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Decision and reasoning: The accused was sentenced to 11 years’ imprisonment with a fixed non-parole period of 8 years. Relevantly, the sentencing judge observed at [48]:
The sentence I pass must make it perfectly clear that the Court deplores the use of firearms, all the more so against women in a setting of domestic violence…… The sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict violence of any sort against a domestic partner, particularly with the use of a weapon, that such conduct will be met with strong punishment.
DPP v Freeburn [2018] VSC 616 (14 December 2018) – Victorian Supreme Court
‘Imprisonment’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Women’
Charges: Murder x 1
Facts: The offender met the deceased, a 29 year old woman with a mild intellectual disability, on an internet dating site. The deceased was particularly vulnerable as she was guarded about her relationships and sometimes did not inform her family as to her whereabouts. Her parents obtained a guardianship order at VCAT because of their concern that she was unable to protect her own interests. The deceased had told her family and friends of the offender’s violent behaviour towards her. The offender often exhibited jealousy, anger and verbal aggression when the deceased interacted with other men. The deceased’s body was found in the offender’s room three days after she was reported missing, with restraint marks on her wrists, bruising to her face and upper body, and a ‘tram track’ mark on her back. She also sustained brain injuries, indicating multiple blows to the head. Her wrists were bound and her neck and face were wrapped in tape. An autopsy revealed that she consumed the drug GHB prior to her death. It was entirely plausible that the deceased was alive, albeit unconscious, when the offender left the premises.
Issues: Sentencing
Decision and Reasoning: The offender was found guilty of murder and sentenced to 25 years’ imprisonment with a non-parole period of 20 years. The jury rejected the offender’s defence that the deceased’s death was caused solely by her consumption of GHB. At the time of the incident, the offender regularly abused drugs, and suffered from personalty disorder and long-term anger management problems which may have affected his judgment and ability to make calm and rational decisions ([24]). The deceased was also in a particularly vulnerable position due to her intellectual disability. His Honour considered the offender’s personal circumstances which included his parent’s separation, his upbringing which was characterised by substance abuse and family violence, his experience in several foster placements in which he exhibited violent behaviour, and his diagnoses of ADHD, oppositional defiant disorder and conduct disorder. His involvement in the criminal justice system began when he was a minor, and his violent offending included numerous convictions of assault. Given his history of mental health problems and violent prison incidents, his Honour accepted that he should remain in conditions more restrictive than those of other prisoners.
Re Mongan [2018] VSC 638 (24 October 2018) – Victorian Supreme Court
‘Bail’ – ‘Breach’ – ‘Children’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk and best interests’
Charges: Charges including false imprisonment, recklessly causing injury, unlawful assault, aggravated burglary, theft and threat to kill.
Proceeding type: Bail application.
Facts: The applicant and complainant were married for 13 years and have three children. The complainant claimed that the marriage ended because of the applicant’s controlling and intimidating behaviour. From the time of the separation, a series of interim and final Family Violence Intervention Orders (FVIOs) were in place restraining the applicant from contacting the complainant. The applicant breached many of the FVIOs. It was alleged that the applicant, armed with items intended to incapacitate the complainant, unlawfully entered her premises, interfered with a CCTV camera which might have recorded his subsequent conduct, and then waited for her. He grabbed her from behind, forced her to the ground, sought to bind her wrists and gag her, pushed her into her own home, and again forced her to the ground, binding her ankles. He threatened her in a graphically and frightening manner whilst she was bound and helpless. The children returned home from school and heard the complainant screaming. The complainant eventually escaped ([46]). The applicant submitted that a combination of a number of matters demonstrated a compelling reason that justified a grant of bail (see [34]).
Issues: Whether bail should be granted; Whether there was a compelling reason why the applicant’s detention in custody was not justified; Whether the applicant presented an unacceptable risk of committing further offences, endangering the safety or welfare of the complainant and interfering with witnesses.
Decision and reasoning: Section 4AA of the Bail Act 1977 (Vic) sets out circumstances in which a two-step test applies to the consideration of a grant of bail. Step 1 requires the existence of exceptional circumstances and compelling reasons. Step 2 mandates that the Court must apply the unacceptance risk test. In considering whether or not the applicant established compelling reasons that justified the grant of bail, the Court must take into account the surrounding circumstances (see s 4C and s 3AAA of the Act). The Court was required to assess ‘the nature and seriousness of the alleged offending, including whether it is a serious example of the offence’ (see s 3AAA(1)(a)).
There was no question that the offending alleged was serious. It was pre-meditated and involved the use of equipment to incapacitate the complainant. Only the escape of the complainant prevented a continuation of the offending. The Court found that the applicant’s lawyer’s reliance of an ‘arguable defence’ was ‘somewhat optimistic’ ([48]). The Court also considered the applicant’s criminal history and the extent of compliance with conditions of earlier grants of bail. Although his criminal history was limited and there was nothing to indicate previous breaches of bail, the Court noted two factors, namely, that the applicant failed to accept the breakdown of his marriage, and that he refused to respect the orders of the Magistrate Court in relation to the complainant. A significant matter was the fact that, at the time of the alleged offending, the applicant was approximately six weeks into a six month adjourned bond which he received for his multiple breaches of the FVIOs. Matters pursuant to s 3AAA(1)(g), (j), (k), (l) were also considered.
At [57], his Honour noted that the risk of further violence or intimidation by the applicant towards the complainant was significant and entirely unacceptable (see s 4E of the Act). The application for bail was therefore refused as the applicant failed to establish a compelling reason that would justify the grant of bail. The circumstances suggested that the applicant should be held in custody pending trial.
R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court
‘Evidence’ – ‘Fair hearing and safety’ – ‘Incriminating conduct’ – ‘Physical violence and harm’ – ‘Post-offence conduct’
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The Prosecution filed a Notice, pursuant to s 19 of the Jury Directions Act 2015 (Vic), of its intention to adduce evidence of incriminating conduct, namely, the lies told by the accused in describing the circumstances of the deceased’s death, and the accused’s authorship of a letter purporting to be under the hand of Amanda Thatcher and which implicated Mr Baxter in the death of the deceased.
Issues: Whether the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Decision and reasoning: The Court held that there was sufficient evidence on which the jury could be satisfied that the accused’s multi-faceted statement as to how the incident took place was deliberately false. The conduct relied on by the prosecution was much more than a bare denial of guilt, and amounted to a detailed account of the deceased’s death. Therefore, the jury could conclude that the only reasonable inference that could be drawn from the evidence was that the accused believed that she committed the offence. Accordingly, the prosecution was allowed to rely on the conduct specified in its notice, namely the lies told by the accused describing the circumstances of the deceased’s death, as evidence of incriminating conduct ([24]-[27]).
Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.
R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court
‘Evidence’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence’
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim (her defacto partner) by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The prosecution sought to lead evidence from the deceased’s mother as to the nature of the relationship between the accused and the deceased. That evidence included 1) that the mother observed instances of verbal and physical abuse between the deceased and accused over a number of years; 2) that in 2010, the mother observed a particular argument between the deceased and the accused in which the accused physically assaulted the deceased before the deceased’s brother intervened; and 3) that in November 2016, the mother received a phone call from the deceased, claiming that he was fearful for his own life. The prosecution filed a Hearsay Notice with respect to the ‘November 2016 incident’. Sections 65(2)(b) and 66A of the Evidence Act 2008 (Vic) were relied upon as the path to admissibility.
Issues: Whether the deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased were admissible; Whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused; Whether the representations made by the deceased to his mother concerning an earlier incident with the accused are admissible.
Decision and reasoning: The prosecution argued that the deceased’s mother’s evidence was admissible as relationship and context evidence in that evidence of the poor relationship between the accused and the deceased could rationally affect the assessment of the probability of the existence of the question in issue, namely whether the accused killed the deceased. The accused argued that the relationship evidence was not relevant and that the evidence of the November 2016 incident failed to satisfy the tests specified in s 65(2)(b) and s 66A of the Act ([7]).
On an analysis of the particular evidence, Taylor J made the following observations:
•
Evidence of the general poor relationship between the accused and the deceased was relevant to the probability of the existence of the question in issue. However, owing to the vagueness of the general relationship evidence, its probative value was low and was outweighed by the danger of unfair prejudice to the accused. Therefore, such evidence was excluded under s 137 of the Act.
•
The evidence of the 2010 incident was irrelevant and was therefore excluded by the operation of s 56(2) of the Act. The lack of relevance was a result of the fact that the accused was claimed to have threatened the deceased’s brother with a knife, rather than the deceased herself.
•
The evidence regarding the November 2016 incident, although hearsay, was admissible pursuant to s 65(2)(b). It was sufficiently proximate to the alleged incident and revealed the state of the relationship between the accused and the deceased, as well as the deceased’s fear of the accused in the months preceding her death. It was ‘extremely unlikely that the representation was a fabrication’ ([31]). The evidence was also admissible pursuant to s 66A of the Act.
Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.
Re application for bail by Roberts [2018] VSC 554 (21 September 2018) – Victorian Supreme Court
‘Bail’ – ‘Children’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’ – ‘Unacceptable risk and best interests’
Charges: Charges include rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material
Proceeding type: Application for bail
Facts: The complainant was the former partner of the applicant. They have three children. The applicant was charged with 64 offences including rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material.
Issues: Whether bail should be ordered; Whether the applicant discharged his onus of showing compelling reasons why his continued detention is not justified.
Decision and reasoning: The applicant’s application for bail was refused as he failed to show compelling reasons why his continued detention was not justified. Taylor J noted that if he had been satisfied that a compelling reason existed justifying the grant of bail, he must apply the unacceptable risk test. In considering s 5AAAA(2)(a) of the Bail Act 1977 (Vic), Taylor J considered that there was a risk that, if released on bail, the applicant would commit family violence. His blatant disregard of the court orders and the effect of his behaviour on the complainant, was exemplified by the 1200 text messages he had sent to the complainant between September 2017 and March 2018. His preparedness on two occasions to continue a sexual offence notwithstanding his knowledge that his actions were being audio-recorded further indicated a complete indifference to the complainant, as well as a sense of entitlement ([57]). His prior convictions for matters of family violence demonstrated continuous disregard for the authority of the court and the complainant’s safety and wellbeing. If released on bail, the risk of family violence would not be able to be sufficiently mitigated by the imposition of a bail condition requiring compliance with existing FVIOs ([59]).
Smith v State of Victoria [2018] VSC 475 (27 August 2018) – Victorian Supreme Court
‘Aboriginal and Torres Strait Islander people’ – ‘Children’ – ‘Duty of care owed by police’ – ‘Family violence’ – ‘Negligence’ – ‘Women’
Charges: Negligence claims.
Case type: Application for summary dismissal.
Facts: The plaintiffs, a woman and her three children (who identify as Aboriginal), were the victims of family violence by the children’s father. They alleged that police officers and senior officers owed duties of care to them as victims of family violence, and that they suffered psychological harm as a result of breaches of those duties. The plaintiffs also asserted that the officers acted in breach of the plaintiffs’ human rights and obligations as public authorities under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ([40]). The defendant submitted that the alleged duties cannot arise at law and that the proceedings should be summarily dismissed ([41]). Alternatively, the defendant sought a strike out of the allegations of a common law duty of care pleaded in certain paragraphs of the plaintiffs’ amended statement of claim on the basis that no cause of action had been disclosed ([3]). The plaintiffs contended that the current law in Australia regarding the application of duties of care to police officers is ‘in a state of development’ and that, as a result, the court ought not summarily dismiss the proceedings ([87]).
Issue: The State of Victoria sought either a summary dismissal of the case or that the Court strike out the claims alleging that a common law duty of care was owed.
Held: Dixon J dismissed the application, stating that the defendant’s contention that the proposed duties of care have no real prospect of succeeding had not been established ([174]). Dixon J held that a summary dismissal is an ‘extreme measure’ and would ‘forever shut out’ the plaintiffs from seeking to prove their claim at trial ([169]). Although the case was ‘fact rich and fact intensive’, the defendant did not persuade his Honour that no duty of care could arise ([171]).
Duty of care
Dixon J stated at [170]:
‘Australian common law has not affirmatively recognised that a police officer can never owe a duty of care… In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.’
As outlined in Kuhl v Zurich Finance Services Australia Ltd [2010] HCA 11, the existence of a duty of care is determined by considering reasonable foreseeability and the salient features of the relationship between the plaintiffs and the defendant ([168]). The plaintiffs argued that the police officers owed them a duty of care to prevent breaches of several Intervention Orders (IVOs) by the father due to the existence of a relationship of proximity between the police officers and the plaintiffs, arising from various salient features, including that:
•
It was reasonably foreseeable that the plaintiffs required protection from breaches of the extant IVOs by the father;
•
The police officers had actual or constructive knowledge of the terms of the extant IVOs;
•
The police officers exercised control with respect to the compliance by the father with the terms of the extant IVOs;
•
The Victorian police represented, through the terms of its family violence policies, that police officers would protect women and children from family violence. As a result of these representations, the plaintiffs relied on the police officers to enforce compliance by the father with the extant IVOs; and
•
There were no countervailing policy reasons that negated the imposition of a duty of care on the police officers to prevent breaches of IVOs ([49]).
The defendant argued that some of the pleadings in the plaintiffs’ amended statement of claim were too broad. The submission was that these duties were that, ‘every’ police officer owed a duty to ‘every’ affected family member named in any and ‘every’ extant IVO ([53]). In response, the plaintiffs argued that the duties were ‘owed by police officers at stations local to the plaintiffs’ homes, by reason of their status as family violence victims’ or, alternatively, as ‘victims of a recidivist family violence offender known to police’ ([58]). Dixon J accepted the plaintiffs’ submission that the duty was not pleaded in unnecessarily broad terms ([59]).
Salient Features
Dixon J noted that as the existence of a novel duty of care was alleged, the court must apply the salient features approach in Crimmins v Stevedoring Industry Finance Committee[1999] HCA 59 ([90]). A determination of the existence of a duty of care requires ‘[a] close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury’ ([91]).
The plaintiffs submitted that the salient features of foreseeability, knowledge, control and responsibility applied ([129]). They challenged the defendant’s reliance on Hill’s Case [1989]AC 53, emphasising that the salient features of proximity, knowledge and control were absent in Hill’s Case. Dixon J held that Hill’s Case was distinguishable, even if it was good law in Australia ([94]-[95]). The plaintiffs also emphasised the dissenting judgment in Michael v Chief Constable of South Wales Police [2015] UKSC 2, which viewed proximity as the determinative factor ([102]). The plaintiffs submitted that NSW v Spearpoint [2009] NSWCA 233 was analogous, and that it was persuasive authority for their submission that the proceedings could not be summarily dismissed ([114]-[115]).
In relation to the factor of control, Dixon J accepted that the relevant focus was on control of the risk not the offender, and that the issue of control is ‘fact sensitive and a matter for evidence’ ([135]). The plaintiffs suggested that the police officers exercised control by having the father in a police vehicle and dropping him within the zone identified in one of the IVOs ([137]).
R v Jones [2018] VSC 415 (31 July 2018) – Victorian Supreme Court
‘Battered woman syndrome’ – ‘Manslaughter’ – ‘Pregnant people’ – ‘Sentencing’
Charges: Manslaughter based on an unlawful and dangerous act x 1
Proceeding type: Sentence to be imposed
Facts: The female offender was in a relationship with the male victim, with a history of illicit drug use and domestic violence. In April 2015, the victim grabbed the offender around the throat and threatened to harm and kill her. In October 2015, the victim pushed the offender. She armed herself with a knife and returned to the bedroom to confront him. He grabbed her by the throat, and verbally and physically assaulted her. She was pregnant at the time with his child. In December 2016, there had been a heated verbal argument between the parties. She stabbed him in the chest with a kitchen knife. The offender pleaded guilty.
Issues: Sentence to be imposed.
Decision and Reasoning: Taylor J took into account victim impact statements ([20]-[21]), and the offender’s prior criminal history ([22]-[26]) and personal history ([27]-[41]). The offender had been sentenced to a term of imprisonment for a charge of recklessly causing injury by punching and stabbing a former partner. She had experienced trauma at an early age as she was raped by two of her brother’s friends. She was diagnosed with post-traumatic stress disorder and excoriation disorder. Her psychological condition did not warrant the application of the principles in R v Verdins [2007] VSCA 102. Her Honour accepted that there had been a history of domestic violence at the hands of the victim and that, on the balance of probabilities, physical violence had occurred the morning of the victim’s death. The gravity of her offending was to be assessed in the context of her history of family violence and her perception of a physical threat. At [48], her Honour stated –
‘Family violence is insidious. It need not find expression in physical violence to be described as grave or create a mindset in its victims of fear and helplessness. That mindset arises from all forms of violence experienced by victims and is not triggered only at the time of a physical assault…’
Her Honour accepted that her plea of guilty was an expression of genuine remorse, and that her time in custody would be more burdensome due to the separation from her children, as well as her diagnosed psychiatric illnesses. Specific deterrence was considered a significant sentencing factor, as well as general deterrence and denunciation. At [58], her Honour acknowledged that ‘This Court must pass a sentence that denounces your behaviour and deters others from resorting to the use of knives or other sharp objects during conflicts.’ The offender was sentenced to nine years’ imprisonment, with a non-parole period of seven years.
The Queen v Donker [2018] VSC 210 (11 May 2018) – Victorian Supreme Court
‘Coercive control’ – ‘Female perpetrator’ – ‘History of domestic and family violence’ – ‘Manslaughter’ – ‘Non-fatal strangulation’ – ‘People affected by drug misuse’ – ‘Sentence’ – ‘Victim as (alleged) perpetrator’
Charges: Manslaughter.
Matter: Sentence.
Facts: Ms Donker and Mr Powell were in a violent, volatile and toxic relationship [5]. Mr Powell’s violence was fuelled by ice use, he would become violent in the course of arguments, was controlling and suspicious of Ms Donker, and, even during Ms Donker’s first pregnancy, would grab her around the throat and push her around.
Ms Donker lied to protect Mr Powell whenever the police were called. Ms Donker was also violent towards Mr Powell in retaliation, which would make Mr Powell more angry and more violent. Mr Powell’s violence had caused their children to be removed from Ms Donker’s care and them both to be evicted.
In January 2017 Mr Powell woke Ms Donker when she was asleep in her car in a kindergarten carpark by him dragging her from the car by her hair. She had parked there for the night as it was close to where her children were living with Mr Powell’s extended family. In response to Mr Powell’s assault she repeatedly manoeuvred her car so as to threaten and taunt Mr Powell. She did not intend to physically hurt him. However, on the fourth instance of reversing away from and driving towards Mr Powell, she struck a pole which bent and fell so as to strike Mr Powell’s head, killing him instantly.
Decision and reasoning: Five years’ imprisonment with a non-parole period of two years.
Croucher J accepted that:
[23] ….after years of Mr Powell’s violence; after numerous unsuccessful attempts at defending herself; after losing her recently hard-won gains – including her home, her job and, most importantly, the care of her children; after being forced to live in a car; after being choked and having her eyebrow split by him again the night before; after being viciously dragged out of her car by the hair as she tried to sleep…
Ms Donker ‘could take no more and finally snapped’.
Having outlined a history of controlling and violent behaviour by the deceased towards the accused at [5]-[9] and the physical violence to which the accused was subjected immediately prior to the instant offending Croucher J noted:
[72] While the law in this State does not excuse anyone – whether of uncommonly sturdy or brittle disposition – from criminal liability for otherwise unlawful actions based on provocation alone, the same law does not demand that victims of abuse of the kind and extent to which Ms Donker was subjected be super-resilient before provocation can operate in mitigation of sentence. Rather, the law attempts to strike a balance that recognizes human frailty in the face of extremely difficult circumstances, and allows that moral culpability may be reduced in such cases. This is such a case. As I say, I think it is very likely that any ordinary person, facing the circumstances which confronted Ms Donker and fixed with her history of exposure to family violence by Mr Powell, would lose self-control and act in a violent manner towards him.
Re Kele [2018] VSC 159 (10 April 2018) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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]).
DPP v Lo (Ruling No 3) [2018] VSC 149 (29 March 2018) – Victorian Supreme Court
‘Evidence’ – ‘Evidence issues’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence’
Charges: Murder.
Case type: Ruling on relevancy of evidence.
Facts: The female accused Lo was charged with murder and perjury. It is alleged that AB shot the deceased and that the accused Lo assisted, encouraged and directed AB in those actions. The accused was a Chinese national living with the deceased prior to the murder.
The central issue of this trial was whether the evidence provided by a marriage celebrant was relevant. The marriage celebrant provided evidence that he visited the deceased’s home in relation to proposed plans for him and the accused to marry. The Defence submitted that this confused the jury, and that it was counter-intuitive to the Crown’s case. It was also submitted that if the evidence was put before the jury, there would be a risk that the jury would be misled into thinking that the deceased wanted to marry the accused because he loved and cared for her. This would require the Defence to adduce evidence to show an alternative scenario that the deceased had been actively seeking to marry a young Asian woman and had told others of his willingness to facilitate such a person getting an Australian visa through such an arrangement ([3]-[6]). The Defence submitted that consideration of this issue would be time-consuming and distracting for the jury, and the evidence of the marriage celebrant was not sufficiently relevant to allegations of the accused’s complicity in the murder ([7]).
Issues: The Court was required to determine whether the evidence of the marriage celebrant was relevant.
Decision and reasoning: Under the Evidence Act 2008 (Vic), evidence is prima facie admissible if it is relevant. In order to exclude the evidence, the defendant bears the onus of showing that the danger of unfair prejudice outweighs the probative value. Dixon J held that the marriage celebrant’s evidence was relevant and admissible as context and relationship evidence ([22]), and that the Defence should be entitled to adduce evidence supporting a counter-narrative that the deceased had been interested in marriages with other women prior to the murder ([27]). Her Honour was of the view that evidence as to the events in the house the night before the murder, and evidence of the complex nature of the accused’s and deceased’s relationship was relevant. Any unfair prejudice arising from the jury learning about a planned marriage of convenience between the accused and deceased did not outweigh the probative value of the evidence ([25]). The marriage celebrant’s evidence was found to have significant relevance to the issues in the trial ([27]), and to be admissible relationship evidence.
Director of Public Prosecutions (Vic) v Walker [2018] VSC 83 (28 March 2018) – Victorian Supreme Court
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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.
DPP v Paulino (Sentence) [2017] VSC 794 (21 December 2017) – Victorian Supreme Court
‘Coercive control’ – ‘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, sought to commit a character assassination of her by alleging that she was promiscuous and by making spurious allegations about her involvement in pornography, 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]).
The accused’s acts in relation to the victim — namely the character assassination and other harassment — were found not to be ‘random measures’. Instead, Bell J found that they represented a ‘pattern of coercive control’. Her right to ‘personal dignity and autonomy’ was violated by the accused, whose conduct led to a situation in which she no longer had a life to live. This, Bell J explains, ‘was the culmination of a pattern of behaviour aimed at preventing her from living the life she chose’. [27]
Re Kumar [2017] VSC 742 (6 December 2017) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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.
County Court
DPP v Walker [2024] VCC 374 (26 March 2024) – Victorian County Court
‘social abuse’ – ‘contravening a protection order’ – ‘kidnapping’ – ‘threats’ – ‘deportation’ – ‘perpetrator programs’
Charges: 1 x kidnapping; 2 x common law assault; 1 x contravening a family violence order; 4 x summary offences.
Proceedings: Sentence.
Facts: On 20 December 2021 a final family violence intervention order was made. Its duration was three years. It contained only two conditions, including a condition prohibiting the respondent /offender from committing family violence against his wife (the protected person). At incident one the victim and offender were living together. The offenders used abusive language towards the victim and dragged her out of the house when she decided to smoke (2 x summary offences- assault and contravening the intervention order). The police attended an a further condition was included in the intervention order – that the respondent/offender remain at least 200 m away from the victim/protected person’s home. Incident 2 involved the offender going to the victim’s house, dragging her out of bed, removed the charger from her phone, strapped her into the car, and hit her. The offender told the victim he would take her where no one would find her (1 x kidnapping; 1 x common assault; 1 x summary offence). The offender was later arrested regarding drink driving matters (summary offences).
Decision and reasoning: The sentencing judge considered a range of factors including the plea of guilty, the issue of possible deportation (the offender was from New Zealand) and the fact that the offender had completed programs while in custody. The total effective sentence ordered was 61 months' imprisonment with a non-parole period of 40 months' imprisonment. Judge Lauritsen discusses research about the effectiveness of domestic violence perpetrator programs observing that some research ‘shows the effectiveness of such programmes in changing behaviour’ [79] –[80].
Judge Lauritsen observes: ‘The kidnapping is a particularly nasty aspect of those events, accompanied as it was with distinct assaults upon her. Rendering her phone unworkable and your statement which was reasonably interpreted by your wife as threatening to kill her.’ [54]
DPP v Lee [2023] VCC 2008 (02 November 2023) – Victorian County Court
‘text messages’ – ‘contravening a protection order’ – ‘bail’
Charges: 11 x persistent contravention of a family violence intervention order, 3 x common law assault; 1 x criminal damage; 2 x committing an offence on bail; 1 x trespass.
Proceedings: Sentence.
Facts: The offender pleaded guilty to all offences. There were two victims. The offender had previously been in a defacto relationship with the primary victim and had a child with her. The offender was the respondent to a final intervention order with the primary victim the protected person. The secondary victim was the primary victim’s current partner. Around 2am on day of offending the offender went to the primary victim’s home and broke a glass window (criminal damage) and climbed through (trespass). The offender headbutted the secondary victim (assault). The primary victim called police and they attended and arrested the offender. A search of the offender’s mobile phone revealed that he had sent the victim 2,110 text messages on one occasion; 435 text messages on another and made 59 calls to her in breach of the intervention order. Further interviews with the primary victim revealed his attendances at the primary victim’s home (persistent contraventions of a family violence intervention order).
Decision and reasoning: Blair J took into account the offender’s pleas of guilty and his remorse, the gravity of the offending and the family violence context in which the offending occurred, the offender’s mental impairments, and the offender’s own history of abuse. Blair J placed the offender on a Community Correction Order for a period of 16 months with various conditions.
[The primary victim and those she] ‘chose to have at her home, were entitled to feel safe and secure. Your offending occurred late at night, where you were not welcome at the address. Further, you assaulted … and frightened [the primary and secondary victims] … and no doubt your daughter … also.’
Although your breaches of intervention order were persistent, protracted and occurred over the better part of a year, I consider them to have occurred in the context of the breakdown and attempted reconciliation with your former partner…. Further, I accept that at the time of the offending … you were at a particularly low ebb in your life having attempted suicide approximately one month prior.’
DPP v Chirnside [2023] VCC 1221 (29 June 2023) – Victorian County Court
‘text messages’ – ‘emotionnal and psychological abuse’ – ‘bail ’ – ‘contravene protection order’
Charges: 2 x attempt to pervert the course of justice; 1 x threat to kill; 1 x common assault; 2 x contravene a family violence intervention order intending to cause harm or fear for safety; 2 x persistent contravention of a family violence intervention order
AND
3 x unlawful assault; 2 x contravention of a family violence intervention order which has a two year maximum penalty; 4 x commit an indictable offence on bail; 1 x contravening a condition of bail
Proceedings: Sentence.
Facts: The charges arise out of a nine-month relationship the offender had with the victim. On various occasions the offender verbally abused and threw things at the victim and assaulted her. The victim obtained an intervention order. The offender sent text messages to the victim telling her to ‘tell them to drop the order’ and to lie to her lawyer [22]- [24]. He subjected her to a ‘barrage of obscene and derogatory verbal abuse and abusive conduct in person and via text’ [29]
Decision and reasoning:
Judge Hassan considered early plea total effective sentence: 18 months’ imprisonment in combination with a two year community correction order [99]. (The sentences are set out from [93]). The judge commented:
‘You subjected [the victim] to behaviour which was relentless, oppressive, degrading, threatening and at times involved physical violence. Your conduct must have worn her down and left her feeling helpless and frightened. You paid scant regard for orders and on two occasions manipulated [the victim] in an attempt to get her to withdraw complaints to police against you… While I accept the submission made by your counsel that this is not a case of family violence involving a high level of violence, and the attempt to pervert the course of justice charges do not involve threats or acts of overt intimidation, nevertheless your abuse of [the victim] is objectively serious offending and your moral culpability is high.’ [84]-[86]
DPP v Forrest (a pseudonym) [2023] VCC 2172 (22 November 2023) – Victorian County Court
‘coercive control’ – ‘strangulation’ – ‘economic and financial abuse ’ – ‘following, harassing and monitoring’
Charges: 10 x common law assault; 1 x threat to kill; 1 x stalking
Proceedings: Sentence.
Facts: The offender and victim began living together in an intimate relationship in 2008. Initially the offender gave many gifts to the victim but then began to control and manipulate her, behaving aggressively and ultimately isolating her from her friends and family. From 2011 the offender began pulling the victim’s hair, ripping some out. The offender and victim had a baby in 2012 and a second child in 2017. The victim began to run a business, but the offender took over, the offender made threats about the business and made the victim write out lines saying she was an idiot and needed to behave [10]. In 20212 the offender and victim married. The offender made the victim sleep in the laundry locking her out of the house. Specific assaults the subject of the offences are explained at [16] –[24] but involved hitting, kicking and punching her, dragging her by the hair, various threats, grabbing her around the neck [25] and numerous calls. She obtained an intervention order. After separating the offender monitored the activities of the victim and accessed her bank statements.
Decision and reasoning:
Individual sentences set out at a [186]; total effective sentence of 5 years and 2 months' imprisonment, and to serve 2 years 10 months before becoming eligible for parole. [188]
Judge Cannon observed: ‘your offending is serious and deserves a punishment which is just in all of the relevant circumstances. Your conduct must be firmly denounced. Your behaviour towards the complainant was monstrous and repugnant. You assaulted her on 10 separate occasions over a prolonged period of time in the context of a controlling and abusive relationship where you appear to have behaved in any way you wished at a whim. In saying this, I make it clear that you are only to be sentenced for the offences on the indictment rather than in relation to the contextual information, but that contextual information is relevant.’ [93]
Judge Cannon quotes from the victim impact statement: ‘She said that by the time she had fled you, she felt like she had no identity at all, and she continued to struggle in finding out who she was. She spoke of you devaluing her as a person and that the effects on her broken confidence and self-belief continued to permeate her daily life and interactions with others. She said that she would never know whether you would be Dr Jekyll or Mr Hyde from one day to the next, and that she felt she had to behave in a way that would protect herself from your violence. She continued to be hypervigilant because of this. She said that your actions had left lifelong scars on her mental and emotional wellbeing, stripping her of her confidence and ability to function on a day-to-day basis, questioning all that she said and did because she never felt she was worthy as a person …She spoke of her sense of isolation because of your offending and control over her….’ [114]-[118]
DPP v Buck [2021] VCC 759 (11 June 2021) – Victorian County Court
‘Damaging property’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Strangulation’ – ‘Weapons and threats to kill’
Charges: Criminal damage; Common assault; Conduct endangering serious injury; Intentionally cause injury; Threat to kill; Trespass; Indictment offence on bail; Persistent Breach of Family Violence Intervention Order.
Proceedings: Sentencing.
Facts: The male offender and female victim had been in a relationship for approximately four months. The offender ripped her clothes off and hit the back of her head with a hair dryer multiple times. He punched her five or six times to the face, and stomped on her head and chest several times. He strangledher, threatening to kill her, and she felt unable to breathe. At one point, the offender chased the victim into the street and threatened to kill her while brandishing a knife. He also caused property damage and assaulted the victim’s housemate (who tried to intervene). The victim’s children were present at the time of the offending. The victim sustained many injuries, including exposing her bone and skull. A Family Violence Intervention Order was imposed and, despite the order, the offender telephoned the victim from custody on 12 occasions, but desisted once the victim told him to stop.
Issues: Sentence to be imposed.
Decision and reasoning: A sentence of 3 years 5 months imprisonment with a non-parole period 2 years was imposed.
Assessed in the context of an intimate relationship, this was a reasonably serious example of causing intentional injury for the following reasons:
•
It was an assault on the offender’s partner who was entitled to his care.
•
The offending occurred in the victim’s home, where she should have felt safe.
•
The offender used a household item as a weapon, hitting the victim to her head repeatedly to a point where she was feeling dizzy. The victim said she felt unable to stand up, had blood in her eyes and her head was throbbing. The physical injury to her head was a result of those repeated strikes. The offender continued to assault her, despite her state and her pleading with him to stop.
•
The assault was protracted, moving between various rooms in the house, out onto the street and back into the house.
•
The acts of violence against the offender’s partner “were not only physically violent, resulting in her injuries, but they were degrading, including stripping her naked. One neighbour refers to her running naked in the street, bloodied and bruised.”
•
As part of the episode, the offender choked her. The victim described feeling unable to breathe and wondering whether she would be able to do so again. There were marks around her neck from that part of this event. During that event, he made the threat to kill her which must have been terrifying given the context of that threat. He later made a threat when brandishing a knife.
•
The offender continued to attack the victim, despite the intervention of the victim’s housemate.
•
The acts occurred in the presence and hearing of the victim’s children, which was most disturbing. As his Honour noted: “The fact that a 12 year old had to call police because you were violently assaulting her mother is reprehensible. [The victim’s] daughter was extremely courageous and showed wisdom beyond her years in doing what she could to try and get police to the scene.”
•
The offender’s assault on the victim’s housemate demonstrated the offender’s level of aggression.
•
“Despite the fact I have not received a victim impact statement, I can well anticipate that Ms Brewer suffered distress, humiliation and fear during this offending, and that she is likely to have experienced some ongoing trauma as a result. Those matters would only be exacerbated in my view, by the presence of her two daughters and her feelings of concern for them.”
The principles from Bugmy v The Queen were applicable in this case (disadvantage and events during his formative years) and somewhat reduced the offender’s moral culpability. He pleaded guilty. There was an intervention order protecting the victim and the offender had shown no desire to try and contact her now.
DPP v Vickers (a pseudonym) [2021] VCC 445 (16 April 2021) – Victorian County Court
‘Coercive control’ – ‘Detention for a sexual purpose’ – ‘Low cognitive functioning’ – ‘Moral culpability’ – ‘Objective seriousness’ – ‘Offender in relationship with victim from under the age of 16’ – ‘People affected by trauma’ – ‘Rape’ – ‘Separation’ – ‘Suicide threat’ – ‘Young people’
Charges: Rape (rolled up charge, 3 separate incidents) x 1; Detention for a sexual purpose x 1.
Proceedings: Sentencing.
Facts: The male offender was 23 years old at the time of the offending and the female victim, his partner, was 32 years old. The offender had been groomed by the victim since he was a child, with sexual and then de facto marital relationship commencing when he was a child.
Issues: Sentence to be imposed.
Decision and reasoning: A total effective sentence of 6 years and 9 months was imposed, with a non-parole period of 3 years and 10 months.
The court noted the seriousness of rape as an offence. The objective gravity of the offender’s offending (as rolled-up charges) was high.
The court noted at [41] that: “This case is an example of controlling and violent conduct borne out of an inability to accept and negotiate the end of the relationship – culminating in the heinous and devastating offence of rape. It is reprehensible conduct of the highest order and must be deterred and denounced.” And at [42]: “The impact upon the victim also needs to be given proper weight in the exercise of my sentencing discretion. Your victim states that she has had suicidal thoughts, has been diagnosed with anxiety, depression and PTSD, and is having counselling. The offending has also impacted the children, who are anxious and withdrawn.”
Age disparity between the offender and victim alone would have had limited impact in assessing the circumstances of the offending and offender’s moral culpability. But, in combination with the following factors, the circumstances of the relationship were more significant:
•
The offender was diagnosed with ADHD in Grade 3;
•
He had difficulties at school and is dyslexic;
•
He suffers hearing impairment, requiring hearing aids;
•
He has low intellectual functioning;
•
He became a father when he was a child and by 20 was working to support a house of three children;
•
To some degree, the offender was subject to some manipulation/control in the form of managing his medication and access to hearing aids, particularly leading up to the offending;
•
The relationship was his first sexual relationship. It was his “only experience of a relationship and your attitudes and strategies for dealing with conflict have been shaped within a relationship that commenced when you were a child.”
The offender required specific deterrence, treatment and programs to ensure he did not repeat this offending. Denunciation and general deterrence were also important sentencing considerations: “All potential perpetrators who may feel aggrieved within a domestic relationship and who lack the skills, intelligence, maturity and emotional control to relate to a partner or ex-partner in anything other than a violent and controlling way – must be deterred” at [55].
DPP v Senior (a pseudonym) [2020] VCC 1380 (2 September 2020) – Victorian County Court
‘Arson’ – ‘Domestic violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Threats to kill’
Charges: Contravention of a DFV protection order x 1; Arson x 1.
Proceedings: Sentencing.
Facts: The male perpetrator plead guilty to breach of a protection order by threatening to kill his female former partner and arson. After an argument the offender called his former partner and threatened to ‘come to her house and blow her and her family up’. He entered her home, and despite his father’s atempts to calm him, threw thinner over the couch and lounge room floor, stating he would burn the house down with his former partner in it. Some of the thinner (accidentally) caught fire on the gas heater causing an explosion. The offender and his father escaped the fire; however, the house was destroyed.
Issues: Sentencing.
Decision and reasoning: Sentenced to time served, followed by a community corrections order for 12 months with conditions designed to continue rehabilitation by way of supervision, mental health and programs to reduce reoffending.
[16] You are fortunate that your vile threats of harm did not cause further injury or damage to your son and his mother. Arson is a very serious offence. In the circumstances of this case, you allowed your rage and anger to get the better of you in a situation in which you recklessly used an accelerant which you well knew and believed would probably result in damage or destruction to property. It is important in your case, as the learned prosecutor made clear very fairly during the course of the plea, that two factors need to be recognised.
[17] The first is that this was not a case in which you burnt down a property either to damage it intentionally or to prevent or deny another its enjoyment or ownership, and that having properly classified and understood the modus in which the fire started in a seemingly accidental way which nevertheless carries the inference of intention, and secondly, that your intention at the time was to hurt yourself by fire, even endangering your own father; intent which should be also noted you put into effect, not by arming yourself with an accelerant fuel but because your work made it available to you through a thinner which you already had available to you.
[18] The circumstances significantly reduce in my view the gravity of the offending and your moral culpability. You have, by your plea, accepted responsibility legally and I accept you are remorseful for your actions.
DPP v Jenkins [2020] VCC 749 (4 June 2020) – Victorian County Court
‘Covid-19 pandemic’ – ‘Following, harassing and monitoring’ – ‘Guilty plea at commencement of trial’ – ‘History of domestic violence’ – ‘Lengthy procedural history’ – ‘Obsessive and controlling behaviour’ – ‘People affected by substance misuse’ – ‘Persistent offending’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Separation’ – ‘Sex offender registration’ – ‘Significant criminal history’ – ‘Stalking’
Charges: 11 charges, including rape x 2; destroying or damaging property x 1; causing injury intentionally or recklessly x 1; threats to kill x 3; assault x 3; stalking x 1
Case type: Sentence
Facts: The majority of offending was committed against Ms Burgess (the victim), with whom the male accused was in an intimate relationship ([12]). Their relationship was marred by excessive drug and alcohol consumption, physical and sexual violence and stalking. The accused regularly argued with the victim about his paranoid suspicions concerning her infidelity ([13]). The controlling and obsessive behaviour became more severe over time. On one occasion, the victim threatened to stab him before self-harming, demonstrating the level of stress she was suffering at the time ([17]). The accused’s controlling behaviour continued. He checked her emails and social media accounts, accessed her phone without permission and tracked her location. He also broke her phone after she refused to give it to him ([18]-[20]).
On 5 October 2017, he raped ([23]-[24]) and physically abused the victim ([25], [27]) and threatened to cut her throat ([26]). A week later, he pushed the victim to the ground after she had told him that their relationship was over and demanded him to leave the premises ([29]). After this incident, the accused was arrested, and released on bail with conditions prohibiting contact with the victim ([30]). Despite this order, he continued to text and ring the victim, track her location and loiter near her home. One evening, the victim allowed the accused to enter her house, where he accused her of sleeping with other people, physically assaulted her and grabbed her phone ([34]-[40]). The accused continued to contact the victim, causing further distress and fear, and later threatened to cut the victim’s and a police officer’s throat ([41]-[43]).
There was a significant delay in resolving the matter, and the accused was unrepresented for most of the proceeding, including the plea hearing. His guilty pleas were entered at the commencement of trial ([51]-[52]). The Court held that "the fairest and most appropriate course" was to ensure that he was not punished for adopting a "somewhat uncooperative approach" ([56]), and that his guilty pleas still entitled him to a sizeable reduction in sentence ([57]).
Held: The accused’s personal circumstances and criminal history are discussed at paragraphs [58] to [75]. He abused alcohol and drugs from an early age, and had previously seen doctors for drug dependency, depression, drug psychosis and attempted suicides. Although he had suffered numerous head injuries, a neuropsychologist concluded that he did not have an acquired brain injury ([64]-[65]). He also has a significant criminal history, including past convictions for recklessly causing injury, indecent assault, contravening a family violence intervention order, and making threats to kill ([69]-[70]). He has also been convicted of a number of offences against former intimate partners and has breached a family violence safety notice on several occasions ([71]-[73]).
The Court found that the accused’s conduct was "absolutely appalling". He had "gained [the victim’s] trust and formed an intimate relationship with her only to go on to degrade and demean her at the whim of [his] paranoid obsessions". The rape, assaults and threats to kill demonstrated the kind of behaviour to which she was subject for the duration of their relationship ([85]). The rape was particularly serious, because it was committed in the context of an initially trusting and intimate relationship, and involved the use of force and violence ([86]). The charge of stalking was also serious as the accused went to great lengths to control and abuse the victim in a "pathologically unfeeling" manner. He also knowingly disregarded court orders intended to protect the victim from his conduct ([87]). The Court assessed his moral culpability for the offending as "very high", and accepted the prosecutor’s submission that the physical and sexual violence he inflicted on his partner requires just punishment and strong denunciation ([88]). Further, the accused had prior convictions, indicating a tendency to treat intimate partners violently ([89]). The accused appeared to have some "incipient insight" into his conduct and the necessary steps to address his drug problem and attitude towards women ([92]). Whilst he apologised for his behaviour, the Court did not place a great deal of weight on that assertion as there was no evidence that indicated that he was genuinely remorseful for the harm caused to the victim. The Court was also not confident of his prospects for rehabilitation, but took into account that any sentence imposed must not be crushing ([93]).
Consequently, the Court granted the Crown’s application to have the accused report under the Sex Offenders Registration Act 2004 for the "rest of [his] life" as he poses a real risk to the sexual safety of women ([95]-[101]). He was convicted of all charges (except one count of rape), and was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years ([115]).
Director of Public Prosecutions v Linton [2020] VCC 515 (28 April 2020) – Victorian County Court
‘Female perpetrator’ – ‘History as victim of family and domestic violence as child’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Substance misuse’ – ‘Verdins principles’ – ‘Weapon’
Offences: Recklessly causing serious injury x 1; Possessing drug of dependence x 1
Proceedings: Sentencing
Facts: The female offender and male victim had been in a relationship that ended six months prior to the offending, but had started spending time together one to two months before the offending. One night, the offender picked up the victim from a pub and they visited the victim’s cousin’s house where they played pool and used drugs. The offender and the victim left around 2am and returned to the offender’s bungalow where an argument broke out. The offender stabbed the victim on the left side of his chest with a pair of scissors. The victim left the bungalow and called emergency services. The offender sent text messages to the victim asking him if he was alright, but the focus of the messages was very much on the offender’s own needs. The victim suffered a left haemopneumothorax, haemopericardium, a punctured lung and fluid overload, and was admitted to the ICU. The victim initially attempted to protect the offender by not telling police she was the one who caused the injuries, and the offender feigned ignorance when questioned by police, but later the victim told police what had really happened.
Judgment: The sentencing judge ordered that the offender be placed on a community corrections order for three years during which the offender was to complete 300 hours of community work and participate in rehabilitation programs for drug use and mental health issues. The judge also ordered that the offender be subject to judicial monitoring. Her Honour held that "a community corrections order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences such as this, which might have previously attracted a medium term of imprisonment" [72].
Her Honour held that the offender "committed a serious criminal offence with serious consequences" for the victim by inflicting an injury when the victim "had little, if any, chance to know what was happening", using a hidden weapon [19]. However, her Honour accepted that the act was impulsive, without premeditation, and that the actual consequences of the attack were "probably unintended" [20].
Her Honour emphasised the need to give significant weight to general deterrence, as the offence was committed in a domestic violence setting [21]. However, she noted several factors that impacted on the weight to be given to general deterrence in this case. Specifically, the offender’s young age, the offender suffered physical and emotional abuse from her former stepfather (and witnessed her mother being subjected to this too) and older brother, the offender abused drugs, the offender had an unstable and volatile upbringing, and the offender had a long history of mental health issues. Her Honour accepted that the offender had committed to positive change and had engaged in a variety of alcohol and drug treatment programs. She also accepted that the offender had personality difficulties which, when combined with her use of ice and other drugs, resulted in difficulty thinking clearly and rationally and impaired her judgment at the time of the offence [43]. Her Honour accepted that there was therefore a basis for limited reduction to moral culpability for the offences [44].
Her Honour somewhat applied limbs 5 and 6 of the decision in R v Verdins & Ors [2007] QSCA 102. Limb 5 refers to the existence of a condition at the date of sentencing which may mean that a given sentence would weigh more heavily on an offender than a person in normal health. Limb 6 refers to a serious risk of the imprisonment having a significant adverse effect on mental health. The judge noted the effects of the COVID-19 pandemic on the offender if she were to be imprisoned, particularly in light of her mental health issues and her strong family support base (which she would be unable to access if imprisoned).
Her Honour held that less weight needed to be given to specific deterrence and protecting the community from the offender because of her lack of criminal history. A discount was given to recognise the utilitarian benefit of the offender’s early guilty plea.
Magistrates' Court
DPP v Cope (a pseudonym) [2021] VMC 014 (17 September 2021) – Magistrates’ Court of Victoria
‘Honest and reasonable mistake of fact’ – ‘Mens rea’ – ‘Protection order’ – ‘Statutory interpretation’
Charges: Contravention of family violence intervention order x 1.
Proceedings: Judgement.
Issues: Whether section 123(2) of the Family Violence Protection Act 2008 (‘the Act’) was a strict liability offence.
Facts: The accused was charged with beaching a family violence intervention order, an offence pursuant to s 123(2) (‘the offence’) of the Act, by being within 200m of the victim’s workplace. Magistrate Foster accepted that the address was unknown to the accused and not specified by the order. However, the prosecution argued that proof of mens rea was not required, because s 123(2) was an offence of strict liability. The prosecution also argued that the accused had not made out the defence of honest and reasonable mistake of fact.
Decision and Reasoning: The charges were dismissed.
Applying He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Magistrate Foster found that the presumption of mens rea had not been displaced. The aggravated versions of the offence explicitly required proof of a mens rea element ([45]). Therefore, it would be inconsistent with the structure and operation of the act for the offence to be one of strict liability. All three offences carried considerable terms of imprisonment. His Honour highlighted that ‘a strong presumption exists that proof of mens rea is necessary where an offence carries serious sanctions’ [57]. ‘The serious nature of… family violence and… serious consequences for all three… offences strongly suggests that the presumption of mens rea has not been displaced’ [48]. Furthermore, the absence of a mens rea element would not assist with the enforcement of the offence (see [59]). It would be counter intuitive and ‘contrary… to the spirit of the act’ [71] to require the accused to take steps to remain aware of the details of victim’s workplace, which was not specified by the order. His Honour found that it was not necessary to address whether the accused had proven the defence of mistaken fact, but explained that the defence would have been established due to evidence that the accused had no reason to believe that the victim worked within 200ms of the café (see [82]-[84] and [97]).
Civil and Administrative Tribunal
ZHC v Victims of Crime Assistance Tribunal (Review and Regulation) (Corrected) [2022] VCAT 333 (30 March 2022) – Victorian Civil and Administrative Tribunal
‘Administrative review’ – ‘Application for assistance’ – ‘Children’ – ‘Coercive control’ – ‘Decision not to pursue charges’ – ‘Financial abuse’ – ‘People affected by trauma’ – ‘Physical violence’ – ‘Pregnant victim’ – ‘Reasonable assistance’ – ‘Reasonable time’ – ‘Special circumstances’ – ‘Threats to kill’ – ‘Victims of crime assistance act 1996’
Proceedings: Review of decision to strike out the victim’s application for assistance pursuant to section 52 of the Victims of Crime Assistance Act 1996 (‘the VOCA Act’).
Issue: Was the act of violence reported within a reasonable time?
Facts: Under Section 52 of the VOCA Act, an award of assistance must be refused if the Tribunal is satisfied that an act of violence was not reported to police within a reasonable time, or that the applicant failed to provide reasonable assistance to investigators. The section does not apply if the Tribunal considers a delay in reporting, or lack of assistance, to be the result of the applicant’s ‘special circumstances’ [3]. In May 2021, the victim’s application was refused on the basis that she had failed to report acts of violence by her former partner within a reasonable time. While the victim had reported a protection order breach in December 2020, materials provided to the Tribunal alleged a history of family violence commencing in 2016 [4].
Decision and reasoning: The Tribunal was not satisfied that the victim’s application ought to be refused under section 52 of the VOCA Act. The Tribunal found that the acts of violence were reported to police within a reasonable time. The Tribunal highlighted paragraphs (c), (d) and (e) of section 53 of the VOCA Act, which provide that in considering whether an act of violence was reported within a reasonable time, the Tribunal may consider:
(c) ‘whether the person who… is alleged to have committed, the act of violence was in a position of power, influence or trust in relation to the victim’
(d) whether the victim was threatened or intimidated by the person who… is alleged to have committed, the act of violence’
(e) ‘the nature of the injury alleged to have been suffered by the victim’ [12]-[14].
Considering paragraph (c), the Tribunal noted that the victim’s former partner exerted power and influence her through acts of physical violence, which escalated during her pregnancy, and by controlling her finances. Considering paragraph (d), the victim felt intimidated and threatened by her former partner. This was evidenced by a protection order application, and evidence that the victim’s former partner had made threats to harm or kill the victim or their child if she left the relationship. Considering paragraph (e), the victim sustained serious physical injuries due to her former partner’s assaults, including cuts, broken teeth, and post-traumatic stress disorder [15]-[19].
The Tribunal was not required to consider whether the victim had provided ‘reasonable assistance’, or whether ‘special circumstances’ existed. However, the Tribunal explained that a decision not to pursue charges or provide a statement to assist police to arrest, investigate or prosecute does not amount to a failure to provide reasonable assistance [30]-[31].
Furthermore, the Tribunal noted that the facts exemplified ‘special circumstances’ [43]. Due to the nature of the violence perpetrated against the victim, the fact that the couple lived together, and the applicant’s repeated contravention of protection orders, the victim was unlikely to make immediate reports to police [44]. Rather, the victim prioritised ‘more effective mechanisms that would keep her safe’, such as a protection order [45]-[48].
Court of Appeal
Sturt (a pseudonym) v The King [2024] VSCA 102 (20 May 2024) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘Sexual and reproductive abuse’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Separation ’ – ‘Evidence ’ – ‘Admission’ – ‘Rape’ – ‘Jury directions’
Charges: Rape x 2; sexual assault x 1.
Proceedings: Appeal against conviction.
Facts: Following a trial by jury, the male appellant was found guilty and sentenced to 8 years and 4 months’ imprisonment for the offences of rape and sexual assault. The complainant was the appellant’s wife.
At trial, the prosecution led evidence from the complainant that, following the second incident of rape, the appellant stated, “I shouldn’t have done that”. [5] Neither party made any request pursuant to the Jury Directions Act 2015 for a jury direction concerning the relevance or use of this statement.
Grounds of Appeal: The appellant proposed five grounds of appeal, the second of which concerned the prosecution’s use of the appellant’s statement:
•
The learned Judge erred in failing to direct the jury not to engage in impermissible reasoning relating to the statement “I shouldn’t have done that” resulting in a substantial miscarriage of justice.
Decision and Reasoning: Appeal allowed. The Court (Macauley, Kaye and T Forrest JJA) held that it was mandatory for the trial judge to give the jury the direction required under s 21 of the Jury Directions Act 2015, irrespective of whether either party requested or failed to request it. [33] This is because the statement was ‘capable of being construed as an implied admission’, the prosecution sought to use the evidence to establish that the appellant ‘had no reasonable belief in the complainant’s consent’, and the jury’s acceptance of the admission on one occasion had the capacity to influence the jury’s view about the appellant’s belief about consent in all instances [30]–[32].
The omission of a jury direction was material: ‘Evidence as to the state of mind of the appellant was, apart from the impugned statement, entirely a matter of inference from the circumstances of and surrounding the events, in the context of the nature of the relationship between the parties’ [35]
Accordingly, the judge’s failure to direct the jury ‘deprived the appellant of a most significant mandatory safeguard in the context of the trial’ [37]
Dragovic v The King [2024] VSCA 95 (16 May 2024) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Protection order’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse’ – ‘Attempt to pervert court of justice ’ – ‘Damaging property ’ – ‘threats’
Charges: criminal damage x 1; common assault x 6; persistent contravention of protection order x 1; attempting to pervert the course of justice x 1.
Proceedings: Appeal against sentence.
Facts: On 28 November 2023, the male applicant was sentenced to two years’ imprisonment after pleading guilty to all charged offences. The primary complainant was the applicant’s ‘on and off’ again intimate female partner. The applicant physically assaulted the complainant on several occasions (e.g., punching, kicking, and throwing her on multiple occasions).
The applicant was arrested and remanded in custody. The complainant sought a protection order against the applicant, prohibiting the applicant from contacting her. Two months later, the complainant sought to withdraw her complaint of assault(s) against the applicant, stating that the applicant had contacted her from prison and threatening her to ‘get rid’ of the case. [10]
Grounds of Appeal: The applicant sought leave to appeal against on a single proposed ground:
•
The sentencing Judge erred in imposing a sentence in respect of charges 2–7 (common assault) and making orders for cumulation in respect of the remaining offences, that was manifestly excessive having regard to all relevant circumstances.[3]
Decision and Reasoning: Leave to appeal refused. The Court (Kennedy and T Forrest JJA) held the aggregated sentence of 16 months’ for the common assault charges was not manifestly excessive. The Court emphasised the inherent difficulty in establishing tis particular ground, and the aggravating fact of the assaults being committed against the applicant’s partner.
Any ground of manifest excess is difficult to establish. An applicant must demonstrate that the sentence or sentences imposed are ‘wholly outside the range of sentencing options available’ in the reasonable exercise of sentencing discretion [29]
[T]he applicant involved himself in serious violence against his intimate partner. Violence towards an intimate partner can never be justified but in this case, there seems little if any reason for this sustained course of violence. The applicant’s apparent grievance seems to be that the complainant, having cared for him during his illness, called an ambulance against his wishes. She then had the temerity to leave his presence for a few hours [31]
Those (mostly) men who elect to engage in violent activity within the home can expect little sympathy from sentencing courts [33]
Gardner (a pseudonym) v The King [2024] VSCA 83 (30 April 2024) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘ Physical violence and harm’ – ‘Evidence’ – ‘People with disability and impairment ’
Charges: false imprisonment x 1; rape x 4.
Proceedings: Application for an extension of time to seek leave to appeal against conviction.
Facts: Following a trial by jury, the male applicant was found guilty of one count of false imprisonment and four counts of rape. The victim was the male applicant’s long-term female partner of 18 years (although the par separated for a period of three years). [2]; [8] The offences occurred in one instance. The prosecution case was that the applicant restrained the complainant to the bed and penetrated her four times, all without consent. [2]
The primary evidence was given by the complainant, who was opined by a clinical neuropsychologist to have a tendency to ‘exaggerate and embellish’: a tendency exacerbated by the removal of a large tumour from the complainant’s brain in 2001. [4]
Grounds of Appeal: The applicant sought leave to appeal against on two grounds:
•
The guilty verdicts were unreasonable or could not be supported by the available evidence; and
•
The guilty verdict pertaining to the charge of penile penetration was unreasonable, as the complainant’s evidence indicated uncertainty as to whether the applicant had in fact penetrated her anus [6]
Decision and Reasoning: Application dismissed. The Court (Emerton P, McLeish and Macaulay JA) held the complainant to be an ‘unreliable witness’ in many respects. [75]
The complainant was clearly ‘prone to embellishment’ and gave ‘conflicting evidence’ on the nature and extent of digital penetrations, such that an unreliable evidence direction under s 32 of the Jury Directions Act was appropriate. [76]
Despite these matters, the jury accepted the complainant’s evidence as ‘credible and reliable’. [79] Accordingly, the question is ‘whether the jury ought, acting rationally, to have entertained a reasonable doubt as to proof of the applicant’s guilt, whether by reason of inconsistencies, discrepancies or other inadequacy[ies] in the complainant’s evidence’. [85]
The evidence of the clinical neuropsychologist might have suggested that the jury ought rationally to have doubted the applicant’s guilt. However, the Court did not accept that the jury have must have done so. [93] The jury did not have to accept the applicant’s account of consensual activity. Further, the evidence of the complainant was corroborated by medical evidence, concerning the nature of her injuries. [94]
Russo (a pseudonym) v The King [2024] VSCA 40 (22 March 2024) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘ Physical violence and harm’ – ‘Protection order’ – ‘Threat to kill ’ – ‘ Economic and financial abuse ’ – ‘ Emotional and psychological abuse ’ – ‘ Exposing children to domestic and family violence ’ – ‘ separation ’ – ‘ threats’
Charges: common assault x 9; causing injury intentionally x 3; conduct endangering persons x 1; threat to kill x 2; persistent contravention of protection order x 3.
Proceedings: Application to leave to appeal against sentence.
Facts: The male applicant pleaded guilty in the County Court to several offences committed against his former wife. [1] The applicant was sentenced to 12 years’ imprisonment. Over the course of their relationship (2012–2017), the applicant was physically violent to the complainant, and her son from a previous relationship. [5]–[6]
This violence persisted after the complainant sought a protection order against the complainant in 2014. The applicant assaulted the complainant after she communicated her decision to terminate the relationship and her pregnancy due to the ‘violent nature of the relationship’ and choked her on another occasion when she re-attempted to end the relationship. [7]–[8]. Further, while serving time in prison, the applicant contacted the complainant 281 times, with 100 calls involving ‘economic, electronic, financial and psychological and emotional abuse’. [8]
Grounds of Appeal: The applicant sought leave to appeal against on three grounds:
•
The sentencing judge erred in their approach to the issue of totality by failing to impose appropriate individual sentences;
•
The learned sentencing judge erred in failing to recognise that the applicant’s guilty plea was worthy of additional credit; and
•
The individual charges, total effective sentence and non-parole period are manifestly excessive.
Decision and Reasoning: Leave to appeal refused.
With respect to ground one, the Court (Niall and Boyce JJA) recognised a ‘broad brush’ approach by the sentencing judge in not drawing any ‘fine distinctions … to the imposition of individual sentences on each of the respective charges of common assault, intentionally causing injury and threat to kill’. [35]
Leaving aside whether distinctions in ‘months’ or ‘years’ were in fact made between the separate charges of intentionally causing injury, on the one hand, and the instances of make threat to kill on the other, in circumstances where there were only two instances each of these particular charges, it is difficult to conclude that the circumstances of those charges alone permitted … utilisation of the so-called broad-brush approach [41]
Accordingly, the Court held that a broad-brush approach was inappropriate in this case, with the applicant entitled to have ‘the sentencing discretion brought to bear properly upon each individual charge in the conventional manner’. [45]
With respect to ground two, the Court noted the applicant’s plea was late, indicated on the first morning of the trial after the Crown withdrew a charge of rape. [54] In this capacity, the plea had ‘all the hallmarks of a pragmatic decision taken by the applicant upon the Crown’s decision to withdraw’. [64] Accordingly, the Court dismissed ground two.
Lastly, with respect to ground three, the Court held that there was ‘no reasonable prospect’ that this Court would impose a lesser total effective sentence. [71] This view is informed by the fact that the case concerns family violence. [70]
Dhal v The King [2023] VSCA 289 (29 November 2023) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘ Sentencing’ – ‘Manifesttly excessive’ – ‘Intentionally cause serious injury ’ – ‘ Recklessly cause serious injury ’ – ‘ Physical violence and harm ’ – ‘ Jealousy ’ – ‘ History of domestic and family violence ’ – ‘ separation’
Charges: Intentionally causing serious injury x 1; recklessly causing injury x 1; commit indictable offence whilst on bail x 1; possess a controlled weapon without lawful excuse x 1.
Proceedings: Application for leave to appeal sentence.
Facts: The male applicant pleaded guilty to several offences perpetrated against his former female partner (‘Ms Malith’) and friend. In the days following the end of the relationship, the applicant assaulted Ms Malith and a friend in the gaming room of a hotel, swiping and stabbing both with a knife ([13]–[19]). The applicant received a sentence of 12 years’ imprisonment with a non-parole period of 8 years and 6 months’ imprisonment.
Grounds of Appeal: The applicant sought leave to appeal against the sentence on three grounds:
1.
The sentencing judge erred in finding that the offending was premeditated;
2.
The sentencing judge afforded insufficient weight to the applicant’s ‘deprived’ childhood; and
3.
The sentences imposed on the charges of intentionally causing serious injury, recklessly causing serious injury and the total effective sentence were manifestly excessive [3]
Decision and Reasoning: The Court (Osborn and Whelan JJA) denied the applicant leave to appeal.
First, the Court upheld the trial judge’s assessment of the CCTV footage as making clear the applicant’s determination ‘to attack Ms Malith with knife as he entered the gaming room’ [43].
Second, the Court affirmed the trial judge’s application of the Bugmy principles. Childhood deprivation may reduce moral culpability, but it may also ‘bear upon the weight of other sentencing principles’, including the need for community protection [56]:
[T]his is a case where consideration of the applicant’s deprived background, and the effects of that background on his psychological make-up, particularly insofar as current and former intimate partners are concerned, significantly increases the need for community protection [58]
Lastly, the Court observed the original sentence as appropriate in light of the applicant’s limited prospects of rehabilitation, heightened risk of reoffending and history of violence towards intimate partners:
The evidence reveals he represents a significant risk of violence to intimate partners and former partners in the future. The applicant’s criminal history is more concerning than that in either Packard or Lukudu, particularly in relation to intimate partners and former partners, and he has repeatedly disobeyed intervention orders [66]
The fact that the victim was the former partner of the applicant, and the fact that the applicant has prior convictions for assaults on a partner or former partner, were significant. As this Court said in Smith v The Queen, male violence against women is a ‘scourge of our society’, and those who engage in it ‘should be in no doubt that offending of this kind will attract very heavy sentences’ [67]
The offending in this case visited horrific injuries on a 21-year-old former partner. The applicant was motivated by jealousy and revenge. He used a boning knife. As a result of his work as a butcher, he was familiar with the effect of the use of such a knife [68]
Harlen (A Pseudonym) v The King [2023] VSCA 269 (09 November 2023) – Victorian Court of Appeal
‘Appeal ’ – ‘ Rape’ – ‘Rendency evidence’ – ‘Stalking ’ – ‘ Physical violence and harm ’ – ‘ control ’
Proceedings: Application for leave to appeal an interlocutory decision of the County Court concerning the admissibility of tendency evidence.
Facts: The applicant was charged with several offences, including stalking and rape, arising from ‘the breakdown’ of his relationship with the complainant ([9]–[19]). At pre-trial, the judge allowed the prosecution’s application to adduce tendency evidence to demonstrate the applicant’s willingness to engage in — or to actually engage in — verbal violence and physical violence towards the complainant (and another previous intimate partner) as a ‘means of control’ over them ([2]; [12]–[17]).
Grounds of Appeal: The applicant’s appeal was advanced on the ground that the judge erred in ruling the tendency evidence as disclosed in the ‘Tendency Notice’ was admissible [40]. In particular:
1.
The evidence did support the alleged tendency that the applicant’s alleged conduct was engaged in as ‘a means of control’ ([44]–[45])
2.
The evidence concerning a previous intimate partner was ‘irrelevant’ to the present proceedings ([43]); and
3.
The evidence was ‘not significantly probative’, and if it were, it did not substantially outweigh its prejudicial effect ([46]–[49])
Decision and Reasoning: Leave to appeal refused. The Court (McLeish, Niall and Kennedy JJA) emphasised that a consideration of the admissibility of tendency evidence (as governed by the principles of House v The King) is “fact specific” [69].
The conduct the subject of each charge involves verbal or physical violence undertaken in an effort to control Ms Abbott at the end of her relationship with the applicant during October 2020. We do not consider the concept of “control” lacks substance in this context where ethe conduct evinced a tendency to become threatening or violent so as to regain control during a relationship breakdown.
The evidence was not just relevant … but had a significant value in making more likely the facts making up the other charged offences [73]
The applicant’s tendency to engage in verbal and physical violence as to exercise control (in the non-rape charges) was clearly relevant to whether he might have also sought to manifest physical control, as alleged by the rape charges. His willingness to engage in such verbal and physical violence in the past was also highly relevant to whether he reasonably believed there was consent on the part of Ms Abbott [74]
The Court also upheld the trial judge’s admission of the evidence concerning the former intimate partner:
Although it is not a condition of admission that the tendency evidence have similarities with the conduct in issue, similarities can still have significance provided they are addressed in the manner Hughes requires. In this case, those similarities include that: both women were in an intimate relationship with the applicant which was breaking down; the applicant used aggressive behaviour in an effort to control each women; and threats were made to each woman and/or her family [79]
Headland v The King [2023] VSCA 269 (03 October 2023) – Victorian Court of Appeal
‘Interlocutory Appeal ’ – ‘ Aboriginal and Torres Strait Islander people’ – ‘History of domestic violence’ – ‘Admissions ’ – ‘ Victims as (alleged) perpetrators ’
Charges: Aggravated burglary x 1.
Proceedings: Application for leave to appeal interlocutory decision.
Facts: The Applicant was allegedly complicit in an aggravated burglary committed by her former partner and his accomplice ([6]–[7]). In her record of interview with police, the applicant admitted that she drove her partner (and his accomplice) to the victim’s home and did not protest her involvement in the plan ‘because she still loved’ her former partner [14].
Prior to the empanelment of a jury, the applicant sought the exclusion of admissions contained in the record of interview [2]. The applicant submitted that the truth of any admission made was ‘adversely affected’ by her illicit substance abuse and intoxication in the lead up to, and at the time of, the interview, her cognitive disfunction, Aboriginality and experience of domestic violence [24]. The judge refused this application.
Grounds of Appeal: The applicant appeals the decision via one ground:
1.
When exercising discretion under sections 85 and 90 of the Evidence Act, the judge failed to take into account the applicant’s status as an ‘Aboriginal woman who has been a victim of domestic abuse’ ([4]; [29]–[30])
Decision and Reasoning: Leave to appeal refused. The Court (Emerton P, Priest and Kennedy JJA) affirmed the trial judge’s conclusion that the truth of the admissions was not adversely affected by the circumstances in which the admissions were made [57].
In our opinion, there was nothing in the evidence in this case which would have justified a finding that the applicant was at a disadvantage or was vulnerable by reason of a lack of comprehension of English or for cultural reasons. English was her primary language, and there was nothing in the evidence which might have founded an inference that the applicant might have answered questions “in the way in which they think the questioner wants” [63]
Indeed, having viewed the record of interview ourselves, it is far from obvious to us that the applicant’s cognition is impaired, whether through alcohol consumption, drug use or fatigue (or a combination of factors)’ [71]
Skeates (A Pseudonym) v The King [2023] VSCA 226 (19 September 2023) – Victorian Court of Appeal
‘Appeal against sentence ’ – ‘ Threats’ – ‘Rape’ – ‘Beach of protection order ’ – ‘ History of family violence offending ’ – ‘ Manifest excess ’ – ‘ Gravity of offending ’ – ‘ Miscarriage ’ – ‘ Coercive control ’
Charges: Common assault x 5; intentionally cause injury x 5; recklessly cause injury x 1; threat to inflict serious injury x 1; rape x 1; persistent contravention of a family violence intervention order x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant pleaded guilty to 15 charges across two indictments. The charges concerned threats, various assault offences, rape and breaches of family violence intervention orders committed against four previous intimate partners between July 2016 and September 2019 ([8]–[41]). The applicant received a total effective sentence of 10 years’ imprisonment with a non-parole period of 7 years.
Grounds of Appeal: The applicant sought leave to appeal the sentence on the ground that the individual sentences imposed on the charges, and the orders for cumulation between charges and indictments, were manifestly excessive [3].
Decision and Reasoning: Leave to appeal dismissed. The Court (Emerton P, Niall and Taylor JJA) rejected the applicant’s submission that the gravity of his offending ought to be understood by separately measuring the ‘relatively limited physical consequences’ of his assaults [77].
It is incorrect to deconstruct the whole in an attempt to divorce each individual offence from its context. While the degree of physical injury sustained in each assault is relevant, the applicant’s offending must be understood in the context of his persistent perpetration of family violence. His behaviour towards each of the victims was degrading. He exhibited an alarming attitude of ownership and control. He created domestic environments in which there was an ongoing latent threat of physical violence if he was displeased. He was prepared to engage in physical and verbal violence in front of his children. He minimised the harm he caused to his partners. The learned sentencing judge’s characterisation of him as a “serial woman basher” and “a classic example of a perpetrator” was apt [77]
In doing so, the Court affirmed the sentencing judge’s emphasis on general and specific deterrence, along with community protection, ‘as being of primary significance’ in the sentencing determination:
The sentence imposed needed to carry heavy opprobrium of the applicant’s conduct, to both punish him adequately for it and deter him from such conduct in the future, as well as to signal to other family violence perpetrators that such behaviour will not be lightly regarded. Community protection is also a very important consideration, given the applicant’s apparent inability to learn — despite the intervention of the justice system on a number of occasions — that violent, controlling behaviour towards domestic partners will not be tolerated by the community [79]
The Court has “made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable”. The strength of the language used in these statements is not accidental. Family violence is contemptible. It warrants both condemnation and appropriate punishment. [59]
The Court also specified that the gravity of family violence offending is aggravated if ‘it breaches an extant FVIO [ie, prevention order] or is committed in front of children’ [59]. Further, the Court emphasised the multifarious nature of family violence, as constituting more than physical injury:
[T]he seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury. Family violence is now understood — and defined in law — to encompass behaviour that is physically, sexually, emotionally, psychologically and economically abusive or threatening or coercive, even if such behaviour does not constitute a criminal offence. That kind of behaviour produces situations where people disproportionately women, live in “real and justified fear of men who are, or were, their intimate partners”. It produces a domestic atmosphere steeped in dread. It robs victims of capacity and agency and also engenders shame. [61]
DPP v Cormick [2023] VSCA 186 (15 August 2023) – Victorian Court of Appeal
‘Application for leave to appeal on a question of law ’ – ‘ Beach of protection order ’ – ‘ Emotional and psychological abuse ’ – ‘ Protection order ’ – ‘ Mens rea ’
Charges: Persistent contravention of family violence intervention order x 1; contravention of a family violence intervention order x 4.
Proceedings: Application for leave to appeal on a question of Law.
Facts: The male respondent was subject to an interim protection order on 12 May 2021. The protected person was the respondent’s female former partner, with whom he shared a daughter. On 2 September 2021, the respondent was charged with several contraventions of the order. The alleged contraventions involved committing family violence against the protected person in the form of telephone calls and text messages which amounted to emotionally and psychologically abusive behaviour.
A Magistrate rejected the prosecution’s argument that the contraventions were strict liability offences and determined that the prosecution had been unable to prove the respondent’s intention to breach the order. The DPP unsuccessfully appealed the Magistrate’s decision.
Grounds of Appeal: An appeal was brought by the DPP on the following question of law:
1.
What is the correct relationship between the physical element and the fault element under section 123 of the Family Violence Protection Act 2008 (‘the Act’), and in particular, what is the correct relationship where the form of ‘family violence’ is the type described in section 5(1)(a)(ii) and section 7 of the Act?
Decision and Reasoning: Leave to appeal granted and appeal dismissed.
The majority accepted the DPP’s submission that the language of sections 5 and 7 of the Act separate the act (of family violence) from its consequences [70]. Accordingly, behaviour is abusive ‘because of its effect’ and not because it is intended to be so [70].
The majority (Emerton P and Osborn JA) held that there was nothing in the text of the relevant provisions, construed in the context of the Act as a whole and having regard to its purpose to support the implication of a specific intent to section 123. [77]
As a matter of fact, emotional or psychological abuse can occur without the perpetrator intending to intimidate, harass or offend. [82]
The Act seeks to address a pervasive social problem, the victims of which are vulnerable people caught in dysfunctional domestic arrangements. It therefore seeks to capture forms of abuse that, while subtle, are nonetheless pernicious. Tearing the buds off a rose bush at the family home might be regarded a trivial, but in the context of a family relationship that has broken down and a pronounced power imbalance (which might be based on physical strength or financial control or both), that act might well be perceived as menacing or “offensive”. It is notorious that those who are alleged to have committed family violence offer other reasons for their conduct. In many cases, it will be difficult to ascribe a particular or specific intention to an act which results in emotional or psychological abuse. [96]
The majority granted leave to appeal, but ultimately dismissed the appeal for two reasons:
1.
The prosecution should not be permitted to ‘rerun’ its case before the magistrate on a different basis from that which it contended at first instance (ie, that section 123(2) is a strict liability offence) [101]; and
2.
The order served on the respondent did not explain the extent of the order with respect to emotional and psychological abuse nor that it prohibited the ‘giving of offence whether intentionally or unintentionally’ [102] Justice Forrest agreed with the conclusions of the majority but favoured a construction of section 123(2) that incorporated an element of specific intent. His Honour considered the majority’s preferred construction to encourage ‘criminal prosecution for actions that by any sensible measure are harmless or benign’. [112]
Perry v King [2023] VSCA 218 (12 September 2023) – Victorian Court of Appeal
‘Appeal against sentence ’ – ‘ Manifestly excessive ’ – ‘ Physical violence and harm ’ – ‘ Attempted rape ’ – ‘ Common assault ’
Charges: Attempted rape x 1; common assault x 2; sexual assault x 1.
Proceedings: Application for leave to appeal sentence.
Facts: The male applicant received a sentence of 3 years and 9 months’ imprisonment, with a non-parole period of 2 years, after pleading guilty to offences perpetrated against his former female partner. The conduct constituting the charges included forcibly attempting vaginal penetration, punching the complainant in the face, non-consensually touching the complainant’s breasts and biting her arm ([6]–[9]).
Grounds of Appeal: The applicant sought leave to appeal the sentence on the ground that the sentences imposed, the orders for cumulation, the non-parole period and the total effective sentence were manifestly excessive [18].
Decision and Reasoning: Leave to appeal granted. The Court (Beach and Walker JJA) held that the sentences imposed on the charges concerning common assault and sexual assault were manifestly excessive.
The punch to the face, though ‘violent’, was outside the range reasonably open to the sentencing judge, bearing in mind the applicant’s ‘good prospects of rehabilitation, and his relative youthfulness’ [35]. Similarly, the act of touching the complainant’s breast was without force and concluded when the complainant articulated her lack of consent [37]. In this capacity, the applicant’s conduct was ‘at the low end of the spectrum’ of sexual assault offending [37]. Further, the act of biting the complainant’s arm was observed to be ‘minor in nature’ [38].
The Court, however, upheld the original sentence imposed on the offence of attempted rape:
The offence of attempted rape is an objectively serious offence … Sexual violence within an intimate partner relationship is a particularly insidious and degrading form of domestic violence. Denunciation of such behaviour plays an important role in sentencing for this offending. In that regard, we agree with the trial judge’s remarks to the effect that the sentence imposed for such offending must send a signal that all sexual exchanges must be consensual [28]
The total effective sentence was re-formulated to be 3 years and 3 months’ imprisonment with a non-parole period of 20 months [44].
Morey (a pseudonym) v The King [2023] VSCA 153 (23 June 2023) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Evidence’ – ‘Manifest excess’ – ‘Open to jury to convict’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual assault’ – ‘Significant probative value’ – ‘Strangulation’ – ‘Tendency evidence’ – ‘Theft’ – ‘Whether convictions were unreasonable and unsupported by evidence’ – ‘Whether probative value of tendency evidence substantially outweighed prejudicial effect’
Charges: Rape x 3; Common assault x 1; Theft of motor vehicle x 1.
Proceedings: Application for leave to appeal against both conviction and sentence.
Facts: Following conviction at trial the male applicant was sentenced to 12 years and 4 months, with a non-parole period of 8 years. The trial judge allowed the prosecution’s pre-trial application to adduce tendency evidence to demonstrate the applicant to engaged in a pattern of threats of violence to compel the complainant’s compliance. The prosecution’s pre-trial tendency notice (s97(1)(a) Evidence Act 2008 (Vic)) noted their intention to rely on the tendency of the applicant to:
•
Act in a particular way, namely:
(a)
To threaten to assault, or cause harm to [the complainant], if she did not comply with his demands.
(b)
To threaten to kill [the complainant], or members of her family, if she did not comply with his demands.
(c)
To assault [the complainant] in order to compel her to comply with his demands. [26]
•
Have a particular state of mind, namely:
(a)
A belief that [the complainant] would do as he demanded if he threatened to assault, or cause harm, to her.
(b)
A belief that [the complainant] would do as he demanded if he threatened to kill her or members of her family.
(c)
A belief that [the complainant] would do as he demanded if he assaulted, or caused harm to her. [27]
It was asserted that the ‘demands’ referred to included that the complainant not report his behaviour to police. [28]
Grounds:
Conviction
(1) The convictions are unreasonable or cannot be supported by the evidence; and (3) the judge erred in ruling the tendency evidence admissible, particularised as follows:
(a)
The judge erred in finding that the tendency evidence showed the applicant acted in a particular way that was significantly probative of the sexual offences on indictment.
(b)
The judge erred in finding that the tendency evidence showed the applicant had a particular state of mind that was significantly probative of the sexual offences on indictment.
(c)
The judge erred in finding that the 2017 threats of dumping the complainant in a shit dam was significantly probative of the offences of rape.
(d)
The judge erred in finding that the 2018 SMS messages of threats made by the applicant in the context of frustration regarding a friend’s marriage breakup were significantly probative of the offences of rape.
(e)
The judge erred in finding the 2017 and 2018 threats as not unfairly prejudicial.
(f)
The judge erred in finding the 2017 and 2018 threats was not a generalised assertion of general bad character.
(g)
The judge erred in finding the 2017 and 2018 threats was probative of committing the rapes with the requisite intent.
Sentence
1.
The judge erred in characterising of the objective gravity of his offending as ‘serious’;
2.
the judge erred in applying the standard sentencing regime;
3.
the judge erred in finding that offending in 2018 was a relevant sentencing consideration in respect of the rape charges; and
4.
the sentence is manifestly excessive.
Reasoning and decision: Leave to appeal granted, appeal was allowed on conviction ground 2 and the applicant’s conviction and sentences on charges 5 to 8 will be set aside, retrial ordered.
Beach JA, Forrest JA and Kaye JA refused leave to appeal on conviction ground 1.
Conviction ground 1: Nothing in the evidence relied upon by the applicant required the jury to have a reasonable doubt about the guilt of the applicant on charges 5, 6, 7 and 8 [24].
Conviction ground 3: The court held the prosecution tendency evidence ‘barely established the asserted tendency’ [47]. The court also identified that charges 5 to 8 did not involve any threat by the applicant [48]. It was held the tendency evidence had no probative value and had a prejudicial effect. It was therefore deemed inadmissible [50].
Sentencing: Due to the court’s decision on conviction ground 2, it was not necessary for the court to consider sentencing grounds 1-3. However, the court held that 18 months was for the theft of the complainant’s vehicle was manifestly excessive [54]. The sentence was reduced to 1 month of imprisonment [55].
Giudice v The King [2023] VSCA 105 (8 May 2023) – Victorian Court of Appeal
‘Adverse effect of imprisonment on mental health’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Damaging property’ – ‘Denunciation’ – ‘Deterrence’ – ‘Extensive criminal history’ – ‘Intentionally causing serious injury’ – ‘Just punishment’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Serious consequences for victims’ – ‘Strangulation’
Charges: Damaging property x 2; Intentionally causing serious injury x 1; Contravention of family violence intervention order x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The male offender entered his female former partner’s bedroom and repeatedly punched her in the face, stomach and head before strangling her until she could not breathe [3]-[5]. The offender then went to the victim’s parent’s home and damaged the complainant’s car. The offender pleaded guilty to charges of damaging property, intentionally causing serious injury and contravention of protection orders [10].
The offender had an extensive criminal history, commencing in 2011, including offences of violence against other women he had shared relationships with. The seriousness of offending had escalated, and the offender had persistently breached previous community correction orders.
The offender had suffered significant trauma throughout his life and had a diagnosis of borderline personality disorder, post-traumatic stress disorder and major depressive disorder [21].
In the County Court, Dean J held that the offender’s borderline personality disorder did not moderate his moral culpability, as he had not taken any steps to address his mental health despite numerous acts of serious violence since 2011 [18]. The offender was sentenced to 8 years, with a non-parole period of 5 years 6 months [10].
Grounds: The sentencing judge failed to give appropriate weight to the adverse effect of an excessive term of imprisonment on the applicant’s mental health, particularly given the offender’s history of self-harming in prison.
Decision and reasoning: Ferguson CJ, Emerton P and Osborn JA refused the application for leave to appeal.
A psychological report stated the offender required ongoing treatment, which he was receiving in prison. The report confirmed that the offender’s mental health was not being exacerbated in prison. The offender was free from stressors, such as alcohol, and was not self-harming [34]-[35].
It was held that Dean J appropriately balanced the requirement to protect the community from the offender per s 6D of the Sentencing Act 1991 and the adverse effects of imprisonment on the applicant’s mental health during sentencing [37].
Rowan (a pseudonym) v The King [2022] VSCA 236 (28 October 2022) – Victorian Court of Appeal
‘Appeal against conviction’ – ‘Battered wife syndrome’ – ‘Bestiality’ – ‘Common law duress’ – ‘Continuing or ever-present threats sufficient’ – ‘Criminal law’ – ‘Defence of duress’ – ‘Duress of circumstances’ – ‘Expert evidence’ – ‘Incest’ – ‘Indecent act with child under 16’ – ‘Inferred threat’ – ‘People with an intellectual disability’ – ‘People with mental illness’ – ‘Post-traumatic stress disorder’ – ‘Psychologist evidence’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual abuse’ – ‘Specific, overt threat’ – ‘Threat by implication’ – ‘Threat of physical and sexual abuse’ – ‘Victim as (alleged) perpetrator’
Note: a Crown special leave application to appeal to the High Court of Australia was granted on 16 June 2023 and the matter has been listed for hearing in October 2023. The Crown argues that the Court of Appeal “committed an error in principle by extending the law of duress as it applies to both common law and by operation of statute, to cover what is known as duress of circumstances”.
Charges: Incest x 11; indecent act with a child under 16 x 1.
Proceedings: Application for leave to appeal against conviction and sentence.
Facts: The applicant was convicted following trial of 11 counts of incest (s 44(1) and one count of indecent act with a child under 16 (s 47(1)) contrary to the Crimes Act 1958 (Vic). Her partner, JR, was the father of the two complainant daughters and had previously been convicted of sexual offences against them. At the applicant’s trial it was argued that JR had directed the applicant to commit the offences, and she had complied due to an ever-present threat of physical and sexual violence by JR if she did not do what he demanded of her. It was submitted that this constituted duress. The judge, however, ruled that this did not constitute duress, as duress required there to have been a specific or overt threat, not just an ever-present threat. Consequently, duress was not left to the jury and the applicant was convicted of the offences on the basis that she was present and encouraged the daughters to comply with his abuse.
The applicant and JR’s relationship commenced when the appellant was 18 years old. They lived on a rural property owned by JR’s father and had 4 children. The applicant had a mild intellectual disability and was financially and socially dependent on JR. There was evidence that JR was physically, emotionally and sexually violent to the applicant, he isolated her on the farm, was highly controlling of her movements and had a bad temper. The prosecution accepted that JR’s violence towards the applicant was ‘severe’ [57]. It was reported that the applicant had tried to leave in the past but had returned because she ‘would struggle with the kids’ and that she had not reported the violence to the police because ‘noone would believe her because she was nothing.’ [107] A psychologist gave evidence that the applicant suffered from learned helplessness and low self-esteem characteristic of ‘battered women’s syndrome’, a subset of post-traumatic stress disorder. The applicant’s counsel submitted that ‘JR’s conduct created and maintained a serious, standing threat of significant, ongoing harm, namely, angry subjection to the domineering, violent, rape-embracing regime of life imposed by a brute upon a traumatised, vulnerable person. Under that regime, refusal was said to always have its consequences and this had the effect of overbearing the applicant’s will so that she always submitted to the will of JR.’ [132]
Grounds: The trial judge erred in ruling that the defence of duress was not open on the evidence and thereby caused a substantial miscarriage of justice.
Decision and Reasoning: Leave to appeal granted; appeal against conviction upheld; new trial ordered; unnecessary to consider appeal against sentence.
Kyrou & McLeish JJA:
Their Honours found there was ‘considerable overlap’ in the elements of each form of the defence [188].
They made the following remarks regarding element (i) of common law duress in the context of the case:
[155] We accept that no previous case has expressly accepted the proposition that a continuing or ever present threat — whether overt or tacit — as distinct from a specific, overt threat, is sufficient. However, no case has expressly considered that proposition and rejected it. …. Further, the analysis of the Full Court of the Supreme Court of South Australia in Runjanjic [(1992) 56 SASR 114] is consistent with the proposition that a continuing or ever present threat may be sufficient.
[156] In our opinion, a continuing or ever present threat which is subsisting at the time an accused committed the charged offence can suffice if, in all other respects, the defence of duress can be made out. We cannot think of any reason in principle or policy that requires exclusion of a continuing or ever present threat where, due to the threat, the accused has lost his or her freedom to choose to refrain from committing the charged offence. In this context, it is relevant to note the additional limiting factors identified in element (iii) [common law duress above] which requires that the threat be present and continuing, imminent and impending at the time each offence is committed.
[169] Having regard to the above features of the relationship between JR and the applicant … it would have been open to the jury to conclude that it was reasonably possible that the applicant understood that there was a continuing or ever present threat of physical and sexual violence (including rape) by JR if she did not do what he demanded of her. If the jury reached this conclusion, it would have been open to them to find that it was reasonably possible that, when JR requested the applicant to be involved in each of the sexual offences against the complainants, she understood that, if she did not comply, he would physically and sexually harm her, including by raping her.
[174] We are also of the opinion that it is not fatal in this case that there is no direct evidence that JR told the applicant shortly prior to each offence that, unless she performed the acts that constitute each of the charged offences, he would physically and sexually abuse her. That is because it would be open to the jury to infer that this was a reasonable possibility based upon the history of the relationship between JR and the applicant as set out in the …[evidence].
Their Honours made the following remarks regarding element (ii) of common law duress in the context of the case:
[180] A person of ‘ordinary firmness of mind’ in the present case would be a female domestic partner of JR who was of the applicant’s age and who has lived with JR in the same circumstances as the applicant and has endured the physical and sexual abuse that she has experienced. That person would also have the same isolated lifestyle as the applicant and possess her knowledge of JR’s personality and behaviour. However, that person would not have the applicant’s history of sexual abuse as an adolescent or her mild intellectual disability.
There was evidence that the AR suffered ‘battered woman syndrome’:
[181] In our opinion, upon the basis of the [evidence], it would have been open to the jury to conclude that there was a reasonable possibility that a person of ordinary firmness of mind having the characteristics described… above would have been likely to:
(a)
develop a battered woman syndrome with the consequence of learned helplessness, and yield to JR’s continuing or ever present threat in the way the applicant did; and
(b)
not seek to escape the situation.
Their Honours then briefly considered elements (iv), (v), (vii) and (viii) of Common Law duress in turn but did not consider element (vi) because the accused was not charged with murder, or any other crime excepted from common law duress:
[184] In relation to element (iv), the jury could find that there was a reasonable possibility that the applicant reasonably apprehended that the threat would be carried out based upon JR’s history of punishing her if she sought to disobey him.
[185] In relation to element (v), the jury could find that there was a reasonable possibility that the applicant was induced by the continuing or ever present threat to commit the charged offences based upon our previous analysis regarding her will being overborne by that threat.
[186] In relation to element (vii), the jury could find that there was a reasonable possibility that the applicant did not, by fault on her part when free from the duress, expose herself to its application. That is because the threat was a continuing or ever present threat and the jury could conclude that there was a reasonable possibility that the applicant was not free of the threat at any time during the period of the offending.
[187] In relation to element (viii), the jury could find that there was a reasonable possibility that the applicant did not have the means, with safety to herself, of preventing the execution of the threat. That is because the jury could conclude that there was a reasonable possibility that the applicant’s battered woman syndrome rendered her incapable of escaping from her abusive relationship with JR.
McLeish JA agreed with the reasons given by Kyrou and Niall JJA in respect of elements of the defence of duress’ both under common law and under 32O.’ [228] McLeish JA also observed:
[208] It is not necessary that the threat which underpins a defence of duress be the subject of direct evidence of the accused. There is no reason in principle why the requisite threat might not be found by a process of inference from other evidence. That inference may, in principle, be drawn from evidence about an ongoing course of conduct. The threat may also be conveyed to the accused by implication rather than express words. Naturally, the defence may very well be weaker in the absence of direct evidence from the accused; but that is not the only way it may be raised.
Shiryar v The Queen [2022] VSCA 96 (25 May 2022) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Attempt to pervert course of justice’ – ‘Extensive criminal history’ – ‘History of domestic and family violence’ – ‘Manifest excess’ – ‘People with mental illness’ – ‘Persistent contravention of protection order’ – ‘Separation’ – ‘Stalking’ – ‘Threat to kill’ – ‘Use of third party’
Charges: 1 x attempting to pervert the course of justice; 1 x persistently contravening a family violence intervention order.
Case type: Application for leave to appeal.
Facts: The applicant pleaded guilty to one charge of attempting to pervert the course of justice and one charge of persistently contravening a family violence intervention order. These offences were committed whilst the applicant was on remand for separate charges (to which he also pleaded guilty): two charges of criminal damage, one charge of stalking, one charge of making a threat to kill, and two charges of committing an indictable offence while on bail. The charge of stalking related to the applicant’s former partner, ES. The charge of making a threat to kill related to her father.
The applicant’s relationship with ES ended shortly before the offending. An interim family violence intervention order was made against the applicant. Whilst on remand for the initial offending, the applicant instructed someone to phone ES to ask that she and her father drop the charges against him, and to tell her that if the charges were dropped, he would give her a car that had been the subject of a dispute between him and her family. The sentencing judge imposed a head sentence of 2 years and 6 months imprisonment for attempting to pervert the course of justice.
Issue: Whether the sentence was manifestly excessive?
Held: The Court refused leave to appeal. The applicant had an extensive criminal history, which predominately involved contravening family violence intervention orders and breaching bail. The sentencing judge viewed the applicant’s convictions on the initial offending as relevant to the present offending, because the present offending occurred shortly after the applicant was remanded in custody and informed the applicant’s prospects of rehabilitation ([19]). The sentencing judge took into account, inter alia, the applicant’s early guilty plea, mental health difficulties, apparent insight into the offending and support from his family. The offending was described as “premeditated, repeated and persistent, involved enlisting others, and employed veiled threats and inducements” ([25]).
The Court of Appeal found that any attempt to pervert the course of justice is to be denounced, and that, within a family violence context, it is a very serious matter ([38]).
Frecker v The Queen [2021] VSCA 331 (2 December 2021) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Common assault’ – ‘Following, harassing and monitoring’ – ‘No prior convictions’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Sentencing appeal’
Charges: Common law assault x 2, intentionally damage property x 1, intentionally cause serious injury x 1, persistent contravention of family violence intervention order x 1.
Proceedings: Appeal against sentence.
Facts: The 23-year-old appellant received a sentence of 6 years’ imprisonment with a non-parole period of 3 years and 8 months, and a 2-year alcohol exclusion order after pleading guilty to offences perpetrated against two of his former female partners. The appellant repeatedly punched and pushed each victim on several occasions, often after consuming alcohol [7]-[11]. On one occasion, the appellant repeatedly punched the second victim’s face and neck, which fractured her jaw and seriously injured her left eye [12]-[26]. The appellant persistently contravened a protection order by repeatedly contacting the second victim while she was in hospital, and parking near her house ([28-35]). The appellant had been diagnosed with depression, anxiety and alcohol use disorder, had no prior criminal history, was employed and supported by his family [42]-[45].
Grounds:
The sentencing judge erred in failing to consider:
1.
As a form of additional punishment, the alcohol exclusion order imposed upon the appellant.
2.
The appellant’s youth at the time of the offending.
Decision and Reasoning: Appeal dismissed.
Kyrou and T Forrest JJA dismissed both grounds of appeal. ‘[T]he judge did not err by failing to explain in his sentencing remarks how any punitive elements of the AEO informed the exercise of his sentencing discretion… because defence counsel did not submit that the AEO had an additional punitive impact upon the appellant which warranted discrete moderation in his sentence’ [76]. Furthermore, the j sentencing judge remarked on the applicant’s youthfulness as a relevant sentencing consideration, especially in relation to his ‘very positive’ prospects of rehabilitation [92]while noting the appellant was at the ‘upper end of youthfulness’, and his offending was of a ‘particularly egregious nature’ such that the judge appropriately gave more weight to the sentencing considerations of community protection, denunciation, specific deterrence and just punishment [94]).
Dunford v The Queen [2021] VSCA 304 (9 November 2021) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Attempt to control using extended family’ – ‘Coercive control’ – ‘Controlling behaviour’ – ‘Covid 19 pandemic’ – ‘Exposing children to domestic and family violence’ – ‘History of drug and alcohol abuse’ – ‘Past domestic and family violence’ – ‘People with mental illness’ – ‘Step-child’ – ‘Strangulation’ – ‘Threats to kill’
Charges: intentionally cause injury x 1; false imprisonment x 2; make threat to kill x 1.
Proceedings: appeal against sentence.
Facts: The applicant pleaded guilty to the charges and received a total effective sentence of 4 years and 9 months ([1]). The sentencing judge reduced the applicant’s sentence by 9 months due to his guilty plea because it showed remorse and saved the Court’s time ([19]-[20]).
The female victim and male applicant did not reside together. In January 2020, the applicant assaulted the victim in the presence of her nine-year old daughter The applicant punched, kicked and strangled the victim, threatening to kill her or her daughter whenever they attempted to leave, for approximately 2.5 hours ([3]-[6]). While in custody, the applicant told family members to persuade the victim not to cooperate with police and to accuse her of ‘just keeping him away from the kids’ ([12]). The applicant suffered from a mental health condition and had a history of alcohol abuse ([16]-[17]) and family violence offending([15]).
Grounds: The individual sentences, orders for cumulation, total effective sentence and non-parole period were each manifestly excessive.
Decision and Reasoning: Beach JA dismissed the appeal ([45]). His Honour affirmed her Honour’s description of the applicant’s behaviour as ‘a protracted ordeal of violence… threats and control… that did not cease upon the applicant being remanded into custody’ ([25]). His Honour accepted that the applicant’s plea of guilty during the COVID-19 pandemic entitled him to a ‘more pronounced amelioration of sentence’ as in Worboyes v The Queen [2021] VSCA 169 (18 June 2021) ([43]). Honour found that the individual sentences could only be described as ‘modest’ ([38]), and the non-parole period as ‘very moderate’ ([39]), due to the objective seriousness of each offence. In his Honour’s view, ‘[t]he imprisoning of the victim and her daughter, resulting in the victim’s daughter witnessing the acts of violence perpetrated by the applicant against her mother, was undoubtedly very serious offending. Any submission to the contrary is not reasonably arguable.’ ([38]).
Newton v The Queen [2021] VSCA 207 (29 July 2021) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Breach of protection order’ – ‘Exposing children to domestic and family violence’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘People affected by substance abuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Sentencing appeal’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Verdins principles’
Charges: Persistent contravention of a family violence safety notice, aggravated burglary, intentionally causing injury x 2, making threat to kill, damage property, making threat to inflict serious injury.
Proceedings: Appeal against sentence.
Grounds:
1.
The orders for cumulation breached the principle of totality and produced a total effective sentence that was manifestly excessive.
2.
The learned sentencing judge was wrong not to find that:
(a)
The Appellant’s anti-social personality disorder and clinical depression meant his sentence of imprisonment would weigh more heavily on him compared to a person in normal health; and
(b)
Imprisonment would have a significant adverse effect on the Appellant’s mental health [5].
Facts: The 35-year-old male appellant received a sentence of 9 years imprisonment, with a non-parole period of 6 years and 4 months, after pleading guilty to offences perpetrated against his 28-year-old former female partner. The couple had been in a ‘volatile’ relationship for three years, and shared a 2-year-old son [6]. The appellant made threats to kill or injure the victim via text for several days before forcing entry into her home. Armed with a kitchen knife, the appellant made several ‘chilling’ threats to kill the victim, before punching, strangling, and eventually pushing her head through a plaster wall. The appellant’s conduct constituted persistent breaches of a family violence safety notice and occurred in the presence of a child [6]. The applicant had a ‘significant criminal record’, and had been diagnosed with a substance abuse disorder, depression, anxiety, and mild psychosis [9],[12]. The appellant identified as Aboriginal [11].
Decision and Reasoning: Appeal allowed, appellant resentenced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment. The appellant’s psychological assessment stated that R v Verdins [2007] VSCA 102 ‘may’ apply [43] and on this basis, the appellant’s legal counsel had not raised Verdins at the plea hearing. Niall JJA (Priest JA concurring) found that this reasoning, which was incorrect, had led the sentencing Judge into a specific error that vitiated the sentence [46]. His Honour stated that ‘whether any of the Verdins principles’ apply ‘to mitigate sentence’ is ‘a matter for the judge to determine on the basis of the evidence’ [44].
In resentencing, Their Honours found that psychological evidence of the appellant’s ‘impaired mental functioning and his deprived and violent upbringing’ reduced his moral culpability and required consideration of whether incarceration would be more onerous [31]. The appellant’s substance abuse severely compromised his judgment and capacity to control his behaviour [27] and was caused by ‘childhood trauma’, which had also impacted on his ‘development of empathy and distinction between right and wrong’ [28], and had arisen ‘through no fault of his own’ [61]. Their Honour’s noted that the appellant’s conduct had ‘escalated over a number of days, giving him an opportunity to desist which he failed to take’. However, it was accepted that the appellant’s ability to regulate his behaviour was significantly impaired [60].
Baker (a pseudonym) v The Queen [2021] VSCA 158 (9 June 2021) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Attempt to pervert the court of justice’ – ‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Intellectual impairment’ – ‘Manifest excess’ – ‘People affected by drugs or alcohol’ – ‘People affected by trauma’ – ‘People with illness or impairment’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Threat of image abuse’ – ‘Threat of suicide’
Proceedings: Application for leave to appeal against sentence.
Facts: The male applicant pleaded guilty to 14 charges arising out of abuse of his female domestic partner over a period of 18 months. He sought leave to appeal in relation to charges 5, causing injury recklessly, and 8, attempting to pervert the course of justice.
Charge 5 related to causing injury by pushing the victim’s face into a pot of boiling water, following which he did not call an ambulance and instructed the victim to conceal his role in her injuries and return home the same day, not remaining in hospital for treatment. There was dispute as to whether permanent injury was caused. The offending was in breach of a protection order, occurred after earlier offending against the same victim and when the applicant had only just been released from prison. Charge 8 related to sending a large number of text messages to the victim demanding the withdrawal of charges against him, threatening variously to keep their stillborn child’s ashes and urn from her, distribute intimate images of her and commit suicide stating it would be her fault if he did so.
The applicant had a history of prior violent offending (having only just been released from jail) including against the victim, had intellectual impairment, a traumatic upbringing and was abusing methylamphetamine at the time of the offending. It took place in the context of a history of violence, manipulation and coercion against the victim and sought to exploit her emotional and psychological vulnerability by threatening her ability to access the ashes of her stillborn child and also threatening her dignity and right to privacy with the exposure of intimate images.
Grounds:
Ground 1: The sentence imposed on indictment charge 5 is manifestly excessive in all the circumstances.
Ground 2: The sentence imposed on indictment charge 8 is manifestly excessive in all the circumstances.
Ground 3: The cumulation order fixed in respect of charge 8 is manifestly excessive in all the circumstances.
Held: leave to appeal refused.
Ground 1: The court held that notwithstanding the mitigating factors raised by the applicant which ought to be taken into account, this was horrific violence inflicted on a woman by her domestic partner in her own home. The offending was at the upper end of the range with a maximum penalty of 5 years imprisonment, and 3 years was within the appropriate range:
In all the circumstances, the infliction of such horrific violence against a woman at the hands of her domestic partner in their own home called for denunciation, just punishment and general deterrence, especially in the context of persistent defiance of a family violence intervention order and bearing in mind the applicant’s criminal history. In that context, specific deterrence also remained a relevant consideration. We accept that the mitigating features to which the applicant referred were matters of weight that fell to be taken into account, as we have discussed. However, even when that is done, we are unable to conclude that the sentence was outside the range available to the sentencing judge. To the contrary, bearing in mind that this was an offence at the upper end of the range, punishable by a maximum term of 5 years’ imprisonment, a sentence of 3 years on a guilty plea was well open. [32]
Ground 2: While at the lower end of the scale for attempting to pervert the course of justice, any attempt to pervert the course of justice is serious and should be denounced. The offending occurred in the context of violence, manipulation and coercion of the victim, with “especially unpleasant features of seeking to exploit Ms Anderson’s emotional and psychological vulnerability by threatening her ability to access the ashes of her stillborn child and also threatening her dignity and right to privacy with the exposure of intimate images.” [36]
Ground 3: The applicant’s submission that accumulation of 12 months of the charge 8 sentence on the balance of the sentences failed to accord with the principles of totality and was therefore manifestly excessive was dismissed:
An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation…[37]
Charge 8 involved repeated attempts by the applicant to conceal his wrongdoing over the previous 18 months, by means of emotional and physical threats directed at Ms Anderson. It was distinct offending that called for significant additional punishment. [40]
Mercer (a pseudonym) v The Queen [2021] VSCA 132 (14 May 2021) – Victorian Court of Appeal
‘Application for extension of time within which to file application for leave to appeal against conviction and sentence’ – ‘Attempting to pervert the course of justice’ – ‘Coercive control’ – ‘Emotional and psychological abuse’ – ‘False imprisonment’
Charges: False imprisonment x 1; Attempt to pervert the course of justice x 1; Persistent contravention of a family violence intervention order (FVIO) x 1.
Proceedings: Application for extension of time within which to file application for leave to appeal against conviction and sentence.
Facts: The male applicant was charged with 5 offences against his de facto female partner (the complainant). The applicant instructed her to drop the charges over telephone calls while remanded in custody. At trial, she gave evidence unfavourable to the prosecution case, recanting statements previously made to police, and giving evidence that the applicant had neither imprisoned nor assaulted her. The judge gave the prosecution leave to cross-examine the complainant about prior inconsistent statements she had made and in relation to her evidence on charges 1-4. The applicant was sentenced to a total effective sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 9 months.
Grounds of appeal:
1.
The trial judge should not have given any direction on incriminating conduct as: (a) The prosecutor did not rely on the relevant phone calls as incriminating conduct in his final address; and (b) Using phone calls as evidence of incriminating conduct involved the jury engaging in impermissible ‘bootstraps’ reasoning.
2.
The sentence imposed on the charge of attempting to pervert the course of justice, the total effective sentence and the non-parole period was manifestly excessive.
Held: Application for extension of time within which to file application for leave to appeal against conviction and sentence dismissed.
Re conviction:
Re Ground 1(a), it was difficult to see how there was any miscarriage of justice in the judge giving a direction under s 21. If defence counsel had raised the prosecutor’s failure to address the incriminating conduct, the judge would have granted the prosecutor leave to address the jury further and given the same direction.
Re Ground 1(b), it was well open to the jury to conclude beyond reasonable doubt that the applicant was attempting to persuade the complainant to lie in the relevant phone conversations. There was no issue that the applicant told the complainant:
•
she should tell the police that she was not in her right state of mind when she made the allegations and that she wished to drop the charges;
•
he would pay for a lawyer to make a statutory declaration for her, in which she would state that she was not in her right mind when she made her statement and could not remember making the allegations against him; and
•
she should not talk on the phone about him assaulting her, as the calls between them were being recorded.
These words were not neutral as to the applicant’s guilt or otherwise of the offending. Nothing he said suggested that the complainant’s allegations were false or that the alleged events had not taken place. On the contrary, it was open to the jury to view the statements as demonstrating his belief that he was guilty.
Re sentence:
The court made the following observations relevant to coercive control at [65]:
In our view, the applicant’s persistent and cynical assertion of control over the complainant, and his exploitation of her known vulnerabilities, made this case just as serious as if there had been explicit threats or actual violence. The transcripts of the calls make plain his exertion of coercive psychological pressure on her, encouraging her to think that they can ‘work things out’ between them and asking questions like ‘Do you want me to get out or not?’ The fact that the conduct about which he was asking her to lie involved his own criminal violence against her was a further aggravating feature. In our view, the applicant’s moral culpability for this offence was high.
The sentence could not be said to be manifestly excessive including in light of: the applicant’s high moral culpability, not guilty plea, seriousness of the offending, significant prior criminal history, and the importance of general and specific deterrence.
Re delay:
The lack of an adequate explanation for months of delay was unsatisfactory. It provided further basis upon which to refuse the extension of time applications.
Hardwick (a pseudonym) v The Queen [2021] VSCA 67 (19 March 2021) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Common assault’ – ‘False imprisonment’ – ‘Manifest excess’ – ‘Protection order’ – ‘Separation’ – ‘Threat to kill’
Charges: False imprisonment x 1; Common assault x 1; Aggravated burglary x 1; Making a threat to kill x 1.
Proceedings: Appeal against sentence.
Facts: The appellant man pleaded guilty to offences committed against his wife following their separation. The appellant waited until she returned home, restrained her (including using cable ties), prevented her from escaping, and threatened to kill her. The wife managed to escape. The appellant pleaded guilty and was sentenced to a total effective sentence of 4 years and 6 months’ imprisonment, with a 3 year non-parole period. He had also breached an order protecting his wife on numerous previous occasions.
Grounds of appeal: The sentence was manifestly excessive.
Held: Appeal was dismissed but noting that the sentence was “very stern” and “at the uppermost extremity of the appropriate range.”
The sentence for the aggravated burglary charge was not manifestly excessive. Previous decisions reinforced “the seriousness with which the courts view aggravated burglaries” and identify typical matters that might aggravate a particular instance of the offence. While the offending was not “an act of extreme domestic violence,” as characterised by the sentencing judge, overall the offending was serious. The sentencing judge was entitled to have significant reservations regarding the appellant’s remorse and insight which underpinned the importance of specific deterrence. General deterrence was also important in the context of family violence.
The sentences for false imprisonment and threat to kill were also not manifestly excessive. In particular, “[t]he false imprisonment extended over a period of time and involved physical restraint. The imprisonment in her own home, in the context of family violence would have been extremely distressing to the victim. It deserves powerful denunciation. Equally, the threat to kill was serious. The threat was made in circumstances where the appellant told his victim that he was concealing things ‘that you don’t want to see’. The whole incident did not have an obvious end point and the appellant’s behaviour would have instilled a substantial sense of dread and fear.” The degree of cumulation was also not manifestly excessive.
Packard (a pseudonym) v The Queen [2021] VSCA 56 (15 March 2021) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Forgiveness of victim’ – ‘Intentionally cause serious injury’ – ‘Lack of history of domestic violence’ – ‘Listening to Victims’ – ‘Mercy’ – ‘Separation’ – ‘Weapons and threats to kill’
Charges: Intentionally causing serious injury x 1.
Proceedings: Application for leave to appeal against sentence.
Facts: The male applicant pleaded guilty to stabbing his wife 5 times. There was no prior history of domestic and family violence. He was sentenced to a total effective sentence of 7 years’ imprisonment, with a non-parole period of 4 years and 6 months.
Grounds of appeal:
1.
The sentencing judge erred in failing to take into account the victim’s full recovery.
2.
The sentencing judge erred in treating the victim’s forgiveness with extreme caution, and having regard to it only insofar as it boded well for the applicant’s rehabilitation, rather than also taking it into account in assessing the impact upon the victim and in considering the application of the principle of mercy. In particular:
(a)
Her Honour took into account irrelevant considerations namely forgiveness of a victim is often attributable to a pattern of behaviour on the part of perpetrators of family violence and her family had “persuaded” her to forgive the applicant.
(b)
Her Honour failed to take into account relevant considerations which indicated that the victim’s forgiveness was genuine/informed.
(c)
Her Honour’s conclusion was not reasonable open.
(d)
The applicant was denied procedural fairness.
3.
The sentence was manifestly excessive in light of all the relevant matters, including that the applicant called emergency services, his confessions, his very early guilty plea, his lack of relevant prior convictions, his lack of history of violence, and the fact that he was of no risk of reoffending.
Held: Application for leave to appeal dismissed.
Ground 1: It was fortunate that the victim had made a good physical and emotional recovery but this did not negate that this was a serious example of the offence causing serious injury. The applicant’s moral culpability was also high.
Ground 2: Counsel for the applicant was plainly on notice that the judge was minded to apply the principles regarding victims’ forgiveness stated by Neave JA in R v Hester at [27]. It was not open to argue he was denied procedural fairness.
It could not be reasonably maintained that the judge erred in failing to extend “mercy” to the applicant. This was a serious instance of intentionally causing serious injury, noting “[i]t would be most difficult to comprehend how mercy can be properly extended in a case in which a man has overpowered his wife in her home, and proceeded to violently stab her five times with a knife, thereby penetrating her vital organs and putting her life at risk” at [45].
While it seemed the sentencing judge incorrectly inferred that the victim had been persuaded by male family members to express forgiveness (with reference to Hester), that observation “could not materially have affected the question whether her Honour should have extended mercy to the applicant.” Further, the judge correctly took into account the relevance of the victim’s forgiveness to motivating the applicant’s rehabilitation.
Ground 3: Without the compelling mitigating circumstances present in this case, the sentence would have been properly characterised as lenient. Accordingly, the sentence appropriately reflected the mitigating factors referred to by the applicant. In light of the gravity of the offending, and the importance of general deterrence and denunciation, the sentence could not be said to be manifestly excessive: [53]-[57].
Edwards v The Queen [2020] VSCA 339 (23 December 2020) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against sentence’ – ‘Dysfunctional upbringing’ – ‘Female perpetrator’ – ‘Guilty plea’ – ‘History of domestic and family violence’ – ‘Manslaughter’ – ‘Moral culpability’ – ‘People affected by substance misuse’ – ‘Victim as (alleged) perpetrator’
Charges: Manslaughter x 1.
Proceedings: Appeal against sentence.
Facts: The applicant woman stabbed the male victim, her partner for just over 12 months, in the neck and he died of the injuries inflicted. The applicant pleaded guilty to one charge of manslaughter and was sentenced to 9 years’ imprisonment, with a non-parole period of 6 years and 9 months: R v Edwards [2019] VSC 234 (12 April 2019).
Grounds of appeal:
1.
The sentencing judge erred in finding that her moral culpability was not lessened in any way by the violence perpetrated upon her.
2.
The sentencing judge erred in finding that her moral culpability was high notwithstanding her severely disadvantaged background.
3.
The sentence was manifestly excessive.
Held: The appeal was refused.
Ground 1: The sentencing judge’s finding of moral culpability was open on the evidence for the reasons she gave. This included evidence that the applicant and victim had been violent towards each other, but with the applicant as most often the aggressor; the offending took place in the context of heavy methamphetamine use; and the applicant had a traumatic childhood, and a history of controlling and abusive relationships. Had there been evidence of a causal link between the applicant’s stabbing of the victim and his acts of violence towards her, the sentencing considerations may have been quite different (at [15]-[23]).
Ground 2: It was well open to the sentencing judge to find that notwithstanding the applicant’s severely disadvantaged background her moral culpability remained high. The applicant’s offending was heavily influenced by her drug use at the relevant time (at [24]-[27]). It was also not open for the applicant to contend that her moral culpability was lessened as her offending was causally linked to her drug use. She had expressly disavowed such a causal link on the plea and the submission was not supported by the authorities (which instead related to instances where a person commits an offence to satisfy a drug addiction, relevant to moral culpability and rehabilitation) ([28]-[32]).
Ground 3: The sentence could not be said to be manifestly excessive. The sentencing judge gave proper consideration to all relevant features of the offending and the offender. After finding that high moral culpability was established, it was not reasonably arguable that the sentence was outside the range open to the sentencing judge given the objective seriousness of the offending (“planned and deliberate”), the maximum penalty for manslaughter, and the weight to be given to the sentencing purposes identified by the sentencing judge (particularly “just punishment, denunciation…and general deterrence”) ([33]-[39]).
Shau v The Queen [2020] VSCA 252 (25 September 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘No history of domestic violence’ – ‘People who are pregnant’
Charges: Recklessly causing injury x 1; Reckless conduct endangering life x 1.
Proceedings: Appeal against sentence.
Facts: The appellant man punched, kicked and stomped on his pregnant wife. The attack started in a car, which his wife was driving, and ended up at a service station.
[18] Footage captured on CCTV at the service station depicts the appellant grabbing and dragging Lee by the hair on at least two occasions; punching and striking her with his hands and fists, mostly in the region of her head, on at least seven occasions; and kicking and stomping her to the head, neck, shoulder and torso region on at least 19 occasions. Lee curled up into a ball to protect her unborn child and raised her hands to protect her face.
The wife suffered extensive injuries. The appellant then drove his car at speed into the service station where his wife had sought shelter, smashing through the wall and wedging the vehicle inside the store. That conduct endangered the life of the service station attendant who had locked the doors of the shop to prevent the appellant from coming in after his wife. The victim gave evidence that there had been ‘no earlier instances of domestic violence’ and that the appellant was ‘drunk at the time of the offending’.
Issues: (1) Whether the sentence is manifestly excessive.
Decision and reasoning: Appeal dismissed.
Aggravating factors considered by the sentencing judge included that:
[32] … the offending occurred in the context of domestic violence …
[the victim] was five months’ pregnant at the time …
It was a lengthy, repetitive and violent bashing of a woman who was considerably smaller and of much lesser strength than you …
You must have been aware of the likelihood of injury to her …
You must have been aware that she would be terrified as a consequence of your attack upon her and terrified of the serious risk of injury to her and to her unborn child.
Priest JA referred to his own comments in granting the application for leave to appeal observing that the seriousness of the offence in this case ‘is not only to be gauged by the injuries caused, but also the manner of their infliction (in this case a protracted and very violent assault on a vulnerable victim)’.
Niall JA observed:
[46] Compounding, to a significant degree, the seriousness of the offence is the fact that it occurred within the context of a family relationship. That fact had two relevant consequences. First, it meant that the offending arose in a relationship of trust. Lee was five months’ pregnant and ought to have enjoyed protection and care from her husband. The breach of trust necessarily made the offending more serious.
[47] Next, the courts must respond to the blight of family violence by imposing punishment that denounces the conduct and adequately addresses general deterrence. Unlike in many cases, there was no basis in the evidence to suggest that there had been earlier incidents of violence. In her evidence, Lee said that the appellant had never assaulted her before. For that reason, the conduct was, on the evidence, an aberration. Lee expressed support for her husband on the plea. However, there remains a very high public interest in punishing family violence, both for its denunciatory and deterrent effect, even where the victim seeks leniency and incarceration would place great pressure on the domestic relationship.
…
[50] Accommodating all of the relevant factors, both aggravating and moderating the sentence, may result in a sentence that represents a high proportion of the maximum, even on a plea of guilty.
Hardwick (a pseudonym) v The Queen [2020] VSCA 227 (7 September 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘False imprisonment’ – ‘History of domestic and family violence’ – ‘Manifestly excessive’ – ‘Separation’ – ‘Strangulation’ – ‘Technology-facilitated abuse’ – ‘Threats to kill’
Charges: False imprisonment x 1; Common assault x 1; Aggravated burglary x 1; Making threats to kill x 1.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant man, who was subject to a protection order, entered the marital home and repositioned the CCTV cameras away from the house. When his female former partner (the victim) came home, he grabbed and restrained her, putting her in a headlock, then pinning her to the ground. The applicant tried to tape the victim’s mouth with duct tape and bound her hands with cable ties before forcing her inside the house. The applicant locked the door and bound the victim’s feet with cable ties. The applicant threatened to kill her. When one of the children arrived at the house, the victim was able to escape from the house. A neighbour called the police.
Grounds: (3) Whether the sentence was manifestly excessive.
Decision and reasoning: Leave to appeal granted for Ground 3.
[55] Coincidentally, on the very day that this application was argued before me, this Court delivered judgment in Hill v The Queen. That case concerned a home invasion by a woman who had been left by her former partner. She armed herself with a knife, forced her way into the house, and stabbed both her former partner and his new girlfriend. She faced charges not only of aggravated burglary, but also two counts of intentionally causing injury. The offending seemed to have been premeditated, and was described by the judge as ‘grievance driven’ and ‘purposeful’. The total effective sentence is 6 years and 3 months, with a non-parole period of 3 years and 6 months. In effect, the motive for the applicant’s conduct in was anger at abandonment, and animosity towards her husband’s new partner.
…
[57] It is noteworthy that the offender in Hill received a non-parole period which was only 6 months greater than that fixed for the applicant. That minimal disparity, of itself, raises a question in my mind as to whether he was treated in accordance with current sentencing practice. It is of some interest to note that the sentencing judge in Hill was the same judge who sentenced the applicant in the present matter. I recognise, of course, that this Court described the sentences imposed in Hill as ‘moderate’, as indeed they were. Be that as it may, I regard the offending in Hill as far more serious than that in the present case.
Hill v The Queen [2020] VSCA 220 (3 September 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Appeal against sentence’ – ‘Causing injury intentionally’ – ‘Female perpetrator’ – ‘Home invasion’ – ‘Separation’ – ‘Threats to kill’ – ‘Weapon’
Charges: Threat to kill x 1; Aggravated burglary x 1; Causing injury intentionally x 2.
Proceedings: Application for leave to appeal against sentence.
Facts: The applicant and her husband separated seven months earlier, when the husband formed a relationship with his new partner. The applicant regularly accused her former partner of infidelity and made disparaging comments about his new partner. The applicant occasionally made threats about killing her former partner and his new partner to the applicant’s daughter, but the daughter did not take these seriously. On 19 October 2017, the applicant assaulted her daughter. The applicant was charged with assault and a protection order was taken out against her to protect her daughter. On the same day, the applicant threatened to kill her former husband, his new partner and his next-door neighbour. Later that day, the applicant carried out the violent home invasion.
The female applicant armed herself with weapons (a length of pipe and a knife) and smashed a window to enter the home of her ex-husband and his new partner. The applicant attacked her ex-husband and his new partner, stabbing them both.
Grounds: The sentencing judge erred in (a) failing to find, on the balance of probabilities, that the applicant had experienced protracted family violence; and (b) finding that the offending was ‘purposeful and grievance-driven’.
Decision and reasoning: Leave to appeal refused.
[4] In seeking leave to appeal, the applicant disputed the judge’s characterisation of the offending as ‘purposeful and grievance-driven’. According to the submission, the true explanation for the applicant’s conduct lay in the history of violence inflicted on her by [former partner] during the marriage. Instead of aligning the case with those involving male-to-female violence following a relationship breakdown, it was said, the judge should have viewed the applicant’s conduct as reflecting the ‘very different psychological pathway’ which results from protracted domestic violence.
That submission was rejected as there was no objective evidence to establish a link between the offending and violence experienced by the applicant during the marriage. All of the evidence before the sentencing judge supported the conclusion that “what drove this very serious offending was the applicant’s distress at having been ‘abandoned’ by her former partner and anger towards [his new partner] for ‘taking’ her husband”.
[37] … in Filiz [v The Queen (2014)], the Court said:
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. … 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 …
[38] In the present case, the offending was perpetrated by a female against her former male partner (and his new partner). But, in our respectful view, the judge was quite correct to view it as falling into the same category of post-separation, anger-driven violence.
[39] In our view, no other conclusion was reasonably open on the material before the Court but that it was that anger — directed both at [her former partner and his new partner] — which was the driving force behind this offending. This was well illustrated by the applicant’s having said to [the victim] that she would ‘never stop’ stabbing her. It may be accepted that the applicant was not making ‘an assertion of possession and control’. But that seems to us to be immaterial. What matters is that, seemingly unable to accept the fact of the separation, the applicant gave vent to her anger and distress by this appallingly violent invasion of [her former husband’s] home.
[40] The position would have been entirely different had there been any evidence before the sentencing judge that prior violence (or threats of violence) by [her former partner] towards the applicant had so affected her as to provide an explanation for the offending. The profound and long-lasting psychological effects of domestic violence are well-established and, where a proper evidentiary basis is established, can have a very significant impact on the court’s view of the culpability of an offender and may even preclude criminal responsibility.
[41] But that was not this case. As defence counsel properly conceded on the plea, there was no such evidence. There was no suggestion, for example, that the applicant had been driven to act in this way by things done to her during the marriage. On the contrary, all the evidence showed that what prompted this attack was the ending of the marriage and [her former partner’s] commencement of a relationship with another woman.
Freeburn v The Queen [2020] VSCA 155 (17 June 2020) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Controlling, jealous, possessive behaviour’ – ‘Intention’ – ‘Past domestic and family violence’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’
Charges: Murder
Case type: Application for leave to appeal against conviction
Facts: The applicant man was convicted of the murder of his female intimate partner and sentenced to 25 years’ imprisonment, with a non-parole period of 20 years. The victim was mildly intellectually disabled and had been the victim of domestic violence in a prior relationship. The applicant acted in a jealous and possessive manner towards her, which sometimes included acts of violence. After the assault which resulted in the victim’s death the applicant left the victim alive, but in a debilitated state and failed to seek assistance. He admitted to having "lost control" and seriously injuring the victim. An autopsy showed the victim suffered around 43 injuries, mostly soft tissue injuries caused by moderate blunt force trauma. Toxicology testing revealed the presence of GHB in her body. Expert witnesses disagreed as to whether the assault caused the victim’s death: one forensic pathologist believed the victim died as a consequence of soft tissue injuries sustained in an assault in the context of her using GHB; another said that the cause of death could not be determined.
Grounds:
1.
The jury’s verdict of guilt was unreasonable and cannot be supported having regard to the evidence. Particulars:
(a)
The evidence failed to prove beyond reasonable doubt that the applicant had caused the death of the deceased.
(b)
The evidence failed to prove beyond reasonable doubt that the applicant had intended to cause grievous bodily harm to the deceased.
2.
The trial miscarried due to the admission of prejudicial evidence that a closed circuit television system had been deactivated prior to the death of the deceased.
Held: Ground 1 was allowed, the murder conviction was set aside, and the Court substituted a verdict of manslaughter. Ground 2 was dismissed.
The Court found that whilst it was open for the jury to be satisfied beyond reasonable doubt that the applicant’s actions, in assaulting the victim, were the substantial and operative cause of her death, it was not reasonably open to be satisfied beyond reasonable doubt that the applicant intended to cause her really serious injury ([106]). Taken at its highest, the admission the applicant made to Witness A was that as a result of causing her death, he had enjoyed or experienced a significant rush of adrenalin ([93]). Further, the Court accepted that a jury could not reasonably conclude that Witness A’s evidence was either truthful or reliable ([94]). Whilst the assessment and credibility of a particular witness is essentially a matter for the jury, that proposition does not preclude the assessment by an appellate court of the evidence given by that witness (Pell v The Queen [2020] HCA 12 (7 April 2020)) ([95]).
The verdict of manslaughter was substituted because the applicant caused the victim’s death by an unlawful and dangerous act and it was inevitable that the jury would conclude that a reasonable person in the applicant’s position would have realised they were exposing the victim to an appreciable risk of serious injury [104]. Leaving the victim in a severely debilitated state and refraining from obtaining medical or other assistance constituted criminal negligence for the purpose of the offence of manslaughter. The evidence was that the applicant was well-aware that the victim required assistance and treatment. It was inevitable that the jury would have been satisfied the applicant’s actions fell so far short of the standard of care which a reasonable person would have exercised in the circumstances, and involved such a high risk of death or really serious bodily injury, as to merit criminal punishment ([105]).
Ground 2 failed because the prosecution did not put to the jury that the evidence could or should be used as evidence of incriminating conduct by the applicant ([120]) and the judge gave a clear and specific direction to the jury that it should not rely on the evidence, and explained why it was of no probative value ([121]).
Note: The applicant was subsequently resentenced to 12 years imprisonment, with a non-parole period of 9 years: Freeburn v The Queen (No 2) [2020] VSCA 176 (1 July 2020) – Victorian Court of Appeal.
Carter v The Queen [2020] VSCA 156 (15 June 2020) – Victorian Court of Appeal
‘Aboriginal and Torres Strait Islander people’ – ‘Application for leave to appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Covid-19 pandemic’ – ‘Double punishment’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Weapon’
Charges: Recklessly cause injury x 1; intentionally damage property x 1; possess a firearm while a prohibited person x 1; attempt to pervert the course of justice x 1; persistently contravene a family violence intervention order x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant pleaded guilty to recklessly causing injury (grabbing her by the throat causing bruising and breathing difficulty), intentionally damaging property, possessing a firearm while a prohibited person, attempting to pervert the course of justice (a number of phone calls demanding the victim retract her statement), and persistently contravening a family violence intervention order. He also pleaded guilty to a series of related summary charges, including failing to store a firearm in a secure manner, possessing cartridge ammunition while unlicensed, and committing an indictable offence while on bail. The offending occurred in the context of family violence within a domestic relationship. The applicant was sentenced to 3 years’ imprisonment with a non-parole period of 2 years.
At the time of the offending, the applicant lived with his former partner (the victim). They had been in a ‘turbulent "on again, off again"’ relationship for around 16 years. The applicant had been subject to 3 intervention orders and a family violence safety notice prior to the present offending. The relationship came to an end, however, the victim and their daughters had continued to visit the applicant in custody until the recent COVID-19 pandemic.
In relation to the most serious charge of attempting to pervert the course of justice, the sentencing judge noted the fear that the victim must have experienced as a result of the applicant’s threats over the phone ([20]). The offences involving the possession of the firearm were linked to, and committed "because of [the applicant’s] mental state with the intention of self-harm" ([22]). With regard to the applicant’s prospects of rehabilitation, his Honour accepted that the offending occurred "in the context of a daily methamphetamine habit". The applicant had a long history of addiction to drugs, and his prospects of rehabilitation were considered guarded ([25]). The applicant’s guilty pleas, however, entitled him to a reduction in sentence ([26]). His criminal history related mainly to driving or drink-driving offences ([27]). With regard to the applicant’s Indigenous background, the judge took into account the fact that he came from a disadvantaged background, experienced deprivation and poverty, suffered from learning difficulties, and had been exposed to substance abuse and mental health issues ([28]).
•
The sentence was manifestly excessive.
•
The applicant had suffered double punishment in that the base sentence of 2 years imposed on charge 4 (attempt to pervert the course of justice), and the sentence of 6 months imposed on charge 5 (persistent breach of intervention order), had resulted in 3 months cumulation.
•
The totality principle was offended in cumulation of sentencing.
•
Insufficient weight was given to prospects for rehabilitation based on the applicant’s limited history of prior offending, his not having served a previous term of imprisonment, Aboriginal background, difficulties faced while in prison and efforts made to participate in programs while on remand.
Held: The Court of Appeal held that the sentence imposed on the charge of attempting to pervert the course of justice was not manifestly excessive. The applicant’s conduct was persistent and involved repeated threats of violence to the victim ([69]). "An attempt to pervert the course of justice is a substantive, and not an inchoate offence", and "any conduct that meets [its] description must be viewed seriously and denounced appropriately" ([70]). The submission in relation to double punishment was rejected as the elements of charges 4 and 5 were separate and distinct: "The criminality involved in attempting to persuade [the victim] to withdraw her complaint against the applicant, through the use of threats, harassment, and a form of emotional blackmail, was conceptually, and practically, separate from the deliberate and persistent contraventions of the family violence intervention order". The judge was therefore entitled to order some degree of cumulation between them ([72]). Ground 4 also failed as the judge considered all relevant matters, and it was open, on the evidence, to conclude that the applicant’s prospects of rehabilitation were guarded ([73]). As there was no error by the sentencing judge, the Court refused leave to appeal.
Stapleton v The Queen [2020] VSCA 147 (4 June 2020) – Victorian Court of Appeal
‘Aggravated burglary’ – ‘Application for leave to appeal against sentence’ – ‘Gambling’ – ‘Guilty plea’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Theft’
Charge(s): Aggravated burglary x 1; intentionally causing injury x 1; intentionally damaging property x 1; theft x 1; unlawful assault x 1
Case type: Application for leave to appeal against sentence
Grounds: The sentence was manifestly excessive, in particular:
1.
the sentences imposed on the charges of aggravated burglary, intentionally causing injury and unlawful assault were manifestly excessive;
2.
the learned sentencing judge placed excessive weight on a finding of a lack of remorse, and insufficient weight on compelling mitigating factors (such as his guilty plea, prior good character and the absence of prior convictions); and
3.
the orders for cumulation infringed the totality principle and produced a manifestly excessive total effective sentence and non-parole period.
Facts: In 2018, the applicant man pleaded guilty to a series of offences committed against his wife of 20 years (the victim). The offending occurred in the context of the breakdown of their domestic relationship, in the early hours of the morning at the victim’s home. He broke into the house, pushed the victim against the wall, and assaulted her boyfriend. When the victim sought to intervene, the applicant verbally abused her and threw her against the bedroom wall, causing her head to go through the plaster. The applicant continued to punch the victim’s boyfriend, and after another attempted intervention by the victim, he threw her across the room. He also damaged her boyfriend’s car. The applicant left the premises but returned about half an hour later. Once again, he barged through the front door, entered the bedroom, grabbed the victim’s hair and threw her against the wall, and continued to physically abuse her boyfriend. He also punched the victim in the face. While she was attempting to contact her friend, the applicant snatched her phone and left the house with it. The applicant was arrested later the same morning.
At sentence, the judge noted that the applicant had been drinking heavily and told police that there had been a slow build-up of emotion. His account to police was also seen as an attempt to minimise his conduct ([23]-[25]). Further, the sentencing judge stated that "offending of this nature is all too often perpetrated by men who respond to difficulties in a relationship, with possessive, violent rage" ([27]). Mention was also made to the victim impact statements which detailed the applicant’s history of domestic violence towards the victim, specifically in the form of mental abuse ([28]-[29]). The applicant had a lengthy history of heavy drinking and extensive difficulties with gambling, which resulted in the sale of the family home in order to pay his debts ([32]). The judge characterised the motive for the applicant’s offending as a desire to exact revenge for the victim’s having interfered in his relationship with another woman, and observed that his return to the house on the second occasion demonstrated a degree of premeditation. The applicant had no prior convictions ([33]). His guilty plea was not made at the earliest opportunity, and in his record of interview, he sought to downplay the gravity of the offending, blamed the victim for his behaviour, and falsely denied having punched her boyfriend ([34]). In these circumstances, her Honour was not persuaded that the applicant "deeply regretted his wrongdoing and desired to atone for it". While there was some level of remorse, this was not given much weight ([36]). Her Honour also explained that a combination sentence was inappropriate as the offending was too serious ([38]). He was sentenced to a total effective sentence of 3 years’ and 7 months’ imprisonment, with a non-parole period of 2 years.
Held: The Court of Appeal granted leave to appeal and dismissed the appeal. It stated that "aggravated burglary, where the offender’s intent is to assault and injure a former domestic partner, must always be regarded as an offence of a serious nature" ([60]). The appeal ground of manifest excessiveness was difficult to maintain in light of the aggravated burglary and serious assaults committed on that second occasion ([62]). The Court held that the sentencing judge took into account and gave weight to all relevant mitigating factors. The applicant did not succeed in his submission that the judge erred in her finding that little weight should be given to his remorse, as she "took great pains to explain why, putting to one side the remorse associated with the plea of guilty, she could give little weight to what the applicant had told various third parties about how he felt" ([64]-[65]).
Johns v The Queen [2020] VSCA 135 (29 May 2020) – Victorian Court of Appeal
‘Application for leave to appeal against conviction’ – ‘Application for leave to appeal against sentence’ – ‘Female perpetrator’ – ‘Manifestly excessive’ – ‘Mental element’ – ‘Obsessive behaviours’ – ‘Physical violence and harm’ – ‘Threats to kill’ – ‘Unsafe and unsatisfactory verdict’
Offences: Recklessly cause serious injury in circumstances of gross violence; Intentionally destroy property
Proceedings: Application for leave to appeal against conviction; Application for leave to appeal against sentence
Grounds (conviction):
1.
The jury verdict was unsafe and unsatisfactory, where there was a marked disparity between the size and weight of the appellant’s car and the victim’s truck and trailer such that it was not open to the jury to find that by consciously voluntarily and deliberately colliding with the truck and trailer she:
(a)
Foresaw the likelihood that the collision would cause serious injury, or
(b)
When planning her conduct, either intended, was reckless that or foresaw it was more likely than not that her conduct would cause serious injury to the victim.
2.
The judge incorrectly directed the jury that the Intentionally destroy property charge could be established by an intent to damage or destroy the truck, when the indictment alleged that the appellant intended to destroy the truck, resulting in a miscarriage of justice.
Grounds (sentence):
1.
The judge erred by applying the wrong test under s 10A(2)(e) Sentencing Act 1991 (Vic) when considering whether "special reasons" existed to justify imposing a non-parole period of less than four years.
2.
The judge should have imposed a large, if not complete, degree of concurrency in relation to the sentences for the two charges.
3.
The head sentence imposed was outside the permissible range, the non-parole period was excessive, and the judge failed to give sufficient weight to the appellant’s previous good character and prospects of rehabilitation.
Facts: The female applicant was driving a Toyota Camry car when it collided with a truck and tanker trailer which was driven by the male victim. The vehicles were travelling in opposite directions on an open stretch of highway; the applicant’s car crossing the centre line and colliding with the front right-hand side of the truck. The truck rolled, causing the victim serious injury (a severe laceration to his scalp and two fractured vertebrae in his neck) and extensive damage ($900,000 worth) to the truck and trailer (which were later written-off). The applicant sustained minor injuries.
The applicant and victim had been in a sexual relationship for some time and had a daughter together, although they disagreed as to the nature of the relationship (the victim believed it to be only sexual/physical while the applicant was "besotted" with the victim). When the victim was driving his truck, the appellant would often follow him in her car and turn up at his home. On the day of the offending, the victim had stopped for a break at a parking bay and was approached by the applicant who threw the remote control to the victim’s garage at him, told him she was pregnant and yelled "I’ll kill you" before driving off. The applicant had stated on numerous occasions that "if she couldn’t have [the victim], nobody would" and that she should "take him out" by "driving straight into him".
The applicant was convicted of recklessly causing serious injury in circumstances of gross violence and intentionally destroying property, and sentenced to seven years’ imprisonment with a non-parole period of five years.
Judgment: The court dismissed the application for leave to appeal against conviction. The court rejected Ground 1, finding that it was open to the jury to conclude that the appellant knew the collision would probably cause serious injury to the victim because of the nature of the collision (high speed, head-on, on an open road) and the threats made by the applicant [40]. The court noted that "The issue for the jury was not which of the two drivers bore the greatest risk of injury but whether the applicant knew the truck driver would probably be seriously injured" [39]. The court also rejected Ground 2, finding that the applicant did not seek to make a distinction between damage and destruction at trial [48] and in any event, any disconformity between the indictment and the way the case was run at trial could have been resolved by amending the indictment [49].
The court also dismissed the appeal against sentence. The court rejected Ground 1, finding that while the judge incorrectly approached s 10(1) as if it called for an assessment of a non-parole period for the s 15B offence alone, the answer the judge gave to that assessment demonstrated that "there was never any possibility of a non-parole period for the whole of the offending of less than four years" and that there was no basis to consider that the judge could have found substantial and compelling circumstances justifying a non-parole period of less than four years [94]. The court further held that, "When regard is had to the additional criminality of the conduct underpinning [the Intentionally destroy property charge], we are satisfied that any error in applying the ‘special reasons’ provisions could not have played any role in the sentence imposed on the individual charges or in setting the non-parole period" [94].
The court also rejected Ground 2, holding that the two charges were very serious, and separate, offences and the extent to which the sentences were to be made concurrent was the discretion of the sentencing judge [99]. The court further rejected Ground 3, holding that neither the sentence nor its constituent parts were wholly outside the permissible range [100]. The court noted that the offending was grave and "exceptionally dangerous conduct" that had "very serious consequences" for which the conduct needed to be denounced and punished [103]. The appellant did not have the utilitarian benefit of a plea and there was no evidence of remorse [103].
Laa v The Queen [2020] VSCA 136 (28 May 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Children’ – ‘Manifestly excessive’ – ‘Misuse of alcohol’ – ‘Non-fatal strangulation’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Threats to kill’
Offences: Using a carriage service to menace, harass or cause offence; Aggravated burglary; Common assault; Making a threat to kill.
Proceedings: Application for leave to appeal against sentence
Grounds:
1.
The sentence was manifestly excessive.
2.
The findings by the judge concerning the applicant’s level of remorse, and his prospects for rehabilitation, were not supported by the evidence.
Facts: The male applicant commenced a relationship with the female victim in 2006 and the couple had two children together. Their relationship involved periods of separation and reconciliation. During the periods of separation, the applicant would stay at the victim’s house overnight on the days he would see the children. However, the overnight stays and the regular visits to see the children ceased after several arguments between the applicant and the victim. One night, the applicant sent the victim 14 text messages, threatening to come after her and kill her. The next morning, the applicant went to the victim’s house and banged on the front door repeatedly. The victim told the applicant to leave and that she had called police. The applicant tried to break open a sliding door with an outdoor chair but failed, so smashed two front windows and entered the house through the unlocked front door. The victim secured herself and the children in her bedroom by placing a wedge under the door but the applicant forced the door open. The victim was on the phone to 000, so the applicant took the phone, terminated the call and hit the victim repeatedly on the head, face and neck with the phone. The children were crying as this occurred.
The victim fled outside but the applicant followed her and dragged her indoors where he forced her to the ground, choked her and told her he would kill her and her family. The applicant took the children and placed them in the car, then returned and punched the victim in the face, knocking her to the ground. He drove off (during which time the victim called 000) but returned and started banging on the front door again. The victim let him in because she did not want to antagonise him. The applicant locked the front door and punched her in the face a number of times, telling her that he would kill her whole family. Police arrived and arrested the applicant who denied the assaults and the threats to kill. He was convicted on all charges and sentenced to four years’ imprisonment with a non-parole period of two years and two months.
At trial, the court accepted that the applicant was a refugee from South Sudan [20] and that he began drinking excessive quantities of alcohol due to his financial struggles and it was in this context that the offending occurred [23].
Judgment: The court dismissed the appeal. In rejecting Ground 1, the court held that the offending was particularly serious and the applicant’s moral culpability was high [53], despite the mitigating factors being "quite substantial" [55]. The court noted that "confrontational aggravated burglaries, in the setting of an underlying domestic dispute, are all too prevalent in our society. They are calculated to cause lasting and serious physical and emotional harm to the victim. By their nature, such offences have the potential to escalate into incidents that result in serious harm and, on occasion, human tragedy" [50]. As a result, general deterrence is of significance in such cases [50], as is condemnation by the courts of such conduct [51]. The court further noted that "The courts have made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable" and the fact that the assaults occurred in the presence of the couple’s children was a serious aggravating factor, a "serious breach of [the applicant’s] duty as a parent towards his own children" and an "appalling example" of behaviour for the children, particularly the son [52].
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Ballantyne v The Queen [2020] VSCA 115 (11 May 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Early plea’ – ‘Loaded firearm’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Substance abuse’ – ‘Suicide threat’ – ‘Threat to kill’
Offences: Carrying a loaded firearm in a place with reckless disregard for the safety of another x 1; Making a threat to kill x 1; Possessing drug of dependence x 1; Contravention of family violence intervention order x 2; Failing to store a category A/B long arm correctly x 1; Failing to store category A/B long arm ammunition correctly x 1; Possessing a prohibited weapon x 1
Proceedings: Application for leave to appeal against sentence
Issue: Whether sentence was manifestly excessive.
Facts: The appellant man and female victim had been in a relationship for 14 years and were married at the time of the offending. The appellant threatened to kill himself in front of the victim, leaving the house and returning with a shotgun. He swung the shotgun in front of the victim like a baseball bat, then touched the barrel to her forehead before pushing it into her eye socket and threatening to kill her "slowly" [25]. The appellant fired a shot into the TV then pointed the gun back at the victim’s head and threatened to shoot her again [25]. The victim was held like this for around three hours. The appellant plead guilty and was sentenced to four years and three months’ imprisonment, with a non-parole period of three years and six months. At the sentencing hearing, the appellant alleged that he did not remember the incident. Medical evidence was also tendered showing that the appellant had a history of depression and alcohol abuse, but that he had committed to make improvements and had ceased alcohol and prescription medication [17].
The appellant appealed against this sentence on the following grounds:
1.
The individual sentences on charges 1 and 2 and the total effective sentence are manifestly excessive.
2.
The non-parole period is manifestly excessive and in particular:
1.
The ratio of 17.65% of the head sentence is manifestly low having regard to the fact that the applicant had no relevant prior convictions and his prospects for rehabilitation were relatively good;
2.
The purported reason for this ratio that ‘… there is potently no remorse …’ … was not a good reason for denying the applicant a greater period of parole; and
3.
The learned sentencing judge erred in finding that in the circumstances there was ‘… potently no remorse …’ ….
3.
The learned sentencing judge erred in finding that there was a complete absence of remorse, and as a result the individual sentences, the total effective sentence and the non-parole period are manifestly excessive.
Held: The court refused to uphold ground 1 as the sentences were not manifestly excessive. The conduct founding the Making a threat to kill charge "constituted a very serious example of the offence" [25] and that, balancing the seriousness of the offending with the mitigating factors (see [24]), the sentence was proportionate [26] and punished the appellant to an extent just in all the circumstances [28]. Even though the sentence imposed was more lengthy than the general trend for the offence of threat to kill in recent cases, "[s]entences in comparable cases … are not precedents which must be applied", but each case must turn on its own facts [28].
However, the court upheld ground 2, providing that the finding by the sentencing judge that the appellant was not remorseful did not justify the imposition of a relatively high non-parole period [32]. The purpose of fixing a non-parole period is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate" (Power v The Queen (1974) 131 CLR 623 at 629). The court substituted a non-parole period of two years and six months [33].
Furthermore, the court partially upheld ground 3, finding that the trial judge erred in finding that there was a complete absence of remorse. The court provided that it considered "that there was some evidence of remorse to be drawn from the early pleas of guilty and from the applicant’s insight and incipient commitment to reform" [19]. The court referred to its reasons for finding against the remainder of ground 3 (namely, whether the sentences and non-parole period were manifestly excessive).
Zakkour v The Queen [2020] VSCA 72 (26 March 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Breach of protection order possession of weapon’ – ‘Separation’
Charges: Criminal damage x 1; attempt to pervert the course of justice x 1; possess prohibited weapon x 1; contravene family violence intervention order x 1
Case Type: Application for leave to appeal against sentence for possess prohibited weapon
Facts: In 2019, the applicant went to his former partner’s property and caused damage. He was arrested the next day, and police searched his vehicle and found a home-made laser pointer. While in custody, he made telephone calls whereby he attempted to have people call his former partner and ask her to withdraw her police statement. The applicant pleaded guilty to criminal damage, and attempting to pervert the course of justice. He also pleaded guilty to 2 summary offences, carrying a prohibited weapon and contravening a family violence intervention order. The applicant was sentenced to a total effective sentence of 2 years’ imprisonment, with a non-parole period of 15 months. The individual sentence imposed on the weapon offence was 2 months’ imprisonment to be served cumulatively on the sentences for the other offending.
Ground: The sentence and the order for cumulation on this charge was manifestly excessive because, inter alia, the offending was not aggravated in any material way and the accused pleaded guilty to the offence at the earliest available opportunity.
Held: The Court allowed the appeal, set aside the sentence on the weapon offence, and ordered that the applicant be convicted and discharged on that charge. The applicant’s counsel submitted that the laser pointer had not been used as a weapon, and that it was not used in connection with any of the other offending. Despite the fact that the applicant had prior convictions for possessing controlled and prohibited weapons, it was clear that the sentence for the weapon offence was "egregiously excessive", given the intrinsic nature of the weapon, the lack of material as to whether the applicant had or would have used it, and the complete absence of evidence supporting the sentencing judge’s findings that it was potentially dangerous and could cause injury ([18]). As a consequence, the total effective sentence was amended to 22 months’ imprisonment with a non-parole period of 13 months.
Tedford v The Queen [2020] VSCA 71 (26 March 2020) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Attempted murder’ – ‘Guilty plea’ – ‘Manifestly excessive’ – ‘Motor vehicle’ – ‘Older people’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Suicide attempt’
Charges: Attempted murder x1; Reckless conduct endangering persons of serious injury x1.
Appeal Type: Application for leave to appeal against sentence
Ground: The individual sentence on Charge 2, order for cumulation, total effective sentence and non-parole period are manifestly excessive, having regard to the five-year maximum penalty for the offence, the fact that it was committed in the context of a suicide attempt, and the significant factors in mitigation, including the applicant’s early pleas of guilty, advanced age and ill health, and prior good character.
Facts: The applicant was sentenced to eight years’ imprisonment on the charge of attempted murder of his wife and two years and six months’ imprisonment on the charge of reckless conduct endangering persons of serious injury for driving his vehicle into a train. On year of the sentence or chare 2 was cumulative on the sentence for charge 1, resulting in a total effective sentence of nine years’ imprisonment.
The applicant 77 year old man and female victim were married but had separated at the time of offending, the wife moving out of the family home into a bungalow at the back of the property. On the day of offending, the applicant and victim had consumed a large amount of alcohol together and the applicant became argumentative [5]. The victim suggested the applicant see a psychologist. That evening, the applicant told a friend that he felt depressed, he needed his wife to look after him to survive and that "if anything were to happen to him, [the friend] should make sure he claimed a Holden Kingswood motor car presently garaged at the applicant’s home" [5]. Two hours later, the applicant entered the wife’s bungalow and deadlocked the door behind him before saying "I’ve got something for you" and producing a large knife [6]. He proceeded to stab the victim 13 times, including defensive injuries, mostly to the chest and arms. The applicant stated that he was going to kill both himself and the victim during the attack. The victim also suffered blunt force trauma and other lacerations before managing to escape the offender when he fell over and struck his head.
The applicant then drove away from the property. "A dash camera recorded him in a confused, angry and emotional state of mind. He expressed disbelief that he had not killed his wife [and] then discussed with himself how he could kill himself" [8]. The applicant then proceeded the drive his car into a train. "The train struck the driver’s side of the applicant’s car, pushing it for a considerable distance. No one on the train was injured" [8] and the applicant did not sustain substantial injuries.
Judgment: Leave to appeal against sentence was refused [41]. To demonstrate manifest excess "an applicant must demonstrate that the impugned sentence is ‘wholly outside the range’ of sentences available for that particular offence in the relevant circumstances" [29]. Likewise "arguments for excessive cumulation must fail unless an applicant can demonstrate that the order for cumulation is manifestly excessive" [30]. The sentence for the reckless conduct charge was not manifestly excessive: "[w]hilst a sentence of 50 per cent of the maximum available upon a plea of guilty to a man in the applicant’s circumstances can reasonably be viewed as ‘stern’, we are not persuaded that it is beyond the range of sentences reasonably available to his Honour."[36] The cumulation of one year upon the base sentence for attempted murder was also not manifestly excessive. The sentence for attempted murder "represents less than a third of the maximum penalty available for what was an appalling example of domestic violence, committed with homicidal intent. Whilst old age, ill health and an almost pristine criminal history all counted in the applicant’s favour, in the face of his conduct towards his wife, it could not count for a great deal" [38]. The sentence was moderate in all the circumstances. In considering the appropriate degree of cumulation the sentencing judge appropriately considered "the temporal and circumstantial relationship between the offences" and specifically considered the sentencing factors such as overall criminality, general deterrence and the principle of totality.
The court also rejected Ground 2, finding that the delay between the date of offending and the date the applicant entered a guilty plea (22 months) was a sufficient basis for the judge to entertain genuine reservations about the applicant’s level of remorse, and his prospects of rehabilitation [42], despite a plea of guilty often being an indicator of genuine remorse [45].
Guirguis v The Queen [2020] VSCA 48 (13 March 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Children’ – ‘Community correction order’ – ‘Family violence’ – ‘Guilty pleas’ – ‘People affected by substance misuse’ – ‘Sexual and reproductive abuse’ – ‘Threats to kill’ – ‘Uncharged act’
Charges: Sexual assault x 1; Make threat to kill x 1
Case type: Application for leave to appeal against sentence
Facts: The applicant man and the female victim were in a relationship for 11 years and had 2 children. The relationship terminated in 2016. Before the relationship ended the applicant allegedly forced the victim to engage in oral sex (Charge 1) and, months later, told the victim that he would ‘slit her throat’ if she ever left with the children (Charge 2). The applicant also said he would ‘take [the children] out too’ which constituted an uncharged act. In 2016, an interim protection order was granted in favour of the victim and the children, and in 2017 a final intervention order was made for an indefinite period. Relevantly, the applicant had been sentenced at the Magistrate’s Court in early-2017 to 91 days’ imprisonment, combined with an 18 month Community Correction Order for other offending against the victim that occurred on the same date on which the offending giving rise to Charge 2 in the present matter occurred ([3]-[14]).
In sentencing the applicant, the judge recognised that the victim suffered profound trauma as a result of the applicant’s degrading, cruel and humiliating treatment of her. These adverse effects continuously and significantly affected her. Given the seriousness of the offending, there was a need for stern punishment to achieve general and specific deterrence and denunciation ([22]). The applicant, on pleas of guilty, was sentenced to 23 months’ imprisonment in combination with a 3-year Community Correction Order (CCO). The sentence imposed in early-2017 and time that the applicant had spent in a residential drug rehabilitation clinic were relevant to totality.
Issue: The applicant completed the term of 23 months’ imprisonment in February 2019 and sought leave to appeal on the grounds that the sentence of imprisonment followed by a 3-year CCO is manifestly excessive.
Held: The Court refused leave to appeal ([38]). The two offences constituted serious acts of family violence and the offending was not isolated ([33]). Further, a CCO was necessarily and properly punitive, and was structured towards advancing the applicant’s rehabilitation and community protection ([34]). It could not be said that the decision to attach a CCO to the term of 23 months’ imprisonment was clearly or wholly outside the range open to the sentencing judge, and there was no error of principle ([36]). The offending was ‘grave’ as the applicant’s conduct towards the victim was ‘cruel and degrading’, ‘designed to be humiliating and hurtful’, and resulted in substantial trauma ([37]). The sexual assault was described as a ‘humiliating and degrading act’. Further, the threat to kill was ‘chilling and menacing, and had a traumatic and ongoing effect’ on the victim ([33]). The conduct resulted in profound trauma.
Vu v The Queen [2020] VSCA 59 (23 March 2020) – Victorian Court of Appeal
‘Appeal against sentence’ – ‘Physical violence and harm’ – ‘Remorse’ – ‘Totality principle’
Offences: manslaughter x1; attempted murder x1and recklessly causing serious injury x1.
Proceedings: Appeal against sentence
Facts: The applicant man and the female victim lived together in a domestic relationship for many years and had two children together. In 2013 the applicant was charged with drug-related offences and imprisoned for three years. During this time, the female and male victims commenced a relationship and were married. Shortly before the applicant was released, the male victim moved out of the female’s house and into a nearby residence. They continued their relationship in secret after the applicant was released and resumed living with the female victim.
The applicant was later informed of the victims’ relationship and confronted them about it. The victims’ stated they were just friends, but the applicant refused to accept their denials. The applicant then grabbed a hunting knife he had previously hidden and stabbed both victims in the chest. The male victim died at the scene and the female was seriously injured, though there was no evidence of any permanent or ongoing impairment as a result of the injury.
Applicant was charged with murder of the male victim and attempted murder of the female victim and in the alternative either intentionally or recklessly causing serious injury. Prior to trial the applicant offered in writing to plead guilty to manslaughter. No offer was made in respect to the charges relating to the female victim’s injuries. Following trial he was convicted of the manslaughter of the male victim and recklessly causing serious injury to the female victim. He was given a total effective sentence of 15 year’s imprisonment with a non-parole period of 11 years.
Grounds of appeal:
•
The order for cumulation was excessive and thereby infringed the totality principle.
•
The learned sentencing judge erred by granting the applicant only a modest benefit for the utilitarian value of his plea offer.
•
The learned sentencing judge erred by granting the applicant no benefit for his plea offer other than for its utilitarian value.
•
The learned sentencing judge erred by not treating the applicant’s post-offence conduct as mitigatory.
•
The individual sentences imposed for both offences, the order for cumulation and the total effective sentence were manifestly excessive, particularly in light of:
◦
The totality principle (see ground 1 above);
◦
The finding that the recklessly causing serious injury was mid-range example of the offence;
◦
The applicant’s offer to plead guilty (see grounds 2 and 3 above);
◦
The mitigatory effect of the applicant’s conduct immediately after the offending (see ground 4 above);
◦
There being, it is argued, some evidence of remorse, acceptance of responsibility and a willingness to facilitate the course of justice;
◦
The finding that the applicant’s prospects of rehabilitation are ‘quite good’;
◦
The finding that specific deterrence ‘does not loom large’ in this case.
Held: The Court allowed the appeal on against sentence on grounds 1 and 5 (in part), limited to the order for cumulation only. The order for cumulation was quashed and ordered a total effective sentence of 13 years and six months’ imprisonment with a non-parole period of 10 years.
In regard to Grounds 2 and 3, the Court held the sentencing judge was entitled to consider the utilitarian value of the applicant’s offer to plead guilty as ‘relatively modest’ given the overall circumstances of the case and rejected the second ground. While the offender offered to plead guilty, this is not necessarily a sign of remorse and agreed with the sentencing judge’s conclusion that the offer was most likely motivated by pragmatic considerations [40], thus also rejecting the third ground. In light of the Court’s rejection of an inference of remorse, they noted that the sentencing judge’s reasoning "embraced a consideration of the entirety of [the] post-offence conduct, favourable and unfavourable to the applicant" and rejected the fourth ground [44].
Turning to Grounds 1 and 5, the Court noted that while the individual sentences were each particularly stern but not wholly outside the range of sentencing discretion [48], this was not the case for the order for cumulation. "Given the very significant overlap in time, context and conduct, and particularly, the high sentences imposed on both charges, [the Court] consider[s] that the principles of totality and proportionality ought to have operated to moderate the order for cumulation to a considerably greater extent" [54]
Brown v The Queen [2020] VSCA 26 (20 February 2020) – Victorian Court of Appeal
‘Credibility’ – ‘Fair trial’ – ‘Fresh evidence’ – ‘Lack of disclosure’ – ‘Physical violence and harm’ – ‘Retrial’
Charges: Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury – acquitted following trial); Charges 3 and 4 (intentionally causing injury – acquitted - and alternatively recklessly causing injury - convicted); Charge 5 (common law assault - acquitted)
Case Type: Application for leave to appeal against conviction on charge 4
Facts: The charges related to two occasions on which the applicant man was alleged to have assaulted the complainant woman, with whom he was then in a de facto relationship. Charges 1 and 2 (intentionally causing injury and alternatively recklessly causing injury) concerned an allegation that the applicant threw the complainant, causing her to hit her head. Charges 3 and 4 (intentionally causing injury and alternatively recklessly causing injury) related to an allegation that the applicant, on a different day, grabbed the complainant’s arms and held her down, causing bruising to her arms and back. It was alleged that immediately after that incident, the applicant also pushed her, constituting the basis of Charge 5 (common law assault). The applicant was found guilty of Charge 4, acquitted on the other charges and, following a plea, was convicted and fined $4,000 ([1]-[4]).
After verdict, the prosecution served a victim impact statement from the complainant, to which a document called ‘Initial report - Recommendation for more than five hours of counselling’ was attached. The report noted that the complainant consulted a psychologist and recounted events the subject of Charges 3 and 4. The appellant submitted that this was the first occasion, known to him, that the complainant had given a different account in which it was suggested that he had thrown her across the room against the wall ([9]-[10]). Applying the principles in R v Nguyen and Tran to the relevant evidence, the appellant submitted that although the report existed at the time of trial, he exercised reasonable diligence in obtaining relevant records and this had failed to result in the production of the report. It was argued that his legal representatives sought disclosure of various documents which would have included the report; that he sought production of the victim impact statement during committal proceedings and the complainant refused to provide it at that time; and that he obtained a subpoena to compel the complainant to produce the victim impact statement. The appellant contended that as he was acquitted on Charges 1, 2 and 5 and given the case largely turned on the complainant’s evidence, the existence of a different version of events as evidenced in the report potentially further undermined the complainant’s credibility ([12]-[13]).
Grounds of appeal:
1.
The prosecution failed to disclose relevant information in its possession; and
2.
fresh evidence that is now available since the time of conviction would have led the jury to hold a reasonable doubt as to the applicant’s guilt or would have given rise to a significant possibility that the jury would have held such doubt.
The respondent conceded Ground 2, and in light of this, the applicant did not press Ground 1 ([5]-[6])
Held: Having decided Ground 2 was established, the Court was required to determine whether to order a new trial or enter a judgment of acquittal. The report met the threshold for fresh evidence and, had the evidence been before the jury, there was a significant possibility that the appellant would have been acquitted on Charge 4 ([18]).
In determining whether to order a new trial, the Court considered that the appellant would be compromised in his ability to test the complainant’s evidence on Charge 4 by reference to the inconsistencies in the complainant’s account of events which underpinned Charges 1, 2 and 5. Any disadvantage to the appellant would be particularly acute in relation to Charge 5 which was so closely tied in time and context to Charge 4 ([35]). The Court drew an analogy with R v Bartlett ([37]), and held that a retrial of Charge 4 alone would be ‘unfair’. Consequently, the Court allowed the appeal, set aside the conviction on Charge 4 and entered judgment of acquittal on that charge ([39]).
The Court emphasised the public interest in seeing allegations of domestic violence, where there is sufficient evidence to sustain a conviction, being prosecuted in accordance with the law ([25]). The gravity of domestic violence is not solely measured by the extent of the physical injury. Women and children ‘who suffer the brunt of domestic violence’ are entitled to feel safe and secure in their own homes. Other ‘very important factors’ the Court will consider in assessing the severity of a particular offence include the breach of trust reposed in a domestic partner and the compromising of the security of the home ([26]).
Director of Public Prosecutions v Ristevski [2019] VSCA 287 (06 December 2019) – Victorian Court of Appeal
‘Manifestly inadequate’ – ‘Remorse’
Offence: Manslaughter
Proceedings: Crown appeal against sentence
Issues: Whether sentence was manifestly inadequate;
Whether sentence was manifestly inadequate;
(a)
failed to fix a sentence commensurate with the circumstances of the offending, giving too much weight to the lack of information about the unlawful and dangerous act;
(b)
failed to have sufficient regard to significant aggravating features when determining the nature and the objective gravity of the offending (cf the circumstances of the killing), particularly in the context of family violence and the breach of trust;
(c)
failed to have sufficient regard to the impact of the Respondent’s offending on the victims;
(d)
failed to give sufficient weight to the principles of general deterrence, specific deterrence, denunciation and just punishment;
(e)
failed to have sufficient regard to the maximum penalty for the offence; and
(f)
placed too much weight on the matters in mitigation, particularly in light of the lack of remorse, including the Respondent’s plea of guilty and prospects of rehabilitation.
Facts: The exact events surrounding the offence are unclear. What is known is that the respondent husband "killed [the victim (his wife) by unlawful and dangerous act(s); put her body into the body of her car; and disposed of [and concealed] her body in a remote location" [4]. When later questioned about his wife, the offender lied to relatives and police by claiming that she "had left the family home after they had an argument saying that she was going to clear her head" but never returned [5].
There was no evidence of earlier domestic violence in the relationship. He was convicted on his plea of guilty to manslaugter following a contested committal where the charge was murder.
Held: The offender was resentenced by majority to 13 years’ imprisonment with non-parole period of 10 years.
The sentence was held to be manifestly inadequate, with Priest JA stating the "sentence imposed on the respondent was far too low to reflect the needs of general deterrence, denunciation and just punishment". The disposal of the wife’s body was treated as a significant aggravating factor and "emblematic of [the offender’s] complete lack of remorse" [73]. The domestic setting of the offence was also an aggravating circumstance, with Ferguson CJ and Whelan JA providing that while "there was a time when the seriousness of such domestic violence offences was not properly recognised. That is no longer the case…[The wife] should have been able to live without any fear in her own home. It should have been a safe place for her" [10]. General deterrence and denunciation were particularly significant. These factors were not sufficiently outweighed by the offender’s previous good character, prospects of rehabilitation or the utilitarian value of his guilty plea.
DPP v Smith [2019] VSCA 266 (21 November 2019) – Victorian Court of Appeal
‘Intervention order’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’
Charges: 3 x causing injury intentionally; 1 x false imprisonment; 1 x rape; 1 x make a threat to kill; 2 x contravention of Final Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence.
Facts: The offending involved intentionally causing physical injury, threatening to kill, false imprisonment, rape and breaching FVIOs. The respondent and complainant were in an intermittent de facto relationship for a few years prior to the offending. The respondent was sentenced to 7 years and 6 months’ imprisonment with a non-parole period of 5 years.
Issue: The appellant appealed against the sentence on the grounds that it was manifestly inadequate, and that the learned sentencing judge failed to:
•
Properly consider the objective gravity of the offending;
•
Give sufficient weight to the sentencing principles of just punishment, denunciation, general deterrence, specific deterrence and community protection;
•
Give sufficient weight to the maximum penalties for the offences; and
•
Give sufficient weight to the impact of the offending on the victim.
Held: Manifest inadequacy is difficult to establish ([28]). Nevertheless, the respondent was re-sentenced to 10 years and 6 months’ imprisonment with a non-parole period of 8 years. Notwithstanding the factors relied upon in mitigation ([21]), several of the individual sentences imposed and the orders for cumulation were found to be inadequate, and therefore produced a total effective sentence that was below the range of sentences available to the sentencing judge so as to reveal an error of principle ([28]). Personal factors included: history of drug and alcohol abuse; criminal history which included a number of dishonesty and drug matters, assault and robbery, intentionally and recklessly causing injury, and failure to comply with court orders; a disadvantaged and dysfunctional upbringing; and low cognitive functioning. However, in the Court’s view, there was a need for both specific and general deterrence, given the respondent’s long history of violence, especially towards the complainant ([34]-[35]). The offending in question was ‘brutish, cowardly…and calculated to humiliate and degrade a powerless, diminutive woman’ ([32]). The Court also noted that ‘people considering similar brutal, degrading abuse of a domestic partner must understand that the courts have a duty to protect vulnerable members of [the] community and will not hesitate to impose stern punishment upon wrongdoers’ ([35]).
DPP v Evans [2019] VSCA 239 (25 October 2019) – Victorian Court of Appeal
‘Attack on former partner's new partner’ – ‘General deterrence’ – ‘Manifestly inadequate’ – ‘Mitigating factors’ – ‘Physical harm and violence’ – ‘Separation’ – ‘Weapon’
Charges: Causing serious injury intentionally x 1
Proceedings: Appeal against sentence
Facts: The respondent pleaded guilty following a self-serving confession 4 years after the assault having previously denied all involvement several times. The DPP appealed the sentence and non-parole period. The complainant, who had been involved in a domestic relationship with the respondent’s estranged wife, sustained life-altering and life-threatening injuries as a result of being struck with a metal bar. The original sentence was 5 years and 6 months with a non-parole period of 2 years and 9 months.
Issues: Whether the individual sentence and non-parole period are each manifestly inadequate.
Decision and reasoning: Appeal allowed and resentenced to 7 years and 6 months with non-parole period of 4 years 6 months. The discount given for the respondent’s confession was too great, as the respondent’s admissions did not go so far as to warrant a full discount.
The court also considered that the seriousness of offending called for a stern response and strong denunciation, as this was a case of extraordinary violence which had a devastating impact on the victim ([83]).
"[84] There is a further important consideration, that of general deterrence. This was a violent act of reprisal following the breakup of the respondent’s marriage, expressing his animosity and anger towards the person who had been his wife’s partner. Although there are differences between a case like this and a direct attack against a former partner, they are closely related. Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
[85] For similar reasons, nothing should be said in sentencing reasons to suggest that statements by such an offender to the effect of ‘I just snapped’ or ‘I’d had enough’ in any way mitigate the seriousness of the offending or reduce the offender’s moral culpability. Such self-justifying statements are, regrettably, all too common in cases of family violence. Marital breakdown is stressful and upsetting for all concerned. But a resort to violence can never be condoned.
Tan v The Queen [2019] VSCA 226 (14 October 2019) – Victorian Court of Appeal
‘Manifestly inadequate’ – ‘Physical harm and violence -separation’ – ‘Sentencing’ – ‘Strangulation’
Charges: Recklessly causing serious injury x 1
Proceedings: Application for leave to appeal against sentence
Facts: The applicant was sentenced to 5 years 6 months imprisonment with a non-parole period of 3 years 6 months. The applicant sought leave to appeal against sentence on the ground that the sentence imposed was manifestly excessive given that the offending was not at the median of offending for the type of offence.
The victim of the incident was the applicant’s de facto partner. Around the time of offending, the applicant sent the victim a series of text messages asking for money, which the victim refused. The applicant was angered by the refusal and when he returned to the couple’s home, he started verbally abusing her. He pushed her off the bed, injuring the victim’s knee, before pulling back on to the bed with his hand around her throat. Threatening to kill the victim, the applicant obtained a knife from the kitchen and pushed it against the victim’s throat while she was still on the bed. This caused a superficial laceration. The owner of the apartment became aware of the altercation and called the police. While the owner was on the phone the victim tried to push the applicant off her, causing him to slash her on the left arm with the knife.
The applicant pleaded guilty prior to the committal hearing despite previously denying he was the aggressor. The judge "accepted this plea as being ‘indicative of some remorse’" [19].
Issue: Whether sentence was manifestly excessive
Decision and reasoning: The sentence was manifestly excessive. A sentence of 4 years 3 months was substituted.
There was no finding that the wound to the victim’s arm was deliberately inflicted, unlike the laceration to her neck. When compared to more serious cases (Marrah, Nolan [63]) of the same offence this was significantly less serious. Ashley and Weinberg JJA state that ‘it is the fact that, despite the limited utility of raw sentencing statistics, the sentence imposed in this case was not far short of twice the median length of imprisonment for the offence over the 2016/2017 year, and that over the five-year period ending 2017 only a very small number of those imprisoned for this particular offence were subject to a sentence exceeding five years. Underlining the severity of the sentence imposed here, by no means did all persons sentenced for this offence in the five year period receive a custodial disposition.’[65]
Nevertheless, the court also pointed out that despite the sentence being manifestly excessive, this conclusion "does not gainsay the need for sentences for this offence, committed in a domestic setting, to reflect the need for general deterrence, specific deterrence … and protection of the community as pertinent sentencing considerations" and noted that "sentences for this offence, committed in a domestic setting, have increased in recent years." ([63]).
Ivanov (A Pseudonym) v The Queen [2019] VSCA 219 (8 October 2019) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Exceptional circumstances’ – ‘Manifestly excessive’ – ‘Perpetrator self-reported to police’ – ‘Rape’ – ‘Remorse’ – ‘Separation’ – ‘Victim testified in favour of perpetrator’
Offences: Rape x 2
Proceedings: Application for leave to appeal against sentence
Issues: Whether the individual sentences, the total effective sentence and non-parole period were manifestly excessive
Facts: The male appellant and female victim had been partners for 22 years and had three children together. The appellant found out that the victim had been having an affair for the last five years. He lost self-control and raped the victim, verbally abusing her during the assault while she just lay there. Afterwards, the appellant felt terrible and apologised. Two days later, the appellant discovered more details of the affair and lost control and raped the victim again. The couple cried together afterwards and the appellant apologised many times. The day after this, the appellant became concerned that the victim would try to harm herself and the appellant felt guilty about what he had done, so he reported his actions to a mental health clinician. The clinician alerted police and arrested the appellant who plead guilty immediately. The victim never intended to report the offending and saw police involvement in their marriage as ridiculous.
At the sentencing hearing, the victim gave evidence in support of the appellant and told the court that this was a private matter for the appellant and the victim to work out together. She testified that she wanted the appellant to be released as soon as possible so that the couple could start repairing what had happened, but that this had not been allowed to occur because of the imposition of an Intervention Order. Despite this, the judge sentenced the appellant to nine and a half years’ imprisonment with a non-parole period of seven years.
Grounds:
1.
The sentencing judge failed to synthesise properly the sworn and mostly unchallenged evidence of the victim. Specifically, the sentencing judge made findings on the impact of the offending that:
(a)
were not open to the judge or not properly founded on the victim’s evidence, and
(b)
failed, in the circumstances, to accord the appellant procedural fairness.
2.
The sentencing judge’s discretion miscarried as a result of the judge’s findings regarding remorse and the circumstances of the appellant’s own reporting of his crime. Specifically, the judge erred by:
3.
The individual sentences, the total effective sentence and non-parole period were manifestly excessive.
(a)
departing from the agreed statement of facts, and
(b)
denying the appellant, in the circumstances, procedural fairness.
Judgment: The court allowed all grounds of appeal, holding that the sentences were manifestly excessive and resentencing the appellant to four years’ imprisonment, with a non-parole period of two years. The court held that while the appellant’s behaviour was reprehensible [2] and involved a "grave breach of trust and violation of … bodily integrity" [153], "the prison sentences in this case must be much shorter than would ordinarily be required" [10]. This was because of two exceptional factors: 1) the appellant’s self-reporting and confession (without which he never would have been prosecuted), and 2) the victim’s "remarkable and powerful evidence" [10]. The court stressed that this was "an exceptional case" [1] and "these are wholly extraordinary circumstances calling for an equally extraordinary response" [10]. However, the court noted that denunciation and just punishment were relevant sentences factors in this case [153].
The court noted that a twelve-month Intervention Order was previously taken out against the appellant on behalf of the victim for smashing food into the victim’s face. However, the couple remained living together and their sexual relationship continued [17]. The court noted that the couple got divorced (because the appellant was frustrated that the victim worked so much), but continued to live together as if nothing had changed [20]. They did not tell the children of the divorce. The victim testified that she was the "Alpha female" and "glory parent" and would only see the children two or three times a week, and that the appellant was the sole carer of the children, the one who did all the hard work [21].
Regarding Ground 1, the court accepted that the sentencing judge erroneously found that the impact on the victim (who would now have to arrange for care of the children and explain the appellant’s absence to them) was an aggravating factor, as opposed to a mitigating factor [84]. The court also accepted that it was not open to the judge to have qualified the mitigation resulting from the reduced psychological and emotional impact of the offending on the victim in the way the judge did [95] and that the judge erred in qualifying the mitigatory effect of the victim’s evidence by being "mindful of the complex nature of the potential damage resulting from sexual offences committed in the context of family violence, which may not be readily apparent" [102]. While the court accepted the sentencing judge’s comments regarding the nature of sexual violence in a family setting and held that it was "therefore appropriate for sentencing judges to be cautious when confronted with evidence of forgiveness by victims of violence, whether sexual or otherwise" [103], the court held that each case turns on its own facts. In this case, there was no evidence that the relationship was afflicted by family violence or that the victim was persuaded to reconcile by the appellant [106]. The court noted that "There is not the slightest suggestion that [the victim] gave this evidence as woman ground down by years of ill-treatment and ensnared in a relationship from which she found it impossible to escape" [5].
The court also upheld Ground 2, finding that the fact that the appellant could not remember certain things was "not inconsistent with a high level of remorse" in part because the appellant consistently make extensive admissions about his conduct to police but also consistently told police that there were parts he could not remember [123]. The court accepted that there was overwhelming positive evidence of remorse [124]. The court considered that it was not open to qualify the level of the appellant’s remorse on the basis that his reporting of the offending was about the victim, not the appellant’s crimes [125].
The court further upheld Ground 3, holding that the individual sentences, the total effective sentence and the non-parole period were manifestly excessive because they failed to reflect all relevant considerations (including the appellant’s early pleas, remorse, previous good character, hardship involved in his imprisonment, and strong prospects of rehabilitation) and the sentencing judge failed to give sufficient weight to the two exceptional factors outlined above [139].
The court noted that the resentenced non-parole period was shorter than what otherwise might be imposed, but that this would still adequately reflect all of the sentencing purposes mentioned [166].
Degney v The Queen [2019] VSCA 183 (19 August 2019) – Victorian Court of Appeal
‘Appeal’ – ‘Family violence’ – ‘Guilty plea’ – ‘Physical violence and harm’
Case type: Appeal against sentence
Facts: The applicant sought leave to appeal against the sentence imposed for the offence of attempted aggravated burglary (3 years’ and 6 months’ imprisonment) on the ground that it was manifestly excessive. The applicant and victim lived together at the time of the offending, and were in a relationship ‘on and off’ for around 6 years.
Issue: The issue for the Court was whether the sentence was manifestly excessive, having regard to the objective gravity of the offending, the applicant’s limited criminal history and youth, the early plea of guilty and current sentencing practices.
Held: The applicant submitted that his criminal history was ‘limited and relatively minor’ ([32]). He had previously been sentenced, without conviction, to a community correction order (‘CCO’) for offences, including a charge of unlawful assault, charges of possession and use of cannabis and descending onto a railway track ([26]). He did not complete the CCO and was subsequently fined ([27]). The applicant contended that the offending was not towards the ‘serious end of the spectrum’ as it was brief, was not committed in company, and there was limited evidence of planning. He argued that there was only an intention to assault, not an intention to inflict actual physical harm ([31]).
The Court held that the seriousness of the offending was increased by factors, such as the fact that it involved ‘an attempted forced intrusion into a residence’ during the night, while possessing a ‘menacing weapon … with an intention to assault a terrified and vulnerable domestic partner’ by creating fear ([45]). His efforts to enter the premises were persistent and threatening ([46]), and his conduct could not be described as brief or short-lived as had been submitted by the applicant ([48]). His conduct was viewed within the context of his earlier abusive behaviour towards the victim ([47]). The absence of an intention to physically harm the victim and of a history of family violence was found not to diminish the inherent gravity of the offending ([49], [53]). Significantly, the offending was committed in circumstances of family violence, which aggravated the offending ([50]). His conduct was motivated by a sense of entitlement, which reflected on his moral culpability and exemplified ‘the very worst of male attitudes towards women’ ([51]). As a result, general deterrence was an important sentencing purpose ([52]).
Mitigating factors included the applicant’s early guilty plea, relative youth, limited prior history and remorse ([62]); however, when balanced against the objective gravity of the offending, these factors did not persuade the Court that the sentence was wholly outside the range of sentences reasonably available to the sentencing judge ([62]). The Court also noted the dearth of sentencing decisions involving attempted aggravated burglary ([58-[59]). Nevertheless, the Court dismissed the appeal against the sentence.
Lim v The Queen [2019] VSCA 182 (16 August 2019) – Victorian Court of Appeal
‘Assault’ – ‘Contravening a family violence order’ – ‘Exposing children’ – ‘Manifestly excessive’ – ‘Mitigating circumstances’ – ‘Obsessive behaviour’ – ‘Past domestic and family violence’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-child in the family’ – ‘Threat to kill’
Offences: Aggravated burglary; intentionally causing injury x2; threat to kill x2; persistently breaching a family violence intervention order; summary assault x1; summary offence of using a drug of dependence; and unlawful assault.
Proceedings: Application for leave to appeal against sentence
Grounds:
•
Whether sentence on summary assault exceeded maximum penalty;
•
Whether the individual sentences and orders for cumulation, the total effective sentence and the non-parole period were manifestly excessive;
•
Whether the sentencing judge paid insufficient regard to the principle of totality; and
•
Whether the sentencing judge erred in treating the applicant’s prior convictions as relevant to the assessment of the gravity of the applicant’s offending.
While drunk and drug-affected, the applicant forced his way into the home of his female ex-partner, the protected person in a FVIO to which he was the respondent. Upon entering, he grabbed KC’s father, threatened to kill him and chocked him in a sleeper hold to the point of unconsciousness. He followed KC as she fled the home and similarly choked and threatened her in the presence of her young daughter, continuing the choke hold until a police officer struck him with a torch and placed him in a headlock, having failed to subdue him with pepper spray. An elderly neighbour tried to comfort those at the scene but was also threatened by the applicant. When police arrived, they were only able to subdue the applicant with force.
The applicant persistently breached a family violence intervention order during the month leading up to the offence and had previously committed violent offences against KC and her father. He entered pleas of guilty and was sentenced to a total effective sentence of nine years and seven months’ imprisonment with a non-parole period of seven years. The sentencing judge described the offending as "very grave", "sustained and dangerous", "gratuitous" and "cruel and chilling". Sentencing considerations were general deterrence, specific deterrence, denunciation and protection of the community. Weight was placed on the applicant’s significant criminal history and "selfish and cowardly" approach to relationships. Significant mitigating factors were raised on his behalf including his early pleas of guilty, remorse, medical conditions causing particular hardship in custody, and reasonable prospects of rehabilitation.
Held: The first ground was conceded by the Crown. In respect to the second and third grounds, it was held that the sentence for aggravated burglary, cumulation, base sentence and resulting total effective sentence were all manifestly excessive and in breach of totality, providing that it is "likely that the judge placed too much weight on Mr Lim’s prior criminal history, was overwhelmed by the gravity of the offending or gave insufficient weight to the mitigating factors, or that some combination of these factors was operative" [122]. The sentence for unlawful assault was also held to be manifestly excessive.
The Court rejected the fourth ground of appeal as they considered using the offender’s prior convictions to inform an ‘assessment of the gravity of his crimes [was] not the same "as speaking of an assessment of the objective gravity of a crime" [53].
Nicholson (a Pseudonym) v The Queen [2019] VSCA 177 (14 August 2019) – Victorian Court of Appeal
‘Appeal’ – ‘Damaging property’ – ‘Intervention order’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Social abuse’
Charges: 1 x stalking; 1 x damage property; 1 x intentionally causing injury; 1 x sexual assault; 1 x commit indictable offence on bail; 3 x contravention of Family Violence Intervention Order (FVIO)
Case type: Appeal against sentence
Facts: The appellant and victim were in a relationship for about 3 years, and had married. They separated in 2016 due to infidelity and domestic violence issues. The charges to which the appellant pleaded guilty were contained in 2 separate indictments. 2 summary charges were brought against him. The appellant was subject to a Final FVIO in 2016 which he breached by attending the victim’s address, damaging her car, and coming within 5 metres of her on two occasions. He also stalked the victim by contacting her in breach of the Intervention Order ([9]-[17]), damaged her car ([21]), pinned her to the ground, and choked and sexually assaulted her by kissing her on the lips ([25]-[26]). The appellant also wrote the victim letters and emails over a period of several months that were threatening in nature. At the time of committing the offences, the appellant was on bail for other matters ([29]). The victim was injured as a result of the attack ([30]).
The sentencing judge concluded that the offending was serious, ‘protracted, violent and terrifying’, and sentenced the appellant to 6 years’ imprisonment with a non-parole period of 4 years.
Issue: The issue for the Court was whether the sentence and orders for cumulation were manifestly excessive, given the mitigating factors of the applicant’s health issues and the characterisation of offences.
Held: The Court dismissed the appeal as the total effective sentence imposed by the sentencing judge was not manifestly excessive and did not fail to adequately reflect the principle of totality ([75]-[81]). The offences were committed over a period of many months within the context of family violence. The damage caused to the victim’s property was found to be significant, planned and executed to cause harm ([56]). At [62], the Court noted that the sentencing judge correctly emphasised the seriousness of the offence of intentionally causing injury. The victim was frightened and threatened with words, such as ‘You are going to get it’ and ‘Just die’ ([61]). Further, the context of the sexual assault was considered to be ‘significant and inextricable’, as it occurred during a ‘frightening physical attack’, and was motivated by hatred and contempt ([66]). As for the 2 charges of contravention of the FVIO on the separate indictment, the Court did not consider the individual sentences to be manifestly excessive and that despite the applicant having no ability to carry out the threat as he was in custody, the fact that they contained death threats and were sent by someone who had previously employed threats of death made it very serious offending ([69]-[74]). As each offence was committed over an extended period of time, directed at the one person within the context of family violence, and escalated and continued even in custody, the overall criminality meant that the orders for cumulation was not manifestly excessive ([79]-[80]).
Kiril (A Pseudonym) v The Queen [2019] VSCA 133 (14 June 2019) – Victorian Court of Appeal
‘Application for leave to appeal against sentence’ – ‘Delay’ – ‘Elder abuse’ – ‘Manifestly excessive’
Offences: Reckless conduct endangering life
Proceedings: Appeal against sentence
Issues: Whether the sentence was manifestly excessive, in particular that the Learned Sentencing Judge gave insufficient weight to the delay in these proceedings being finalised.
Facts: The male appellant and his wife severely neglected the 83-year-old victim, the appellant’s mother, who relied entirely upon them for care. The victim previously lived in a supported residential service where she was very healthy and active, and would routinely visit the doctor. However, her visits to the doctor (which included filling her prescriptions) declined and ceased altogether when she returned to live with the appellant. The victim was found dead in her bed in squalid conditions. She died as a result of bronchopneumonia in a setting of cerebral infarction, weighing only 34kg and covered in bruises and abrasions. The appellant plead guilty to the charges and was sentenced to 18 months’ imprisonment, with a non-parole period of 12 months. The appellant appealed this sentence on the ground that it was manifestly excessive because the sentencing judge failed to give sufficient weight to the delay in the proceedings being finalised.
Judgment: The court refused to allow the appeal, holding that the sentence was not manifestly excessive but could even be regarded as "lenient" [49], [54]. The court noted that "the proper approach for this Court to adopt is to consider the circumstances of the offence and those of the applicant, instinctively synthesising the aggravating features and those going in mitigation – including the considerable delay – to determine whether the sentence imposed by the judge is wholly outside the range open in the sound exercise of discretion" [41]. While the delay had been considerable (five years from the offending to sentencing) and the court held that "ordinarily, a delay of that order would constitute a very powerful mitigating factor" [43], in this case, the appellant did not have a lengthy period of rehabilitation (the court accepting that he had developed no insight into his offending and did not have good prospects of rehabilitation) nor did he suffer stress or anxiety as a result of the delay [43]-[45]. Beyond the delay, the court emphasised, there was little that mitigated the offence [46].
The court noted the seriousness of the offending, holding that the victim was in such poor condition "because of the applicant’s callous disregard for her welfare" [48]. It further accepted that the appellant’s treatment of his mother was "cruel, heartless and inhumane" [48]. Forrest JA held that the appellant "admitted he foresaw that his conduct placed [the victim] at an appreciable risk of death, and yet he continued to neglect her … I consider that conduct to be truly reprehensible" [53].
Milosev v The Queen [2019] VSCA 121 (3 June 2019) – Victorian Court of Appeal
‘Breaches of community correction order’ – ‘Domestic violence’ – ‘Drug dependency’ – ‘History of abuse of accused’
Charges: Aggravated burglary x 1; theft x 1; recklessly causing serious injury x 1; conspiracy to commit theft x 1; breach of community correction order (CCO) x 1.
Case type: Appeal against sentence.
Facts: The applicant pleaded guilty to charges of aggravated burglary, theft, recklessly causing serious injury and conspiracy to commit theft. She was ordered to serve a community correction order (CCO), but was later charged with breaching that order and the mandatory terms contained in it. The applicant was sentenced to a total effective term of 15 months’ imprisonment, with a non-parole period of 9 months.
Issue: The applicant sought leave to appeal against the sentence on two grounds. The first ground was that the sentences imposed were manifestly excessive. It was also contended that the sentencing judge failed to give sufficient weight to 1) the impact of family violence suffered by the applicant, which compromised her ability to comply with the CCO; and 2) the applicant’s prospects of rehabilitation. The second ground was that the sentencing judge erred by not deferring sentencing before making a finding that the applicant was ‘unwilling and unable’ to comply with a further CCO.
Held: The application for leave to appeal against the sentence was refused. The applicant’s counsel contended that the applicant’s capacity to fully comply with the terms of the CCO was affected by the domestic violence perpetrated on her by her partner ([20]). It was argued that the applicant was the ‘captive of her partner throughout the term of the [CCO]’, and found it difficult to leave him and the drug infected environment in which she was then living ([25]). Although the Court recognised that the applicant was clearly subjected to domestic violence by her ex-partner, their Honours noted that the materials placed before the sentencing judge did not sufficiently explain her substantial and repeated failures to comply with the conditions of her CCO ([48]). While it was understandable that the applicant, under the pressure of the domestic circumstances in which she was living, relapsed into drug use, it appeared that she sometimes managed to remove herself from the abuse. Taking those matters into account, and giving full weight to the impact of her partner’s conduct towards her, their Honours did not accept that the sentencing judge erred in concluding that the applicant was either unwilling or unable to comply with a further CCO ([49], [56]). No sufficient circumstances were put to the sentencing judge which would require him to defer sentencing ([56]).
Neil v R [2019] VSCA 64 (25 March 2019) – Victorian Court of Appeal
‘Children’ – ‘Factors affecting risk’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Application for leave to appeal against sentence.
Facts: For about four months leading up to the victim’s death, the applicant and the victim were in an intimate relationship. In the period leading up to the incident, the applicant, Marmo (the applicant’s co-accused) and the victim were heavy ice users. On the day of the incident, the applicant was angry with the victim because she made a family violence complaint against him to police. The victim was savagely beaten by the applicant for ‘snitching and dobbing’ ([9]). Marmo and two other people were present. The applicant’s attack on the victim escalated, and involved kicking her to the head and body with extreme force. The victim later died and the applicant and Marmo agreed that Marmo should ‘dispose of her’, by dumping her body down a mineshaft and then burning it using petrol ([12]). The trial judge sentenced the applicant to a term of 26 years’ imprisonment, with a non-parole period of 22 years. Marmo was sentenced to a term of 24 years’ imprisonment ([3]).
Issues: The applicant seeks leave to appeal against his sentence on the following grounds:
•
The judge erred in applying the parity principle, for example, in that she imposed a greater sentence on the applicant than Marmo, even though the applicant pleaded guilty and Marmo pleaded not guilty, and where the applicant offered to give evidence against Marmo.
•
The non-parole period is manifestly excessive.
Decision and reasoning: The Court refused the applicant’s application for leave to appeal against the sentence. In determining the first ground of the appeal, the Court found nothing wrong with the trial judge’s conclusions about the respective roles of the applicant and Marmo. It was the conduct of the applicant that was ‘at the heart’ of the horrific offending and but for his anger with, and treatment of, the victim, her death would not have occurred ([42]). The Court was also unpersuaded that the applicant’s late plea of guilty required the trial judge to impose a lesser sentence than the sentence she imposed on Marmo ([43]). Overall, her Honour correctly differentiated the cases of the applicant and Marmo, and the Court therefore rejected the first ground of appeal ([44]).
The Court found that there was no substance in the applicant’s second ground of appeal, that the non-parole period was manifestly excessive. The fact that the non-parole period was almost 85% of the head sentence did not indicate any error. The higher the head sentence, the higher the percentage of the head sentence the non-parole period will likely be, and often it will exceed 80% ([46]). The non-parole period was not manifestly excessive in light of the circumstances of the applicant’s offending. The Court also held that the trial judge’s conclusions that a lower non-parole period need not be fixed on the basis that the applicant’s prospects for rehabilitation ‘appear reasonable’.
DPP v Elfata [2019] VSCA 63 (21 March 2019) – Victorian Court of Appeal
‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Stalking’
Charges: Rape x 1; reckless conduct endangering serious injury x 1 (acquitted); common law assault x 1 (acquitted); stalking (intent to cause physical harm) x 1.
Case type: Appeal against sentence.
Facts: The respondent was convicted of rape and stalking with intent to cause physical harm. He was acquitted of reckless conduct endangering serious injury and common law assault. The respondent and the complainant had been in a relationship for two years before the offending conduct. In relation to the charge of rape, it was alleged that the respondent placed his fingers inside the complainant’s vagina, so as to constitute digital, rather than penile, penetration ([5]).
The respondent was sentenced to two years and three months’ imprisonment with a non-parole period of one year. The Crown appealed on the ground that the individual sentence imposed for the rape charge (two years), the total effective sentence and the non-parole period were manifestly inadequate, and that the sentences imposed failed to:
•
Have sufficient regard to the maximum penalty for the prescribed offences;
•
Properly reflect the objective gravity of the offending;
•
Have sufficient regard to the impact of the offending on the victim;
•
Give sufficient weight to principles of community protection, general deterrence, specific deterrence, denunciation and the need for just punishment; and
•
Give weight to mitigating factors that was not excessive ([28]).
Issues: Whether the sentence and non-parole period were manifestly inadequate.
Decision and reasoning: The Court (Priest AP, Beach and Forrest JA) noted the difficulty in establishing a ground of manifest inadequacy as it requires the Crown to show that it was not reasonably open to the sentencing judge to come to the sentencing conclusion reached, and that the sentence imposed was ‘wholly outside the range of the sentencing options available’ ([35]). The appeal was dismissed because the objective gravity of the offending was lower than is often seen for rape offences. The Court distinguished Shrestha v The Queen [2017] VSCA 364 as the respondent did not display the same degree of criminality as the offender in that case ([36]). The Court agreed with the sentencing judge’s findings that the incident was a single, impulsive act, which did not appear to be premeditated. Excessive violence was not involved and the duration of the incident was relatively brief. Further, as the rape involved digital, rather than penile, penetration, ‘the offence could properly be described as a breach of an agreement as to the limits of intimacy, in the context of a longstanding relationship in which intimacy occurred throughout.’ ([37])
Moreover, the Court, agreeing with the sentencing judge, held that the fact the respondent exhibited little remorse and ran a trial was an important mitigating factor ([38]). Their Honours also did not disagree with the sentencing judge’s finding that the respondent had ‘relatively good’ prospects for rehabilitation ([27]). Although the sentence imposed was lenient, the Court held that is was within the range of available sentencing options.
DPP v Weaver (a Pseudonym) [2019] VSCA 26 (21 February 2019) – Victorian Court of Appeal
‘Emotional and psychological abuse’ – ‘Evidence issues’ – ‘Physical violence and harm’ – ‘Pretext call’ – ‘Sexual and reproductive abuse’ – ‘Suicide threats’
Charges: Rape x 2; common assault x 1.
Case type: Application for leave to appeal.
Facts: At the time of the offending, the respondent and the complainant were in a relationship. Their relationship was characterised by physical and emotional abuse. On two separate instances, the respondent raped the complainant ([2]-[3]). He also assaulted her by punching her in the face ([4]). In the past, the respondent had generally acted in a possessive and aggressive manner towards the complainant ([8]). He had previously made threats to commit suicide if she left him and had insisted on having sex with her on many occasions ([6]-[7]). An important piece of evidence in this application was a pretext call between the respondent and complainant. In the pretext call, the respondent made an admission to one or more of the allegations made by the complainant. Before the empanelment of the jury, the trial judge made a ruling excluding the admission into evidence of the contents of the pretext call.
Issues: Whether leave to appeal should be granted. Whether the exclusion of the evidence would eliminate or substantially weaken the prosecution’s case.
Decision and reasoning: The Court held that the trial judge did not err in considering that the jury could not reasonably conclude that the complainant specifically referred to either of the incidents subject to the two rape charges in the pretext call ([45]). Further, it was held that the trial judge correctly accepted that the jury could conclude that the respondent did make an admission of sexual misconduct in the pretext call. However, this admission was of limited probative value in the context of the case. The trial judge did not err in concluding that the probative value of the evidence would be outweighed by its prejudicial effect ([54]). Consequently, the Court concluded that the applicant should not be granted leave to appeal the decision of the trial judge to exclude the contents of the pretext call from evidence ([55]).
DPP v Missen [2019] VSCA 32 (4 February 2019) – Victorian Court of Appeal
‘Murder of parent’ – ‘People affected by substance abuse’ – ‘People with mental illness’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his father (the victim). The offence took place at the offender’s house that he occupied with the victim and his then girlfriend. The offender had an argument with the victim which erupted into a violent altercation, leading him to physically assault the victim until he was dead. Following the murder, the offender and his then girlfriend approached two men to help remove the body from the house and take it to a disused mineshaft for disposal. The offender’s relationship with his father at the time of the offending was ‘intensely troubled’; however despite the difficulties, they had a close and co-dependant bond. Further, he suffered from a range of emotional and psychological problems and was prone to drug abuse ([9], [57]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Dixon J sentenced the offender to 21 years’ imprisonment with a non-parole period of 17 years. The offender had a limited criminal history which included contravening a family violence safety notice and offences against police ([74]). Further, he pleaded guilty late and therefore was not entitled to the same degree of mitigation as if he had pleaded guilty at the earliest possible stage. There was also delay in the finalisation of proceedings which was due to factors beyond the offender’s control. For example, his then girlfriend changed legal representation more than once, and he was also diagnosed and treated for testicular cancer. As a result of these matters, the offender had been on remand since March 2016 ([75]-[78]). Her Honour noted that he had used this time productively, having enrolled in several programs open to remand prisoners, and received training in drug education ([79]). The offender’s prospects of rehabilitation were found to be reasonable, particularly if he remained on stabilising medication and avoided illicit drugs upon release ([82]-[83]).
The objective gravity of the crime was aggravated by the way the offender continued to assault the victim when he was already severely incapacitated. It was further increased by the nature of the physical violence, together with his efforts to dispose of the body and involve other people in that conduct. The concealment of the offence meant that the victim’s relatives did not learn of his death for some time after it occurred. Regardless of the pressures that the offender may have endured, her Honour found him to be solely responsible for the victim’s death ‘in an episode of appalling brutality’ ([84]-[85]).
The offending was not premeditated but arose in circumstances of sudden rage in the context of a highly dysfunctional household. Her Honour accepted that the offender was contrite but noted that expression of sincere remorse gave way to self-interest in the aftermath of the murder. She gave weight to denunciation, just punishment, general and specific deterrence, and the need for rehabilitation. However, specific deterrence was somewhat diminished as a factor given his limited criminal history and conduct on remand ([86]-[90]).
The parties only referred to a small number of cases involving the murder of a parent, none of which were comparable to the present case. A notable feature of this case was that despite the history of conflict between the offender and the victim, he ‘accepted responsibility for murdering the person [he] had come to depend on most’ ([91]-[93]).
Forbes (a Pseudonym) v The Queen [2018] VSCA 341 (18 December 2018) – Victorian Court of Appeal
‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’
Charges: Multiple counts of assault and rape.
Appeal type: Appeal against sentence.
Facts: The applicant was charged with 12 counts of assault and rape. The first five charges involved intentionally causing injury and rape against his former domestic partner. The remaining seven charges concerned offences of assault, rape, making a threat to kill and intentionally causing injury against the same domestic partner, however, the parties had separated at the time these particular offences were alleged to have been committed. The applicant pleaded not guilty to the offences. The sentencing judge imposed a sentence of 10 years 10 months’ imprisonment, with a non-parole period of seven years and three months.
Issues: The applicant sought leave to appeal because the sentence imposed was manifestly excessive in that:
•
The individual sentence imposed for one of the counts of rape (count 11) was excessive; and
•
The sentencing judge incorrectly characterised each offence as a serious example of that kind of offence; and
•
The sentencing judge gave insufficient weight to the applicant’s prospects of rehabilitation.
Decision and reasoning: The Court emphasised that the ground of manifest excess will only succeed if it can be proven that the sentence imposed fell wholly outside the range of sentencing options available to the sentencing judge. Their Honours considered the applicant’s limited criminal history to be relevant, but given his lack of remorse, denial of the offending and the circumstances of the offending, the sentencing judge was open to conclude that his prospects of rehabilitation were ‘guarded’ ([39]). The offending was found to be very serious, and the context of domestic violence significant ([42]). The applicant’s personal circumstances were also considered, including his previous experiences as a victim of sexual abuse, and his medical and psychological history (including brain damage and bipolar disorder). Ultimately, the Court refused the appeal as the total effective sentence imposed by the sentencing judge was not outside the range of sentencing options available to him.
The Court observed that the context of domestic violence is also very important. The Court quoted from Pasinis [2014] VSCA 97:
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 Court noted the importance of general deterrence in this context.
Hayden Samuels (a pseudonym) v The Queen [2018] VSCA 251 (1 October 2018) – Victorian Court of Appeal
‘Cumulative sentence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Women’
Charges: Rape x 2; make a threat to kill x 1.
Case type: Application for leave to appeal against sentence. Determined ‘on the papers’.
Facts: The victim was the applicant’s wife of many years. The applicant and the victim married in 1996 and have 2 children. The family emigrated from Egypt in 2009, and practise the Coptic Christian Orthodox faith. The rape offences involved penile-anal penetration, contrary to the Coptic religious faith (charges 3 and 4). The applicant also threatened to kill the victim, telling her that if she saw a counsellor he would kill her and tell everyone that she was mentally unstable and had committed suicide (charge 5). The victim suffered an anal injury as a result of the rape the subject of charge 4. The applicant was sentenced to 10 years and 6 months’ imprisonment, with a non-parole period of 7 years and 9 months. For the charge of making a threat to kill, the individual sentence was 2 years, and for the two rape charges, the individual sentences were 8 years each. The applicant was also sentenced as a serious sexual offender in respect of charge 5.
Issue: The applicant sought to appeal against the sentence. One ground of appeal was that the sentences imposed on each of the individual counts, and the order for cumulation of the sentence imposed on charge 4, were excessive.
Held: Tate JA refused leave to appeal as she was not persuaded that it was reasonably arguable that the sentences imposed against the applicant went beyond a sound exercise of the sentencing discretion ([48]). The sentences imposed against the applicant in relation to the rape charges were ‘very stern’. However, the offending was ‘extremely serious’ and, as the sentencing judge acknowledged, there has been a recent shift towards sterner sentencing for rape and other sexual offences. This has been a conscious decision of the courts to reflect the seriousness of domestic violence and sexual crimes committed against women in Victoria ([39]).
Her Honour noted the extreme seriousness of the offending and the absence of remorse. Therefore, there was a need for specific and general deterrence in the context of protecting the community from a serious sex offender in respect of charge 5 ([43]). Having regard to the facts, circumstances and available data regarding current sentencing practices, the sentence of 2 years’ imprisonment in respect of charge 5 was not manifestly excessive nor was the relatively modest cumulation of 6 months ([46]). Further, the order for cumulation with respect to charge 3 was found to be necessary to reflect the fact that the 2 rape offences occurred as ‘distinct and separate episodes’ ([47]).
McLean v The Queen [2018] VSCA 209 (24 August 2018) – Victorian Court of Appeal
‘Damaging property’ – ‘Factors affecting risk’ – ‘Sentencing’
Charges: Aggravated burglary x 1; Criminal damage x 1; Resisting an emergency worker on duty x 1.
Appeal type: Applicant for leave to appeal.
Facts: The applicant and his ex-partner argued by text message, culminating in the applicant’s text: ‘Addie won’t had no mother from today’ and ‘I’ll have the last laugh I promise you that’. Addie was their six-month old daughter. On the same day, the applicant broke into his ex-partner’s home, causing damage and turning on the gas before leaving. The applicant was charged with aggravated burglary, in that he entered as a trespasser, intending to destroy property with reckless disregard as to the presence of another person. He was also charged with causing criminal damage and resisting an emergency worker. He was sentenced to two years and six months’ imprisonment, with a non-parole period of two years.
Issues: The applicant sought leave to appeal on the basis that (1) the sentencing judge erred by imposing a manifestly excessive non-parole period of 80% of the total effective sentence; and (2) his Honour did not explain the necessity for the imposition of the relatively high non-parole period.
Decision and reasoning: The high ratio between the non-parole period and the head sentence was such that leave to appeal was granted, but the appeal was dismissed ([27]). Given the nature of the offending and the applicant’s criminal history, the sentences imposed (leaving to one side the non-parole period) were very modest and not excessive. The Court found that the explanation for the moderate sentence was largely the significance placed by the judge on the prospect of deportation. As the sentence exceeded two years’ imprisonment, the sentencing judge was required by s 11(1) of the Sentencing Act 1991 (Vic)to fix a non-parole period, unless he considered it inappropriate to do so, having regard to the nature of the offence or the offender’s past history. Clearly, his Honour considered it appropriate to fix a non-parole period. s 11(3) required that period to be at least six-months less than the term of the sentence. Here, the non-parole period fixed was, in a sense, the ‘maximum’ period that could be fixed. In determining the non-parole period, the judge was required to take into account the purpose of parole, namely, to provide for mitigation of punishment in favour of rehabilitation after the offender had served the non-parole period (see Power v The Queen [1974] HCA 26). The seriousness of the offending was such that justice required a non-parole period of at least two years. Therefore, the high ratio between the head sentence and the non-parole period was explicable by the very modest sentences imposed (and cumulation ordered) for the offences. There was no error in his Honour fixing the non-parole period.
Sawyer-Thompson v The Queen [2018] VSCA 161 (22 June 2018) – Victorian Court of Appeal
‘Battered woman syndrome’ – ‘Emotional and psychological abuse’ – ‘Manslaughter’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Defensive homicide x 1
Appeal type: Appeal against sentence
Facts: The female appellant had been in an abusive and violent relationship with her male partner for 12 months prior to her offending. Her partner threatened to kill her family unless she killed the victim. Acting under the fear of this threat, she killed the victim. The appellant pleaded guilty to defensive homicide.
Issues: Whether the sentence imposed was manifestly excessive.
Decision and Reasoning: Maxwell ACJ and Tate JA held that the sentence of 10 years’ imprisonment with a non-parole period of seven years was manifestly excessive. The appellant was re-sentenced to six and a half years’ imprisonment, with a non-parole period of five years.
The sentencing judge accepted that the killing took place at the direction of the appellant’s violent and abusive partner who had threatened to kill her family unless she killed the victim. She had been subjected to ‘repeated acts of violence, degradation and humiliation at the hands of her partner, who was… a highly dangerous person’. The fact that she proceeded to kill the victim rather than attempting to flee, and that she used excessive violence, ‘could only be understood through the lens of the sustained family violence she had experienced’ ([7]).
Maxwell ACJ and Tate JA held that the sentence imposed reflected a mischaracterisation of the gravity of the offending and of the appellant’s culpability. Insufficient weight was also given to the mitigating factors of cooperation with authority and youth ([65]).
The appellant’s undertaking to assist, and the provision of her statement, reflected remorse and a genuine desire to bring a person to justice ([55]). As a result, discount for cooperation was necessary because ‘there [was] some personal risk’ to the applicant, as a result of which she had already spent some time in protective custody.
Beach JA held that whilst the sentence was stern, it was not manifestly excessive ([133]).
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 Criminal 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 212at [21] and Mercer v The Queen [2015] VSCA 257at [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
‘Appeal against sentence’ – ‘Arson’ – ‘Coercive control’ – ‘Male victim’ – ‘Murder’ – ‘People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘People with mental impairment’ – ‘Physical violence and harm’ – ‘Principles in R v Verdins’ – ‘Sentencing’ – ‘Strangulation’
Charge/s: Murder, arson.
Appeal Type: Crown appeal against sentence.
Facts: The male respondent and the male deceased were in a relationship. The trial judge accepted that 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.
In setting out the background to the matter the Court observed:
The deceased was the dominant partner in the relationship, with the respondent by and large acquiescing to the deceased’s directions. Over the term of the relationship there was regular verbal conflict which intensified with time. The respondent told his psychologist how he was abused and humiliated in front of others by the deceased. Sometimes the conflicts involved verbal abuse and sometimes pushing and shoving. He also told the psychologist that the deceased was sexually demanding of him and if he declined the deceased’s approaches he would call him a ‘frigid bitch’. The respondent said he felt as if the deceased treated him as his own property. Despite all this, the deceased was regarded by the respondent as being loving and affectionate towards him. [7]
The Court also quoted from the earlier sentencing judgment of the Supreme Court, for example:
27 The personalities of both the deceased and the respondent were considered by the judge. Her Honour said this:
Mr Rattle was strong, confident and successful. He also had a dominant, controlling personality; everything had to be done his way, both personally and professionally. No doubt that was part of the key to his professional success. And, because of your own psychological make-up, you felt inadequate; it suited you to be with someone who took control and made all the decisions. But many of your mutual friends have described how Mr Rattle used to demean and belittle you in public. He frequently complained to them that you were not satisfying him sexually. In front of others, he would call you lazy, a parasite; he would threaten to send you back to where you came from. He was critical of your lack of business acumen. There were financial and business pressures on the relationship. In the work context, he treated you like the office boy, not his partner.
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]).
The appeal court noted that the sentence was mid-range in light of the trial judge’s rejection of the Crown’s characterisation of the crime as premeditated; the trial judge had noted that while the controlling and belittling behaviour that had characterised Rattle’s relationship with O’Neill did not justify killing him, it did mean that the sentence to be imposed for murder should be towards the lower end of the range for that offence.
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 Filizat [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 Queenat [20]; DPP v Pasinisat [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 Queenat [14]; DPP v Johnsonat [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
‘Coercive control’ – ‘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:
(a)
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
(b)
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 [1992] VCCA (unrep, 21 September 1992) – 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
DPP v Lindemann [2024] VSC 220 (22 May 2024) – Victorian Supreme Court
‘Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Exposing children to domestic violence’ – ‘No genuine remorse’
Charges: Murder x1; Recklessly causing injury x1.
Proceedings: Sentencing.
Facts: The male defendant pleaded guilty to the murder of his female partner and to recklessly causing injury to their young daughter.
The relationship was strained, owing in part to the defendant’s insecurity and jealousy, and dislike of the victim’s parenting style. [5]–[6]. The victim had developed a relationship with another individual and attempted to end the relationship with the defendant. [13]–[15] The defendant had trouble accepting the termination of the relationship, ‘exploding in a violent, jealous rage’, stabbing, kicking and strangling the victim in her bedroom. [29] Their daughter witnessed this entire incident and attempted to intervene. The victim’s mother also attempted to intervene (she resided in the home and suffered from Parkinson’s disease). The daughter suffered several knife injuries to her hands, elbow and shoulder. [28]–[36] The defendant stabbed the victim 17 times with multiple knives. [49]
The defendant then completed an internal transfer of $71,000 from his accounts before stabbing himself multiple times. [38]
Decision and reasoning: 31 years’ imprisonment, with a non-parole period of 25 years.
Justice Hollingworth found the defendant’s conduct to be ‘very serious examples of each offence’, motivated by ‘jealously, rage and a sense of entitlement’. [85] Her Honour held each offence to be ‘well above the mid-range’. [120]
The defendant has no prior criminal history and positive prospects of rehabilitation. [93] However, these prospects are tempered due to the defendant’s ‘limited insight’ into the impact of his conduct and victim-blaming mentality [93]
Accordingly, the defendant’s moral culpability was very high, [83] with the defendant possessing a ‘range of problematic gender-based beliefs’ [81].
DPP v Griffiths [2024] VSC 263 (22 May 2024) – Victorian Supreme Court
‘ Ruling’ – ‘Psychological support for jurors during a trial’ – ‘Vicarious trauma’ – ‘Audiovisual evidence’ – ‘Evidence from child witnesses’ – ‘Murder’ – ‘Physical violence and harm’
Charges: Murder x1; Recklessly causing serious injury x 1.
Proceedings: Ruling on the provision of support for jurors during a trial.
Facts: The accused is charged with the murder of his wife, and recklessly causing serious injury to his step-daughter. The accused has pleaded not guilty to these charges. Upon empanelment, the jury were notified that the trial would involve confronting audio-visual evidence: namely, body-worn camera footage of the scene of the crime, and the injured victim. In the presence of his two step-children, the accused poured petrol on his wife and lit the petrol using a cigarette lighter. The victim suffered burns to 90% of her body, dying four days later in hospital. The accused’s step-daughter suffered serious burns in the incident.
Members of the jury, experiencing vicarious trauma, notified the court and queried if counselling would be made available during the trial.
Issue: Whether counselling or other psychological support can and should be provided to a jury during a trial.
Decision and reasoning: Psychological support for jurors should be provided during trials.
When read as a whole, the Juries Act 2000 (Vic) does not prevent ‘a jury from being provided assistance during the trial if it becomes necessary’. [29]
Accordingly, there is ‘no impediment’ a court providing jurors psychological support should, like the present, ‘graphic or confronting evidence’ be played and members of the jury indicate the need for such support. [38] The nature of this support may vary, but typically may involve an information session on vicarious trauma, [49] or ‘a group information session which all jurors attend, or private counselling sessions between individual jurors and a psychologist’. [40]
Re Harris [2024] VSC 226 (09 May 2024) – Victorian Supreme Court
‘ Bail application’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Exposing children to domestic and family violence’
Charges: Common law assault x 1; Assault x 2; Resist x 2; Assault an emergency worker x2; Threat x 1;
Proceedings: Application for bail.
Facts: The male applicant strangled and threw his wife against a wall in their house. One of their children witnessed the incident, and immediately contacted the grandfather and 000. The applicant threw a lit candle at his father (upon his arrival) and pinned him to the ground. The applicant resisted police, punching two officers. The applicant was taken to the hospital, following his father’s concern that he had consumed an illicit substance. Therein he threatened to kill ‘them all’ and punched a security guard several times. [3]
Decision and reasoning: Application for bail approved with conditions
Justice Champion was satisfied that the applicant’s sustained violent behaviour occurred after ‘he had taken an overdose of tablets’. [24] The applicant has no prior criminal history and may spend longer on remand that on any sentence of imprisonment that may be imposed for the charged offences. [22] Accordingly, HH accepted the bail application on the condition the applicant receive residential treatment at a health clinic.
Re Mahat [2024] VSC 140 (01 February 2024) – Victorian Supreme Court
‘ Bail application’ – ‘Protection order’ – ‘Physical violence and harm’ – ‘Emotional and psychological abuse ’ – ‘Strangulation ’ – ‘Threats of violence ’ – ‘Damaging property ’
Charges: Attempted armed robbery x1; robbery x1; Reckless conduct endangering life x1; Intentionally causing injury x2; Recklessly causing injury x 2; Making threats to kill x1; Assault with a weapon x3; Using a prohibited weapon without approval x1; Committing an indictable offence whilst on bail x1; Contravening certain bail conduct conditions x1; Contravention of protection order, intending to cause harm or fear x4; Contravening an interim protection order x 10; Unlawful assault with a weapon x1; Unlawful assault x3; Intentionally damaging property x1; Driving whilst suspended x1.
Proceedings: Application for bail.
Facts: The female complainant is the male applicant’s former partner. [15] The present charges cover various incidents of actual and threatened physical harm, emotional/psychological abuse, and withholding and damaging personal property[17]–[39]
Decision and reasoning: Application for bail denied.
Justice Champion held the allegations to be ‘serious examples of family violence’. [96] The incidents escalated in severity and involved weapons: ‘the alleged use of a knife and a taser is highly concerning’. [96] Further, certain incidents involved strangulation, ‘which are commonly accepted to be an indicator of, or risk factor for, homicide’, and the most violent involved the assistance of a third party. [97]–[98]
Lastly, each of these incidents were committed in disregard of protection orders, indicating that the applicant has no ‘insight into the relationship or the seriousness of’ protection orders. [99]
DPP v Malovski [2023] VSC 748 (13 December 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Attempted murder’ – ‘Firearm’ – ‘significant criminal history ’ – ‘Family violence intervention order ’ – ‘Coercive control ’ – ‘Jealousy ’ – ‘Separation ’
Charges: Attempted murder x 1; Being a prohibited person in possession of a firearm x 1.
Proceedings: Sentencing.
Facts: The defendant confronted, pursued and repeatedly shot a friend of his ex-wife while he assisted her in a flower stall in 2022. The defendant shot no fewer than five shots at the victim, one of which rendered him an incomplete paraplegic. The defendant’s 10-year-old son witnessed the event. The defendant was motivated by anger at the victim for supplanting him in the life of his family and a desire to maintain control over his ex-wife ([6]). The defendant was on a family violence intervention order at the time, issued in 2021 [8]. The defendant was found guilty of attempted murder and pleaded guilty to being a prohibited person in possession of a firearm.
Decision and reasoning: 20 years’ imprisonment with a non-parole period of 15 years. In handing down the sentence, Tinney J noted:
For reasons of anger, resentment, jealousy and probably also a desire to maintain control over your former wife, you carried out a shocking and senseless public attack upon an entirely innocent man in full view of your former wife, your 10 year old son and many others. The very idea of an angry and embittered man chasing his quarry around in circles in a public reserve bordering a busy main road in a suburb of Melbourne and firing a large number of shots from a pistol intending to kill him is quite appalling. You failed to achieve your aim, but not for want of trying. You have left Mr Grant with terrible injuries which will blight his life forever and reduce the quality of that life. This was a terrible crime, as your counsel fairly conceded, and is deserving of condign punishment [79]
Turning to general deterrence, male violence towards former intimate partners, or towards new friends of former intimate partners, is a depressingly frequent occurrence in our society, and is to be deplored and discouraged. The sentence I pass on you must be such as to clearly bring it home to any male, or any person, who would seek to wreak violent retribution against another person motivated by a refusal to accept or deal with the end of a relationship, that such conduct will be met with very strong punishment’ [81]
DPP v Charlton (No 2) [2023] VSC 707 (29 November 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Cold Case’ – ‘16-year gap between offense and laying of charge ’ – ‘Strangulation ’ – ‘Active steps to conceal involvement ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: Following a trial by jury, the defendant was found guilty of the murder of Joanne Howell in 2007.
The defendant and Howell were in a relationship, living together for approximately five months prior to Howell’s death. During this period, the defendant and Ms Howel were experiencing ‘relationship difficulties’ [4]. On the morning of Ms Howell’s death, Ms Howell demanded the defendant move out, giving him 30 days to do so. That evening, after having taken the dog for a walk, the defendant called emergency services, reporting the discovery of Ms Howell unconscious at the bottom of the stairs in their home.
No charges were initially laid in 2007. A coronial inquest into Ms Howell’s death was conducted in 2011 and in 2020, the investigation was revived, and charges of murder laid against the defendant [16]–[18]. Based on the whole evidence, the jury concluded that the defendant struck the back of Ms Howell’s skull, strangled her with a ligature with an intention to kill [13].
Decision and reasoning: 24 years’ imprisonment with a non-parole period of 19 years. In passing sentencing, Elliot J noted:
Murder is a gravely serious offence. You brutally murdered Ms Howell in her home where she was entitled to feel safe. It is a significant aggravating factor that your offending was an extreme act of domestic violence [42].
The delay between the date of your offending and you being charged is significant. … That being so, the delay cannot simply be characterised as undue and nothing more in circumstances where you took active steps to conceal your involvement in Ms Howell’s murder [48].
DPP v Basham [2023] VSC 655 (14 November 2023) – Victorian Supreme Court
‘ Application for forfeiture of property’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Tainted property ’
Charges: Murder x 1.
Proceedings: Application for forfeiture of property connected to offence.
Facts: The respondent was convicted of the murder of his estranged wife. The murder took place in the victim’s home (‘the home’). The respondent drove his motorcycle to and from here. The DPP applied for forfeiture of the home and motorcycle under s 32 of the Confiscation Act 1997, which empowers the DPP to apply for a forfeiture order of property ‘used in or in connection with certain criminal offences’. [3]
Decision and reasoning: Application for forfeiture granted. Both the home and motorcycle were judicially determined to be ‘tainted property’; each was instrumental to the offence, and the respondent obtained an interest in them by survivorship following the victim’s death. [50];
In outlining the relevant considerations attached to a grant of an order of forfeiture, Taylor JA emphasised the gravity and nature of the offender’s crime as both relevant. [16] The application of these considerations further reinforced the grant:
The objective gravity of Basham’s offending and his moral culpability for it are of the highest order. It was a premeditated murder that occurred against a background of family violence and seven days before Ms Fraser was to give evidence in the committal hearing of rape allegations she made against Basham. The offending itself consisted of Ms Fraser being subjected to a savage beating in which she sustained 41 separate blunt force injuries before being hanged. The forfeiture of [the home] is proportionate to the nature and gravity of the offending, being a ‘worst case’ murder. [53]
Forfeiture also advances deterrence in relation to serious crimes. Deterrence is of particular note when offending occurs in the context of family violence. [53]
DPP v Pandilovski [2023] VSC 514 (30 August 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Strangulation ’ – ‘Concealment ’ – ‘History of family violence ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The accused pleaded guilty to the murder of his wife. In the morning of 14 July 2020, the accused strangled his wife, before moving her body into a storage room. The accused took photos of the victim’s body using the victim’s mobile phone. [5] Not long after leaving the victim’s home, the accused attempted to commit suicide by veering into the path of oncoming traffic. [6] No one was killed. When taken to the Royal Melbourne Hospital, the accused threatened to harm himself. [6] Police discovered the victim’s body in the evening.
Decision and reasoning: 24 years’ imprisonment with a non-parole period of 17 years. [48]–[49]
Justice Beale considered the victim impact statements of the victim’s family, which referred to the ‘great suffering’ caused by the accused’s actions. [13] His Honour considered the objective gravity of the accused’s offending to be in the ‘upper-mid range example of murder’: it was a ‘domestic murder, carried out in [the victim’s] own home against the backdrop of past violence’ committed by the accused towards her. [16]
His Honour accepted the accused’s plea of guilty, remorse and reasonable prospects of rehabilitation as circumstances of mitigation. [40]
DPP v Tan [2023] VSC 416 (21 July 2023) – Victorian Supreme Court
‘ Sentencing’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Late confession ’ – ‘Following, harassing and monitoring ’ – ‘Exposing children to domestic and family violence ’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The male offender was found guilty of the murder of his former female partner. In the month leading to the victim’s death, the victim’s interest in the accused waned. The accused, however, maintained strong possessive feelings for the victim and soon began monitoring the victim, accessing her phone and reading her private messages. One night, following a heated argument concerning the victim’s waning interest, the accused stabbed the victim multiple times in the chest in her home. [9] The victim’s son was in the house. The accused proceed to dispose of the victim’s body in a wheelie bin. [15]
Decision and reasoning: 28 years’ imprisonment with a non-parole period of 23 years. [60]
Justice Fox considered the victim impact statements of the victim’s family and friends, including the victim’s son who has been ‘left traumatised’ by the accused’s actions. [31]
Justice Fox noted that it was only after hearing the victim impact statements that the accused accepted the jury’s verdict and admitted to murdering the victim. [41] A confession ‘after a verdict attracts none of the benefits which attach to a guilty plea’. [42]
The accused had no prior convictions or history of family violence. [45] However, it remained a troubling aspect of the accused’s character that ‘after a relationship of only on month, [he] became so jealous and proprietorial that, when faced with rejection, [he was] capable of murder’. [45]
DPP v McDonough [2023] VSC 352 (23 June 2023) – Victorian Supreme Court
‘Expert evidence’ – ‘Extensive criminal history’ – ‘High moral culpability’ – ‘History of domestic and family violence’ – ‘Homicide’ – ‘Manslaughter’ – ‘People affected by drug and alcohol misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Poor prospects of rehabilitation’ – ‘Post-offence conduct’ – ‘Sentencing’
Charges: Manslaughter x 1.
Proceedings: Sentencing.
Facts: The male offender pleaded guilty to manslaughter of his female partner. In the course of assaulting the victim, the offender punched the victim in the face, causing her to fall over and hit her head. The fall caused bleeding to the brain, resulting in the victim’s eventual death.
Issues: Sentence to be imposed.
Reasoning and decision: Fox J sentenced the offender to 11 years and 6 months’ imprisonment with a non-parole period of 8 years and 6 months.
In assessing the offender’s personal circumstances, Fox J acknowledged the offender’s drug abuse led to an unstable lifestyle and significantly contributed to his offending behaviour [27]. Fox J also recognised the offender had a very lengthy and relevant criminal history, dating back to 2001. The offender breached good behaviour bonds, suspended sentences and community correction orders imposed by the courts [29]. The offender was on bail for other matters when he committed manslaughter, aggravating his offending [29].
Mental illness diagnoses were not consistent, but experts discussed schizophrenia, substance use disorder, depression, personality disorder, and a mild acquired brain injury [30]-[34]. However, Fox J held Verdins has no application as there was no evidence prison would be a burden on the offender’s mental health [35].
Fox J provided a sentencing discount for the early-stage guilty plea [36] and accepted prison COVID-19 restrictions as a mitigating factor [38]. The judge also regarded the offender’s post-offence conduct as relevant; he called an ambulance, expressed he knew what he did was seriously wrong, and handed himself into police the same day [41].
However, Fox J considered the offender’s remorse limited [40]. The judge also held the offender’s prospects of rehabilitation were poor, as he had declined to engage in prison-based services and had a long-history of breaching court orders [43]. Fox J held that neither the offender’s drug use nor mental health issues mitigate his offending. His moral culpability for the crime was high [45].
Fox J stated when sentencing violence against female partners, ‘the courts must send a message to other would-be offenders that if you commit such crimes, you should expect to receive a substantial term of imprisonment’ [48].
Re Thompson [2023] VSC 274 (17 May 2023) – Victorian Supreme Court
‘Application for bail’ – ‘Compelling reason’ – ‘Expert evidence’ – ‘No prior criminal history’ – ‘Past defence service’ – ‘Physical abuse’ – ‘Psychologist evidence’ – ‘Rape’ – ‘Separation’ – ‘Serious alleged offending’ – ‘Sexual abuse’ – ‘Stalking’ – ‘Suicide threat by perpetrator’ – ‘Technology facilitated abuse’ – ‘Unacceptable risk’
Charges: rape x 7; rape by compelling sexual penetration; attempted rape x 2; assault x 6; sexual assault x 3; assault with intention to commit sexual offence x 2; recklessly causing injury; false imprisonment x 6; criminal damage x 4; stalking; installation use and maintenance of optical surveillance devices; threatening to distribute intimate image; theft. (Also unrelated charges of driving under the influence of alcohol x 3).
Proceedings: Bail application.
Facts: The applicant man and complainant woman had been in a relationship since 2015. Following unsuccessful IVF treatment their relationship deteriorated and it is alleged the applicant’s violence towards the complainant commenced. The relationship ended in 2021 but despite this, the couple continued a sexual relationship, while agreeing to also see other people, which the complainant commenced to do. They agreed the complainant could keep storing belonging’s in the shed of the home and stay in the shed when visiting Bendigo (he had moved to Melbourne). It was during this period that the offending occurred.
The applicant allegedly broke into the complainant’s house on multiple occasions, including while she was sleeping with another man, and on one occasion secretly filmed her having sexual intercourse with someone else and threatened to distribute the resulting film. The applicant also came to the complainant’s house and tampered with and damaged her car, came into her bedroom while she slept, monitored her phone and sent her images of a cut on his arm, insinuating that he would kill himself.
After the complainant told the applicant she needed space apart from him, he became aggressive, verbally and physically, grabbing the complainant and ripping a door off its hinges. On another occasion, the complainant came home to find the applicant hiding under her bed and there were multiple instances of rape. While the complainant left her house for a period and changed the locks, the applicant later confronted her at her home again and attempted to rape her again, chasing her out onto the street and physically assaulting her.
The applicant admitted to stalking but denied the sexual offences and was initially denied bail. A ten-year protection order was made with a full no-contact condition. The applicant relied heavily on evidence from his psychologist (Cummins) to demonstrate his lack of risk. Cummins opined that the offending was ‘situationally motivated,’ having arisen in the context of a relationship breakdown in which the agreement to see other partners was ‘very provocative’ and difficult for the applicant [82], [87]. Cummins undertook a risk assessment using the ‘Risk for Sexual Violence Protocol’ guidelines (and not the Static-99R), concluding that the applicant displayed none of the markers of re-offending. He was not able to complete a full assessment of the applicant’s risk profile for violence, as he felt limited by the need to distinguish allegation from established fact. The prosecution challenged Cummins’ characterisation of the offending and finding of low risk, which they saw as being largely based on his focus on the applicant’s lack of criminal history and lack of completion of the risk-assessment tests.
Reasoning and decision: Bail refused.
There was no contention that the offender had compelling reasons for bail and Champion J accepted this based on his stable accommodation, possible future employment, substantial surety, ongoing treatment opportunities and lack of criminal history.
Champion J found that the applicant demonstrated an unacceptable level of risk given the degree and protracted, premeditated nature of the offending, his disturbing surveillance of the complainant and his willingness to travel significant distances for the offending, consistent with the prosecution’s rejection of the offending as ‘situationally motivated.’ The complainant had an entitlement to live in peace and privacy which would be undermined by his bail.
While there was no mental health diagnosis, Champion J noted Cummins’ lack of access to historical records, refusal to draw connection between the offending and the applicant’s military history, and limited ability to commit a full sexual offending risk-assessment. Given the arrangement for the committal hearing in a few weeks, the judge concluded that the prosecution case and thus his bail could more realistically be assessed at that time. The applicant relied heavily on evidence from his psychologist (Cummins) to demonstrate his lack of risk. Cummins opined that the offending was ‘situationally motivated,’ having arisen in the context of a relationship breakdown in which the agreement to see other partners was ‘very provocative’ and difficult for the applicant [82], [87]. Cummins undertook a risk assessment using the ‘Risk for Sexual Violence Protocol’ guidelines (and not the Static-99R), concluding that the applicant displayed none of the markers of re-offending. He was not able to complete a full assessment of the applicant’s risk profile for violence, as he felt limited by the need to distinguish allegation from established fact. The prosecution challenged Cummins’ characterisation of the offending and finding of low risk, which the court saw as being largely based on Cummin’s focus on the applicant’s lack of criminal history and lack of completion of the risk-assessment tests.
DPP v Tan (Ruling No 1) [2023] VSC 296 (2 May 2023) – Victorian Supreme Court
‘Allegations of infidelity’ – ‘Application to lead hearsay evidence’ – ‘Evidence’ – ‘Evidence of accused accessing text messages of victim’ – ‘Hearsay’ – ‘Monitoring’ – ‘Murder’ – ‘Relevance’ – ‘Short relationship’
Charges: Murder.
Proceedings: Prosecution pre-trial application to lead hearsay evidence.
Facts: The accused objected to the admissibility of two statements in the Crown’s noticer of hearsay evidence filed pursuant to s67 of the Evidence Act 2008 (Vic) (‘the Act’). The deceased woman was in a relationship with the accused which commenced on 1 January 2021. She was killed on 1 February 2021, after the accused became aware that she was friendly with another man.
The prosecution submit the hearsay representations for part of the evidence detailing the relationship evidence, and relevant and admissible as an exception to the hearsay rule pursuant to s65(2)(b) and/or s65(2)(c) of the Act.
Issue: The admissibility of the disputed evidence, two hearsay statements of the deceased to the deceased’s friend Ms Chi, namely:
1.
‘That the accused deliberately ejaculated in her vagina without her permission, and that she was angry as a result’ (the parties agree ‘deliberately’ and ‘without her permission’ should be deleted); and
2.
‘The accused had been accessing her mobile phone and reading her messages’.
Objections: The defence objects to the admission of the statements on the following bases:
1.
The first statement is not relevant, does not come within a recognised exception to the hearsay rule, and in any event should be excluded pursuant to s 137 of the Act.
2.
The second statement does not come within a recognised hearsay exception.
Reasoning and decision:
1.
The first statement is not relevant pursuant to s 55 and therefore not admissible pursuant to s 56(2):
In my view, the evidence that the deceased told Ms Chi that the accused ‘came inside my vagina’, and she was very angry and yelled at him about it, could not rationally affect (directly or indirectly) the assessment of the probability of whether the accused killed the deceased, and if so, whether he killed her with murderous intent. The evidence does not provide a motive or reason for the killing. It does not assist a jury to determine whether the accused in fact killedthe deceased. It does not provide necessary context or background. It is not relevant and therefore not admissible. [53]
2.
The second representation is hearsay and admissible pursuant to s 65(2(c):
Turning to s 65(2)(c). The phrase, ‘made in circumstances that make it highly probable that the representation is reliable’ creates a stringent test. It may be contrasted with the language employed in s 65(d)(ii), which provides that the representation must be ‘made in circumstances that make it likely that the representation is reliable’. Clearly, s 65(d)(ii) sets a lower bar than s 65(2)(c).[59]
There are a number of relevant circumstances which bear upon the question of whether it is ‘highly probable’ that the representation is reliable. The deceased and Ms Chi were close friends, and the evidence shows the deceased shared intimate and personal information with Ms Chi. The deceased told Ms Chi a number of things about her relationship with the accused, and not only things that portrayed the deceased positively and the accused negatively. For example, the deceased told Ms Chi that she was not in love with the accused, but liked his money and that he cleaned her house. She said she did not really want to have sex with him, but did it so he would keep paying for things. These disclosures suggest Ms Chi and the deceased had an honest and frank relationship. [60]
The deceased had no reason to lie or embellish, or mislead her friend Ms Chi. She was not drug or alcohol affected. She did not suffer from any physical or mental illness or other issues that would have impacted her reliability. The event about which she spoke had occurred recently, in circumstances where she was still seeing the accused. This was a simple, uncomplicated narrative, made to a close friend who she communicated with multiple times a day. [61]
R v Basham (Sentence) [2023] VSC 79 (27 February 2023) – Victorian Supreme Court
‘Coercive control’ – ‘Controlling, jealous or obsessive behaviours’ – ‘Monitoring’ – ‘Murder’ – ‘Past domestic and family violence’ – ‘Physical violence’ – ‘Protection order’ – ‘Rape’ – ‘Sentencing’ – ‘Separation’ – ‘Sexual abuse’ – ‘Stalking’ – ‘Tracking’
Proceedings: Sentencing hearing for a conviction of murder (Category 1 offence).
Issue: Was the murder in the ‘worst category’ of offending such as to justify the imposition of a life sentence?
Facts: The male defendant and female deceased separated after 10 years of a marriage in which the defendant subjected the deceased to physical and emotional abuse.
The victim lived in ‘abject fear’ of the defendant, who monitored her movements and communications and made threats to destroy her. The victim obtained a protection order following the separation, installed security in her home and made two allegations of rape against the defendant, who was charged.
One week before the committal hearing for the rape offences, the defendant hid himself outside the victim’s house while she took her children to school. When she returned into the garage, he brutally beat her (inflicting 41 separate blunt force injuries) and hanged her, attempting to stage the scene as a suicide.
Reasoning and decision: Taylor JA imposed a life-sentence with a non-parole period of minimum 30 years describing the offence as an instance of the ‘worst case’ of murder.
Taylor JA considered both the objective seriousness of the crime itself and the personal circumstances of the criminal (R v Kilic). The premeditated and vicious nature of the attack, the defendant’s motivations of rage, jealousy and preventing the victim giving evidence at his rape trial, and the background of sustained family violence supported the conclusion that the offence was in the most serious category of murders.
Taylor JA was satisfied beyond reasonable doubt that the murder was a ‘long held, sustained goal,’ apparent in the defendant’s attempts to conceal his presence in the area, stalking of her house and the immediate nature of the attack. Taylor JA rejected the defence suggestion that the attack was a result of a momentary loss of temper, as the victim’s fear of the defendant meant she would not voluntarily have remained in his presence.
Taylor JA was further satisfied that a large part of the defendant’s motive was to prevent the victim from giving evidence in the rape proceedings against him, as well as his rage and jealously at no longer being in control of her.
The defence argued that the defendant’s good character, lack of prior conviction and good prospects for rehabilitation made specific deterrence and community protection of limited relevance. However, Taylor JA refused to accept that equal weight should be given to the criminal’s personal circumstances and the ‘objectively heinous’ nature of the crime. Importantly, Taylor JA drew attention to the fact that domestic violence is pernicious due to its invisibility and frequent perpetration by men with otherwise good reputations.
The defendant was also found to lack remorse – continuing to deny responsibility and remaining impassive during the victim impact statements – and have no ameliorating personal circumstances.
The defendant’s moral culpability was at ‘the highest end’ and the sentence must reflect ‘the abhorrence with which society regards violence towards domestic partners.’ The principles of general deterrence, denunciation, community protection and just punishment guided the decision:
“such violence is pernicious largely due to the fact that it is often invisible in public life, committed disproportionately by men who might otherwise enjoy a reputation for being good fathers, hard-working providers, reliable friends or community minded citizens” [94]
DPP v Cormick [2022] VSC 786 (16 December 2022) – Victorian Supreme Court
‘Appeal on a question of law pursuant to s272 criminal procedure act 2009’ – ‘Breach of protection order’ – ‘Emotional and psychological abuse’ – ‘Mens rea’ – ‘Protection order’ – ‘Separation’
Matter: Appeal on a question of Law pursuant to s272 Criminal Procedure Act 2009.
Facts: The male respondent was subject to an interim protection order in which the protected person was the respondent’s female former partner made on 12 May 2021. On 2 September 2021 charged with 1 x persistently contravening a protection order section 125A Family Violence Protection Act 2008 (Vic) and 4x contravening a protection order s 123 Family Violence Protection Act 2008 (Vic) (the factual basis of charge 1 was the contraventions alleged in charges 2-5).
The alleged contraventions involved committing family violence against the protected person in the form of telephone calls and text messages that amounted to emotionally and psychologically abusive behaviour.
The magistrate found that the messages were emotionally and psychologically abusive, making the protected person feel unsafe and threatened. However, the magistrate rejected the prosecution’s argument that contraventions were strict liability offences and determined that the prosecution had been unable to prove the respondent’s intention to breach.
Issue: An appeal was brought by the DPP on two grounds, the first of which was withdrawn.
1.
Contraventions of protection orders are strict liability offences
2.
The learned magistrate erred when construing the relationship between the physical element and the fault element under s 123.
At issue was whether the offence created by s 123 was concerned only with prohibited conduct and not whether the result of that conduct was intended.
Reason and decision: Appeal dismissed. The Magistrate properly directed themselves as to whether the order had been breached.
Niall JA premised the construction of the nature of the mens rea under s 123 on the general principle that mens rea is an essential ingredient and considered authorities that distinguished between specific and general intent offences.
In relation to the offence of contravening a protection order (s 123(2)) by engaging in family violence in the form of emotional or psychological abuse (ss5, 7), it was observed that divorcing the physical act from its impact was impossible and excluding consequences from the mental element would ‘substantially alter the nature of the offence’ [54].
It was concluded that a ‘person must intend to commit an act that has the physical or emotional consequences which form part of the offending conduct’ [61]. In this case, the prosecution was required to prove the accused sent the messages ‘with the intent to torment, intimidate, harass or be offensive to the recipient’ [62]. Niall JA observed that this construction would not undermine the statute’s protective purpose or be unduly burdensome, as intent ‘will be proved inferentially’.[58]
The Queen v Surtees [2022] VSC 124 (11 March 22) – Victorian Supreme Court
‘Burning’ – ‘Covid-19’ – ‘Dousing’ – ‘Exposing children to domestic and family violence’ – ‘History of domestic and family violence’ – ‘Immolation’ – ‘Immolation threat’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘Physical violence and harm’ – ‘Post traumatic stress disorder’ – ‘Sentencing’ – ‘Victims as (alleged) perpetrators’
Charges: manslaughter by unlawful dangerous act x1.
Proceedings: Sentencing.
Facts: The female offender pleaded guilty to the manslaughter of her husband. The offender and her husband had been in a relationship for 10 years and had two daughters, aged six and four. The offender’s 11-year-old son from a previous relationship also lived with the couple. The couple would often argue, at times have screaming matches and sometimes hit each other.
In 2016 Victorian Child Protection Services received a report of children being exposed to violence, but an investigation was not pursued [7]. In 2017 the victim pleaded guilty to unlawful assault against the offender [8].
On the night of the offence the victim had been drinking and yelling at people at a party they attended. After returning home he continued to yell at the offender. After the victim had calmed down and was sitting on the couch the offender, angry about the victim’s behaviour through the day, doused the victim in petrol and threatened him with a lighter by igniting it near him. He ‘burst into flames’ leading to serious injuries which resulted in his death [15]. The three children all witnessed their father in flames.
Proceeding: Sentencing.
Decision and Reasoning: 12 years imprisonment with a fixed non-parole period of 8 years [132].
Justice Tinney noted that 17 victim impact statements were filed, and all detailed the kind and decent nature of the victim. His Honour specifically noted the ongoing financial and emotional impact on the victim’s brother and his wife, who took in the children [111].
The offence was a serious example of manslaughter and the objective gravity of the offence as very high [85], [125]. There was a very high and obvious level of dangerousness inherent in the offender’s actions [90], aggravated due to it occurring in such proximity to her young children [92].
His Honour significance of family violence and provocation [71], however it was not a relationship “marked by frequent violence and controlling behaviour” [81]. The offence was not a long-considered crime; however, it involved several deliberate steps and was not unpremeditated [83]. There was no evidence that justified any contention the victim was physically abusive the day or night of the offence [72] and the offender’s actions were a “very extreme overreaction” [82].
Justice Tinney considered the offender’s PTSD diagnosis as cumulative from childhood sexual abuse, and violence in previous relationships but found no realistic or causal connection between the PTSD and the offence [61]. The victim deliberately attempted to shift a degree of blame onto the victim by giving conflicting accounts [67].
DPP v Kingdon [2021] VSC 858 (21 December 2021) – Victorian Supreme Court
‘Guilty plea’ – ‘Impact of covid-19 pandemic’ – ‘Murder’ – ‘No criminal history’ – ‘Older people’ – ‘People with mental illness’ – ‘Remorse’ – ‘Sentencing’ – ‘Separation’ – ‘Verdins principles’
Charges: Murder x 1.
Proceedings: Sentencing.
Facts: The 65-year-old male accused pleaded guilty to the murder of his female de-facto partner of three years. The accused stabbed the victim with a kitchen knife 11 times in the chest and neck following an argument about the accused’s divorce settlement, during which victim had attempted to end the relationship.
Decision and Reasoning: 23 years imprisonment, with a non-parole period of 16 years and 3 months).
Lasry J considered victim impact statements of the victim’s family, which referred to the ‘lifelong’ and ‘severe’ impact of the accused’s actions (20). His Honour explained that while the accused intended to cause really serious injury, and was being sentenced on that basis, his moral culpability would be ‘determined by the nature of the killing… rather than the… intent’ behind the conduct (55). The accused’s moral culpability was high (56). The 5th and 6th limb of R v Verdins [2007] VSCA 102 applied due to the accused’s diagnosis of major depressive disorder, and likelihood of internalising ‘the punitive aspects of sentencing’, age, and ‘demographic divergence from… other prisoners’ (43). His Honour stated that general deterrence is an important sentencing principle in the context of domestic violence (60), noting the accused’s explanation for the crime “carries the implication “Look what you made me do”[58]:
People are entitled to leave relationships and, men in particular, who are told their relationships are finished do not have any form of licence, rationale or excuse to then inflict fatal violence as a reaction in order to quell their feelings of rejection [59].
The accused had no prior criminal convictions, was of an ‘advancing age’ and had previously been ‘of good character’ (62) and the utilitarian value of his guilty plea was ‘very high’ due to the Covid-19 pandemic (34), (62).
Re Strachan [2021] VSC 538 (31 August 2021) – Victorian Supreme Court
‘Bail’ – ‘Breach of protection order’ – ‘Children’ – ‘Exceptional circumstances’ – ‘History of family violence’ – ‘People with mental illness’ – ‘Separation’
Charges: Persistent contravention of a family violence intervention order (‘FVIO’) x 1, contravening a FVIO x 7, committing an indictable offence whilst on bail x 1, contravening a conduct condition of bail x 7.
Proceedings: Application for bail.
Issues:
1.
Whether there were exceptional circumstances to justify the grant of bail.
2.
Whether the applicant posed an unacceptable risk.
Facts: The male applicant and female victim were married for 10 years and shared four children. They separated in March 2021. The victim reported to police that throughout the relationship the applicant was frequently verbally abusive, intimidating towards the children, and physically abusive two to three times per year, strangling her on one occasion. The applicant was charged with various offences and bailed on those offences. An interim protection order and then a final protection order was made. The applicant allegedly breached these orders on numerous occasions by contacting the victim via phone and being near his daughter’s school. On one occasion the applicant visited his daughter at school and asked her to leave with him. The applicant suffered from severe mental health issues, including depression and anxiety, and a pain condition. He was charged in relation to the breaches of bail and protection orders and sought further bail.
Decision and Reasoning: Bail refused.
Lasry J found that the applicant had not established exceptional circumstances. His Honour found that the applicant could receive treatment for his mental health issues while in custody and that his pain condition, while serious, had not prevented him from engaging in community sports. Therefore, ‘special vulnerability’ had not been established. Furthermore, it had not been established that without bail the applicant’s time in custody would be ‘far in excess’ of any likely sentence.
Re Windley [2021] VSC 432 (20 July 2021) – Victorian Supreme Court
‘Assault’ – ‘Bail’ – ‘Breach of protection order’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘Extensive criminal history’ – ‘History of family violence’ – ‘Homeless applicant’ – ‘Sexual and reproductive abuse’
Charges: Sexual assault x 2; unlawful assault x 2; persistent contravention of a family violence order; contravention of family violence orders x 9.
Proceedings: Application for bail.
Issues:
1.
Whether there were exceptional circumstances to justify the grant of bail
2.
Whether the applicant posed an unacceptable risk
Facts: The applicant was charged with persistently breaching a Family Violence Intervention Order (‘FVIO’) by refusing to move out of his female former partner’s house [1], harassing the victim via phone [25], and perpetrating sexual and unlawful assaults against the victim [3]. The applicant had an extensive criminal record and a history of contravening bail conditions and community corrections orders.
Decision and Reasoning: Bail granted.
Coghlan J found that there were exceptional circumstances, and that by the imposition of appropriate conditions, the risk represented by the applicant was not unacceptable [24]. His Honour acknowledged that conditions of imprisonment had become more difficult due to quarantine requirements [18], and noted that if released the applicant would reside with his aunt, Ms Terri Brown, at a location ‘significantly removed from… the complainant’ and with very few means of transport [21]. Ms Brown had agreed to report any breaches of the applicant’s bail conditions. His Honour highlighted that the applicant had complied with court orders and requirements while previously residing with Ms Brown, and that ‘it was in part due’ to the applicant being homeless ‘that he continued to impose upon the complainant’ [7-8]. The conditions of bail included that the applicant reside with Ms Brown and not leave the house unless accompanied by her and produce his phone to police for inspection [29].
R v Margolis [2021] VSC 341 (15 June 2021) – Victorian Supreme Court
‘Murder’ – ‘People affected by trauma’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation’
Proceedings: Sentencing.
Charge: Murder.
Facts: The male offender killed the female victim, his domestic partner of one week, by applying force to her neck by holding her in a chokehold. A jury convicted him of murder following a trial in which the issues were whether the victim was killed by a conscious, voluntary and deliberate act and, if so, whether the offender had murderous intent. The offender was diagnosed with long-term Post Traumatic Stress Disorder and alternately borderline or severe personality disorder by psychiatric experts. There was evidence he had mental health issues dating from his teens. He argued he killed the victim in the course of a flashback provoked by the behaviour of the victim, in pushing and haranguing him in the course of an argument which extended over a number of hours. Following the murder, the offender sent text messages to the victim’s family purporting to be from the victim. The offender had no prior history of violent offending and alleged he had been a victim of abuse as a child.
Held: Sentenced to 23 years imprisonment with a minimum term of 17 years. It was noted that this was less than the standard 25 year head sentence to take into account the offender’s prior good character and Verdins principles.
Re Charlton [2021] VSC 342 (11 June 2021) – Victorian Supreme Court
‘14 year gap between alleged offence and laying of charge’ – ‘Alleged murder of partner’ – ‘Bail’ – ‘Exceptional circumstances’ – ‘No relevant criminal history’ – ‘No unacceptable risk posed by applicant’ – ‘Poor mental and physical health of the applicant’ – ‘Separation’
Matter: Application for bail.
Facts: The applicant is alleged to have killed his female domestic partner in 2007, approximately 6 months after they had commenced residing together in her unit. He was arrested but released the day after his partner’s death. A coroner found the applicant likely contributed to the death of the deceased in 2011 but the applicant was not re-arrested until 6 January 2021 and has been in custody since then. There is some evidence of a history of violence by the applicant towards the deceased, including an incident where he drove dangerously with the deceased in a vehicle in the days prior to her death which allegedly was a source of arguments between them. There is evidence the deceased asked the applicant to move out of her apartment the day of her death.
Issues: Unacceptable risk and exceptional circumstances.
Held: Bail granted. The fact the applicant remained in the jurisdiction for the many years before he was charged, including while being dealt with for earlier historic offending, and failed to reoffend went a long way to establish that there was no unacceptable risk posed by a grant of bail. The applicant’s counsel’s assertion the prosecution case was weak was rejected, but exceptional circumstances were established by the passage of years and the good behaviour of the applicant during the delay, his lack of relevant prior offending or breach of bail, his serious physical and mental health issues and the effect of incarceration thereon, the conditions he would likely spend remand in, the likely future delay in reaching trial, his stable relationship and accommodation, and the availability of substantial surety.
R v Dellamarta [2021] VSC 220 (4 May 2021) – Victorian Supreme Court
‘Impact of covid 19 pandemic’ – ‘Imprisonment’ – ‘Manslaughter’ – ‘People with disability and impairment’ – ‘People with mental illness’ – ‘Sentencing’
Charges: Manslaughter.
Proceedings: Sentencing.
Facts: The female offender, who had an intellectual disability, pleaded guilty to the manslaughter of her male partner. She stabbed her partner once to the upper chest during the course of an argument. She admitted to stabbing the deceased but was unable to say why she had done so. She said that she had never been scared that he would physically hurt her, but that he had called her abusive and hurtful names.
Issues: Sentence to be imposed.
Decision and reasoning: A sentence of 7 years and 6 months imprisonment was imposed, with a non-parole period of 5 years.
The following factors were relevant to objective seriousness: First, the offender deliberately stabbed the deceased with a large kitchen knife. Second, the deceased was her partner, and the offence took place in her home. Third, she grossly overreacted to whatever feelings of hurt and anger she was experiencing in the face of the deceased’s aggression. Fourth, she immediately attempted to revive the deceased, called for help and assisted police.
The offender’s moral culpability for the offending, and the relevance of general deterrence, were somewhat reduced by her intellectual disability and depressive disorder (notwithstanding the lack of a causal link established by expert evidence). Specific deterrence was also modified by her personal factors (genuine remorse, ability to manage the limitations of her intellectual disability and fair prospects for rehabilitation). The guilty plea was also taken into account.
Finally, the court recognised the burden of prison on her at [45]:
“I accept that your deficits mean that your will find prison more burdensome than a person without your disability. Mr Newton described you as a vulnerable prisoner at risk of victimisation and other negative attention in the custodial environment. It seems that this risk has, in fact, materialised. Mr Newton further stated that there is some risk that the intensity of your depressive symptoms will increase as a result of your incarceration. I accept these opinions. I also accept that your experience of custody to date has been difficult given the lack of physical visits between March and December 2020 consequent upon the COVID-19 pandemic.”
Re Dinatale [2021] VSC 104 (9 March 2021) – Victorian Supreme Court
‘Animal abuse’ – ‘Bail application’ – ‘Breach of protection order’ – ‘Children’ – ‘Exceptional circumstances’ – ‘Impact of covid-19 pandemic’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons’
Charges: Numerous family violence charges and protection order breaches.
Proceedings: Application for bail.
Facts: The applicant was charged with numerous family violence offences and intervention order breaches over multiple years, but principally in 2019 and 2020, in respect of his wife (the complainant) and their 2 young children. The alleged offending involved physical violence (including use of weapons and strangulation), exposing the children to family violence, animal abuse, threats to kill (including if the complainant failed to revoke a protection order), and repeated breaches of intervention orders. Due to the delays brought about by the COVID-19 pandemic, there was a real prospect that the applicant’s trial would not proceed until 2023.
Issues:
1.
Whether exceptional circumstances existed to justify the grant of bail.
2.
Whether there was an unacceptable risk.
3.
Whether there would be a risk that the applicant would commit family violence if released on bail, and whether such risk might be mitigated.
Decision and reasoning: Application for bail was allowed on strict conditions.
At the outset, counsel for the respondent informed the court that “the children of the applicant are apparently petrified of him, and that Child Protection have indicated an intention of stepping in should the applicant make any attempt to have contact with them. She pointed out that the two children are eye witnesses to some of the offending, and that the risk of interference with them as well as with the complainant herself is a live concern.
Further, counsel for the respondent emphasised that the applicant’s conduct while incarcerated “showed his malevolence towards his wife and aggression towards some other individuals which would itself raise concerns about the safety of his family and others.” The charges were serious, “notwithstanding that no serious injuries had been caused. This was more by good luck than good management, and there was still the risk of psychological harm and ongoing consequences for the children. The seriousness of the offending was amplified by the constant undertone of family violence, encompassing control and actual violence.”
Exceptional circumstances existed. In particular, the possible period of remand due to the COVID-19 delay (2-3 years) would highly likely exceed any term of imprisonment. The obvious risk of the applicant endangering the safety and welfare of any person or committing an offence while on bail could be mitigated by stringent bail conditions so as not to be an unacceptable risk noting: “Any attempt to contact in any way, much less, harm, his wife or children, would have the inevitable consequence that he would be taken again into custody, with little hope of release until the resolution of the charges he faces.”
Re Application for Bail by Wilson [2021] VSC 22 (29 January 2021) – Victorian Supreme Court
‘Application for bail’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘Female perpetrator’ – ‘Mild traumatic brain injury’ – ‘Murder’ – ‘No unacceptable risk’ – ‘People affected by substance misuse’ – ‘People affected by trauma’ – ‘People with mental illness’ – ‘Support services’
Charge: Murder.
Proceedings: Application for bail.
Facts: The female applicant killed her male domestic partner by stabbing him in the back during the course of a domestic dispute. At trial, the applicant intended to argue that she acted in self-defence and that she did not intend to cause death or really serious injury. The applicant had a history of drug addiction, mental illness, and had been in a car accident a few weeks prior to the offending, potentially resulting in a mild traumatic brain injury.
Decision and reasoning: The applicant was granted bail.
There were sufficient matters to establish exceptional circumstances. The two central issues that would arise at trial (self-defence and intent) were “live” and needed to be finely judged, in combination with the delay in the matter (which in itself would not be sufficient) and the circumstances of detention due to COVID-19 (unable to receive visits with her mother or daughter) ([45]-[48]).
The respondent had not demonstrated that the applicant was an unacceptable risk of endangering the community, offending whilst on bail or failing to answer bail. The applicant had a criminal record but this included relatively minor offences and the more serious conviction had no particular resonance in relation to the present offending. There was evidence that she would receive support with accommodation, and in relation to any ongoing problems of drug addiction and mental health from Women’s Housing Ltd. The applicant had further motivation in restoring her relationship with her mother and re-engaging with her young daughter, supported by the Department of Health and Human Services ([50]-[56]).
Re Chambers [2020] VSC 758 (17 November 2020) – Victorian Supreme Court
‘Application for bail’ – ‘Compelling reason’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Past domestic and family violence’ – ‘Pregnancy of victim’ – ‘Protection orders’ – ‘Strangulation’ – ‘Stringent bail conditions’ – ‘Unacceptable risk’
Charges: Reckless conduct endangering life x 2; Aggravated assault of a female x 6; Contravening a family violence intervention order (FVIO) x 1; Recklessly causing injury x 1; Making a threat to kill x 1.
Proceedings: Application for bail.
Facts: The applicant man and complainant woman were in a domestic relationship, and she was 3 months pregnant with their child. The applicant was subject to two FVIOs, one involving his ex-wife and child, and one involving the complainant. The charged offending involved the application of pressure to the complainant’s neck until she lost consciousness on the first occasion, and until she sustained a fractured larynx on the second occasion. The applicant owned his own business, had no criminal history (but been the subject of a number of reports of family violence), and had a history of depression/anxiety and substance abuse issues.
Issues:
1.
Whether the applicant had demonstrated a “compelling reason” to justify the grant of bail.
2.
Whether the respondent had demonstrated that there was an “unacceptable risk”.
Decision and reasoning: The applicant was granted bail.
First, on “compelling reason”, the offending alleged was very serious. It involved a man in the context of an ongoing intimate relationship applying pressure on 2 occasions to the neck of his pregnant partner rendering her unconscious and fracturing her larynx. The case against the applicant was of reasonable strength in view of the objective evidence ([50]-[51]).
Nevertheless, his Honour was satisfied that a compelling reason existed to justify the grant of bail ([53]). The applicant had no prior convictions or adverse bail history, stable employment and accommodation, and the situation of the offending had ended. There was no evidence to suggest he would further attack the complainant, with a traumatic period in custody being a strong disincentive to do so. The applicant was seeking treatment for his drug problem. He also stood to spend significant time in custody in difficult circumstances in the absence of bail ([52]).
Second, the court was not satisfied that the risk posed by the applicant (that he would contact and possibly harm the complainant) was unacceptable. This was in light of the very stringent bail conditions imposed to mitigate the risk including a curfew, requirement to comply with a full FVIO that had been put in place concerning the complainant, prohibition on drug use (including testing), requirement to undergo drug treatment, and a broad geographical exclusion to further protect the complainant ([54]).
Application for bail by LP [2020] VSC 764 (16 November 2020) – Victorian Supreme Court
‘Attempts to dissuade victim’ – ‘Bail application’ – ‘Exceptional circumstances’ – ‘History of abuse’ – ‘Misuse of alcohol or drugs by perpetrator’ – ‘Perpetrator interventions’ – ‘Perverting the course of justice’ – ‘Protection orders’ – ‘Unacceptable risk’
Charges: Four groups of charges, including alternative charges. Group 1: Reckless conduct endangering serious injury x 1; Unlawful assault x 1. Group 2: Intentionally causing injury x 2; Recklessly causing injury x 2; Unlawful assault x 2. Group 3: False imprisonment x 1; Intentionally causing injury x 2; Recklessly causing injury x 2; Theft x 1; Unlawful assault x 2; Unlawful assault with a weapon x 1. Group 4: Common law assault x 1; Common law charge of attempting to pervert the course of justice x 1.
Proceedings: Application for bail.
Facts: The applicant man was charged with a number of family violence offences against the female complainant. The charges related to a series of incidents in November 2017 and subsequent text messages aimed at dissuading her from pursuing the complaints. At the time of the bail application, there were three Family Violence Intervention orders (FVIOs) in force (protecting the complainant, another former intimate partner, and the applicant’s further former partner/children). The applicant had expressed a desire to change submitting evidence of, inter-alia, the support of his sister and rehabilitative programmes undertaken in custody.
Issues:
1.
Whether exceptional circumstances existed to justify the grant of bail.
2.
Whether there was an unacceptable risk.
3.
Whether, if the applicant were released on bail, he would pose a risk of committing family violence and whether that risk could be mitigated by the imposition of bail conditions or the making of a FVIO.
Decision and reasoning: Bail refused.
While the matter was finely balanced, the applicant met the threshold of exceptional circumstances through a combination of factors namely, the death of his mother whilst in custody and deferral of her funeral until his release, the likely delays in the matter proceeding to trial, the legitimate criticism levelled at aspects of the prosecution case, and the overall delays in the matter being prosecuted which were not attributable to the applicant (at [78]-[80]).
Nevertheless, there was an unacceptable risk that that the applicant would endanger the safety or welfare of a person, commit offences on bail, interfere with a witness (the complainant), or fail to answer bail. The applicant’s most recent conduct on bail showed that despite awaiting court for family violence charges (including those alleged by the complainant) he was prepared to engage in very similar conduct towards another partner (at [81]-[84], [88]).
Further, the risks the applicant posed not only of committing further family violence but also of trying to dissuade the complainant from proceeding with her complaint could not be mitigated by FVIOs or additional bail conditions. The court noted: “Preventing family violence in the community can be difficult because victims are often reluctant to come forward and/or may be easily dissuaded from pursuing complaints” (at [86]). Risks could not be ameliorated with bail conditions given the applicant’s poor history of compliance with previous bail orders, CCOs, and other court orders, his family violence history committed against different partners and his persistent drug use and offending (at [87]).
OP v XY [2020] VSC 754 (16 November 2020) – Victorian Supreme Court
‘18-year period for protection order’ – ‘Coercive control’ – ‘Culturally and linguistically diverse (cald) people’ – ‘Judicial review’ – ‘Protection order’ – ‘Unborn child added to protection order’ – ‘Whether child in utero at the time of offending is a child who has been 'subjected to family violence'’
Proceedings: Application for judicial review.
Facts: In protection order proceedings in the County Court, XY (female partner) claimed that her husband OP (male partner) had committed numerous instances of family violence during their relationship. This ranged from physical violence and unwanted sex to psychological manipulation and humiliation.
[28] XY alleged that, over the course of the marriage, OP emotionally controlled her, isolated her (from others), and continually abused her — for example, by writing on a whiteboard numerous ways in which she was a bad wife and stepmother. She claimed that OP made her sleep on the floor, limited her food intake and gave her no money. XY said that she felt pressured to have sex and that she could not say no as OP would say that she was a bad wife. She said she made numerous attempts to leave the relationship, but that OP would contact her and manipulate her to return. XY alleged that OP physically assaulted her on several occasions. He also ejected her from the home numerous times, including without shoes. He abused her for being selfish and using money on herself instead of the children. [Also see paragraphs [47]-[51] and [57]].
While OP denied these claims, and made his own against XY, he ultimately consented (without admissions) to a protection order. OP’s claims against XY included ‘falsified and exaggerated claims of being assaulted by her’ [29], also see [79]-[80]. The magistrate made mutual protection orders against OP and XY for a period of two years. OP filed a notice of appeal against the protection order made against him. XY did not appeal the order made against her. On appeal, her Honour extended the length of the DFV protection order against OP from a two-year term to one of 18 years’ duration. Her Honour also added XY’s child to the order on the basis that the child had been subjected to family violence in utero. OP now applies to this court for judicial review of the judge’s decisions and orders.
Decision and reasoning: Application for judicial review dismissed.
The County Court judge’s reasons for extending the DFV protection order to 18 years’ duration and including the child in the order are set out at [221]. The applicant (self-represented) made submissions with respect to, but was unable to demonstrate, actual or apprehended bias, a denial of procedural fairness, inadequacy of the judge’s reasons, Wednesbury unreasonableness, illogicality or irrationality in the judge’s decision, and a failure to apply the Briginshaw test to the serious claims of DFV made against him [373].
[17] The difficulty for OP, however, is that this application is not an appeal of the kind in which I am entitled or required to substitute my views on the evidence for those of the County Court judge. Instead, this Court’s jurisdiction on an application for judicial review is merely supervisory, not appellate, and is strictly confined in consequence. In exercising this jurisdiction, I am not to assess the merits of the decision, but must consider only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decisions. Perhaps counter-intuitively, as I have already intimated, even if the judge below erred, but did so within jurisdiction, still there would be no relief by way of judicial review.
[18] In my opinion, while aspects of the judge’s decision are very close to being afflicted with Wednesbury unreasonableness, illogicality or irrationality, in the end, those high hurdles for relief are not cleared. Nor am I satisfied that OP’s claims of actual or apprehended bias are established, whether examined with or without the fresh evidence. Instead, I am persuaded by [counsel for the complainant] that the asserted errors (except perhaps one) are not established or are otherwise within jurisdiction. While it is, I think, plain that the judge exceeded her jurisdiction by including the child in the order by reliance on a power that was not available on the evidence, that order is supported by another power which turns upon OP’s lack of opposition, and the consent XY implicitly gave, at the hearing.
…
[449] I do not accept that, for the purposes of the first limb of s 77(2) (or its later equivalent), it can be said that the child [in utero] “has been subjected to family violence”. While, as I have said, strictly, I need not decide whether there ever could be a case in which a child-to-be in utero may come within the provision, I very much doubt it. Indeed, given that a “child” is “a person who is under the age of 18 years” and that the words “has been subjected to family violence” connote the present tense, I think it is extremely unlikely that the definition of family violence in s 5(1)(b) could extend to behaviour directed at or experienced solely by the mother when the child-to-be is in utero.
Re Busari [2020] VSC 572 (7 September 2020) – Victorian Supreme Court
‘Application for bail’ – ‘Breach of protection order’ – ‘Child’ – ‘History of abuse’ – ‘Misuse of alcohol’ – ‘People with mental illness’ – ‘Strangulation’ – ‘Unacceptable risk’
Charges: Reckless conduct endangering life x 1; Reckless conduct endangering serious injury x 1; Aggravated assault x 1; Common law assault x 1; Unlawful assault x 1.
Proceedings: Bail application.
Facts: The complainant is the male applicant’s female partner. It is alleged that the present charges occurred against a background of long-term, largely unreported domestic violence by the applicant against the complainant. In March 2018, the applicant is alleged to have threatened to burn down the family home resulting in the issuing of a protection order (the applicant is alleged to have breached the DFV protection order on numerous occasions, but these breaches were not reported at the time). In June 2020, the applicant is alleged to have been aggressive and verbally abusive. In July 2020, the applicant is alleged to have verbally abused the complainant. Later, he is alleged to have become increasingly aggressive and assaulted the complainant in front of their child, including pulling chunks of her hair out before allegedly strangling her. After a ‘prolonged period of strangulation’, the complainant managed to free herself and escape. The applicant is alleged to have been intoxicated during the various offences. Bail was previously refused on the basis that the applicant posed an unacceptable risk of committing an offence while on bail.
Issues: Whether risk can be mitigated by imposition of condition.
Decision and reasoning: Bail granted.
[56] There is no question that the applicant does pose a risk of contacting the complainant, and interfering with her as a witness and exposing her to danger. The question is whether there are conditions of bail which could be imposed so as to mitigate that risk so that it is not unacceptable.
…
[60] Taking into account all of the surrounding circumstances of this case, I am not satisfied that the applicant poses an unacceptable risk of any of the matters prescribed in s 4E of the Act. He does certainly pose a risk but I believe that the risk can be ameliorated to an acceptable level by the imposition of the stringent conditions [including residential requirements, curfew, prohibition against drugs or alcohol, mental health care plan, no-contact order for the protection of the complainant and their daughter and compliance with an interim DFV protection order].
R v Sturt [2020] VSC 317 (10 June 2020) – Victorian Supreme Court
‘- people affected by substance misuse’ – ‘Cannabis-induced psychosis’ – ‘Controlling behaviour’ – ‘History of sexual violence’ – ‘History of abuse’ – ‘Mitigating and aggravating circumstances’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Personality disorders’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Suffocation’
Charges: Murder x 1
Case type: Sentence
Facts: The accused murdered his long-term intimate partner by suffocating and strangling her while he was in a cannabis-induced psychosis. He surrendered himself to police the same day as the killing, made a full confession and pleaded guilty to murder at the first available opportunity. The offence was not an isolated instance of domestic violence, as the accused had been physically and sexually violent towards the deceased in the past. He had also been previously admitted to a psychiatric unit, on which occasions the deceased reported that his mental state had deteriorated in the context of substance abuse, and that he had tried to strangle her in her sleep. He also assaulted the deceased in 2010.
Issue: Whether the voluntary drug taking was an aggravating circumstance; whether his Schizotypal Personality Disorder was a mitigating circumstance.
Held: After an assessment, a forensic psychiatrist made several observations about the accused, including that he used various coercive behaviours, such as violence and threats of violence and suicide, to mitigate the persistent likelihood of the deceased abandoning him. It appeared that the fatal attack was motivated by delusional beliefs. The psychiatrist also found that notwithstanding his prior history of domestic violence, the killing would not have occurred in the absence of the psychotic episode ([26]). In the police interview, the accused described his childhood as "troubled". His stepfather physically and emotionally abused his mother, and the accused used cannabis for many years, and has "dabbled" with other drugs ([52]-[58]).
The Court did not accept the prosecution’s submission that the accused’s cannabis use was an aggravating feature, as it could not be established beyond reasonable doubt that he knew that he was likely to become violently psychotic from the cannabis use during the relevant period ([27]-[30]). Further, his moral culpability was not reduced by his psychosis at the time of the offending, because he had voluntarily taken the cannabis in the knowledge that it might make him violently psychotic ([32]). His forensic psychiatrist considered that his Schizotypal Personality Disorder indirectly contributed to his offending because (1) his problems with social anxiety and depression predisposed him to the heavy use of cannabis, and (2) it lowered the threshold for developing psychosis following ingestion of psychotogenic substances ([37]). The defence counsel’s submission that his personality disorder was a mitigating circumstance was also rejected by the Court ([40]). Cannabis was not the only way to deal with his anxiety. The accused should have undertaken a drug rehabilitation program instead, particularly since he was aware that cannabis might cause him to become violently psychotic ([39]).
Aggravating circumstances included the fact that the deceased was the accused’s long-term intimate partner, she was murdered in her own home, and the offence was not a "one-off instance of domestic violence". The fatal conduct, however, was not motivated by the same considerations which led to the earlier domestic violence instances, and was not planned ([45]-[50]). Mitigating circumstances included the accused’s cooperation with authorities, remorse, and his reasonable prospects of rehabilitation, given his excellent insight into his psychological issues and his positive response to medication while in custody ([65]-[71]). Consequently, he was sentenced to 22 years’ imprisonment, with a non-parole period of 16 years.
R v Cameron [2020] VSC 334 (5 June 2020) – Victorian Supreme Court
‘Controlling behaviours’ – ‘Drug misuse’ – ‘Murder’ – ‘Non-fatal strangulation’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Suicide threats by perpetrator’ – ‘Weapon’
Charges: Murder x 1
Proceedings: Sentencing
Facts: The male offender and female victim had been in a relationship for three months and lived together. The couple argued in the days leading up to the offending and the victim appeared nervous and scared to those she met. She told several friends that she could not leave, even though the offender had choked her. On the night prior to the offending, the victim visited her friend after a fight with the offender. The victim received text messages from the offender saying that he would kill himself if the victim did not come back. The offender went to the friend’s house and spoke to the victim, but the victim said she was not ready to come back home now but would come soon. The offender left the house and travelled to the house of a friend. On the way, he slashed his right forearm repeatedly; the friend wrapped the offender’s arm in a tea towel. In the meantime, the victim returned home but did not find the offender there, so she texted her friend, indicating that she thought she would be okay. A text message exchange then occurred between the offender and the victim in which the offender asked the victim if he could come home and told her that he loved her, but the victim said she did not want to talk and that "If you love someone you would not harm them and control them". The victim exchanged text messages with other people but these ceased abruptly around 4:55am.
At this time, the offender returned home and stabbed the victim numerous times to the face, scalp, neck and arms with a kitchen knife while she was on her bed. She died quickly after this attack. The offender tried to clean the scene with bleach and hid the body and bloody sheets under the bed. He then tried to burn down the house by lighting a fire in a cabinet next to the bed, but this only smouldered as the cabinet was closed and the fire was starved of oxygen. The offender went to his friend’s place and told him that he had killed the victim, but only because she had attacked him in his sleep. He repeated this account of events to police, claiming that the victim had attacked him when he refused to get her more ice.
Judgment: The judge sentenced the offender to 29 years’ imprisonment, with a non-parole period of 23 years. His Honour noted that the offender’s "crime of murder is a very serious example of that always serious crime" [118]. In addressing the offender, his Honour emphasised the aggravating features of the offending: "In the context of an ongoing domestic relationship which left your partner strongly fearing you, at least in the days leading up to her death, for reasons which have not in any honest way been explained by you, you took to her with a dangerous knife while she was in the sanctuary of her own bed in her own home … You ignored her futile and desperate attempts to ward off your blows. Having killed her, you showed your lack of regard for her by hiding her under her bed, conducting a cursory clean-up, then setting the fire in the cabinet intent on burning the crime scene. Then you left her, dead on the floor, covered in blood" [118]. And further, "Yours was a sustained and outrageously violent attack upon a helpless woman," such that his Honour held that the lack of planning or premeditation "said nothing about its seriousness" [121]. His Honour further stated that "You were in a position of trust where she was concerned. She should have been able to look to you for love and protection. You chose, however, to kill her by extravagant, protracted and shocking acts of violence. Each single act of stabbing her entailed serious danger to the welfare of your helpless victim. You carried out many such individual acts" [123] and that "Your breach of trust and lack of normal human decency are simply stunning" [140].
His Honour held that rehabilitation would have little part to play in the sentence, because the offender’s prospects of rehabilitation were "exceedingly dim," given he had not honestly acknowledged his crime nor dealt with his drug and other issues [131]. Instead, just punishment, denunciation, general deterrence, specific deterrence and protection of the community were important to the sentence [141]. His Honour noted that "The sentence of this Court must make it perfectly clear that the Court deplores violent crimes of this sort, especially against a domestic partner" and that "the sentence I pass must bring it clearly home to any person who might be minded to inflict extreme violence upon a domestic partner, for whatever reason, that such conduct will be met with strong punishment" [141]. His Honour was satisfied beyond reasonable doubt that the physical altercation did not commence as the offender claimed and that his account was a complete fabrication; that is, it did not begin with the victim attacking the offender because the victim was evidently very scared of the offender and "would have known that to [attack the offender] would only serve to inflame [the offender] and might trigger a violent reaction from a person of whom she was in fear" [50], [51], [55]. In rejecting the offender’s claim, his Honour held that there was no explanation for the shocking crime [56].
His Honour rejected that the plea of guilty was made at a reasonably early stage, having been made 16 months after the offending [59], but noted that there was still a significant utilitarian benefit to the plea, which would constitute a mitigating factor [61]. His Honour also rejected that the offender was remorseful [64], taking into account his conduct after the offending (in attempting to clean the scene and hide the body), his false assertions of the victim attacking the offender first, and his obvious sorrow for his own position, not the death of the victim. His Honour accepted that the offender had a substantial history of methylamphetamine use, and that the offender was using that drug at the time of offending [80]. However, his Honour also noted that the offender had an extensive criminal history for matters of violence, dishonesty, weapons and driving, and that he had been imprisoned numerous times and received numerous community-based dispositions which were frequently breached [83]. His Honour was not convinced that the offender actually suffered from PTSD and noted that even if he did, this would not result in any term of imprisonment weighing more heavily on the offender than a person in normal health [102]. His Honour therefore held that the principle enunciated in the fifth limb of R v Verdins [2007] VSCA 102 did not have any application in this case [103].
Re Brzezowski [2020] VSC 294 (28 May 2020) – Victorian Supreme Court
‘Animal abuse’ – ‘Bail application’ – ‘Compelling reasons’ – ‘Past domestic violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Relevance of covid-19 pandemic’ – ‘Sexual assault’ – ‘Strangulation’ – ‘Unacceptable risk’
Offences: Common assault x 2; Unlawful assault x 2; Sexual assault x 2; Criminal damage; Threaten to commit a sexual offence; False imprisonment; Contravention of a Family Violence Intervention Order (FVIO) x 4; Persistent contravention of a FVIO; Committing an indictable offence whilst on bail; Contravening condition of bail.
Proceedings: Bail application
Issue: Whether compelling reasons exist justifying the grant of bail.
Facts: The applicant and complainant commenced a ‘romantic’ relationship in August 2019. The applicant moved into the complainant’s home which she shared with her 23-year-old daughter. On the day of the offending, the complainant came home from work and found the applicant intoxicated. They argued before the applicant told the complainant to join him in the shower. The complainant initially refused but eventually agreed to appease the applicant who appeared angry. The applicant suggested they have sexual intercourse but the complainant refused. The applicant became violent towards her, pushing her into the shower door. The complainant tried to leave the shower but the applicant pushed her onto the bed, held her wrists above her head and thrust his knee into her thigh. The complainant kicked the applicant in the genitals. The applicant then punched the complainant in the abdomen about ten times. The applicant left the house but came back shortly later, yelling "Right, time for round two". The complainant attempted to leave in her car but was initially blocked in by the applicant’s car. She managed to leave but returned to the house to collect her dogs as she was fearful the applicant would harm them.
The complainant went to the toilet when she arrived but found the applicant in there. The applicant rubbed faeces over the complainant’s face and hair, then pushed her up against a wall using his forearm under her chin. She broke free and called 000, while the applicant began hitting things in the house. The applicant grabbed the complainant, threw her onto the bed, pushed his forearm to her throat and punched her in the abdomen, stating he was going to give her anal with his clenched fist. The applicant got off the complainant when she grabbed his genitalia with her fingernails. She cancelled the police request but asked her sister to come and help her. The complainant’s sister and daughter arrived, followed by police.
A full and final non-contact FVIO was granted after this incident which the applicant breached by texting and calling the complainant. On one occasion though, the complainant visited the applicant at a motel room for about five minutes.
Judgment: The judge granted bail on the applicant’s own undertaking with strict conditions (including he: provide a $3000 surety, reside at his parent’s residence, abide by a curfew, comply with the FVIO, not contact any prosecution witness, not enter the suburb the complainant lives in, not consume alcohol or drugs), finding that the applicant had established that a compelling reason exists to justify the granting of bail, despite the offending being "serious and distasteful" [65]. The applicant argued that the following were compelling reasons to justify bail: the applicant’s limited criminal history (he has only come before court twice); his first time in custody; weakness of the prosecution case (the complainant’s credibility is likely to be successfully challenged); delay (one year on remand); implications of the COVID-19 pandemic (lockdowns and the possibility the virus could enter prisons); availability of stable accommodation with the applicant’s parents; his ties to the jurisdiction, including his parents and children; $3000 surety from his mother; other conditions to reduce the magnitude of risk (for example, imposition of a curfew) [32].
His Honour noted that the applicant conceded that the offending was serious, finding that "the offending alleges multiple acts of family violence committed by a more powerful male upon a relatively vulnerable female who would have been entitled to look to him for protection, rather than physical violence and threatening conduct" [49] and that the applicant "flagrantly breached requirements" of the FVIO [50]. While his Honour did accept that the complainant’s credit "will be subject to strong and justifiable attack", he found that the prosecution case could not be described as weak due to other things supporting the complainant’s account [52]-[53].
His Honour further found that the applicant’s criminal history included a finding of guilt for an assault upon a previous domestic partner and that the applicant had "deliberate and flagrant disregard" for previous grants of bail. As such, his Honour held that there was a "real concern as to [the applicant’s] willingness to abide by conditions of bail" that might be imposed in the future [57]. Furthermore, his Honour noted the existence of the FVIO and that the complainant was very frightened of the applicant and dreaded his release on bail [60].
His Honour accepted that a full year on remand would be a significant period of time for a case which would remain in the summary stream [61] and that such a period would be particularly significant in light of the onerous conditions as a result of the COVID-19 pandemic [62]. Additionally, his Honour held that the applicant was likely to receive a sentence lower than the period of time he would spend on remand if not bailed [63]. In considering the "unacceptable risk" test, his Honour noted that there was a legitimate concern that the applicant would try to contact the complainant again, but that, since his arrest, the applicant had not attempted to contact the complainant and had not been violent towards her. His Honour considered that the risk posed by the applicant could be ameliorated with imposition of strict bail conditions.
Re Ilpola [2020] VSC 578 (21 May 2020) – Victorian Supreme Court
‘Allegations of family violence’ – ‘Application for bail’ – ‘Breach of orders’ – ‘Charges of schedule 2 offences while subject to community corrections order for schedule 2 offences’ – ‘Community corrections order for schedule 2 offences’ – ‘Covid-19’ – ‘Exceptional circumstances’ – ‘History of domestic and family violence’ – ‘Physical abuse’ – ‘Protection order’ – ‘Separation’ – ‘Sexual abuse’ – ‘Unacceptable risk’
Proceedings: Bail application.
Charges: attempted rape, sexual assault, persistent contravention of FVIO, making a threat to inflict serious injury x 3, false imprisonment, intentionally causing injury, common law assault.
Facts: The male applicant and female complainant had been married and had one daughter together but were separated at the time of the offending. A protection order was in place prohibiting the applicant from contacting the complainant or their daughter, or coming within 100m of them or 200m of their home.
The offences predominantly arose on one day. It was alleged the applicant first telephoned the complainant while she was at home with her son and threatened them, following which they left the house. When the complainant returned home later that day, the applicant was inside her house and grabbed her, punching her head and face, and later attempting to anally penetrate her. The following day he returned to her house and was further verbally abusive. The complainant reported the incident to the police.
The applicant denied all the allegations apart from having attended the complainant’s residence on three occasions. At the time of the offending he was subject to a 12-month CCO following convictions for recklessly causing injury, contravening an FVIO, intentionally damaging property and failing to answer in relation to the same complainant.
Reasoning and decision: Lasry J had regard to the serious nature of the attempted rape offence, his view that the strength of the prosecution case was not compromised by his dependence on the complainant’s evidence, the accused’s criminal history and existence of the CCO at the time of the offending, the lack of evidence of the availability of treatment opportunities and his view that if bail were refused the applicant would not be likely to spend more time in custody than the likely sentence.
Exceptional circumstances were found to exist in the substantial delay of the trial of two and a half to three years, owing to the COVID-19 pandemic. However, Lasry J found that there was an unacceptable risk of reoffending and that this risk would not be sufficiently mitigated by imposing bail conditions. Given that the applicant had been subject to a CCO for similar offences at the time of the incident and a protection order had already been put in place seeking to protect the complainant, it was concluded that bail was not acceptable.
Re Mazzitelli [2020] VSC 288 (21 May 2020) – Victorian Supreme Court
‘Bail application’ – ‘Covid-19 pandemic’ – ‘Exceptional circumstances’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Pregnancy of victim’ – ‘Protection order’ – ‘Separation’ – ‘Substance abuse’ – ‘Threats to kill’ – ‘Unacceptable risk’ – ‘Weapons’
Offences: Intentionally cause injury x 3; Common assault x 8; Making a threat to inflict serious injury x 2; Attempt to pervert the course of justice x 2; Being a prohibited person in possession of an imitation firearm x 2
Proceedings: Bail application
Issues: Whether exceptional circumstances exist justifying the granting of bail; Whether there is an unacceptable risk that the applicant would reoffend or endanger the community if released.
Facts: The male applicant and female complainant were in a relationship from November 2017 until September 2018, during which there were a number of separations and reconciliations. From February 2018, there were numerous instances of violence by the applicant towards the complainant. These included: using a chain like a whip to hit the complainant; pushing her out of the car; splashing hot wax on her hair, face and arms; tasering her; hitting her on the back of the head; throwing drinking glasses at her; kicking her hard in the stomach when she was pregnant; burning her on her back with a blow torch; and hitting her with a metal pole. The applicant also made several threats towards the complainant, including: a threat to cut her hands off; threatening to kill her (while holding a gun); threatening to shoot different limbs; threatening her so that she would recant her testimony to police. The applicant’s sister told the complainant that she had to tell police that she made up the allegations, and the complainant later made a statutory declaration to this effect. However, she maintained the allegations at the committal hearing and explained why she made the statutory declaration.
Judgment: The judge refused the bail application, holding that the applicant failed to establish exceptional circumstances existed that justified the granting of bail and even if this had been established, the risk posed by the applicant of reoffending or endangering the community if released would be unacceptable. The applicant relied on the following matters as proof of exceptional circumstances: delay (about two years from arrest until trial), onerous nature of remand due to the COVID-19 pandemic, weakness of the prosecution case, absence of any contact with the complainant while on bail, availability of support through CROP (a drug intervention program), family support and stable accommodation, modest criminal history (no convictions for violence), first time in custody, no pending matters other than the trial, and the applicant’s medical condition [43]-[44].
His Honour found that the applicant did not challenge the proposition that the offending was serious, noting that "Whilst not anywhere near the higher end of the range of seriousness of offences of family violence, the alleged attacks by the applicant upon his then partner were repeated, nasty, and had some disturbing elements to them, including the use of weapons and the infliction of a kick to the abdomen of a pregnant woman" [58]. His Honour considered that the complainant was scared of the applicant and a FVIO was in place with her as a protected person [71].
His Honour also found that the prosecution case was not weak, the applicant’s criminal history "reveal[ed] some signs of a lack of respect by the applicant for the orders of the court", and the applicant had already been imprisoned in the past for failing to answer bail. His Honour noted that the applicant’s conduct in respect of bail "paint[ed] a picture of a person who is entirely unwilling to comply with the requirements of bail when they do not suit him" and that this was an important consideration when assessing exceptional circumstances [67].
While his Honour accepted that the applicant had an extensive history of illicit drug use as a form of pain relief for an accident the applicant suffered eight years ago, his Honour held that it was completely unacceptable for the applicant to do this, particularly where the applicant knew this would breach his bail conditions [69]. Furthermore, his Honour held that the provision of family support was "not an important matter in the overall mix of circumstances in this case" where the applicant had family support in the past but still offended [70]. His Honour noted that the applicant was likely to spend 17 months on remand before trial, but that this "is not, on its own, or in combination with other factors, exceptional" [72]. In any event, any sentence imposed was likely to exceed this period anyway [73].
Re Sepehrnia [2020] VSC 247 (6 May 2020) – Victorian Supreme Court
‘Bail application’ – ‘Controlling behaviours’ – ‘Extensive criminal history’ – ‘Firearm’ – ‘History of abuse’ – ‘Non-fatal strangulation’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relevance of covid-19 to bail application’ – ‘Separation’ – ‘Step-children in home’ – ‘Substance abuse’ – ‘Threat to kill’ – ‘Weapon’
Offences: Rape x 2; Infliction of injury; Threats; Damaging property.
Proceedings: Bail application
Issue: Do exceptional circumstances exist justifying the grant of bail; does the applicant pass the unacceptable risk test.
Facts: The male applicant threatened to kill and physically harm his female ex-partner, MZ, on multiple occasions, including by pointing a firearm at her and threatening to throw acid in her face. Following an argument between the couple, the applicant punched MZ in the face and kicked her in the middle of her back, before pushing her on the bed, covering her face with a pillow and stating that he was going to rape her. He removed the pillow and grabbed MZ around the throat before raping her. The assault lasted several minutes before the applicant left MZ alone at his house. MZ reported the assault (but not the rape). When the applicant learnt of this, he threatened to kill MZ’s family. A Family Violence Intervention Order (‘FVIO’) was issued to protect MZ.
The applicant also threatened to kill and physically harm another female ex-partner, SB, and her children, and frequently damaged her property. On a number of occasions, the applicant slapped, spat on, choked, scratched, pulled SB’s hair and threw her to the ground. He also physically assaulted SB’s 16-year-old daughter and one of SB’s friends, and detained SB in her home on one occasion. SB ended the relationship, but the applicant continued to abuse her until he was remanded for other matters. After his release, the applicant attended SB’s house, forced her onto her bed, threatened to kill her if she was ever with another guy, and raped her.
The applicant applied for bail twice in relation to the charges arising out of these events, but both applications were refused as the applicant failed to establish exceptional circumstances and there was an unacceptable risk of further offending.
Held: The judge refused to grant bail as the applicant failed to establish that exceptional circumstances existed justifying bail and if the applicant were released, there was a high risk that he would endanger the safety of the public, commit offences while on bail, interfere with witnesses and/or fail to answer bail. The applicant contended that various matters, when considered together, constituted exceptional circumstances. These included: delay (his trial was unlikely to occur until next year because of the COVID-19 pandemic and he already spent 252 days in custody); the onerous circumstances of his custody (he has been held in protection due to physical attacks upon him and receives no visitors due to COVID-19 restrictions); lack of strength of the prosecution case; his criminal history occurred in the context of drug use; he has used his time in custody well (by completing courses and maturing); the availability of stable residence, employment and family supports; and the availability of a surety of $500,000 [33].
His Honour held that the offending was very serious [47], the cases against the applicant were not weak [48], his criminal history (violence, dishonesty and weapons offences, breaches of FVIOs, failing to answer bail) rose questions as to his character and ability to abide by any court orders [49], he had previously been convicted for failing to answer bail [50], at the time of offending he was already subject to bail and CCOs [51], he was very unlikely to be willing and able to comply with any bail conditions [52], there were already several FVIOs against the applicant [53], the proposed living arrangements if he were to be released were unsatisfactory as the applicant has committed family violence against his mother and sister in the past (with whom it was proposed he should live) [54], there was no evidence he had taken major steps towards dealing with his drug issues [55], both victims were frightened of the applicant [56], and he would receive a much longer term of imprisonment if convicted for even one rape offence than he would on remand [57].
His Honour also noted the implications of the COVID-19 pandemic, but approved Re Tong [2020] VSC 141 in which the court held that the pandemic is "simply part of the surrounding circumstances required to be taken into account in a consideration" of steps in the bail process. His Honour therefore was "far from satisfied that the applicant … discharged the onus resting on him to establish the existence of exceptional circumstances" [59].
Even if the applicant had established exceptional circumstances, His Honour concluded that the risk of the applicant harming the victims and/or their families was so high that His Honour would have refused bail in any event [62].
Re Bertucci [2020] VSC 88 (2 March 2020) – Victorian Supreme Court
‘Bail application’ – ‘Children present’ – ‘Contravention of protection orders’ – ‘History of domestic violence’ – ‘No exceptional circumstances’ – ‘Physical violence and harm’ – ‘Separation’ – ‘Uncharged acts’
Charges: Various offences, including contraventions of FVIO, recklessly causing injury, unlawful assault, failing to answer bail and committing an indictable offence on bail
Case type: Application for bail
Facts: On 19 April 2019, the applicant man was charged with contravention of a FVIO and persistent contravention of a FVIO (‘the informant Sidorovska matter’). He was released on bail, however, after failing to appear in the Sunshine Magistrates’ Court, an order was made forfeiting his bail and a further bench warrant was issued for his arrest. On 2 October 2019, the applicant was charged with recklessly causing injury, unlawful assault (x 2), contravention of a FVIO, failing to answer bail and committing an indictable offence on bail (‘the informant McKay matter’). The applicant had been refused bail twice in the Sunshine Magistrates’ Court in relation to both sets of charges.
The applicant and complainant woman were in a relationship and have 3 children together. At the time of the relevant alleged offending in the informant Sidorovska matter, the applicant and complainant were separated and a final no-contact FVIO was in place against the applicant, listing the complainant and the children as the affected family members. In relation to the informant McKay matter, the applicant allegedly assaulted the complainant woman by striking her to the leg with an implement, as well as to the head. This occurred in contravention of a FVIO and in close proximity to the children.
Issue: The issue for the Court was whether exceptional circumstances existed to justify bail and whether the previous history of family violence towards the complainant not resulting in findings of guilt should be taken into account.
Held: The Court refused bail as the applicant failed to discharge the onus to prove the existence of exceptional circumstances to justify his release on bail ([64]). In considering the submissions for a finding of exceptional circumstances, the Court found that:
•
the decision on bail would not interfere long-term with the prospects of the family being reunited ([49]);
•
allowing the applicant to live with the complainant and children would do nothing to mitigate the risk of reoffending as such a living environment was ‘far-from stable’ ([50]);
•
the applicant’s two-months of part-time employment leading up to the date of the contested hearing was relatively insignificant ([51]);
•
the prosecution’s case in respect of the two sets of charges was not weak ([52]);
•
the multiple breaches of the intervention order indicated a deliberate disregard and lack of respect for the court order imposed to protect his partner and children from him ([53]); and
•
striking a female with an implement cannot be described as trivial offending ([54]).
Although the applicant’s criminal history was not lengthy, it was deemed highly significant. For example, he had previous convictions for persistent contravention of a FVIO, and had previously acted with violence towards another female partner, both of which resulted in imprisonment ([57]). This indicated that he had not been adequately deterred and showed a lack of regard for court-imposed sanctions and for the importance of bail ([63]). There had also been a number of alleged incidents of family violence towards the complainant, which did not result in findings of guilt. The Court considered these matters as relevant to whether the applicant posed a risk of future endangerment to the complainant and her children ([58]-[59]).
R v Eckersley [2020] VSC 22 (30 January 2020) – Victorian Supreme Court
‘Children exposed’ – ‘Controlling behaviour’ – ‘Domestic homicide’ – ‘Guilty plea’ – ‘Misuse of drugs and alcohol’ – ‘Mitigating circumstances’ – ‘Moral culpability significantly reduced by psychosis’ – ‘Murder’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Verdins principles’
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male offender and female victim had been in a domestic relationship from 2001 until the victim was killed in July 2018. They had three children together. There was a history of controlling behaviour by the offender towards the victim. The offender’s mental health had deteriorated in the lead up to the offence, with his GP recording that the offender was "struggling with depression due to a loss of income and employment, and that [he] had been self-medicating with alcohol and cannabis but had stopped consuming these substances" [9]. The GP did not observe any homicidal ideations or psychosis symptoms at the time.
The morning of the offence, the neighbours heard a large argument ensuing within the offender’s home. The offender threw food and cleaning products into the rubbish and damaged items in the kitchen with a hammer before suddenly attacking the victim by punching her in the face. The victim fell to the ground and was kicked by the offender before he grabbed a knife and stabbed her in the head, neck, chest and upper body. The attack was witnessed by two of their children, one of whom unsuccessfully tried to stop the attack. The offender then proceeded to set fire to a near-by fabric couch and applied the lighter flame to the older daughter’s shoulder. He then forced the children and family dog into a car and drove away. Police later found the offender and children unharmed.
The offender suffered from ‘severe, acute and transient’ drug-induced psychosis at the time of offending [62]. The offender’s psychosis meant that his degree of moral culpability was of significant dispute.
Held: Eckersley was sentenced to 22 years’ imprisonment with a non-parole period of 18 years.
The judge provided that ordinarily, "a drug-induced psychosis does not commonly result in the application of the Verdins principles and a mitigatory outcome" [88]. However, as the offender was prescribed the drug by his GP and was not aware that they could cause psychotic symptoms, the judge was satisfied of the offender’s low moral culpability [92]. This lower culpability lessened denunciation and deterrence as sentencing factors, however the judge noted that this did not "take away from the fact that the killing of an intimate partner is an inherently terrible act" [108]. The judge also noted that while the murder did not occur in the context of a history of family violence, "the killing of an intimate partner is a most serious form of offending which must again be tragically emphasised by the Court" [112].
In sentencing Eckersley, Justice Champion considered the children witnessing the offence, the offender’s destruction of the victim’s body and fleeing the scene as aggravating factors. The unreasonable delay in sentencing was also accounted for.
Re Rodgers [No 2] [2019] VSC 760 (20 November 2019) – Victorian Supreme Court
‘Bail’ – ‘Delay’ – ‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Strangulation’
Charges: 33 offences, including strangulation
Case type: Bail application
Facts: The applicant was charged with 33 offences, 32 of which arose out of incidents alleged to have occurred over 3 days. The other charge involved the contravention of an undertaking given to the Magistrates’ Court. The primary complainant was the applicant’s wife, however, the alleged offending also involved the complainant’s children. It was alleged, among other things, that the applicant grabbed the complainant’s throat and pushed her head through a wall, while threatening her that he would ‘drain’ their bank account and take their daughters to the United States ([6]).
The applicant was refused bail in August 2019, and applied for bail again ([3]-[4]). The applicant contended that a compelling reason to justify a grant of bail could be established based on his personal and financial circumstances, the strength of the charges against him, the likely delay until determination of the charges, and the lawful sentencing range open to the sentencing court. He also submitted that, without being granted bail, he was likely to spend a significantly longer period of time on remand ([11]-[12]). On the issue of unacceptable risk, the respondent pointed to the applicant’s ‘history of contravention of court orders’ and his addiction to illicit substances which appeared ‘to be linked to his offending and violence against the complainant and [her] children’ ([17]-[21]).
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held: The applicant was admitted to bail on strict conditions. In the Court’s view, bail conditions, such as daily reporting to police, prohibition from approaching the vicinity of the complainant’s residence and curfews, would sufficiently mitigate any risk posed by the applicant ([33]). The applicant was 33 years of age, and had a limited prior criminal history and no prior criminal history involving violence. He had no prior convictions for breaching court orders, however, he previously admitted to breaching a family violence order ([26]-[27]). The applicant ran a trucking business, which would likely suffer financially if he was not granted bail. Factors militating against the applicant included the seriousness of the allegations of strangulation and the fact that the complainant was afraid of him. Nevertheless, the Court found that the applicant had established a compelling reason to justify the grant of bail, given his lack of a negative bail history, the modesty of his criminal history, his personal and financial circumstances, the time already spent in custody, the period of any likely sentence and the material and recommendations in the CISP Remand Outreach Program (CROP) report ([30]).
The Queen v Karatzas [2019] VSC 658 (26 September 2019) – Victorian Supreme Court
‘Depression’ – ‘Evidence’ – ‘Mitigating factors’ – ‘Murder’ – ‘Past domestic violence’ – ‘People with mental illness’ – ‘Remorse’ – ‘Sentencing’ – ‘Strangulation’
Charges: Murder
Proceedings: Sentencing
Facts: The accused and victim were married. After an argument with the victim, the accused strangled her with an electrical extension cord until she collapsed and fled the scene. Expert evidence that the accused was suffering from a major depressive episode at the time of the offence ‘which may have clouded [his] thought processes and [his] appreciation of the consequences of [his] actions’ [24] was accepted at trial along with evidence that the accused loved his wife and had been violent to her before.
Issues: Appropriate sentence
Decision and reasoning: The accused was sentenced to 16 years’ imprisonment with a fixed non-parole period of 11 years.
The court accepted that the fact the accused was suffering from a major depressive episode significantly reduced the accused’s moral culpability [24]. Beale J said ‘[d]omestic violence murders are often upper range examples of the offence of murder, particularly where there has been a history of domestic violence. This is not your case. The fact that you killed your wife of nearly 50 years was a gross breach of trust which elevates the seriousness of your offending but, having regard to all circumstances, and particularly your mental illness, I find that yours is a mid-range example of the offence of murder’ [25]. The other mitigating factors considered by his Honour include the accused’s: remorse; previous good character; excellent prospects of rehabilitation; age; and ‘the punishment [the accused will] continue to experience knowing you killed your beloved wife’ as other mitigating circumstances [54].
The Queen v Bufton [2019] VSC 621 (13 September 2019) – Victorian Supreme Court
‘Controlling, possessive, jealous behaviour’ – ‘Female perpetrator’ – ‘Lack of remorse’ – ‘Murder’ – ‘Protection order’ – ‘Separation’
Charge: Murder
Proceedings: Sentencing
Facts: The female offender was found guilty following trial of the murder of her male domestic partner, her various offers of a guilty plea to negligent manslaughter, then dangerous driving causing death (following the death of the sole living witness to the offence), and then again negligent manslaughter having been rejected. The pleas offered appeared to relate to the Crown’s perceived prospects of proving their case with the evidential difficulties occasioned by the death of the witness.
The offender and victim had a turbulent relationship involving many arguments and periods of separation from January 2016 until his death in October 2017. The victim was attempting to remove his caravan from the offender’s property when the offender became verbally abusive and refused to let the victim move it. The victim walked away to call police for assistance but was followed by the victim in her car and struck by the vehicle. The call to 000 remain connected during the accident and picked up the ensuing conversation between the offender and a witness in which the offender claimed that the victim jumped in front of her car and she was unable to avoid him. This false story was later repeated to police.
The offender was 68 years of age and had no prior criminal convictions. She had been diagnosed with cancer. She was subject to an intervention order prohibiting the commission of family violence against the victim at the time of offending.
Held: Bufton was sentenced to 24 years’ imprisonment with a non-parole period of 18 years.
The Court treated this protection order as an aggravating feature along with the use of a dangerous weapon and noted that the ‘crime occurred in the context of [Bufton] having been in a domestic relationship with [the victim], and of [Bufton] having acted out of anger and frustration at the state of the relationship [36]. Her persistence in the false account of events and the fluctuating pleas were considered to be indicative of a lack of contrition or remorse[46-52]. Assistance rendered by the offender to the accused was conduct which could be explained by the crime being carried out in full view of the witness[53]. The judge said at [52]:
"For completeness, I make it clear that you are not to be punished for your refusal to admit what you had actually done, or for pleading not guilty to murder. Rather, these facts point to the absence of a possible mitigating feature of your crime which would have existed were you to have been willing to accept the true criminality of your conduct."
Just punishment, denunciation and general deterrence were treated as the most important sentencing purposes, with the significance of specific deterrence being reduced in light of Bufton’s age and cancer diagnosis.
Re Rodgers [2019] VSC 553 (20 August 2019) – Victorian Supreme Court
‘Bail’ – ‘Children’ – ‘Intervention order’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk’
Charges: Multiple charges of causing injury intentionally and recklessly, a charge of recklessly causing serious injury, charges of reckless conduct endangering life and endangering person, a charge of making a threat to kill, drugs charges, a charge of criminal damage, and numerous breaches of Family Violence Intervention Orders (FVIO)
Case type: Bail application
Facts: The applicant applied for bail on a number of charges, which arose out of family violence related incidents. The complainants include his former wife and children.
Issue: The issue for the Court was to determine whether a ‘compelling reason’ existed in favour of bail.
Held: The Court refused the bail application as there would be an unacceptable risk that the applicant would endanger the safety and welfare of the complainant and her children, or commit further offences while on bail ([65]). The nature and seriousness of the offending was considered to be the most important matter for the Court. Tinney J described the offending as ‘quite disturbing, with a significant and worrying risk of causing serious injury or death’ ([51]). Some of the alleged violence occurred in the presence of one or more of the children, and occurred in the family home ([54]). Although the applicant’s criminal history was limited, he had been found guilty of assaulting the complainant in the past. Further, he was on an adjourned bond for that assault ([56]), and was also subject to a FVIO at the time of the alleged offending ([57]).
There were many personal circumstances favourable to the applicant. For example, he had a supportive family and was the operator of a company which, in his absence, struggled financially ([58]). According to Tinney J, the applicant’s prolonged drug use had a significant impact on the alleged offending, and would increase the risk of failure to comply with his bail conditions ([59]). The complainant’s attitude to bail was also a relevant consideration. She was afraid of the applicant and did not want him to be released on bail ([60]). His Honour concluded that there were sufficiently compelling reasons to deny the applicant a grant of bail ([63]).
Additional matters of concern included ([64]):
•
The applicant allegedly repeatedly and violently assaulted his wife;
•
The offending allegedly occurred in the context of ongoing drug use by both the applicant and the complainant;
•
The offending occurred despite there being an intervention order in place and the fact that he was subject to an adjourned bond for a previous assault on the complainant; and
•
If bail was granted, the conditions imposed on the applicant would not have sufficiently reduced the risks to a level where they would be acceptable.
Note: An appeal against this decision to refuse bail was rejected by the Victorian Court of Appeal - Rodgers v The Queen [2019] VSCA 214 (26 September 2019)
The Queen v Solmaz [2019] VSC 530 (12 August 2019) – Victorian Supreme Court
‘Arranged marriage’ – ‘Denunciation’ – ‘Domestic violence’ – ‘Expert evidence’ – ‘Lack of remorse’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘People with mental illness’ – ‘Physical violence and harm’
Charges: 1 x murder
Case type: Sentence
Facts: The offender pleaded guilty (shortly before the trial was due to commence) to the murder of his former wife, with whom he entered into an arranged marriage when he was 18 years of age. They had 2 children. The murder occurred in the context of an unhappy relationship which had subsisted for many years leading up to her death. The offender claimed that the deceased attacked him with a broken leg of a table and that he took the piece of wood from her and hit her repeatedly. He then used an extension lead to strangle her ([10]). In the aftermath, the offender left the deceased dead on the floor and went to his step-sister’s home where he confessed to the killing. He then fled Melbourne, and was intercepted by Queensland police two days after the killing.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: The Court sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years. The offender was 60 years of age and was born in Bulgaria. He had one prior conviction of unlawful assault, but this had limited significance to his case ([33]). Medical evidence indicated that he was diagnosed with Adjustment Disorder, and was likely depressed at the time of the deceased’s death. One expert considered that his Adjustment Disorder contributed to his offending by diminishing his ability to reason and make sound judgment ([45]). The Court, however, noted several deficiencies in this expert’s evidence, such as the fact that he heavily relied on the truthfulness of the offender’s account to him about his relationship with the deceased and that it conflicted with other expert evidence ([86]-[94]). Consequently, the Court did not accept this expert evidence and rejected the defence’s submissions in respect of the Verdins principles to reduce the sentence, other than for the purpose of the hardship of imprisonment ([95], [99]). According to the Court, the offender’s conduct could not be connected to any defect in his reasoning abilities or be characterised as an impulsive crime. He inflicted multiple, forceful blows to the deceased. The ‘shocking and protracted nature of the crime’ indicated that any impairment to mental functioning was not causally connected to the offending, and that he intended to kill her ([96]-[97]). The crime was described as one of ‘extravagant and drawn-out violence committed against a physically weaker person whom [the offender] apparently detested and who had offered some provocation to [him] by striking [him] with the leg of the table’ ([97]).
While the offending was not premeditated, the Court considered it to be at the high end of the range of seriousness. The crime was an extreme overreaction to modest provocation by the deceased and the challenges of their ‘sad and troubled relationship’ ([102]). The Court also found that the offender had not exhibited true remorse ([111]). His prospects of rehabilitation, however, were found to be good ([117]).
Relevant sentencing principles included just punishment, denunciation and general deterrence. The Court found it necessary to make ‘perfectly clear’ that it deplores violent crimes of this nature, particularly those committed against domestic partners. The deceased’s life was ‘precious’, and was brutally and deliberately taken away by the offender as a result of his anger, resentment and frustration. He had full knowledge of the severity and criminality of his actions ([121]-[122]).
R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court
‘Exposing children’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Sentence’ – ‘Separation’
Offences: Murder
Proceedings: Sentencing
Issue: Appropriate sentence
Facts: The male victim and female offender (Stone) had been married for 22-years and had five children together. Evidence tendered during trial was that the male victim had reported an incident of the offender chasing him from the house with a knife. Neighbours also reported sounds of arguing and physical violence coming from the home prior to the incident that lead to the victim’s death. There was evidence that the victim told members of his extended family that he intended to leave the relationship the day of the incident that lead to his death.
The Crown case was that Stone doused the victim with highly flammable enamel thinner and set him on fire. While none of the children saw the victim committing the offence, one of the daughters saw their father engulfed in flames and heard him say that he was going to die. Another daughter saw the trail of debris left by the victim as he ran to the bathroom after being set alight.
The victim was found conscious by paramedics despite sustaining burns to 95% of his body, including his airways. He was placed on life-support and interviewed but did not recover. Both the victim and Stone gave false versions of the events, claiming that the victim had been attacked by three men. Stone provided the names of the alleged offenders but failed to identify them during police interviews and was subsequently arrested herself.
Held: The accused was sentenced to 34 years’ imprisonment with a non-parole period of 28 years. The Court provided that murder is "the ultimate act of family violence", with the offender’s ‘vicious and barbarous’ conduct constituting a "a violation of the security of the sanctity of the home and a massive breach of trust" [32]. With the offender’s conduct being ‘a most serious example of murder’, the Court found the objective gravity of the offence and offender’s moral culpability to be ‘extremely high’. As such, denunciation and deterrence were the primary sentencing considerations along with protection of the community [42].
Note: Subsequent applications for leave to appeal against conviction (on grounds that the trial judge erred in finding the applicant’s alleged lies were reasonably capable of amounting to ‘incriminating conduct’; (2) the verdict was unsafe and unsatisfactory or cannot be supported having regard to the evidence; and (3) a substantial miscarriage of justice occurred because of the failure of the prosecution to disclose telephone records); and sentence on the ground that the sentence was manifestly excessive were dismissed: Stone v The Queen [2021] VSCA 186 (24 June 2021) – Victorian Court of Appeal.
See also R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court and R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court.
R v Willis [2019] VSC 398 (20 June 2019) – Victorian Supreme Court
‘History of family violence’ – ‘Murder of parent’ – ‘People with mental illness’ – ‘Sentencing’ – ‘Verdins’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to the murder of his mother. The case raises important community issues and the connection between drugs, mental health and family violence. The evidence showed that the offender and his mother had significant mental health issues, which strained their relationship and ultimately led him to stab her to death ([2]). The offender admitted to killing his mother to police, and made further admissions to his father and former partner. Lasry J described the murder as ‘grave and tragic’. The victim was vulnerable and defenceless in the face of the attack, and her death was the culmination of a lengthy history of hostility and family violence between them ([17]).
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J noted the offender’s personal circumstances at [21]-[25], and the issue of mental health and substance abuse at [26]-[33]. He started using drugs as a teenager, however remained drug free for several years. His deteriorating mental health and increasing drug use led to the breakdown of his relationship with his former partner and the loss of his job. The offender had also been diagnosed with Delusional Disorder and subject to various treatment orders. A forensic psychiatrist gave evidence of the offender’s long history of major mental disorder and substance misuse, but noted that he had no history of being violent or anti-social other than when he was psychotic or affected by drugs. The offender also suffered from paranoid schizophrenia which was likely precipitated by his cannabis use and aggravated by his methamphetamine use.
The offender pleaded guilty at a relatively early stage of the proceedings. An element of remorse was identified in his post-offence conduct; however his Honour noted that the offender’s hostility towards his mother had not completely abated ([41]-[43]).
Further, the offender had no criminal history and made efforts to improve himself while in custody through education and work opportunities. Lasry J was satisfied that there was some evidence that he was capable of leading a law-abiding and productive life, and that his prospects of rehabilitation depended on his compliance with treatment for his mental health and substance misuse ([44]-[45]).
Lasry J was satisfied that the principles arising from Verdins meant that the offender’s moral culpability was significantly reduced. Community protection was not a significant sentencing consideration provided that his serious mental health issues were properly managed ([53]). The offender was sentenced to 20 years’ imprisonment with a non-parole period of 14 years.
R v Considine & Anor [2019] VSC 386 (31 May 2019) – Victorian Supreme Court
‘History of abuse of accused’ – ‘People affected by substance misuse’ – ‘People with disability and impairment’ – ‘Sentencing’ – ‘Strangulation’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender pleaded guilty to murdering the victim. The offender’s partner of around 9 years, Hogan, pleaded guilty to assisting him. The relationship between the offenders involved homelessness, drug use and domestic violence. In 2015, while the offender, Considine, was serving a term of imprisonment, Hogan and the victim met on Facebook and commenced an intimate relationship. When the offender was released from prison, Hogan and the victim ended their relationship, but resumed social media communication in 2017. The offender, Considine, became aware of this relationship. Considine and Hogan arranged a threesome with the victim. The offender became jealous of the sexual activity between Ms Hogan and the victim, and strangled the victim to death. Ms Hogan assisted the offender to dispose of the body.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: The offender, Considine, began consuming alcohol and taking drugs as a teenager. A forensic psychiatrist diagnosed the offender with Borderline Personality Disorder and believed that he likely had an acquired brain injury (ABI). He therefore concluded that it was likely the offender was experiencing severely impaired impulse control at the time of the offending due to his intoxication with multiple substances and Borderline Personality Disorder and probable ABI ([49]). Champion J accepted this opinion at [71]. The offender also had an extensive criminal history, however very few of his convictions involved violence ([52]). The offender’s moral culpability was reduced by various factors, including his intellectual impairment and personality disorder ([71]). The offender’s guilty plea showed a willingness to accept responsibility for the victim’s death and spared the victim’s family and friends from the traumatic effects of a contested trial ([73]). His Honour also accepted that the offender was remorseful for having killed the victim, even though this took some time to develop ([76]). The offender was sentenced to 21 years’ imprisonment with a non-parole period of 16 years ([115]).
Ms Hogan also commenced using drugs at an early age and had a minor criminal history ([56]-[57]). It was submitted that her role in the offending could not be separated from the nature of her relationship with the offender which was ‘marred by domestic violence, control and drug use’. It was also submitted that these circumstances reduced her culpability ([86]). Champion J considered that her experience of domestic violence was a factor relevant to the establishment of her state of mind, and mitigated the circumstances of her offending to some extent ([90]). She also decided to cooperate with the police and offered to plead guilty at an early stage ([94]). His Honour accepted that she was genuinely remorseful for the victim’s death ([96]). Ms Hogan was sentenced to one year and 10 months’ imprisonment ([118]).
R v Davsanoglu [2019] VSC 332 (24 May 2019) – Victorian Supreme Court
‘Children’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Suicide pact’
Charges: Murder x 1.
Case type: Sentencing.
Facts: The accused ‘[inflicted] his will on a woman [the deceased] by the use of fatal violence in her home’. They had maintained a relationship over several years, which ended as a result of her family’s disapproval. The deceased later remarried and had a child. The accused and the deceased later re-established their relationship, but it was ‘marked by periods of instability’ [8]. In 2017, the deceased became engaged to another man. On 13 July 2017, the accused visited the deceased’s residence, where they ‘apparently had a sexual encounter’ while her child was asleep [10]. The accused killed the deceased by holding her underwater in a bath. The accused then removed her body from the bath, partially dressed her in clothes, and placed the body in his car. He drove the deceased’s body from Melbourne to South Australia, as he intended to deposit it in the ocean. He also purchased 2 knives and inflicted superficial incisions to his wrist. The accused decided to return to Melbourne where he deposited the body in the garage of an unoccupied property that he had previously leased. He confessed to killing the deceased to his friends and family, but said that she had told him to kill her and that he had tried to kill himself. At the police station, the accused gave conflicting evidence on his feelings about the deceased’s relationships with other men.
Issue: The Court determined the appropriate sentence for the offence in the circumstances.
Held: Lasry J inferred that the appellant’s self-inflicted injuries were not a genuine attempt to suicide, but a means of explaining his involvement in the killing by reference to a ‘suicide pact’ ([14]). By reference to Ron Felicite v The Queen [2011] VSCA 274, his Honour noted that the seriousness of the offending required the imposition of significant punishment ([27]). It represented the accused’s endeavour, through the use of fatal violence, to control the deceased, and to overpower her rejection of their relationship ([23]). Relevant sentencing principles included general deterrence, denunciation and just punishment. His Honour also noted aggravating circumstances, including the fact that the killing occurred in the deceased’s home while her child was asleep in the nearby room, and that he abandoned the child when he drove off with the deceased’s body ([26]).
Lasry J also considered the peculiarity of the accused’s guilty plea. It was given in circumstances which made it difficult for his Honour to determine whether it was a sign of genuine remorse over the deceased’s death. The accused would have derived a greater benefit had he pleaded guilty at an earlier time ([31]-[34]). Personal circumstances of the accused were also considered. He was born in Turkey, raised in an environment of domestic violence, lived in foster homes, did not receive any formal education in Australia, maintained employment since the age of 18, and had no prior convictions for violence ([35]-[37]). The accused’s steady employment throughout his adulthood and lack of prior criminal convictions indicated positive rehabilitation prospects ([38]). The sentence was also determined in light of victim impact statements ([28]-[30]).
His Honour sentenced the accused to 23 years’ imprisonment with a non-parole period of 18 years ([42]). He allowed some discount for the accused’s guilty plea. As his Honour was not satisfied that the accused’s guilty plea reflected significant remorse or acceptance of responsibility for his conduct, only a small discount was made ([44]).
DPP v Jensen [2019] VSC 327 (17 May 2019) – Victorian Supreme Court
‘Attempted murder’ – ‘Binge drinking’ – ‘Intentionally causing serious injury’ – ‘Sentencing’
Charges: Attempted murder x 2; intentionally causing serious injury x 1.
Case type: Sentence.
Facts: The offender had maintained an incestuous relationship with his sister since he was 17 years old, and they have a child together. While they were still living together, but after their relationship ended, his sister began an intimate relationship with the first victim. The offender, while intoxicated, entered the first victim’s house which he shared with his mother. The offender found the first victim and his sister asleep in bed together, and stabbed them both repeatedly and also stabbed the first victim’s mother who intervened. The offender pleaded guilty to 3 offences: the attempted murder of the first victim (charge 1) and his own sister (charge 2), and intentionally causing serious injury to the first victim’s mother (charge 3).
Issue: The Court determined the appropriate sentence for the offences in the circumstances.
Held: Beale J sentenced the offender to 19 years’ imprisonment, with a non-parole period of 14 years. The offender was sentenced as a Serious Violent Offender on charges 2 and 3 pursuant to the Sentencing Act 1991.
Notwithstanding the offender’s relative youth, good work history, limited prior convictions and guilty plea, his Honour could not accept the submission that the offender had good prospects of rehabilitation. The violence was extreme and sustained, and the offender had a history of binge drinking. Even though his intimate relationship with his sister had ended, his ability to cope with any future relationship difficulties and to control his drinking was uncertain ([48]).
The offender’s personal history is discussed at [29]-[41]. He was born in the Cook Islands and raised by his grandparents after his parents abandoned him as an infant. He moved to Australia in 2009 with his parents and his sister. Beale J noted the possibility that he would be deported from Australia at the end of his sentence. This was a relevant factor in determining the sentence ([52]).
The mitigating factors of the case were summarised at [56]-[64]. The offender had a difficult childhood which partly caused him to develop an incestuous relationship with his sister. A lack of parental supervision when they were teenagers was also found to be a contributing factor. The offender pleaded guilty at a relatively early stage, showed remorse, is relatively young, and has a limited criminal history and no violent antecedents.
Aggravating circumstances, noted at [65]-[70], were that the offending involved a ‘terrifying’ home invasion; the attack with knives was not momentary, but sustained; the offending against his sister was an instance of domestic violence given their long-term incestuous relationship; the injuries inflicted on his sister and the first victim were life-threatening; and the offender had a prior conviction for incest, which clearly did not lead him to end his intimate relationship with his sister.
A useful table of summaries of various sentencing cases in respect of attempted murder is also annexed to the judgment. In addition to these cases, his Honour also had regard to the Judicial College of Victoria Sentencing Manual’s attempted murder case collection and the Court of Appeal overview regarding intentionally causing serious injury ([54]).
DPP v Gibson [2019] VSC 328 (16 May 2019) – Victorian Supreme Court
‘Dementia’ – ‘Guilty plea’ – ‘Life expectancy’ – ‘Murder’ – ‘No prior convictions’ – ‘People with mental illness’
Charges: 1 x murder
Case type: Sentencing
Facts: The accused pleaded guilty to the murder of his wife to whom he had been married for 44 years. The accused was 65 years old and had retired. He had four children with the victim, as well as grandchildren. The accused regarded his relationship with the victim as having ‘broken down’. He shot her twice in the head and then attempted to kill himself. The accused’s sister and their grandson were present at the time of the offending.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Held: To determine the appropriate sentence, Coghlan JA took into account the accused’s personal circumstances. He suffered from depression and anxiety since he was a teenager ([27]). He had stopped working a few years prior to the offending, and experienced financial difficulties ([28]). He was resentful of the amount of time his wife was spending with her parents ([6]), and over time, he started to scrutinise her spending habits, including the cost of caring for their grandchildren and her parents ([29]). Further, the accused and victim had made significant contributions to their local community ([30]-[31]).
The accused’s mental health was a major consideration for the Court. There was medical evidence indicating that he suffered recurrent depressive disorder of moderate severity ([38]), and that aspects of his processing speed, working memory, complex new learning skills, executive and language skills, and impulse control had deteriorated ([40]). There were suggestions by medical professionals that he might have suffered from either frontotemporal dementia or Alzheimer’s related dementia. Another expert suggested that his frontal lobe might have been damaged as a result of his attempted suicide ([43]). It was important to determine the precise cause of the brain damage as his life expectancy differed depending on his diagnosis ([45]). His Honour sentenced the accused on the basis that he had been diagnosed with frontotemporal dementia, which had a life expectancy of 8 years ([51]). This diagnosis affected the weight to be attributed to sentencing principles, such as just punishment, denunciation and deterrence ([52]). As a result of the accused’s ‘complex medical condition’, there was a significant delay in sentencing ([2]), which was also taken into account ([3]).
Coghlan JA was satisfied that the accused’s mental condition would render his prison sentence more onerous than it would for a prisoner without his condition ([54]), and that his moral culpability and the need for denunciation, general and specific deterrence were reduced ([53]). The accused pleaded guilty, had no prior convictions and was found to have led a ‘worthwhile and…blameless life’ ([56]). Taking into account all relevant matters, the accused was sentenced to 15 years’ imprisonment with a non-parole period of 10 years.
R v Eustace [2019] VSC 189 (26 March 2019) – Victorian Supreme Court
‘Factors affecting risk’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Sentencing’
Charges: Murder x 1.
Case type: Sentence.
Facts: The offender and victim met while visiting Australia from India, and eventually married. Three months later, the offender killed the victim in a knife attack in their shared home ([3]). On the night of the murder, the offender and victim argued, which ultimately resulted in the offender obtaining a knife and stabbing the victim ([9]-[14]). She suffered 12 wounds to her chest, abdomen, arm and leg. The offender’s actions were described as ‘sustained, purposeful and ruthlessly determined’. Even after the offender was restrained in a head lock and dragged from the bedroom by a man with whom they lived, he returned to the room to resume the attack ([15]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Taylor J took into account the offender’s personal circumstances at [26]-[31]. He was 43 at the time of the offending and his work history showed him to be ‘a man of industry’ ([29]). However, his father was an aggressive alcoholic ([28]). Prior to meeting the victim, he had been in two significant relationships, one of which was an arranged marriage ([31]).
The offending was found to be ‘self-evidently extremely serious’, as the killing of a domestic partner violates a fundamental principle underpinning society, namely, that all persons have the right to safety, respect and trust in intimate relationships. Whether or not the marriage was one of convenience, his Honour noted that the offender had voluntarily entered into a relationship in which he owed the victim kindness and safety. Rather, the offender betrayed her trust and the expectation that, even where issues in family relationships arise, violence is not tolerated. Even if the offender was fearful, angry, intoxicated or frustrated, he should have just walked away ([33]). Women should not fear or suffer physical harm because their partner loses their temper. The offender’s actions were found to be at the extreme end of the scale of ‘abominable acts’ ([34]). Aggravating circumstances included the fact that the victim was his wife, that she was murdered in their home, that a knife was used, and that despite the number of wounds already inflicted, the offender continued his attack, even after being physically restrained by another person ([35]-[36]). The public has an interest in matters involving family violence. Principles of general deterrence, denunciation and just punishment are relevant to sentencing ([35]). The objective gravity of the offending and the moral culpability of the offender was also found to be very high ([38]).
The offender pleaded guilty after the committal hearing, demonstrating a willingness to facilitate the course of justice ([39]). He also surrendered himself to the police station and admitted the killing. His remorse was further expressed in a letter of apology to the victim’s family ([40]).
Taylor J sentenced the offender to 25 years’ imprisonment with a non-parole period of 20 years ([46]). After the expiry of his sentence, it was noted that the offender would be deported to India. Knowledge of this deportation was said to make imprisonment more burdensome ([41]). Taylor J also noted that the offender would be isolated in custody ([42]). The offender’s prospects for rehabilitation were found to be good, as a result of some positive references indicating his good character and hardworking nature ([43]).
DPP v Ristevski (Ruling No 1) [2019] VSC 165 (15 March 2019) – Victorian Supreme Court
‘Children’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Post-offence conduct’
Charges: Murder x 1.
Case type: Ruling as to evidence.
Facts: The prosecution alleged that the accused killed the deceased at their home on the morning of 29 June 2016, put her body in the boot of her car and drove it to Macedon Regional Park where he concealed it between 2 logs in a forest. It was discovered approximately 8 months later. The accused and deceased had been married for over 20 years and had a daughter. There was no prior history of physical violence on the part of the accused. However, he admitted to pushing the deceased on occasions if she ‘got in his face’ during arguments ([34]). The prosecution conceded that the evidence at most supported an inference that their financial difficulty was significant and may have fuelled an argument between them ([24]).
Issue: Whether the prosecution was entitled to rely on evidence of post-offence conduct to prove not only an unlawful killing but also murderous intent.
Held: Beale J noted some similarities with R v Baden-Clay [2016] HCA 35. However his Honour found that the differences between the two cases were ‘more striking’. At [37], his Honour stated -
‘First, there was compelling evidence of a motive for Baden-Clay to kill his wife – a desire to be rid of her so he could be with his lover. Second, the post-offence conduct in that case included lies and other conduct directed at concealing his ongoing extra-marital affair. In other words, the post-offence conduct was intertwined with his motive to kill and thus it is easy to see how the High Court, viewing the post-offence conduct on the basis of the evidence as a whole, reached the conclusion that it did.’
In the present case, the prosecution submitted that the accused’s post-offence conduct was inconsistent with his having unintentionally killed the deceased, as one would expect him to report the incident, and not bundle her body into the boot of a car, drive to a remote location, conceal the body and lie about the circumstances of her disappearance to family, friends and investigators ([35]). Counsel for the accused submitted that he could well have feared that the unlawful killing of the deceased would attract a substantial prison term and cause permanent damage to his relationship with his daughter ([36]). Beale J found that those submissions made it difficult to see how a jury could properly find that the only reasonable explanation for the post-offence conduct was that the accused was conscious of having killed his wife with murderous intent ([36]).
Beale J held that while the evidence of post-offence conduct referred to in the prosecution’s amended Notice of Incriminating Conduct could be relied on as evidence that the accused killed his wife, it could not be relied on to prove that the accused did so with murderous intent ([31]–[39]).
R v Robertson [2019] VSC 145 (6 March 2019) – Victorian Supreme Court
‘Factors affecting risk’ – ‘Following, harassing and monitoring’ – ‘Physical violence and harm’ – ‘Social abuse’ – ‘Technology facilitated abuse’
Charges: Murder x 1.
Case type: Sentence.
Facts: The defendant pleaded guilty to murder of his partner (the deceased) with whom he fathered a daughter. After their daughter’s birth, their relationship became strained. The defendant resented the deceased’s change of employment and her being around other men. He became jealous and constantly concerned about possible infidelity. The deceased’s behaviour became more obsessive and paranoid. He even set up a fake Facebook and Instagram account to contact the deceased’s work colleagues under the fake name to establish if anything was happening between the deceased and her male colleagues ([3]-[11]). After a heated argument in which the deceased expressed her desire to end the relationship, the defendant picked up a dumbbell bar and hit her multiple times to her face and head. The blows, forceful and vicious, killed her immediately. After committing the offence, the deceased rang his mother and admitted to his actions. His mother rang the police ([12]-[19]).
Issues: The Court determined the appropriate sentence for the offence of murder in the circumstances.
Decision and reasoning: Champion J sentenced the defendant to 24 years’ imprisonment, taking into account general and specific deterrence, denunciation, rehabilitation and protection of the community. His Honour considered the defendant’s personal circumstances at [39]-43]. The defendant grew up in a close, supportive and loving family. Through his job he was able to buy a home for himself, thus demonstrating his independence and self-sufficiency. Friends and family observed that he became agitated and alienated after his daughter was born.
Champion J did not accept a complete lack of premeditation even though the defendant committed the offence in a highly emotional state. The ‘savagery’ of the assault affected the sentencing. The act in question was terrible and grossly violent. It was not fleeting and involved multiple deliberate blows to the face and head. His Honour noted the defendant’s intention to kill. An aggravating feature was the fact that she was his intimate partner ([65]-[66]). Champion J therefore concluded that his offending was a grave example of murder and above the middle range of seriousness ([67]). However, it was noted that the extreme violence was out of character as there was no evidence of previous domestic violence incidents ([90]).
Champion J discussed his culpability and degree of responsibility at [68]-[73]. The offending occurred in the context of the defendant being extremely jealous, possessive and controlling. At [73] Champion J stated: ‘I note that these features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner.’ The attack was described as grievously inappropriate and a wildly disproportionate response to the situation. Therefore, his culpability and degree of responsibility was within the higher range. A mitigating factor was the fact that the defendant admitted to killing the deceased very soon after the act, and thus his Honour found that it he should receive the full benefit of that early plea as it facilitated the course of justice and relieved the deceased’s family and friends from having to give evidence and endure the trauma of a trial ([76]). With these factors in mind, his Honour accepted that the defendant has positive prospects of rehabilitation.
The Queen v Samaras [2019] VSC 120 (1 March 2019) – Victorian Supreme Court
‘Firearm’ – ‘Guilty plea’ – ‘Misuse of alcohol’ – ‘Physical harm and violence’ – ‘Sentencing’ – ‘Weapon’
Charges: Manslaughter
Proceedings: Sentencing
Facts: Before moving to Australia from America, the victim sent four packages containing firearms to the accused’s parents’ address in Australia. Three of these packages were intercepted by the Australian Border Force. ‘The [female] victim and [male] accused were charged with the importation and possession of firearms and were bailed’ [10]. They decided to ‘go on the run’, packing their belongings and purchasing a caravan to escape in. Arrest warrants were issued after the pair failed to appear in court, but they managed to evade the police [11].
The couple lived in the caravan for a couple of weeks prior to the incident. On the night of the shooting, both the accused and the victim were intoxicated and were arguing. The accused physically assaulted the victim during the argument while the victim was in possession of the loaded firearm. The two struggled for the weapon, with the accused eventually gaining possession and deliberately pulling the trigger. The accused did not aim the weapon or deliberately shoot the victim, although ‘there is no suggestion the firearm was defective in anyway’ [17].
The accused later pleaded guilty to manslaughter.
Issue: The issue for the Court was to determine the appropriate sentence for the offence.
Decision and reasoning: The accused was sentenced to 11 years’ imprisonment with a fixed non-parole period of 8 years. Relevantly, the sentencing judge observed at [48]:
The sentence I pass must make it perfectly clear that the Court deplores the use of firearms, all the more so against women in a setting of domestic violence…… The sentence of this Court should bring it clearly home to any person in our community who might be minded to inflict violence of any sort against a domestic partner, particularly with the use of a weapon, that such conduct will be met with strong punishment.
DPP v Freeburn [2018] VSC 616 (14 December 2018) – Victorian Supreme Court
‘Imprisonment’ – ‘People with disability and impairment’ – ‘Physical violence and harm’ – ‘Women’
Charges: Murder x 1
Facts: The offender met the deceased, a 29 year old woman with a mild intellectual disability, on an internet dating site. The deceased was particularly vulnerable as she was guarded about her relationships and sometimes did not inform her family as to her whereabouts. Her parents obtained a guardianship order at VCAT because of their concern that she was unable to protect her own interests. The deceased had told her family and friends of the offender’s violent behaviour towards her. The offender often exhibited jealousy, anger and verbal aggression when the deceased interacted with other men. The deceased’s body was found in the offender’s room three days after she was reported missing, with restraint marks on her wrists, bruising to her face and upper body, and a ‘tram track’ mark on her back. She also sustained brain injuries, indicating multiple blows to the head. Her wrists were bound and her neck and face were wrapped in tape. An autopsy revealed that she consumed the drug GHB prior to her death. It was entirely plausible that the deceased was alive, albeit unconscious, when the offender left the premises.
Issues: Sentencing
Decision and Reasoning: The offender was found guilty of murder and sentenced to 25 years’ imprisonment with a non-parole period of 20 years. The jury rejected the offender’s defence that the deceased’s death was caused solely by her consumption of GHB. At the time of the incident, the offender regularly abused drugs, and suffered from personalty disorder and long-term anger management problems which may have affected his judgment and ability to make calm and rational decisions ([24]). The deceased was also in a particularly vulnerable position due to her intellectual disability. His Honour considered the offender’s personal circumstances which included his parent’s separation, his upbringing which was characterised by substance abuse and family violence, his experience in several foster placements in which he exhibited violent behaviour, and his diagnoses of ADHD, oppositional defiant disorder and conduct disorder. His involvement in the criminal justice system began when he was a minor, and his violent offending included numerous convictions of assault. Given his history of mental health problems and violent prison incidents, his Honour accepted that he should remain in conditions more restrictive than those of other prisoners.
Re Mongan [2018] VSC 638 (24 October 2018) – Victorian Supreme Court
‘Bail’ – ‘Breach’ – ‘Children’ – ‘Factors affecting risk’ – ‘People with children’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Unacceptable risk and best interests’
Charges: Charges including false imprisonment, recklessly causing injury, unlawful assault, aggravated burglary, theft and threat to kill.
Proceeding type: Bail application.
Facts: The applicant and complainant were married for 13 years and have three children. The complainant claimed that the marriage ended because of the applicant’s controlling and intimidating behaviour. From the time of the separation, a series of interim and final Family Violence Intervention Orders (FVIOs) were in place restraining the applicant from contacting the complainant. The applicant breached many of the FVIOs. It was alleged that the applicant, armed with items intended to incapacitate the complainant, unlawfully entered her premises, interfered with a CCTV camera which might have recorded his subsequent conduct, and then waited for her. He grabbed her from behind, forced her to the ground, sought to bind her wrists and gag her, pushed her into her own home, and again forced her to the ground, binding her ankles. He threatened her in a graphically and frightening manner whilst she was bound and helpless. The children returned home from school and heard the complainant screaming. The complainant eventually escaped ([46]). The applicant submitted that a combination of a number of matters demonstrated a compelling reason that justified a grant of bail (see [34]).
Issues: Whether bail should be granted; Whether there was a compelling reason why the applicant’s detention in custody was not justified; Whether the applicant presented an unacceptable risk of committing further offences, endangering the safety or welfare of the complainant and interfering with witnesses.
Decision and reasoning: Section 4AA of the Bail Act 1977 (Vic) sets out circumstances in which a two-step test applies to the consideration of a grant of bail. Step 1 requires the existence of exceptional circumstances and compelling reasons. Step 2 mandates that the Court must apply the unacceptance risk test. In considering whether or not the applicant established compelling reasons that justified the grant of bail, the Court must take into account the surrounding circumstances (see s 4C and s 3AAA of the Act). The Court was required to assess ‘the nature and seriousness of the alleged offending, including whether it is a serious example of the offence’ (see s 3AAA(1)(a)).
There was no question that the offending alleged was serious. It was pre-meditated and involved the use of equipment to incapacitate the complainant. Only the escape of the complainant prevented a continuation of the offending. The Court found that the applicant’s lawyer’s reliance of an ‘arguable defence’ was ‘somewhat optimistic’ ([48]). The Court also considered the applicant’s criminal history and the extent of compliance with conditions of earlier grants of bail. Although his criminal history was limited and there was nothing to indicate previous breaches of bail, the Court noted two factors, namely, that the applicant failed to accept the breakdown of his marriage, and that he refused to respect the orders of the Magistrate Court in relation to the complainant. A significant matter was the fact that, at the time of the alleged offending, the applicant was approximately six weeks into a six month adjourned bond which he received for his multiple breaches of the FVIOs. Matters pursuant to s 3AAA(1)(g), (j), (k), (l) were also considered.
At [57], his Honour noted that the risk of further violence or intimidation by the applicant towards the complainant was significant and entirely unacceptable (see s 4E of the Act). The application for bail was therefore refused as the applicant failed to establish a compelling reason that would justify the grant of bail. The circumstances suggested that the applicant should be held in custody pending trial.
R v Stone (Ruling No 2) [2018] VSC 626 (19 October 2018) – Victorian Supreme Court
‘Evidence’ – ‘Fair hearing and safety’ – ‘Incriminating conduct’ – ‘Physical violence and harm’ – ‘Post-offence conduct’
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The Prosecution filed a Notice, pursuant to s 19 of the Jury Directions Act 2015 (Vic), of its intention to adduce evidence of incriminating conduct, namely, the lies told by the accused in describing the circumstances of the deceased’s death, and the accused’s authorship of a letter purporting to be under the hand of Amanda Thatcher and which implicated Mr Baxter in the death of the deceased.
Issues: Whether the evidence of the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Decision and reasoning: The Court held that there was sufficient evidence on which the jury could be satisfied that the accused’s multi-faceted statement as to how the incident took place was deliberately false. The conduct relied on by the prosecution was much more than a bare denial of guilt, and amounted to a detailed account of the deceased’s death. Therefore, the jury could conclude that the only reasonable inference that could be drawn from the evidence was that the accused believed that she committed the offence. Accordingly, the prosecution was allowed to rely on the conduct specified in its notice, namely the lies told by the accused describing the circumstances of the deceased’s death, as evidence of incriminating conduct ([24]-[27]).
Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.
R v Stone (Ruling No 1) [2018] VSC 625 (19 October 2018) – Victorian Supreme Court
‘Evidence’ – ‘Fair hearing and safety’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence’
Charges: Murder x 1.
Proceeding type: Ruling as to the admissibility of evidence.
Facts: The accused allegedly murdered the victim (her defacto partner) by dousing him with fuel thinner and setting fire to him. Their relationship spanned approximately 25 years. The accused claimed that a Mr Baxter murdered the victim. The question before the Court was whether the accused was the murderer. The prosecution sought to lead evidence from the deceased’s mother as to the nature of the relationship between the accused and the deceased. That evidence included 1) that the mother observed instances of verbal and physical abuse between the deceased and accused over a number of years; 2) that in 2010, the mother observed a particular argument between the deceased and the accused in which the accused physically assaulted the deceased before the deceased’s brother intervened; and 3) that in November 2016, the mother received a phone call from the deceased, claiming that he was fearful for his own life. The prosecution filed a Hearsay Notice with respect to the ‘November 2016 incident’. Sections 65(2)(b) and 66A of the Evidence Act 2008 (Vic) were relied upon as the path to admissibility.
Issues: Whether the deceased’s mother’s observations of instances of verbal and physical abuse between the accused and the deceased were admissible; Whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused; Whether the representations made by the deceased to his mother concerning an earlier incident with the accused are admissible.
Decision and reasoning: The prosecution argued that the deceased’s mother’s evidence was admissible as relationship and context evidence in that evidence of the poor relationship between the accused and the deceased could rationally affect the assessment of the probability of the existence of the question in issue, namely whether the accused killed the deceased. The accused argued that the relationship evidence was not relevant and that the evidence of the November 2016 incident failed to satisfy the tests specified in s 65(2)(b) and s 66A of the Act ([7]).
On an analysis of the particular evidence, Taylor J made the following observations:
•
Evidence of the general poor relationship between the accused and the deceased was relevant to the probability of the existence of the question in issue. However, owing to the vagueness of the general relationship evidence, its probative value was low and was outweighed by the danger of unfair prejudice to the accused. Therefore, such evidence was excluded under s 137 of the Act.
•
The evidence of the 2010 incident was irrelevant and was therefore excluded by the operation of s 56(2) of the Act. The lack of relevance was a result of the fact that the accused was claimed to have threatened the deceased’s brother with a knife, rather than the deceased herself.
•
The evidence regarding the November 2016 incident, although hearsay, was admissible pursuant to s 65(2)(b). It was sufficiently proximate to the alleged incident and revealed the state of the relationship between the accused and the deceased, as well as the deceased’s fear of the accused in the months preceding her death. It was ‘extremely unlikely that the representation was a fabrication’ ([31]). The evidence was also admissible pursuant to s 66A of the Act.
Note: The accused was convicted and sentenced to 34 years’ imprisonment with a non-parole period of 28 years: R v Stone [2019] VSC 452 (12 July 2019) – Victorian Supreme Court.
Re application for bail by Roberts [2018] VSC 554 (21 September 2018) – Victorian Supreme Court
‘Bail’ – ‘Children’ – ‘Factors affecting risk’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sexual and reproductive abuse’ – ‘Unacceptable risk and best interests’
Charges: Charges include rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material
Proceeding type: Application for bail
Facts: The complainant was the former partner of the applicant. They have three children. The applicant was charged with 64 offences including rape, unlawful assault, contravention a Family Violence Intervention Order, persistent contravention of a Family Violence Intervention Order, attempt to commit an indictable offence, property damage and use a carriage service for child pornography material.
Issues: Whether bail should be ordered; Whether the applicant discharged his onus of showing compelling reasons why his continued detention is not justified.
Decision and reasoning: The applicant’s application for bail was refused as he failed to show compelling reasons why his continued detention was not justified. Taylor J noted that if he had been satisfied that a compelling reason existed justifying the grant of bail, he must apply the unacceptable risk test. In considering s 5AAAA(2)(a) of the Bail Act 1977 (Vic), Taylor J considered that there was a risk that, if released on bail, the applicant would commit family violence. His blatant disregard of the court orders and the effect of his behaviour on the complainant, was exemplified by the 1200 text messages he had sent to the complainant between September 2017 and March 2018. His preparedness on two occasions to continue a sexual offence notwithstanding his knowledge that his actions were being audio-recorded further indicated a complete indifference to the complainant, as well as a sense of entitlement ([57]). His prior convictions for matters of family violence demonstrated continuous disregard for the authority of the court and the complainant’s safety and wellbeing. If released on bail, the risk of family violence would not be able to be sufficiently mitigated by the imposition of a bail condition requiring compliance with existing FVIOs ([59]).
Smith v State of Victoria [2018] VSC 475 (27 August 2018) – Victorian Supreme Court
‘Aboriginal and Torres Strait Islander people’ – ‘Children’ – ‘Duty of care owed by police’ – ‘Family violence’ – ‘Negligence’ – ‘Women’
Charges: Negligence claims.
Case type: Application for summary dismissal.
Facts: The plaintiffs, a woman and her three children (who identify as Aboriginal), were the victims of family violence by the children’s father. They alleged that police officers and senior officers owed duties of care to them as victims of family violence, and that they suffered psychological harm as a result of breaches of those duties. The plaintiffs also asserted that the officers acted in breach of the plaintiffs’ human rights and obligations as public authorities under the Charter of Human Rights and Responsibilities Act 2006 (Vic) ([40]). The defendant submitted that the alleged duties cannot arise at law and that the proceedings should be summarily dismissed ([41]). Alternatively, the defendant sought a strike out of the allegations of a common law duty of care pleaded in certain paragraphs of the plaintiffs’ amended statement of claim on the basis that no cause of action had been disclosed ([3]). The plaintiffs contended that the current law in Australia regarding the application of duties of care to police officers is ‘in a state of development’ and that, as a result, the court ought not summarily dismiss the proceedings ([87]).
Issue: The State of Victoria sought either a summary dismissal of the case or that the Court strike out the claims alleging that a common law duty of care was owed.
Held: Dixon J dismissed the application, stating that the defendant’s contention that the proposed duties of care have no real prospect of succeeding had not been established ([174]). Dixon J held that a summary dismissal is an ‘extreme measure’ and would ‘forever shut out’ the plaintiffs from seeking to prove their claim at trial ([169]). Although the case was ‘fact rich and fact intensive’, the defendant did not persuade his Honour that no duty of care could arise ([171]).
Duty of care
Dixon J stated at [170]:
‘Australian common law has not affirmatively recognised that a police officer can never owe a duty of care… In no case has a court determined that no duty of care was owed in circumstances that demonstrate the degree of proximity between the plaintiffs and the police that is likely to be demonstrated on the evidence in this case at trial and in the legislative and policy framework that prevail in respect of domestic violence at the relevant time.’
As outlined in Kuhl v Zurich Finance Services Australia Ltd [2010] HCA 11, the existence of a duty of care is determined by considering reasonable foreseeability and the salient features of the relationship between the plaintiffs and the defendant ([168]). The plaintiffs argued that the police officers owed them a duty of care to prevent breaches of several Intervention Orders (IVOs) by the father due to the existence of a relationship of proximity between the police officers and the plaintiffs, arising from various salient features, including that:
•
It was reasonably foreseeable that the plaintiffs required protection from breaches of the extant IVOs by the father;
•
The police officers had actual or constructive knowledge of the terms of the extant IVOs;
•
The police officers exercised control with respect to the compliance by the father with the terms of the extant IVOs;
•
The Victorian police represented, through the terms of its family violence policies, that police officers would protect women and children from family violence. As a result of these representations, the plaintiffs relied on the police officers to enforce compliance by the father with the extant IVOs; and
•
There were no countervailing policy reasons that negated the imposition of a duty of care on the police officers to prevent breaches of IVOs ([49]).
The defendant argued that some of the pleadings in the plaintiffs’ amended statement of claim were too broad. The submission was that these duties were that, ‘every’ police officer owed a duty to ‘every’ affected family member named in any and ‘every’ extant IVO ([53]). In response, the plaintiffs argued that the duties were ‘owed by police officers at stations local to the plaintiffs’ homes, by reason of their status as family violence victims’ or, alternatively, as ‘victims of a recidivist family violence offender known to police’ ([58]). Dixon J accepted the plaintiffs’ submission that the duty was not pleaded in unnecessarily broad terms ([59]).
Salient Features
Dixon J noted that as the existence of a novel duty of care was alleged, the court must apply the salient features approach in Crimmins v Stevedoring Industry Finance Committee[1999] HCA 59 ([90]). A determination of the existence of a duty of care requires ‘[a] close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by reference to the salient features or facts affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury’ ([91]).
The plaintiffs submitted that the salient features of foreseeability, knowledge, control and responsibility applied ([129]). They challenged the defendant’s reliance on Hill’s Case [1989]AC 53, emphasising that the salient features of proximity, knowledge and control were absent in Hill’s Case. Dixon J held that Hill’s Case was distinguishable, even if it was good law in Australia ([94]-[95]). The plaintiffs also emphasised the dissenting judgment in Michael v Chief Constable of South Wales Police [2015] UKSC 2, which viewed proximity as the determinative factor ([102]). The plaintiffs submitted that NSW v Spearpoint [2009] NSWCA 233 was analogous, and that it was persuasive authority for their submission that the proceedings could not be summarily dismissed ([114]-[115]).
In relation to the factor of control, Dixon J accepted that the relevant focus was on control of the risk not the offender, and that the issue of control is ‘fact sensitive and a matter for evidence’ ([135]). The plaintiffs suggested that the police officers exercised control by having the father in a police vehicle and dropping him within the zone identified in one of the IVOs ([137]).
R v Jones [2018] VSC 415 (31 July 2018) – Victorian Supreme Court
‘Battered woman syndrome’ – ‘Manslaughter’ – ‘Pregnant people’ – ‘Sentencing’
Charges: Manslaughter based on an unlawful and dangerous act x 1
Proceeding type: Sentence to be imposed
Facts: The female offender was in a relationship with the male victim, with a history of illicit drug use and domestic violence. In April 2015, the victim grabbed the offender around the throat and threatened to harm and kill her. In October 2015, the victim pushed the offender. She armed herself with a knife and returned to the bedroom to confront him. He grabbed her by the throat, and verbally and physically assaulted her. She was pregnant at the time with his child. In December 2016, there had been a heated verbal argument between the parties. She stabbed him in the chest with a kitchen knife. The offender pleaded guilty.
Issues: Sentence to be imposed.
Decision and Reasoning: Taylor J took into account victim impact statements ([20]-[21]), and the offender’s prior criminal history ([22]-[26]) and personal history ([27]-[41]). The offender had been sentenced to a term of imprisonment for a charge of recklessly causing injury by punching and stabbing a former partner. She had experienced trauma at an early age as she was raped by two of her brother’s friends. She was diagnosed with post-traumatic stress disorder and excoriation disorder. Her psychological condition did not warrant the application of the principles in R v Verdins [2007] VSCA 102. Her Honour accepted that there had been a history of domestic violence at the hands of the victim and that, on the balance of probabilities, physical violence had occurred the morning of the victim’s death. The gravity of her offending was to be assessed in the context of her history of family violence and her perception of a physical threat. At [48], her Honour stated –
‘Family violence is insidious. It need not find expression in physical violence to be described as grave or create a mindset in its victims of fear and helplessness. That mindset arises from all forms of violence experienced by victims and is not triggered only at the time of a physical assault…’
Her Honour accepted that her plea of guilty was an expression of genuine remorse, and that her time in custody would be more burdensome due to the separation from her children, as well as her diagnosed psychiatric illnesses. Specific deterrence was considered a significant sentencing factor, as well as general deterrence and denunciation. At [58], her Honour acknowledged that ‘This Court must pass a sentence that denounces your behaviour and deters others from resorting to the use of knives or other sharp objects during conflicts.’ The offender was sentenced to nine years’ imprisonment, with a non-parole period of seven years.
The Queen v Donker [2018] VSC 210 (11 May 2018) – Victorian Supreme Court
‘Coercive control’ – ‘Female perpetrator’ – ‘History of domestic and family violence’ – ‘Manslaughter’ – ‘Non-fatal strangulation’ – ‘People affected by drug misuse’ – ‘Sentence’ – ‘Victim as (alleged) perpetrator’
Charges: Manslaughter.
Matter: Sentence.
Facts: Ms Donker and Mr Powell were in a violent, volatile and toxic relationship [5]. Mr Powell’s violence was fuelled by ice use, he would become violent in the course of arguments, was controlling and suspicious of Ms Donker, and, even during Ms Donker’s first pregnancy, would grab her around the throat and push her around.
Ms Donker lied to protect Mr Powell whenever the police were called. Ms Donker was also violent towards Mr Powell in retaliation, which would make Mr Powell more angry and more violent. Mr Powell’s violence had caused their children to be removed from Ms Donker’s care and them both to be evicted.
In January 2017 Mr Powell woke Ms Donker when she was asleep in her car in a kindergarten carpark by him dragging her from the car by her hair. She had parked there for the night as it was close to where her children were living with Mr Powell’s extended family. In response to Mr Powell’s assault she repeatedly manoeuvred her car so as to threaten and taunt Mr Powell. She did not intend to physically hurt him. However, on the fourth instance of reversing away from and driving towards Mr Powell, she struck a pole which bent and fell so as to strike Mr Powell’s head, killing him instantly.
Decision and reasoning: Five years’ imprisonment with a non-parole period of two years.
Croucher J accepted that:
[23] ….after years of Mr Powell’s violence; after numerous unsuccessful attempts at defending herself; after losing her recently hard-won gains – including her home, her job and, most importantly, the care of her children; after being forced to live in a car; after being choked and having her eyebrow split by him again the night before; after being viciously dragged out of her car by the hair as she tried to sleep…
Ms Donker ‘could take no more and finally snapped’.
Having outlined a history of controlling and violent behaviour by the deceased towards the accused at [5]-[9] and the physical violence to which the accused was subjected immediately prior to the instant offending Croucher J noted:
[72] While the law in this State does not excuse anyone – whether of uncommonly sturdy or brittle disposition – from criminal liability for otherwise unlawful actions based on provocation alone, the same law does not demand that victims of abuse of the kind and extent to which Ms Donker was subjected be super-resilient before provocation can operate in mitigation of sentence. Rather, the law attempts to strike a balance that recognizes human frailty in the face of extremely difficult circumstances, and allows that moral culpability may be reduced in such cases. This is such a case. As I say, I think it is very likely that any ordinary person, facing the circumstances which confronted Ms Donker and fixed with her history of exposure to family violence by Mr Powell, would lose self-control and act in a violent manner towards him.
Re Kele [2018] VSC 159 (10 April 2018) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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]).
DPP v Lo (Ruling No 3) [2018] VSC 149 (29 March 2018) – Victorian Supreme Court
‘Evidence’ – ‘Evidence issues’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Relationship, context, tendency and coincidence evidence’
Charges: Murder.
Case type: Ruling on relevancy of evidence.
Facts: The female accused Lo was charged with murder and perjury. It is alleged that AB shot the deceased and that the accused Lo assisted, encouraged and directed AB in those actions. The accused was a Chinese national living with the deceased prior to the murder.
The central issue of this trial was whether the evidence provided by a marriage celebrant was relevant. The marriage celebrant provided evidence that he visited the deceased’s home in relation to proposed plans for him and the accused to marry. The Defence submitted that this confused the jury, and that it was counter-intuitive to the Crown’s case. It was also submitted that if the evidence was put before the jury, there would be a risk that the jury would be misled into thinking that the deceased wanted to marry the accused because he loved and cared for her. This would require the Defence to adduce evidence to show an alternative scenario that the deceased had been actively seeking to marry a young Asian woman and had told others of his willingness to facilitate such a person getting an Australian visa through such an arrangement ([3]-[6]). The Defence submitted that consideration of this issue would be time-consuming and distracting for the jury, and the evidence of the marriage celebrant was not sufficiently relevant to allegations of the accused’s complicity in the murder ([7]).
Issues: The Court was required to determine whether the evidence of the marriage celebrant was relevant.
Decision and reasoning: Under the Evidence Act 2008 (Vic), evidence is prima facie admissible if it is relevant. In order to exclude the evidence, the defendant bears the onus of showing that the danger of unfair prejudice outweighs the probative value. Dixon J held that the marriage celebrant’s evidence was relevant and admissible as context and relationship evidence ([22]), and that the Defence should be entitled to adduce evidence supporting a counter-narrative that the deceased had been interested in marriages with other women prior to the murder ([27]). Her Honour was of the view that evidence as to the events in the house the night before the murder, and evidence of the complex nature of the accused’s and deceased’s relationship was relevant. Any unfair prejudice arising from the jury learning about a planned marriage of convenience between the accused and deceased did not outweigh the probative value of the evidence ([25]). The marriage celebrant’s evidence was found to have significant relevance to the issues in the trial ([27]), and to be admissible relationship evidence.
Director of Public Prosecutions (Vic) v Walker [2018] VSC 83 (28 March 2018) – Victorian Supreme Court
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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.
DPP v Paulino (Sentence) [2017] VSC 794 (21 December 2017) – Victorian Supreme Court
‘Coercive control’ – ‘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, sought to commit a character assassination of her by alleging that she was promiscuous and by making spurious allegations about her involvement in pornography, 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]).
The accused’s acts in relation to the victim — namely the character assassination and other harassment — were found not to be ‘random measures’. Instead, Bell J found that they represented a ‘pattern of coercive control’. Her right to ‘personal dignity and autonomy’ was violated by the accused, whose conduct led to a situation in which she no longer had a life to live. This, Bell J explains, ‘was the culmination of a pattern of behaviour aimed at preventing her from living the life she chose’. [27]
Re Kumar [2017] VSC 742 (6 December 2017) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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) – Victorian Supreme Court
‘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.
County Court
DPP v Walker [2024] VCC 374 (26 March 2024) – Victorian County Court
‘social abuse’ – ‘contravening a protection order’ – ‘kidnapping’ – ‘threats’ – ‘deportation’ – ‘perpetrator programs’
Charges: 1 x kidnapping; 2 x common law assault; 1 x contravening a family violence order; 4 x summary offences.
Proceedings: Sentence.
Facts: On 20 December 2021 a final family violence intervention order was made. Its duration was three years. It contained only two conditions, including a condition prohibiting the respondent /offender from committing family violence against his wife (the protected person). At incident one the victim and offender were living together. The offenders used abusive language towards the victim and dragged her out of the house when she decided to smoke (2 x summary offences- assault and contravening the intervention order). The police attended an a further condition was included in the intervention order – that the respondent/offender remain at least 200 m away from the victim/protected person’s home. Incident 2 involved the offender going to the victim’s house, dragging her out of bed, removed the charger from her phone, strapped her into the car, and hit her. The offender told the victim he would take her where no one would find her (1 x kidnapping; 1 x common assault; 1 x summary offence). The offender was later arrested regarding drink driving matters (summary offences).
Decision and reasoning: The sentencing judge considered a range of factors including the plea of guilty, the issue of possible deportation (the offender was from New Zealand) and the fact that the offender had completed programs while in custody. The total effective sentence ordered was 61 months' imprisonment with a non-parole period of 40 months' imprisonment. Judge Lauritsen discusses research about the effectiveness of domestic violence perpetrator programs observing that some research ‘shows the effectiveness of such programmes in changing behaviour’ [79] –[80].
Judge Lauritsen observes: ‘The kidnapping is a particularly nasty aspect of those events, accompanied as it was with distinct assaults upon her. Rendering her phone unworkable and your statement which was reasonably interpreted by your wife as threatening to kill her.’ [54]
DPP v Lee [2023] VCC 2008 (02 November 2023) – Victorian County Court
‘text messages’ – ‘contravening a protection order’ – ‘bail’
Charges: 11 x persistent contravention of a family violence intervention order, 3 x common law assault; 1 x criminal damage; 2 x committing an offence on bail; 1 x trespass.
Proceedings: Sentence.
Facts: The offender pleaded guilty to all offences. There were two victims. The offender had previously been in a defacto relationship with the primary victim and had a child with her. The offender was the respondent to a final intervention order with the primary victim the protected person. The secondary victim was the primary victim’s current partner. Around 2am on day of offending the offender went to the primary victim’s home and broke a glass window (criminal damage) and climbed through (trespass). The offender headbutted the secondary victim (assault). The primary victim called police and they attended and arrested the offender. A search of the offender’s mobile phone revealed that he had sent the victim 2,110 text messages on one occasion; 435 text messages on another and made 59 calls to her in breach of the intervention order. Further interviews with the primary victim revealed his attendances at the primary victim’s home (persistent contraventions of a family violence intervention order).
Decision and reasoning: Blair J took into account the offender’s pleas of guilty and his remorse, the gravity of the offending and the family violence context in which the offending occurred, the offender’s mental impairments, and the offender’s own history of abuse. Blair J placed the offender on a Community Correction Order for a period of 16 months with various conditions.
[The primary victim and those she] ‘chose to have at her home, were entitled to feel safe and secure. Your offending occurred late at night, where you were not welcome at the address. Further, you assaulted … and frightened [the primary and secondary victims] … and no doubt your daughter … also.’
Although your breaches of intervention order were persistent, protracted and occurred over the better part of a year, I consider them to have occurred in the context of the breakdown and attempted reconciliation with your former partner…. Further, I accept that at the time of the offending … you were at a particularly low ebb in your life having attempted suicide approximately one month prior.’
DPP v Chirnside [2023] VCC 1221 (29 June 2023) – Victorian County Court
‘text messages’ – ‘emotionnal and psychological abuse’ – ‘bail ’ – ‘contravene protection order’
Charges: 2 x attempt to pervert the course of justice; 1 x threat to kill; 1 x common assault; 2 x contravene a family violence intervention order intending to cause harm or fear for safety; 2 x persistent contravention of a family violence intervention order
AND
3 x unlawful assault; 2 x contravention of a family violence intervention order which has a two year maximum penalty; 4 x commit an indictable offence on bail; 1 x contravening a condition of bail
Proceedings: Sentence.
Facts: The charges arise out of a nine-month relationship the offender had with the victim. On various occasions the offender verbally abused and threw things at the victim and assaulted her. The victim obtained an intervention order. The offender sent text messages to the victim telling her to ‘tell them to drop the order’ and to lie to her lawyer [22]- [24]. He subjected her to a ‘barrage of obscene and derogatory verbal abuse and abusive conduct in person and via text’ [29]
Decision and reasoning:
Judge Hassan considered early plea total effective sentence: 18 months’ imprisonment in combination with a two year community correction order [99]. (The sentences are set out from [93]). The judge commented:
‘You subjected [the victim] to behaviour which was relentless, oppressive, degrading, threatening and at times involved physical violence. Your conduct must have worn her down and left her feeling helpless and frightened. You paid scant regard for orders and on two occasions manipulated [the victim] in an attempt to get her to withdraw complaints to police against you… While I accept the submission made by your counsel that this is not a case of family violence involving a high level of violence, and the attempt to pervert the course of justice charges do not involve threats or acts of overt intimidation, nevertheless your abuse of [the victim] is objectively serious offending and your moral culpability is high.’ [84]-[86]
DPP v Forrest (a pseudonym) [2023] VCC 2172 (22 November 2023) – Victorian County Court
‘coercive control’ – ‘strangulation’ – ‘economic and financial abuse ’ – ‘following, harassing and monitoring’
Charges: 10 x common law assault; 1 x threat to kill; 1 x stalking
Proceedings: Sentence.
Facts: The offender and victim began living together in an intimate relationship in 2008. Initially the offender gave many gifts to the victim but then began to control and manipulate her, behaving aggressively and ultimately isolating her from her friends and family. From 2011 the offender began pulling the victim’s hair, ripping some out. The offender and victim had a baby in 2012 and a second child in 2017. The victim began to run a business, but the offender took over, the offender made threats about the business and made the victim write out lines saying she was an idiot and needed to behave [10]. In 20212 the offender and victim married. The offender made the victim sleep in the laundry locking her out of the house. Specific assaults the subject of the offences are explained at [16] –[24] but involved hitting, kicking and punching her, dragging her by the hair, various threats, grabbing her around the neck [25] and numerous calls. She obtained an intervention order. After separating the offender monitored the activities of the victim and accessed her bank statements.
Decision and reasoning:
Individual sentences set out at a [186]; total effective sentence of 5 years and 2 months' imprisonment, and to serve 2 years 10 months before becoming eligible for parole. [188]
Judge Cannon observed: ‘your offending is serious and deserves a punishment which is just in all of the relevant circumstances. Your conduct must be firmly denounced. Your behaviour towards the complainant was monstrous and repugnant. You assaulted her on 10 separate occasions over a prolonged period of time in the context of a controlling and abusive relationship where you appear to have behaved in any way you wished at a whim. In saying this, I make it clear that you are only to be sentenced for the offences on the indictment rather than in relation to the contextual information, but that contextual information is relevant.’ [93]
Judge Cannon quotes from the victim impact statement: ‘She said that by the time she had fled you, she felt like she had no identity at all, and she continued to struggle in finding out who she was. She spoke of you devaluing her as a person and that the effects on her broken confidence and self-belief continued to permeate her daily life and interactions with others. She said that she would never know whether you would be Dr Jekyll or Mr Hyde from one day to the next, and that she felt she had to behave in a way that would protect herself from your violence. She continued to be hypervigilant because of this. She said that your actions had left lifelong scars on her mental and emotional wellbeing, stripping her of her confidence and ability to function on a day-to-day basis, questioning all that she said and did because she never felt she was worthy as a person …She spoke of her sense of isolation because of your offending and control over her….’ [114]-[118]
DPP v Buck [2021] VCC 759 (11 June 2021) – Victorian County Court
‘Damaging property’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Protection order’ – ‘Sentencing’ – ‘Strangulation’ – ‘Weapons and threats to kill’
Charges: Criminal damage; Common assault; Conduct endangering serious injury; Intentionally cause injury; Threat to kill; Trespass; Indictment offence on bail; Persistent Breach of Family Violence Intervention Order.
Proceedings: Sentencing.
Facts: The male offender and female victim had been in a relationship for approximately four months. The offender ripped her clothes off and hit the back of her head with a hair dryer multiple times. He punched her five or six times to the face, and stomped on her head and chest several times. He strangledher, threatening to kill her, and she felt unable to breathe. At one point, the offender chased the victim into the street and threatened to kill her while brandishing a knife. He also caused property damage and assaulted the victim’s housemate (who tried to intervene). The victim’s children were present at the time of the offending. The victim sustained many injuries, including exposing her bone and skull. A Family Violence Intervention Order was imposed and, despite the order, the offender telephoned the victim from custody on 12 occasions, but desisted once the victim told him to stop.
Issues: Sentence to be imposed.
Decision and reasoning: A sentence of 3 years 5 months imprisonment with a non-parole period 2 years was imposed.
Assessed in the context of an intimate relationship, this was a reasonably serious example of causing intentional injury for the following reasons:
•
It was an assault on the offender’s partner who was entitled to his care.
•
The offending occurred in the victim’s home, where she should have felt safe.
•
The offender used a household item as a weapon, hitting the victim to her head repeatedly to a point where she was feeling dizzy. The victim said she felt unable to stand up, had blood in her eyes and her head was throbbing. The physical injury to her head was a result of those repeated strikes. The offender continued to assault her, despite her state and her pleading with him to stop.
•
The assault was protracted, moving between various rooms in the house, out onto the street and back into the house.
•
The acts of violence against the offender’s partner “were not only physically violent, resulting in her injuries, but they were degrading, including stripping her naked. One neighbour refers to her running naked in the street, bloodied and bruised.”
•
As part of the episode, the offender choked her. The victim described feeling unable to breathe and wondering whether she would be able to do so again. There were marks around her neck from that part of this event. During that event, he made the threat to kill her which must have been terrifying given the context of that threat. He later made a threat when brandishing a knife.
•
The offender continued to attack the victim, despite the intervention of the victim’s housemate.
•
The acts occurred in the presence and hearing of the victim’s children, which was most disturbing. As his Honour noted: “The fact that a 12 year old had to call police because you were violently assaulting her mother is reprehensible. [The victim’s] daughter was extremely courageous and showed wisdom beyond her years in doing what she could to try and get police to the scene.”
•
The offender’s assault on the victim’s housemate demonstrated the offender’s level of aggression.
•
“Despite the fact I have not received a victim impact statement, I can well anticipate that Ms Brewer suffered distress, humiliation and fear during this offending, and that she is likely to have experienced some ongoing trauma as a result. Those matters would only be exacerbated in my view, by the presence of her two daughters and her feelings of concern for them.”
The principles from Bugmy v The Queen were applicable in this case (disadvantage and events during his formative years) and somewhat reduced the offender’s moral culpability. He pleaded guilty. There was an intervention order protecting the victim and the offender had shown no desire to try and contact her now.
DPP v Vickers (a pseudonym) [2021] VCC 445 (16 April 2021) – Victorian County Court
‘Coercive control’ – ‘Detention for a sexual purpose’ – ‘Low cognitive functioning’ – ‘Moral culpability’ – ‘Objective seriousness’ – ‘Offender in relationship with victim from under the age of 16’ – ‘People affected by trauma’ – ‘Rape’ – ‘Separation’ – ‘Suicide threat’ – ‘Young people’
Charges: Rape (rolled up charge, 3 separate incidents) x 1; Detention for a sexual purpose x 1.
Proceedings: Sentencing.
Facts: The male offender was 23 years old at the time of the offending and the female victim, his partner, was 32 years old. The offender had been groomed by the victim since he was a child, with sexual and then de facto marital relationship commencing when he was a child.
Issues: Sentence to be imposed.
Decision and reasoning: A total effective sentence of 6 years and 9 months was imposed, with a non-parole period of 3 years and 10 months.
The court noted the seriousness of rape as an offence. The objective gravity of the offender’s offending (as rolled-up charges) was high.
The court noted at [41] that: “This case is an example of controlling and violent conduct borne out of an inability to accept and negotiate the end of the relationship – culminating in the heinous and devastating offence of rape. It is reprehensible conduct of the highest order and must be deterred and denounced.” And at [42]: “The impact upon the victim also needs to be given proper weight in the exercise of my sentencing discretion. Your victim states that she has had suicidal thoughts, has been diagnosed with anxiety, depression and PTSD, and is having counselling. The offending has also impacted the children, who are anxious and withdrawn.”
Age disparity between the offender and victim alone would have had limited impact in assessing the circumstances of the offending and offender’s moral culpability. But, in combination with the following factors, the circumstances of the relationship were more significant:
•
The offender was diagnosed with ADHD in Grade 3;
•
He had difficulties at school and is dyslexic;
•
He suffers hearing impairment, requiring hearing aids;
•
He has low intellectual functioning;
•
He became a father when he was a child and by 20 was working to support a house of three children;
•
To some degree, the offender was subject to some manipulation/control in the form of managing his medication and access to hearing aids, particularly leading up to the offending;
•
The relationship was his first sexual relationship. It was his “only experience of a relationship and your attitudes and strategies for dealing with conflict have been shaped within a relationship that commenced when you were a child.”
The offender required specific deterrence, treatment and programs to ensure he did not repeat this offending. Denunciation and general deterrence were also important sentencing considerations: “All potential perpetrators who may feel aggrieved within a domestic relationship and who lack the skills, intelligence, maturity and emotional control to relate to a partner or ex-partner in anything other than a violent and controlling way – must be deterred” at [55].
DPP v Senior (a pseudonym) [2020] VCC 1380 (2 September 2020) – Victorian County Court
‘Arson’ – ‘Domestic violence’ – ‘Protection order’ – ‘Sentencing’ – ‘Separation’ – ‘Threats to kill’
Charges: Contravention of a DFV protection order x 1; Arson x 1.
Proceedings: Sentencing.
Facts: The male perpetrator plead guilty to breach of a protection order by threatening to kill his female former partner and arson. After an argument the offender called his former partner and threatened to ‘come to her house and blow her and her family up’. He entered her home, and despite his father’s atempts to calm him, threw thinner over the couch and lounge room floor, stating he would burn the house down with his former partner in it. Some of the thinner (accidentally) caught fire on the gas heater causing an explosion. The offender and his father escaped the fire; however, the house was destroyed.
Issues: Sentencing.
Decision and reasoning: Sentenced to time served, followed by a community corrections order for 12 months with conditions designed to continue rehabilitation by way of supervision, mental health and programs to reduce reoffending.
[16] You are fortunate that your vile threats of harm did not cause further injury or damage to your son and his mother. Arson is a very serious offence. In the circumstances of this case, you allowed your rage and anger to get the better of you in a situation in which you recklessly used an accelerant which you well knew and believed would probably result in damage or destruction to property. It is important in your case, as the learned prosecutor made clear very fairly during the course of the plea, that two factors need to be recognised.
[17] The first is that this was not a case in which you burnt down a property either to damage it intentionally or to prevent or deny another its enjoyment or ownership, and that having properly classified and understood the modus in which the fire started in a seemingly accidental way which nevertheless carries the inference of intention, and secondly, that your intention at the time was to hurt yourself by fire, even endangering your own father; intent which should be also noted you put into effect, not by arming yourself with an accelerant fuel but because your work made it available to you through a thinner which you already had available to you.
[18] The circumstances significantly reduce in my view the gravity of the offending and your moral culpability. You have, by your plea, accepted responsibility legally and I accept you are remorseful for your actions.
DPP v Jenkins [2020] VCC 749 (4 June 2020) – Victorian County Court
‘Covid-19 pandemic’ – ‘Following, harassing and monitoring’ – ‘Guilty plea at commencement of trial’ – ‘History of domestic violence’ – ‘Lengthy procedural history’ – ‘Obsessive and controlling behaviour’ – ‘People affected by substance misuse’ – ‘Persistent offending’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Self-represented litigants’ – ‘Separation’ – ‘Sex offender registration’ – ‘Significant criminal history’ – ‘Stalking’
Charges: 11 charges, including rape x 2; destroying or damaging property x 1; causing injury intentionally or recklessly x 1; threats to kill x 3; assault x 3; stalking x 1
Case type: Sentence
Facts: The majority of offending was committed against Ms Burgess (the victim), with whom the male accused was in an intimate relationship ([12]). Their relationship was marred by excessive drug and alcohol consumption, physical and sexual violence and stalking. The accused regularly argued with the victim about his paranoid suspicions concerning her infidelity ([13]). The controlling and obsessive behaviour became more severe over time. On one occasion, the victim threatened to stab him before self-harming, demonstrating the level of stress she was suffering at the time ([17]). The accused’s controlling behaviour continued. He checked her emails and social media accounts, accessed her phone without permission and tracked her location. He also broke her phone after she refused to give it to him ([18]-[20]).
On 5 October 2017, he raped ([23]-[24]) and physically abused the victim ([25], [27]) and threatened to cut her throat ([26]). A week later, he pushed the victim to the ground after she had told him that their relationship was over and demanded him to leave the premises ([29]). After this incident, the accused was arrested, and released on bail with conditions prohibiting contact with the victim ([30]). Despite this order, he continued to text and ring the victim, track her location and loiter near her home. One evening, the victim allowed the accused to enter her house, where he accused her of sleeping with other people, physically assaulted her and grabbed her phone ([34]-[40]). The accused continued to contact the victim, causing further distress and fear, and later threatened to cut the victim’s and a police officer’s throat ([41]-[43]).
There was a significant delay in resolving the matter, and the accused was unrepresented for most of the proceeding, including the plea hearing. His guilty pleas were entered at the commencement of trial ([51]-[52]). The Court held that "the fairest and most appropriate course" was to ensure that he was not punished for adopting a "somewhat uncooperative approach" ([56]), and that his guilty pleas still entitled him to a sizeable reduction in sentence ([57]).
Held: The accused’s personal circumstances and criminal history are discussed at paragraphs [58] to [75]. He abused alcohol and drugs from an early age, and had previously seen doctors for drug dependency, depression, drug psychosis and attempted suicides. Although he had suffered numerous head injuries, a neuropsychologist concluded that he did not have an acquired brain injury ([64]-[65]). He also has a significant criminal history, including past convictions for recklessly causing injury, indecent assault, contravening a family violence intervention order, and making threats to kill ([69]-[70]). He has also been convicted of a number of offences against former intimate partners and has breached a family violence safety notice on several occasions ([71]-[73]).
The Court found that the accused’s conduct was "absolutely appalling". He had "gained [the victim’s] trust and formed an intimate relationship with her only to go on to degrade and demean her at the whim of [his] paranoid obsessions". The rape, assaults and threats to kill demonstrated the kind of behaviour to which she was subject for the duration of their relationship ([85]). The rape was particularly serious, because it was committed in the context of an initially trusting and intimate relationship, and involved the use of force and violence ([86]). The charge of stalking was also serious as the accused went to great lengths to control and abuse the victim in a "pathologically unfeeling" manner. He also knowingly disregarded court orders intended to protect the victim from his conduct ([87]). The Court assessed his moral culpability for the offending as "very high", and accepted the prosecutor’s submission that the physical and sexual violence he inflicted on his partner requires just punishment and strong denunciation ([88]). Further, the accused had prior convictions, indicating a tendency to treat intimate partners violently ([89]). The accused appeared to have some "incipient insight" into his conduct and the necessary steps to address his drug problem and attitude towards women ([92]). Whilst he apologised for his behaviour, the Court did not place a great deal of weight on that assertion as there was no evidence that indicated that he was genuinely remorseful for the harm caused to the victim. The Court was also not confident of his prospects for rehabilitation, but took into account that any sentence imposed must not be crushing ([93]).
Consequently, the Court granted the Crown’s application to have the accused report under the Sex Offenders Registration Act 2004 for the "rest of [his] life" as he poses a real risk to the sexual safety of women ([95]-[101]). He was convicted of all charges (except one count of rape), and was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 7 years ([115]).
Director of Public Prosecutions v Linton [2020] VCC 515 (28 April 2020) – Victorian County Court
‘Female perpetrator’ – ‘History as victim of family and domestic violence as child’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Substance misuse’ – ‘Verdins principles’ – ‘Weapon’
Offences: Recklessly causing serious injury x 1; Possessing drug of dependence x 1
Proceedings: Sentencing
Facts: The female offender and male victim had been in a relationship that ended six months prior to the offending, but had started spending time together one to two months before the offending. One night, the offender picked up the victim from a pub and they visited the victim’s cousin’s house where they played pool and used drugs. The offender and the victim left around 2am and returned to the offender’s bungalow where an argument broke out. The offender stabbed the victim on the left side of his chest with a pair of scissors. The victim left the bungalow and called emergency services. The offender sent text messages to the victim asking him if he was alright, but the focus of the messages was very much on the offender’s own needs. The victim suffered a left haemopneumothorax, haemopericardium, a punctured lung and fluid overload, and was admitted to the ICU. The victim initially attempted to protect the offender by not telling police she was the one who caused the injuries, and the offender feigned ignorance when questioned by police, but later the victim told police what had really happened.
Judgment: The sentencing judge ordered that the offender be placed on a community corrections order for three years during which the offender was to complete 300 hours of community work and participate in rehabilitation programs for drug use and mental health issues. The judge also ordered that the offender be subject to judicial monitoring. Her Honour held that "a community corrections order can be punitive, achieve deterrence, and may be suitable even in cases of relatively serious offences such as this, which might have previously attracted a medium term of imprisonment" [72].
Her Honour held that the offender "committed a serious criminal offence with serious consequences" for the victim by inflicting an injury when the victim "had little, if any, chance to know what was happening", using a hidden weapon [19]. However, her Honour accepted that the act was impulsive, without premeditation, and that the actual consequences of the attack were "probably unintended" [20].
Her Honour emphasised the need to give significant weight to general deterrence, as the offence was committed in a domestic violence setting [21]. However, she noted several factors that impacted on the weight to be given to general deterrence in this case. Specifically, the offender’s young age, the offender suffered physical and emotional abuse from her former stepfather (and witnessed her mother being subjected to this too) and older brother, the offender abused drugs, the offender had an unstable and volatile upbringing, and the offender had a long history of mental health issues. Her Honour accepted that the offender had committed to positive change and had engaged in a variety of alcohol and drug treatment programs. She also accepted that the offender had personality difficulties which, when combined with her use of ice and other drugs, resulted in difficulty thinking clearly and rationally and impaired her judgment at the time of the offence [43]. Her Honour accepted that there was therefore a basis for limited reduction to moral culpability for the offences [44].
Her Honour somewhat applied limbs 5 and 6 of the decision in R v Verdins & Ors [2007] QSCA 102. Limb 5 refers to the existence of a condition at the date of sentencing which may mean that a given sentence would weigh more heavily on an offender than a person in normal health. Limb 6 refers to a serious risk of the imprisonment having a significant adverse effect on mental health. The judge noted the effects of the COVID-19 pandemic on the offender if she were to be imprisoned, particularly in light of her mental health issues and her strong family support base (which she would be unable to access if imprisoned).
Her Honour held that less weight needed to be given to specific deterrence and protecting the community from the offender because of her lack of criminal history. A discount was given to recognise the utilitarian benefit of the offender’s early guilty plea.
Magistrates' Court
DPP v Cope (a pseudonym) [2021] VMC 014 (17 September 2021) – Magistrates’ Court of Victoria
‘Honest and reasonable mistake of fact’ – ‘Mens rea’ – ‘Protection order’ – ‘Statutory interpretation’
Charges: Contravention of family violence intervention order x 1.
Proceedings: Judgement.
Issues: Whether section 123(2) of the Family Violence Protection Act 2008 (‘the Act’) was a strict liability offence.
Facts: The accused was charged with beaching a family violence intervention order, an offence pursuant to s 123(2) (‘the offence’) of the Act, by being within 200m of the victim’s workplace. Magistrate Foster accepted that the address was unknown to the accused and not specified by the order. However, the prosecution argued that proof of mens rea was not required, because s 123(2) was an offence of strict liability. The prosecution also argued that the accused had not made out the defence of honest and reasonable mistake of fact.
Decision and Reasoning: The charges were dismissed.
Applying He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, Magistrate Foster found that the presumption of mens rea had not been displaced. The aggravated versions of the offence explicitly required proof of a mens rea element ([45]). Therefore, it would be inconsistent with the structure and operation of the act for the offence to be one of strict liability. All three offences carried considerable terms of imprisonment. His Honour highlighted that ‘a strong presumption exists that proof of mens rea is necessary where an offence carries serious sanctions’ [57]. ‘The serious nature of… family violence and… serious consequences for all three… offences strongly suggests that the presumption of mens rea has not been displaced’ [48]. Furthermore, the absence of a mens rea element would not assist with the enforcement of the offence (see [59]). It would be counter intuitive and ‘contrary… to the spirit of the act’ [71] to require the accused to take steps to remain aware of the details of victim’s workplace, which was not specified by the order. His Honour found that it was not necessary to address whether the accused had proven the defence of mistaken fact, but explained that the defence would have been established due to evidence that the accused had no reason to believe that the victim worked within 200ms of the café (see [82]-[84] and [97]).
Civil and Administrative Tribunal
ZHC v Victims of Crime Assistance Tribunal (Review and Regulation) (Corrected) [2022] VCAT 333 (30 March 2022) – Victorian Civil and Administrative Tribunal
‘Administrative review’ – ‘Application for assistance’ – ‘Children’ – ‘Coercive control’ – ‘Decision not to pursue charges’ – ‘Financial abuse’ – ‘People affected by trauma’ – ‘Physical violence’ – ‘Pregnant victim’ – ‘Reasonable assistance’ – ‘Reasonable time’ – ‘Special circumstances’ – ‘Threats to kill’ – ‘Victims of crime assistance act 1996’
Proceedings: Review of decision to strike out the victim’s application for assistance pursuant to section 52 of the Victims of Crime Assistance Act 1996 (‘the VOCA Act’).
Issue: Was the act of violence reported within a reasonable time?
Facts: Under Section 52 of the VOCA Act, an award of assistance must be refused if the Tribunal is satisfied that an act of violence was not reported to police within a reasonable time, or that the applicant failed to provide reasonable assistance to investigators. The section does not apply if the Tribunal considers a delay in reporting, or lack of assistance, to be the result of the applicant’s ‘special circumstances’ [3]. In May 2021, the victim’s application was refused on the basis that she had failed to report acts of violence by her former partner within a reasonable time. While the victim had reported a protection order breach in December 2020, materials provided to the Tribunal alleged a history of family violence commencing in 2016 [4].
Decision and reasoning: The Tribunal was not satisfied that the victim’s application ought to be refused under section 52 of the VOCA Act. The Tribunal found that the acts of violence were reported to police within a reasonable time. The Tribunal highlighted paragraphs (c), (d) and (e) of section 53 of the VOCA Act, which provide that in considering whether an act of violence was reported within a reasonable time, the Tribunal may consider:
(c) ‘whether the person who… is alleged to have committed, the act of violence was in a position of power, influence or trust in relation to the victim’
(d) whether the victim was threatened or intimidated by the person who… is alleged to have committed, the act of violence’
(e) ‘the nature of the injury alleged to have been suffered by the victim’ [12]-[14].
Considering paragraph (c), the Tribunal noted that the victim’s former partner exerted power and influence her through acts of physical violence, which escalated during her pregnancy, and by controlling her finances. Considering paragraph (d), the victim felt intimidated and threatened by her former partner. This was evidenced by a protection order application, and evidence that the victim’s former partner had made threats to harm or kill the victim or their child if she left the relationship. Considering paragraph (e), the victim sustained serious physical injuries due to her former partner’s assaults, including cuts, broken teeth, and post-traumatic stress disorder [15]-[19].
The Tribunal was not required to consider whether the victim had provided ‘reasonable assistance’, or whether ‘special circumstances’ existed. However, the Tribunal explained that a decision not to pursue charges or provide a statement to assist police to arrest, investigate or prosecute does not amount to a failure to provide reasonable assistance [30]-[31].
Furthermore, the Tribunal noted that the facts exemplified ‘special circumstances’ [43]. Due to the nature of the violence perpetrated against the victim, the fact that the couple lived together, and the applicant’s repeated contravention of protection orders, the victim was unlikely to make immediate reports to police [44]. Rather, the victim prioritised ‘more effective mechanisms that would keep her safe’, such as a protection order [45]-[48].