Contents

Table of Contents

Victoria

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’.

Last updated: July 2024

Victoria

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’.

Last updated: July 2024