Ale v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0208

ROBERT ALE	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and KENNY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2025
DATE OF JUDGMENT:	1 May 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 92
JUDGMENT APPEALED FROM:	[2019] VCC 432 (Judge Higham)

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CRIMINAL LAW – Appeal – Sentence – Application for extension of time to seek leave to appeal against sentence – Conspiracy to recklessly cause injury – Judge misapprehended maximum penalty for offence – Whether sentencing discretion miscarried – Error established – Criminal Procedure Act 2009, s 280(1)(b) – Application for extension of time granted – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Trafficking drug of dependence (3 charges), conspiracy to commit arson (2 charges), conspiracy to recklessly cause injury (2 charges), possess unregistered general category handgun (1 charge) – Total effective sentence of 18 years – Non-parole period of 13 years and 9 months – Whether sentence manifestly excessive – Criminal Procedure Act 2009, s 280(1)(b) – No reasonable prospect Court would impose a shorter period of cumulation – No reasonable prospect of reduction in total effective sentence or non-parole period – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Whether judge failed to find moral culpability reduced by reason of disadvantaged background – Bugmy v The Queen (2013) 249 CLR 571 – Specific deterrence – Community protection – Judge had regard to applicant’s moral culpability – Open to conclude that moral culpability not reduced – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Fresh evidence – Delay in medical treatment in custody – Whether sentencing discretion should be re-opened – R v Nguyen [2006] VSCA 184 – Judge had regard to applicant’s medical needs – Evidence does not shed significant new light on facts – Evidence is inadmissible – Leave to appeal refused.

Crimes Act 1958, s 18; Sentencing Act 1991, s 5(2)(a); Criminal Procedure Act 2009, ss 280(1), 281(1).

Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Gillespie v The Queen [2018] VSCA 151; Leslie v The King [2025] VSCA 13; Madafferi v The Queen [2017] VSCA 302; R v AB [No 2] (2008) 18 VR 391; R v Beary (2004) 11 VR 151; R v Nguyen [2006] VSCA 184; R v RJE [1999] VSCA 79; R v Vachalec [1981] 1 NSWLR 351; Romero v R (2011) 32 VR 486; Sabatucci v The Queen [2021] VSCA 340; Stewart v The Queen [2015] VSCA 368, considered.

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Counsel
Applicants:		Mr D Dann KC with Mr C Wareham
Respondent/s:		Ms D Piekusis KC
Solicitors
Applicants:	Theo Magazis & Associates
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL CJ
KENNY JA:

On 23 August 2018, the applicant was convicted of 18 offences following a plea of guilty.
On 8 March 2019 he was sentenced as follows:

Charge	Offence	Maximum penalty	Sentence	Cumulation
Charges on indictment
1	Trafficking drug of dependence (amphetamine, cannabis, MDMA and 1,4-butanediol)[1]	15 years	2 years and 3 months’ imprisonment	Concurrent
2	Conspiracy to commit arson[2]	15 years	4 years and 6 months’ imprisonment	15 months
3	Trafficking in a drug of dependence (large commercial quantity — methamphetamine)[3]	Life	14 years and 6 months’ imprisonment	Base
4	Trafficking in a drug of dependence (cocaine)[4]	15 years	3 years and 3 months’ imprisonment	Concurrent
5	Conspiracy to recklessly cause injury[5]	5 years	3 years and 6 months’ imprisonment	9 months
6	Possess unregistered general category handgun[6]	7 years	1 year and 9 months’ imprisonment	Concurrent
7	Conspiracy to recklessly conduct endanger serious injury[7]	5 years	2 years and 9 months’ imprisonment	12 months
8	Knowingly deal with proceeds of crime[8]	15 years	2 years’ imprisonment	Concurrent
9	Conspiracy to commit arson[9]	15 years	2 years and 6 months’ imprisonment	6 months
10	Theft of motor vehicle[10]	10 years	9 months’ imprisonment	Concurrent
11	Possess drug of dependence (cannabis, cocaine, diazepam, ephedrine, MDMA, testosterone and anabolic steroids)[11]	5 years or 400 penalty units or both	3 months’ imprisonment	Concurrent
Summary Offences
11	Possess cartridge ammunition[12]	40 penalty units	Convicted and discharged	-
12	Possess body armour without approval[13]	2 years’ imprisonment or 240 penalty units	2 months’ imprisonment	Concurrent
13	Prohibited person possess weapon without exemption[14]	2 years’ imprisonment or 240 penalty units	2 months’ imprisonment	Concurrent
15	Commit indictable offence while on bail (make threat to kill)[15]	3 months’ imprisonment or 30 penalty units	1 month imprisonment	Concurrent
16	Contravene conduct condition of bail (possess encrypted communications device and communicate with member of Comancheros)[16]	3 months’ imprisonment or 30 penalty units	1 month imprisonment	Concurrent
28	Drive while authorisation suspended[17]	4 months’ imprisonment or 30 penalty units	1 month imprisonment	Concurrent
58	Possess schedule 4 poison (tadalafil, sildenafil, gonadotropin and clomifene)[18]	10 penalty units	Convicted and discharged	—
Total effective sentence:		18 years’ imprisonment
Non-parole period:		13 years and 9 months’ imprisonment
Pre-sentence detention declared:		151 days
6AAA Statement:		24 years’ imprisonment with a non-parole period of 20 years

[1]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[2]Contrary to s 321(1) of the Crimes Act 1958.

[3]Contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[4]Contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981.

[5]Contrary to s 321(1) of the Crimes Act 1958.

[6]Contrary to s 7B(1) of the Firearms Act 1996.

[7]Contrary to s 321(1) of the Crimes Act 1958.

[8]Contrary to s 194(2) of the Crimes Act 1958.

[9]Contrary to s 321(1) of the Crimes Act 1958.

[10]Contrary to s 74(1) of the Crimes Act 1958.

[11]Contrary to s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981.

[12]Contrary to s 124(1) of the Firearms Act 1996.

[13]Contrary to s 8A(1)(d) of the Control of Weapons Act 1990.

[14]Contrary to s 5AA of the Control of Weapons Act 1990.

[15]Contrary to s 30B of the Bail Act 1977 (as it was at the relevant time). The provision was repealed by s 40 of the Bail Amendment Act 2023.

[16]Contrary to s 30A(1) of the Bail Act 1977 (as it was at the relevant time). This version of s 30A was repealed by s 39 of the Bail Amendment Act 2023. A new s 30A was inserted by s 903C of the Youth Justice Act 2024.

[17]Contrary to s 30(1) of the Road Safety Act 1986 (as it was at the relevant time). The penalty in the table was ‘for a first offence’. A separate and higher offence was applicable ‘for a subsequent offence’ (240 penalty units or imprisonment for 2 years). By s 46 of the Transport Legislation Amendment (Road Safety, Rail and Other Matters) Act 2017 s 30(1) was amended to the effect that now only the higher penalty applies for offending under s 30(1).

[18]Contrary to s 36B(2) of the Drugs, Poisons and Controlled Substances Act 1981.

The applicant seeks leave to appeal against sentence. His leave application was, however, filed almost three years and nine months out of time and is therefore accompanied by an extension of time application. Whether the Court is persuaded to grant an extension of time depends on what the interests of justice require in the particular case. Relevant considerations include the length of the delay, reasons for the delay, and the prospects of success should the extension be granted.[19]
[19]Madafferi v The Queen [2017] VSCA 302, [11].

Proposed grounds of appeal

We turn first to the applicant’s proposed grounds of appeal, which he stated as follows:
Proposed Ground 1:
The sentencing discretion has miscarried in circumstances where the learned sentencing judge imposed sentence on the charge of conspiracy to recklessly cause injury on the basis that the maximum penalty for that offence was 15 years imprisonment rather than the applicable maximum penalty of 5 years imprisonment.
Proposed Ground 2:
The learned sentencing judge erred in proceeding to sentence the applicant on the basis that the applicant’s traumatic and disadvantaged upbringing was of no mitigatory weight at all.
Proposed Ground 3:
The learned sentencing judge erred in his consideration of the extent to which the applicant’s time in custody would be more burdensome by failing to take into account the applicant’s fear that he would be a ‘marked man’ in custody.
Proposed Ground 4:
The individual sentences on charges 2, 3, 5 and 9, the total effective sentence and non-parole period are manifestly excessive.
Proposed Ground 5:
The sentencing discretion should be re-opened on account of fresh evidence relating to the lack of medical treatment offered to the applicant whilst in custody.
For the following reasons, the application for an extension of time should be granted. Ground 1 is sufficiently strong to justify an extension in the interests of justice, but the application should be refused.

Circumstances of offending[20]

[20]This account derives from the summary of the prosecution opening, which was tendered on the plea as an agreed summary of facts.

The applicant’s offending occurred between 4 October 2016 and 14 March 2017, when he was a patched member of the Comanchero Outlaw Motorcycle Gang (‘OMCG’) and the leader of a gang called the Last Kings operating in the south eastern suburbs of Melbourne. The applicant used underlings, intermediaries and associates to assist him in his offending.[21] This offending included trafficking large commercial quantities of drugs of dependence, assault, arson and other crimes.
[21]DPP v Ale [2019] VCC 432 (‘Sentencing Remarks’).
The following is a general account of the applicant’s offending conduct relevant to the sentences imposed by the sentencing judge.
At night on 8 November 2016, the applicant had a conversation with a member of the Last Kings, Mr Omid Said. They discussed Mr Said’s attempt to burn down the Kittens Gentlemen’s Club (‘Kittens’) in South Melbourne (charge 2). Mr Said understood the Club to be owned by rivals of the applicant. During the discussion, Mr Said answered the applicant’s questions about what had occurred, including where Mr Said had lit a fire and left accelerant. Later that night, the applicant and Mr Said exchanged text messages acknowledging that Kittens had not burned down, and arranging to meet that evening to discuss what they would do next.
Some days later, in conversations on 10 and 11 November 2016, the applicant instructed Mr Mustafa Baydar, also a member of the Last Kings, to attend an address in Doreen. The purpose of Mr Baydar’s attendance was to assault an individual at the property in order to enforce a debt owed by that individual to a third party (charge 5). The third party had engaged the OMCG for this purpose. The task was then ‘outsourced’ to the Last Kings and the applicant became responsible for the ‘job’. On 11 November, the applicant and Mr Baydar exchanged communications as Mr Baydar travelled to and reconnoitred the Doreen address. The police, who had been monitoring these events, apprehended Mr Baydar before he was able to attempt the assault. The police found a baseball bat in his car.[22]
[22]In his sentencing remarks, the judge said Mr Baydar had placed a baseball bat down the right side of his trouser leg before reconnoitring the Doreen address: at [14]. While the Prosecution Opening Summary does refer to a ‘long item’ being placed by Mr Baydar down his trouser leg, the Summary also records that when the ‘police intercepted [Mr] Baydar’, they found a mobile phone hidden in his underpants and a baseball bat ‘in the vehicle’.
On 10 November 2016, the applicant worked with another a member of the Last Kings by the name of Mr Oguzhan Kucukvardar, to acquire half a kilogram of methylamphetamine (part of charge 3). Mr Kucukvardar attended an apartment in Melbourne to purchase the drugs. He discussed the progress of the deal with the applicant throughout the day by telephone and text message. It was only after Mr Kucukvardar determined that the drugs were not of sufficiently high quality that the deal did not proceed.
On 16 November 2016, the applicant progressed a new plan to enforce the debt owed by the individual at the Doreen address (charges 6 and 7). On this occasion, the applicant planned to have the property at the Doreen address sprayed with bullets. He arranged for Mr Baydar to execute the plan, joined by Mr Kucukvardar, who provided the firearm to Mr Baydar. The applicant texted Mr Baydar ‘Be safe brother, enjoy the adrenaline rush! It doesn’t last long lol’.
Once again, police intervened to prevent the execution of the plan. This led Mr Baydar and Mr Kucukvardar to abandon their plans.
On 17 November 2016, the applicant gave instructions to Mr Baydar to collect a box containing $30,000 from a gym in Hallam. After collecting the box, Mr Baydar was intercepted by police, who identified the cash as proceeds of crime (part of charge 8).
During mid-November 2016, the applicant arranged for Mr Christian Hamilton, who was also a member of the Last Kings, to travel to Sydney to collect a supply of methylamphetamine and cocaine (part of charges 3 and 4). Mr Hamilton was arrested after stopping in Euroa on his way back to Melbourne. Investigators found 0.6 grams of cocaine in a zip lock bag on his person and a further 577.2 grams of cocaine and 999.5 grams of methylamphetamine in his car.
On 25 November 2016, the applicant asked Mr Kucukvardar to travel to Dandenong to set fire to a stolen vehicle that had been used in a ‘job’ (charges 9 and 10). Mr Kucukvardar waited near the vehicle for the applicant’s instruction to set it alight, but the applicant resolved to abandon the plan after identifying a police presence in the area.
On 1 December 2016, the applicant arranged for Mr Kucukvardar to collect cash he believed amounted to $45,000 from an address in Coronet Bay and deliver it to KH, a romantic partner of the applicant (part of charge 3).
On 26 December 2016, the applicant was in possession of a kilogram of methylamphetamine, which he sought to distribute. On 27 December 2017, Mr Kucukvardar delivered the methylamphetamine to Ms Leigh Sussman. Ms Sussman was an associate of the applicant. Ms Sussman then drove to her home in Elwood where the applicant instructed her to weigh out some of the drugs and return them to Mr Kucukvardar. Police intercepted Ms Sussman’s vehicle on the way and found five zip lock bags containing a total of 139.2 grams of methylamphetamine and a glass container filled with 16.6 grams of 1,4-butanediol on the passenger seat. Ms Sussman was then arrested. Later that day, police searched her home and found two bags of methylamphetamine weighing a total of 856 grams.
After Ms Sussman’s arrest, the applicant was unable to contact her. He became worried and resolved to travel to Elwood to find out what had happened. After arriving in Elwood, he was briefly stopped by police before being moved on. Having obtained a search warrant for his vehicle, police conducted a search and found 64 grams of cocaine hidden under the driver’s seat.
On 28 December 2016, police executed a search warrant at the applicant’s home in Lyndhurst. They found small quantities of illicit drugs, a ballistic vest, handgun ammunition, $11,925 in cash, a knife, a hatchet and a large machete with ‘Ale Cartel’ engraved on the blade.
On 29 December 2016, the applicant presented himself at Melbourne West Police Station, joined by his solicitor. He answered ‘no comment’ to all questions asked by police.
On 4 January 2017, police returned to the applicant’s home and found a large quantity of zip lock bags matching the zip lock bags containing the kilogram of methylamphetamine seized from Ms Sussman.[23]
[23]The events of 26 December 2016 (distribution of the kilogram of methylamphetamine) to 4 January 2017, described in paragraphs [17]–[21], constitute part of charges 3, 4 and 8, as well as all of summary charges 11, 12 and 13.
On 24 February 2017, the applicant was observed by police to be driving during a period where his licence was suspended (summary charge 28).
On 12 March 2017, the applicant had a violent and intense argument with KH. During the argument, the applicant stated that if she was at her home when he arrived there, it would ‘be ugly’ and that he would ‘cave her face’. He threatened to kill her and her family (summary charge 15). Later that day, a conversation between the applicant and KH alluded to an assault having occurred. In it, the applicant threatened to assault KH ‘again’, and KH said she believed the applicant had broken her ribs and that she was travelling to hospital. The applicant called his sister and said he had punched KH in the head ‘as hard as he could’, and that he had kicked her and thrown her into a wall.
On 14 March 2017, police executed a number of coordinated search warrants on the applicant and his associates. Items found by police at the applicant’s home included $5,230 in cash, ‘high end’ watches, illicit drugs, poison and ammunition (part of charge 8, charge 11, and summary charge 58).
Throughout the period of the offending, including while he was on bail, the applicant maintained a drug trafficking enterprise (charges 1, 3, 4, 8 and 11, and summary charges 11 and 16). A number of schedules recording drug deals identified by police were tendered on the plea.[24] The schedules listed 62 methylamphetamine deals showing trafficking of a total of 5.55 kilograms of methylamphetamine worth $1,214.150, 40 cocaine deals involving a total of 1.68 kilograms of cocaine worth $159,575, as well as deals involving amphetamine, MDMA, 1,4-butaenediol and cannabis. Other schedules were provided listing various illicit drugs and poisons found in the applicant’s possession as well as instances of dealing with proceeds of crime totalling $93,105.
[24]The ‘deals’ included attempted resupplies and incidents where drugs were seized by police before they could be sold.

Sentencing Remarks

Personal circumstances

The sentencing judge described the applicant’s personal circumstances as follows. The applicant was aged 34 and 35 during the offending. He grew up in Frankston, where he lived with his parents and younger sister. His father abused alcohol, illicit drugs and prescription medication, and was frequently violent towards the rest of the family, including the applicant. His father’s violence caused him significant injuries, and he witnessed assaults on his sister and mother.[25]
[25]Sentencing Remarks, [23]–[24].
The judge explained that the applicant completed year 12 to impress his father. While working towards his Victorian Certificate of Education, his mother attempted to leave his father. In response, his father threatened to kill the whole family if his mother did not return. She returned after the applicant encouraged her to do so.[26]
[26]Ibid [25].
The applicant was 27 when his father had a heart attack and passed away. The applicant reportedly performed CPR on his father until paramedics arrived, but his father could not be resuscitated. The judge found that the applicant felt conflicted by the grief that followed. He recognised the abuse inflicted by his father but the loss still made him distraught.[27]
[27]Ibid [26].

The judge noted that the applicant began using cannabis when he was 21, and MDMA and cocaine at 25. The applicant had also regularly used methylamphetamine.[28]
[28]Ibid [27].
The judge said that the applicant had been in a relationship for approximately 17 years, but that it had ended since his arrest in March 2017.[29]
[29]Ibid [28]. The relationship referred to by the judge was not with KH.
The judge explained that the applicant had considered tertiary study after high school, but instead chose full-time work to support his family. He had worked in a factory for ten years before running businesses of his own, including a bottle shop, a café and a nutrient and supplements store. In 2014 he began working for Nitro Gyms in a marketing and events management role. At Nitro Gyms he encountered members of the OMCG for the first time. The judge found that the applicant was attracted to the OMCG ‘by the sense of brotherhood and belonging’ that they offered him. His Honour observed that, on becoming a patched member, the applicant’s ‘drug use began to accelerate and this, it seems, was the background to [the applicant’s] offending’.[30]
[30]Ibid [29].
The judge noted that the applicant’s criminal record identified two prior court appearances and found that neither matter was relevant to the exercise of his sentencing discretion.[31] His Honour noted that in February 2018 while on bail awaiting his plea, the applicant was shot while he was being tattooed. His Honour recorded that ‘nine or ten rounds entered’ the applicant’s body and that he suffered life-threating injuries in consequence.[32] His Honour accepted that the applicant continued to suffer ongoing health issues, including a serious hernia condition, which he had been told required ‘urgent invasive surgery’.[33]
[31]Ibid [30]. There was no challenge to this assessment in this Court.
[32]Ibid [31].
[33]Ibid [31].
The judge surveyed the reports concerning the applicant’s psychological and medical conditions, and rehabilitative progress written by Dr Michael King, clinical psychologist; Amanda Brown, drug and alcohol clinician; Dr Anthony Cidoni, consultant psychiatrist; John Campbell from Arrow Health; and Arthur Tsonis, a forensic drug and alcohol clinician.[34] His Honour also referred to letters from family and friends and references detailing the applicant’s involvement in Narcotics Anonymous.
[34]Ibid [32]–[37].
In particular, his Honour noted that:
(a)Ms Amanda Brown ‘surmised that the attraction of the motorcycle gang for [the applicant] with [his] fractured and conflicted childhood was the sense of belonging that it gave [him]’.[35] In her report of 18 May 2017, she stated that the applicant’s drug use likely affected his ability to make rational decisions ‘ultimately leading to the matters which bring him before the Court’. At the plea hearing, she gave evidence that the applicant had ‘the gift of desperation’ in his efforts to abstain from drug use, and that he demonstrated ‘very rare’ intrinsic motivation to change ‘from the outset’. She spoke of his resolve not to return to the life that he had ‘once lived’.
(b)Dr Michael King reported that the applicant suffered from post-traumatic stress disorder and a ‘more enduring’ dissociative identity disorder that was compatible with ‘profoundly traumatic childhood experience’. Dr King gave evidence that the attempt on the applicant’s life precipitated a significant deterioration in the applicant’s mental health and elevated his post-traumatic stress disorder to ‘a totally different category’ that was ‘much more serious’. His Honour noted that Dr King ‘raised the prospect of the unavailability of sufficient clinical treatment within a custodial setting’.[36]
(c)Dr Anthony Cidoni reported that, in his opinion, the applicant suffered from a number of disorders. These included post-traumatic stress disorder (PTSD) in the context of ‘very significant childhood trauma’ that ‘significantly deteriorated’ after the attempt on his life. Dr Cidoni described significant symptoms of anxiety and depression and said the applicant’s mental state would deteriorate in custody. He found the applicant’s ‘engagement in psychological, medication, and drug and alcohol treatment had been significant and extraordinarily positive’, and considered that the applicant had ‘good prospects of rehabilitation’. Dr Cidoni considered that the quality of clinical treatment received by the applicant in custody would diminish, or that treatment would cease altogether. He also gave evidence that the applicant’s hernia surgery would ideally occur before any term of imprisonment, to reduce the impact that the hernia would otherwise have on his mental health in custody.
(d)Mr John Campbell, who counselled the applicant at a rehabilitation service, remarked positively on the applicant’s engagement with treatment and said the applicant had begun mentoring younger people from a similar background. Mr Campbell considered that a period of time the applicant spent in prison after his arrest amounted to his ‘rock bottom’. He suggested that, once he was released on bail, the applicant had developed prosocial views.
(e)Mr Arthur Tsonis was the applicant’s sponsor in Narcotics Anonymous. Mr Tsonis testified to the applicant’s genuine commitment to recovery, emphasising that his commitment did not waver after the attempt on his life. He said he had involved the applicant in ‘interventions’ with young men and spoke positively about the applicant’s contributions in that context.

Sentencing principles

[35]Ibid [33].

[36]Ibid, [34].

The judge found that the family violence to which the applicant had been exposed provided ‘a context’ for his offending but did not reduce his moral culpability for it.[37] In his Honour’s view, his moral culpability was high. In this context, his Honour said the applicant ‘ran a criminal enterprise dedicated to the wholesale distribution of drugs and to ensuring through various means of enforcement that [his] business could be carried on effectively, and without challenge’.[38] His Honour added that, in his view, ‘such a criminal enterprise constitutes a direct challenge to the very fabric of our community’.[39] The applicant had, so his Honour said, ‘variously used force of personality, fear, friendship, money, loyalty, and a perverted and corrupted sense of male brotherhood to bend people to [his] will and to get people to do [his] bidding’.[40] In this context, the judge described the applicant as ‘a kind of predator’ who groomed vulnerable men and bound them to his criminal purpose.[41]
[37]Ibid [55]
[38]Ibid.
[39]Ibid [56].
[40]Ibid.
[41]Ibid [58].
The judge observed that the total amount of methylamphetamine the applicant discussed or succeeded trafficking was over 5.5 kilograms. The amount actually trafficked was in excess of 2.5 kilograms, and ‘the monetary value of transactions identified or discussed was nearly’ $1.25 million dollars. His Honour observed that ‘[t]hose who sit at the apex of drug trafficking operations can expect stern punishment’, and that the prevalence of methylamphetamine trafficking is such as to invite greater focus on general deterrence.[42]
[42]Ibid [62]–[64].
The judge found that the conspiracy to burn down Kittens (charge 2) was a serious example of the offence, and ‘the ease and facility’ with which the applicant ‘proposed and agreed to the setting fire to premises in a central city location’ without regard to the potential collateral damage, and ‘the almost matter-of-fact way’ the applicant contemplated burning the vehicle in Dandenong demonstrated his ‘complete immersion in the criminal world’.[43] The judge took a similarly serious view of the offending in Doreen,[44] referring to victim impact statements explaining that the occupants of the property at the Doreen address lived in a state of constant fear following the foiled plans for an assault and shooting. This was, in his Honour’s assessment, ‘a grave example of such offending’ and the applicant’s moral culpability was ‘high indeed’.[45]
[43]Ibid [66].
[44]Ibid [67]–[68].
[45]Ibid [68].
The judge considered that general and specific deterrence, denunciation and protection of the community were primary sentencing considerations, although his Honour took account of various considerations in mitigation.[46] Specifically, his Honour had regard to the applicant’s plea of guilty, his expression of remorse, the ‘significant steps’ he had taken towards rehabilitation, his prospects for rehabilitation (which his Honour assessed as positive so long as the applicant remained drug free and engaged in his recovery), the potential adverse effect of confinement on the applicant’s mental health, and the applicant’s need for invasive surgery to deal with his hernia.[47]
[46]Ibid [70].
[47]Ibid [70].
Having regard to all those considerations, the sentencing judge determined that the applicant’s offending was so serious it could only attract a substantial term of imprisonment. His Honour stated that his orders for cumulation would be moderated to give effect to the principle of totality, before sentencing the applicant as set out earlier in these reasons.[48]
[48]Ibid [71].

Proposed ground 1 — whether error in mistaking maximum penalty

Parties’ submissions

In support of this first proposed ground, the applicant referred to charge 5, conspiracy to recklessly cause injury and to the sentencing judge’s erroneous statement that the maximum penalty for the offence was imprisonment for 15 years.[49]
[49]Ibid [1].
The maximum penalty for that offence at the relevant time was (and remains) a custodial sentence of 5 years as set out in s 18 of the Crimes Act 1958. Section 18 is as follows:
18 Causing injury intentionally or recklessly
A person who, without lawful excuse, intentionally or recklessly causes injury to another person is guilty of an indictable offence.
Penalty:If the injury was caused intentionally—level 5 imprisonment (10 years maximum);
If the injury was caused recklessly—level 6 imprisonment (5 years maximum).
As the applicant observed, the reference to 15 years ought to have been to 5 years.
Citing R v Beary, the applicant submitted that the error was significant and material.[50] The applicant relied on the fact that the custodial sentence imposed by his Honour — 3 years and 6 months, with 9 months’ cumulation — amounted to 70 per cent of the correct maximum penalty for the offence, and that the judge had regard to a mistaken maximum penalty that was 10 years greater than the correct maximum. For those reasons, the applicant submitted that the sentencing discretion was vitiated and that this Court ought to proceed to sentence afresh.
[50](2004) 11 VR 151, 157 [15]–[16] (Callaway JA, Buchanan JA agreeing at 163 [39]); [2004] VSCA 229 (‘Beary’).
At the hearing, the senior counsel for the applicant emphasised that, in this case, the judge was under the mistaken impression that the maximum penalty was three times greater than it really was. This was, so he submitted, a ‘gross’ mistake, referring to R v RJE.[51] Senior counsel further submitted that the fact that the sentence his Honour imposed represented ‘70 per cent of the true maximum penalty’ revealed the error, because a sentence of that magnitude did not take account of a number of mitigating factors and the applicant’s guilty plea. The applicant submitted that no other individual sentence represented such a high proportion of the (correct) maximum penalty.
[51][1999] VSCA 79, [12] (Brooking JA, Batt JA agreeing at [15], Chernov JA agreeing at [16]).
Senior counsel for the applicant further submitted that a comparison between the sentence on charge 7 and the sentence on charge 5 reflected the judge’s mistake. He submitted that the judge assessed the offending constituting charge 7 as an escalation on the offending constituting charge 5, noting his Honour’s statement that the latter was a ‘grave example of such offending’.[52] This being so, and given that the maximum penalty for the charge 7 offending was also 5 years, it was, so senior counsel submitted, striking that the judge imposed a lower sentence and more limited orders for cumulation on charge 5. Senior counsel contended that the only way to rationalise his Honour’s sentence was to recognise that it was imposed by reference to the wrong maximum penalty. In his submission, for all these reasons, the Court should resentence on charge 5.
[52]Sentencing Remarks, [68].
The respondent acknowledged that the sentencing judge referred to the incorrect maximum penalty, but contended that the mistake did not materially affect the sentence. In support of this contention, the respondent relied on the respondent’s submissions in response to proposed ground 4. In summary, these submissions were that the individual sentences, orders for cumulation and total effective sentences were within sound discretionary judgment. In argument, the respondent added that the objective gravity of the offending captured by charge 5 was significant enough to justify the sentence, even when compared with the sentence on charge 7.

Consideration

Proposed ground 1 evidently discloses an error was made by the sentencing judge.
In sentencing an offender, a court must have regard to the maximum penalty prescribed for the offence as well as other matters.[53] The maximum penalty ‘serves as a directive to the courts on how to weigh the gravity of such criminal conduct, the maximum penalty itself being prescribed for the worst class of the offence in question’.[54] The maximum penalty invites comparison between the worst possible case and the case before the court and, in that respect, provides a yardstick, albeit one to be considered alongside other relevant factors.[55]
[53]Sentencing Act 1991, s 5(2)(a).
[54]R v AB [No 2] (2008) 18 VR 391, 403 [40] (Warren CJ, Maxwell P and Redlich JA); [2008] VSCA 39.
[55]Markarian v The Queen (2005) 228 CLR 357, 372 [30]–[31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25; Salvaggio v The Queen [2022] VSCA 88, [103] (Maxwell P, Kyrou and Niall JJA).
Where a court mistakes the maximum penalty for an offence, however, it does not always follow that the sentencing discretion is vitiated. In Beary, Callaway JA addressed this point as follows:
First, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view, in the face of s 5(2)(a) of the Sentencing Act, is that, in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision.[56] Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not re-open the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is re-opened, the court may be of opinion that no different sentence should be passed.[57]
[56]As Whelan and McLeish JJA observed at [49] of Gillespie v The Queen [2018] VSCA 151 (‘Gillespie’), the reference to Mason J’s words was a reference to observations of his Honour in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24.
[57](2004) 11 VR 151, 159 [21] (Callaway JA, Buchanan JA agreeing at 163 [39]); [2004] VSCA 229 (citations omitted).
In Gillespie, by reference to Beary, Whelan and McLeish JJA held that a mistake that is so insignificant that it ‘could not have materially affected the decision’ could not be an error ‘in the sentence’.[58] As their Honours went on to say, if, in the application of this approach, a court does identify an error in the sentence, it will then become necessary to consider whether a different sentence should be imposed in accordance with s 281(1)(b) of the Criminal Procedure Act 2009 (the ‘CPA’).[59] In the present context, however, s 280(1) is the more relevant provision.[60]
[58]Gillespie [2018] VSCA 151, [53]. See also Dimovski v The Queen [2022] VSCA 6, [31] (Niall JA, Priest JA agreeing at [1]).
[59]Gillespie [2018] VSCA 151, [53].
[60]See, eg Butcher v The King [2024] VSCA 322 (‘Butcher’). In Butcher, the Court applied principles from Beary and Gillespie, among other cases, to determine they were not satisfied that an error could not have materially affected a sentence: at [286]–[294]. The Court then considered the application of s 280(1)(b), finding, despite the error in the sentence, that there was no reasonable prospect that the Court would impose a lesser total effective sentence: at [295]–[299].
Turning to the applicant’s case, it is apposite begin by comparing the sentence on charge 5 with the sentence on charge 7. As already noted, just like charge 5, the maximum penalty for charge 7 was a custodial sentence of 5 years, and the nature of the offending was not dissimilar. Like charge 5, charge 7 related to an agreement to use violence to enforce the debt said to be owed by the individual at the Doreen address. We accept, however, that the sentencing judge found that the charge 7 offending was a serious escalation from the offending dealt with in charge 5. This was because a plan to assault an individual, potentially with a baseball bat, had developed into a plan to use a firearm to shoot indiscriminately at the property, with grave risk of injury (or worse) to any person inside or outside the property at the time.
That the sentencing judge made such assessment is implicit in his sentencing remarks. After briefly describing the charge 5 offending, the judge turned to charge 7, emphasising the risk the offending posed to the public and the impact it ultimately had on the residents of the Doreen address.[61] As the applicant observed, the judge said it was ‘a grave example of such offending’, and he found that the applicant’s moral culpability for it was ‘high indeed’.[62] Given the judge seemed to view charge 7 as more serious, the most rational way to make sense of the higher sentence he imposed on charge 5 is by reference to his mistake as to the maximum penalty. A mistake by the judge is also the best explanation for the proportion between the sentence and the maximum, which, as the applicant submits, is high (70 per cent). We are not satisfied that this mistake ‘could not have materially affected’ the sentence: the judge could have imposed a lower penalty for charge 5. There is therefore an apparent error in the sentence.[63]
[61]Sentencing Remarks, [68].
[62]Ibid.
[63]CPA, s 281(1)(a).
Nevertheless, by virtue of s 280(1)(b) of the CPA, the error will not assist the applicant if, notwithstanding the error, there is no reasonable prospect that this Court would reduce the total effective sentence.[64] Before discussing the application of s 280(1)(b), however, we consider the applicant’s other proposed grounds in case they bear on the question raised by s 280(1)(b).

Proposed Ground 2 — whether error in failing to mitigate sentence on the basis of a traumatic upbringing

Parties’ Submissions

[64]Russo (a pseudonym) v The King [2024] VSCA 40, [66] (Niall and Boyce JJA). Relatedly, s 280(2) provides that an application may be refused under s 280(1) even where this Court considers that there may be a reasonably arguable ground of appeal.

The applicant relied on principles set out in Bugmy v The Queen (‘Bugmy’)[65] in support of this ground. In particular, the applicant submitted that the High Court recognised in Bugmy that ‘the subjective culpability of a person with such a deprived background [as that of the applicant] cannot be equated with a person who has committed the same offence – but who had the advantage of a normal, stable and regular home environment during his or her childhood years’.[66]
[65](2013) 249 CLR 571, 594–595 [40], [43]–[44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane).
[66]Citing Bugmy (2013) 249 CLR 571, 592–596 [37]-[47]; [2013] HCA 37 and DPP v Drake [2019] VSCA 293, [31]–[32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (‘Drake’).

The applicant acknowledged that defence counsel did not address Bugmy on the plea, but he submitted that this did not permit the judge to proceed on the basis that his traumatic and deprived background was of no mitigatory weight at all.[67] The applicant submitted that the judge fell into error in finding that the applicant’s upbringing provided ‘a context’ for his offending but did not mitigate his moral culpability.[68] The applicant contended that the judge should have mitigated the sentence on the basis that the destructive effect of the home environment in which the applicant was raised limited his prospects for developing ‘a proper sense of the social norms of appropriate behaviour, or an appreciation of the need to comply with the law’.[69]
[67]Ibid; Bergman v The Queen (2021) 289 A Crim R 503, 519–20 [86]–[90] (Maxwell P and Kaye JA); [2021] VSCA 148 (‘Bergman’).
[68]Sentencing Remarks, [55]. See also [41].
[69]Bergman (2021) 289 A Crim R 503, 520 [88] (Maxwell P and Kaye JA); [2021] VSCA 148.
The applicant referred to material tendered on the plea describing his upbringing which, he submitted, showed that his father was a violent and brutal alcoholic and addicted to prescription medication, cocaine and amphetamines. In the applicant’s submission, this material also showed that his father was physically and mentally abusive towards him and his mother, and that his father had inflicted a range of injuries on him, some of which had required hospitalisation. The applicant referred to material before the sentencing judge which described several occasions involving his father, including when the applicant, aged nine months, was in a car accident while his father was driving under the influence of alcohol; when the applicant witnessed his father, armed with a gun, threaten to kill the whole family; arriving home to find his father unconscious and the house half-flooded; and when the applicant had been sexually abused.
The applicant referred to comments made by the judge during the plea hearing that indicated that the judge acknowledged that there was a link between the matters just described and the applicant’s subsequent drug use, offending and post-traumatic stress disorder. The applicant also noted that the judge ultimately found that the applicant’s upbringing had a lasting impact on him, how he constructed relationships and how he viewed the world.[70] The applicant submitted, however, that the judge ought to have gone further by introducing consideration of his deprived upbringing into an evaluation of the applicant’s moral culpability, and ultimately, the determination of the appropriate sentence.
[70]Sentencing Remarks, [55]. See also Drake [2019] VSCA 293, [31]–[32].
At the hearing before us, senior counsel for the applicant acknowledged that Bugmy was not expressly referred to at the plea hearing or in the materials before the sentencing judge. Senior counsel maintained, however, that there was material before the sentencing judge concerning the applicant’s deprived and traumatic childhood, and that submissions were made on his behalf addressing the violence and brutality which his father had inflicted on him and his family over an extended period of time, and the fact that this had had ‘an enormous psychological effect on him’. Senior counsel also referred to the judge’s own statement that:
I understand how the childhood — the childhood, the traumatic childhood impact upon Mr Ale’s drug use which becomes the context for this offending.
Senior counsel submitted that the sentencing judge erred in failing to appreciate that this material was being put before the Court not just for context but also for its mitigatory significance. Senior counsel argued that it was submitted on the applicant’s behalf at the plea hearing that there was a link between his ‘appalling’ childhood and his offending: that is, the ‘traumatic childhood led to the Post-Traumatic Stress Disorder which then led to the drug use which was the setting in which these decisions were being made to perform this criminal offending’. Counsel further submitted that this was the link made by the experts. Senior counsel submitted that the fact that the applicant had previously conducted his own businesses before becoming a patched member of the OMCG and the leader of the Last Kings did not diminish the significance of his post-traumatic stress disorder and his traumatic childhood.
Inherent in these submissions was the contention that at the plea hearing the sentencing judge was apprised of the relevance of Bugmy considerations and that his Honour’s failure to understand their mitigatory dimension constituted sentencing error. In effect, in proceeding on the basis that the applicant’s traumatic and disadvantaged upbringing was of no mitigatory weight, his Honour ‘fell into specific sentencing error’ because this consideration was relevant to his Honour’s evaluation of the applicant’s moral culpability and the determination of an appropriate sentence.[71]
[71]Drake [2019] VSCA 293, [37]–[44].
The respondent submitted that it was unsurprising that there were no submissions on the plea addressed to Bugmy, because the material on the plea fell short of enlivening the principles enunciated in that case. More specifically, the respondent contended that the material did not assert that the applicant’s psychological function or personality structure was impaired to such an extent that his moral culpability ought to be reduced. The respondent argued that the evidence of Dr Cidoni and Dr King did not rise to a level that would enliven Bugmy principles. The respondent noted that Ms Brown’s qualifications were not elucidated and referred to comments of the judge on the plea querying whether she exceeded her expertise when she purported to discuss the applicant’s mental health. The respondent submitted that her report of 22 May 2017 could not enliven the Bugmy principles.
The respondent contended that the applicant’s circumstances and the nature of the offending ‘made it difficult to see how the applicant’s moral culpability could be reduced had the Bugmy submission been made’.[72] The respondent referred, amongst other things, to the fact that the applicant had completed his secondary education, secured employment and run businesses of his own before becoming a patched member of the OMCG. The respondent further submitted that the sentencing judge had in fact taken the applicant’s disadvantaged upbringing into account and given it appropriate weight in the sentencing exercise.
[72]Citing Romero v R (2011) 32 VR 486, [11]; [2011] VSCA 45.
At the hearing, senior counsel for the respondent elaborated on these points. It was submitted that there was no evidentiary basis that could support reliance on the Bugmy principles. Much of the evidence of the applicant’s traumatic background was based on the applicant’s self-reported statements. No evidence was adduced by anyone else who had been a member of the household at the relevant time. Senior counsel argued that, for the applicant’s deprived background to constitute anything greater than ‘context’ for his ‘story’, the expert reports would have needed to engage in a more rigorous analysis that ‘moved beyond self-report’ and expressed a clear view about the link between the offending and the applicant’s background.
The respondent submitted that, despite the applicant’s traumatic upbringing, he managed to complete secondary education, secure full-time employment, and purchase and operate a number of businesses. Implicit in the respondent’s submission was the suggestion that these achievements tell against circumstances that are so severe as to enliven the Bugmy principles.
In summary, the respondent contended that the nature of the offending and circumstances of the applicant were such that it would not have been open to the judge to reduce the applicant’s moral culpability because of his deprived background, even if submissions addressed to Bugmy had been made. The respondent also referred to Romero v R, where Redlich JA held that the appellate court should be slow to entertain arguments that could have been advanced on the plea.[73] In any event, the respondent submitted that the judge’s sentencing remarks, properly considered, demonstrate that he did take into account the applicant’s upbringing and gave it appropriate weight in the sentencing exercise.[74]

Consideration

[73](2011) 32 VR 486, 489–90 [11] (Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.

[74]Sentencing Remarks, [24]–[26], [41], [55].

In Bugmy, the majority explained that:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.[75]
[75]Bugmy (2013) 249 CLR 571, 594 [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
In DPP v Herrmann, this Court held that Bugmy specified the following two ways by which childhood deprivation may be relevant to the assessment of moral culpability:
The first — more general — expression was as follows:
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
The second — more specific — expression was in these terms:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[76]
[76](2021) 290 A Crim R 110, 118–19 [36]–[37] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160 (citations omitted).
In Leslie v The King, this Court recently revisited the Bugmy principles and their consideration in Herrmann.[77] In Leslie, the Court observed that the significance of the first and more general expression was that ‘the relevance of childhood deprivation to sentencing does not depend on proof of a nexus between the offending and the relevant background circumstances’.[78] In their Honours’ view, the principles in Bugmy, like those in R vVerdins (‘Verdins’),[79] ‘permitted the court to view an offender’s moral culpability as reduced where, through no fault of the offender, his or her psychological functioning or personality structure had been impaired’.[80]
[77]Leslie v The King [2025] VSCA 13, 14–15 [76]–[82] (Emerton P and J Forrest AJA).
[78]Ibid 15 [81].
[79](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[80]Leslie v The King [2025] VSCA 13, 15 [82].
In applying these principles, it is necessary to recognise that the effects of profound childhood deprivation do not necessarily diminish with the passage of time and repeated offending.[81] In every sentencing decision, it is necessary to give ‘full weight’ to an offender’s deprived background.[82] Consistently with these propositions, conduct by an offender pointing towards a prosocial outlook — for example, periods of gainful employment or a commitment to education — will not necessarily prevent the application of Bugmy principles.[83] Further, there is nothing in Bugmy requiring that childhood deprivation be ‘profound’ before a sentencing judge considers whether deprivation might be relevant to the assessment of moral culpability.[84]
[81]Bugmy (2013) 249 CLR 571, 594–5 [42]–[43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[82]Ibid 594–5 [42]–[44].
[83]Wilson v The King [2023] VSCA 276, 20 [93] (Priest, Niall and Kaye JJA) (‘Wilson’); Lockyer (a pseudonym) v The Queen [2020] VSCA 321, 13–15 [62]–[65] (Priest and Weinberg JJA) (‘Lockyer’).
[84]Sabatucci v The Queen [2021] VSCA 340, [22] (Maxwell P and Emerton JA); Newton (a pseudonym) v The King [2023] VSCA 22, [37] (Beach and Macaulay JJA).
But even where an offender’s deprived circumstances are relevant, they may not have the effect of ameliorating sentence.[85] In Bugmy, the Court observed that an offender’s deprived background will not have the same mitigatory relevance for all purposes of punishment, and observed the difficulty of giving weight to punishment’s different purposes.[86] The Court went on to say that
[a]n offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[87]
[85]Dhal v The King [2023] VSCA 289, 10 [55] (Osborn and Whelan JJA). See also Stewart v The Queen [2015] VSCA 368, [5] (Maxwell P, Priest JA agreeing at [32]).
[86]Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[87]Ibid.
Relatedly, in Stewart v The Queen, a case involving serious violent offending by a repeat offender, Maxwell P held that, in the circumstances of the case, the significance of the applicant’s deprived and disadvantaged background ‘necessarily decreases’, while ‘[o]ther sentencing considerations, such as community protection and specific deterrence, loom large’.[88] In short, the authorities show that circumstances of deprivation may affect the weight attributable to various factors, and that, taken together, those factors may have a mitigating, neutral or aggravating effect on sentence. As this Court said in Sabbatucci v The Queen:
[w]hether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[89]
[88][2015] VSCA 368, 2 [5] (Priest JA agreeing at [32]).
[89][2021] VSCA 340, 2 [6] (Maxwell P and Emerton JA).
It may be recalled that the judge found that the applicant’s early exposure to family violence ‘had a lasting impact’ on him, and upon how he constructed relationships and viewed the world. Notwithstanding this, his Honour found that ‘this can do no more than provide a context for [the] offending’ and ‘did not impact upon [the applicant’s] moral culpability’, which was assessed as ‘high’.[90]
[90]Sentencing remarks, [55].
In making these findings, the judge did not refer to Bugmy. This was understandable since neither party referred to that case. It is also understandable that the judge understood defence counsel not to be relying on the applicant’s traumatic background as a mitigating factor or an excuse for the offending.[91] Nonetheless, a failure to conform to the law as laid down in Bugmy and related cases may still amount to sentencing error and may not preclude a grant of leave to appeal.[92] That said, the failure to rely on Bugmy in a specific and express way on the plea will often be relevant to whether leave should be granted. Were it otherwise, the important distinction between the sentence and an appeal would be lost or undermined.
[91]Sentencing Remarks, [41].
[92]Bergman (2021) 289 A Crim R 503, 519–20 [87]–[88] (Maxwell P and Kaye JA); [2021] VSCA 148.
It is therefore necessary to consider the judge’s treatment of the issue more closely.
In evidence before the judge at the plea hearing were a number of relevant reports, including reports by Dr King, clinical psychologist and Dr Cidoni, forensic psychiatrist. Both of them referred to the applicant’s traumatic childhood.
In his final report, Dr King said that the applicant’s PTSD was linked to the applicant’s ‘profoundly violent and abusive childhood experiences’. The basis for this assessment was the account the applicant had given of his childhood. Thus, in his first report of 22 May 2017, Dr King stated:
Information relayed by his legal team and confirmed by Mr Ale is to the effect that he had a childhood of physical and emotional violence and abuse (primarily at the hands of his father), resulting in actual injury, in hospitalization and/or medical attention. Additional to the verifiable medical/physical injury, the reports of domestic cruelty (he and /or his mother being locked out of the house to sleep in the yard, beaten, abused, threatened with firearms, and the like) are so extreme as to stand out as clinically relevant potential sources of subsequent psychopathology.
Dr King diagnosed post-traumatic stress disorder and dissociative identity disorder and opined that a history of profoundly traumatic childhood experience was ‘entirely compatible’ with this diagnosis.[93]
[93]Dr King reiterated this assessment in his subsequent August 2018 and December 2018 reports.
Dr Cidoni made a similar finding, describing the applicant’s post-traumatic stress disorder as arising ‘in the context of a very significant childhood trauma’ in his 14 September 2017 report. Dr Cidoni’s assessment also relied on the applicant’s account of his father and his childhood. Dr Cidoni stated that the applicant ‘described his father as very violent, an alcoholic and ‘addicted to prescription medicine, cocaine and amphetamines’. Dr Cidoni reported that the applicant:
... described virtually daily incidents involving significant assaults including fractured nose, arm, shoulder and ribs. He and his mother were locked out of the house at times. He also described sexual abuse by another person’...
Dr Cidoni also referred to the applicant’s statement that ‘there was an incident where his father put a gun on the table with four bullets and said he would kill the whole family if the mother did not return to him.
In her written report, Ms Brown (a drug and alcohol counsellor)[94] referred to an appointment with the applicant’s sister and noted that she ‘became emotional at the first mention of how abusive her father had been’. She referred to the applicant’s reference to the ‘ugliness of his childhood’. As already noted, she connected the nature of his childhood to his attraction to the OMCG, and in evidence at the plea hearing associated the applicant’s childhood experiences with his post-traumatic stress condition. As already noted, however, at the plea hearing the respondent had challenged Ms Brown’s qualification concerning the applicant’s mental health.
[94]The sentencing judge noted that her expertise was limited.
References to the applicant’s traumatic childhood were made throughout the plea, including in evidence given Dr King, Dr Cidoni, and by Ms Brown, and during discussion with counsel. Plainly enough, the judge was well informed of the circumstances said to affect the applicant’s early life.
In the applicant’s case, however, there was limited evidence of there being a causal connection between the applicant’s childhood experiences and his offending. Dr King and Dr Cidoni’s evidence was that there was a link between the applicant’s post-traumatic stress disorder (and, in Dr King’s opinion, his dissociative personality disorder) and his childhood experiences.[95]
[95]Ms Brown also gave evidence at the plea hearing of an association between the applicant’s drug use and childhood trauma. As already noted, her qualification to do so was challenged by the respondent.

Ultimately, however, having had regard to this and other evidence, the sentencing judge found that the applicant’s offending began with his first contact with the OMCG, and the heavier drug use that followed. [96] The sentencing judge did not identify any causal connection between the applicant’s childhood and the offending. A related point was made in a character statement prepared by the applicant’s sister, which spoke to changes in the applicant’s personality around the time he ‘was using illicit drugs and had joined a bikie club’. The judge’s finding is consistent with and supported by the applicant’s lengthy period of employment, including in a number of his own business in the years prior to his association with the OMCG. While those activities do not preclude the application of Bugmy principles,[97] they contrast with the turn his life took after his contact with the OMCG, which indicates that this encounter was critical for his entry into to a different lifestyle that resulted in his offending.
[96]Sentencing Remarks, [29].
[97]Wilson [2023] VSCA 276, 20 [93] (Priest, Niall and Kaye JJA); Lockyer [2020] VSCA 321, 13–15 [62]–[65] (Priest and Weinberg JJA).
The judge’s finding that the applicant’s association with OMCG members was the background to the offending was evidently open to him. This finding was tantamount to a determination that there was no room for Bugmy principles to operate in the ‘specific’ sense. It is not reasonably arguable that his Honour erred in this regard.
There was potential room for the Bugmy principles to apply in the ‘general’ sense, however. There was sufficient evidence before the judge at the plea hearing to allow him to be satisfied that the applicant’s childhood led to his post-traumatic stress disorder and dissociative personality disorder. Indeed, the judge accepted that the applicant’s ‘early exposure to family violence’ had ‘a lasting impact’ on him, and upon how the applicant constructed his relationships and how he viewed the world.[98] Such findings did not necessarily mean that the applicant’s moral culpability for the offending ought be reduced. The judge noted the degree of organization in the offending, the central role the applicant played and that he had been able to participate in normal activities of life with a degree of ability and composure. For that reason, his Honour’s statement to the effect that his early childhood experience did not ‘impact upon his moral culpability’ was open to him. The finding recognises an appreciation by the sentencing judge of the potential for a deeply troubled upbringing to reduce culpability but a conclusion that it did not in this case. That finding was informed by an assessment of the applicant’s ability and capacity, the nature of the offending and the type of offences.
[98]Sentencing remarks, [55].
It is far from clear that an application of Bugmy could reasonably have any substantial effect on the applicant’s sentence, bearing in mind that, as the judge found in this case, the nature and gravity of the offending made specific deterrence and protection of the community primary sentencing considerations. These factors become more weighty as a result of the same enculturation to violence that bears on the applicant’s moral culpability. That is especially so in circumstances where the applicant has shown his capacity to engage in an array of serious offending of a kind extremely harmful to the community.
Given that the point was not argued below by reference to Bugmy and amounts to a new point on appeal, and that the judge expressly had regard to the applicant’s moral culpability for his offending, including in the context of his upbringing, the findings he ultimately made were well open to him. There was no error of principle. The applicant should not now be permitted to recast his plea in this respect. We are not persuaded that a grant of leave to appeal is justified on this ground.

Proposed Ground 3 — whether error in judge’s consideration of impact of custodial sentence on applicant

Parties’ submissions

In support of this ground, the applicant referred to the submissions at the plea hearing about the attempt on his life in February 2018, and to related evidence. The applicant noted that at the plea hearing his counsel had submitted that because of the attack, the applicant would be ‘an extremely vulnerable individual in a prison setting’. He drew attention to his counsel’s submission that he was a ‘marked man’; the submission as to his vulnerability in circumstances where those who had sought to kill him had not been identified; and the submission that there was a ‘real prospect’ that he could be attacked again in custody. Relatedly, the applicant referred to the statement in Dr Cidoni’s reports that since the attack the applicant had become hypervigilant and fearful, and to Dr King’s statement that the applicant had a ‘renewed and extreme genuine fear of death … or of major injury’.
The applicant contended that, despite these submissions and the reports of Dr Cidoni and Dr King, the judge did not recognise that the applicant’s perception of himself as a marked man would impact on his mental health in custody, and that this was relevant to assessing the more burdensome nature of his time in custody. This was all the more concerning, so the applicant submitted, because the judge failed to make an express finding that the applicant’s time in custody will be more burdensome on account of his mental health difficulties. If anything, so the applicant contended, the judge’s sentencing remarks were ‘couched in terms of limb 6’ of Verdins,[99] and did not address limb 5.[100]
[99](2007) 16 VR 269; [2007] VSCA 102.
[100]Sentencing Remarks, [70]. Limbs five and six of Verdins are in these terms: ‘Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways … 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment’: at 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
Senior counsel for the applicant acknowledged that there was no evidence of any actual threat to the applicant’s life in custody, but submitted that this was not relevant to this proposed ground. In his submission, this ground focused on the adverse impact on the applicant’s mental health attributable to his fear of another attempt on his life.
In response to the proposition that the risk faced by the applicant may have been greater outside of prison, bearing in mind that the attempt on his life had been made outside of prison, senior counsel submitted that ‘prisoners have been murdered in custody’, and that the applicant’s physical health — which included a protruding hernia — made him all the more vulnerable in prison.
The respondent submitted that, on the plea and in relation to the burden of imprisonment, defence counsel only ‘faintly’ pressed the ‘marked man’ submission and focused on the impact that the applicant’s post-traumatic stress disorder would have on him in prison. This indicated, in the respondent’s submission, that the applicant’s ‘marked man’ submission was not intended to amount to a freestanding factor in mitigation. Rather, so the respondent submitted, the ‘marked man’ submission needed to be understood in the context of the applicant’s mental health and how it might deteriorate in custody ‘as the person who shot him in 2018 had not been identified’.
The respondent referred to the sentencing judge’s acknowledgment that both Dr King and Dr Cidoni considered that the attempt on the applicant’s life had aggravated his post-traumatic stress disorder. The respondent submitted that the judge had given substantial weight to the impact of the attempt on the applicant’s life on his post-traumatic stress disorder, and that this clearly included the applicant’s fear of reprisal in custody, given its direct relevance to the aggravation of his illness. The respondent further submitted that sentencing remarks do not need to address every argument advanced on the plea;[101] and that the judge’s remarks clearly showed that he took into account the difficulties the applicant would experience in custody and that they informed the instinctive synthesis.

Consideration

[101]R v Koumis (2008) 18 VR 434, 439–40 [63]–[64] (Redlich, Kellam JJA and Osborn AJA); [2008] VSCA 84.

At the plea hearing, defence counsel contended that custody would have a ‘very detrimental effect’ on the applicant’s mental health. In that context, he made the following submissions:
[T]he vulnerability of this man is so profound, because they haven’t found the … the attempted killers … They haven't found the trigger. They haven't been identified. Your Honour will appreciate the vulnerability of a person who goes into custody, particularly against that background where you’re a marked man. There is a real prospect that because of that vulnerability, and his potential susceptibility to some sort of attack by an unidentified prisoner, that he will be confined in some way which of itself, according to Dr Cidoni can have a further exacerbating effect on his mental condition. So in other words, the time that he will serve in those circumstances will necessarily be far more oppressive than many others who get sentenced for similar offending.
We do not, however, consider that proposed ground 3 is reasonably arguable. The transcript of defence counsel’s submission shows that, while the ‘marked man’ submission was clearly made, it was not made to the effect now pressed on this Court. Rather, the applicant’s counsel sought to link ‘the marked man’ matter to Dr Cidoni’s assumption that the applicant would likely be held in ‘protection’ or ‘a management regime’ and that his poor mental health would be exacerbated as a result. Senior counsel for the respondent correctly submitted that this was speculative. Nonetheless, defence counsel’s submissions and the material referring to the applicant’s fear of death and hypervigilance would have made it clear to the judge that the applicant’s fear of death would weigh on him in custody. It is to be borne in mind that Dr King described the applicant’s fear of death or major injury as ‘extreme’; and Dr Cidoni found that the attempt on the applicant’s life caused a significant deterioration in his mental state. The symptoms to which Dr Cidoni referred (including flashbacks and nightmares) were cast as aspects of the applicant’s post-traumatic stress disorder, connecting the disorder and his fear of being a ‘marked man’. In this context, we accept that the impact of this fear on the applicant’s mental health was encompassed in the judge’s finding that ‘[t]he potential adverse effect upon [the applicant’s] mental health of [his] confinement’ was a factor in mitigation of sentence. Accordingly, we do not consider that this ground has any prospect of success.

Proposed Ground 5 — whether fresh evidence justifies reopening sentencing discretion

It is convenient to address proposed ground 5 at this point before turning to s 280(1)(b) of the CPA.
The applicant submitted that fresh evidence concerning the medical treatment for his hernia while in custody justified reopening the sentencing discretion. In addressing this contention, we begin with the relevant background, including how the matter of the applicant’s hernia developed after the plea hearing, before identifying and considering the parties’ submissions.

Evidence and submissions before the sentencing judge

The plea was heard on 10 and 21 December 2018. By that time, the applicant had been diagnosed with a large infra-incisional hernia following the attempt on his life in February 2018. In consequence, the applicant had scheduled medical appointments as a private patient at Mitcham Private Hospital, including surgery on 23 January 2019. Two related matters arose at the plea hearing: first, whether the applicant’s bail ought be extended to facilitate his surgery; and, second, the extent to which the applicant’s hernia would make his sentence more burdensome.
The prosecution successfully opposed extending the applicant’s bail, relying, among other things, on the affidavit dated 16 November 2018 of Ms Rebecca Redpath, then Director of Health Services and Clinical Governance, Justice Health Unit, Department of Justice and Regulation. Ms Redpath deposed that health care services in Victoria’s corrections system were based on a principle of ‘community equivalence’. This meant, so she said, that prisoners were ‘provided with health care of a quality and standard equivalent to that provided in the community through the public health system’.[102] Her evidence was that the applicant would be given a medical examination upon entry to the prison system, and that a series of further medical appointments would occur in the weeks after this. She deposed that the prison system would be able to facilitate the applicant’s hernia repair operation and that such operations were performed on prisoners regularly. In evidence at the plea hearing, she explained that an assessment of the applicant’s condition would be undertaken by St Vincent’s Hospital and, in consequence, the applicant would be placed on the appropriate waitlist. She said that there were processes in place to facilitate urgent treatment when necessary.
[102]The affidavit of Mr Brendan Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, sworn on 14 December 2018, at [9], was to the same effect.
In the course of her evidence, Ms Redpath was taken to a letter dated 19 November 2018 from Associate Professor Bill Johnson, program director, Surgical Services, Alfred Health, addressing the surgery the applicant would receive within the public health system. Amongst other things, the letter stated that, although no timeframe could be given, the applicant would be classified as a ‘Category 2’ patient, being a patient that required surgery within 90 days. Ms Redpath’s evidence was that this meant that the applicant’s treatment was ‘semi-urgent’. She gave further evidence that the median waiting time for hernia repairs at St Vincent’s Hospital was 59 days. In cross-examination, she said, however, that it was ‘highly unlikely’ that the applicant would receive care in the public system as promptly as he would at Mitcham Private Hospital, and that she could not give ‘any realistic indication’ of when his surgery in the public system would occur. As already indicated, the judge refused to extend the applicant’s bail.
The applicant subsequently filed written submissions dated 6 February 2019, contending that Justice Health and Corrections Victoria had failed to facilitate his hernia repair surgery. He referred to the principle of community equivalence, and drew an adverse comparison between the foreshadowed progression of his treatment at Mitcham Private Hospital as opposed to within the correction system.[103] The applicant submitted that his medical and psychiatric conditions were being exacerbated by his treatment in custody and ought to be an important consideration for the court in fixing an appropriate sentence.
[103]The submissions referred to the Alfred Hospital, rather than Mitcham Private Hospital. This appears to be an error.
As mentioned above, in his sentencing remarks on 8 March 2019, the judge had regard to the applicant’s need for surgery and any associated pain management issues.[104]

Developments since passing of sentence

[104]Sentencing Remarks, [70]. Relatedly, beneath a heading called ‘custody management issues’, the judge’s orders noted that the applicant ‘requires urgent surgery for stomach hernia and suitable pain management’.

The affidavits of Ms Jackie Ashmore, clinical director at Justice Health, and Ms Kerstin Julia Hinrichsen, an acting assistant commissioner at Corrections Victoria, described the events between sentence and surgery.
Ms Hinrichsen deposed to many positive aspects of the applicant’s time in custody. The applicant was a prisoner representative and had received positive reports about employment he undertook as a cleaning billet. He was undertaking a bachelor of arts degree. He displayed ‘role model prisoner behaviour’ by supporting his peers.
The evidence concerning the applicant’s medical treatment, set out in Ms Ashmore’s affidavit, was as follows. The applicant received a medical assessment upon his entry into custody on 21 December 2018. His hernia was reviewed at a subsequent medical appointment on 27 December 2018. A referral to St Vincent’s Hospital was made, noting an ‘extremely large abdominal hernia’ in need of urgent review. The applicant was given a priority rating of ‘routine’.
On 9 January 2019, St Vincent’s Hospital confirmed it had received an urgent referral concerning the applicant’s treatment and had begun to triage him. On about 10 January 2019, staff at Ravenhall Correctional Centre, where the applicant was being held, determined that the applicant’s existing appointment for surgery at Mitcham Private Hospital could not be fulfilled as the hospital had said it would not permit prison guards to be posted on hospital premises.
On 26 January 2019, the applicant attended an appointment with a medical officer who made a further referral to St Vincent’s Hospital in respect of the applicant’s hernia condition. The letter included a query whether the original referral had been lost. The applicant attended another appointment on 8 February 2019. According to the hospital’s records, the applicant found the hernia a ‘bit sore’ but ‘manageable’, and that the examining medical officer considered the area looked ‘generally well’. On 11 February 2019, a specialist at St Vincent’s Hospital determined that the applicant’s treatment was ‘non-urgent elective surgery’, classified him a category 2 patient and placed him on a waiting list.
Interactions and appointments with St Vincent’s Hospital continued over the following years. Throughout the same period, the applicant was also attended to by prison medical officers. At least some delay occurred as a result of the COVID-19 pandemic. Over these years, the applicant repeatedly reported pain and issues associated with his hernia, and the evidence shows that ‘lumps from the hernia’ grew over time and reportedly caused discomfort. A report prepared by Dr Peter Grossberg on 26 May 2021 at the request of the applicant’s solicitor, determined that the applicant’s hernia had developed into ‘at least 2 large incisional hernias’. The doctor, who was not able to see the applicant in person and conducted his examination remotely, considered that this was a ‘significant deterioration’ in the applicant’s condition. He said there was ‘obviously’ a communication problem with St Vincent’s Hospital, given the ‘delay’ in the progression of the applicant’s treatment. He said the applicant’s surgery was ‘not urgent’ and that ‘almost certainly he would be placed on the waiting list … as a nonurgent patient’.
On 28 October 2021, the applicant completed a questionnaire, sent by St Vincent’s Hospital, that confirmed he was still a category 2 patient. On 13 December 2021, a CT scan was conducted that identified ‘multiple hernia’.
On 15 February 2023, according to Ms Hinrichsen, the applicant said he had exhausted all options available at Ravenhall Corrections Centre to have his treatment progressed and that he had made a complaint to the ‘health ombudsman’.
The applicant’s surgery occurred at St Vincent’s Hospital on 31 May 2023. He was discharged from on 7 June 2023. Almost four years and three months had passed since the applicant was sentenced on 8 March 2019.

Neither party has adduced evidence providing a direct explanation for the time it took to schedule the applicant’s surgery. Ms Ashmore’s affidavit addressed the matter in a general way:
External secondary and tertiary medical appointments are scheduled by the relevant public health service in accordance with the community public health waiting list. Justice Health has no oversight of waiting times on community public health waiting lists. I am unable to provide any further commentary or insight as to the reasons for any delay in the Applicant’s hernia repair surgery as this is outside my scope. Any further queries regarding any delays in the Applicant’s procedure should be referred to St Vincent’s if required.
A supplementary report examining the applicant’s medical condition was prepared by Dr Grossberg on 17 March 2024. In the report, Dr Grossberg made the following comments:
It is noted that [the applicant] was put down as a category 2 patient which normally means that he should be done within 60 days of him going on the waiting list.[105] I am not certain at what date he was placed on the waiting list. There are numerous reasons why patients are not done within 60 days. The reason is usually being other more urgent cases, cancellations of operating theatres, lack of nursing staff, lack of medical staff. It is to be noted that at the time of his consultations it was in the period of the Covid epidemic when many theatres and staff were not available and the decision to do non-urgent cases was made at that stage only urgent cases were generally performed [sic].

Parties’ Submissions

[105]It can be seen that this definition of ‘category two’ is different to the one given by Ms Redpath and Associate Professor Johnson, who both referred to a 90 day timeframe.

The applicant referred to the submissions made on his behalf, including submissions filed after the plea hearing and prior to sentencing describing alleged inadequacies in his medical treatment after the revocation of bail. He submitted that there ‘can be no doubt that [his] acute medical issues and the need for treatment were significant matters’ bearing on his sentence, but nonetheless he was sentenced on the basis that he would receive appropriate treatment in custody within a reasonable time. In the applicant’s submission, this was because the judge accepted the prosecution’s submissions concerning the adequacy of care in custody, which, in the applicant’s submission, involved treatment ‘within a reasonable time’. As to what a reasonable period of time might have been, at the hearing of the leave application in this Court, senior counsel for the applicant submitted that the substance of the relevant evidence on the plea was that surgery would occur somewhere within about 90 days.
The applicant submitted, bearing in mind that more than four and a half years were to pass before his hernia repair surgery, he had not in fact received timely treatment. Referring to a report of Dr King dated 9 March 2024, the applicant submitted that his mental health had been adversely affected as a result of this delay. In this report, Dr King stated that the applicant was experiencing ‘negative mood states of much elevated depression and anxiety’ that were ‘at least in part directly attributable to the fact of his mismanaged surgical repair’. At the hearing of the leave application, senior counsel elaborated on the impact the hernia on the applicant. In particular, he referred to the hernia’s gradually increasing size; its eventual development into multiple hernias; and the applicant’s consistent complaints of pain and discomfort throughout the period, as well as anxiety and stress due to these issues.
In summary, the applicant argued that the occurrence of surgery so long after it was anticipated and its resulting impacts amount to fresh evidence that the applicant’s time in custody has been significantly more burdensome than the sentencing judge had anticipated at the time of sentencing.
In response, senior counsel for the respondent submitted that the evidence on which the applicant relied was not fresh evidence, because ‘it was known that [the applicant’s surgery] was going to be an issue and by inference, it was going to be something that would weigh on the applicant’s mind in custody’.[106] The respondent submitted that circumstances regarding the applicant’s booking of the Mitcham Private Hospital cast doubt on his submission that his hernia repair surgery was as urgent as he maintained. The respondent emphasised that Ms Redpath’s evidence was not that the applicant would receive surgery within 90 days. Rather, so the respondent submitted, her evidence related to the expectation that attached to an assessment of a patient as being ‘category 2’. In the respondent’s submission, Ms Redpath’s evidence was that she could not give any realistic indication as to when the applicant’s surgery would occur. Further, senior counsel for the respondent submitted that the evidence was clear that the applicant’s treatment would be handled by St Vincent’s Hospital, in accordance with the principle of community equivalence. This required equivalence with the public healthcare system, which, so senior counsel submitted, ‘includes waitlists, particularly for non-urgent matters’.
[106]The respondent had not been given all the material on which the applicant wished to rely in time to make written submissions, senior counsel for respondent addressed this ground orally at the hearing.
The respondent submitted that the delay in the applicant’s surgery was attributable to various factors relating to St Vincent’s Hospital’s management of surgical cases, including the prevalence of COVID-19 and the factors described in the letter of Dr Grossberg, referred to earlier.[107] As to the effect of the delay on the applicant, the gist of the respondent’s submissions was that the impact of the alleged delay on his health was modest, because it did not prevent him from making the most of the opportunities available to him in custody, including pursuing tertiary studies. While senior counsel acknowledged that the applicant had experienced discomfort that had escalated over the time he was waiting for surgery, she submitted that the applicant had not suffered from such debilitating pain during that time that he could not pursue his studies, perform his cleaning billet well, mentor other prisoners, and act as a prisoner representative. In substance, senior counsel submitted that the judge had in fact taken into account such discomfort and pain as he had experienced while waiting for surgery.

Consideration: the applicable legal principles

[107]See above at [112].

The principles governing the admission of fresh evidence in an appeal against sentence were set out by Redlich JA in R v Nguyen, in a passage that has been quoted many times since:
The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[108]
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
[108]R v Knights (1993) 70 A CrimR. 105, 109–10 (Crockett J, Marks J agreeing at 112, Hampel J agreeing at [112]); R v Maniades [1997] 1 Qd R 593, 597 (Davies JA and Hellman J, Fitzgerald P agreeing at [594]) (‘Maniades’); R. v. Ahmed [2005] VSCA 279, [11] (Callaway JA agreeing at [21], Ashley JA agreeing at [22]) (‘Ahmed’).
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[109] Unsurprisingly in light of the above principles, the power to admit fresh evidence in an appeal against sentence is exercised in limited circumstances.[110] The cases show that, where the power is exercised, it is frequently where the burden of custody is shown to be heavier than anticipated at the time sentence was passed on account of fresh evidence concerning an applicant’s health. Such evidence has been relied on to show that a medical issue known to the sentencing judge has turned out to be more significant than anticipated in the evidence at the time of sentence,[111] or a medical issue was present at the time of sentence but was not then diagnosed.[112] In both situations, fresh evidence revealed the actual significance of an applicant’s medical condition for the applicant’s custodial experience.
[109][2006] VSCA 184, [36]–[37] (Maxwell P agreeing at [1], Neave JA agreeing at [2]) (‘Nguyen’) (citations omitted). See also, for example, Singh v The Queen (2022) 301 A Crim R 265, 279–80 [36] (Emerton ACJ, Kyrou and T Forrest JJA); [2022] VSCA 178; Packard v The Queen (2022) A Crim R 55, 60 [12]–[13] (Priest JA), 74–5 [77]–[78] (Kyrou and Walker JJA); [2022] VSCA 128; and Barakat v DPP (Cth) (2020) 284 A Crim R 149, 159 [50] (Niall JA, Priest JA agreeing at 151 [1], T Forrest JA agreeing at 164 [77]); [2020] VSCA 185.
[110]Nguyen [2006] VSCA 184 [36] (Redlich JA, Maxwell P agreeing at [1], Neave JA agreeing at [2]). See, for example, R vEliasen (1991) 53 A Crim R 391, 394 (Crockett J, McGarvie and Phillips JJ agreeing at 397); R v Young (1996) 85 A Crim R 104, 108 (Charles JA, Hayne JA agreeing at 111, Winneke P agreeing at 113) citing R vRostom [1996] 2 VR 97, 99 (Charles JA, Callaway JA agreeing at 105, Vincent AJA agreeing at 105). Indeed, in RvWEF [1998] 2 VR 385, 388, Winneke P described the exercise of the power as ‘rare and exceptional’(Charles JA agreeing at 390, Hampel AJA agreeing at 390).
[111]See, for example, RvWEF [1998] 2 VR 385 (diabetic disorder known to sentencing judge, associated renal disease developing into kidney failure after sentence); Cardona v The Queen [2011] VSCA 58 (risk of lung cancer acknowledged at time of sentence, diagnosis of incurable cancer with short life expectancy three months after passing of sentence).
[112]See, eg, Price v The Queen [2018] VSCA 54 (applicant diagnosed with terminal cancer probably present at date of sentence).
The present case is different. The applicant’s proposed ground focuses on the timing of surgery and the standard of associated medical care, which the applicant maintains informed the judge’s assessment of his case, as opposed to what actually happened as disclosed in what is said to be ‘fresh evidence’.[113]
[113]The New South Wales Court of Criminal Appeal has recognised these circumstances as a discrete category of case within that jurisdiction’s fresh evidence jurisprudence, along with categories resembling the two already mentioned: Turkmani v The Queen (2014) 244 A Crim R 402, 414 [66] (Beech-Jones J, Hoeben CJ at CL agreeing at 403 [1], Hamill J agreeing at 418 [94]); [2014] NSWCCA 186.
Before considering the applicant’s case more closely, we note that it is well accepted in this Court and elsewhere that it is not the function of a court of criminal appeal to exercise a continuing supervisory role over the effects of imprisonment. Further, it is not equipped to fulfill such a role.[114] For present purposes, however, we put this to one side, and address the case the applicant has made.

Consideration – application of legal principles to the applicant’s case

[114]R v Williams [2005] VSCA 274, [34] (Nettle JA, Buchanan JA agreeing at [1], Eames JA agreeing at [2]), citing R v Vachalec [1981] 1 NSWLR 351, 353–4 (Street CJ for the Court). See also R v McLachlan (2004) 8 VR 403, 407 [12]; [2004] VSCA 87 (Chernov JA; Winneke P agreeing at 410 [24]; Vincent JA agreeing at 410 [25]); R v Boyes [2004] VSCA 97 [38] (Chernov JA; Smith JA agreeing at [41]; Coldrey AJA agreeing at [42]) (‘Boyes’). The last-mentioned case is reported, but the relevant discussion has been removed: see (2004) 8 VR 230.

For the following reasons, we do not consider that ground 5 is reasonably arguable.
The foundation of the applicant’s case was that he had been sentenced ‘on the basis he would receive appropriate treatment in custody within a reasonable period of time’. As already noted, he argued that his treatment fell short of this standard basically because it had occurred almost four years and three months after he entered the prison system, and not within the 90 days indicated by his category 2 designation. The applicant’s case depends on the proposition that the sentencing judge assumed a particular degree of timeliness in the applicant’s prison medical care. This is not borne out in the judge’s sentencing remarks.
In these sentencing remarks, his Honour accepted that the applicant’s ‘current need for invasive surgery and the pain management issue that arises until that surgery takes place’ was a factor mitigating sentence.[115] The judge said nothing here or elsewhere in his remarks about the timing of such surgery. The applicant placed particular weight on [43]–[44] of the judge’s sentencing remarks. At [43], his Honour recorded the submission made on the applicant’s behalf that ‘the acute medical problems presented by [his] worsening hernia ... were unlikely to be promptly addressed within the custodial setting’. [116] As to this, the judge referred in a general way to the evidence of Ms Redpath, by noting the ‘processes and procedures’ for securing the ‘adequate’ treatment that she described, and her evidence concerning the principle of ‘community equivalence’ applicable to the medical treatment of a person in custody in Victoria. As already noted, her evidence was that this principle required that prisoners were ‘provided with health care of a quality and standard equivalent to that provided in the community through the public health system’.[117] The judge apparently accepted Ms Redpath’s evidence in this regard.[118]
[115]Sentencing Remarks, [70(vi)].
[116]Sentencing Remarks, [43].
[117]Neither party led evidence that would have enabled the Court to compare the course of his treatment against some kind of community standard applicable throughout the relevant period. This was the period 21 December 2018 (his remand date) to 31 May 2023 (his surgery date).
[118]See [96] above.
It should be borne in mind that the judge was informed at the plea hearing that the applicant’s treatment would be managed by St Vincent’s Hospital, and that, as Ms Redpath deposed, the Hospital ‘would … assess [him] and place him on the appropriate waiting list for the operation as a public patient, based on the urgency of his surgery’. As already noted, the judge was also informed by Ms Redpath that, upon entering the prison system, the applicant would be medically assessed, with further medical appointments to follow over subsequent weeks.[119] As the evidence of Ms Ashmore showed, however, the process that Ms Redpath described to the judge was in fact the process that was followed with respect to the applicant’s treatment. A series of medical appointments were scheduled in the period between 21 December 2018 and 8 February 2019. On 11 February 2019, St Vincent’s Hospital confirmed receipt of the referral, reported that the applicant required non-urgent elective surgery, and advised that he had been placed on a waiting list.[120] In the ensuing years, there were further appointments with the medical staff at the Hospital, and in this way the Hospital maintained its oversight of the applicant’s medical status. During the same period, the applicant also attended appointments with prison medical officers.
[119]See [96] above.
[120] See [104] above.
According to Ms Redpath’s evidence, the process to facilitate urgent surgery would have been engaged if the priority assessment for the applicant’s surgery had been changed from ‘non-urgent’ to ‘urgent’, but this never happened. It was not suggested that there was any evidence that might indicate that the applicant’s surgical assessment as ‘non-urgent’ shifted to ‘urgent’ at any time at all.
It is true that Ms Redpath stated in evidence that the median waiting time for hernia repair surgery at St Vincent’s Hospital was 59 days, and that she appears to have given this evidence to provide the judge with an indicative waiting time. There was also evidence before the judge that where a patient such as the applicant was classified by the Hospital as ‘Category 2’, that classification indicated the patient required surgery within 90 days. It is also true that there is a marked difference between these indicative waiting times and the time the applicant actually waited. It was not, however, said that there was anything in the evidence to show that the process, as described by Ms Redpath, was not followed. Rather, the evidence to which we were taken indicated that the precise timing of the applicant’s surgery depended on a range of factors, including the triaging of the applicant’s condition by the Hospital, his placement on a waiting list of unknown length, and the management of his case in a public system subject to many factors, including the effect of the COVID-19 pandemic. Plainly enough, the effect of these factors on the timing of his surgery was, for the most part, unforeseeable. This meant that any assumption on the judge’s part as to when the applicant’s surgery would occur would have been speculative. Relevantly too, Ms Redpath’s clear evidence was that she was unable to give any realistic indication of when surgery would occur. This being the case, it is unremarkable that the judge’s sentencing remarks made no finding and disclosed no assumption about the timing of the applicant’s surgery, despite timing being the subject of the general evidence to which we have referred.[121]
[121]The parties’ submissions on the plea were also non-specific about a prospective date for the applicant’s surgery. Defence counsel suggested surgery would not be possible ‘for some time’, and the prosecution submitted as follows: ‘[t]his is an operation that can be and will be conducted within the prison setting as equally as if it was conducted in the private setting. Not necessarily to the same timeline. That is unknown. Prisons need to assess inmates as they come in. Assess them in terms of their care and what they require, and farm them out to where they need to go, when they need to go. This is what will be undertaken…’ (emphasis added).
In these circumstances, we do not consider that proposed ground 5 is reasonably arguable. It is unfortunate that the applicant had to wait as long as he did for his surgery. We do not accept the respondent’s submission that we can draw any inference about the effect of this delay on him from the evidence of his accomplishments in prison. Rather, the evidence to which we were taken showed that his condition caused him pain and discomfort, and adversely impacted his mental health. This said, the sentencing judge evidently understood that the applicant would suffer in these ways, and expressly took the need for surgery and pain management into account as factors in mitigation. While the judge may not have anticipated that it would take more than four years for the applicant to have his surgery, this did not alter the fact that his Honour sentenced the applicant on the basis of a process that would result in his surgery, but included nothing as to the time it would occur.

The applicant’s claimed ‘fresh evidence’ shows simply that his medical treatment was managed as his Honour envisaged in his sentencing remarks and in the evidence before him at that time.[122] Accordingly, it cannot be reasonably argued that this evidence sheds significant new light on the facts as they stood at the time of sentence and is therefore inadmissible.
[122]R v McLachlan (2004) 8 VR 403, 407 [11] (Chernov JA, Winneke P agreeing at 410 [24], Vincent JA agreeing at 410 [25]); [2004] VSCA 87.
We also observe that the applicant’s proposed case is not unlike Vachalec, which, as here, involved a complaint about the adequacy of the offender’s treatment in custody, notwithstanding the matter had been addressed in submissions before the sentencing judge and taken into account in sentencing.[123] As Nettle JA held in Williams, by reference to Vachalec, it is not an appeal court’s role to exercise a supervisory role over the effect of imprisonment upon an individual.[124] Of course, this is not to say that fresh evidence concerning a prisoner’s medical condition or the provision of health services cannot be admissible in an appropriate case to justify the reopening of the sentencing discretion.[125] It is simply to observe that complaints of this kind will generally be matters for consideration by the executive branch of government, not the courts.[126]
[123][1981] 1 NSWLR 351, 353–4 (Street CJ for the Court); [1981] NSWCCA 26 (‘Vachalec’).
[124][2005] VSCA 274, [34] (Buchanan JA agreeing at [1], Eames JA agreeing at [2]), citing Vachalec [1981] 1 NSWLR 351, 353–4 (Street CJ for the Court); [1981] NSWCCA 26.
[125]Compare R v Kier [2004] NSWCCA 106, at [65]–[68], [75] (Dunford, Greg James and Buddin JJ). We note that New South Wales authorities in this area may need to be approached in a guarded way, owing to some differences in the way fresh evidence is considered in that jurisdiction: contrast Nguyen [2006] VSCA 184 with, eg, Barnes v The Queen (2022) 299 A Crim R 483, 488–93 [24]–[38] (Hamill J, Gleeson JA agreeing at 484 [1], Ierace J agreeing at 500 [80]); [2022] NSWCCA 140.
[126]R v Vachalec [1981] 1 NSWLR 351, 353–4 (Street CJ for the Court); R vMcLachlan (2004) 8 VR 403, 407 [12]; Boyes [2004] VSCA 97, [38] (Chernov JA, Smith AJA agreeing at [41], Coldrey AJA agreeing at [42]).

Proposed Ground 4 — whether sentence is manifestly excessive

While the applicant acknowledged the very serious nature of his offending, in support of this ground, he submitted that certain factors led to the conclusion that the sentences imposed on charges 2, 3, 5 and 9, as well as the total effective sentence and non-parole period, were manifestly excessive. The factors to which the applicant referred were: his guilty plea and its utility, his remorse, his traumatic and disadvantaged upbringing, his physical and mental health difficulties (including the consequentially more burdensome nature of imprisonment), his rehabilitative efforts, and current sentencing practices.
The respondent submitted that the applicant’s offending was objectively grave and extensive, and the applicant’s submissions in support of this ground should be rejected.

Consideration

A ground of manifest excess can only succeed by establishing that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[127] To succeed, the applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[128] What we are about to say concerning s 280(1) of the CPA shows that this ground has no reasonable prospect of success.
[127]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[128]Abdullahi v The King [2024] VSCA 156 (Emerton P and McLeish JA).

Ground 1 revisited: application of section 280(1) of the CPA

We turn to the foreshadowed application of s 280(1) of the CPA. Section 280(1) provides:
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a) there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
As s 280(1)(b) discloses, the existence of sentencing of error will not assist the applicant if ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence’ despite the error (or errors) committed.[129] The issue then becomes whether there is no reasonable prospect of a reduction to the total effective sentence, notwithstanding the errors identified in ground 1 (discussed above), taking into account all the circumstances of the case (including matters in mitigation relied upon by the applicant).
[129]CPA, s 280(1)(b).
In the course of argument, senior counsel submitted that success on ground 1 alone would mean that there was an error in the sentence imposed on that charge, and this Court would need to resentence on that charge and also consider the effect of the total allowable sentence having regard to cumulation in respect of the charge. He submitted that the sentences on the other charges would fall or have to be reimposed by this Court on resentence.
Turning then to the sentence imposed on charge 5, we have set out the relevant circumstances of the offence above. The discussions between the applicant and his co-offender involved the applicant directing the proposed assault, encouraging his co-offender, and telling him to approach the victim’s door, knock and ‘just cave him, this that, walk back to your car and take off normally’. The offending involved a plan for an attack on a person at a domestic address and the applicant showed no hesitation in being part of it. He fell to be sentenced as a person who had shown disdain for the law, and a willingness to engage in most serious anti-social behaviour. Specific and general deterrence and denunciation loomed large in respect of all of the charges. Having regard to the plea of guilty, the other factors that were relevant to mitigation that the judge took into account and the maximum available sentence, we accept that the term imposed of 3 years and 6 months was too high. Were it necessary for us to resentence we would have imposed a shorter term.
On the other hand, the cumulation of 9 months was very moderate having regard to the violent nature of this charge. Indeed, we are not persuaded that there is a reasonable possibility that this Court would impose a shorter period of cumulation than the 9 months ordered by the judge. The sentence on charge 5 apart, we are not persuaded that the sentence on charges 2, 3, and 9 were excessive, let alone manifestly so. They were all serious offences, and the applicant accepted he was at the apex of the offending. The applicant engaged in a course of lawless behaviour that required a commensurate sentence. Moreover, and having regard to all of the offending and the matters in mitigation, we consider that there is no reasonable prosect of a reduction of the total effective sentence or non-parole period.
For these reasons, we do not think that there is any reasonable prospect that the Court of Appeal would reduce the total effective sentence, notwithstanding the errors identified in proposed ground 1.[130]
[130]CPA, s 280(1)(b).
The application for leave to appeal must be refused.
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[2025] VSCA 92

1 May 2025