Alessawi and Snowball v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2023 0199
MURTADA ALESSAWI	Applicant
v
THE KING	Respondent

S EAPCR 2024 0015
JAIDYN SNOWBALL	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, TAYLOR JA and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2024
DATE OF JUDGMENT:	3 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 23
JUDGMENT APPEALED FROM:	DPP v Alessawi & Anor [2023] VCC 1835 (Judge Gwynn)

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CRIMINAL LAW – Appeal – Conviction – Applicant Alessawi pleaded guilty to attempt to pervert the course of justice – Applicant demanded another person accept false nomination as driver at time of driving offence – Applicant prepared false nomination statement for driving offence – Applicant did not submit false nomination – Whether any completed act had requisite tendency to pervert the course of justice – Leave to appeal against conviction refused.

Riley v DPP [2015] VSCA 259, referred to.

Meissner v The Queen (1995) 184 CLR 132; Healy v The Queen (1995) 15 WAR 104; R v Allan [1995] 2 VR 468; Tognolini v The Queen [2011] VSCA 113; The Queen v Aydin (2005) 11 VR 544, considered.

CRIMINAL LAW – Appeal – Sentence – Applicant Alessawi pleaded guilty to discharging firearm at premises with reckless disregard for safety and other firearm offences – Applicant pleaded guilty to home invasion and other offences arising from separate occasion – Whether sentence is manifestly excessive – Shooting offending extremely serious – Offending highly planned and involved high calibre weapons –– Risk to public safety enormous – Importance of general deterrence – Assessment of moral culpability given youth – Leave to appeal against sentence refused.

Haddara v The King [2024] VSCA 269, considered.

CRIMINAL LAW – Appeal – Sentence – Applicant Snowball pleaded guilty to home invasion, criminal damage, theft and firearm offences – Whether evidence of neurocognitive disorder is fresh or new – Whether fresh or new evidence demonstrates true significance of facts existing at time of sentence – New evidence does not engage Verdins principles – Leave to appeal against sentence refused.

Nicholson v The Queen [2018] VSCA 146; Packard v The Queen [2022] VSCA 128; Betts v The Queen (2016) 258 CLR 420; R v Nguyen [2006] VSCA 184; DPP v O’Neill [2015] VSCA 325; R v Verdins (2007) 16 VR 269, referred to.

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Counsel
For the Applicant Alessawi: For the Applicant Snowball:	Mr S Tovey with Ms C Jackson Mr D Mence
Respondent:	Mr J O’Connor
Solicitors
For the Applicants:	Markotich Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
TAYLOR JA
KIDD AJA:

Introduction

On 8 June 2023 the applicant Alessawi (‘Alessawi’) and the applicant Snowball (‘Snowball’) pleaded guilty in the County Court to numerous charges on two indictments. Each indictment related to joint offending on a separate occasion.
(a)Indictment C2215455.1 preferred charges of home invasion and criminal damage against both applicants (‘home invasion offending’). It also preferred a charge of attempt to pervert the course of justice against Alessawi alone.
(b)Indictment C2215453.1 preferred charges of theft, being armed with a firearm with criminal intent, possessing unregistered guns, possessing banned radio communications equipment for use and discharging a firearm at premises with reckless disregard for safety (‘shooting offending’).
On 4 August 2023 Alessawi also separately pleaded guilty to charges of blackmail and attempt to pervert the course of justice on a third indictment N12142664 (‘attempt to pervert offending’).
The applicants were sentenced on 6 October 2023 as set out below:

Applicant Alessawi

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment C2215455.1
1	Home invasion[1]	25 years	3 years	Base
2	Intentionally damage property[2]	10 years	$1,000 fine	–
3	Attempting to pervert the course of justice[3]	25 years	1 year	6 months
Total sentence on indictment C2215455.1			3 years 6 months
Cumulation on global base sentence			1 year 4 months
Indictment C2215453.1
1	Theft[4]	10 years	Aggregate sentence of 6 years	Base
2	Armed with firearm with criminal intent[5]	5 years
3	Possessing an unregistered general category handgun[6]	7 years or 600 penalty units
4	Possessing an unregistered Category E longarm[7]	7 years or 600 penalty units
5	Discharging firearm at premises with reckless disregard for safety[8]	15 years
6	Possessing radiocommunications equipment subject to a permanent ban[9]	2 years or 1,000 penalty units	$750 fine, without conviction	–
Total sentence on indictment C2215453.1			6 years
Cumulation on global base sentence			Base sentence for global total
Indictment N12142664
1	Blackmail[10]	15 years	1 year	6 months
2	Attempting to pervert the course of justice[11]	25 years	1 year 6 months	Base
Total sentence on indictment N12142664			2 years
Cumulation on global base sentence			8 months
Total Effective Sentence:		8 years
Non-Parole Period:		4 years 10 months
Pre-sentence Detention Declared:		378 days
Section 6AAA Statement:		Total Effective Sentence 9 years 10 months Non Parole-Period 6 years 4 months
Other Relevant Orders: Recommendation made to the Adult Parole Board that it considers its transfer powers pursuant to section 471 of the Children, Youth and Family Act 2005.

[1]Contrary to s 77A of the Crimes Act 1958.

[2]Contrary to s 197(1) of the Crimes Act 1958.

[3]Contrary to Common Law.

[4]Contrary to s 74 of the Crimes Act 1958.

[5]Contrary to s 31B(2) of the Crimes Act 1958.

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

[7]Contrary to s 6A(3) of the Firearms Act 1996.

[8]Contrary to s 131A(1) of the Firearms Act 1996.

[9]Contrary to s 175(4) of the Radiocommunications Act 1992 (Cth).

[10]Contrary to s 87(1) of the Crimes Act 1958.

[11]Contrary to Common Law.

Applicant Snowball

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment C2215455.1
1	Home invasion[12]	25 years	3 years	12 months
2	Intentionally damage property[13]	10 years	$1,000 fine	–
Indictment C2215453.1
1	Theft[14]	10 years	Aggregate sentence of 6 years imprisonment	Base sentence between indictments
2	Armed with firearm with criminal intent[15]	5 years
3	Possessing an unregistered general category handgun[16]	7 years or 600 penalty units
4	Possessing an unregistered Category E longarm[17]	7 years or 600 penalty units
5	Discharging firearm at premises with reckless disregard for safety[18]	15 years
6	Possessing radiocommunications equipment subject to a permanent ban[19]	2 years or 1,000 penalty units	$750 fine	–
Total Effective Sentence:		7 years
Non-Parole Period:		4 years 2 months
Pre-sentence Detention Declared:		479 days
Section 6AAA Statement:		Total Effective Sentence 9 years Non Parole-Period 5 years 10 months
Other Relevant Orders: Recommendation made to the Adult Parole Board that it considers its transfer powers pursuant to section 471 of the Children, Youth and Family Act 2005.

[12]Contrary to s 77A of the Crimes Act 1958.

[13]Contrary to s 197(1) of the Crimes Act 1958.

[14]Contrary to s 74 of the Crimes Act 1958.

[15]Contrary to s 31B(2) of the Crimes Act 1958.

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

[17]Contrary to s 6A(3) of the Firearms Act 1996.

[18]Contrary to s 131A(1) of the Firearms Act 1996.

[19]Contrary to s 175(4) of the Radiocommunications Act 1992 (Cth).

Alessawi seeks leave to appeal against both conviction and sentence.
The proposed ground with respect to conviction is confined to the attempt to pervert offending in indictment N12142664 and formulated as follows:
A substantial miscarriage of justice occurred in that upon the admitted facts the applicant could not in law have been convicted of the offence of attempt to pervert the course of justice.
The single proposed ground with respect to sentence is:
The aggregate sentence imposed on charges 1 to 5 on Indictment C2215453.1, the overall head sentence imposed and the non-parole period fixed are each manifestly excessive.
Snowball seeks leave to appeal against sentence on the following single ground:
The Applicant should be resentenced by this Court in light of fresh evidence that he suffers from a major neurocognitive disorder in the form of a traumatic brain injury that was present but not fully understood or diagnosed at sentence. The Applicant’s permanent disability enlivens the principles in R v Verdins.[20]
[20](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
For the reasons that follow each of the applications for leave to appeal should be refused.

Overview of the offending

The home invasion offending

At about 9:23 pm on 13 May 2022 the applicants drove a rented van to the vicinity of Nana Walk in Narre Warren South. Leaving the van running, they approached number 14. It was the residence of Marcus Denning and two others. Mr Denning and Delores Jayan were at home. The applicants kicked at the front door. Upon hearing the commotion Mr Denning exited through the back door, jumped the fence and took refuge with a neighbour. Ms Jayan locked herself in her bedroom.
Unable to break the door by kicking, Alessawi removed an imitation firearm from his clothing before he and Snowball tore down the CCTV camera at the front of the property. After gaining access to the house by breaking a loungeroom window, they searched the bedrooms of Mr Denning and the resident not then at home. They then attempted to get into the locked bedroom of Ms Jayan, kicking at the door. Eventually the kicking created a hole in the door through which one of them stuck his head. The applicants then returned to their idling van.
At about 8:40 pm on 14 May 2022 Alessawi made a report to police that the van had been stolen between 3:00 pm and 4:00 pm the previous day.
The van was located in Epping on 15 May 2022.

The shooting offending

At about 7:02 pm on 12 June 2022 the applicants stole a Hyundai van (‘Hyundai’) from outside a suburban address. They did so on the instructions of Hady Al Harbiah. The theft was captured on CCTV footage.
On 13 June 2022 the applicants agreed to meet Al Harbiah in Lalor. They did so at about 12:46 am. Al Harbiah’s VW Golf car (‘Golf’), in which the meeting took place, was fitted with police tracking and recording devices. Al Harbiah produced several firearms, including a Soviet assault rifle. The audio recording captured the sounds of firearm weapon actions being worked. He gave the applicants a mobile telephone. They were instructed to use the phone to contact him via Wickr. The applicants departed in the Golf and, at about 4:00 am, returned to Lalor. After waiting for a period in a car park, Alessawi was recorded saying that he would ‘call it off until tomorrow’.
At about 1:04 am on 14 June 2022 the applicants drove the Hyundai to Surrey Street, Pascoe Vale. Upon exiting the vehicle Alessawi was armed with the Soviet assault rifle and Snowball with a Norinco Model 1911 semi-automatic handgun. Both were loaded. As they moved along Surrey Street they were fired upon by an unidentified person from the vicinity of 14 Heather Avenue, Pascoe Vale. The applicants took shelter in the front yard of a house in Surrey Street and returned fire. They discharged at least 15 rounds. The applicants then ran to the Hyundai as Alessawi provided a burst of ‘covering fire’.
Later crime scene examination revealed 23 cartridge cases from the assault rifle and two from the pistol. Bullet holes were observed in a bungalow at the rear of 14 Heather Avenue, in five locations in fences in and around that address and in a vehicle that had provided cover to the applicants. One bullet travelled over 950 metres and passed through two walls of a house on another street.
The applicants were intercepted by armed police at about 1:30 am. The assault rifle and handgun were located between the front seats of their vehicle. Additional ammunition and an activated prohibited signal jamming radio device were also found.

The attempt to pervert offending

As already noted, this offending involved Alessawi alone.
Alessawi was granted bail on 24 June 2022.
On 9 September 2022, a Mercedes Benz G63 (‘Mercedes’) hired by him was observed speeding by police. The police car activated its flashing lights but the Mercedes failed to stop. A chase ensued. Police called it off after the Mercedes used a slip lane and ran a red light.
On 16 September 2022 police served Alessawi with a notice (‘s 60 notice’) under s 60 of the Road Safety Act 1986 (‘RSA’) which required him to identify the driver of the Mercedes.[21]
[21]Section 60(1B) of the RSA empowers a police officer acting in the execution of duty to require any person whom that officer believes on reasonable grounds to have had possession or control of a motor vehicle on a particular occasion to give any information which it is within the power of the person to give and which may lead to the identification of any person who was the driver of the motor vehicle on that occasion or had possession or control of the motor vehicle on that occasion. Refusal or failure to do so, absent reasonable excuse, is an offence (RSA, s 60(1C)).
Between 18 and 24 September 2022 Alessawi had a series of conversations with DN, an acquaintance from school. In those conversations he demanded that DN hand over to him, variously, a car or motorcycle, $5,000 and, finally, $1,500. In the event that DN did not comply or went to police, Alessawi threatened to come to his home and to put both him and his family in a ditch. The pretext for these demands was ‘payback’ for threats DN had apparently made to Alessawi’s younger brother about 12 months prior. Ultimately DN agreed to offer compensation by way of a ‘favour’, specifying that it would not involve drugs.
On 24 September during a telephone conversation between Alessawi and DN, Alessawi demanded that DN falsely state that he was the driver of the Mercedes on 9 September 2022. The conversation, which was recorded, included the following.
Alessawi        Hey [DN], you know how you owe me a favour?
DN              What favour?
Alessawi        I’m going to nominate you for a chase.
DN              What do you mean?
Alessawi        Like a little … cop chase.
…
DN              Bro, I can’t do that Bro, Wallah
AlessawiBro, it’s literally nothing. They turned the lights and they turned it off. If you get interviewed and then you come out, you say, you just be like ‘yeah it’s me, no comment, no comment, no comment’, and that’s it, they let you out. I swear on my mum’s life.
DN              Bro, I can’t do that cuz.
Alessawi        Bro, but you owe me a favour.
DN              Yeah, bro, but that’s a drag bro.
Alessawi        You said the favour, whatever it is. Didn’t you?
DNYeah but, bro. Bro, you’re getting into cop chases bro. I can’t do shit like that bro.
…
Alessawi        You go in for an interview, that’s it.
DN              If I do this, I don’t owe you shit, yeah?
Alessawi        Nah, that it, all clear. I swear on my mum’s life.
DNBro, look yeah, better not bro. What’s the story behind the G Wagon, but. What happened?
Alessawi        Literally nothing.
DN              Hit a house or something?
AlessawiNo, no, no, no, brother, turned on light and turned off. Remember when you took it for a drive?
DN              What about P plate. Going to take my licence bro.
AlessawiYeah. Doesn’t matter it’s a rental, private rental. So, listen remember how I got it under my name when you took it for a drive, when I gave you the keys. So, like it’s under my name, nothing, turned on the lights, turned it off. That’s it. I’m telling you cuz, it’s literally, nothing bad, you go in for interview that’s it. Swear on mum’s life. I swear on my mum’s life.
DN              Aye, let me think about it, yeah?
AlessawiCuz, bro, you owe me a favour you know. It was at 12:14 in Lalor on the 9^th. That is all I need from you, bro, just your fucking, what do I need from ya, your first name, address, licence, and that’s it, your number.
DNCuz, I don’t have any, I’m not home right now, I don’t have it on me, like that. I didn’t even drive here. I’m at my mate’s house, I don’t have my licence or shit on me bro, nothing like that on me.
Alessawi… When you get home, just send me your full name, address and driver’s licence.
On 4 October 2022 police executed a search warrant at Alessawi’s address. The s 60 notice and its covering letter were located. The covering letter noted that the driver of the Mercedes failed to stop the vehicle upon police direction at 12:14 pm on 9 September 2022 at Lalor. The notice had been partially completed. A box stating that ‘someone else was in possession or control of the vehicle at the time of the offence’ was checked. DN was nominated as the responsible driver, his address and telephone number were recorded. His driver licence number and date of birth were not. The notice contained a handwritten statement that ‘someone else was in possession of the vehicle’. It was signed and dated 24 September 2022.
It is convenient to first address the two applications made by Alessawi (leave to appeal against conviction and leave to appeal against sentence) and then to consider Snowball’s application for leave to appeal against his sentence.

Alessawi’s application for leave to appeal against conviction

Alessawi’s contentions

Alessawi contends that this Court should entertain his application for leave to appeal against conviction notwithstanding his earlier plea of guilty because on the admitted facts of charge 2 of indictment N12142664 he could not have been guilty of the offence of attempting to pervert the course of justice.[22]
[22]Riley v The Queen [2015] VSCA 259.
Alessawi accepts that he did an act (or series of acts) with the intention to deflect his prosecution for driving offences committed on 9 September 2022. His argument is that despite doing so, none of those acts had the objective tendency to pervert the course of justice.
It is argued that while it is not necessary to show that an accused has taken all available steps to bring about the relative injustice and impossibility is not a defence to the charge, it is necessary that the conduct in question have the genuine capacity to interfere with the proper administration of justice. That is, the act must give rise not to a speculative risk that an injustice might arise but a real one.
Alessawi argues that he had yet to commit such an act.
He argues that he did no more than request a favour that DN allow him to nominate him as the driver. He did not demand that DN give false evidence. He did not in fact nominate DN as the driver. The s 60 notice was only partially completed and remained unsubmitted. Accordingly nothing he did gave rise to a real risk that the police investigation would be defeated or that he would avoid prosecution because DN had been wrongly charged in his stead. In the absence of further action by him there was no reasonable risk that DN would either be spoken to or arrested and charged by police.

Respondent’s contentions

The respondent contends that Alessawi misapprehends the offence of attempting to pervert the course of justice. It was not necessary to prove that he did an act sufficient to trigger a process by which the false nomination of DN as the driver would come to the attention of the police. Rather, the question of whether the admitted conduct had the objective tendency to pervert the course of justice is to be considered at a level of abstraction. Conduct aimed at frustrating a police investigation has the requisite tendency because it tends to frustrate or deflect a potential prosecution before a court. The probability that a particular prosecution would not, in fact, have been deflected is not a defence to the charge.

The respondent argues that facts admitted by Alessawi establish the offence. His demand that DN falsely nominate himself as the driver of the Mercedes alone is enough to do so. It is therefore immaterial that Alessawi had only partially completed the s 60 notice and not submitted it.

Consideration

The indictment filed against Alessawi charged that on 24 September 2022 with intent to pervert the course of justice he did a ‘series of acts’ which had the tendency to pervert the course of justice. That series of acts was particularised as follows:
(a)Told DN to falsely admit to police that he was the driver of a vehicle during an incident on 9 September 2022 which the police were investigating.
(b)Provided DN with essential details relating to the said incident of 9 September 2022 including the time, date and location of it.
(c)Told DN about what to say if interviewed by police about the incident.
(d)Completed and signed a nomination statement falsely nominating DN as being the driver of the vehicle on 9 September 2022.
As is plain, Alessawi does not dispute doing those acts or that he intended for them to pervert the course of justice. Rather, he contends that none of those acts gave rise to a real possibility that DN would be spoken to by police let alone arrested or wrongfully charged with offences relating to Alessawi’s driving on 9 September 2022. In those circumstances, it is put that the risk to the course of justice arising from those acts is merely speculative. Alessawi argues that only if he had in fact successfully nominated DN as the driver would his acts acquire the objective tendency to pervert the course of justice.
In Meissner v The Queen[23] Brennan, Toohey and McHugh JJ said
a person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. Attempting to pervert the course of justice is a substantive offence. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive.[24]
[23](1995) 184 CLR 132; [1995] HCA 41 (‘Meissner’).
[24]Meissner, 140–141 (Brennan, Toohey and McHugh JJ).
In the same case, Deane J commented that the definition of attempting to pervert the course of justice as ‘the doing of some act which has a tendency and is intended to pervert the administration of public justice’ may be too restrictive in that it might not cover the situation where what is involved is an attempt to do an act having the requisite tendency rather than the actual doing of the act. Moreover, his Honour said the definition was essentially unhelpful in explaining what satisfies the strong language in which the central notion of the offence is expressed, namely, ‘to pervert’ the course of justice. According to Deane J, the most that can usefully be said is that the notion of ‘pervert(ing)’ the course of justice involves no more than an adverse interference with the proper administration of justice.[25]
[25]Meissner, 148 (Deane J).
It is beyond doubt that the offence of attempting to pervert the course of justice can be committed by engaging in the relevant conduct prior to the institution of judicial proceedings. As stated by Mason CJ in R v Rogerson:[26]
That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency. [27]
[26](1992) 174 CLR 268; [1992] HCA 25 (‘Rogerson’).
[27]Rogerson, 277 (Mason CJ). See also at 283 (Brennan and Toohey JJ), 293–4 (Deane J), 304–5 (McHugh J).
The attempted frustration of a police investigation then, if intended to hinder the ability of the police to invoke the jurisdiction of a court or establish the truth of acts presented to a court in a possible future proceeding, can amount to an attempt to pervert the course of justice.
The question is whether the conduct in question objectively has the tendency to do so.
Alessawi’s argument that he had not carried out an act having a tendency to pervert the course of justice as he had not completed and submitted the s 60 notice imports notions of timing and practicality in an attempt to distinguish it from an argument that it was impossible that the course of justice would in fact have been perverted. It was put that no matter how many prior acts he completed (accompanied with the necessary intention), Alessawi could not be guilty unless there was a first act in which the objective tendency crystallised. That is, there is a qualitative difference between an act which has a genuine prospect of perverting the course of justice and one in which that prospect is merely fanciful. In his case it was put that the first act capable of having the requisite tendency could only have occurred when he actually submitted the completed form nominating DN as the driver.
The concept of an accused having ‘done enough for there to be a risk’[28] is not a controversial proposition.
[28]R v Murray (1982) 75 Cr. App. R. 58, 59 (Lord Lane CJ) (‘Murray’).
In Healy v The Queen[29] for example, a man named Connell had been charged with conspiracy to defraud arising from a ‘fixed’ horse race. The appellant met with Connell and agreed to an elaborate plan in which he would, for money, make subsequent contact with Connell, during which he would be recorded by Connell pretending to be a police officer who could have a horse trainer killed and a jockey made to ‘disappear’. The appellant then did so. When interviewed by police the appellant said that this was to allow Connell to use the recorded material as a ‘scare tactic’ so that neither the trainer nor jockey would incriminate him in the alleged conspiracy to defraud. Connell informed police of the arrangement with the appellant. The Court rejected the appellant’s argument that his admitted conduct did not have a tendency to pervert the course of justice because there was no risk that Connell was going to use the material in the way the appellant understood. Malcom CJ said that ‘the first step taken’[30] by an accused which had the requisite tendency constituted the offence (as long as it was accompanied by an intention to pervert the course of justice). The Chief Justice continued:
In this case the substantive offence was complete as soon as an act having the necessary tendency was done with the intention of perverting the course of justice. The tendency of an act or course of conduct to pervert the course of justice will have been proved by showing that there was a risk, without further action by the appellant, that what he had said or done might lead to an injustice in the sense that there was a real possibility that what he had said or done might lead to injustice.[31]
[29](1995) 15 WAR 104 (‘Healy’).
[30]Healy, 106.
[31]Healy, 107, citing Murray and Foord v Widdett (1985) 60 ALR 269, 274–278, 280–281 (Sheppard J).
The notion that an accused’s conduct must ‘without more’ or ‘without further action’ imperil the course of justice is not the equivalent of it being necessary that there was nothing more that the accused could have done in the particular circumstances of the case. Rather, the risk to the course of justice must be adjudicated at a level of greater abstraction. The risk is of ‘adverse interference’ to justice in the ordinary course. Three Victorian cases illustrate the point.
In R v Allan[32] the applicant was a police officer who had stopped a motorist for driving in an unsafe manner. When the administration of a breath test proved difficult, the applicant struck the motorist with a baton. The applicant later prepared a brief of evidence falsely alleging that the motorist had both assaulted him and another police officer and resisted arrest. The false allegations were designed to explain the motorist’s injuries. The brief included a signed statement by the applicant. The brief was not authorised by the applicant’s superior. Charges against the motorist were never laid. The attempt to pervert the course of justice charge was particularised to be the preparation of the brief. The Court held that the preparation of the brief gave rise to ‘a risk or possibility that injustice would result’.[33] While there may have been further steps to be taken before the contemplated prosecution reached the stage of in-court proceedings, there was no requirement that there be ‘nothing more to be done’ before the act — in that case the preparation of the brief — could have the tendency to pervert the course of justice.[34]
[32][1995] 2 VR 468 (‘Allan’).
[33]Allan, 471 (Hayne JA, Crockett and Southwell AJJA).
[34]Allan, 472 (Hayne JA, Crockett and Southwell AJJA).
In Tognolini v The Queen[35] the applicant lived in a house with significant security arrangements. It was frequented by girls in their mid-teens who were supplied with drugs by him. He had been accused of maintaining a sexual relationship with a child (KB) under 16. The applicant drove two of the other girls who frequented his house to a solicitor’s office and told them to make affidavits deposing that KB (and other girls) who had made allegations against him were liars. He remained in the waiting room whilst they did so. He later gave them money and drugs. The Court rejected his argument that his conduct did not have a tendency to pervert the course of justice because, inter alia, there was no evidence that he contemplated or intended that the affidavits would be given to the police.
[35](2011) 32 VR 104; [2011] VSCA 113.
In R v Aydin[36] the applicant had made threats to a police officer for the purpose of improperly influencing the prosecution of a third party in which that officer was the informant. The threats were designed to induce the informant not to oppose an application for bail and to reduce the number of charges against the third party. The applicant argued that his acts did not have the tendency to pervert the course of justice because the investigation was a controlled operation and the informant could not have been so induced. Callaway JA[37] rejected that argument, stating:
Even if it was a controlled operation and [the informant] would not in fact be induced not to oppose the granting of bail to Zayat or to reduce the number of charges against him, it was sufficient that the acts charged had a tendency to pervert the course of public justice. That does not mean a practical tendency in the circumstances of the particular case. Otherwise a person could not be convicted of attempting to pervert the course of justice if he or she attempted to corrupt an uncorruptible judicial officer.
…
In my opinion, all that is necessary is a tendency to pervert the course of public justice in an abstract or theoretical sense. Practical impossibility is irrelevant if such a tendency is present. It would not be present if, for example, a person attempted to pervert the course of justice by sticking pins into a wax model of the prosecutor; but it would be present, again by way of example, if the accused wrote an intimidating letter in Portuguese to a judicial officer whom the accused wrongly believed to understand that language.[38]
[36](2005) 11 VR 544; [2005] VSCA 85 (‘Aydin’).
[37]With whom Buchannan and Eames JJA agreed.
[38]Aydin, [6]–[7]. See also Smith v The Queen (2013) 39 VR 336, [46]–[48] (Priest JA, Harper JA agreeing at [1] and Coghlan JA agreeing at [62]); [2013] VSCA 112.
Turning to the instant case, it is clear that Alessawi knew he had been driving the Mercedes involved in the police chase on 9 September 2022. Following the receipt of the s 60 notice (and its covering letter) Alessawi made statements to DN that DN could repay the favour owed by accepting a false nomination as the driver and repeating the information Alessawi provided if interviewed by police. This demonstrated that Alessawi contemplated ‘imminent, probable or even possible’ judicial proceedings against him.
While Alessawi disavows any reliance on the proposition that it was impossible in fact for the course of justice to be perverted in this case, his focus on notions of timing and practicality amounts, in substance, to reliance on the impossibility proposition. The improbability of DN ever being questioned about and/or charged with the driving offences because Alessawi had not submitted the s 60 notice (or for any other reason) is immaterial. Arguing that justice was not imperilled because such an event was improbable is indistinguishable from an argument that it was impossible for the course of justice to be perverted.
The question remains whether the admitted conduct of Alessawi had the tendency to pervert the course of justice in an abstract or theoretical sense.
It would have been sufficient had Alessawi merely asked DN to agree to the false nomination. As Dawson J said in Meisenner:
… any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper.[39]
[39]Meissner, 158, citing R v Toney [1993] 1 WLR 364, 370.
But Alessawi did more. Filling out a legal notice falsely nominating a person as the driver of a vehicle involved in an offence, demanding that another person falsely nominate him or herself as the driver and providing information so that such person can falsely participate in a police interview as the driver are all acts which have the tendency to pervert the course of justice. Separately, and together, they risk frustrating or deflecting possible court proceedings, as well as the ability of the police to properly establish the factual basis for such proceedings.
It follows that the proposed ground of appeal against conviction must fail.

Alessawi’s application for leave to appeal against sentence

Alessawi’s contentions

The gravamen of Alessawi’s contentions is that it was not open to the sentencing judge to impose the aggregate six year sentence for the shooting offending. Twin arguments are made to support that submission.
First, the judge did not find that use of the firearms was part of the original plan. It follows that the objective gravity of the incident was lowered by the fact that the firearms were used in response to being fired upon. This, it was said, meaningfully distinguishes this case from any other sentence imposed for the offence of discharging a firearm at premises with reckless disregard for safety. When the sentence for that charge imposed here is compared with those other cases, it is obviously at the higher end of the range, notwithstanding that Alessawi’s offending was of lower nature and lesser seriousness.
Second, Alessawi had a ‘powerful array’ of matters in mitigation available to him. These were his youth, early guilty plea, remorse, learning difficulties, low intellectual functioning, exposure to childhood trauma and subsequent mental health issues and drug use. These matters are argued to render him vulnerable in an adult custodial setting and make his experience of that setting hard. The applicant was also found to have good prospects of rehabilitation. It is argued that the combination of these matters was not properly reflected in the sentence imposed.

Respondent’s contentions

The respondent contends that the sentence imposed for the shooting offending was justified by its seriousness. The behaviour encompassed a number of distinct offences. Both the number of shots fired and the nature of the weapon used were particularly serious features of it. Further, while substantial concurrency might be expected between the firearms offences, some measure of cumulation between those offences and the theft offence would also be expected. Also, the aggregate nature of the sentence limits the utility of comparison with other sentences imposed for the offence of discharging a firearm at premises with reckless disregard for safety.
It is further submitted that the range of matters available to Alessawi in mitigation of penalty were given appropriate weight by the judge.
The respondent further contends that as the shooting offending was only part of the offending before the court, the orders for cumulation and the non-parole period fixed were also within range and obviously considered the additional serious criminality involved in the other, separate offending.

Assessment of gravity and moral culpability by sentencing judge

In her careful reasons for sentence[40] the judge described the shooting offending as ‘organised, indeed contracted or commissioned, offending’ which was ‘extremely serious’. Each applicant was well prepared. That they had met with Al Harbiah days in advance to view and familiarise themselves with the weapons indicated their active involvement in the planning. So too did their decision to call off the commissioned offending the day before it actually occurred. The judge noted both weapons to be high calibre and powerful. The applicants and Al Harbiah used encrypted communications. From a communication received by Snowball, the applicants knew at the time of their attendance that there was a family inside the targeted address. They were in a stolen vehicle with a signal jammer. They had balaclavas and gloves for disguise. The weapons were loaded. They had additional ammunition. The judge said that it was sophisticated offending with a high degree of planning and found that each applicant was prepared to act on the instructions given.
[40]DPP v Alessawi & Anor [2023] VCC 1835 (‘Reasons’).
The judge further found that the events that unfolded indicated a willingness on the part of each applicant to use the loaded high powered guns. While the use of the guns was a response to being shot at, the decision to do so was ‘an inherently dangerous act’. The judge noted the number of cartridge cases found at the scene along with damage to property in the vicinity. The residents of the area were placed in fear and the risk to others from the calibre and power of the weapons was ‘enormous’. The judge said that this elevated the seriousness of the offending. The sentencing principle of general deterrence took ‘some priority’, given the risk to public safety.
The judge also found that Alessawi’s willingness to participate in the shooting offending after the home invasion offending only weeks before increased his moral culpability and elevated the need for community protection.
Finally the judge found that the whole of Alessawi’s offending charged across the three indictments required considerable weight to be given to the principles of general deterrence, specific deterrence, denunciation and just punishment.
The judge recognised the commonality between charges 2, 3, 4 and 5 of the shooting offending and that care was needed to avoid double punishment. She accepted the Crown submission that there should substantial if not complete concurrency of the sentences to be imposed.
Ultimately the judge found that the offending, particularly the shooting offending, was so serious that the four year restriction imposed by s 32(3) of the Sentencing Act 1991 rendered a Youth Justice Centre order insufficient to accommodate the competing sentencing considerations. The judge did find that there was ‘considerable merit’ in an extended period of supported transition in each applicant’s return to the community in order to foster and support his rehabilitation. The judge also recommended that the Adult Parole Board give consideration to transferring the applicants to a Youth Justice Centre under s 471 of the Children, Youth and Families Act 2005.

Consideration of mitigating factors by sentencing judge

The judge accepted that Alessawi pleaded guilty at an early stage. That plea was accorded additional utilitarian value as it was made when the court was still responding to the backlog created by the pandemic. It was also accepted that Alessawi had made ‘broad expressions of remorse’.
The judge summarised Alessawi’s personal circumstances as follows.
Alessawi was 18 years of age at the time of the offending and 19 years at the time of sentence. His parents separately fled Iraq to come to Australia; his mother in 1990 and his father in 2003. He was born and raised in Melbourne, the middle child of a sibship of three boys. His mother was the primary care giver. His father was a taxi driver and store attendant. When Alessawi was about 10 years of age the family went to Iraq for three months before returning to Australia due to safety concerns. Alessawi reports that during his time in Iraq he was exposed to active combat and witnessed traumatic events. This included seeing dead bodies in the streets, experiencing gunfire and having a friend die in his arms after having been caught in crossfire. Upon returning to Australia the applicant experienced nightmares, flashbacks, problems sleeping, fear and startle responses. He began gravitating towards negative peer influences and using cannabis — and later other drugs — to cope with his trauma. Alessawi has used cannabis since about the age of 13 years and Lyrica since about the age of 16 years. At school the applicant had learning difficulties and would often truant. He was assessed for but did not meet the criteria for programs for children with an intellectual disability. His IQ score of 73 put him in the ‘very low’ range. He completed Year 12. Apart from three days as a water proofer Alessawi has never been in paid employment.
The judge referred to a report and addendum report prepared about Alessawi by Dr Mathew Staios, a clinical neurologist. Dr Staios assessed Alessawi’s intellect to fall within the borderline range and found him to be vulnerable to the influence of negative peers in the context of limited education. The resultant poor decision making is amplified by Alessawi’s drug use. Dr Staios did not diagnose Alessawi as having post-traumatic stress disorder (‘PTSD’) as a result of his experience in Iraq but said that he displays residual symptoms. The judge noted that neither report of Dr Staios referred to any explanation given by Alessawi for his offending or any remorse for it. While finding some deficiencies in the reports, the judge accepted Dr Staios’ findings as to Alessawi’s intellectual functioning and the role it plays in his decision making.
As to Alessawi’s prospects for rehabilitation, the judge noted that he has no criminal history and is well supported by family. He has completed a number of courses in custody, returned three clean urine screens and attended six counselling sessions. The counsellors involved assessed him as meeting the criteria for chronic substance use disorder, mild anxiety and acute stress disorder. Alessawi had expressed remorse for his offending to them. The judge noted that Alessawi’s efforts were to be commended, but that they were very much in their infancy. Despite the seriousness of, particularly, the shooting incident, the judge found Alessawi had a realistic prospect of rehabilitation.
The judge accepted that there should be some reduction of Alessawi’s moral culpability because of his very young age at the time of the offending. Youth could not be ‘ignored or extinguished’. Nonetheless the judge said that because of the seriousness of the overall offending there should be some moderate reduction in the weight attached to youth in the sentencing exercise.

Consideration

Alessawi’s argument focuses primarily on the objective gravity of charge 5 of the shooting offending.
Recently the following indicia were described as a ‘useful tool for analysis’[41] for assessing the objective seriousness of the offence of discharging a firearm at premises with reckless disregard for safety:
[41]Haddara v The King [2024] VSCA 269, [31] (Macaulay and Kaye JJA) (‘Haddara’).
(a)The degree of premeditation and planning involved in the shooting, including the use of stolen or hired vehicles, the sourcing of a weapon and a ‘stealth’ approach to the target.
(b)The nature of the firearm used. Use of a semi-automatic or automatic high powered firearm will be more serious than a lower calibre weapon.
(c)The location of the target. If a house or vehicle is in a built-up area the risk to safety increases.
(d)Relatedly, the time of day of the shooting. The discharge of a firearm into a house in the early hours of the morning is a risk to sleeping occupants. The discharge of a firearm in broad daylight in a busy area is an equally serious risk.
(e)Knowledge by the offender that the targeted premises or vehicle is in fact occupied.
(f)The motivation for the shooting.
(g)The aim of the firearm and the degree to which bullets or pellets penetrate the target.
(h)The role played by the offender in the shooting.
(i)Whether the risk eventuated by any person being injured.[42]
[42]Ibid.
Alessawi’s argument that the seriousness of his offending was lower because he and Snowball fired weapons in response to gunfire misapprehends the import of these considerations.
While the judge could not find to the criminal standard that use of the weapons was part of the original plan, both offenders had knowledge of how the gun actions worked and attended a nominated address with loaded, high calibre guns and additional ammunition. This demonstrates that the guns were not merely for show. That is, it was well within the contemplation of this planned offending that firearms might be discharged. Further, Alessawi and Snowball were interrupted en route to a targeted address in which they knew people were present. They had arrived in the vicinity in a stolen car in the early hours of the morning. When fired upon themselves, they fired large numbers of rounds in return. The damage done to five fences, one vehicle and the walls of two houses illustrates the indiscriminate nature of the fire fight, which took place in a suburban setting. That one bullet travelled over 950 metres and passed through two walls of a house on another street need only be stated for the seriousness of the offending to be understood.
Charge 5 of the shooting offending was an extremely serious example of a very serious offence. The judge was correct to characterise it as sophisticated and organised commissioned offending. The judge was similarly correct to consider that Alessawi’s moral culpability for the shooting offending was heightened by it occurring in the month after the home invasion offending. The emphasis on the sentencing principles of general deterrence, protection of the community and denunciation was warranted.
As the Court said in Haddara:
… it is important that sentences, in cases such as this, be sufficient to constitute a clear message that any person, who is minded to engage in the form of dangerous conduct committed by the applicant, will, on apprehension, lose his or her right to be at liberty in society for a substantial period of time. The advantage they seek to obtain, acting unlawfully, will, so far as the sentencing system can justly achieve, be met with a corresponding disadvantage by way of penalty. Further, it is necessary that the sentence imposed, in such cases, unequivocally denounce the kind of conduct engaged in by the applicant as being entirely alien to the basic principle of a peaceful, law abiding community.[43]
[43]Ibid, [40].
In arriving at the sentence imposed, it is clear that the judge gave weight to each of the factors available to Alessawi in mitigation of penalty as well as his ‘reasonable’ prospects for rehabilitation. It is not at all evident in the six year sentence imposed that any such factor was accorded insufficient weight.
It is to be further remembered that the sentence under consideration was an aggregate sentence on five charges. As the Reasons make plain, the judge was careful to avoid double punishment and accepted the prosecution submission that there should be concurrency between the firearms offences. That said, it must be expected that there would be a degree of cumulation between those offences and the theft.
Finally, as submitted by the respondent, the shooting offending was only part of the offending before the court. Alessawi had been involved in other, separate serious offending. In those circumstances, the orders for cumulation and the non-parole period fixed were well within the range available to the sentencing judge in the sound discharge of her sentencing discretion.
The proposed ground of appeal against sentence must fail.

Snowball’s application for leave to appeal against sentence

It is convenient to first detail the circumstances in which the ‘fresh’ evidence arose.

Neuropsychological report as fresh or new evidence

At the plea hearing Snowball relied upon the evidence of Mr Ian Mackinnon, a consultant psychologist. Mr Mackinnon had prepared a report dated 19 July 2023.
The report said Snowball’s functional intelligence fell at the lower end of the normal adult range. It said that at the time of the offending (in May and June 2022) Snowball was suffering from complex PTSD and substance use disorder. The complex PTSD related to a near death drowning incident when he was aged six years, together with multiple incidents of emotional and physical abuse in his formative years. The report said that the two disorders made significant contributions to the offending. They impacted Snowball’s ability to apply sound judgment. They increased his impulsivity and propensity for reckless behaviour. They reduced his ability to apply consequential thinking. They degraded his ability to maintain awareness of his personal and community responsibilities. Mr Mackinnon gave that opinion notwithstanding that during the assessment process Snowball did not explain the circumstances of the offending to him. Mr Mackinnon also said that Snowball did express remorse. The report further said that as at July 2023, Snowball’s complex PTSD was of a mild level and his substance use disorder had resiled. Mr Mackinnon said that Snowball would probably cope well enough with the prison environment. He recommended a neuropsychological assessment.
No neuropsychological assessment was then obtained.
The prosecution required Mr Mackinnon for cross-examination.
In cross-examination Mr Mackinnon said that when asked why he became involved in the offending Snowball declined to answer. He accepted that the absence of explanation made it more difficult to establish a link between Snowball’s disorders and the offending. In answer to a question asked by the judge Mr Mackinnon said that Snowball was drug affected at the time of the offending. He accepted that there was no way to ‘unscramble the egg’ in terms of whether the complex PTSD or intoxication operated on Snowball’s decision to offend.
The following exchange then occurred between Snowball’s counsel and the judge.
CounselCan I say, now, given the evidence that’s been given by Mr Mackinnon, we’ll step away from any Verdins type submission.
…
Her Honour Stepping away from all Verdins limbs?
CounselCorrect, Your Honour, yes. So clearly enough, his moral culpability or the submission that I’ll ultimately make in terms of moral culpability is more to do with his youth and to do with his psychological profile, in the broad sense, not specifically relied on in terms of a Verdins consideration.
Shortly thereafter counsel said
now we’ve heard what Mr MacKinnon says about his intellectual function. I can confirm it is difficult taking instructions from him at times. He’s not a particularly good history giver and there is indicia there of a problem, a cognitive problem, obviously enough. I’m not going to give expert evidence about that from the Bar table.
In her Reasons the judge referred to the evidence of Mr Mackinnon. She said that she understood his recommendation to obtain a neuropsychological report was not pursued. She recorded that Snowball did not pursue any reliance on Verdins principles. The judge said that Snowball’s refusal to provide information to Mr Mackinnon about the offending made it more difficult for him to assess the contribution that any PTSD or substance use disorder had on the offending behaviour in May and June 2020.
The judge further noted that while Snowball placed reliance on the Bugmy[44] principles, the relevance and weight of those principles must be assessed by reference to the nature and circumstances of the offence, the particular disadvantage suffered and whether the effects of the disadvantage were in any way explanatory for the offending.[45] The judge noted the offending to be ‘not unsophisticated’, occurring on two separate occasions and conducted in a deliberate fashion. It was accepted that Snowball was operating under direction and his functional intelligence is at the lower end of the normal adult range. The judge also accepted Snowball’s early childhood experiences were traumatic and played a role in shaping the person he became. Accordingly, the judge gave some limited reduction to his moral culpability.
[44]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
[45]With reference to Sabbatucci v The Queen [2021] VSCA 340.
Turning to Snowball’s prospects for rehabilitation, the judge noted he has no criminal history and was supported by his mother and two siblings at the court hearings. The judge characterised the 479 days he had spent in custody as having already played a role as a sanction and deterrent. Snowball had completed a number of courses, attended four alcohol and drugs counselling sessions and returned three negative urine screens. The judge referred to a reference tendered by Snowball’s mother, which detailed her own circumstances and the impact of them on him. The judge termed the letter of apology to the court written by Snowball a ‘well thought out’ document which showed insight into the negative role drugs had played in his life.
One month after he had been sentenced Snowball was assessed by Dr Laura Anderson, a clinical neuropsychologist. An affidavit of Snowball’s solicitor, Natasha Vermezovic, sworn the day before the hearing of the application for leave to appeal, deposed as to the circumstances in which that assessment occurred. Ms Vermezovic was not Snowball’s solicitor at the time of the plea. She said that she contacted the solicitor then representing Snowball to ask why no neuropsychological report was obtained. That solicitor said ‘[a] decision was made by the client to have the matters finalised’. The affidavit further states
I have conferenced with the Appellant [sic] on numerous occasions during the last 12 months. I had ‘Jabber’ conferences with the Appellant on 31 October 2024 and, very recently, on 13 November 2024. Those conferences have led me to the view that the Appellant has considerable difficulty understanding the legal process and giving clear instructions.
Dr Anderson produced a report dated 11 December 2023. The report states that it was obtained for the ‘purposes of understanding Mr Snowball’s current level of cognitive functioning and how this may relate to his [offending]’.
Dr Anderson stated that Snowball likely sustained neurological damage from a near drowning when he was three years of age. She ‘strongly hypothesised’ that he suffered a hypoxic episode as a result of significantly reduced oxygen intake for a prolonged period of time. She said that this episode did not contribute to his complex PTSD as he had no recollection of it. Rather, the complex PTSD arose from his traumatic childhood experiences. Dr Anderson said
… my clinical opinion is that in addition to the mild to moderate deterioration in Mr Snowball’s global cognitive functioning attributable to his early childhood hypoxic event, he also demonstrates the cognitive sequalae associated with C-PTSD, which I opine impedes the efficiency of his already reduced cognitive functioning in a chronic sense.
Dr Anderson said that Snowball ‘demonstrates a mild to moderate level of global cognitive impairment’. She further said that Snowball’s current cognitive profile and identified impairments are consistent with a diagnosis of a ‘Major Neurocognitive Disorder Due to Traumatic Brain Injury’. It is a permanent, lifelong disability.
Dr Anderson also said that his acquired brain injury and complex PTSD were features of Snowball’s presentation at the time of his offending. As to their role in that offending she said:
In my clinical opinion Mr Snowball’s overall clinical presentation, including his current level of cognitive functioning, is relevant to consider as a predisposing and precipitating factor to his offending behaviour. Whilst my view is that Mr Snowball’s cognitive functioning does not preclude him from having adequate capacity to understand the wrongfulness of his actions, my view is that the combined impact of Mr Snowball’s reduced cognitive functioning and the psychological impact of his early childhood trauma experiences are relevant to consider in the context of his offending behaviour. My clinical opinion is that Mr Snowball’s reduced cognitive functioning and his psychological response to prolonged childhood trauma contributed to the emergence of his challenging behaviours in early adolescence. Over time, this behavioural manifestation has developed into seemingly antisocial behaviours. Furthermore, it is my view that Mr Snowball’s overall level of reduced cognitive functioning, combined with the prominent psychological features of his clinical presentation, increase his susceptibility to the influence of his peers. That is to say, individuals with reduced overall general intelligence tend to be more reliant upon others for guidance with regard to critical thinking, problem solving and general behavioural conventions and cues. Additionally, Mr Snowball’s early childhood experiences and likely insecure attachment schemas that have developed as a result of these experiences, are likely to contribute to him seeking out a sense of connection and belonging within peer groups in lieu of the psychological safety he did not experience as a child. As such, my hypothesis is that the combination of the prominent features of Mr Snowball’s current cognitive profile combined with his psychological profile contributed to him seeking acceptance, belonging and a sense of psychological safety through his peer relationships, which in turn makes him incredibly vulnerable to engage in behaviours demonstrated by his peers as a means of seeking and maintaining acceptance from them. Following from this, Mr Snowball acknowledged that he was ‘off [his head] on drugs’ throughout the period of his offending. Acute drug intoxication will inevitably have further reduced Mr Snowball’s efficiency to engage in higher order cognitive thinking skills, such as critical thinking and problem-solving, once again increasing his overall vulnerability to rely upon his peers for guidance.
Finally, Dr Anderson said that cognitively impaired individuals ‘tend to thrive’ in prison environments due to their highly structured institutional nature. She said that while in custody Snowball will have limited opportunity to ‘attempt to develop independent living skills’ and may be exposed to negative peer influence which presented a ‘significant detrimental impact’ weighing more heavily on him than a neurotypical peer. She also said that she did not have significant acute concern for Snowball’s mental health in custody but did express concern that incarceration delays his opportunity to ‘access appropriate psychological intervention’.

Snowball’s contentions

Snowball argues that the report of Dr Anderson is ‘fresh’ evidence because it concerns a medical or mental condition present at the time of sentence but not fully understood or diagnosed.[46]
[46]Snowball referred to R v WEF [1998] 2 VR 385 (‘WEF’) citing R v Boston [1996] 2 VR 97 and Al Wahame v The Queen [2018] VSCA 4.

Snowball contends that Dr Anderson’s opinion demonstrates that due to his acquired brain injury, which caused mild to moderate global cognitive impairment, he should have had the benefit of Verdins limbs 1, 2, 3, 5 and 6 in the sentencing exercise. In particular, it is argued that had the first three limbs been considered, the aggregate sentence imposed for the shooting offending would have been lower, and had limbs 5 and 6 been considered, a lower non-parole period was likely.
At the hearing of the application for leave to appeal, Snowball’s counsel was pressed to identify the realistic connection between the diagnosis of a brain injury resulting in a life-long mild to moderate reduction in overall general intelligence and the offending behaviour. Snowball relied upon Muldrock v The Queen[47] to submit that even a mild intellectual disability is still a significant sentencing factor. It was put that the diagnosis makes him vulnerable to engage in behaviours that others might not, including offending at the behest of another. Ultimately it was put that if the report of Dr Anderson had been before the sentencing judge the sentence would have been different because the report ‘joined the dots’ between a hypoxic event, Snowball’s general functioning and the disability from which he suffers. In particular, it was argued that judge did not moderate general deterrence.

Respondent’s contentions

[47](2011) 244 CLR 120; [2011] HCA 39.

The respondent disputes the characterisation of Dr Anderson’s report as ‘fresh’ evidence. It is accepted that the distinction between ‘fresh’ and ‘new’ evidence may be less significant in applications for leave to appeal against sentence and, further, that ‘new’ evidence may be accepted by this Court where necessary to avoid a miscarriage of justice.[48] Nonetheless the respondent submits that the power should not be exercised lightly[49] and not in this case. It is argued that Dr Anderson’s report fails to demonstrate the true significance of facts in existence at the time of the sentence or that a different sentence should be substituted to avoid a miscarriage of justice.
[48]See, eg, Nicholson v The Queen [2018] VSCA 146, [45] (Whelan and McLeish JJA) (‘Nicholson’) and Packard v The Queen (2022) 300 A Crim R 55, [13]; [2022] VSCA 128 (Priest JA) (‘Packard’), citing Betts v The Queen (2016) 258 CLR 420, 425–426 [10]; [2016] HCA 25 (French CJ, Kiefel, Bell, Gageler and Gordon JJ) (‘Betts’).
[49]Nicholson, [45] (Whelan and McLeish JJA).
The respondent submits that the judge took into account aspects of Mr Mackinnon’s report. This included the opinion that Snowball was acting under direction in circumstances where his functional intelligence was at the lower end of the normal adult range. The judge also noted Mr Mackinnon’s concern for Snowball coming under the influence of serious older criminals in adult custody.
As he was with Mr Mackinnon, Snowball was reticent to provide details of his offending to Dr Anderson. The respondent submits that it follows that Dr Anderson’s opinion as to the link between his cognitive deficits and the offending is limited. She cannot provide a true understanding of the causal link and gives an opinion only in generalities. Further, the report does not reveal the true significance of the cognitive impairment in a context complicated by Snowball’s drug use. That is, it does not ‘unscramble the egg’. Finally, Dr Anderson’s opinions as to the effect of imprisonment on Snowball do not throw new light on the issue. He is ‘likely to thrive’ and a generalised comment that he will not be able to have psychological treatment falls short of evidence establishing a serious risk that imprisonment will have a significant adverse effect on him.

Consideration

Dr Anderson’s report is not ‘fresh’ evidence that could not have been obtained at the time of the plea by reasonable diligence.[50] Nonetheless it may be accepted that this Court has drawn ‘no practical distinction’[51] between fresh and new evidence for the purposes of appeals against sentence. To be accepted the new evidence must demonstrate ‘the true significance of facts in existence at the time of the sentence’.[52] The sentencing discretion will be reopened if the Court concludes that the new evidence ‘throws significant new light on the pre-existing facts’.[53] The question becomes whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[54]
[50]Betts, 426 [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ).
[51]Packard, [13] (Priest JA).
[52]R v Nguyen [2006] VSCA 184, [36(ii)] (Redlich JA, Maxwell P agreeing at [1] and Neave JA agreeing at [2]) (‘Nguyen’), citing R v Smith (1987) 27 A Crim R 315; R v Eliasen (1991) 53 A Crim R 391, 394 (Crocket J, McGarvie and Phillips JJ agreeing at 397); R v Rostom [1996] 2 VR 97, 99 (Charles JA, Callaway JA and Vincent AJA agreeing at 105); WEF, 389 (Winneke P, Charles JA and Hampel AJA agreeing at 390); R v Holland (2002) 134 A Crim R 451, [2] (Batt JA), [35] (O’Bryan AJA, Eames JA agreeing at [5]); [2002] VSCA 118; R v McLachlan (2004) 8 VR 403, [10] (Chernov JA, Winneke P agreeing at [24] and Vincent JA agreeing at [25]); [2004] VSCA 87; R v SH [2006] VSCA 83, [9] (Warren CJ, Charles and Chernov JJA).
[53]Nguyen, [37].
[54]Nguyen, [37].
In DPP v O’Neill[55] this Court said:
[I]t is inappropriate to apply a mechanistic approach that, because an offender is said to suffer from impaired mental functioning, the offender thus attracts the Verdins principles. Such an approach is overly simplistic, and erroneous. As this Court emphasised in Verdins and many later cases, careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.[56]
[55](2015) 47 VR 395; [2015] VSCA 325 (‘O’Neill’).
[56]O’Neill, [68] (Warren CJ, Redlich and Kaye JJA) (citation omitted).
The diagnosis of Dr Anderson does not ‘throw significant new light’ on the facts known to the sentencing judge at the time of sentence. While Dr Anderson gives a new diagnosis relevant to the cause of Snowball’s low intellectual functioning, her report demonstrates no new impact of that diagnostic label on the matters known to the judge. When asked to identify the passages in Dr Anderson’s report that illustrate a realistic connection between his condition and the offending, Snowball’s counsel could not. He described Dr Anderson’s diagnosis as revealing vulnerability and low intellectual functioning.
So much was already before the judge. On the basis of Mr MacKinnon’s evidence, the judge accepted that Snowball had complex PTSD, that his intellectual functioning was at the lower end and that he was vulnerable to the influence of others. The judge further accepted and made reference to his traumatic and difficult childhood experiences, resulting in reduction of his moral culpability.
While it may be accepted that the judge did not moderate general deterrence on the basis of Mr Mackinnon’s evidence, had the evidence of Dr Anderson been before the Court, the position would not have been different. As this Court said in O’Neill:
Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender’s condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[57]
[57]O’Neill, [59] (Warren CJ, Redlich and Kaye JJA).
Dr Anderson’s report expresses conclusions in generalities only. That is partly explained by the fact that it suffers the same two flaws as the report and evidence of Mr Mackinnon. First, Snowball declined to give information to either expert as to the circumstances of the offending. Second, neither could ‘unscramble the egg’ of the impact of Snowball’s drug use on his decision to offend as opposed to his complex PTSD and/or low intellectual functioning. There is no evidential foundation in Dr Anderson’s report to support the moderation of general deterrence.
Turning to limbs 5 and 6 of Verdins, again Dr Anderson’s report does not assist the applicant. Rather than demonstrating that the sentence of imprisonment will weigh more heavily on Snowball than it would on a person without his acquired brain injury and complex PTSD, Dr Anderson’s evidence is that he is likely to thrive in the custodial environment and she has no ‘significant acute’ concern for Snowball’s mental health in custody. Her only concern was that incarceration would delay his opportunity to ‘access appropriate psychological intervention’. That falls well short of being a significant adverse effect on Snowball’s mental health.
There is nothing in Dr Anderson’s report that demonstrates the true significance of facts in existence at the time of the sentence. Notwithstanding a different diagnostic label, her general conclusions are the same as those of Mr MacKinnon. Those conclusions were accepted and acted upon by the judge. No miscarriage of justice arises. No different sentence should be imposed.
The Court will not accept the new evidence. Consequently, the application for leave to appeal against sentence must be refused.
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[2025] VSCA 23

3 March 2025