Armstrong v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0219

TYSON ARMSTRONG	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, BOYCE and ORR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2024
DATE OF JUDGMENT:	17 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 316
JUDGMENT APPEALED FROM:	DPP v Armstrong [2023] VSC 374 (Tinney J)

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CRIMINAL LAW – Appeal – Sentence – Manslaughter – Guilty plea – Sentence of 10 years’ imprisonment with non-parole period of 8 years – Unprovoked attack on stranger – Alcohol-fuelled violence – Applicant had history of violent offending while intoxicated – Community correction orders for prior offending not complied with – Whether non-parole period reasonably open to sentencing judge – Judge entitled to place limited weight on prospects of rehabilitation – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Judge took into account that offending ‘worryingly prevalent’ – Whether judge impermissibly ‘double counted’ prevalence by treating as independent factor and as factor aggravating other sentencing considerations – Leave to appeal refused.

Stefani v The Queen [2024] VSCA 29, considered; Cummins (a pseudonym) v The Queen (2013) 40 VR 319, referred to.

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Counsel
Applicant:		Ms GF Connelly SC with Ms A Renieris
Respondent:		Mr BF Kissane KC with Mr L McAuliffe
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
BOYCE JA
ORR JA:

On 1 December 2022, the applicant pleaded guilty before a judge of the Supreme Court to one charge of manslaughter causing the death of Luke Francis. Following a plea in mitigation, on 30 June 2023 the judge sentenced him to 10 years’ imprisonment with a non-parole period of 8 years.[1]
[1]DPP v Armstrong [2023] VSC 374 (‘Sentencing Remarks’).

Factual background

On 26 March 2022, from around midday, the applicant attended a barbeque festival with four members of his family including his cousin Joshua Armstrong. Then aged 26, the applicant had lunch with his family and consumed about three cans of full-strength beer. At about 4:00 pm, the group travelled to a bar at Southern Cross Railway Station to watch a game of football. The applicant consumed two or three schooners of beer at that bar.
At about 5:00 pm, the group walked to the Great Southern Hotel and checked in to a hotel room. They got ready to go out, having a beer each while doing so. About two hours later, they left for Crown Casino, where they arrived at 7:58 pm.
For the following three hours, the group gambled, drank alcohol and danced. The applicant consumed about five drinks during that period.
Mr Francis had been at work that day, finishing in the early afternoon. He then travelled to a friend’s house where he met a group that included his girlfriend Tessa Penberthy. The group then travelled to a music festival in the Melbourne CBD. They stayed at the festival for about five hours, leaving around 11:00 pm.
After the festival, Mr Francis and Ms Penberthy walked to Crown Casino. They entered the casino at about 11:48 pm. They stayed until 12:14 am, stopping to play a poker machine for a short time.
The applicant and Mr Francis appear to have first encountered each other at 12:14 am. They were not previously known to each other. They crossed paths while approaching an exit that led to a food court. Mr Francis turned his head in the direction of the applicant and they had a verbal exchange lasting around five seconds.
Following the verbal exchange, Mr Francis gestured with his left hand toward the exit, and walked through the exit doors. The applicant followed closely behind him, walking through the exit and into the food court, followed by Joshua Armstrong and Ms Penberthy. As they were approaching the exit, Ms Penberthy heard the applicant say words to the effect of ‘let’s go’ or ‘let’s go outside’ in a provocative way.[2] As they were walking through the exit, the applicant tapped his cousin on the shoulder and said something in his ear.
[2]The applicant suggested that during this exchange Mr Francis spoke to him in a provocative way that sought a fight. That claim was rejected by the judge: Sentencing Remarks [11].
The applicant then approached Mr Francis from behind. He grabbed Mr Francis around the neck with his left hand and, with his right hand, grabbed either the front of his neck or his chest area. Mr Francis was not looking at the applicant as this happened, instead focusing on putting something in a satchel he was carrying. The applicant pushed Mr Francis towards the railing of a nearby barrier. Ms Penberthy ran towards the two men.
After the applicant pushed Mr Francis onto the railing, Mr Francis turned to face him, as the applicant punched him with a closed fist. Mr Francis and the applicant grappled with each other. Ms Penberthy and Joshua Armstrong attempted to intervene. The applicant threw a second punch at Mr Francis, although it is not clear whether the punch struck him.
As the group moved further away from the railing, grappling with each other, the applicant struck Mr Francis on the jaw with his open right hand, before grabbing him by the neck with the same hand.
Ms Penberthy pushed the applicant away from Mr Francis. While she did so, Mr Francis stumbled and collapsed behind her. As Mr Francis lay on the ground, the applicant walked to him, stood over him, and was heard by a witness to say ‘you can’t handle me, am I too big for you?’.
From the point of the first contact the applicant made with Mr Francis to the point at which Mr Francis collapsed, the incident lasted 13 seconds. At no point during the incident did Mr Francis strike, or attempt to strike, the applicant.
The applicant then walked through the food court and left the casino complex, followed by Joshua Armstrong. While talking to Joshua Armstrong, he referred to the incident with Mr Francis, demonstrating the altercation by putting his left hand on Mr Armstrong’s neck and pretending to punch the left side of his chin. The applicant was arrested by police not long after, at 12:30 am.
At the same time as the applicant was arrested, paramedics arrived to find Mr Francis in cardiac arrest. Ms Penberthy had been tending to him but he had remained unresponsive since his collapse. The paramedics were able to restore Mr Francis’s pulse, but he was not able to breathe without assistance and he did not regain consciousness. He was conveyed to the Alfred Hospital. A computed tomography (CT) scan identified a large volume of subarachnoid haemorrhage. That catastrophic event had followed the rupture of his left internal carotid artery as a result of the attack.
At 6:29 pm on 28 March 2022, treating medical staff determined that there was no intracranial blood flow and pronounced Mr Francis brain dead. He died on 29 March 2022 after his life support was turned off. He was 29 years old.
The applicant wishes to appeal against sentence on the following grounds:
1. The non-parole period is manifestly excessive.
2.The sentencing judge erred in treating prevalence as an aggravating factor.
The applicant requires an extension of time. For the reasons that follow, the proposed application for leave to appeal would be dismissed, and the extension of time should therefore be refused.

Sentencing remarks

The judge described the offending and noted that the applicant had claimed in a consultation with Associate Professor Andrew Carroll, a forensic psychiatrist, that he had been in fear of Mr Francis and had launched a ‘pre-emptive attack’. The judge rejected that claim and found that Mr Francis had done nothing to engender any sense of fear in the applicant.[3]
[3]Sentencing Remarks [13]–[23]
A range of documents before the sentencing judge described the applicant’s personal background. He grew up in Colac and was the eldest of four children. He claimed to have been exposed to violence within his family and the wider community from a young age. He also claimed to have been exposed to drugs and excessive alcohol use. He began using alcohol himself when he was 13 and cannabis when he was 14.[4]
[4]Ibid [38]–[42].
The applicant left school after year 9 and was employed in an abattoir and in fencing work. He had begun staying away from home in half-way houses for troubled teenagers when he was between 13 and 15 years old. When he was 15, his parents separated and divorced. His father left the family and his mother began to use illicit drugs, eventually moving from Colac to Geelong with the applicant’s siblings. These events caused the applicant to feel left behind by his parents.[5]
[5]Ibid [40]–[41], [43]–[45].
The applicant lived for a period of time with his grandmother, who he described as his ‘rock’. Around the same time, his partner, with whom he now has three children, became a key support. Following a period of homelessness, the applicant and his partner secured public housing. The applicant developed an addiction to methylamphetamine. At about the same time, he and his partner had their first child.[6]
[6]Ibid [46]–[47].
The applicant sought a new start away from Colac, and moved with his family to Geelong. He weaned himself from drug use and became sober, and reinvented himself as a family man and hard worker. Two further children followed. Prior to the events of 26 March 2022 he had started working in his own fencing company, and he had been in full-time employment since the birth of his first child.[7]
[7]Ibid [49]–[51].
The judge described the applicant’s ‘significant criminal history for violence’.[8] His counsel had acknowledged that the applicant’s history spoke to ‘a propensity to act violently whilst under the influence of alcohol’.[9] On 29 September 2014 he was convicted of one charge of affray and one charge of assault in company. The convictions arose from an incident involving the applicant and Joshua Armstrong. Both were intoxicated and speaking indecently to staff at a petrol station in Colac. When the victim asked them to be more respectful, they pushed him to the ground and punched and kicked him in the presence of his two children. A 12 month community correction order (‘CCO’) was imposed, requiring, among other things, assessment and treatment for alcohol abuse. The applicant was convicted of contravening that CCO on 9 July 2015, and then on 10 March 2016 was convicted of contravening the CCO imposed following the first contravention.[10]
[8]Ibid [54].
[9]Ibid.
[10]Ibid [59]–[63].
On 14 July 2016, the applicant was convicted of one charge of assaulting a police officer (involving a punch to the officer’s chin) and one charge of resisting a police officer, on the streets of Colac. Another CCO was imposed, again requiring assessment and treatment for alcohol abuse. The applicant contravened that CCO too, and on 13 November 2017 a further CCO was imposed with the same special conditions as the one he had breached. On 4 October 2018, he was convicted of assaulting an emergency worker, unlawful assault and public drunkenness[11] following an incident in which he verbally abused bar and security staff at the Melbourne Cricket Ground. During the course of that offending, he was physically aggressive towards police officers and spat bloody saliva onto the eyes and mouth of one of them.[12]
[11]This offence has since been repealed: see Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021, s 5, repealing Summary Offences Act 1966, s 13.
[12]Sentencing Remarks [64]–[69].
At the invitation of the prosecutor, the judge put aside a number of Children’s Court matters from 2012 and 2013.[13]
[13]Ibid [55].
The judge described findings from a psychiatric report prepared by Associate Professor Carroll and an addendum to it. Associate Professor Carroll recommended that the applicant would benefit from ‘psychological treatment to address both his alcohol use and its evident effects on his judgment and behaviour, ideally starting whilst in custody and continuing after release’. In connection with that recommendation, Associate Professor Carroll said it is ‘unclear whether a return to “safe levels” of drinking will ever be feasible’ for the applicant.[14]
[14]Ibid [71]–[90].
The judge rejected the applicant’s submission that Bugmy[15] principles applied to his case, and found that no Verdins[16] principles were applicable.[17]
[15]Bugmy v The Queen (2013) 249 CLR 571.
[16]Verdins v The Queen (2007) 16 VR 269.
[17]Sentencing Remarks [97], [107].
However, the judge accepted that the applicant pleaded guilty at the earliest reasonable opportunity and that, by the time of the plea hearing, he was genuinely remorseful for what he had done. The judge acknowledged that the plea occurred during the pandemic and that it accordingly attracted greater weight.[18] Owing to these matters, the judge found that a substantial reduction of the sentence was in order.[19]
[18]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.
[19]Sentencing Remarks [108]–[113].
The judge found that the offending was explained by the fact that the applicant had a problem with alcohol use, and excessive alcohol use predisposed him to aggressive and overtly violent behaviour. He said that ‘to put it bluntly’, the applicant was ‘a violent and dangerous person when drunk’.[20] Seventeen victim impact statements were before the court, which the judge said provided an important insight into the profound grief and pain caused by the offending.[21]
[20]Ibid [101].
[21]Ibid [114]–[127].
The judge considered that the applicant’s offending was a ‘serious example of the serious crime of manslaughter’.[22] He accepted counsel’s description of it as being ‘in the middle range of seriousness of manslaughter offending’.[23] The attack on Mr Francis was unprovoked, ferocious and effective. Mr Francis did not seek to inflict any violence on the applicant, and was powerless to defend himself. The applicant stood over him as he lay incapacitated and demonstrated a ‘total lack of concern for his welfare’.[24] The attack was frightening and occurred in a public place that exposed onlookers to a violent assault. The judge found that there was ‘no question’ that the applicant’s moral culpability was very high.[25]
[22]Ibid [128].
[23]Ibid [137].
[24]Ibid [130]–[134].
[25]Ibid [136]–[138].
The judge considered the applicant’s prospects of rehabilitation in the following paragraphs:
In the circumstances of your prior criminal offending, and having regard to the crime for which I must sentence you, I do not accept that your prospects of rehabilitation are good, or even moderate. Your previous convictions illustrate quite well your propensity to commit acts of violence when drunk. Your ongoing failure to abide by court dispositions, and, it seems, to take advantage of supervision and any other treatment or assistance offered under a succession of CCOs, is concerning. Your overtly violent and aggressive conduct towards [Mr Francis] on the occasion you attacked him was a return, as a man who was then 26 years of age and a father of three young children, to the same type of alcohol-fuelled violence directed towards innocent people in public places to which you showed yourself to be prone as a younger person.
It should have been obvious to you years ago that you should not drink to excess. And yet, you persisted in doing so.
Your prospects of rehabilitation in future depend largely on your being willing to cease drinking altogether, or at least to substantially reduce your intake.
As things currently stand, it is not possible to view your rehabilitative prospects in a favourable light.[26]
[26]Ibid [141]–[144].
The judge considered that the need for specific deterrence was very strong in circumstances where the applicant had ‘entirely failed to heed the lessons in [his] past’ and ‘failed to take advantage of a number of seemingly quite lenient dispositions’ previously imposed upon him.[27] As a result, the sentence had to send ‘a very clear message’ to the applicant.[28]
[27]Ibid [146].
[28]Ibid.
The judge gave the following reasons in respect of the non-parole period:
[Defence counsel] urged me to impose what she described as ‘a comparatively lower non-parole period with a longer than average [parole] period to facilitate appropriate supervision in the community’.
At the heart of that submission, it seems, was [defence counsel’s] claim that [the applicant] need[s] … intense psychological treatment … there was no evidence before me to indicate [he] need[s] any such treatment.
Whilst I note the Court of Appeal have been at pains to point out that there is no ‘usual’ ratio of non-parole period to head sentence, I see no reason why there would be a need in [this] case for the length of the non-parole period to be reduced in order to increase the period of time for which [the applicant] would be in the community under the supervision provided by parole.
The non-parole period I will specify will be the lowest term of imprisonment which I consider justice requires in [this] case, in light of all of the circumstances and the head sentence at which I arrive. It must be remembered that both the head sentence and the non-parole period must be appropriate in all of the circumstances, paying due regard to the purposes for which sentence is to be passed ...[29]
[29]Ibid [147]–[150].
The judge had regard to current sentencing practices, indicating that he had considered relevant statistics published by the Sentencing Advisory Council as well as a number of decisions placed before him by the parties that were concerned with sentences for manslaughter carried out by the infliction of a punch or punches.[30] The judge emphasised the limits of such materials and said ‘even as between cases that may seem comparable, differences invariably abound in the factual circumstances and the circumstances of the offenders’.[31]
[30]The judge cited DPP v McDonough [2023] VSC 352; DPP v Tiumali [2023] VSC 233; R v Lucas [2021] VSC 81; R v Rivett [2020] VSC 563; R v Nolan [2020] VSC 416; Esmaili v The Queen [2020] VSCA 63; Lee v The Queen [2018] VSCA 63 (‘Lee’); Vincec v The Queen [2018] VSCA 18 (‘Vincec’).
[31]Sentencing Remarks [151]–[154]. At [155] the judge referred to observations made by Weinberg JA in Vincec considering a sentence of 8 years’ imprisonment with a non-parole period of five years (when the maximum penalty was 20 years’ imprisonment) for offending bearing some similarities to the present case. The judge went on to use Vincec as an example of ‘the limitation on the utility of seemingly comparable cases’, pointing to ways in which the cases differed: at [157].
Next, the judge referred to a submission by defence counsel that he should not have regard to ‘the fact that crimes of the nature committed by [the applicant] have become prevalent in our community’.[32] He noted that this phenomenon had been commented on and relied on, including in Vincec[33] and Lee.[34] The judge rejected counsel’s submission, stating:
I do not agree. For many years, it has been apparent that precisely the type of violent crime … carried out in this case has been a growing concern in our community and has become an all too common occurrence. This is obvious to the community, and has been frequently commented upon by judges of this Court and the Court of Appeal. Indeed, as long ago as 2014, the legislature, by means of the Crimes Amendment (Coward’s Punch Manslaughter and Other Matters) Act 2014, introduced a specific provision into the Crimes Act 1958[35] which dictates that a single punch delivered to the head or neck is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by unlawful and dangerous act. This was a clear indication of the concern felt by the legislature about the prevalence of offending of the type committed by [the applicant].
I take into account … , amongst all of the other relevant matters, that the crime … carried out is of a type which is worryingly prevalent in our society.[36]
[32]Ibid [158]
[33][2018] VSCA 18 [66] (Weinberg JA).
[34][2018] VSCA 63 [75] (Kyrou JA).
[35]Section 4A.
[36]Sentencing Remarks [158]–[163].

Finally, the judge concluded by stating that the offending called for a substantial term of imprisonment with a significant non-parole term, and indicated that the important considerations underlying the sentence were just punishment, denunciation, general deterrence, specific deterrence and protection of the community.[37] The judge said that ‘this sort of unprovoked, drunken attack upon an innocent person in a public place is the sort of crime which would cause great dismay and concern in the community’.[38] The sentence needed to ‘bring it clearly home to any person who might be minded to carry out unprovoked crimes of violence targeting innocent victims in public, that such conduct will be met with very strong punishment’.[39]

Ground 1 — Whether non-parole period manifestly excessive

Applicant’s submissions

[37]Ibid [166], [168].

[38]Ibid.

[39]Ibid.

The applicant submitted that the non-parole period fixed by the judge bore an unusual proportion relative to the head sentence (80 per cent) so as to attract appellate scrutiny.[40] Senior counsel submitted that such scrutiny requires consideration of whether it was open to the judge to fix the non-parole period, having regard to the principle that it was to last for the minimum term that justice requires.[41] It was submitted that the task of fixing a non-parole period was ‘no sinecure’, and that it required discrete consideration of factors bearing upon consideration of when the prisoner should be eligible for mitigation of confinement and rehabilitation under conditional supervision.[42]
[40]Romero v The Queen (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]) (‘Romero’). It was also said that the ratio applicable to the judge’s s 6AAA statement, which is 77 per cent, demonstrates a lack of internal consistency and invites scrutiny. Nothing turns on this slight mathematical disparity.
[41]Wallace v The Queen (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA) (‘Wallace’).
[42]R v Mulvale (Supreme Court of Victoria, Winneke P, 20 February 1996) 11, referring to R v Currey [1975] VR 647.
The applicant submitted that the judge failed to fix a non-parole period in accordance with those principles. While he addressed the non-parole period, he went no further than explaining why he had declined to fix the ‘comparatively lower non-parole period’ sought by defence counsel.[43] The judge’s statement that the period would be ‘the lowest term of imprisonment which I consider justice requires in your case’ did not explain how he determined its length. The judge drew no distinction between the purposes for setting the head sentence and the purposes for setting the non-parole period. That observation supported an overarching submission advanced by the applicant that, in fixing the non-parole period, the judge gave too much weight to considerations that bore more forcefully on determination of the head sentence, most particularly to protection of the community and ‘proportionality with the offence’.[44]
[43]Sentencing Remarks [147].
[44]Bugmy v The Queen (1990) 169 CLR 525, 531–3 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ) (‘Bugmy’).
The applicant attacked the judge’s finding that his prospects for rehabilitation were not ‘good, or even moderate’.[45] Senior counsel outlined the applicant’s prior convictions and observed that he had not offended for nearly three years, during which time, as the judge found, the applicant had weaned himself from drug use and become hardworking.[46] An alcohol use disorder he had suffered from was in remission and he complied with his bail conditions after the offending. The applicant pointed to evidence that he had abstained from drinking from 15 August 2022 until his remand on 21 December 2022. Counsel also relied on Associate Professor Carroll’s report, which recorded the applicant as having said that there is ‘definitely something wrong with me when I drink’, and that he thinks he does not want to touch alcohol again.
[45]Sentencing Remarks [141].
[46]Ibid [49].
The applicant submitted that the judge failed to deal with the steps he had taken to address his behaviour, and made no allowance for the offending to act as a turning point in his life. The judge had found that his prospects for rehabilitation depended ‘largely on [his] being willing to cease drinking altogether, or at least to substantially reduce [his] intake’.[47] It was said that, despite this finding, the judge failed to address the applicant’s willingness to do just that. Further, the applicant argued that the finding did not point to ‘negative prospects of rehabilitation’, nor did it mean that his prospects were bleak.[48]
[47]Ibid [143].
[48]Cf DPP v Wain [2024] VSC 533 [69] (Incerti J).
In written submissions, the applicant submitted that current sentencing practices supported the proposition that the non-parole period was manifestly excessive. A review of cases involving a single charge of manslaughter since 2020 revealed that non-parole periods imposed ranged, as a proportion of the head sentence, between 60 and 76 per cent of the head sentence (leaving aside one case involving a mandatory sentence under ‘one punch’ laws).[49] The cases relied on at the plea hearing demonstrated a sentencing practice imposing non-parole periods of about 62 to 66 per cent of the head sentence.
[49]Sentencing Act 1991, s 9C.
In oral submissions, senior counsel for the applicant accepted that the issue was whether the non-parole period considered as a number of years, rather than its proportional relationship to the head sentence, was manifestly excessive.

Respondent’s submissions

The respondent submitted that there is no ‘usual’ non-parole period.[50] While rehabilitation is important, countervailing factors such as punishment, deterrence, denunciation and community safety must also be reflected in the fixing of a non-parole period.[51] It was submitted that, if a period of parole is inappropriately long, the sentence risks falling short of imposing adequate punishment.[52]
[50]Wallace (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA); Kumova v The Queen (2012) 37 VR 538, 545 [26] (Redlich and Osborn JJA) (‘Kumova’); McLean v The Queen [2018] VSCA 209 [18] (Whelan and Kyrou JJA) (‘McLean’).
[51]Power v The Queen (1974) 131 CLR 623, 627–9 (Barwick CJ, Menzies, Stephen and Mason JJ); Mush v The Queen [2019] VSCA 307 [101] (Maxwell P and Kaye JA).
[52]Romero (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]).
The respondent contended that ‘one punch’ manslaughter cases are particularly bad examples of a grave offence. Parliament’s view of the seriousness of manslaughter involving a single unexpected punch or strike towards the head or neck of the victim was said to be reflected in s 9C of the Sentencing Act which, where it applies, fixes a minimum non-parole period of 10 years in such cases.
The respondent made further submissions about the seriousness of the offending in the present case, the applicant’s moral culpability and the impact of the offending. It was said that there were few mitigating factors upon which the applicant could rely. There were sound reasons to conclude that his prospects of rehabilitation could not be viewed favourably, and those prospects were conditional upon him not drinking to excess. His prior convictions for very similar alcohol-fuelled public violence, some involving strikes to the head of the victim, were said to be of great concern. Specific deterrence and protection of the community were very important sentencing considerations in this case.
The respondent submitted that the fact that the non-parole period was a relatively high proportion of the head sentence reflected the judge’s bleak view of the applicant’s prospects of rehabilitation. The judge was aware of the applicant’s past efforts to refrain from excessive alcohol consumption, and his asserted willingness to do so in future, but remained pessimistic about his prospects.
Finally, the respondent submitted that the cases relied on by the applicant to evince current sentencing practices provided very limited guidance. Setting a non-parole period was something unique to each case. Manslaughter, in particular, could be committed in infinitely diverse ways and covered a broad range of culpability. In any event, all but one of the cases relied on involved offending when the maximum sentence for manslaughter was 20, not 25 years imprisonment. The sentencing judge had clearly articulated his reasoning for imposing a significant non-parole period in which the applicant’s conditional prospects of rehabilitation ‘very much [took] a back seat to more prominent sentencing objectives’.[53]

Consideration

[53]Sentencing Remarks [168].

An argument alleging manifest excess in a sentence impugns the exercise of the sentencing discretion, without necessarily ascribing the asserted miscarriage in the discretion to any specific error, as contemplated in House v The King.[54] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[55]
[54](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370–1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[55]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
It is not necessary, in the circumstances, to decide whether the judge erred in his approach to fixing the head sentence and the non-parole period, respectively. Submissions were made as to the different objectives of each aspect of the sentencing exercise, and the different weight that various factors might have in either context.[56] But no specific error of this kind was attributed to the judge. The question is instead whether the ultimate result revealed that the discretion had miscarried.
[56]Bugmy (1990) 169 CLR 525, 531–3 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ); R v Mulvale (Supreme Court of Victoria, Winneke P, 20 February 1996) 11.
In the present case, we are concerned only with the discretion to fix a non-parole period, in circumstances where the head sentence is 10 years’ imprisonment and no challenge is made to that sentence. The scope of the discretion that is under challenge is correspondingly limited.
In writing, the applicant submitted that the fact that the proportion in this case (80 per cent) was higher than the proportion in cases said to be comparable, supported the proposition that the non-parole period imposed on the applicant was manifestly excessive.
It is true that it has been said that a non-parole period that is 75 per cent of the head sentence, ‘may invite appellate scrutiny’.[57] But that scrutiny is directed at the question of manifest excess, which is not answered by a comparison of such percentages.
[57]Romero (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]). McLean [2018] VSCA 209 [20] (Whelan and Kyrou JJA).
A rather similar argument was advanced in Stefani v The Queen,[58] a case involving convictions for kidnapping and assault. The appellant in that case challenged a non-parole period of 8 years, imposed in respect of a head sentence of 10 years, on the basis of manifest excess. In particular, it was said that a disparity existed between that non-parole period and those fixed in relation to co-offenders of the applicant. In dismissing the appeal, this Court said:[59]
The non-parole period is the minimum term which justice requires to be served.[60] The question the appellant raised on the appeal is whether, in all of the circumstances of his case, it was reasonably open to the sentencing judge to fix a non-parole period of 8 years, being 80 per cent of the total effective sentence. He urged a negative answer to that question on the basis that the non-parole period was manifestly excessive…
As has often been observed, there is no ‘usual’ non-parole period for an offence or category of offence.[61] Nonetheless, this Court has said that regard should be had to the range of non-parole periods commonly or ‘usually’ imposed, as a means of promoting consistency in sentencing.[62] As a matter of empirical observation, in the majority of cases the non-parole period is between 60 per cent and 75 per cent of the head sentence.[63] However, the authorities make clear that this range ‘ceases to be of much guidance where the head sentence is in the order of 10 years’ imprisonment or more’.[64]
[58][2024] VSCA 29 (‘Stefani’).
[59]Ibid [42]–[43] (McLeish, Walker and Taylor JJA).
[60]Wallace (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).
[61]McLean [2018] VSCA 209 [18] (Whelan and Kyrou JJA). See also Wallace (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).
[62]McLean [2018] VSCA 209 [18] (Whelan and Kyrou JJA); Kumova (2012) 37 VR 538, 541 [11] (Nettle JA), 547–8 [33]–[35] (Redlich and Osborn JJA).
[63]Kumova (2012) 37 VR 538, 542 [12] (Nettle JA), 545 [27] (Redlich and Osborn JJA).
[64]Ibid 544 [19] (Nettle JA, Redlich and Osborn JJA agreeing at 545 [25]). See also Romero (2011) 32 VR 486, 493–4 [25]–[27] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]).
The Court in Stefani doubted the utility of a mechanical comparison of the proportional length of non-parole periods.[65] Such a comparison was said to be ‘incomplete’, because an unduly high proportional figure could suggest that the non-parole period was too long, or it could suggest that the head sentence was too short.[66]
[65]Stefani [2024] VSCA 29 [45] (McLeish, Walker and Taylor JJA).
[66]Ibid [46].
Reference to other cases or statistics suggesting that a given case involves an unusually high non-parole period, as a proportion of the head sentence, reveals little, if anything, about whether that non-parole period is manifestly excessive. This is especially so in the case of manslaughter, an offence which embraces a wide range of possible offending. The answer to the question whether a non-parole period is manifestly excessive depends on an assessment of the whole of the circumstances of the case, in order to decide whether something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion, such that it miscarried.
In addressing the question whether a non-parole period is manifestly excessive, regard is to be had to the purposes of fixing a non-parole period and the relationship between the period fixed and the head sentence. In Bugmy, Mason CJ and McHugh J explained:
A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.[67]
[67](1990) 169 CLR 525, 532. See also 537 (Dawson, Toohey and Gaudron JJ) (citation omitted).
Redlich and Osborn JJA elaborated in Kumova:
In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case, will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner’s rehabilitation. The benefit of the minimum term is for the purpose of the offender’s rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account.[68]
[68](2012) 37 VR 538, 545 [27].
Bearing in mind that the head sentence of 10 years’ imprisonment is not challenged, we are not persuaded that the imposition of a non-parole period of eight years was outside the range available to the sentencing judge in this case. Unprovoked public alcohol-fuelled violence is a scourge from which the community requires protection. Such conduct is bound to attract a substantial term of imprisonment, including a substantial non-parole period. That also serves the interests of general deterrence and denunciation. Here, specific deterrence also loomed large. On the other hand, as the authorities show, the applicant’s prospects of rehabilitation were a significant factor to be taken into account in fixing the non-parole period. The applicant submits that the period of eight years which the judge fixed reveals error in his balancing of the relevant considerations
The applicant has an unenviable track record of engaging in such conduct, and milder sentencing dispositions failed to modify his behaviour sufficiently to prevent the death of Mr Francis, a complete stranger going about his life as he was entitled to do. The applicant’s prospects of rehabilitation, conditional as they are in light of their dependence on him abstaining from alcohol, have to be judged in light of that history. The non-parole period that was imposed reflects the judge’s pessimistic assessment of those prospects. On that basis, while we would characterise the non-parole period as stern, we do not consider that it was manifestly excessive.
We also do not accept that the judge failed to explain why he was imposing a ‘higher than usual’ non-parole period. This Court has stated that the absence of an explanation for a non-parole period that exceeds 75 per cent of the head sentence ‘invites appellate scrutiny’.[69] That observation has been endorsed in cases where the head sentence was 10 years’ imprisonment or more.[70] As this Court observed in Cummins, which involved a total effective sentence of 13 years and 6 months’ imprisonment, ‘although a ratio of more than 75 per cent between the head sentence and the non-parole period will not necessarily connote error, the justification for such a ratio should normally be provided’.[71]
[69]Gray v The Queen [2010] VSCA 312 [20]–[21] (Nettle J, Tate JA agreeing at [26]). See also Stowers v The King [2022] VSCA 203 [42] (Kyrou, McLeish and Kennedy JJA); Kumova (2012) 37 VR 538, 542 [14] (Nettle JA), 546–7 [32] (Redlich and Osborn JJA); Cummins (a pseudonym) v The Queen (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA) (‘Cummins’).
[70]Kumova (2012) 37 VR 538, 541 [14] (Nettle JA), 545 [32] (Redlich and Osborn JJA); Cummins (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA).
[71]Cummins (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA).

In light of these observations, it would have been desirable for the sentencing judge to refer to the fact that the non-parole period he imposed was a high proportion of the head sentence and to briefly state the reasons for this. It is, however, clear from the sentencing remarks that the judge considered that eight years was the lowest term of imprisonment which justice required, taking account of all relevant sentencing considerations. He stated that the applicant’s offending called for a significant non-parole period. He considered the applicant’s prospects of rehabilitation were not good or even moderate, and depended on him addressing his alcohol problem. In all the circumstances, rehabilitation had to ‘take a back seat to more prominent sentencing objectives’.[72] Without specifically addressing the ratio with the head sentence, the judge’s reasons for imposing a relatively high non-parole period emerge clearly enough.
[72]Sentencing Remarks [168].
Leave to appeal on the first proposed ground should be refused.

Ground 2 — Whether judge erred in treating prevalence as an aggravating factor

Applicant’s submissions

The second proposed ground of appeal seeks to challenge the way in which the judge addressed the prevalence of offending of the kind seen in this case. The applicant submitted that the judge was entitled to make observations on the matter and to take account of prevalence as a factor informing general deterrence, denunciation and objective gravity.[73] It was submitted, however, that the judge had gone further, by treating prevalence as a distinct aggravating factor. The effect was said to be that the prevalence of this kind of offending was ‘double counted’ in the sentencing calculus.

Respondent’s submissions

[73]Haddara v The Queen (2016) 260 A Crim R 306, 322 [62] (Redlich, Priest and Beach JJA); [2016] VSCA 168; Downie v The Queen [1998] 2 VR 517, 522 (Callaway JA, Phillips CJ agreeing at 517, Batt JA agreeing at 524) (‘Downie’).

The respondent submitted that the judge had not treated prevalence as an aggravating factor. It was accepted that, strictly speaking, prevalence did not aggravate offending, but it informed its objective gravity and was also relevant to general deterrence.

Consideration

It is well established that the prevalence of a particular offence is a factor relevant to the weight to be given to general deterrence, and that it informs the objective gravity of the offence.[74] Consistently with that position, the judge addressed the ‘prevalence of the crime of manslaughter committed by one or more punches’ under a heading to that effect.[75] Counsel for the applicant at the plea hearing had submitted that a ‘more robust’ evidentiary basis was required in order to rely on any such prevalence.[76] The judge rejected that submission and said that he took into account ‘amongst all of the other relevant matters’ that the crime committed by the applicant is ‘worryingly prevalent in our society’.[77]
[74]Ibid.
[75]Sentencing Remarks [158].
[76]See Downie [1998] 2 VR 517, 521–2 (Callaway JA, Phillips CJ agreeing at 517, Batt JA agreeing at 524).
[77]Sentencing Remarks [163].
Senior counsel for the applicant submitted that the judge’s reference to ‘all of the other relevant matters’ revealed that he took account of prevalence as a distinct matter, in addition to matters including objective gravity, denunciation and general deterrence. This meant that prevalence had been ‘double counted’.
That submission cannot be accepted. The judge was addressing a submission about the evidentiary basis needed in order to establish prevalence. When he came to address globally the ‘important reasons’ for imposing sentence, which he identified as ‘just punishment, denunciation, general deterrence, specific deterrence, and protection of the community’, he made a reference to the offending being of a kind ‘which would cause great dismay and concern in the community’.[78] It is clear, reading this part of the sentencing remarks as a whole, that the judge was treating prevalence as a factor in the context of the identified sentencing considerations, and not as a separate aggravating matter.
[78]Ibid [168].
Leave to appeal on this proposed ground should be refused.

Conclusion

The proposed application for leave to appeal against sentence would therefore be dismissed. For that reason, it would be futile to grant an extension of time, and that extension must be refused.
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[2024] VSCA 316

17 December 2024