Battye v The King

[2025] VSCA 89

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0018

LIAM BATTYE	Applicant
v
THE KING	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	30 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 89
JUDGMENT APPEALED FROM:	DPP v Battye (County Court of Victoria, Judge Chettle, 6 December 2024)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary (1 charge), intentionally causing injury (2 charges) – TES of 4 years and 6 months, with NPP of 3 years – Manifest excess – Whether sentences or TES or NPP manifestly excessive – Whether NPP manifestly excessive as a proportion of TES – Complaints of manifest excess not reasonably arguable – Application for leave to appeal refused.

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Counsel
Applicant:		Mr C Pearson
Respondent:		Mr L Andrews
Solicitors
Applicant:	George Vassis
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

1. On 4 December 2024, the applicant pleaded guilty to one charge of aggravated burglary, two charges of intentionally causing injury, one charge of possessing a drug of dependence, and the related summary offence of committing an indictable offence while on bail. On 6 December 2024, he was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary (contrary to s 77 of the Crimes Act 1958)	25 years	3 years	Base
2	Intentionally causing injury (contrary to s 18 of the Crimes Act 1958)	10 years	2 years	9 months
3	Intentionally causing injury	10 years	2 years	9 months
4	Possessing a drug of dependence (contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981)	1 year[1]	$300 fine	–
8	Committing an indictable offence while on bail (contrary to s 30B of the Bail Act 1977)	3 months	1 month	–
Total Effective Sentence:		4 years and 6 months
Non-parole period:		3 years
Pre-sentence detention:		Nil
Section 6AAA statement:		7 years with a non-parole period of 5 years

[1]Drugs, Poisons and Controlled substances Act 1981, s 73(1)(b).

1. The applicant now seeks leave to appeal against his sentence. His proposed grounds of appeal are as follows:

   1.The individual sentences of imprisonment imposed, together with the orders made for cumulation and the total effective term of imprisonment so produced, are each manifestly excessive.

   2.The non-parole period ordered to be served, as a proportion of the total effective term of imprisonment, is manifestly excessive.

Circumstances of the offending

1. The offending constituting charges 1, 2 and 3 (the charge of aggravated burglary and the two charges of intentionally causing injury) occurred in the early hours of 10 December 2022 at premises in Wandong. The premises consisted of a house and a ‘mancave’ which was a separate dwelling from the house.

2. On the evening of 9 December 2022, into the early hours of 10 December 2022, there was a gathering in the mancave. The gathering included a female friend of the applicant, JM, and a resident of the premises, KG. At some point, KG sat on a couch next to JM. During the motion of sitting down, KG grazed JM’s leg with his hand. This caused JM to accuse KG of touching her inappropriately. Another person at the gathering, MS, who had seen the incident occur, stated that the touching was accidental and there was nothing to it.

3. Sometime later, JM left the premises and phoned the applicant. During the phone call, she told the applicant that she had been touched by one of the males in the mancave, and that she had left her bag at the address.

4. After further phone calls and SMS messages, the applicant travelled in company to Wandong. Just before 6:00 am, the vehicle in which the applicant was travelling arrived at the premises. The applicant and another man got out of the vehicle. The applicant armed himself with a tyre iron and went through a side gate to the rear of the premises. He opened a sliding door and entered a bedroom in which MS and KG were sleeping (charge 1, aggravated burglary).

5. Once in the bedroom, the applicant started striking MS with the tyre iron. The applicant hit MS approximately four times to the ribs and twice to the head with the tyre iron (charge 2, intentionally causing injury).

6. MS crawled off the bed, onto his knees to try to come to his senses. At that stage, he could feel that he was bleeding from his head. The applicant continued assaulting MS while yelling and referring to his friend’s bag. At some point, the applicant’s companion entered the bedroom and positioned himself near the side wall of the entrance of the bedroom.

7. Once the applicant finished assaulting MS, he struck KG, who had also been asleep, multiple times to the head with the tyre iron, causing instant bleeding (charge 3, intentionally causing injury).

8. MS and KG were treated by paramedics at the scene. Each was subsequently taken to the Royal Melbourne Hospital for further treatment. KG was found to have sustained a right frontal bone fracture involving his right frontal sinus and superior orbital wall and the floor of his anterior cranial fossa, as well as a small gas locule in his anterior cranial fossa. He required five sutures before being released from hospital. MS was found to have sustained a concussion and a number of small right frontal and left parieto-occipital lacerations. He required three sutures before being released from hospital.

9. On 20 July 2023, some seven months later, after a police investigation, the applicant was arrested in Hildene. During a search of the applicant’s home, police located a small amount of cannabis (charge 4, possessing a drug of dependence).

10. At the time he committed the aggravated burglary, the applicant was on bail (related summary charge 8, committing an indictable offence while on bail).

Personal circumstances

1. The applicant was 20 at the time of the offending, and 22 at the time of sentencing. He was born into a good and responsible family. Both his parents are still alive and continue to run a successful excavation business. Both he and his brother (who is about two years older) are employed in the family business.

2. So far as his education is concerned, the applicant attended Seymour College until Year 8, when he was expelled. Thereafter, he had a number of jobs, before working in the family business. While he had lived with his parents and brother for most of his life (apart from a short period of time), at the time of his offending, he was apparently living with a friend and using methylamphetamine on a regular basis.

3. The applicant was diagnosed with ADHD when he was a child, although he was not medicated. He started using cannabis when he was 15, then moved on to MDMA and then ice. Prior to sentencing, he had used cocaine and other illicit substances, including GHB. When he was 18 to 19, he was drinking heavily.

4. At the request of his solicitors in relation to unrelated driving offences, the applicant was assessed by a psychologist, Gina Cidoni, on 15 December 2022 and 21 February 2023. Ms Cidoni assessed the applicant’s general cognitive ability at being within ‘the extremely low range of intellectual functioning’. Ms Cidoni opined that the applicant’s overall thinking and reasoning abilities exceed those of only approximately one per cent of individuals his age.

5. Between 2019 and 2023, the applicant was convicted of a number of driving-related offences, including driving in a manner dangerous and driving at a speed dangerous. In relation to a charge of theft, dealt with in 2019, the applicant was released on a good behaviour bond without conviction.

Reasons for sentence

1. The judge commenced his reasons for sentence by summarising the circumstances of the applicant’s offending,[2] before observing that the applicant had lied to police when he was interviewed in July 2023. The judge, however, noted that the applicant, when interviewed by police, did admit to using methylamphetamine in the lead-up to the offending constituting charges 1 to 3.[3]

   [2]DPP v Battye (unreported, County Court of Victoria, 6 December 2024, Judge Chettle) [2]–[6] (‘Reasons’).

   [3]Ibid [7].

2. The judge observed that the offences of aggravated burglary and intentionally causing injury are serious criminal offences, carrying maximum penalties of 25 years and 10 years respectively.[4]

   [4]Ibid [8].

3. The judge described the applicant’s prior criminal history as ‘largely irrelevant to the sentencing function [he had] to perform’.[5]

   [5]Ibid [9].

4. Next, the judge referred to victim impact statements filed by KG and MS, as well as KG’s parents (who were at home in their house on the premises at the time of the offending). The judge noted that MS, KG and KG’s parents had all been significantly affected by the applicant’s crimes, and he took the contents of their victim impact statements into account in sentencing the applicant.[6]

   [6]Ibid [10].

5. The judge summarised the applicant’s personal circumstances.[7] In the course of doing so, his Honour referred to Ms Cidoni’s conclusions that the applicant falls within ‘the extreme low IQ range of intellectual disability’ and that he has ‘cognitive challenges’ that mean he has a ‘lowered ability to reflect on things’, with his critical thinking being ‘compromised’, and that he thinks ‘concretely’.[8] The judge said that because of his ADHD, the applicant is predisposed towards poor impulse control and attention deficit and a desire for immediate gratification. He then referred to Ms Cidoni’s opinion that these issues would be ‘aggravated by any time in custody’.[9]

   [7]Ibid [11]–[17].

   [8]Ibid [17].

   [9]Ibid [17].

6. The judge referred to the applicant’s counsel’s submissions, in which the significance of the applicant’s intellectual disability was emphasised.[10]

   [10]Ibid [18].

7. The judge accepted that the applicant’s pleas of guilty were entered at a ‘reasonably early stage’, saying that those pleas entitled the applicant to a reduction in the sentence that would otherwise be imposed.[11] The judge then dealt with submissions made on behalf of the applicant about his age and the fact that he was not charged until he was 21 as follows:

   [Your counsel] argued that you were 20 at the time you offended, that makes you a youthful offender, and you were not charged until you were 21. He pointed to the delay in this case, as he submitted, somehow costing you the opportunity of Youth Detention. It seems to me that that is not a meaningful submission in the context of this case. It took the police some time to ascertain who you were and to locate you and by the time you were arrested you had already turned 21.

   However, [your counsel] relied properly upon your age, being youthful your rehabilitation assumes greater significance. It is recognised that in accordance with the principles in the case of Azzopardi, that [your counsel] referred to, that young men are often immature and prone to ill-conceived or ill-considered and rash decisions. That certainly fits the bill in your case as far as this conduct is concerned. You lack consequential logic, and incarceration is likely to be detrimental or impair your prospects of rehabilitation, and I take all those principles into account in sentencing you. The sentence I am about to impose has been significantly reduced because of your age.[12]

   [11]Ibid [19].

   [12]Ibid [20]–[21] (citation omitted).

8. In relation to rehabilitation, the judge said:

   You have no real relevant criminal history. You have prior convictions that indicate a certain degree of lawlessness but significantly you have no prior convictions for violence. You have been on bail since your arrest. You have moved back with your parents and you have ceased, according to you, drug use. A reference filed by your parents indicates their support and continued support for you. Your father was present in court at your plea to support you. Their support is relevant to your prospects of rehabilitation.[13]

   [13]Ibid [22].

9. Next, the judge said that drugs had clearly featured in this case and, while the applicant’s behaviour on the night might be explained by the fact that he was using methylamphetamine, it could not be excused by that fact.[14]

   [14]Ibid [23].

10. The judge noted that he had had the applicant assessed for a Community Correction Order and/or a combination of a term of imprisonment and a Community Correction Order. He said that, while the report indicated that the applicant was suitable for such an order, he had come to the conclusion that that sentencing disposition was not open in the circumstances of the applicant’s offending.[15]

    [15]Ibid [23]–[24].

11. After referring to Boulton v The Queen[16] and what the judge described as ‘its much-quoted paragraph 131’,[17] the judge said that the applicant’s aggravated burglary represented ‘a mid-level example of that offence’.[18] The judge then concluded the Reasons by saying:

    In the early hours of the morning whilst your victims were asleep, you were entirely motivated by malice and retribution, you entered the house armed and in company with others. Your conduct represents a classic confrontation aggravated burglary, as described by our Court of Appeal in cases such as Hogarth. You then cowardly, violently attacked men in their beds with an iron bar, causing nasty injuries. You are extremely lucky that you did not cause more serious injury or indeed even kill someone. Your offences represent lower mid level examples of the offence of intentionally causing injury, only because the injuries were not as bad as they could have been.

    I should indicate, as I already have, that I have reduced the sentence I am about to impose significantly to reflect the fact, as urged upon me by Mr Pearson, and in particular your age, which concerns me.

    As I said, imprisonment with a non-parole period is in my view the only available sentencing option in your case but I have had regard to principles of totality and parsimony in arriving at a sentence, bearing in mind the principles of general deterrence and just punishment represent the most significant sentencing factors in this case. People who behave as you do need to understand that significant terms of imprisonment will be imposed for their offending.[19]

    [16](2014) 46 VR 308.

    [17]Ibid 338 [131].

    [18]Reasons, [25].

    [19]Ibid [26]–[28] (citation omitted).

Applicant’s submissions

1. In support of proposed ground 1, the applicant submitted that a sentence of imprisonment of 4 years and 6 months in the circumstances of this case was wholly beyond the range available in the sound exercise of the sentencing discretion. The applicant noted that there are no mandatory minimum terms of imprisonment in relation to his offending and that, at the time of his offending, he was a young offender — only 20 years of age.

2. The applicant submitted that, even though it was known to police as early as 21 December 2022 — and certainly well known to police by 10 February 2023 — that the applicant was one of the offenders involved, the applicant was not charged until after his 21^st birthday (which was on 19 April 2023).

3. Next, it was submitted that the applicant had a relatively modest criminal record, ‘being for driving offences and a single charge of theft’. He had not further offended in the two years that had elapsed between his offending and sentencing.

4. The applicant observed that, as at the date of sentencing, he was still only 22 years of age. His ‘issues with drug usage — which were prominent at the date of offending — had resolved’; and ‘he was well supported by his parents’.

5. The applicant noted that his pleas of guilty were entered at an early stage in the proceedings.

6. The applicant submitted that ‘This was truly a case in which the fact of [his] youth — together with the other significant features that were available by way of mitigation — should have resulted in a far more benign approach being adopted to [his] sentencing’. The applicant again placed emphasis on the considerations applicable to the sentencing of young and youthful offenders.[20]

   [20]See in particular Azzopardi v The Queen (2011) 35 VR 43, 53–56 [34]–[40].

7. Proposed ground 2 was said by the applicant to proceed ‘on the basis that the discretion of the learned sentencing judge was correctly exercised in imposing sentences that resulted in a head sentence and the setting of a non-parole period’.

8. While the applicant acknowledged that there is no normal or usual non-parole period, he observed that the non-parole period in this case was ‘67% of the head sentence’. The applicant then put his argument on proposed ground 2 in the following terms:

   This was a sentencing exercise where the learned sentencing judge had determined that it was necessary to send a youthful offender, who had never before been imprisoned, into an adult prison for a significant period of time.

   It is submitted that it was (and is) self-evidently the case that the applicant possesses good prospects of rehabilitation.

   In the above described circumstances, it is submitted that it was well open to the learned sentencing judge to both moderate the full effects of the sentence imposed, and to recognise the overall good prospects of rehabilitation possessed by the applicant, by setting a proportionately shorter non-parole period than that which was in fact set.

Consideration

1. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[21] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[22]

   [21]Clarkson v The Queen (2011) 32 VR 361, 384 [89].

   [22]Ibid.

2. In assessing whether or not the sentence imposed upon the applicant was manifestly excessive, it is not to the point that police knew his identity and/or could have charged him some months before he turned 21. The issue is, and remains, whether, in all of the circumstances (including the applicant’s age at the time of his offending and at the time of sentencing), the sentence imposed upon him was (or any of its component parts were) wholly outside the permissible range of sentencing options.

3. The aggravated burglary committed by the applicant and the two incidents of intentionally causing injury were serious examples of serious offences. Yet for these crimes, the applicant received sentences of 12% of the maximum penalty for the aggravated burglary, and 20% of the maximum penalty for each of the intentionally causing injury charges. While these percentages cannot dictate the outcome of this application, and while all the circumstances of the offending and the offender must be synthesised in order to resolve the present application, the fact that the applicant was sentenced to such low percentages of the maximum penalties applicable does not immediately suggest that the sentences imposed (or any of them) might be manifestly excessive.

4. Adopting the words of the judge, in the early hours of the morning, while his victims were asleep, the applicant, entirely motivated by malice and retribution, entered a residence armed and in company with another. He then cowardly, violently attacked men in their beds with an iron bar, causing nasty injuries. He was extremely lucky that he did not cause more serious injury or, indeed, even kill someone.[23]

   [23]Reasons, [26].

5. In truth, the sentences imposed on charges 1, 2 and 3 were modest. They can only be explained by the fact that the judge obviously gave full effect to all of the matters relied upon by the applicant in mitigation. Absent the mitigating circumstances present in this case (including the very important considerations of the applicant’s age and intellectual functioning), one might have expected significantly longer terms of imprisonment. There is simply no substance in the suggestion that any of the sentences imposed or orders for cumulation were wholly outside the permissible range. It also follows that the applicant’s assertion that the total effective sentence imposed on him was manifestly excessive is also not reasonably arguable.

1. For the reasons given above, proposed ground 1 must be rejected.

2. Similarly, there is no substance in proposed ground 2. The non-parole period ordered by the judge was well within range. There was nothing requiring the judge to fix a shorter non-parole period, whatever the applicant’s true prospects of rehabilitation might be. In that regard, it may be overstating it to say that it was or is ‘self-evidently the case that the applicant possesses good prospects of rehabilitation’.[24] Certainly, the judge made no such finding.[25] More likely, the applicant’s prospects of rehabilitation will depend on his ability to stay away from illicit drugs upon his release from custody.

   [24]As was submitted by the applicant: see paragraph [36] above.

   [25]Cf Reasons, [21]–[22].

3. While the applicant might be correct in submitting that it was well open to the judge to set a shorter non-parole period than that which was in fact set, that does not mean that there was any error in the fixing of the non-parole period that was actually ordered by his Honour. Merely because a different sentencing outcome might have been open, does not mean that there was error in the sentence actually imposed. The short point is that, in all the circumstances of the offending and the offender (the applicant), it was well open to the judge to fix the non-parole period he fixed. The contrary is not reasonably arguable.

4. It follows that proposed ground 2 must be rejected.

Conclusion

1. The applicant’s proposed grounds of appeal are not reasonably arguable. Leave to appeal against sentence must be refused.

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