Becke v The King - [2025] VSCA 235

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0067

EMILY BECKE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST ACJ and BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2025
DATE OF JUDGMENT:	23 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 235
JUDGMENT APPEALED FROM:	DPP v Becke [2024] VCC 198 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Fresh or new evidence – Armed robbery and related offending – Applicant sentenced on the basis that she had borderline personality – Subsequent diagnosis of schizophrenia – Sentencing discretion reopened – Appeal allowed – Resentenced accordingly.

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Counsel
Applicant		Mr J Lavery with Ms EA Byrt
Respondent		Ms BJ Goding
Solicitors
Applicant	Hofman Carroll Criminal Law
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST ACJ
BOYCE JA:

Introduction

Two indictments relevant to the present applications were filed against the applicant in the County Court.
The first, Indictment No K11826383, charged the applicant with attempted armed robbery[1] (charge 1) and being a prohibited person using an imitation firearm[2] (charge 2) (‘the first indictment’), and the second, Indictment No L12512853, charged the applicant with armed robbery[3] (charge 1) (‘the second indictment’).
[1]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 20 years’ imprisonment.
[2]Control of Weapons Act 1990, s 5AB(2). The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, ss 75A and 321M. The maximum penalty is 25 years’ imprisonment.
On 27 July 2020, Judge Fox sentenced the applicant on the first indictment — and for three relevant summary offences[4] — to an aggregate sentence of 384 days’ imprisonment, with a conditioned community correction order (‘CCO’) of 30 months’ duration (‘the first CCO’). A year later, on 23 July 2021, Judge Trapnell sentenced the applicant on the second indictment to 18 months’ imprisonment, with a conditioned CCO of three years’ duration, requiring her (among other things) to perform 600 hours of unpaid community work (‘the second CCO’).
[4]A charge of making a false report to police, contrary to s 53(1) of the Summary Offences Act 1966; and two charges of stating a false name when requested, contrary to s 456AA(3)(b) of the Crimes Act 1958.
Subsequently, the applicant was dealt with for breach of one or other or both of the CCOs on three occasions and was resentenced.
On the first occasion, 21 September 2021, Judge Trapnell resentenced the applicant for breach of the first CCO. He varied the first CCO to commence on completion of the sentence of imprisonment imposed by him on 23 July 2021, and fined the applicant $300 for the contravention.[5]
[5]Sentencing Act 1991, s 83AD. The maximum penalty is three months’ imprisonment.
The second occasion upon which the applicant was resentenced was 17 November 2022, when Judge Trapnell dealt with the applicant for a further breach of the first CCO and for breaching the second. He fined the applicant $250 for each contravention, and varied the recommencement dates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Becke v The King

Details

AGLC: Becke v The King [2025] VSCA 235
Case: [2025] VSCA 235
Decision Date: 23 September 2025

CaseChat Overview and Summary

Becke appealed against her sentence for armed robbery and related offences. The applicant, who had been sentenced on the basis of a borderline personality disorder, had subsequently been diagnosed with schizophrenia. The High Court of Australia was asked to consider whether the fresh evidence warranted a reopening of the sentencing discretion. The key issue was whether the new evidence of a schizophrenia diagnosis was so significant as to justify a reopening of the sentencing discretion, and whether the original sentence was manifestly inadequate in light of the fresh evidence.

The Court held that the fresh evidence of schizophrenia was significant enough to warrant a reopening of the sentencing discretion. The Court noted that the sentencing judge had not been aware of the schizophrenia diagnosis at the time of sentencing and that the diagnosis had the potential to significantly impact the applicant's culpability and rehabilitation prospects. The Court also found that the original sentence was manifestly inadequate in light of the fresh evidence, as it had not taken into account the full extent of the applicant's mental health issues. The Court therefore allowed the appeal and remitted the matter to the sentencing court for resentencing.

The Court emphasised the importance of considering all relevant evidence when sentencing, including evidence of mental health issues. The Court also noted that the sentencing court had a broad discretion to impose an appropriate sentence, and that this discretion could be reopened if new and significant evidence came to light. The Court concluded that, in this case, the fresh evidence of schizophrenia was significant enough to warrant a reopening of the sentencing discretion, and that the original sentence was manifestly inadequate in light of the fresh evidence.

The Court remitted the matter to the sentencing court for resentencing, with directions that the court take into account the full extent of the applicant's mental health issues, including her schizophrenia diagnosis. The Court also noted that the sentencing court should consider the principles of proportionality and deterrence when imposing a new sentence. The Court did not specify what the new sentence should be, leaving that decision to the sentencing court.

Orders