Clarke (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0131

JAMES CLARKE (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victims of the offending, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	NIALL and HARGRAVE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2023
DATE OF JUDGMENT:	8 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 103
JUDGMENT APPEALED FROM:	DPP v [Clarke] (County Court of Victoria, Judge Rozen, 16 August 2022)

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CRIMINAL LAW – Leave to appeal – Sentence – Whether sentencing judge failed to assess properly (or at all) the objective gravity of intentionally damage property charge – Whether sentencing judge failed to moderate moral culpability on basis of the applicant’s deprived background and episode of sexual abuse – Whether individual sentences imposed, orders for cumulation made, and total effective sentence manifestly excessive – Leave to appeal refused.

Bugmy v The Queen (2013) 249 CLR 571; DPP v Derby [2007] VSCA 92 referred to.

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Counsel
Applicant:		Mr DJ Carolan
Respondent:		Ms RL Harper
Solicitors
Applicant:	Ajak & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
HARGRAVE JA:

On 1 August 2022, the applicant was convicted by plea of guilty and was sentenced on 16 August 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
Indictment M12053660
1	Assault (contrary to the common law)	5 years imprisonment (s 320 of the Crimes Act 1958)	18 months imprisonment	4 months
2	Use carriage service to menace (contrary to s 474.17 of the Criminal Code Act 1995)	3 years imprisonment	10 months imprisonment	(4 months)[2]
3	Intentionally damage property (contrary to s 197 of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	6 months
4	Make threat to kill (contrary to s 20 of the Crimes Act 1958)	10 years imprisonment	16 months imprisonment	8 months
5	Make threat to inflict serious injury (contrary to s 21 of the Crimes Act 1958)	5 years imprisonment	12 months imprisonment	3 months
6	Intentionally damage property (contrary to s 197 of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	5 months
7	Make threat to kill (contrary to s 20 of the Crimes Act 1958)	10 years imprisonment	26 months imprisonment	Head Sentence
8	Attempted arson (contrary to s 321M, s 197(1) and s 197(6) of the Crimes Act 1958)	10 years imprisonment	2 years imprisonment	6 months
Related Summary Offences
21	Trespass (contrary to s 9(1)(e) of the Summary Offences Act 1966)	25 penalty units or 6 months imprisonment	2 months imprisonment
Total Effective Sentence:		For the Federal offences, 10 months imprisonment, to commence from the date of sentence. For the State offences, 4 years and 10 months imprisonment, to commence 6 months prior to the completion of the total effective sentence on the Federal offence. Total effective sentence overall is 5 years and 2 months imprisonment.[3]
Non-Parole Period:		3 years and 1 month imprisonment
Pre-sentence Detention Declared:		321 days
Section 6AAA Statement:		7 years imprisonment with a minimum term of 4 years[4]
Other Relevant Orders:		Disposal order

[2]No order was made for cumulation on this charge, but the practical effect of the orders with respect to the order in which the Federal and State sentences were to be served resulted in 4 months of cumulation.

[3]The overall total effective sentence does not appear in the Record of Order, but is stated by the sentencing judge in DPP v [Clarke] (County Court of Victoria, Judge Rozen, 16 August 2022) at [136] (‘Reasons’).

[4]The s 6AAA statement does not appear in the Record of Order, but is stated in the Reasons at [139].

The circumstances of the offending by the applicant were summarised by the sentencing judge from the terms of the prosecution opening, which was accepted by the applicant as correct for the purposes of the plea. Our summary is similarly based.
The applicant was born in 1978 and lived in Altona Meadows at the time of the offending. He had been in an on and off relationship with the primary victim, Rachel Black, for approximately 10 years prior to the offending.
The relationship had been characterised by family violence perpetrated by the applicant. There had been one previous family violence intervention order in place. That order was issued by the Sunshine Magistrates’ Court on 1 February 2016 and expired on 25 May 2016. There were no family violence intervention orders in place at the time of the current offending.
The applicant has two children from the relationship with Ms Black, both of whom were under the age of five at the time of the offending. He lived with Ms Black and the children in Altona Meadows from approximately September 2020. Prior to moving to Altona Meadows, the applicant, Ms Black and the children had been residing in Braybrook for about three years.
Ms Black’s parents, Mr and Mrs Black, are further victims in this matter. They lived in Altona North at the time and cared for the children while Ms Black went to work. The applicant had not been welcome at Mr and Mrs Black’s home for some time.
Alison Howard is the fourth victim. She was friends with Ms Black and knew the applicant through that friendship.

Circumstances of offending

On 20 April 2020, the applicant and Ms Black were living in Braybrook. They had an argument about the applicant’s car. Ms Black was sitting on a lounge chair holding one of the children, who was about 10 months’ old. The applicant hit Ms Black with an open hand to her face, grabbed her ponytail and headbutted her three times. This offending was captured on a baby monitor (Charge 1: Common Assault — rolled up charge comprising three incidents).
On 2 December 2020, Ms Black was getting ready to attend a work Christmas party. She asked the applicant to have a look at her car as she was worried it had a mechanical issue. The applicant yelled at her because she woke him up. He walked towards her and pulled her hair from behind. He headbutted her in the back of her head, knocking her off her feet; Ms Black had to sit down for five minutes because her head was spinning (Charge 1: Common Assault — rolled up charge comprising three incidents).
On 24 August 2021, the applicant and Ms Black had an argument at their home in Altona Meadows. The children were not home at the time. The applicant ordered Ms Black to buy him cigarettes and became upset when he thought she was taking too long. He began screaming at Ms Black and began walking towards her. She ran out of the house; he followed her and grabbed the back of her hair and pulled her towards him. The applicant headbutted her in the back of the head. Ms Black called him a dog and went to work at her parents’ house for the remainder of the day (Charge 1: Common Assault — rolled up charge comprising three incidents).
The applicant and Ms Black agreed to separate on 21 September 2021. This precipitated a sustained period of violent and threatening conduct on the applicant’s part, which gave rise to the remaining charges. His conduct was directed not only at Ms Black, but also at her parents and Ms Howard. Some of his conduct was witnessed by his older son.
On 24 September 2021, the applicant and Ms Black had an argument at their home in Altona Meadows. Ms Howard was at the house at the time. Ms Howard told Ms Black that Ms Black needed to leave the home, and assisted her to discreetly pack her belongings while the applicant was otherwise occupied. Ms Black told the applicant that she was going to the shops, and together with the children and Ms Howard, she left the address. Ms Black and the children went to stay with Ms Howard.
When Ms Black did not return home later that day, the applicant began contacting her via Facebook Messenger and sending her text messages. Between 24 and 28 September 2021, he contacted her over 200 times. Among these messages were numerous threats to harm Ms Black, her parents and Ms Howard (Charge 2: Use a Carriage Service to Menace).
The Facebook messages the applicant sent included the following:
(a)24 September 2021: ‘…[S]ee how far U wanna take it tell [Alison] does she want to be by enemie … I’ve been polite enough for you but tell her if she wants to step up and speak her piece I will show you real domestic violence’; and
(b)24 September 2021: ‘Your dead’, ‘Your mum and dad are dead’ and ‘I’m going to your mums now.’
Ms Black responded to the applicant stating that she would be going to the police after receiving these messages. She blocked him on Facebook Messenger. The applicant then began contacting her via text message. The messages he sent included:
(a)27 September 2021: ‘Come home bitch, with your tail between your legs and bow down to God motherfucker’;
(b)28 September 2021: ‘I swear if you keep you ignoring me by the end of the day we are Gunna have trouble I have nothing to lose anymore since you put me here. I will hunt you down’; and
(c)On 28 September 2021, the applicant sent a text message to Ms Black threatening to kill her: ‘Laugh behind my back go on my ears are burning but I will cut your fucking ears off for leaving me on this situation non money while you use my licence to abuse it driving around with our babies in the car if anything happens to my boys, cos of any of this I will fucking kill you. No threat it’s a P.’
This was followed by a further message, ‘Tell the police that cunt.’
The applicant continued to send further messages that day, including:
(a)28 September 2021 via text message at 2:09 pm: ‘U better drop me off some shit or I will come to your mum and dads.’ Followed by ‘[b]ring me some money and smokes or your done’ and ‘[a]nd ole man might just get knocked the fuck out and your mum too’. Followed by ‘[b]etter baracade up the door cos I be coming through it’; and
(b)28 September 2021 via text message at 2:18 pm: ‘All talk behind me back bring all ya that have something to say and fore sure I will take your heads from your necks’ and ‘I got over for U but this time blood will be spilt’.
The applicant left a voice message at 2:27 pm on the same day: ‘Thanks a lot you fuckin’ cunt all right? Thanks for everything, I swear I’m gonna smash your fuckin’ face in. When I get to you, I swear for this, I’m gonna fuckin’ kill you.’
The applicant sent further messages to Ms Black:
(a)28 September 2021 via text message at 2:37 pm: ‘Just remember it takes police minutes to arrive and that will be a long time if pops is hogtied you hogtied cos you leave me with no money … Like say minutes can last a long time waiting for those sirens as specially if suspect has fled the scene already … I be at home still waiting for you to…’; and
(b)28 September 2021 via text message at 4:50 pm: ‘[S]ome cunts Gunna be giving me money whether you. Ur old cunt dad or ya mum other wise cunts will end up in hospital.’
The applicant left a further voice message at 5:14 pm: ‘What’s the the matter kid, don’t you like clowns? Don’t we make you laugh? Ain’t we fuckin’ funny? I tell you right now, if I come back and tell me the reason you don’t like clowns, I’m gonna kill you, your mother and your whole fuckin’ family, you got that.’
The applicant sent further voicemails that evening telling Ms Black that he was ‘going to get her’, that he would take her dad’s head off with a meat cleaver and a machete and that he would stab them all. The applicant told her that he would find her, would tie up her parents and would bash her like she’s never been bashed before. He also told her that she’s ‘gonna be fucking dead’ and that he was going to ‘hang her’ (paragraphs [14]–[21] contain particulars of Charge 4: Make Threat to Kill — rolled up charge comprising four instances).
Over the course of the evening on 28 September 2021, Ms Black received multiple text messages from the applicant indicating that he was destroying property belonging to her at the Altona Meadows property where the applicant, Ms Black and the two children lived. These messages included:
(a)‘You have two broken windows’ followed by ‘least when I’m gone you will come to your clean house you dirty slut … ha ha ha it b destroyed’;
(b)‘All your clothes gone making bon fire with all ur trash’;
(c)‘Every out of cabinet destroyed’;
(d)‘Your bedroom setting im Gunna hack with meat cleaver’;
(e)‘U Gunna have nothing just like me’;
(f)‘All jewellery boxes fucked jewellery fucked’; and
(g)‘I feel alive’.
The applicant smashed a window at the address, graffitied a further window, damaged a buffet unit, smashed the lid of a washing machine, broke crockery, a steam mop, and a jewellery box, amongst other damage (Charge 3: Intentionally Damage Property).
On 28 September 2021, the applicant began sending abusive text messages to Ms Black about her friend Alison Howard. The messages included:
(a)‘Tell [Alison] to come over I wouldn’t mind a head job … tell her I want to rape her up her tight big arse. Black nigger bitch then when I’m finished I’d spit in her dirty skinned face’; and
(b)‘Tell me [Alison’s] address I wanna come stand over that Indian bitch and take over her place. Told ya I want her to taste shit of my cock after I’ve raped her’.
Ms Howard read those messages.
The applicant left further messages for Ms Black in the evening of 28 September 2021 in which he threatened Ms Howard. The messages included threats that he would cut Ms Howard’s throat, hang her, that he was going to ‘get [Alison] and her’, that Alison would end up in a ditch and that he would make her dig her own grave and cut her head off. Ms Howard sat and listened to the voicemail messages with Ms Black (Charge 5: Make Threat to Inflict Serious Injury — rolled up charge comprising three instances).
The applicant contacted Ms Howard by Instagram and sent her SoundCloud links to songs which included vile lyrics. He also posted a public message to his Facebook page asking if anyone knew where she lived and that he wanted to bash her.
Ms Howard was left feeling scared as a result of hearing and seeing the threats. Ms Black was left feeling terrified and was concerned for her parents.
As a result of receiving the threats, Ms Black contacted police. Police applied for a complaint and warrant intervention order.
On 29 September 2021 at approximately 3:30 pm, the applicant attended the home of Ms Black’s parents. The applicant was carrying a grey backpack. The backpack contained a meat cleaver (30 centimetres in length), three kitchen knives (30 centimetres in length), a one metre black metal pole and a butane gas cannister and nozzle.
Mr Black was sitting in the lounge room with his wife and their grandson. He watched as the applicant approached the house. Mrs Black grabbed the child, ran to the kitchen and called police.
The applicant walked up onto the front porch of the house (Summary Charge 21: Trespass). The applicant was holding a black metal pole, which he then used to smash the front window of Mr and Mrs Black’s lounge room. The applicant was yelling, ‘I am going to kill you and burn the house down’ and ‘come here you fucking dog’.
As the applicant continued to hit the front window with the black metal pole, he removed one of the knives from his backpack and used this to break the glass further. He reached his hand through the front window and said, ‘I’m going to smash your fucking head in you cunt’.
The applicant yelled out, ‘[i]f I get a chance to tie you up, I’ll burn you.’ He continued yelling and smashing the front window with the metal pole. He also yelled out that Mr Black was a ‘weak cunt’. The applicant was holding a knife and the metal pole. He then used the metal pole and hit the window a number of times with considerable force.
The applicant walked to the dining room window which was also at the front of the house, used the metal pole to strike the window and yelled out, ‘[y]ou’re fucking dead’. He kept repeating he was going to kill Mr Black and burn the whole family alive. He took out the meat cleaver and used this to continue to smash the window.
Mr Black came to the window armed with a stick and tried to push the applicant away. The applicant lit the butane gas cannister and attempted to set the window curtains alight. Mr Black pulled the curtains away from the applicant (Charge 8: Attempted Arson). The applicant yelled out ‘come here you fucking dog’ and paced back and forward hitting the window with a knife or the meat cleaver. He was heard yelling, ‘I will kill you, I will tie you up’ and ‘I’ll burn the fucking place down, I’ll kill you all’ (paragraphs [32] to [36] contain particulars of Charge 7: Make Threat to Kill).
The applicant then struck a water tank with the meat cleaver and yelled to Mr Black, ‘come outside’ (paragraphs [32] to [37] contain the particulars of Charge 6: Intentionally Damage Property).
The applicant noticed that he was being filmed by a neighbour and yelled out, ‘stop fucking filming or you’re going to get involved’.
The applicant threw the metal pole onto the carport roof, collected his backpack and began walking away. As he walked away, he yelled out, ‘I’m coming for you cunt, just remember that’.
The applicant was arrested by police approximately 200 metres from Mr and Mrs Black’s home.
On seeing police, the applicant threw the backpack into the front yard of a nearby property. He walked towards police with his hands raised and he was arrested.
Police attended at Mr and Mrs Black’s address and located a black metal pole on the roof of the carport, a black handled knife under a wooden bench and a red handle located underneath the broken front window. Police observed that the entire front window of the address was shattered, as was the dining room window. Lacerations were also visible on the water tank.
The applicant was interviewed by police and he made the following comments:
(a)The applicant was no longer in a relationship with Ms Black and the plan was they were going to continue to reside at Altona Meadows together until the applicant found a job and another place to live;
(b)Ms Black had done the applicant a favour in ending it, and they had separated on the weekend;
(c)This was the second time the relationship had broken up;
(d)Mr Black was telling the applicant to come inside and the applicant was on their porch. The applicant told him to move back to Malta or next time he would ‘come with 30 cunts’; and
(e)The applicant called Ms Black ‘a fucking slag’ and said that she stole his money.
Ms Black returned to the Altona Meadows address on 1 October 2021, where she saw the damage done to the property. The house was also in disarray. The applicant had upended the contents of drawers, cupboards and rooms and thrown them throughout the house.

Proposed grounds of appeal

The applicant seeks leave to appeal on three grounds:
(a)Ground 1 — the sentencing judge failed to assess properly (or at all) the objective gravity of charge 6 (intentionally damage property).
(b)Ground 2 — the sentencing judge failed to properly assess the effect of the applicant’s deprived background and history of sexual abuse.
(c)Ground 3 — the individual sentences imposed, the orders for cumulation made, and the consequent total effective sentence are manifestly excessive.

Ground 1 — objective gravity of charge 6

The applicant contends that the sentencing judge specifically assessed the objective gravity of all of the other offences but made no findings in relation to the objective gravity of charge 6. It was contended that this was an error because no reasons were given for assessing the individual sentence on charge 6 (2 years’ imprisonment with a cumulation of 5 months) at ‘near the top of the sentencing hierarchy on the facts of this case’.

In response, the Crown contends that, reading the material on the plea and the Reasons as a whole, it is plain that the judge regarded the objective seriousness of all of the offending as both very serious and traumatic on the victims, a fact recognised by counsel for the applicant on the plea. Moreover, the Crown contended in its submissions on the plea that charge 6 was a serious example of the charged offending. From a reading of the Reasons and the plea transcript as a whole, it should be inferred that the judge took a similar view.
We agree with the Crown on this issue. Leave to appeal on ground 1 is refused.

Ground 2 — applicant’s deprived background and history of sexual abuse

The applicant contends that the principles enunciated by the High Court in Bugmy v The Queen[5] applied to moderate his moral culpability in light of his deprived background and an alleged episode of sexual abuse. He contends that the judge failed to apply these principles notwithstanding that the judge accepted the following matters in relation to the applicant’s background, as follows:
(a)his mother and step-father separated shortly after his birth;
(b)his father spent 10–15 years in custody during the applicant’s childhood;
(c)his mother struggled and resorted to consuming a significant amount of alcohol;
(d)his mother re-partnered, however the applicant witnessed domestic violence against his mother and was also subjected to physical abuse by his mother’s partner;
(e)he was required to move from school to school and found it difficult to form friendships; and
(f)at the age of six, he was sexually assaulted by a 16-year-old boy, who forced the applicant to perform oral sex on the boy and threatened to harm his family if he told anyone.
[5](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
Counsel for the applicant emphasised the applicant’s uncontested diagnosis of post‑traumatic stress disorder (‘PTSD’) arising from the above matters, which the judge said he would take into account under R v Verdins[6] as increasing the burden of imprisonment on the applicant and which condition would likely be adversely affected by imprisonment.[7]
[6]R v Verdins (2007) 16 VR 269; [2007] VSCA 102.
[7]Reasons, [104]–[106].
The applicant’s contention is based on the judge’s succinct reasons on this issue. The judge stated:
99Your counsel submits that the principles in the case of Bugmy v The Queen apply in your case because of your background of ‘emotional hardship, dysfunction and disadvantage’.
100In sentencing you I have given full weight to your deprived background. However, I do not consider that your childhood experiences, as difficult as they were, reach the level of ‘profound childhood deprivation’ described by the High Court in the case of Bugmy.
101Further, it is not clear that your childhood deprivation can ‘explain’ your present offending so as to reduce your moral culpability as explained in the case of Bugmy. The evidence before the court is that it is your ‘inability to move on from the relationship’ with [Ms Black] as well as your ‘drug abuse and inability to manage stress’ provide an explanation for your violence.[8]
[8]Ibid [99]–[101] (emphasis added) (citations omitted).
As the emphasised sentence demonstrates, the judge did give weight (in the sense of moderation to the applicant’s moral culpability) for his deprived background in a general sense. However, the judge was not satisfied that the applicant’s background was, comparatively speaking, as deprived as that of the appellant in Bugmy — and necessarily factored that into his consideration. On the other hand, on the evidence, the judge was not satisfied that it was clear that the applicant’s childhood deprivation explained the particular offending so as to reduce his moral culpability in a specific sense.[9] There was no error in approaching the Bugmy issues in this way.
[9]DPP v Herrmann [2021] VSCA 160, [44]–[45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
Leave to appeal in respect of ground 2 is refused.

Ground 3 — manifest excess

A ground of manifest excess will only succeed if it can be demonstrated that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[10] It must be shown that it was not reasonably open to the sentencing judge to come to the conclusion he did if proper weight was given to all the relevant circumstances of the offending and of the offender.[11] It is a stringent requirement, difficult to make good.[12]
[10]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 361.
[11]Ibid.
[12]Ibid.
The applicant contends that the sentences imposed on each charge, the orders for cumulation made, and the consequent total effective sentence were manifestly excessive on the above basis. He contends that the total effective sentence was plainly unjust, did not comply with principles of totality and parsimony, did not give sufficient regard to the overlapping nature of some of the charges and did not give sufficient weight to mitigating factors which the judge recognised in the Reasons or in argument on the plea. Those mitigating factors comprised the applicant’s early guilty plea during the COVID‑19 pandemic, deprived background, PTSD diagnosis, lack of significant prior convictions, experience on remand —he was stabbed in the neck in custody —and significant attempts at rehabilitation while on remand by completing many available courses. We have factored each of these matters into account in considering the manifest excess ground and are not persuaded that the total effective sentence is outside the range of sentencing dispositions available to the judge.
The applicant endeavoured to support his manifest excess contention by attacking the components of the total effective sentence. The applicant first attacked the individual sentences and amounts of cumulation on charges 2, 4, 5 and 7. Those charges concern the threats to kill or inflict serious injury and the Commonwealth charge of using a carriage service to menace Ms Black. Charge 2 involved numerous threats to kill Ms Black over a five day period. Charge 4 involved a further threat to kill Ms Black. Charge 5 involved a threat to inflict serious injury on Ms Howard. Charge 7 involved a threat to kill Mr Black in the context of the attempted arson and intentional damage to Mr and Mrs Black’s home. These were not isolated threats but part of a continuous pattern of conduct over six days.
The applicant’s contentions in this regard centred on a comparison of the offending in this case with that in two other cases considered by the judge, namely, Marrah v The Queen[13] and Lim v The Queen.[14] In Marrah, the accused pleaded guilty to a charge of threat to kill in the context of other domestic violence, including rape. He held a knife to his partner’s throat and threatened to kill her. A sentence of 5 years’ imprisonment on the threat to kill charge was reduced to 3 years by this Court. In Lim, this Court upheld a sentence of 20 months for threat to kill in the context of a drug-fuelled violent rage by the applicant in which he had violently assaulted his former partner’s father. Each of these cases involved, as here, a threat to kill in the context of family violence. The applicant placed particular reliance on the fact that the threats to kill in those cases were made face to face rather than, as for most of the threats here, by text and voice message. On the other hand, the applicant acknowledges that the threat to kill Ms Black’s father (the subject of charge 7) was, practically speaking, made face to face — albeit while the applicant was outside threatening and attempting arson of Mr Black’s house.
[13][2014] VSCA 119 (‘Marrah’).
[14][2019] VSCA 182 (‘Lim’).
In our view, there is nothing to be gained from an examination of these cases, which differ markedly from the circumstances of this case. Here, the threats against Ms Black and her friend, Ms Howard, were voluminous, persistent, extremely vile and, as their victim impact statements show, extremely traumatic for them and have had lasting consequences. As to the threats against Mr Black, the judge correctly took account of Mr Black’s victim impact statement in which, among other things, he describes the impact of the offending against him and his wife as including a decision to sell the house in which they have lived for 45 years because they no longer feel safe there. That is an understandable reaction to threats to kill in the circumstances of this case. In our view, the individual sentences, and the total effective sentence for these charges of 3 years and 5 months, were well within the range of sentencing options reasonably available to the judge.
Next, the applicant contends that a sentence of 2 years’ imprisonment (with 6 months cumulated on the head sentence) was manifestly excessive on charge 8 — attempted arson. The applicant accepts that the judge was correct to treat the fact that the arson was made in the context of family violence, threats to kill and at a time there were persons present in the property — including the applicant’s own son — as aggravating factors. However, the applicant contends that his offending was ‘a spontaneous and unsophisticated example of this offence’. On this basis, the applicant contends that there was no basis for the judge to impose a sentence which was greater than those imposed for other attempted arson cases. We do not agree. The attempted arson occurred in the context of family violence, in the presence of Ms Black’s parents and her eldest son, and while the applicant was in the course of a frenzied attack on the parents’ home while armed with a meat cleaver, knives, a metal pole and a butane gas canister. Given the items taken by the applicant to the home, there was clearly a degree of premeditation and planning. The judge correctly characterised this offending as an egregious example of a serious offence. Viewed in context, the sentence of 2 years was well within range.
The applicant also contends that the sentences for intentionally damaging property (charges 3 and 6) were manifestly excessive — 2 years’ imprisonment on each charge with 6 and 5 months cumulation respectively. Charge 3 concerns damage to Ms Black’s property. The applicant contends that the value of the property damaged was, while not specified, not significant and that this was a relevant factor in assessing the gravity of the offending.[15] The applicant acknowledges, however, that the items the subject of charge 3 included those of sentimental value to Ms Black and that the offending against her property was committed out of spite and in circumstances of family violence. Charge 6 concerns the damage to Mr and Mrs Black’s home in the violent rage described above. The respondent contends that the sentences and cumulations were reasonably open.
[15]Relying on Chamma v The Queen [2020] VSCA 232.
Viewed alone, while the offending which is the subject of charges 3 and 6 was serious, the sentences imposed were, although stern, within range given the context of the offending.
Finally, on the rolled-up charge of common assault, the applicant contends that the sentence of 18 months’ imprisonment (4 months cumulation) was manifestly excessive in circumstances where Ms Black suffered ‘no discernible physical injury’. We disagree. As the judge said, headbutting is a ‘particularly nasty’ mode of assault. The sentence on this charge was, while stern, within the range for three instances of this conduct. The cumulation was lenient.
We conclude our assessment of the manifest excess ground by emphasising that the conduct of the applicant in this case amounted to a sustained course of very serious offending in the context of family violence. Such cases deserve stern punishment. Like the judge, we adopt the statement of Vincent JA in Director of Public Prosecutions v Derby:
The employment of violence, almost invariably by disappointed males, whether directed against the person or property of a former or desired partner to express anger or as a form of retribution in consequence of a relationship failure or perceived rejection simply cannot be tolerated. Insofar as they are able to do so, through the sentences handed down for such conduct, the Courts must endeavour to deter those who may be motivated to act in this way. Accordingly, those who engage in such behaviour must, save in the most unusual of circumstances, anticipate the imposition of condign punishment.[16]
[16][2007] VSCA 92, [2].
Leave to appeal on ground 3 is refused.

Conclusion

Leave to appeal is refused.
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[2023] VSCA 103

8 May 2023