Director of Public Prosecutions v Kurtaj
[2025] VSCA 203
•28 August 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0239 |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| RIFAT KURTAJ | Respondent |
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| JUDGES: | PRIEST, TAYLOR and BOYCE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 July 2025 |
| DATE OF JUDGMENT: | 28 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 203 |
| JUDGMENT APPEALED FROM: | DPP v Kurtaj [2024] VCC 1996 (Judge Karapanagiotidis) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Breach of intervention orders – Making threats to kill – Aggravated burglary – Attempting to pervert course of justice – Offending committed in context of family violence – Whether individual sentences, orders for cumulation, total effective sentence and non-parole period manifestly inadequate – Sentences imposed did not reflect objective gravity of offending and need for community protection – Appeal allowed – Respondent resentenced.
Sentencing Act 1991, ss 5, 6D, 6E.
DPP v Meyers (2014) 44 VR 486; Hogarth v The Queen (2012) 37 VR 658; Skeates (a pseudonym) v The King [2023] VSCA 226, discussed.
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| Counsel | |||
| Appellant: | Mr BF Kissane KC with Mr G Buchhorn | ||
| Respondent: | Ms GF Connelly SC with Mr J Moore | ||
Solicitors | |||
| Appellant: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Respondent: | Dribbin & Brown Criminal Lawyers | ||
PRIEST JA:
I have had the considerable advantage of reading in draft the reasons for judgment of Boyce JA. Substantially for the reasons he gives, I agree that the appeal must be allowed, and the respondent resentenced in the manner he proposes.
There are, however, two observations of my own that I wish to make.
The first concerns the citation of Pasinis.[1] In his reasons for judgment, Boyce JA refers[2] to a passage from Skeates.[3] The passage referred to extracts (in part) a passage from Pasinis,[4] which includes the observation that the key to protecting victims of family violence
lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
[1]Pasinis v The Queen [2014] VSCA 97 (Neave JA and Kyrou AJA) (‘Pasinis’).
[2]At [100] below.
[3]Skeates (a pseudonym) v The King [2023] VSCA 226, [55] (Emerton P, Niall and Taylor JJA) (‘Skeates’).
[4]Pasinis, [57]. (Emphasis added.)
As I pointed out in Reynolds,[5] on one view that statement
is capable of suggesting that in cases of family violence a sentence of imprisonment might be imposed as a form of preventative detention — offenders ‘will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm’. If that is what the passage from Pasinis is intended to convey, it is wrong in principle. A sentence must be proportionate to the gravity of the offence. It is not permissible to impose a sentence as a form of preventative detention.[6]
[5]DPP v Reynolds (a pseudonym) (2022) 71 VR 336, 345 [22] (‘Reynolds’).
[6]Veen v The Queen (No 2) (1988) 164 CLR 465, 472–3 (Mason CJ, Brennan, Dawson and Toohey JJ).
With that caveat, one cannot sensibly gainsay that general and specific deterrence, curial denunciation, just punishment and community protection will often be prominent features animating the sentencing discretion in cases of domestic violence. Those considerations certainly needed to be given prominence in the respondent’s case.
The second observation concerns Hogarth[7] and Meyers,[8] and the continued use of the classification ‘confrontational aggravated burglary’.
[7]Hogarth v The Queen (2012) 37 VR 658 (Maxwell P, Neave JA and Coghlan AJA) (‘Hogarth’).
[8]DPP v Meyers (2014) 44 VR 486 (Maxwell P, Redlich and Osborn JJA) (‘Meyers’).
That was a term coined by the Sentencing Advisory Council in a 2011 report.[9] It was a classification adopted with alacrity by the Court in Hogarth, which concluded that
current sentencing practices for confrontational aggravated burglary did not reflect the objective seriousness of this form of the offence.[10]
[9]Sentencing Advisory Council, Aggravated Burglary: Current Sentencing Practices, (June 2011), p 30. See Hogarth, 660 [4], 672–3 [54]–[55].
[10]Hogarth, 673 [57], 674 [62].
At least one of the difficulties associated with attaching labels which do not reflect the elements of the offence to particular kinds of offending prompted the Court in Meyers to observe[11] that
Hogarth is not to be viewed as if it established a carefully-defined zone of ‘exemption’ from current sentencing practices, such that a judge imposing sentence for aggravated burglary would have to decide whether the particular case fell within the scope of ‘confrontational aggravated burglary’ as defined by the [Sentencing Advisory Council].
Rather, the decision in Hogarth should be viewed as having removed the constraint of [current sentencing practices] for aggravated burglary in all of its more serious forms. As can be seen from the [Sentencing Advisory Council] definitions set out above, there is a very great degree of overlap between the essential features of ‘confrontational’ aggravated burglary, on the one hand, and ‘intimate relationship’ aggravated burglary on the other. Properly analysed, the latter is a subset of the former. Both are essentially grievance-driven; both involve confronting the person against whom the grievance is held; and, in both cases, the aggravated burglary is typically accompanied by violence or threats of violence.
[11]Meyers, 495 [36]–[37].
As Meyers demonstrates, one of the problems associated with adherence to the classification ‘confrontational aggravated burglary’ is that it is often treated almost as a term of art, so that there are attempts for sentencing purposes to shoehorn a particular instance of aggravated burglary into that category — in effect, as a kind of aggravating feature — or to shoehorn a particular offence out of that category — in effect, as the absence of an aggravating feature — for an offence that carries its own statutory features of aggravation.
In my view, the continued use of the classification devised by the Sentencing Advisory Council — and adopted by this Court — is of little utility. It more often distracts from, rather than illuminates, the essential sentencing task.
I consider that, in determining the objective gravity of the offence of aggravated burglary, it is far more useful to concentrate on some of the other kinds of (non-exclusive) features identified in Meyers,[12] a number of which were reflected in the respondent’s offending.
[12]Ibid 498 [48].
TAYLOR JA:
I agree with Boyce JA.
BOYCE JA:
Introduction
The respondent pleaded guilty in the County Court, on 19 August 2024, to two charges of contravening a family violence intervention order intending to cause, or knowing that his conduct would probably cause, apprehension or fear in a protected person for her own safety or that of any other person contrary to s 123A(2) of the Family Violence Protection Act 2008 (‘Family Violence Protection Act’) (charges 1 and 4). He also pleaded guilty to two charges of making a threat to kill contrary to s 20 of the Crimes Act 1958 (‘Crimes Act’) (charges 2 and 7); one charge of aggravated burglary contrary to s 77 of the Crimes Act (charge 3); one charge of persistent contravention of a family violence intervention order contrary to s 125A of the Family Violence Protection Act (charge 5), and one charge of attempting to pervert the course of justice contrary to the common law (charge 6).
The respondent was sentenced on 4 December 2024 as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| Indictment P11650679.1 | ||||
| 1 | Contravention of order intending to cause harm or fear for safety | 5 years | 10 months | 2 months |
| 2 | Make threat to kill | 10 years | 1 year | 3 months |
| 3 | Aggravated burglary | 25 years | 2 years and 2 months | Base |
| 4 | Contravention of order intending to cause harm or fear for safety | 5 years | 8 months | 1 month |
| 5 | Persistent contravention of family violence intervention order | 5 years | 1 year | 2 months |
| 6 | Attempting to pervert the course of justice | 25 years | 1 year and 6 months | 3 months |
| 7 | Make threat to kill | 10 years | 1 year | 3 months |
| Total Effective Sentence: | 3 years and 4 months’ imprisonment | |||
| Non-Parole Period: | 2 years and 2 months | |||
| Pre-sentence Detention Declared: | 491 days | |||
| Section 6AAA Statement: | 5 years’ imprisonment with a non-parole period of 3 years and 7 months | |||
| Other Relevant Orders: | Sentenced as a serious offender pursuant to s 6F of the Sentencing Act 1991 on charges 2 and 7 | |||
The appellant appeals against these sentences. The appellant’s ground of appeal is in the following terms:
Ground 1: The individual sentences imposed on charges 1 to 7, the orders for cumulation, the resulting total effective sentence and the non-parole period are manifestly inadequate.
For reasons that follow, I would uphold the appellant’s ground of appeal, allow the appeal, and resentence the respondent.
The offending
The respondent was 33 at the time of his offending and 34 when he was sentenced. The primary victim of the respondent’s offending (‘the complainant’) had been in an intimate relationship with the respondent, on and off, since 2012. She was 28 at the time of the offending. The complainant had a son, ‘AB’; he was aged three. Another of the respondent’s victims, ‘CD’, was the complainant’s grandmother. She was aged 69. ‘EF’ was the respondent’s mother. She was 66 at the time of the offending.
The respondent had, during the course of their relationship, inflicted ‘family violence’ upon the complainant. On 9 May 2023, the respondent became the subject of a final intervention order made in the Magistrates’ Court. Protected persons named in that order were the complainant and AB. The terms of this order enjoined the respondent:
a.Not to intentionally damage property belonging to the protected person(s);
b.Not to contact or communicate with a protected person by any means;
c.Not to publish on the internet, by email or other electronic communication any material about the protected person;
d.No to be within 10 metres of a protected person; and,
e.Not to be at or within 100 metres of any place where a protected person lives or works.
The respondent was also made the subject of a full, no contact, intervention order naming EF as the protected person.
The charge 1, 2 and 3 offending
On 31 July 2023, the complainant was staying at CD’s address. At 12:31 pm the complainant received a text message on her telephone, sent by the respondent. The message read: ‘I on my way now’. The following text exchange then took place between the respondent and the complainant:
| Sender | Receiver | Message Content |
| Complainant | Respondent | Are you? So are the jacks Or you can just leave me the fuck alone And we can call it a day Wanna post on my wall this that You little crumb Fuck you |
| Respondent | Complainant | Mind your business Then Simple |
| Complainant | Respondent | I will leave me alone for good |
| Respondent | Complainant | But you have always ruin things |
| Complainant | Respondent | No you do I don’t wan to be with someone who treats there mum that way how will you treat me the exact same |
| Respondent | Complainant | I was planning on bashing you when I was to see you anyway |
| Complainant | Respondent | Haha your cute aren’t ya |
| Respondent | Complainant | For all the shit you put me through when I was in Jail |
| Complainant | Respondent | Okay |
| Respondent | Complainant | I’m on my way Watch you’ll see how quietly I’ll sneak into your house from your backyard door If you dare call the police when I get there I promise you I’ll break down the window and I’ll kill all 3 of you’s understand (charge 2 — make threat to kill) You started this And choose to get involved |
| Complainant | Respondent | You were going to bash me anyway true |
| Respondent | Complainant | Rent what I said I have a big kitchen knife on me I’m on the plenty rd waiting for tram |
| Complainant | Respondent | Come here I’ll slice you with a knife myself dog |
| Respondent | Complainant | Lol yea sure Why did you get involved U whore See now run back to your back up boyfriend [first name] and tell him what happened See you’re the one who chose to ruin things Answer I'm much happier in jail I carnt live outside here It’s too hard for me So you know what I’m sick of coming in and out so buy the time I get there and you call the cops I’d be there inside and I promise you [the complainant’s name] I’m going to stab all three of yours Think I’m actually joking this time don’t you Right now I’d be begging you not to report me but I couldn’t care less because I’ve made my mind up and I’m sticking with it the cops are not going to sticking there forever there going leave at some point I’m in your street already lol |
These text messages were combined with multiple telephone calls from the respondent to the complainant, as well as numerous Facebook Messenger messages exchanged between the two. The Messenger messages included the respondent saying that he was going to come and terrorise the complainant; that the complainant was a ‘slut’; that the complainant was ‘putrid and dirty’; that the respondent had bashed the complainant ‘time after time’ but the complainant just keeps ‘doing it’; and that the respondent was going to sit and wait and carve the complainant up and ‘box cutter [her] face’.
At 12:46 pm, the complainant called ‘000’ and reported these threats to police. Police attended. The complainant provided a statement to the police and the police took screenshots of the complainant’s mobile telephone. The police then left.
The respondent arrived outside CD’s premises at approximately 3:10 pm. The complainant and CD were inside. The complainant called ‘000’ a further time and requested that police attend urgently. Police re-attended and spoke to the complainant. The complainant described the threats that had been made by the respondent. Police patrolled the area, but were unable to locate the respondent.
Commencing at 3:32 pm, the respondent sent the complainant the following text messages:
I swear [complainant’s name] I see any jacks that will come to yours I swear I am going to come back
They drove past
You fucking dog
Ok I’m on the run again coz of you
Your dead now [complainant’s name]
I’ve left
At approximately 6:15 pm, the respondent returned to CD’s premises. He entered the rear yard. He climbed on top of the rear veranda and attempted to enter the premises through the complainant’s bedroom window. The respondent was disturbed by the complainant and CD. The respondent then left the veranda and approached the back door. This door was glass-panelled. The respondent kicked and hit the glass panelling, causing it to break. The respondent then entered the residence (charge 3 — aggravated burglary).
From 6:22 pm to 6:32 pm, multiple calls were made to 000; some by the complainant, two by an anonymous caller, and one by a friend of the complainant’s who had received a call from the complainant. In one call the complainant requested further police attendance. She complained that the respondent had forced his way into the house and was damaging property. In this call the complainant told police that she and CD were hiding in the toilet. In another call, the complainant could be heard yelling at the respondent to leave the house. In the anonymous call, the caller reported that she could hear the parties screaming and a child crying inside the premises.
The respondent left the property at approximately 6:20 pm. Police arrived at 6:28 pm. They found the complainant and CD inside the premises. At 6:46 pm there was a further text message exchange between the respondent and the complainant:
| Sender | Receiver | Message Content |
| Complainant | Respondent | Hope you bleed out |
| Respondent | Complainant | Nothing serious I’ll be back soon but I told you not to call the cops |
Police were able to record the various threats that had been made via text message and Facebook Messenger. Further Facebook notifications were then received. These consisted of various messages posted by the respondent on the complainant’s Facebook account. The substance of these later messages was as follows:
a.In response to a post made by the complainant, the respondent posted: ‘[the complainant’s name] you’re the biggest whore that lost count to how many arabs you’ve fucked.’
b.In response to another post made by the complainant, the respondent posted: ‘Finally the drop kick junkie is dead raised a ice junkie whore daughter [the complainant’s name] who is a filthy Aboriginal who loves to suck and fuck arabs.’
c.In response to a post about the complainant’s son, the respondent posted: ‘Hope your son gets fist fucked.’
d.In response to another post concerning the complainant and her son, the respondent posted: ‘The whore and the child that need to get raped.’
e.In response to a birthday post for the complainant’s grandmother, the respondent posted: ‘Happy birthday [the complainant’s grandmother’s name], hope you drop dead soon’ and ‘[the complainant’s grandmother’s name] is a the Greek grandmother to the little whore [the complainant’s name].’
Later that evening, the respondent contacted police in an attempt to discover the substance of what had been reported to police. Police encouraged the respondent to attend the nearest police station. The respondent declined to do so.
The respondent was arrested the following day. Police seized two mobile telephones found in the respondent’s possession. The respondent admitted to police that he had broken a window at CD’s premises when the complainant and CD were inside. He said that he had cut his foot during this incident.
The respondent was then transported to the police station. While transporting him, the police covertly recorded the respondent’s conversation with police. The respondent admitted to going to the complainant’s address, twice, in order to get his phone and ‘stuff’. He said that he’d been seeing the complainant every day since he got out of jail, and that ‘no one got hurt’. He denied threatening to kill the complainant or threatening AB. He denied touching them. The respondent provided the security pin-code to one of his telephones that had been seized.
The respondent was then formally interviewed, but he remained mute. He did, however, permit police to photograph his injured right foot.
The respondent’s contravention of the intervention order (charge 1 — contravention of an order intending to cause harm or fear for safety) was particularised in the indictment as follows: sending threatening messages to the complainant; attending the complainant’s address; engaging threatening conduct; and entering the complainant’s home.
The charge 4 offending
Police subjected a mobile telephone seized from the respondent to analysis. The telephone was found to contain the following messages sent by the respondent to EF.
| Sender | Receiver | Message Content |
| Respondent | EF | Wait and see how difficult I’m going to make your life now [first name] left you huh Suffrr I’m going to come there every night and terrorise You You old whore Hahaha |
| EF | Respondent | No i kicked him out from here like a dog he got nothing with him |
| Respondent | EF | Better for me anyway Now better let your room mates know I’m couldn’t be happier now You should have been prepared for this |
| EF | Respondent | I kicked him because of you I got one nice man now very rich lol |
| Respondent | EF | Thankyou and now now I’m going to make you suffer Ok better tel I’m coming every night3am I’m going to bang on the roller shutters |
| EF | Respondent | I know where will you will end up |
| Respondent | EF | If course that’s my second home don’t you know this How long have I been doing this shit now |
| EF | Respondent | I never suffered only you did |
| Respondent | EF | Now at least I don’t have to hurry up and destroy your car I can take my time By the time I’m finished I’ll be gone by the time the cops get there Your black whore 66 your old and I’ll still going to make your life hard Now fuck off and I’ll see you soon xx Now for because you you did that I’m coming there now You dog |
| EF | Respondent | [first name] will take everything from here when I die. You cannot get anything from here because you cannot get any of my things he took my $25000 car |
| Respondent | EF | Suffer You just made the worst mistake that you have ever done in your entire life messaging [the complainant’s name] We didn’t have a fight or one argument until you wine and showed her these messages |
| EF | Respondent | I left the house and gave it on rental for people I'm getting good money for it |
| Respondent | EF | Now no matter what you say or how many times you call the police I’m going to damage everything is see that is in front of me including your car house windows everything And I’m going to come back every night until the police catch me What you just did you will see how bad if a mistake you just made Just wait and see |
The charge 5 offending
On 15 October 2023, the complainant told police that she would not be making anymore statements, and nor would she be attending any further court hearings. The complainant told police that the respondent had been contacting her from prison with the assistance of a third party. Police reviewed various recorded conversations that were conducted by the respondent from prison. Police discovered that the respondent had contacted the complainant by telephone from the prison on eight separate occasions between 1 and 15 September 2023. A summary of these calls was contained in an Annexe attached to the written Crown Opening tendered on the plea.
The charge 6 offending
These recorded conversations also revealed that, between 9 and 29 September 2023, the respondent had attempted to pervert the course of justice on five occasions. In conversations with the complainant, on 9, 10 and 15 September 2023, the respondent told the complainant to make a false statement to police. The respondent also asked the complainant to tell CD not to participate in court proceedings.
In addition, on 9 September 2023, the respondent had a recorded conversation with the third party. During this conversation the respondent requested that the third party tell CD to alter her evidence about the aggravated burglary committed on 31 July 2023. The respondent asked the third party to tell CD to say that she did not remember that the respondent went to the toilet.
On 29 September 2023, the respondent spoke with the complainant from prison. On this occasion he asked the complainant to lie about what had happened during the aggravated burglary. He asked the complainant to lie about having seen the respondent enter the premises.
The substance of these conversations was outlined in the Crown Opening and the attached Annexe.
The charge 7 offending
On 5 October 2023, in a recorded conversation from the prison with the complainant, the respondent threatened to kill the complainant. He said: ‘Cause I am going to cave you, and I’m going to kill you this time.’
The plea
The respondent
The respondent recognised, on the plea, that the aggravated burglary was the most serious aspect of the first ‘tranche’ of his offending.[13] But the respondent submitted that this aggravated burglary had not been ‘confrontational’ in nature. The respondent emphasised that his intent upon entering the premises was to commit theft. There were no further offences of violence committed after entry was obtained. It was submitted that the aggravated burglary had not been committed in company; nor were there any children present; no weapons had been used; and the respondent left voluntarily.
[13]The offending of 31 July 2023.
It was submitted that the attempt to pervert the course of justice was the most serious aspect of the respondent’s second ‘tranche’ of offending.[14] But it was said that the commission of this offence had not been particularly ‘sophisticated’.
[14]The offending of September to October 2023.
The respondent’s relationship with the complainant had been his only significant personal relationship. The pair had been ‘on and off’ for 12 years, or so. There were times when they had lived as a de-facto couple.
The respondent relied on various materials tendered on the plea. These included: a neuropsychological report prepared by Dr Kelly Sinclair; a psychological report prepared by Ms Gina Cidoni; a bundle of prison certificates of completion; urine screens; and two letters of support. One letter of support was from the ‘Muslim Connect Program’ conducted through the Islamic Council of Victoria. Another letter was authored by a co-ordinator of the National Disability Insurance Scheme (‘NDIS’).
The respondent conceded that he would have to receive a term of imprisonment, coupled with a non-parole period. Nevertheless, the respondent submitted that he had offered an early plea, and had cooperated with police. It was submitted that the plea to aggravated burglary was significant because the complainant refused to make a statement. The respondent’s provision of the telephone security code to police was submitted also to be of significance; this was so because without access to this particular phone the prosecution could not have established the offending committed against the respondent’s mother.
Additionally, there were other important and weighty mitigatory considerations that were personal to the respondent.
Central, in this respect, was the fact that the respondent suffered from an intellectual disability.[15] The respondent had also suffered from a dysfunctional childhood.[16] It was contended that the respondent had lowered moral culpability because of his intellectual disability; and also that retribution should be given less weight for this reason. The respondent had other serious cognitive deficits; these stemmed from undiagnosed ADHD and symptoms of PTSD. It was submitted that the respondent’s intellectual disability and cognitive deficits lessened the need for deterrence and denunciation. This was so despite the fact that the present was a case of family violence and, as such, deterrence and denunciation would usually attract considerable weight.
[15]Counsel relied, in this respect, upon The High Court’s decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (‘Muldrock’).
[16]In this respect, counsel relied upon the High Court’s decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’), as well as this Court’s decision in DPP v Herrmann [2021] VSCA 160.
Reliance, in this respect, was placed upon Dr Sinclair’s report. Dr Sinclair assessed the respondent’s intellectual abilities as low to borderline; and concluded that the respondent had suffered from neurodevelopmental cognitive weaknesses since childhood. Such deficiencies would have been present at the time of the respondent’s offending, and would also have affected his ability to exercise proper judgment. Dr Sinclair considered that the respondent experienced untreated symptoms of ADHD; and that these symptoms would also have impacted upon the respondent’s decision-making processes.
It was submitted that the respondent’s mental condition at the time of his offending attracted application of limb 1 of R v Verdins:[17] the respondent was unable to exercise appropriate judgement, and his ability to make calm and rational choices was impaired. This was the case, it was submitted, despite the fact that the respondent had been out of jail for only five days when he offended on 31 July 2023.
[17](2007) 16 VR 269; [2007] VSCA 102.
Turning to his upbringing, the respondent submitted that as a young child he had witnessed ‘regular violence on behalf of his father, weekly violence, physical violence’. This violence occurred, so it was said, against a backdrop of ‘financial insecurity and basic economic insecurity’.
The respondent’s father was some 30 years older than his mother. The father died when the respondent was 12. The mother was unable to cope and so the respondent was placed in foster care. The respondent had been sexually assaulted by one of his foster carers. Upon turning 18, and after leaving foster care, the applicant’s life was characterised by instability and homelessness. He had already commenced using cannabis by the age of 14; but, by adulthood, the respondent had graduated to regular usage of ‘Ice’. The respondent had had limited education. But he had managed to complete Year 10 VCAL at an alternative school — Prace College in Reservoir. The respondent had a limited work history. By the time of the plea he was in receipt of a Disability Support Pension on account of his intellectual disability. The respondent experienced lower back pain caused by a motor cycle accident. He had loss of sensation in his right hand due to a knife attack in 2020.
The nature of the respondent’s upbringing inclined Ms Cidoni to the view that the respondent suffered from ‘traits or elements of PTSD’. On the plea, the respondent’s counsel described a ‘heartbreakingly direct and linear line or causative line’ between what the respondent had been required to witness as a child, and the manner in which he later came to offend.
As to the respondent’s criminal record, it was submitted that that there had been ‘effectively an episode of incarceration in almost every year of [the respondent’s] adult life’. The respondent had not, in the past, been sentenced to particularly long sentences; that is to say, sentences of multiple years in duration. But the respondent was a recidivist. He had been regularly in and out of custody since childhood. In recent years the respondent had been denied parole; thus he had found himself released into the community without sufficient support. This was the first time, however, that the respondent had found himself being sentenced in the County Court at first instance, as distinct from on appeal from the Magistrates’ Court.
Importantly, the respondent submitted, on the strength of the expert evidence, that there was a real risk of him becoming institutionalised.
The respondent had been offered support by the ‘Muslim Connect Program’. He had completed numerous rehabilitative courses in prison, and he wished to do a family violence program once he was sentenced.
The prosecution
The prosecution described the respondent’s offending as ‘awful family violence … [against] the background of multiple like offences having been committed against the same complainant over years’. There had been multiple breaches of intervention orders committed by the respondent in the past, in circumstances where such orders had been designed for the complainant’s protection. The respondent had even, on a prior occasion, breached an intervention order imposed in order to protect his mother.
The prosecutor conceded that it was ‘open’ to take into account, at least to some extent, the sentencing considerations discussed by the High Court in Muldrockv The Queen (‘Muldrock’). But it was emphasised that in the present case Dr Sinclair had concluded that the respondent’s cognitive deficits were unlikely, in any significant manner, to have impacted upon his ability to understand the wrongfulness of his actions.
The prosecutor emphasised also that the respondent’s offending committed on 31 July 2023 occurred very soon after his release from prison.
The reasons for sentence
The judge, in her reasons for sentence, observed that:
It is well established that general deterrence, public denunciation, just punishment and community protection are prominent sentencing factors when sentencing for family violence offending. The higher Courts have made plain that such conduct, which disproportionately effects women, must be denounced and recognised for the fear and harm it causes. As indicated by the maximum penalties your offending is serious and your conduct totally unacceptable.[18]
[18]DPP v Kurtaj [2024] VCC 1996, [36] (‘Reasons’). Her Honour cited DPP v Reynolds (a pseudonym) [2022] VSCA 263 and Skeates (a pseudonym) v The King [2023] VSCA 226 (‘Skeates’).
The judge considered that the respondent’s commission of charge 1 was ‘multifaceted’. It involved ‘both threatening messages and behaviours and an attendance at [CD’s] home’. The judge took into account that these breaches occurred not long after the granting of the intervention order designed for the complainant’s protection.[19]
[19]Reasons, [37].
The judge took into account that the respondent’s commission of charge 5 occurred whilst the respondent was on remand for contravening the same intervention order.
Concerning the commission of the aggravated burglary, the judge made express reference to this Court’s decision in Director of Public Prosecutions v Meyers (‘Meyers’),[20] and observed that:
Importantly, you were acting alone, you were not armed, your intent, as charged, was to steal, and you attended the home at around 6 pm. Your offending can be contrasted with more serious factual examples, and I accept your Counsel’s submission that it does not fall within the higher categories for such offending. However, it is still serious. While not particularly sophisticated or involving detailed preparations, in the lead up to your attendance at the home you were making threats to go to the house and you did so, undeterred by the earlier police presence. After attempting to enter the home through [CD’s] bedroom window you approached the back and forcibly kicked/hit the glass panel causing it to break and then entered. You forcibly entered the home of someone who had an intervention order out against you and who was clearly frightened of you.[21]
[20](2014) 44 VR 486; [2014] VSCA 314 (‘Meyers’).
[21]Reasons, [38].
The judge noted that the charge 6 offending was serious. As the judge described it, this offending ‘strikes at the heart of the administration of justice’.[22] The judge took into account that the respondent was on remand when he committed this offending. According to the judge, the charge 6 offending involved a ‘degree of planning’ because it had to be arranged via a third party.[23] Nevertheless, the judge observed that:
Overall, I accept your counsel’s submission that there are features that take this offence out of the most serious examples. It was not accompanied by threats of violence, though I accept the prosecution submission that it must be viewed against the history of family violence and the other earlier offending. It involved spoken words over the telephone and lacked sophistication, compared with other instances of the offence where a deception is perpetrated on the Court by the creation for example of false documents. Your Counsel also notes that you did not attempt to contact [the complainant’s] grandmother, who was the subject of some of the conversations, directly.[24]
[22]Reasons, [39], quoting DPP v Oksuz (2015) 47 VR 731, 753–4 [95] (Kyrou JA); [2015] VSCA 316 (‘Oksuz’).
[23]Reasons, [40].
[24]Reasons, [41].
The judge remarked that the totality principle was important in this case; especially given the overall period of the offending, and the overlap between the charges. As the judge described it:
Charge 1, 2 and 3 all occur on the 31 July 2023 and the conduct underpinning Charge 3, aggravated burglary, constitutes part of the particulars of charge 1. Also, some of the conduct in respect of Charge 6, constitutes a breach of the order, the subject of Charge 5.[25]
[25]Reasons, [42].
The judge considered that the respondent’s pleas of guilty entitled him to a ‘significant sentencing discount’. These pleas had been entered ‘relatively early’. The judge took into account admissions that the respondent had made to police, as well as his cooperation by having furnished police with the security code to one of his mobile telephones.[26]
[26]Reasons, [45]–[46].
The judge noted Dr Sinclair’s opinion that, whilst the respondent had expressed some regret and had acknowledged his wrongdoing, his expressions of remorse and insight seemed ‘somewhat superficial in nature’. The judge allowed for the fact, however, that this may simply have been reflective of the respondent’s reduced capability to reason and problem-solve.[27]
[27]Reasons, [46].
The judge noted that the respondent had had a dysfunctional upbringing during which he had witnessed his father be violent to his mother. The judge took into account that the respondent had been in foster care from the ages of 14 to 18; that he had experienced sexual assault at the hands of his foster father; and that he had been exposed to substance abuse whilst in residential care.[28]
[28]Reasons, [48]–[50].
The judge considered that much of the respondent’s life had been ‘marred by instability’; and that the respondent often had no place to stay.[29] Noting the respondent’s limited work and educational history, her Honour took into account that, in recent years, the respondent had been in receipt of a disability support pension.[30]
[29]Reasons, [52].
[30]Reasons, [53]–[55].
The judge referred to the respondent’s entrenched drug history, and his diagnosis as suffering from a substance use disorder.[31]
[31]Reasons, [56].
The judge noted the nature of the respondent’s relationship with the complainant.[32]
[32]Reasons, [57].
The judge then turned to the respondent’s criminal history. She noted that the respondent’s criminal offending had commenced in his teenage years, and that the respondent had spent the final years of his childhood alternating between foster care placements and juvenile custody facilities. The judge described the respondent’s criminal history in the following terms:
You have a relevant and extensive criminal history, including for dishonesty and violent offending, including breaches of intervention orders relating to the same victim, harass witness and make threats to kill charges, with recurring periods in custody.[33]
[33]Reasons, [60].
The judge then turned to the opinion of Dr Sinclair and the applicability of Muldrock’s case. Addressing the respondent, the judge observed:
Your premorbid level of intellectual functioning was estimated to fall within the Borderline range of ability and possibly at the Extremely Low range given reports of diagnosed intellectual disability. Your current intellectual abilities were consistent with this and in the borderline range on an overall measure (with full scale IQ score of 76, 5th percentile) although there was some variability within the profile. For example you showed cognitive strength (with performances in the low average to average range for your age) in the areas of auditory attention span and working memory capacity and verbal response inhibition and severe weakness in visual memory (ie ability to learn and remember abstract designs).[34]
[34]Reasons, [62].
The judge noted Dr Sinclair’s view that the respondent’s current cognitive weakness was ‘neurodevelopmental in nature’, rather than acquired. This weakness ‘occur[ed] alongside other neurodevelopmental disorders including reported ADHD and within the context of reported diagnosis of intellectual disability’.[35] This cognitive weakness had been present since childhood and was in existence at the time of the offending. Nevertheless, it was likely that the respondent’s cognition and behaviour was further impacted by substance abuse and other influences.[36]
[35]Reasons, [63].
[36]Reasons, [64].
Dr Sinclair, according to the judge, had noted that the respondent’s mental condition made it difficult for him to learn everyday skills; it impacted upon his ability to understand the consequences of his actions. The respondent’s intoxication would also have exacerbated these difficulties. The judge took into account that Dr Sinclair considered it unlikely that the respondent’s cognitive weaknesses would have impacted upon his ability to appreciate the wrongfulness of his actions. The judge noted Dr Sinclair’s opinion that the respondent’s cognitive weaknesses might affect the impact of prison on the respondent. It was considered, however, that prison was unlikely to make the respondent’s mental state worse.[37]
[37]Reasons, [66]–[68].
The judge then concluded on this topic as follows:
Your Counsel relies upon the principles in Muldrock v R. In that case, the High Court said that ‘the retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally [disabled] offender and to the needs of the community’. He submits, and I accept, that consistent with the principles in Muldrock, those denunciatory purposes of sentencing, along with your moral culpability, require some meaningful modification because of your intellectual disability or cognitive compromise and the impact, as described by Dr Sinclair, that this has on you.[38]
[38]Reasons, [69].
The judge then turned to the topic of the respondent’s upbringing, and the application of Bugmy v The Queen.
The judge noted Ms Cidoni’s view that the respondent possessed features of both PTSD and ADHD, as well as Ms Cidoni’s opinion that the respondent’s PTSD was linked to the respondent’s early exposure to domestic violence and experience of sexual abuse as an adolescent. The judge referred to Ms Cidoni’s opinion that the respondent’s PTSD and ADHD had impacted significantly upon his ability to respond to stressors and make rational choices, but that the respondent’s polysubstance abuse would also have obscured the respondent’s decision-making capacity.[39]
[39]Reasons, [70].
The judge, on this topic, ultimately concluded:
Based on the evidence, I accept that Bugmy has application in the specific sense. However, when considering the nature of the offending, in particular its protracted and persistent nature, along with the likely contribution of substances, I consider that it warrants a modest reduction in your moral culpability. Adopting the general approach, I accept that your subjective culpability, which I would otherwise assess as high, cannot be equated with that of a person who’s had the advantage of a stable and regular environment, free of trauma, abuse and instability. These complex factors mean I must moderate, to some extent, the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentence I impose on you. In addition, they must also inform the weight I give to specific deterrence and protection of the community in your case.[40]
[40]Reasons, [72].
Concerning the respondent’s prospects of rehabilitation, the judge considered that these prospects had to be viewed ‘guardedly’ in light of the respondent’s ‘extensive history’ as well as the ‘challenges and complex issues’ that the respondent faced.[41] The judge noted the respondent’s connection with the Islamic Council of Victoria and the NDIS. Despite the various courses that the respondent had completed, and intended to complete, whilst in custody,[42] the judge gave emphasis to Ms Cidoni’s opinion that the respondent’s risk of family violence recidivism was ‘very high’.[43]
[41]Reasons, [73].
[42]Reasons, [74]–[75].
[43]Reasons, [77].
The judge listed all the purposes of sentencing, and noted that community protection was a particularly important factor in this case. Nevertheless, the judge considered that there were ‘powerful factors in mitigation’.[44]
[44]Reasons, [79].
The judge took into account that the respondent was to be sentenced as a ‘serious violent offender’ on the threat to kill charges. This made community protection the principal purpose of sentencing on those charges. It also mandated, again for those particular charges, presumed cumulation — unless otherwise directed — for any terms of imprisonment imposed.[45]
[45]See Sentencing Act 1991, ss 6D–6E (‘Sentencing Act’).
Finally, the judge noted that the respondent was at risk of becoming institutionalised.[46]
[46]Reasons, [81]–[82].
Submissions
Appellant
The appellant submitted that the objective seriousness of the respondent’s offending meant that the sentences imposed all failed to give effect to denunciation, general and specific deterrence as well as community protection. For instance, the aggravated burglary committed by the respondent was plainly an ‘intimate relationship aggravated burglary’ of the very type that had been regarded as particularly serious by this Court in Meyers. It was submitted that the judge had overlooked this important consideration.
It was emphasised that, despite the respondent’s mental difficulties, the judge had found the respondent’s subjective culpability to be ‘high’. The appellant submitted that the expert evidence did not suggest that the respondent was unable to appreciate the wrongfulness of his actions. It was submitted that there were other factors, such as the respondent’s substance abuse, which had influenced his decision making processes.
The appellant submitted that there was evidence of the respondent’s forethought, planning and concerted efforts to terrorise the complainant. The aggravated burglary was committed only five days after the respondent’s release from prison. The respondent had the presence of mind to anticipate the involvement of police in what he planned to do, but he resolved to offend nonetheless.
The appellant submitted that the charge 6 offending was planned, in the sense that the respondent had enlisted the services of a third party. It was submitted that the respondent’s attempt to pervert the course of justice was a clear demonstration of his understanding that what he had done, on 31 July 2023, was wrong. The respondent’s risk of committing further family violence offending was ‘very high’. Community protection was, therefore, a significant matter.
The appellant submitted that the judge had failed to describe how it was that the respondent’s intellectual disability, and his dysfunctional upbringing, had ‘contributed to the offending’. And the judge had failed to appreciate how the respondent’s cognitive weaknesses, and upbringing, gave rise to a need to protect the community. As the appellant put it, ‘the judge allowed these considerations including the nature of the respondent’s impairment to swamp other considerations including general deterrence, just punishment and community protection’.
The appellant submitted that the respondent’s criminal history was a significant consideration in the sentencing exercise. It was submitted in writing that:
The respondent has a protracted history of family violence against the complainant, and substantial priors including offending against both the complainant and the respondent’s mother. [This history] also concomitantly increased the importance of specific deterrence in the sentencing process.
By reference to other sentencing cases, it was submitted that the sentence imposed on the aggravated burglary charge was out of kilter with current sentencing practice.[47]
[47]The appellant referred to sentences for aggravated burglary imposed in the following cases: Laa v The Queen [2020] VSCA 136; Hatzis v The Queen [2021] VSCA 43; Newton v The Queen [2021] VSCA 207; Stevens v The Queen [2021] VSCA 218.
The appellant submitted that the orders for cumulation failed properly to reflect the separate acts of offending and, in particular, that the respondent’s offending had spanned two entirely separate incidents of violence. The orders for cumulation on the threat to kill sentences (where the respondent was sentenced as a ‘serious violent offender’) failed to reflect the need for presumed cumulation and the primary importance of community protection. It was submitted that the non-parole period failed to reflect the minimum period that justice required the respondent serve, having regard to all the circumstances of the case.
Respondent
The respondent disputed that the sentences imposed upon him were manifestly inadequate.
It was submitted that the judge had not overlooked that the aggravated burglary occurred within a context of family violence. The judge had, at the commencement of the reasons for sentence, noted that all of the respondent’s offending had taken place in such a context; and it was obvious that this was so in any event. After all, the judge had made this point, expressly, when it came to the attempt to pervert the course of justice offending. It was submitted that to criticise the judge for failing to appreciate that the aggravated burglary’s commission occurred in circumstances of family violence was to fall into the trap of reading sentencing reasons with ‘an overly zealous eye for error’.
The respondent emphasised that his early life had been characterised by sexual and violent abuse; and that he had suffered from an intellectual disability as well as other cognitive limitations and personality vulnerabilities. It was submitted that the judge had struck the right balance when it came to these matters. The respondent submitted that, ultimately, the judge had ‘weighed the competing implications of the [r]espondent’s impaired mental functioning in a manner that was open to her’.
As to the other sentencing cases referred to by the appellant, the respondent submitted that these decisions were of limited utility. These decisions all — save for Stevens v The Queen (which was a case where several aggravated burglaries had been committed, each with their own particular aggravating features) — involved assaults where victims had been injured.
The respondent submitted that the manner in which the judge had dealt with totality could not be faulted. Given the overlapping nature of many of the charges, the judge had to be particularly astute not to doubly punish the respondent. It was emphasised that the non-parole period imposed represented 65% of the total effective head term. This, it was submitted, was unremarkable in view of the respondent’s risk of institutionalisation.
As to the risk of the respondent becoming institutionalised, it was submitted orally that taking into account the need to protect the community did not necessarily lead to the imposition of a higher sentence. The risk of the respondent becoming institutionalised was a weighty matter. Reference was made to the ‘Occupational Therapy Assessments’ described in Dr Sinclair’s report. There it was remarked that the respondent required assistance with ‘shopping, food preparation, housekeeping, transportation, and medical management’. It was clear that the respondent’s release into the community would require support so that he might adjust, adapt and develop appropriate living skills.
The respondent submitted that to increase the sentence imposed on the respondent, in order to protect the community, was counterintuitive. Doing so would impede the respondent’s rehabilitation and thus fail to protect the community in the long-term. It was submitted that the surest way to protect the community was to diminish the risk of institutionalisation. Thus it was open to the sentencing judge to impose the sentences that she did.
The respondent submitted that the sentencing judge’s reasons were unimpeachable.
Consideration
Introduction
The principles that apply to a Crown appeal against sentence, when the error pleaded is manifest inadequacy, find expression in Director of Public Prosecutions v Karazisis:
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.[48]
Family violence
[48](2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at 637 [1]) (citations omitted); [2010] VSCA 350.
In 2023, this Court in Skeates(a pseudonym) v The King (‘Skeates’) referred to the ‘unequivocal message’ that it had sent in its 2014 decision in Pasinis v The Queen.[49] That message related to the ‘prominence deterrence must achieve in sentencing conduct in the context of family violence’.[50] The Court in Skeates also listed the repeated statements of this Court that had been made, since Pasinis, which dealt with the ‘need for condign punishment to denounce and deter family violence … because of its prevalence and the seriousness of its consequences’.[51]
[49][2014] VSCA 97, [57] (Neave JA and Kyrou AJA) (‘Pasinis’).
[50]Skeates [2023] VSCA 226, [55] (Emerton P, Niall and Taylor JJA).
[51]Ibid [56].
In Skeates, this Court declared that ‘[f]amily violence is contemptible’. The Court emphasised the importance, when sentencing an offender for offences committed in the context of family violence, of deterrence (both specific and general), denunciation, protection of the community, ‘condemnation’ and ‘appropriate punishment’.[52] The Court went on to observe that:
It follows that in assessing the totality of the circumstances that pertain to any offence committed in the context of family violence, the surrounding behaviours of the offender must be considered to assess the true gravity of the offending and for ‘the sentence to vindicate the dignity of [the] victim’.[53]
[52]Ibid [59]–[60].
[53]Ibid [62], quoting Marrah v The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA).
In Sepehrnia v The King,[54] a case where an offender had raped and threatened his intimate partner, Priest and Niall JJA[55] cited Skeates, and observed that:
If there ever was a time in which the volatility and imperfection of human relationships provided some moderating context to crimes of violence occurring within a domestic setting, that time has long passed.[56]
[54][2024] VSCA 149 (‘Sepehrnia’).
[55]As Niall CJ then was.
[56]Sepehrnia [2024] VSCA 149, [67].
Clearly it was central to the task of sentencing the respondent, for all of his offending, that consideration be given to the fact that this offending was committed in the context of family violence.
Aggravated burglary
The appellant’s case is that all of the sentences imposed upon the respondent are manifestly inadequate, including the non-parole period. Nevertheless, by reference to the applicable maximum penalty, the aggravated burglary was the most serious charge that the respondent faced. It was this offence that ultimately attracted the longest individual sentence; and it was this particular sentence that formed the base sentence underpinning the respondent’s total effective sentence. In consequence, if the aggravated burglary sentence is manifestly inadequate, and requires increase, then an increase to the total effective sentence and non-parole might also be expected. Thus, it is convenient to commence with an analysis of the adequacy of the sentence of 2 years and 2 months’ imprisonment imposed on the aggravated burglary charge.
The maximum penalty for aggravated burglary is 25 years’ imprisonment.
In 2012, this Court in Hogarth v The Queen (‘Hogarth’)[57] held that sentencing practices for the offence of aggravated burglary, where the offence was committed in circumstances the Court described as ‘confrontational’, were too low and required an increase.[58]
[57](2012) 37 VR 658; [2012] VSCA 302 (‘Hogarth’).
[58]Ibid 673–4 [58]–[63] (Maxwell P, Neave JA and Coghlan AJA).
Two years later this Court, in the Crown appeal of Meyers, had cause to reflect upon its holding in Hogarth. The circumstances of Meyers, in the broadest outline, were as follows. A male offender attended at the premises of his former female partner. The offender was armed with a sawn-off shotgun, other weapons, as well as various implements of restraint. The offender’s former partner was inside the house. The offender smashed the rear sliding door and entered the premises. Once inside, the offender assaulted his former partner and, ultimately, restrained her. The offender pleaded guilty to a number of offences, including aggravated burglary.[59]
[59]Meyers (2014) 44 VR 486, 489–91 [8]–[24]; [2014] VSCA 314.
This Court, in Meyers, described the scope of the sentencing ‘uplift’ that it had previously declared in Hogarth. The Court observed as follows:
Put simply, Hogarth established that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.[60]
[60]Ibid 489 [6] (Maxwell P, Redlich and Osborn JJA).
As Priest JA explains in his reasons,[61] the Court in Meyers – whilst not relinquishing the descriptor ‘confrontational’ – held that Hogarth should be understood as removing the constraint of current sentencing practices for aggravated burglary ‘in all its more serious forms’.
[61]At [8] above.
The Court, in Meyers, described features ordinarily of relevance when assessing the objective seriousness of any particular instance of aggravated burglary. Those features were as follows:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
·the mode of entry (eg, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.[62]
[62]Ibid 498 [48].
As to the ‘particular seriousness’ of aggravated burglaries which involve ‘former domestic partners’, the Court in Meyers stated that:
Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.
General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.[63]
[63]Ibid 497–8 [45]–[46].
In 2021, this Court in Brown v The Queen[64] surveyed the sentencing landscape for aggravated burglary that had evolved since Hogarth’s case. The Court, in Brown, acknowledged that ‘sentencing standards for aggravated burglary have been undergoing a steady transition since this Court’s 2012 decision in [Hogarth]’.[65] The Court noted, for example, that ‘[i]n three cases in 2018 this Court upheld sentences of 6, 7 and 8 years respectively in relation to aggravated burglary’.[66]
[64][2021] VSCA 204.
[65]Ibid [34] (Maxwell P and Sifris JA).
[66]Ibid [42].
In exercising the instinctive synthesis a sentencing court is bound to have regard to current sentencing practices. But the importance of these practices must be kept in their proper perspective. As the High Court observed in Director of Public Prosecutions vDalgliesh,[67] while s 5(2)(b) of the Sentencing Act 1991 (‘Sentencing Act’) provides that current sentencing practices are a relevant consideration, that factor is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion.[68]
[67](2017) 262 CLR 428; [2017] HCA 41.
[68]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
One factor of particular relevance in this case was the respondent’s criminal history. As was clear, the respondent had relevant prior convictions. His ‘Victoria Police Criminal History Report’, tendered on the plea, extended to some 38 pages. Quite apart from prior offending involving dishonesty and violence, the respondent had numerous prior convictions for breaching intervention orders, burglary and making threats to kill. The respondent did not, however, have any prior convictions for aggravated burglary.
It is apparent from Ms Cidoni’s report that she asked the respondent about his prior ‘family violence related offending’; and it appears that the respondent answered this particular query by admitting that some of his earlier offending, of this particular nature, had involved the complainant. Dr Sinclair offered the following summary:
From 2013 to 2017 and 2019 to 2023 charges have also included family violence intervention orders and contravening and persistent contravene FVIO, stalk, makes threats to kill, harass witness, criminal damage, and others, for which there has been CCO and further imprisonment. [The respondent] said that this has mostly occurred within his personal and intimate relationships. The Summary of Charges details a history involving 45 family violence incident reports (from July 2012 to 2023) where [the respondent] is the perpetrator and his former partner and her son are the protected persons, as well as his mother.
As has already been indicated, the respondent had already served many terms of imprisonment. Some of these terms were for periods of no longer than a number of months. The respondent had also, in the past, had the benefit of community based dispositions. But the respondent had breached orders of this nature. The respondent has spent much of his adult life in custody.
The respondent’s commission of the present aggravated burglary is a concerning perpetuation of his criminal history. It occurred, yet again, in the context of family violence directed at the complainant, and only days after his release from prison.[69]
[69]The respondent had been sentenced to an aggregate eight-month period of imprisonment in the Broadmeadows Magistrates’ Court on 15 June 2023. His entitlement to release, so soon after this sentence was imposed, was due to a period of 203 days that was able to be reckoned as pre-sentence detention.
Notwithstanding that the respondent’s intention upon entry into the relevant premises was to steal, this aggravated burglary was a species of the genus of offence considered appropriate for sentencing uplift by this Court in Hogarth and Meyers.[70] In Hogarth itself it appears that the offender possessed an intention to steal;[71] and the ‘defining characteristic’ of a ‘confrontational’ aggravated burglary, as expressed in Hogarth,[72] was that entry be obtained by an offender ‘in the context of a dispute with or grievance against someone in the premises’.[73] That was obviously the case here.
[70]See Comensoli v The Queen [2020] VSCA 2, [17]–[22] (Maxell P and Whelan JA).
[71]Hogarth (2012) 37 VR 658, 660 [2], 662 [16] (Maxwell P, Neave JA and Coghlan AJA); [2012] VSCA 302.
[72]To the extent that such categorisation remains of utility.
[73]Ibid 672 [54].
That said, the respondent’s commission of the present aggravated burglary did not possess features of seriousness that are regularly seen. For instance, the respondent was not armed; he did not offend in company; the offence was not committed in the dead of night under cover of darkness; and the respondent was not disguised.
The present aggravated burglary was committed in breach of an intervention order. But a separate charge accounted for the criminality inherent in that breach. To the extent that the breach offence was particularised by reference to the respondent’s entry into the relevant premises, it was important to avoid double punishment.
There were, however, important matters that went in mitigation. The judge was prepared, for instance, to modify the need for denunciation, as well as lessen the respondent’s moral culpability, on account of the intellectual disability and other cognitive difficulties suffered by the respondent.[74] The respondent’s difficult upbringing also entitled him to a ‘modest reduction’ in moral culpability, as well as some moderation of deterrence (specific and general), denunciation and punishment.[75]
[74]Reasons, [69].
[75]Reasons, [72].
But while the respondent’s upbringing and cognitive difficulties permitted mitigation, these features also bore upon the need to protect the community.[76] As Ms Cidoni opined in her report:
[The respondent’s] mental health conditions, particularly PTSD and ADHD, along with his history of substance use, significantly impact his ability to respond to stressors and make rational choices. PTSD results in heightened stress responses, leading to increased emotional reactivity and difficulty regulating emotions. When faced with stressors, such as arguments or conflicts, he experienced intense emotional reactions, overwhelming his capacity to respond calmly. ADHD affects executive functions like impulse control and decision-making where symptoms impair his ability to consider consequences and make rational choices, especially in heated situations. Substance use, particularly methamphetamine and GHB, can disinhibit behaviour and increase impulsivity. His polysubstance abuse likely lowered his inhibitions, making him more prone to aggressive outbursts. Emotional dysregulation, stemming from both PTSD and substance use disorders, may have escalated the intensity of his reactions during conflicts, contributing to aggressive behaviour.
His risk of family violence reoffending is assessed as high without support, based on several risk factors present in his case.
These risk factors include early behavioural issues, an extensive criminal history of repeat offending, non-compliance with conditional releases, substance use problems, and comorbid mental health issues, particularly his intellectual disability, PTSD, and likely ADHD, which he has never received support for, and which has subsequently manifested in criminal behaviours.
[76]See, for instance, R v Engert(1995) 84 A Crim R 67, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72) (‘Engert’); Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
One of the purposes of sentencing is the need to protect the community from the offender.[77] It has been said that ‘the protection of the community is one of the most important results that the criminal law is designed to secure’.[78] The need to protect the community is sometimes viewed as a sentencing purpose that arises as a counterweight from matters that otherwise might be thought to tend towards mitigation.[79] An obvious means by which the community may be protected from an offender is through the offender’s incapacitation.[80]
[77]Sentencing Act, s 5(1)(e).
[78]R v Pedder (Supreme Court of Queensland, Gibbs J, 29 May 1964), quoted in Channon v The Queen (1978) 20 ALR 1, 10 (Brennan J); [1978] FCA 16, and cited in Veen v The Queen [No 2] (1988) 164 CLR 465, 475 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14 (‘Veen [No 2]’).
[79]See Engert, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72) and Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[80]See, for instance, Todd v The Queen [2020] VSCA 46, [60] (Ferguson CJ, Priest and Beach JJA). See also Veen [No 2] (1988) 164 CLR 465, 472, 475 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.
Yet proportionality sets the limit when fulfilling this particular purpose of sentencing. Thus, in Veen v The Queen [No 2], it was stated by the High Court that:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.[81]
[81]Veen [No 2] (1988) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.
It has also been recognised, however, that a sentencing disposition ‘productive of reformation’ may offer ‘the greatest protection to society’.[82] It has been said that it may be in the ‘interests of the community’ that sentences imposed ‘be such as to enhance, rather than undermine’ an offender’s ‘rehabilitation prospects’, especially where there is a prospect that an offender may become ‘institutionalised’.[83] So much flows from the truism, often expressed, that:
Equally, while protection of the community [is] a significant factor in the sentencing synthesis, nevertheless the fact remains that [the offender] must, at some time, complete whatever sentence [is] imposed on him.[84]
[82]DPP v Buhagiar and Heathcote [1998] 4 VR 540, 547 (Batt and Buchanan JJA).
[83]DPP v Green [2020] VSCA 23, [93] (Maxwell P, Priest and Kaye JJA).
[84]Ibid [92].
Relevantly, for present purposes, Charles JA observed (with the agreement of Winneke ACJ and Eames JA) in Director of Public Prosecutions v Stone as follows:[85]
I accept without hesitation that a judge is entitled to, indeed should, take into account in sentencing the purpose of preventing recidivism and institutionalisation and facilitating a prisoner’s reintegration into the community.[86]
[85][2003] VSCA 208.
[86]Ibid [20].
Drawing these various threads together, Professor Freiberg put the matter succinctly:
Thus community protection, whether by way of incapacitation of the offender or their treatment, remains relevant to fixing sentence. But the protection must be sought only within the outer durational limits set by the principle of proportionality.[87]
[87]Arie Freiberg, Fox & Freiberg’s Sentencing: State and Federal Law in Victoria (Lawbook, 3rd ed, 2014) 243 [3.65].
Protection of the community from the respondent, through the respondent’s incapacitation, was a compelling sentencing purpose in this case. So much flowed from the objective seriousness of the respondent’s offending; the nature of his criminal history; the respondent’s decision to offend again in the present manner so soon after his release from prison; and, as well, from the substance of some of the text messages that the respondent sent to the complainant. As Priest JA remarked during argument at the hearing of this appeal, it was clear that the respondent was not deterred by the prospect of imprisonment.
Nevertheless, as weighty and compelling as the need to protect the community from the respondent in this manner was; the respondent’s risk of institutionalisation still remained a matter of relevance. This was so despite the limited means at the sentencing court’s disposal effectively to protect against this risk. The weighing of these matters was quintessential to the exercise of the instinctive synthesis.[88]
[88]See Engert(1995) 84 A Crim R 67, 68 (Gleeson CJ, Allen J agreeing at 72, Sully J agreeing at 72).
The respondent’s plea to aggravated burglary was entered ‘relatively early’; and he had cooperated with police. But his remorse was somewhat superficial. The respondent’s prospects of rehabilitation were, at best, only guarded; and, as already indicated, the respondent’s risk of family violence recidivism was high.
In conclusion, I cannot accept senior counsel for the respondent’s submission that the sentence of 2 years and 2 months’ imprisonment imposed on the aggravated burglary charge is not wholly outside the range of available sentencing options. Synthesising all relevant matters, I am of the clear opinion that this sentence is manifestly inadequate. In my view this sentence, as the appellant contends, fails to reflect the objective gravity of the respondent’s offending and the applicable maximum penalty. It also fails properly to take into account the need to protect the community.
Although the present aggravated burglary did not possess features often seen in other, more serious, cases; and although it must be accepted that the respondent is at risk of becoming institutionalised; a sentence of 2 years and 2 months’ imprisonment betrays that far too much weight was placed upon matters in mitigation, and that insufficient regard was paid to considerations such as deterrence (both specific and general), denunciation and the need for punishment. These latter considerations were of particular importance having regard to what this Court said in Skeates.
The sentence imposed on the aggravated burglary charge is manifestly inadequate and must be increased.
I would therefore allow the appeal, set aside the aggravated burglary sentence imposed in the County Court, and resentence the respondent on that charge to imprisonment for 4 years.
The respondent’s other offending
The other sentences imposed on the respondent fall into two categories. In the first category are the sentences imposed on charges 1, 2 and 4. These relate to the respondent’s offending on 31 July 2023. In the second category are the sentences imposed on charges 5, 6 and 7. These relate to the respondent’s offending in September and October of 2023.
All this offending, like the aggravated burglary, was committed in the context of family violence. It is unnecessary, also, in dealing with this offending, to repeat the various matters personal to the respondent summarised above, including the matters upon which the respondent could rely in mitigation.
As to the sentences imposed upon the respondent for the first category of offending, the appellant acknowledged during argument that his case was weak when it came to the charge 4 sentence — the sentence for the respondent’s breach of the intervention order where his mother was the protected person. It was submitted, orally, by the appellant that ‘perhaps eight months is ok for charge 4’. I would, in the end, not uphold the appellant’s contention of manifest inadequacy in respect of the charge 4 sentence.
I would, however, uphold the appellant’s contention of manifest inadequacy as applied to the sentences imposed on charges 1 and 2 — the respective charges of breaching the intervention order where the complainant was the protected person, and threatening to kill the complainant. This was yet further offending, including offending of a threatening nature, committed by the respondent against the complainant in circumstances where a court order designed for the complainant’s protection was breached.
Examined against the respondent’s history of offending against the complainant, the breaches of the intervention order as reflected in charge 1 were particularly egregious; as was the threat to kill. Having regard to the need not to doubly punish the respondent, given the interrelationship between charges 1, 2 and 3, I would set aside the sentences imposed on charges 1 and 2 and, in lieu, resentence the respondent to 18 months’ imprisonment on charge 1, and 18 months’ imprisonment on charge 2.
As to the sentences imposed upon the respondent for his offending in the second category; again, in discussion with Priest JA at the oral hearing of this matter, the appellant acknowledged that his case was weak in respect of the sentence imposed on charge 6 — the 18-month sentence for attempting to pervert the course of justice. This concession appeared to flow from an appreciation of current sentencing practice for offending of this nature; a practice that was described, in argument, as perhaps sitting somewhat at odds with the applicable maximum penalty of 25 years’ imprisonment. The director acknowledged, orally, that it was ‘perhaps correct’ to say that the charge 6 sentence was ‘at the low end of the scale rather than something that immediately jumps out as being manifestly inadequate’.
The respondent’s charge 6 offending was particularly troubling. Speaking of the offence of attempting to pervert the course of justice, Kyrou JA, in Director of Public Prosecutions v Oksuz (‘Oksuz’),[89] observed that:
The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence — or giving truthful evidence — in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown’s ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.[90]
[89]Oksuz (2015) 47 VR 731; [2015] VSCA 316.
[90]Ibid 753–4 [95].
As Kyrou JA made clear in Oksuz, the seriousness of any particular instance of attempting to pervert the course of justice may be gauged by reference to the seriousness of the offence that is sought to be avoided.[91] In this case it would appear that the respondent was seeking to avoid being punished for the particularly serious offence of aggravated burglary.
[91]Ibid 754 [97].
This Court has, in recent years, considered sentencing for the commission of the offence of attempting to pervert the course of justice when the offence is committed in circumstances of family violence; such as where an alleged perpetrator of family violence has sought to dissuade a witness — including the victim of such violence — from giving evidence. Thus, in Qayyum v The King,[92] it was observed that:
This Court has on a number of occasions stated, as a matter of principle, that an attempt to pervert the course of justice in a family violence context ‘is always a grave matter’. In Baker (a pseudonym) v The Queen, this Court said as follows:
An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation. While warranting distinct punishment, however, care must be taken not to punish the offender again for the offending which it was sought to conceal.[93]
[92][2025] VSCA 14.
[93]Ibid [96] (Emerton P and J Forrest AJA) (citations omitted).
In Fusca v The King,[94] this Court noted that:
As the applicant accepted, the decision in Oksuz reveals that there are other cases that might properly inform the identification of current sentencing practices for the offence of attempting to pervert the course of justice. In that case Kyrou JA pointed out that sentences of between 2 and 4 years’ imprisonment have commonly been imposed for this offence.[95]
[94][2024] VSCA 297.
[95]Ibid [51] (Walker and T Forrest JJA).
In Fusca, the applicant had perpetrated family violence against a female complainant. This violence was witnessed by a third party who later made a statement about it to the police. The applicant, whilst in custody, contacted the third party repeatedly in an endeavour to have him alter, or withdraw, his statement.[96] The Court held that a sentence of 18 months’ imprisonment was not manifestly excessive.[97]
[96]Ibid [5]–[24].
[97]Ibid [53].
In all the circumstances, I consider that the sentence of 18 months’ imprisonment imposed upon the respondent for the charge 6 offending was low. This sentence could well have been higher. Nevertheless, I am not persuaded that it is manifestly inadequate.
That leaves the sentences imposed on charges 5 and 7. Essentially for the same reasons, given above, which concern the sentences imposed on charges 1 and 2, I would uphold the appellant’s contention of manifest inadequacy. Again, care has to be taken so as not to doubly punish the respondent for any overlap in culpability as may exist between charges 5, 6 and 7. Yet, it must be remembered that the charge 6 sentence is already quite low.
I would, therefore, set aside the sentences imposed on charges 5 and 7; and, in their stead, impose terms of imprisonment of 18 months’ imprisonment on each of those charges.
Totality
Having increased the sentences on all charges, save for charges 4 and 6, it becomes necessary to reconsider the issue of totality. Consistently with the increases to the individual sentences already indicated, I consider — in all the circumstances — that the total effective sentence imposed on the respondent must be increased.
Like the sentencing judge, I would make the new charge 3 sentence of 4 years’ imprisonment the base sentence. I would then make orders for cumulation in respect of the other individual terms of imprisonment.
The proposed orders for cumulation must take into account totality, and the need to avoid double punishment. Totality must be applied, also, having regard to the fact that the respondent falls to be sentenced as a ‘serious violent offender’ for the purposes of Part 2A of the Sentencing Act, on charges 2 and 7. Thus, pursuant to s 6D(a) of the Sentencing Act, protection of the community from the offender must be regarded as the principal purpose for which sentence is imposed on charges 2 and 7. Further, according to s 6E of the Sentencing Act, any terms of imprisonment imposed on the respondent in the case of charges 2 and 7 must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the respondent whether before or at the same time as those terms.
With these considerations in mind, and having made the 4-year sentence on charge 3 the base sentence, I would cumulate 2 months of each of the sentences imposed on charges 1, 4, 5 and 6, and 5 months of each of the sentences imposed on charges 2 and 7, upon the sentence imposed on charge 3 and upon each other. This produces a total effective sentence of 5 years and 6 months’ imprisonment. I would order that the respondent serve 3 years and 6 months before becoming eligible for parole.
Pursuant to s 6AAA of the Sentencing Act, I state that — but for the pleas of guilty — I would have imposed upon the respondent a total effective sentence of 8 years and 3 months’ imprisonment with a non-parole period of 5 years and 4 months.
Conclusion
It is certainly a regrettable aspect of this case that the respondent is at risk of becoming institutionalised. Nevertheless, for the reasons stated above, that risk cannot stand in the way of the success of the appellant’s appeal. The respondent has completed courses in prison and has furnished clean urine screens. He has, in the past, participated in a ‘Justice Plan’. The respondent described this Justice Plan as a ‘game-changer’. The respondent has expressed a strong desire, when he is released, to participate in the Basin Centre’s 16-week residential rehabilitation program. It is to be hoped that this — or some similar program — can be arranged for the respondent when he is released, and that it will prove successful.
The appeal is allowed. The sentences imposed in the County Court are set aside. The respondent will be resentenced in the manner foreshadowed above.
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