DPP v Reynolds
[2022] VSCA 263
•29 November 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2022 0104
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| GREGORY REYNOLDS (a pseudonym) | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA, and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 November 2022 |
| DATE OF JUDGMENT: | 29 November 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 263 |
| JUDGMENT APPEALED FROM: | DPP v Gregory Reynolds (a pseudonym) [2022] VCC 1070 (Judge Karapanagiotidis) |
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CRIMINAL LAW – Sentence – Crown Appeal – Family violence – Intentionally causing injury threats to kill and other offences – Respondent sentenced to a total effective sentence of 9 months and 42 days’ imprisonment with community correction orders of 970 days’ duration – Whether sentence manifestly inadequate – Appeal allowed – Respondent resentenced to 3 years and 3 months’ imprisonment with non-parole period of 18 months.
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| Counsel | |||
| Appellant: | Mr B Kissane KC with Mr E Dober | ||
| Respondent: | Mr P Morrissey SC with Ms G Connelly | ||
Solicitors | |||
| Appellant: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Respondent: | Ann Valos Criminal Law | ||
PRIEST JA:
Conscious that the Court ought not countenance a sentence that is ‘weakly merciful’,[1] after much reflection I have concluded that this appeal against sentence should be dismissed. I thus differ from T Forrest JA and Kidd AJA, whose joint reasons for judgment I have had the advantage of reading in draft. Given their thorough treatment of the circumstances of the offending; the submissions of the parties; and the relevant issues; I am able to express my conclusions with relative brevity.
[1]See R v Radich [1954] NZLR 86, 87; R v Williscroft [1975] VR 292, 298 (Adam and Crockett JJ) (‘Williscroft’). See also R v Miceli [1998] 4 VR 588; Richard G Fox, When Justice Sheds a Tear: The Place of Mercy in Sentencing, (1999) 25 Monash University Law Review 1, 3.
Several things in this appeal have given me pause, principal among them being the lengthy delay in the matter being finalised; the very significant reformation undergone by the respondent in the meantime; and the attitude of the respondent’s victims, who will be subjected to significant additional trauma flowing directly from the respondent’s imprisonment. Ultimately, I have concluded that, notwithstanding the very serious nature of the respondent’s offending, the imposition of an effective term of imprisonment of almost 10 months in length, coupled with concurrent community correction orders of a duration of two years and eight months, was within the range of sentences open to the sentencing judge in the sound exercise of the sentencing discretion.
In Williscroft, a prosecution appeal, Starke J (in dissent as to result) observed:[2]
It cannot be, I think, that in all cases and as to all crimes the element of deterrence is the main consideration and the element of reformation or rehabilitation subsidiary to it. Depending on the circumstances and the nature of the crime, sometimes more weight will be given to the reformatory element than to deterrence, and sometimes the opposite will be the case. Deterrence, of course, has two aspects; one is deterrence of the actual offenders, and the other is deterrence of other people who might be minded to commit similar crimes. For practical purposes the only other element of punishment remaining today is, I think, a consideration of the protection of the public at large, or prevention. Retribution as an element of punishment has by now, in my opinion, disappeared, or practically disappeared, from our criminal law. It is often taken for granted that if leniency for the purpose of rehabilitation is extended to a prisoner when the judge is passing sentence, that this leniency bestows a benefit on the individual alone. Nothing, in my opinion, is further from the truth. Reformation should be the primary objective of the criminal law. The greater the success that can be achieved in this direction, the greater the benefit to the community.
[2]Williscroft, 303–4; R v Valentini (1980) 2 A Crim R 170, 174 (Bowen CJ, Muirhead and Evatt JJ).
On one level, the underlying purpose of all criminal law — and, as an aspect of it, sentencing — is the protection of the community.[3] As to that, one often sees it suggested (at least by implication) that community protection is promoted only by lengthy, punitive sentences of imprisonment. With respect, however, the views expressed by Starke J have much to commend them. Leniency extended to an individual in sentencing to promote his or her rehabilitation may often be of greater benefit to the community — and offer greater protection to the public at large — than a sentence that has a largely retributive component. Indeed, those experienced in the criminal law know that leniency extended at a particular stage of an offender’s life may pave the path to reform.[4] This appears to me to be such a case.
[3]Williscroft, 300 (Adam and Crockett JJ).
[4]See, eg, R v Osenkowski (1982) 30 SASR 212, 212–3 (King CJ) (‘Osenkowski’).
The provisions of s 5(1) of the Sentencing Act 1991 make it clear that the ‘only purposes for which sentences may be imposed’ are to: punish an offender (to an extent and in a manner which is just in all of the circumstances); deter him or her or others from committing offences of the same or a similar character; facilitate his or her rehabilitation; denounce his or her conduct; protect the community; or a combination of two or more of those purposes. Although those purposes will often pull in different directions, there will be occasions — as I have indicated, I consider this to be one — where a sentence fostering rehabilitation will be more effective in promoting community protection than a relatively lengthy sentence of imprisonment.
In the present case the judge’s reasons for sentence were careful and thorough. She accepted that there had been a three year delay in resolving the matter which was not attributable to the respondent. Quite correctly, the judge observed:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.
In your case, I take into account that this matter has been hanging over your head for a considerable period of time now. In addition and importantly, you are in a position to demonstrate to the Court that you have taken steps to rehabilitate and to change.
Furthermore, the judge observed that the respondent’s prospects of rehabilitation were — as he had ‘demonstrated over the last few years’ — good. During the delay, he had undertaken a Men’s Behaviour Change program and had actively engaged in a positive way with his church. Indeed, the judge considered that the respondent’s prospects of rehabilitation were enhanced by his strong family support, his solid work history, his recent employment and his work and connections with the Church. She said:
[Y]ou were initially removed from the family home and child protection intervened in your family. Your children were subject to Child Protection Intervention due to their exposure to family violence and were placed on a 3 month Family Preservation order. This order lapsed on 29 April 2020 due to no further protective concerns arising. I received a letter from Aaron McDonald, Child Protection Practitioner, who previously worked alongside you. He states that you had full engagement with Child Protection and were able to adhere to the conditions of the Children’s Court order. He also notes that you engaged in a men’s behaviour program which provided positive feedback of your engagement.
In October 2019 you commenced the Relationship Matters Men’s Behaviour Change Program, which concluded in April 2020. You attended 17 out of 20 program sessions. Covid affected your ability to complete all the sessions but you did also engage with four case management phone calls between this period. This case management provided further support and education around family violence in the absence of the group program. The program assists men to explore strategies, ideas and concepts to maintain non-violent and respectful behaviours at home and in their personal relationships.
You have regularly attended [your Pentecostal Church] and have engaged in many of the church activities including their connect groups and men’s services. In the last few months, you have become a … group leader and you have also in the last year served in their media team. [A pastor at that church] provided a reference where he states he has seen you grow over the past 3 years and describes you as driven and as having a strong desire to be the best you can for your family and those around you.
In her reference to the Court your mother also observes that since your offending you have turned your life around with a stable job, the only income coming into your family, and the love you have for your children. She also believes your family has found the guidance it needed from the church. Your friend Monica Houghton[5] in her reference states that you have acknowledged your mistakes and have learnt from them and made changes to become a better person. Your friends Rochelle[6] and Mick Tahu[7] also provide a letter of support where they indicate they are indebted to you for the support you have given them. Ms Tahu describes that her husband perpetrated domestic violence in their home and that you reached out to him and gave him tremendous support by helping him take accountability for his actions. Rawiri Harawira,[8] who offers you mentoring and support through the church, states that you have shown a steadfast and resolute demeanour in moving past your mistakes in a constructive and successful manner.
…
I consider that your prospects of rehabilitation are enhanced by your strong family support, your solid work history, your recent employment and your work and connections with the Church. You were assessed by the Mental Health Advice and Response Service (MHARS) on 27 June 2022 and they note that you expressed remorse for your offending behaviour and identified that your offending behaviour has had a negative impact on yourself and your family. You also displayed insight into the need to reach out to your church Pastor or a GP if you needed further assistance and your judgment appeared to be intact and your attitude was pro social.
[5]A pseudonym.
[6]A pseudonym.
[7]A pseudonym.
[8]A pseudonym.
A recurring theme of the material before the sentencing judge — which she accepted — was that during the three year delay between offending and sentence the respondent had completely turned his life around. He had ‘grown’ during that period, and was driven by a strong desire to be the best man he could for his family and those around him. Part of that growth had included engaging with another man who had perpetrated domestic violence to help him be accountable for his actions. Moreover, the respondent demonstrated remorse for his actions.
In a moving letter to the sentencing judge, the respondent’s wife wrote:
… I know and believe that my husband Matthew is full of remorse on what happened that morning.
During the time my husband has been on bail in 2019, Matthew has worked very hard to become the person he is today. When Matthew’s [intervention order] lapsed … in April 2020 and was allowed to come home[,] [w]e saw a huge change in Matthew as a husband and father. He was committed to attending his anger management counselling with Life Works in Hoppers Crossing on a weekly basis [and] [a]ttended our community church and volunteered to help with community events. I have also seen my husband, sharing some light to a few men in our church community including encouraging another family that was going through a similar situation. From his encouragement we have seen this family at their best.
Your Honour, I have seen a lot of changes in my husband. He is a devoted father and husband. The way he is with our children, he shows so much support, especially when he amended his relationship with our older two children. When we fell pregnant in 2020, we were in the happiest times. When our son arrived, my husband was the best support person on his arrival. Spends a lot of quality time with the kids and me.
ln our church community, we are appointed connect leaders. I have seen my husband helping other men out from breaking away from addictions, family violence as mentioned and checking in on our elderly’s by mowing their lawns rain or shine and even just sitting with them to have a chat on their day.
…
My husband has taken everything in to accountability and has stuck with it. He has never committed family violence in our home nor in public. This event surely changed my husband to be the better man he is. I am absolutely very proud of the man is today and he continues to be. … I am hoping and praying that you will consider my plea for my husband and how remorseful he is in the situation. He is a very good and loving man, father and husband to me. Our children and I love him dearly.
Further, the respondent’s daughter penned a letter on behalf of the children, which included the following:
I understand the charges my father is facing. A charge that has brought so much strain in our family, but has also taught our father as well in our family. We know our father has full regret on the event that took place in 2019. He’s always apologetic on his actions that we witnessed and what was said.
During our time apart from him in our home, we were able to visit with him through DHHS. … We were hurt, but deep down we sorely missed having him home. However, he understood that we needed that time to heal and release forgiveness. He respected that for us. That is where my brother and I saw the love our dad has for us, as he was willing to give us that time. When our father was allowed to come back home to be with our family, he worked so hard to better himself. He was committed to his counselling sessions, abide by the conditions with DHHS and also his bail conditions. We have seen how loving our dad is with us. Our bond became even more stronger than before. We saw the positive impact in our father. Every time he would come home from work, he loves spending quality time with our family. Going for walks, cooking dinner together, sitting down with our family to do check ins. He’s always supporting my brothers and me to be the better us. Seeing all this in my father gave us peace knowing he is always here for us.
Your Honour, I know our dad was wrong for what he said and done, but if I am being honest, my dad is the best to my brothers and I. He loves and adores us. When my parents fell pregnant with our little brother … we saw the happiest father he continues to be. As I mentioned, the bond between my brothers and myself with our dad is filled with so much love. Our dad is a devoted husband and a father. We love him dearly. People will say nasty things about what he done, but I can say that he’s the best dad to us. Our hearts were broken three years ago, but it was also mended, with so much love, peace and forgiveness. ln saying this, we are hoping that you will consider our plea for our dad to please remain with us, he has worked his way through to the best person he is today and we can’t be prouder of him.
The judge took a cautious approach to the pleas from the respondent’s wife and children, but found nonetheless that the respondent’s wife had ‘forgiven [him] because [he had] demonstrated remorse, reflection and reformation’. Indeed, the judge was persuaded that, ‘[t]his is not a case, such as that in R v Hester[9] where [his] wife has forgiven [him] because of some distorted belief that she is partly to blame for what occurred or as some type of by-product of an ongoing violent relationship’.
[9][2007] VSCA 298.
There can be no doubt that it was proper for the judge to give full weight to the views of the respondent’s wife and children. As Eames JA said in Skura, when dealing with the use to be made of a supportive victim impact statement:[10]
Whilst judges must be careful that they do not allow the contents of a victim impact statement to unbalance the sentencing process so as to cause a miscarriage of the judicial sentencing discretion it is undoubtedly the case that consideration of victim impact statements in many instances would have the effect of producing a more severe sentence than a judge might, at first, have thought appropriate to the circumstances. If a victim impact statement can have that effect in encouraging a view of the case which would justify a more severe sentence, then in my view sentencing judges ought to give equally appropriate weight to a victim impact statement where the victim positively expresses support for the accused and argues for a more lenient sentence. I do not consider that the judge gave the statement appropriate weight in this case. ... As the sentencing judge rightly said, sentencing is not the function of the victims of crime, but of the state, through the judiciary. That said, it is by no means inconsistent with that principle for a sentencing judge to give full weight to a supportive victim impact statement, as was provided here.
[10]Skura v The Queen [2004] VSCA 53, [13].
Given the judge’s findings, it was, as I have said, plainly open to her to give full weight to the supportive statements made by the respondent’s wife and children, the principal victims of his offending. They made it clear that the respondent had turned his life around, and that they had forgiven him because he had demonstrated ‘remorse, reflection and reformation’.
Notwithstanding that forgiveness, an unhappy ramification of the orders proposed in the joint reasons is that the respondent’s wife and children will endure additional suffering through being deprived of their husband and father. No doubt that suffering will be exacerbated by the knowledge that the sentence that will be imposed by this Court will almost inevitably result in the respondent’s deportation to New Zealand, the family then being faced with the unpalatable choice of following him, or remaining in Australia — where they have made their lives — without him.
Of course, even though the current state of this country’s migration laws is such that the respondent’s deportation after serving the sentence proposed by the majority is a near certainty,[11] the Court cannot take that into account, since to do so would be to take into account executive action in circumstances where there remains a possibility — no matter how remote that possibility is — that the respondent will not, in fact, be deported.[12] The Court can only take into account the prospect of deportation as a factor which may increase the impact which a sentence of imprisonment will have upon the respondent, both during the currency of his incarceration and upon his release.[13] I assume, without deciding, by analogy, it would be impermissible for the Court to take into account the deleterious effect that the respondent’s likely deportation will have on his wife and children, and the additional suffering that they will endure as a result.
[11]By reason of ss 501(3A), (6)(a) and (7)(c) of the Migration Act 1958 (Cth), the Minister for Immigration must cancel a person’s visa if the person has been sentenced to a term of imprisonment of 12 months or more. Under ss 500(1)(ba) and 501CA, however, the Minister may revoke the cancellation if satisfied that there is a reason to do so and the person may seek a merits review of a decision not to revoke the cancellation.
[12]Although it has no direct application, see Sentencing Act 1991, s 5(2AA)(a).
[13]See Matamata v The Queen [2021] VSCA 253, [28]–[31]. See also Guden v The Queen (2010) 28 VR 288; Da Costa v The Queen (2016) 307 FLR 153; Konamala The Queen [2016] VSCA 48; Akot v The Queen [2020] VSCA 55.
In my view, for the purposes of a case such as the present, it is incumbent upon this Court to pay more than mere lip-service to Boulton.[14] In that case, it was made clear — in a joint judgment of a bench of five — that a community correction order (‘CCO’) might in given circumstances accommodate all of the applicable sentencing considerations, including proportionality, and the need for general and specific deterrence, and could be used ‘to rehabilitate and punish simultaneously’.[15] And as the Court said:[16]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.
[14]Boulton v The Queen (2014) 46 VR 308 (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (‘Boulton’).
[15]Ibid 311 [2], 349 [186].
[16]Ibid 338 [131].
Although the legislature has seen fit since Boulton to decrease to one year the maximum length of a period of imprisonment that may be coupled to a CCO,[17] the essential principles underpinning Boulton remain sound.
[17]Sentencing Act 1991, s 44(1),
One cannot ignore the fact that the respondent’s offending was extremely serious. It is described fully in the joint reasons of the other members of the Court.[18] In particular, choking his wife into unconsciousness on two occasions was very grave conduct. All other things being equal, a sentence of imprisonment of the order proposed by the other members of the Court would clearly be within the appropriate range. In the present case, however, the respondent’s victims had forgiven him. Most importantly, they had forgiven him because he had undertaken a process of radical reformation. In my view, no sentencing principle — including the need to uphold proper sentencing standards[19] — requires that process of rehabilitation to be impaired (if not obliterated). I consider that the judge was correct when she made the following observations:
I have concluded that the purposes for which sentence is to be imposed in your case can be best accommodated by a combination sentence which will involve you serving a term of imprisonment and then being released on a lengthy CCO with a number of onerous conditions. I consider that a combined sentence can provide substantial specific and general deterrence. The CCO component is capable of being very punitive but will also allow you to continue in your rehabilitative efforts, which is in your and your family’s interest and in the long term, best protects the community.
[18]At [29]–[40].
[19]See R v Clarke [1996] 2 VR 520, 522.
It is clear that the judge took great care in exercising the discretion reposing in her. Albeit that it is very lenient — if not merciful — I consider the sentence that the judge imposed to be just and appropriate. It is not manifestly inadequate. Plainly, the judge recognised that this was a case where the greater good would be promoted by a sentence which continued to foster the respondent’s rehabilitation. In my view, it was open to her to impose the sentence that she did in order to do so. As to that, it is worthwhile remembering what King CJ said in Osenkowski:[20]
It is important that the prosecution appeal should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.
[20]Osenkowski, 212–3.
For these reasons, I would dismiss the appeal.
There is one last observation I would make. Counsel for the appellant relied on a passage from Pasinis — cited in the joint reasons[21] — to the effect 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.
[21]At [73] below.
On one view, the cited passage 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.[22]
T FORREST JA
[22]Veen v The Queen(No 2) (1988) 164 CLR 465, 472–3 (Mason CJ, Brennan, Dawson and Toohey JJ).
KIDD AJA:
Introduction
On 1 June 2022, the respondent pleaded guilty to a number of charges as set out in the table below. On 11 July 2022, he was sentenced as follows:[23]
[23]DPP v Gregory Reynolds (a pseudonym) [2022] VCC 1070 (Judge Karapanagiotidis).
Charge Offence Maximum Sentence Cumulation 1 Causing injury intentionally (contrary to s 18 of the Crimes Act 1958) 10 years’ imprisonment 9 months’ imprisonment combined with a 970-day CCO Base Sentence 2 Make threat to kill (contrary to s 20 of the Crimes Act 1958) 10 years’ imprisonment 150 days’ imprisonment combined with a 450-day CCO 14 days
3 Make threat to kill (contrary to s 20 of the Crimes Act 1958) 10 years’ imprisonment 180 days’ imprisonment combined with a 450-day CCO 14 days 4 Make threat to kill (contrary to s 20 of the Crimes Act 1958) 10 years’ imprisonment 150 days’ imprisonment combined with a 450-day CCO 14 days Related Summary Offence 8 Unlawful assault (contrary to s 23 of the Summary Offences Act 1966) 3 months’
imprisonment or 15 penalty units
$500 fine N/A Total effective sentence 9 months and 42 days’ imprisonment. Combined with four concurrent CCOs for a period of 970 days. Non-parole period N/A Pre-sentence detention declaration Nil Section 6AAA statement 3 years and 6 months imprisonment, with a non-parole period of 2 years and 6 months. Other relevant orders Sentenced as a serious violent offender on charges 2, 3 and 4.
On 8 August 2022, the Director of Public Prosecutions (‘the Director’) filed a notice of appeal against sentence. The sole ground of appeal is as follows:
Ground 1 – Each of the individual sentences, the orders for cumulation on Charges 2, 3, and 4, and the resulting total effective sentence are all manifestly inadequate.
For the reasons given below, we would allow the appeal, and resentence the respondent.
Circumstances of the offending
At the time of the offending, the respondent and the complainant had been in a relationship for about 17 years. They had two children together; a daughter and a son who were 16 and 13 years old, respectively, at the time of the offending.
On 19 July 2019, the respondent and the complainant attended a birthday party at the Park Hotel in Werribee. They consumed alcohol throughout the night and became intoxicated.
The respondent saw the complainant talking to another man near the toilets. The man followed the complainant into the disabled toilet and a security guard asked them to leave.
Charge 1: causing injury intentionally
On 20 July 2019, at 1:12am, whilst still at the Park Hotel, the respondent walked up to the complainant in the beer garden and punched her in the face. The complainant stumbled backward from the blow as the respondent yelled and swore at her.
At 1:27am, the complainant left the Park Hotel and walked to the parked car where the respondent was waiting. As the complainant stood at the front passenger side of the car, the respondent punched her in the face. The complainant stumbled and fell to the ground.
The complainant got up and sat on a street bench. The respondent followed and punched the complainant twice to the head. The complainant again fell to the ground.
Three women came to the complainant’s aid. The respondent approached one of them, OD, and said ‘What the fuck do you think you’re doing?’. The respondent swore at OD and said he would kill her. This conduct forms the basis of the related summary offence of unlawful assault.
As OD tried to help the complainant to stand, the respondent said, ‘Wait till we get home’. The complainant clung to OD, saying ‘No, no, no’. The hotel security guard escorted OD away from the respondent and also called ‘000’.
The respondent pulled the complainant up and dragged her by her hair to his car. He pushed her into the passenger seat and, whilst her legs were still outside the vehicle, slammed the door on her legs.
In the car, the respondent again struck the complainant to the head and started driving fast, hitting a speed hump heavily. The complainant, unrestrained, fell into the footwell of the front passenger side of the car. The respondent continued striking and kicking the complainant. He grabbed her hair and banged her face into the dashboard of the car.
Outside of their home, the respondent choked the complainant with his hands, causing her to lose consciousness. The respondent dragged the complainant into the house and removed her clothing, leaving her in underwear, and continued the assault. This included choking her again, with a belt, causing her to again lose consciousness.
Charges 2, 3 and 4: make threat to kill
The respondent’s two children were woken by the noise of the assault.
The respondent opened a kitchen drawer and grabbed a knife, and said to the complainant, ‘I’ll fuckin’ kill you’ (Charge 2 – Make threat to kill). The respondent yelled that if anyone called the police, he would kill everyone (Charge 3 – Make threat to kill). The respondent’s daughter saw him holding the knife.
Both children hid in a bedroom. At about 2:05am, the daughter called family friends for help. The family friends drove to the house and when they arrived, the complainant was sitting against the front door trying to prevent the respondent from opening it. The respondent was standing inside the door holding a knife and yelled again that he was going to kill the complainant (Charge 4 – Make threat to kill).
The family friends tried to calm the respondent down and to assist the complainant. One friend went into the house, took the children out to her car, and called triple zero at 2:36am.
Police arrived and arrested the respondent. The complainant was taken to hospital via ambulance, where she remained for nine days.
Sentencing judge’s reasons for sentence
In careful reasons, the learned sentencing judge described the offending as a ‘violent, protracted and vicious assault’, committed to ‘punish a perceived infidelity’. The judge concluded that the respondent’s moral culpability was ‘high’.
Having noted the nature of the injuries and the surrounding circumstances, the judge described charge 1 as sitting at the ‘high end of the scale of objective gravity’ for this offence. She also noted that the threat to kill charges were ‘also serious’.
Her Honour noted the high public interest in punishing family violence, concluding that general deterrence, denunciation and just punishment were ‘prominent sentencing factors’, and community protection was a ‘significant sentencing consideration’.
The judge noted the impact of the respondent’s offending experienced by the various victims including the children.
Her Honour regarded the respondent’s plea of guilty as an early one warranting ‘a substantial discount’ as well as a ‘perceptible amelioration of sentence’ because it was entered during the pandemic. The plea was indicative of remorse.
The judge took into account that the criminal proceedings had been ‘hanging over’ the respondent’s head for a three-year period, and that during the delay, the respondent had ‘taken steps to rehabilitate and to change’. Her Honour found that the respondent had ‘developed and expressed genuine remorse’.
Her Honour found that any term of imprisonment is likely to weigh more heavily on the respondent due to the circumstances of the pandemic and also concluded that the uncertainty of his continued residence in Australia is a matter that weighs on him (given the respondent’s status as a non-citizen).
Having examined the evidence of the respondent’s family support (including letters expressing forgiveness and support from the complainant and their daughter), his work history, his recent employment and his connections with his church, her Honour concluded that the respondent had ‘very good prospects of rehabilitation’.
After proceeding ‘cautiously’, the sentencing judge concluded that his wife’s expression of forgiveness and support was genuine and further that it ‘appears that your wife has forgiven you because you have demonstrated remorse, reflection and reformation’. Her Honour excluded the possibility that this forgiveness related to an ongoing violent relationship or that it was offered under any kind of pressure to reconcile. Her Honour observed however, that she could not decide the appropriate sentence ‘based solely, or even principally, on their attitude’, and noted the need to sentence on behalf of the community.
Ultimately, her Honour concluded that the sentencing purposes in this case were ‘best accommodated’ by the imposition of a combination sentence of imprisonment and a community correction order (‘CCO’) (‘a combination sentence’).
Director’s submissions
The Director submits that the respondent’s offending is a ‘very serious’ example of family violence, noting that it was extremely violent and protracted, and fuelled by ‘the cocktail of alcohol and jealousy’.
Central to the Director’s appeal was the sentencing judge’s finding that the intentionally cause injury charge was at the ‘high end of the scale of objective gravity’. The Director contends this is simply not reflected in a sentence of nine months’ imprisonment (in combination with a CCO). That is so, before any consideration is given to the sentences on the other charges and the orders for cumulation.
The Director contended that the injuries to the complainant were at ‘a serious end of the scale’, with the two instances of choking being particularly troubling.
The Director notes that this offending conduct could have been subject to five or six separate charges if it had been separated into its component parts, which was a ‘further indication’ that the intentionally cause injury charge is at ‘the serious end of the scale’.
The Director submits that the threat to kill charges also have ‘their own serious aspect to them’, noting that the respondent was armed with a knife and that the two children were victims in respect of one of the charges.
More generally the Director says that the sentences imposed, and the orders for cumulation, do not sufficiently reflect the gravity of the offending or the respondent’s high moral culpability (as found by the sentencing judge); nor do they reflect the need for general deterrence given that the offending occurred in the context of family violence.
The Director submits that the respondent fell to be sentenced as a serious violent offender on charges 3 and 4, and says that the respondent was incorrectly sentenced as a serious violent offender on charge 2. In this case, by imposing cumulation of only 14 days on charges 3 and 4, the Director says the sentencing judge must have given too much weight to the principle of totality and insufficient weight to the intent of s 6E of the Sentencing Act.
It is said that the sentences and orders for cumulation are manifestly inadequate despite the powerful factors operating in mitigation of sentence. The Director contends that the sentence gave too much weight to mitigating factors, and in particular rehabilitation, noting that youth was not at play in this case.
The Director makes the point that this case should not be considered an ‘outlier’ as contended by the respondent. The Director says that the familial reconciliation present in this case is not unique and is often seen in cases involving family violence.
Respondent’s submissions
The respondent submitted the sentence imposed was a ‘merciful’ sentence which is explained by the powerful and ‘unusual constellation of materials’ relied upon on the plea. The case was, according to the respondent, somewhat of an outlier.
The respondent says that ‘the key’ to the sentence imposed was the learned sentencing judge’s acceptance of the evidence of remorse and rehabilitation over a long period of delay.
The respondent emphasised that he was able to rely on numerous references that uniformly attested to him having accepted the wrongfulness of his conduct and to his genuine, and successful, commitment to reform.
Having approached the evidence cautiously, it is noteworthy that the sentencing judge was still able to find that the respondent was remorseful, had very good prospects for rehabilitation, and had, in fact, demonstrated rehabilitation.
The respondent submits that whilst courts must denounce family violence, ‘so too must they be astute to recognise and promote rehabilitation when a man responds, as he should, by owning up to and rejecting his past attitudes and behaviour’.
The respondent contends that it was open to her Honour to prefer a combination sentence disposition directed at ‘consolidating the respondent’s reform’.
The respondent relies on the high standard of the sentencing judge’s reasons. The respondent says the sentence was ‘ put as well as it could be by the person who knew best’. It is said that full weight must be given to the findings of the sentencing judge.
In relation to the operation of the serious offender provisions and cumulation more generally, the respondent contends that the orders for cumulation were appropriate, and that there was no error in the overall result. He points to the fact that this was ‘single occasion’ offending, with a ‘temporal and physical overlap’ between the intentionally cause injury charge and the threat to kill charges. Alternatively, the respondent says that if there was error in not ordering greater cumulation on charges 3 and 4, a correction could only be achieved by ‘tinkering’. The respondent points to the fact that the error with respect to charge 2 was the fault of the crown. At all events, if the only errors relate to the degree of cumulation ordered, the residual discretion should be exercised to dismiss the appeal.
The respondent says that none of the so called ‘comparable cases’ advanced by the Director involved sentencing a person for comparable offending who had demonstrated this level of remorse and rehabilitation.
Discussion
The relevant principles applicable to a Director’s appeal together with the accompanying authorities were conveniently summarised by this Court in DPP v Lombardo:[24]
To establish manifest inadequacy in a sentence, the Director must show that the sentence was ‘wholly outside the range’ of sentencing options available to the sentencing judge. It must be shown that something has gone ‘obviously, plainly or badly wrong’. The Court must be ‘driven to conclude that there must have been some misapplication of principle’.
Family violence sentencing principles
[24]DPP v Lombardo [2022] VSCA 204 [95] (McLeish, Niall and Kennedy JJA) (‘Lombardo’) (citations omitted).
Regrettably, this is yet another example of appalling family violence which has come before the courts. Family violence is a blight on society, which this Court ‘has been at pains to denounce’.[25]
[25]Edward-Hayes v The Queen [2022] VSCA 76 [29] (McLeish JA), citing Pasinis v The Queen [2014] VSCA 97 [57] (Neave and Kyrou JJA) (‘Pasinis’).
It is convenient to restate what this Court has said about family violence, and how this informs the sentencing process.
This Court in Pasinis held that the key to protecting victims of family violence:[26]
…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.
[26]Pasinis [57].
Soon afterwards, and in a similar vein, this Court said in Mercer (a pseudonym) v The Queen:[27]
This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences.
[27]Mercer (a pseudonym) v The Queen [2015] VSCA 257 [54] (Maxwell P and Beach JA) (citations omitted).
And again in Kalala v The Queen:[28]
The trial courts of this State are imposing sentences for family violence offences with increasing frequency. This Court has repeatedly emphasised the need to condemn family violence, in line with community expectations. In Filiz v The Queen, the Court acknowledged the ‘shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44.
[28]Kalala v The Queen (2017) 269 A Crim R 1 [59] (citations omitted).
More recently, in DPP v Evans this Court stated:[29]
Violence of this kind is alarmingly widespread, and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.
[29]DPP v Evans [2019] VSCA 239 [84] (Maxwell P, T Forrest and Weinberg JJA).
As these authorities make plain, general deterrence, public denunciation, just punishment and community protection must be the prominent sentencing factors when sentencing for family violence offending.
Objective gravity of this offending
As the learned sentencing judge recognised, ‘this was a violent, protracted and vicious assault’.[30]
[30]Reasons [16].
The catalogue of his violent acts makes for disturbing reading involving, as it did, multiple punches to the complainant’s face and her head, kicking her, banging her face into the dashboard of a vehicle, and dragging her by her hair.
The assault involved two instances of choking to the point of a loss of consciousness, once by the respondent’s hands, and the second time with a belt. Choking another person into unconsciousness is a pernicious and dangerous form of violence. The risk which such conduct entails cannot be ignored when assessing its gravity. It is potentially life-threatening.[31] Within the context of domestic or family violence, choking represents a chilling exploitation of physical power or dominance.
[31]Exhibit F (First report of the Forensic Medical Registrar dated 28 July 2019 tendered on the plea, p.6.).
The offending also involved an element of degradation, exemplified by the respondent dragging the complainant into the house and removing her clothing (leaving in her underwear) whilst he continued with his assault.
This violence lasted nearly 90 minutes and was perpetrated over multiple locations.
Consistent with multiple applications of blunt force trauma, the complainant suffered two facial fractures, altered vision, paraesthesia, dizziness, some temporary cognitive difficulties and extensive bruising to her chest, arms, neck, head, back and legs.
Blunt force trauma applied to the head and face carries obvious risks to the brain and eyes.[32] In this case, it did result in a fracture around the complainant’s right eye socket. While the injury was managed conservatively (without surgical intervention), this should not imply that the injury was insignificant. Based upon the medical evidence tendered on the plea, this was described as a vision-jeopardising injury requiring close monitoring.[33]
[32]Exhibit F (First report of the Forensic Medical Registrar dated 28 July 2019 tendered on the plea, p.6).
[33]Exhibit F (Second report of the Forensic Medical Registrar dated 28 July 2019 tendered on the plea, p.8).
Although the complainant has made a physical recovery from her injuries, the injuries were sufficiently substantial that the complainant remained in hospital for nine days.
While keeping firmly in mind that the respondent fell to be sentenced for the offence of intentionally causing injury, not serious injury, the injuries she sustained were nevertheless extensive and significant.
When regard is had to the nature of the injuries caused, and to the manner in which the injuries were inflicted (including the family violence setting), it becomes apparent that the sentencing judge’s finding that this offence sits ‘at the high end of the scale of objective gravity’ for intentionally causing injury was clearly correct. With that characterisation in mind, it is timely to recall that this offence carries a maximum of 10 years imprisonment.
We accept the Director’s submission that the three instances of threats to kill (charges 2 to 4) were attended by a number of aggravating circumstances. Each of the threats were made when the respondent held a knife in his hand, reinforcing his immediate capacity to carry out his threats. The threats were directed at preventing the complainant or others from seeking assistance to end the attack or care for the complainant. Charge 3 was a threat directed by the respondent at multiple victims, namely the complainant and their two children. Given the context, the level of fear and distress caused by this conduct was palpable.
Consistent with the sentencing judge’s characterisation, we regard the threat to kill offences as serious examples of this offending.
Delay, rehabilitation, forgiveness and Boulton
The respondent was able to advance some substantial factors in mitigation. They included his early plea of guilty, the utilitarian benefits associated with the entry of a plea entered during the COVID-19 pandemic, his previous good character, his hardship in custody (arising from COVID-19 pandemic restrictions as well as from the risk of deportation), and the fact that the respondent has had to labour under the strain of these proceedings during the period of delay of about three years between the offending and sentence.
The focus of this appeal by Senior Counsel for the respondent, however, was upon what he described as the ‘key’ to an understanding of the sentence imposed by the learned sentencing judge - the respondent’s genuine remorse and demonstrated rehabilitation. Associated with this, is the evidence of forgiveness and support from the complainant, (in light of the respondent’s demonstrated reform). The letters from the complainant and their daughter (one of the victims of the offending) in which they expressed their forgiveness, and pleaded for the respondent’s return to the family unit, are moving.
Apparently heartfelt expressions of remorse, and promises to change, are features in cases of family violence. Caution must be exercised.
In this case, having exercised caution, the judge ultimately found that the respondent had ‘very good prospects of rehabilitation’. He fell to be sentenced upon that basis. The degree of satisfaction reached by the sentencing judge as to the respondent’s rehabilitation meant that this was a powerful factor and one which attracted a material level of mitigation of sentence. These findings are not challenged, and we give them full weight.
Further, as her Honour noted, where an offender has demonstrated rehabilitation, a sentence should be tailored, as much as possible, to allow the offender to complete the process of rehabilitation.[34]
[34]Sergi v DPP (Cth) [2015] VSCA 181 [43] (Maxwell P, Redlich and Beach JJA).
As much may be accepted, however the sentencing purpose of rehabilitation cannot be allowed to overwhelm the sentencing exercise, especially in a case involving serious and violent offending in the context of family violence where deterrent and punitive considerations loom so large. That is so even where there is impressive evidence of rehabilitation (as there was the case here).
As much was recognised by the learned sentencing judge herself, by her observation that insofar as the sentencing exercise was informed by evidence of rehabilitation, remorse, reconciliation and forgiveness, this needed to be balanced by the need to punish the respondent for this serious offending, express denunciation and achieve general deterrence. Indeed, her Honour accepted, correctly, that these deterrent or punitive matters were the pre-eminent sentencing considerations in this case.
Added to that is the requirement under s 6E of the Sentencing Act 1991 that community protection must be the principal sentencing consideration with respect to charges 3 and 4 (where the respondent fell to be sentenced as a serious violent offender).[35]
[35]This is discussed in further detail below.
It was submitted by Senior Counsel for the respondent that the respondent’s achievements with respect to his rehabilitation (including his reconciliation with his family) in combination with the other matters relied upon, warranted a ‘merciful’ sentence.
While Senior Counsel for the respondent did not directly invoke the principles of mercy, it may be accepted that a consideration of the adequacy of a sentence must make allowance for the fact that the extension of mercy or leniency towards an offender forms an integral part of the sentencing discretion.[36]
[36]See, eg, DPP v Milson [2019] VSCA 55 [51]-[54] (Priest, McLeish and Weinberg JJA), and Packard (A Pseudonym) v The Queen [2021] VSCA 56 [43] (Kaye JA) (‘Packard’).
In our view, in this sentencing exercise, the considerations personal to the respondent, even if powerful, had to play a subsidiary role to the punitive elements of sentencing.
There are limits on how far leniency can be extended to someone who has engaged in the level of family violence which occurred here.[37]
[37]Packard [45].
There is also limited scope within the sentencing discretion to take account of a victim’s plea for mercy. As this Court said in Shau v The Queen:[38]
…there remains a very high public interest in punishing family violence, both for its denunciatory and deterrent effect, even where the victim seeks leniency and incarceration would place great pressure on the domestic relationship.
[38][2020] VSCA 252, [47] (Niall JA), [1] (Priest JA relevantly agreeing with Niall JA’s reasons)
This case is one which demonstrates that a court must sentence on behalf of the community and not simply on behalf of those immediately affected by the instant offending. As was said in R v M, G :[39]
It must be understood that where an offence is committed it is committed against the community as a whole and the community is entitled to expect that the offender will be punished, that the community will be protected to the extent that the criminal justice system can do so, and that any penalty imposed will serve to deter others who are minded to offend against the community.
[39]R v M, G (2016) 262 A Crim R 152 [136] (Hinton J). This passage was cited by the sentencing judge, but she attributed it to another authority.
On this appeal, Senior Counsel for the respondent relied heavily upon the proposition stated in Boulton v The Queen (‘Boulton’) that very serious crimes can be accommodated by a lengthy and onerous CCO (with significant punitive aspects) in combination with a short custodial sentence, especially where there is powerful evidence of rehabilitation,[40] as there was in this case.
[40]Boulton v The Queen (2014) 46 VR 308 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA) (‘Boulton’).
It may be accepted that ‘the availability of the combination sentence means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration’.[41]
[41]Boulton [141].
This Court has had occasion since Boulton to re-confirm the potential availability of the CCO or combination option for appropriate cases, even those which involve very serious offending.[42] It is also true that this Court continues to emphasise, including recently in Lombardo[43] and Buckley v The Queen,[44] that a CCO is a punitive sanction.
[42]Williams v The Queen [2018] VSCA 171 [47] (Priest and Hargrave JJA) (‘Williams’).
[43]Lombardo [99], citing Boulton [91].
[44]Buckley v The Queen [2022] VSCA 138 [13] (Maxwell P and T Forrest JA).
That all said, the authorities equally recognise that there are limits to the field of operation of CCOs and combination sentences.
The punitive effects of a CCO (even of some duration and with onerous conditions) cannot be compared with a gaol sentence.[45] Imprisonment is ‘uniquely punitive’ principally because it involves ‘the complete loss of liberty’.[46] As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing.
[45]Shbaro v The Queen [2022] VSCA 190 [48] (Priest and Walker JJA).
[46]Boulton [104].
It follows that there will be cases where the sentencing court concludes that ‘certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions’.[47]
[47]Ibid [140]; Hutchinson v The Queen (2015) 71 MVR 8 [16]–[17] (Priest JA, Ashley JA agreeing).
The same can be said of a combination sentence, which authorises only short terms of imprisonment (up to one year).[48] A combination order is a less flexible sentencing option now than it was when Boulton was decided (when the maximum length of imprisonment available as part of a combination sentence was two years).
[48]Sentencing Act 1991 (Vic) s 44(1).
As the level of the criminality increases, and as the punitive and denunciation sentencing objectives become more prominent in the sentencing calculus, the likelihood that a CCO or combination disposition remains open diminishes.[49]
[49]Williams [47].
Accordingly, a point is reached where a CCO or combination sentence simply cannot satisfy the sentencing requirements of just punishment, public denunciation, general deterrence and community protection.
We think that point was reached here.
Current sentencing practices
Senior Counsel for the Director made reference to a number of sentencing cases which were said to be comparable. They were raised at the plea hearing. We doubt any of them are truly comparable.
As a broad proposition, it can be said that intentionally cause injury sentences, when committed at the higher end of scale of objective gravity, tend to attract significant terms of imprisonment, requiring the fixing of a non-parole period. That is unsurprising given that the maximum penalty is 10 years’ imprisonment.
In respect of the make threat to kill charges, as the Director submitted, it is not uncommon for sentences upwards of 12 months’ imprisonment to be imposed for relatively serious examples of this offence.
Of course, each case must be determined on its own particular facts and circumstances, and current sentencing practices are merely one matter to be considered in the sentencing process.
Conclusion
After making full allowance for the exercise of the sentencing discretion, we have concluded that the objective gravity of this offending was just too great, and the punitive and denunciation considerations of the sentence were too important, to allow for a combination disposition.
The high-end objective gravity of the respondent’s intentionally cause injury offence, the serious nature of the threat to kill offences, the fact that this offending constituted protracted family violence (fuelled by a perceived need to punish a supposed infidelity, correctly described by the sentencing judge as being ‘expressive of the very worst of male attitudes towards women’), and the respondent’s ‘high level’ of moral culpability overall (as characterised by the sentencing judge), all demanded that a substantial sentence of imprisonment be imposed.
Unfortunately, in our view, the sentences themselves fail to reflect the gravity of the offending, the associated circumstances, and the primacy which had to be given to punishment, denunciation and general deterrence. They did not give effect to the need to send the ‘unequivocal message’ to would-be perpetrators of family violence, as required by the authorities of this Court.
Each of the individual sentences, the orders for cumulation on charges 2, 3 and 4, and the resulting total effective sentence, are, in our opinion, manifestly inadequate.
The orders for cumulation directed on the sentences imposed for the threat to kill charges (14 days) did not reflect the fact that this conduct added materially to the overall criminality of this episode. The order of cumulation with respect to charge 3 (involving as it did additional victims, being the children) also fell well short of reflecting the principle that ‘offences committed against individual victims will be separate and distinct subjects of punishment’.[50]
[50]DPP v Bales [2015] VSCA 261 [44] (Osborn, Kaye and McLeish JJA).
Further, the respondent fell to be sentenced as a serious violent offender on charges 3 and 4.[51] The prosecution did not press for a disproportionate sentence. Nevertheless, primacy had to be given to protection of the community as a sentencing purpose.[52] The presumption of concurrency in sentence is also displaced in favour of a presumption of cumulation.[53] The principle of totality continues to have force, but must be applied ‘in a manner which will not undermine the legislative policy inherent in s 6E’ of the Sentencing Act. [54] The orders of cumulation on charges three and four did not reflect this.
[51]The judge was misinformed by the Crown that the respondent also fell to be sentenced as a serious violent offender on charge 2.
[52]Sentencing Act 1991 (Vic) s 6D(a).
[53]Sentencing Act 1991 (Vic) s 6E.
[54]Gordon v The Queen [2013] VSCA 343 [74] (Redlich JA). See also McL v R (2000) 203 CLR 452, 476-477 [76] (McHugh, Gummow, and Hayne JJ).
In reaching the conclusion to allow this appeal, we have not overlooked the care with which the sentencing judge approached this most difficult sentencing exercise. As Senior Counsel for the Director fairly acknowledged on the hearing of the appeal, her Honour’s reasons covered all relevant matters and were ‘well set out and well-reasoned’.
The residual discretion was only relied upon in a narrow sense by the respondent. If the Court were persuaded that the head sentence was within range, but that there was insufficient cumulation, then the respondent says that the residual discretion in that situation should be engaged. Given the conclusion we have reached (that is, that the individual sentences and the total effective sentence are manifestly inadequate) the need to exercise the residual discretion on this basis does not arise.
Re-sentence
We turn now to the resentencing exercise. We take into account all of the matters set out above, which do not need repeating.
There are, however, two further matters which warrant mention.
The first matter is that the sentences, and orders for cumulation, with respect to charges 3 and 4 will reflect that the respondent falls to be sentenced as a serious violent offender. The sentence on charge 3 also reflects the fact that this charge involved multiple victims.
The second matter concerns the Director’s submission that, while relevant to all components of the sentence, there is greater scope to reflect the respondent’s demonstrated and continued rehabilitation in fixing the non-parole period. We have adopted this course.
We would resentence the respondent as follows:
| Charge | Offence | Maximum | Sentence | Cumulation |
| 1 | Causing injury intentionally (contrary to s 18 of the Crimes Act 1958) | 10 years’ imprisonment | 2 years 10 months’ imprisonment | Base Sentence |
| 2 | Make threat to kill (contrary to s 20 of the Crimes Act 1958) | 10 years’ imprisonment | 10 months’ imprisonment | 1 month |
| 3 | Make threat to kill (contrary to s 20 of the Crimes Act 1958) | 10 years’ imprisonment | 14 months’ imprisonment | 2 months |
| 4 | Make threat to kill (contrary to s 20 of the Crimes Act 1958) | 10 years’ imprisonment | 12 months’ imprisonment | 2 months |
| Related Summary Offence | ||||
| 8 | Unlawful assault (contrary to s 23 of the Summary Offences Act 1966) | 3 months’ imprisonment or 15 penalty units[55] | $500 fine | N/A |
| Total effective sentence | 3 years and 3 months. | |||
| Non-parole period | 18 months. | |||
| Pre-sentence detention declaration | 141 days. | |||
| Section 6AAA statement | 5 years and 3 months’ imprisonment, with a non-parole period of 3 years and 3 months. | |||
| Other relevant orders | Sentenced as a serious violent offender on charges 3 and 4. | |||
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