Dragovic v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0229

MICHAEL DRAGOVIC	Applicant
v
THE KING	Respondent

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JUDGES:	Kennedy and T Forrest JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 April 2024
DATE OF JUDGMENT:	16 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 95
JUDGMENT APPEALED FROM:	[2023] VCC 2217 (Judge Doyle)

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CRIMINAL LAW – Appeal – Sentence – Criminal damage – Common assault – Persistent contravention of family violence intervention order (‘FVIVO’) – Attempt to pervert the course of justice – Commit indictable offence whilst on bail – Applicant physically assaulted intimate partner and damaged property whilst on bail and then repeatedly contacted her by telephone from prison in contravention of FVIVO in order to pressure, guilt, threaten and intimidate her to change or withdraw her police statement – Applicant pleaded guilty to one charge of criminal damage, six charges of common assault, one charge of persistent contravention of FVIVO, one charge of attempting to pervert the course of justice and one charge of committing an indictable offence whilst on bail – Sentenced to 2 years’ imprisonment with a non-parole period of 1 year – Aggregate sentence on six assault charges – Whether aggregate sentence and/or cumulation manifestly excessive – Sentence not manifestly excessive – Leave to appeal refused.

Crimes Act 1958, s 197(1); Family Violence Protection Act 2008, s 125A; Bail Act 1977, s 30B.

Clarkson v The Queen (2011) 32 VR 361; Kalala v The Queen [2017] VSCA 223; Filiz v The Queen [2014] VSCA 212; DPP v Reynolds (a pseudonym) (2022) 71 VR 336, applied.

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Counsel
Applicant:		Mr C Hooper
Respondent:		Ms B Goding
Solicitors
Applicant:	James Dowsley & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KENNEDY JA
T FORREST JA:

The applicant pleaded guilty at the County Court at Melbourne to one charge of criminal damage, six charges of common assault, one charge of persistent contravention of a family violence intervention order (‘FVIVO’), one charge of attempting to pervert the course of justice (‘APCJ’) and the related summary offence of committing an indictable offence whilst on bail. He was sentenced on 28 November 2023 to a total effective sentence of 2 years’ imprisonment with a minimum non-parole period of 1 year.[1] Presentence detention was declared at 120 days.
[1]See DPP v Dragovic [2023] VCC 2217 (‘Reasons’).
The details of the sentence are set out in the following table.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Criminal damage[2]	10 years’ imprisonment	1 month’s imprisonment	Nil
2	Common assault[3]	5 years’ imprisonment	16 months’ imprisonment – aggregate	Base
3	Common assault	5 years’ imprisonment
4	Common assault	5 years’ imprisonment
5	Common assault	5 years’ imprisonment
6	Common assault	5 years’ imprisonment
7	Common assault	5 years’ imprisonment
8	Persistent contravention of FVIVO[4]	5 years’ imprisonment	6 months’ imprisonment	2 months
9	Attempt to pervert the course of justice[5]	25 years’ imprisonment	14 months’ imprisonment	6 months
Related Summary Offences
8	Commit indictable offence whilst on bail[6]	3 months’ imprisonment	7 days’ imprisonment	N/A
Total Effective Sentence:		2 years’ imprisonment
Non-Parole Period:		1 year
Pre-sentence Detention Declared:		120 days
Section 6AAA Statement:		2 years and 10 months’ imprisonment with a non-parole period of 2 years

[2]Contrary to s 197(1) of the Crimes Act 1958.

[3]Contrary to common law.

[4]Contrary to s 125A of the Family Violence Protection Act 2008.

[5]Contrary to common law.

[6]Contrary to s 30B of the Bail Act 1977.

The applicant seeks leave to appeal against sentence on a single proposed ground expressed as follows:
The Sentencing Judge erred in imposing a sentence in respect of charges 2–7, and making orders for cumulation in respect of the remaining offences, that was manifestly excessive having regard to all of the circumstances.
The structure of this application was reflected in the somewhat idiosyncratic drafting of the ground of appeal. In brief compass, the structure articulated in the oral argument was:
(a)The aggregate sentence on charges 2 to 7 is manifestly excessive.
(b)The cumulation on charges 8 and 9 is manifestly excessive.
(c)If (a), or (a) and (b), or (b) alone is established, leave to appeal should be granted, the appeal allowed and the applicant should be resentenced.
(d)The resentence ought result in a sentence comprised of less than 12 months’ imprisonment together with a Community Correction Order (‘CCO’).
For reasons that we shall explain, we consider that leave to appeal ought be refused. In short compass, the applicant has failed to establish that the 16 months aggregate term of imprisonment imposed on the six common assault charges is manifestly excessive, nor has he established that the cumulation on charges 8 and 9 is manifestly excessive. In all the circumstances, we consider the total effective sentence imposed is lenient.

Circumstances of offending

In this case, following the applicant’s plea of guilty, a Summary of Prosecution of Opening for Plea was prepared as an agreed summary of facts. It was read to the Court. It is convenient to set out the relevant portions.
The accused in this matter is Michael Dragovic, who, at the time of the alleged offending, was 47 years of age (the Accused). At the time of the alleged offending, the Accused resided at … (the Unit).
At the time of the alleged offending, the Accused was subject to a grant of bail for an unrelated matter, which had been active since 23 June 2019 until the date of his arrest [summary offence 8: commit indictable offence whilst on bail].
The primary complainant in this matter is [Ranae Smith][7], who, at the time of the alleged offending, was 40 years of age (the Complainant).
[7]A pseudonym.
The secondary complainant in this matter is [Larry Williams][8], who, at the time of the alleged offending, was 60 years of age ([Williams]). [Williams] resided at … ([Williams]’s residence). [Williams] and the Complainant were friends, and had been so for many years.
[8]A pseudonym.
Prior to the alleged offending in January 2022, the Accused and Complainant had been in an ‘on and off’ intimate relationship together for the preceding four months.
Whilst the Complainant ordinarily resided with her mother in …, the Complainant would often stay at the Accused’s Unit and at [Williams]’s residence.
On 12 January 2022, the Complainant was with the Accused at his Unit. The Accused was unwell, and his condition declined during the night, such that the Complainant called an ambulance for him. Whilst the Complainant was on the phone, the Accused became angry and called the Complainant a “using bitch” and said that the Complainant ‘doesn’t give a shit’ about him. At this time, the Accused left the Unit with his car keys.
Shortly after 3.00am (on 13 January 2022), the Complainant left the Unit and went to [Williams]’s residence. The Complainant attempted to contact the Accused unsuccessfully until 11.00am, at which time he told the Complainant that she owed him money and that he was reporting her to police for theft.
At 11.20am, the Accused told the Complainant that he was coming over to [Williams]’s residence.
At approximately 11.30am, the Complainant, who was inside [Williams]’s residence, heard a car turn up outside [Williams]’s residence. The Complainant recognised the sound of the vehicle to a vehicle that the Accused drove. At this time, the Complainant and [Williams] were sitting in the office of [Williams]’s residence.
Alleged offending [incident one]
At this time, the Complainant heard a loud banging at the front door of [Williams]’s residence. The Accused was told by [Williams] to wait, as [Williams] was looking for the keys to unlock the front door. The Accused, however, continued to bang on the door, described by the Complainant as ‘really loud and really hard’, such that the Accused broke part of [Williams]’s front door, causing a piece of the wooden door to break [charge 1: damaging property].
As the Complainant unlocked the front door, the Accused repeatedly yelled “get in the fucking car” to the Complainant. The Complainant, after giving [Williams]’s dog back to him, entered the Accused’s car, a black Mercedes Benz sedan, which was parked in the middle of the road, as she was afraid that the Accused would hurt [Williams] and continue to cause a scene.
The Accused then sped away from [Williams]’s residence.
Witness accounts of incident one
[KM] drove her vehicle into [a street in the area], at approximately 11.20am and parked it approximately 50 metres away from the Accused’s vehicle, which was parked in the middle of [street].
[KM] heard a male voice ‘yelling and screaming’, and heard ‘really loud banging’ coming from the house next to where she had parked. She observed a male (the Accused) pacing back and forth between the Mercedes and the house, thrashing his hands around and appeared to be trying to coerce the female (the Complainant) into his car.
[KM] observed the Accused grab the Complainant by the arm and lead her towards his vehicle, at a time which the Complainant appeared to look ‘very hesitant’.
As the Accused was screaming at the Complainant, [KM] observed the Complainant get into the vehicle, and the Accused get into the driver’s seat, before the car sped off down [the street], turned right onto … and right onto …, before [KM] lost sight of the Mercedes.
Alleged offending [incident two]
As the Accused was driving the Complainant towards his Unit in an erratic manner, the Accused punched the Complainant with his fist to her head multiple times [charge 2: common assault].
At approximately 11.35am, the Accused arrived at his apartment complex and parked the car, with the Complainant inside, in the underground carpark. As the Complainant and Accused entered the front door of the apartment complex, the Accused kicked the Complainant twice to her buttocks with his right foot. This was captured on CCTV footage [charges 3 and 4: common assault].
As the Accused and Complainant approached the lif[t] in the main foyer, the Accused st[r]uck the Complainant to the back of her head with his left open palm, causing her to stumble forward. This was captured on CCTV footage [charge 5: common assault].
The Accused told the Complainant to “get the fuck upstairs”, at which time she entered the lift and travelled up to the first floor, exited the lift and walked towards the Accused’s Unit.
Once inside the Unit, the Accused continued yelling at the Complainant and accused the Complainant of lying to him. At this time, the Accused became physically aggressive towards the Complainant throwing her around, causing her to fall over, and kicked her in the leg area [charge 6: common assault].
The Accused also pushed the Complainant onto the couch, did not let her off the couch, and punched her multiple times, including to the arms, chest, neck, face/head and back [charge 6: common assault].
When she was able to, the Complainant managed to leave the Unit and got as far as the staircase to the ground floor, at which time the Accused caught up to the Complainant and stood in front of her, preventing her from leaving, and continuously telling her to return to the Unit. CCTV captured the Complainant running from the apartment complex onto the street at 11.50am, closely followed by the Accused.
Once outside, as the Complainant tried to walk away, the Accused pulled her ponytail causing her to come back towards him. This was witnessed by [GM], who is the chairman of the Accused’s apartment complex body corporate [charge 7: common assault].
At approximately 12.08pm, [GM] let the Accused and Complainant back into the apartment complex as neither had a security fob. [GM] observed the Complainant looking distressed and upset. The Complainant told [GM] that a friend had recently passed away.
After letting the Accused and Complainant back into the apartment complex, [GM] called triple zero at 12.13pm.[9]
[9]Footnotes omitted. Emphasis in original.
Police arrived at the applicant’s unit. After securing a large knife they saw on the floor of the unit, the police spoke to the complainant whilst the applicant was in another room. The complainant showed police her injuries, which were subsequently photographed, as was the damage to Williams’ front door. The applicant was directed to attend a police station for the purpose of preparing a Family Violence Safety Notice. At 4:08 pm that day the notice was explained to the applicant. Shortly thereafter, he was arrested, cautioned and interviewed.
The Summary of Prosecution Opening continues:
During a recorded interview, the Accused stated the following:
His address is …;
He has been in bed for three or four days, and has only left his apartment to go outside to get his keys;
‘[Ranae]’ is his partner, he has been in a relationship with her for four or five months and have lived together during this time;
The only time he has gone outside in the last four or five days is to look for his keys;
He has been unwell, and the Complainant tried to call an ambulance for him last night;
The Complainant was there with him when he woke up this morning;
A friend of his owns a black Mercedes which he is holding, and he hasn’t driven the Mercedes in the last four or five days;
He knows of [Williams]’s residence at …, but wasn’t there today, as he has been in bed for three or four days;
He has not had an argument with the Complainant today;
Whilst he screamed at the Complainant about the keys, he did not assault the Complainant;
He did not cause the bruising to her arm or any other injury to her;
When showed CCTV footage of him assaulting the Complainant in the foyer of the apartment complex, the Accused stated that he can’t recall that, but admitted it was him in the footage;
He was annoyed at the Complainant that she left him ‘to die’, and got really angry when she was not at the Unit;
He admitted to assaulting the Complainant in the foyer, but said that he was frustrated at the Complainant for leaving him and going to a friend’s house – he asserted that the Complainant feels guilty and that she is in the wrong;
Later in the interview, he stated that the Complainant returned to the apartment with the Accused on her own will;
He denied damaging the front door to [Williams]’s residence, and stated that the door has always been broken, that he was knocking on it, and that the Complainant came out peacefully – the door is shithouse and flimsy;
There were no assaults or arguments in the car; and
He denied grabbing the Complainant at … Street – he stated that the Complainant came into the car peacefully, and that there was no struggle.
At the conclusion of the record of interview, the Accused was charged by police and remanded in custody.
On 14 January 2022, the Accused was further remanded in custody by the Melbourne Magistrates’ Court.
Further investigation
On 14 January 2022, the Complainant attended her local General Practitioner, [FG], for an appointment. During the appointment, [FG] observed the following:
Swelling to the right temple;
Bruising to the right cheek;
An abrasion and bruising to the right neck;
A scratch on the right shoulder and bruising on the right upper arm;
A deep bruise on the left upper arm;
Slight swelling over the left breast;
A bruise to the right upper thigh;
A large bruise on the left shin; and
Swelling on the back of her head.
On 20 January 2022, Crime Scene Officer and Leading Senior Constable [RS] attended [Williams]’s residence and took a further series of photographs of the Complainant’s injuries.[10]
[10]Footnotes omitted.
On 27 January 2022, the Magistrates’ Court made a FVIVO in respect of the applicant. A condition of this was that the applicant be prohibited from contacting or communicating with the complainant by any means. The applicant was served with a copy of the FVIVO on 15 February 2022.
The Summary of Prosecution Opening continues:
On 30 March 2022, the Complainant told SC [S] that she wanted to withdraw her statement against the Accused, that she did not wish to attend Court and wanted the case to ‘go away’.
When asked why she felt this way, the Complainant told [SC] that the Accused had been contacting her from prison and told her that she needs to ‘get rid of the matter’.
In the same conversation, the Complainant told SC [S] that she had a second phone with a different number …, registered in the name of ‘Rebecca Best’. The name of ‘Rebecca Best’ was utilised by the Complainant given that there was the FVIVO which prevented contact between the Accused and Complainant.
Alleged offending [incident 3]
Following this conversation, SC [S] obtained the Accused’s prison telephone [records of] calls between him and the Complainant, using the alias of Rebecca Best. Between the period of 22 March 2022 and 13 April 2022, the prison records demonstrate that the Accused contacted the Complainant on 29 occasions in contravention of the FVIVO [charge 8: persistent contravention of family violence intervention order].
Analysis of the content of the Accused’s prison phone calls to the Complainant demonstrates that the Accused employed the use of pressure, guilt, threats and intimidation against the Complainant, in order to affect the trajectory of this prosecution and has done so in order to have the Complainant change or withdraw her police statement [charge 9: attempt to pervert the course of justice].
During the various phone calls, the Accused would refer to the Complainant as “Rebecca”, “[Ranae]”, “[Ranae]” and “Cuz”, and the Complainant would refer to the Accused as “Bear”. During many of the conversations, the Accused would talk about the Complainant in the third person, but would, on occasion, slip up and refer to the Complainant in the first person.
On 23 March 2022, the Accused told the Complainant that ‘witnesses have a right to withdraw’.
On 29 March 2022, the Accused discussed this prosecution and stated the following (in addition to admitting to kicking, striking and pushing the Complainant):
REBECCA: Hello.
MR DRAGOVIC: Hey, Rebecca.
REBECCA: Hi, bear.
MR DRAGOVIC: How you going?
REBECCA: I’m all right.
MR DRAGOVIC: Yeah. I tried ring yesterday, your phone was off, hey.
REBECCA: Yeah, I did - I didn’t realise, I thought - - -
MR DRAGOVIC: Yeah, I told - - -
MR DRAGOVIC: I - I got a little bit of credit today but it won’t last long so I might be - I told you I - I got three up and two down so - but you won’t see me for 24 months, you know.
REBECCA: I don’t know what - - -
MR DRAGOVIC: But anyway - - -
REBECCA: - - - that means.
MR DRAGOVIC: 24 months, cuz, so - yeah. Just - you know.
REBECCA: Mm.
MR DRAGOVIC: And [Ranae] - what [Ranae]’s done is just - like, you ask anyone, just - just unbelievable, you know. My partner is the only one who’s signed the thing. Everyone else, no-one’s signed anything so she got pressured obviously.
MR DRAGOVIC: Right. And - - - And the thing is, when she got pressured to sign, you know, it’s – it’s just wrong what the - - - cops done.
…
REBECCA: - - - absolutely, 100 per cent correct.
MR DRAGOVIC: Yeah, and - and what she should do, she should go in, you know, and then, you know, she - she - obviously she’s got - you know - - -
REBECCA: Well, I - - -
MR DRAGOVIC: Or the - - -
REBECCA: - - - think she actually - - -
MR DRAGOVIC: ...
REBECCA: - - - actually tried - - -
MR DRAGOVIC: And - nuh, nuh, she can do it and - she can - she can withdraw it but she ... worry about - no-one’s ever been charged, you know, and that - you know what? It has adverse affects on her medical condition as well, you know. It’s not ...
REBECCA: O.K.
MR DRAGOVIC: ... you gotta do, it’s - you got - you know, that’s - anyway, [Ranae]’s done this to me, you know, like. All it was is she never took care of me when I was sick for four days, she - she was gone for six hours. That’s - I’m gunna tell you the story because I got a little bit of credit on my phone, you know.
REBECCA: Yeah.
MR DRAGOVIC: And then I got back, I rang, she was out for six hours, never called me back and then the next day she was at [Larry]’s place, you know, talking to, like, [MK], I cracked it, drove there, picked her up and then drove the police station. She never put that on her statement as well. That would’ve been really good for me but she forgot to put that in her statement. Got to my place. I hit her from behind and kicked her, right, and that’s it. And then on the statement she said I - I - I met – I actually – what’s the word? 40 minutes she stated that I - I assaulted her, for 40 minutes - 40 minutes I assaulted her on the statement - on her statement. I - I’m - I’m dumbfounded by that. I walked upstairs, she swung at me, I pushed her, she fell on the couch. And on top of that she’s got pre-existing bruises - pre-existing bruises. They’ve taken every bruise, scratch and mark on her body and have put it on me at - mate, I’m fucked. Can’t believe what she’s done - - -
REBECCA: Well - - -
MR DRAGOVIC: - - - to me, you know. Anyway, that’s - that’s all I got to say so - - -
…
REBECCA: She hasn’t done - she hasn’t done anything, she was just doing what she was fucking told.
MR DRAGOVIC: Yeah, well - well, you know, Rebecca, just I’m - I’m done with her, Rebecca, honestly. I’m doing 24 months. I’ve lost January, I lost wages, January, February, March I’ve lost wages but my rent - I’m up - I’m up to about $11,000 on my rent I gotta pay. Look - look at the turnaround - look at the - look how much I’ve missed per week on my job. I - I’ve - I’ve lost my job that I love - how much money I’ve lost on my job. Cuz, you know how much I was making per week, right?
REBECCA: Yes, I know.
MR DRAGOVIC: I - I - yeah, that - that’s three months of wages. My car - I’m selling my car now, my pride and joy, I’m selling it, right, so I can pay my barrister, I can put in his trust fund. A guy’s trying to pick up the car, he can’t get a hold of you but doesn’t matter. We’ll get a - we’ll get a - when - when - - -
REBECCA: It’s not your - - -
MR DRAGOVIC: Doesn’t matter, it’s done - it’s done. I’m going to get my sister to do a - bring up Mercedes, do another copy of the key, take the car.
REBECCA: Do that. ‘Cause the key - - -
MR DRAGOVIC: No, no, no, it’s all good, my sister’s gunna do it - my sister here - - -
REBECCA: Good.
MR DRAGOVIC: - - - in …, she’s gunna do it all. So - - -
REBECCA: Good.
MR DRAGOVIC: That’s just a tradition I’m in. So, mate, I wish [Ranae] will just go down there and just do the right thing, just ...
REBECCA: She tried.
MR DRAGOVIC: She - she - no - no, there’s a different between “try” and “do”. She’s just - anyway, I don’t want to - I don’t want to know her any more, she’s done. I’m gunna look after my sister and Rebecca, that’s it. I - 24 months, fucking fantastic - fantastic. Three - 20 - 36 months but on the low 24 months. Do you know what I’m - God, my God.
REBECCA: Bear - - -
MR DRAGOVIC: ... what - hey, what? Sorry, can’t ... imagine how I’m feel - how am I feeling, cuz? It’s shocking, Rebecca, shocking. So a partner for life doesn’t do that. Cops are your - you know, cops aren’t your friend. That’s what I was trying to tell her, they’re not your friend. Police, they’re not - - - your - not your friend. You know - you know [Ranae]’s got a record? She’s had a CCO, she’s had a Community Corrections Order. I didn’t even know that. So she’s well-known to police, she’s known. She can withdraw that statement, she’s just gotta have balls and go in there and just fucking - she doesn’t want to have this stress going in the court. I’ve got the - I’ve gotta go to county court.
REBECCA: She’s not going - - - to court.
MR DRAGOVIC: No, no, County – I’ve already got a Crown Court – I’ve got the Crown Court versus Dragovic, 25 to 30K my barrister has told me it’s going to cost me on top of my lost wages from January, February, March. She - she thinks - she thinks she loves me. What a load of shit. Guess what?
REBECCA: I know she loves you.
MR DRAGOVIC: She doesn’t love me. All she’s done is she’s used me to - listen this, this is what she’s done. The money she owes me, right, it’s 16 in the thing. Who knows when that’s gunna come through? Still waiting. Plus we - all up it’s nearly 55, 60 all up - - - …
MR DRAGOVIC: I’m gunna see you in about 24 months. And guess when I come out - guess what - guess what? Well, oh, my God, am I gunna make up for lost time, telling you - - -
REBECCA: Well - - -
MR DRAGOVIC: - - - now.
REBECCA: Then why can’t - - -
MR DRAGOVIC: No, no, no, [Ranae] - - -
REBECCA: Well, she’s doing everything that she can.
MR DRAGOVIC: No, she can’t Rebecca. Go in there, it - it had - it – she can’t, she’s got fucking - she’s got fucking Aspergers, Autism. She doesn’t - - -
REBECCA: Yeah.
MR DRAGOVIC: ... ‘cause she does - she doesn’t need this stress in her life. She was up for number of - hey, she - she was up for a number of days when she made that statement. That - her mind wasn’t fit - her mind was not fit so I got - - -
REBECCA: O.K., O.K., O.K.
MR DRAGOVIC: Listen - listen.
REBECCA: O.K.
MR DRAGOVIC: Her mind was not fit - her mind was not fit.
REBECCA: Yep, O.K. …
REBECCA: Yeah, I - I get it - I get it, baby. I get it.
MR DRAGOVIC: ... [Ranae]’s scratched out of my life, she’s done. If she doesn’t act I swear on my father’s grave when I come out I never - I don’t want to know her again, done. I just ... and I want every cent back of my money I’ve given her. She owes me 60 - 60 K.
REBECCA: Yeah, and she’s - - -
MR DRAGOVIC: 60 K.
REBECCA: She’s gunna pay you.
…
MR DRAGOVIC: [Ranae], I’m - I’m done with [Ranae], [Ranae] is scratched, I swear my father’s grave. My mum’s 85 years old, she’s precious, she cries to bed every night ‘cause I’m in here. That’s the - the affects [sic] I’ve got for my family. My mum cries to bed every night. Because why? ‘Cause his fucking girlfriend won’t fucking set a statement. It’s just wrong, ‘cause she’s - - -
REBECCA: She did.
MR DRAGOVIC: - - - affected by drugs - she’s affected by drugs. She’s - she’s got ... her fucking mental fucking medication, she’s gotta go in there and tell her the truth. Thanks, Rebecca, for listening. I’ll see you in about 24 months.
It is following this conversation, on 30 March 2022, that the Complainant told SC [S] that she wanted to withdraw her statement and for the prosecution of the Accused to end.
On 6 April 2022, the Accused and Complainant discussed the Committal Hearing, and the Accused stated to the Complainant that “what you’ve done to me is just uncalled for. I should have stayed with Rebecca all this time”.
On 7 April 2022, the Accused asked the Complainant when he was ‘getting out of here’, and that, given that the Complainant had signed a statement, she was “out of [his] life…completely scratched”.
On 14 April 2022, the Accused told the Complainant that she will never hear from him again, and that when he gets out, he is going to go to the police and do what she did to him, because the Complainant has “fucked [his] whole life up, fucked it completely”.[11]
[11]Footnotes omitted. Underlined emphasis added.

The Plea and Sentence

The plea took place on 24 November 2023. The applicant presented a comprehensive plea. In very short compass, counsel for the applicant dealt with the circumstances of the offending submitting that whilst occurring in the context of family violence it was ‘spontaneous, unpremeditated, out of character offending’ that was not only unlikely to be repeated but has not been repeated in the time the applicant was on remand (116 days at the time of the plea). It was submitted that charges 1 to 7 ought be regarded as part of ‘one transaction’ and be the subject of an aggregate sentence.[12] The judge ultimately agreed that an aggregate sentence was appropriate for the common assault charges as they were so closely connected. Counsel on the plea submitted that overall those charges ought be considered as towards the low to middle range in terms of its objective seriousness. Counsel contended further that the other charges could be dealt with individually but there should be significant concurrency. This was not, it was submitted, a continuous 40 minute episode of unrelenting abuse or assaults where the complainant was unable to leave, but rather an interrupted episode over that period. Counsel accepted that the applicant’s moral culpability for the assaults was high.
[12]Referring to R v O’Rourke (1997) 1 VR 246.
Insofar as the attempt to pervert the course of justice (‘APCJ’) charge was concerned counsel contended that there were no overt threats of violence, coercion or intimidation in the relevant telephone call and that any threats or intimidation which might be apprehended from the facts were ‘inferential and not direct’. The judge stated that he considered the ‘I’ll make up for lost time remark’ could be considered in all the surrounding circumstances to be an implied threat. Defence counsel reminded the judge that if he was considering making a finding to that effect the prosecution would need to establish that inference beyond reasonable doubt. The judge correctly accepted that statement of principle. Counsel submitted that the APCJ offending was a single incident and fell towards the ‘lower end of the scale for offences in that category, even offences in the mid-category’ and a list of comparable cases was helpfully provided to the Court. In oral submissions, counsel drew particular attention to three comparable cases falling within the mid-category which did not result in imprisonment.
It was submitted that the applicant had ‘excellent prospects for rehabilitation’ and had ‘demonstrated not only a significant commitment to reform, but also a significant commitment to compliance with court orders’ which was important in the context of the offending relating to breaching court orders, namely the breach of the FVIVO and breach of bail. He had completed a CCO for unrelated offending including conditions relating to drug and alcohol counselling and had after some ‘early jitters’ performed well on CISP[13] bail. His prior offending was not for priors for violence and was irrelevant. Further, it was submitted that there had been significant delay since charges were laid with the stress and anxiety such delay entailed; his bail conditions were onerous until the matter reached the County Court; his plea was offered as soon as the indictment was resolved and ought been considered to be ‘early’; there was a significant utilitarian benefit to his plea (in circumstances where the complainant had expressed an unwillingness to further participate in any trial of the charges) which was enhanced by being entered during the pandemic; the applicant maintained strong family support and was currently acting as his elderly mother’s carer. The applicant has had a longstanding cocaine habit but had been largely abstinent during his time on bail, and had been completely abstinent from all forms of illicit substances for a significant period leading up to his plea hearing. The applicant did not rely on any psychological issues and had a reasonably solid work history. Counsel submitted that the man the applicant was at the time of the plea was not the same person who committed the offences.
[13]‘CISP’ is an acronym for Court Integrated Services Program.
Counsel further submitted that remorse could be inferred from the applicant’s guilty plea and accepted that both denunciation and general deterrence were relevant sentencing purposes. In respect of the APCJ charge, counsel submitted that imprisonment was not the only available sentence that meets the principles of proportionality, parsimony and general deterrence, which he accepted were relevant. In respect of all the offences, counsel submitted a combination sentence was appropriate and that a prison term of greater than time served to that date[14] would infringe the principle of parsimony and would be disproportionate to the gravity of the offending given the applicant’s age (47 at the time of offending, 49 at the time of sentence) and lack of relevant criminal history. He further submitted that such a sentence was not the only sentence reasonably open in the circumstances and that any further period of imprisonment would be crushing and he would ‘suffer profoundly from being returned to custody in circumstances where he’s already rebuilt his life’.
[14]120 days at the time of sentence.
The prosecutor submitted that the offending warranted a head sentence with a non-parole period. After playing the tape of the relevant telephone call, the prosecutor submitted that the phrase ‘When I come out, guess what, guess what, well oh my god I’m going to make up for lost time, I’m telling you’ was ‘levelling a threat by reason of the tenor used’ or at least the implication of one. He submitted that the fact that the indictable offences were committed whilst on bail could be viewed either as an aggravating feature of those indictable offences, or, alternatively, any penalty on the summary charge of committing an indictable offence on bail would need cumulation upon the indictable penalties. He submitted, relying on DPP v Reynolds (a pseudonym),[15] that in cases of family violence sentencing principles such as general deterrence, denunciation, just punishment, and community protection ought be considered as prominent sentencing factors and that personal considerations, even if powerful, have to play a subsidiary role to the punitive element of sentencing.
[15](2022) 71 VR 336; [2022] VSCA 263.

Sentencing Remarks

The judge summarised the circumstances of the offending along the lines of the Summary of Prosecution Opening. After referring to the telephone call of 29 March 2022 and summarising its contents, the judge said:
You then said to her, ‘I’m gonna see you in about 24 months, and guess what, when I come out, guess what, guess what — well, oh my god, am I gonna make up for some lost time’. The prosecution relied on these words as an implied threat of violence.
[Defence counsel] submitted that I cannot be satisfied of that implication beyond reasonable doubt, which is the standard of proof for an aggravating fact in sentencing. He submitted that in assessing those words I need to consider them in the context of the call where you were threatening that she would never see you again.
Having listened to the call on several occasions, and of course read the words in the transcript, I am satisfied beyond reasonable doubt that having regard to the significant assault you had perpetrated against her earlier; the words used in that part of the call and the tone of your voice, which in my opinion differed markedly from the tone you used in the rest of the call, that you were intending to imply violence when you were released from prison.
In the remainder of the call, you told the complainant that she did not need this in her life. You said you had scratched her from your life and that you wanted every cent back of the money she owed you. You also referred to her being affected by drugs and ended the call saying that you would not see her for 24 months.
As I have already said, the following day the complainant went to the police and sought to withdraw her statement.[16]
[16]Reasons, [42]–[46].
The judge noted the applicant’s plea of guilty and accepted that it was entered at an early opportunity; it spared the witnesses, particularly the complainant, the experience of giving evidence, and that it had an enhanced utilitarian value given that it was entered during the pandemic in accordance with the principles in Worboyes v The Queen.[17] The judge considered that ‘remorse is more difficult in this case’ and noted that beyond the plea of guilty, defence counsel had made no submissions in this regard.[18] The judge correctly considered the applicant’s prior conviction for resisting a police officer as not having significant relevance to the sentence in the present case, other than rendering the applicant unable to call on the benefit of an unblemished record.[19] The judge noted that at the time of the commission of the offending in this case the applicant was on bail for trafficking and resisting an emergency services worker. He was dealt with in 2022 and was placed on a CCO which he successfully completed. That grant of bail was the basis for the related summary offence in this matter.[20]
[17]Ibid [49] citing Worboyes v The Queen [2021] VSCA 169.
[18]Ibid [49].
[19]Ibid [50].
[20]Ibid [51].
The judge then referred to the Victim Impact Statement filed by the complainant in the following terms:
A victim impact statement from Ms Smith was tendered as an exhibit on the plea. She described some ongoing physical effects beyond the injuries alleged in the prosecution opening, which the prosecutor, … did not seek to rely on and I have not had regard to those matters in assessing the injuries she sustained.
Nonetheless, your offending has had a significant impact on her. She says in her victim impact statement she deferred her studies due to pressure she felt and her mental state in the aftermath of this incident. She has become reclusive and does not like being alone anymore. She is no longer able to tolerate displays of anger or impatience from others. She is often anxious. She becomes distressed when she sees family violence incidents reported on the news. She has been seeing a psychologist to assist with trauma.
It is obvious from the victim impact statement that your offending has had a significant ongoing impact on her which informs just punishment for your offending.[21]
[21]Ibid [52]–[54].
His Honour then correctly summarised the sentencing principles in respect of family violence, in this case intimate partner offences, and noted that they applied to the applicant’s offending.[22] We shall refer to these principles later in these reasons.
[22]Ibid [55]–[59].
The judge then made the following observations about the offending:
•The common assault charges should be assessed as comprising ‘one related episode’ commencing with the criminal damage offence and involving sustained but not continuous violence over a period of approximately 40 minutes.[23]
[23]Ibid [60].
•The applicant was seeking to exercise control over the complainant and while family violence is never justified, the judge was at a loss to explain why the applicant behaved in the violent way he did.[24]
[24]Ibid [61].
•Whilst the applicant was not charged on the indictment with intentionally or recklessly causing injury and is not to be sentenced for intending or foreseeing injury, the fact is that he caused ‘multiple significant bruises in many areas of her body including to the side of her face, her arms, her legs, her upper thighs’.[25]
[25]Ibid [62].
•This was a serious incident of family violence and these are serious examples of common assault.[26]
[26]Ibid.
•General deterrence and denunciation must be given substantial weight.[27]
[27]Ibid [63].
•APCJ is a serious offence with a maximum penalty of 25 years striking at the heart of the administration of justice.[28]
•Counsel’s submission that the impact of the applicant’s conduct in making the phone call on 29 March 2022 had less weight because of the availability to the prosecution of eliciting the statement through either s 65 or s 32 of the Evidence Act 2008, did not much reduce the gravity of the offence in this case. Plainly, the absence of the complainant in any family violence case makes the prosecution’s task of securing a conviction much more difficult, and that is what the applicant was intending to do.[29]
•The APCJ offence occurred while the applicant was prohibited by the FVIVO from having any contact with the complainant.[30]
•The call which is the basis of the offence was an effort to control the complainant through emotional manipulation and an implied threat of violence designed to persuade her to withdraw the statement which she then tried to do.[31]
•In assessing the gravity of the offending, the judge had regard to the fact this was not just one call, rather there was a series of calls with overt threats, a feature often seen in such cases.[32]
•The judge concluded that this case clearly falls below the more serious examples of APCJ, but nonetheless this remained a serious offence.[33]
•There was overlap between the APCJ and contravention of FVIVO charges in the 29 telephone calls while the applicant was in prison, some of which involved subterfuge. The judge took into account that the complainant must have agreed at some level to participate in those calls with the applicant.[34]
•The offending has had a significant impact on the victim.[35]
•These offences were committed while the applicant was on bail which is an aggravating feature of the offending and the applicant took no notice of the FVIVO which was supposed to protect the victim.[36]
•The applicant’s overall moral culpability is substantial.[37]
[28]Ibid [64] citing DPP v Oksuz [2015] VSCA 316, [95] (Kyrou JA).
[29]Ibid [66]–[67].
[30]Ibid [68].
[31]Ibid.
[32]Ibid [69].
[33]Ibid [70].
[34]Ibid [71].
[35]Ibid [72].
[36]Ibid [73].
[37]Ibid [74].
The judge’s assessment of the applicant’s moral culpability is careful, balanced and clear. We agree with every aspect of it.
The judge then turned to the applicant’s personal circumstances. His Honour noted that the applicant:
•is the youngest of three children;
•lived with his retired mother and received a carer’s benefit for looking after her;
•has been employed in various occupations since leaving school including as a storeman, ground crew for Qantas, and as a shopfitter; and
•has a history of cocaine use, but has been abstinent since his arrest.[38]
[38]Ibid [75]–[78].
The judge took into account other matters including:
•the applicant’s guilty plea;[39]
•his time in pretrial custody was more onerous due to pandemic restrictions;[40]
•a delay of some 22 months from arrest to sentence meant that that the applicant had the stress of this serious matter hanging over his head since he was charged;[41]
•he has shown a capacity for rehabilitation during this period of delay, has performed well both on CISP bail and his CCO and has not come to the attention of police for further offending since he was released;[42]
•counsel’s submissions on the applicability of the decision in Boulton v The Queen[43] to this case;[44]
•current sentencing practices;[45]
•his prospects for rehabilitation are good although there is some cause for concern about future offending against intimate partners; and,[46]
•that this would be the first time the applicant was sentenced to imprisonment which would involve returning him to prison after a lengthy period of adhering to bail conditions and a CCO, and the sentence would weigh heavily on him.[47]
[39]Ibid [79].
[40]Ibid [80].
[41]Ibid [81].
[42]Ibid [81]–[84], [86].
[43]Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342.
[44]Reasons, [85], [89]–[90].
[45]Ibid [87].
[46]Ibid [88], [93].
[47]Ibid [94].
In respect of the relevant sentencing principles, the judge was of the view that:
•the common assault offending was serious, and the principles of general deterrence and denunciation were very clearly important;
•the APCJ which followed that offending was to be regarded as a separate and distinct serious offence for which principles of general deterrence and denunciation must be given substantial weight; and
•community protection, just punishment and specific deterrence all had a role to play, however community protection and specific deterrence were less significant given the steps the applicant had taken towards rehabilitation.[48]
[48]Ibid [91]–[92].
In the circumstances, the judge considered that the only appropriate total effective sentence involved setting a head sentence with a non-parole period.[49]
[49]Ibid [92].
The judge accepted that he could impose an aggregate sentence pursuant to s 9 of the Sentencing Act 1991 and considered the principle of totality in fixing the sentence.[50]
[50]Ibid [95]–[97].

This appeal

Manifest excess

We have set out in paragraph [4] of these reasons how the applicant has structured his argument under this ground. The complaint of manifest excess is confined to the 16 months’ imprisonment aggregate sentence on charges 2 to 7 and cumulation ordered on charges 8 and 9.
In our view, the application fails at this first obstacle.
Any ground of manifest excess is difficult to establish. An applicant must demonstrate that the sentence or sentences imposed are ‘wholly outside the range of sentencing options available’ in the reasonable exercise of sentencing discretion.[51] The ground does not seek to identify specific error but rather contends that the impugned sentence is so excessive that it bespeaks underlying error incapable of precise identification. The applicant bears the heavy burden of demonstrating that the impugned sentence was not reasonably open to the sentencing judge.
[51]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Director of Public Prosecutions v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA), 637 [1] (Warren CJ and Maxwell P agreeing); [2010] VSCA 350; Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P); Minutolo v The King [2023] VSCA 300, [62] (Kennedy JA and Kidd AJA); Sawyer-Thompson v The Queen [2018] VSCA 161, [130] (Beach JA).
We consider that the aggregate sentence of 16 months’ imprisonment for the common assault charges was comfortably within the range available to his Honour. It must be borne steadily in mind that this was an aggregate sentence for six separate offences each with a maximum of 5 years’ imprisonment. Unlike a rolled up sentence, the judge was not confined to a notional maximum penalty of 5 years when considering in aggregate the six common assault charges. Section 9(2) of the Sentencing Act 1991 provides that the term of an aggregate sentence of imprisonment must not exceed the total period of imprisonment that could have been imposed if the Court had imposed a separate sentence of imprisonment in respect of each of them.
We agree entirely for the reasons stated by the sentencing judge, that the applicant involved himself in serious violence against his intimate partner. Violence towards an intimate partner can never be justified but in this case, there seems little if any reason for this sustained course of violence. The applicant’s apparent grievance seems to be that the complainant, having cared for him during his illness, called an ambulance against his wishes. She then had the temerity to leave his presence for a few hours.

Recently, in DPP v Reynolds (a pseudonym), this Court restated and emphasised established sentencing principles in cases of intimate partner violence.[52] In Kalala v The Queen, the majority observed that ‘[t]his Court has repeatedly emphasised the need to condemn family violence, in line with community expectations’.[53] A decade ago, in Feliz v The Queen, this Court remarked:
It is a shameful truth that family violence is a leading cause of illness, disability and death among Victorian women aged between 15 and 44. It is also sadly true that there are a great number of women who live in real and justified fear of the men who are, or were, their intimate partners.[54]
[52]See DPP v Reynolds (a pseudonym) (2022) 71 VR 336, 352 [71]–[77] (T Forrest and Kidd AJA); [2022] VSCA 263 citing Pasinis v The Queen [2014] VSCA 97, [57] (Neave JA and Kyrou AJA); Mercer (a pseudonym) v The Queen [2015] VSCA 257, [54] (Maxwell P and Beach JA); Kalala v The Queen (2017) 269 A Crim R 1, 18 [59] (Maxwell P and Redlich JA); [2017] VSCA 223; DPP v Evans [2019] VSCA 239, [84] (Maxwell P, T Forrest and Weinberg JJA).
[53](2017) 269 A Crim R 1, 18 [59] (Maxwell P and Redlich JA); [2017] VSCA 223.
[54][2014] VSCA 212, [23] (Maxwell P and Redlich JA) (citations omitted).
Those (mostly) men who elect to engage in violent activity within the home can expect little sympathy from sentencing courts. As noted by the Court in DPP v Reynolds (a pseudonym), the authorities make plain that ‘general deterrence, public denunciation, just punishment and community protection must be prominent sentencing factors when sentencing for family violence offending’.[55] Never have these observations been more resonant than now. The community is rightly distressed at the tragic prevalence of intimate partner violence. The Court joins in that distress. Those inclined to this type of emotional and physical violence must understand that they will be held to account.
[55]DPP v Reynolds (a pseudonym) (2022) 71 VR 336, 352 [77] (T Forrest JA and Kidd AJA); [2022] VSCA 263.
The aggregate sentence imposed for the common assault charges is comfortably within range for a serious example of this type of offending. It is a moderate sentence which fairly reflects the competing factors in the sentencing matrix.
Further, we consider that the sentence imposed for the APCJ offending is moderate also. It is not the subject of a specific manifest excess complaint, nor could it be. We agree with the judge that whilst below the more serious examples of this offence, it remains serious offending. Moreover, it too has a flavour of controlling intimate partner violence and we agree with the judge’s finding that the applicant’s relevant statements in the 29 March 2022 telephone call are thinly disguised threats of violence, carried out for a purpose that is inimical to our system of justice.
In the circumstances, the sentence of 14 months’ imprisonment for the APCJ was moderate and the cumulation of six months (which is the subject of this application) is moderate also.
Essentially for the same reasons, we consider that the cumulation of two months on the persistent contravention of a FVIVO is also well within range. The applicant, whilst on remand and the subject of a FVIVO, spoke to the prohibited person on no less than 29 recorded occasions using subterfuge to disguise the identity of the complainant.

Conclusion

The application for leave to appeal must be refused.
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[2024] VSCA 95

16 May 2024