Findlay v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0054

KIM FINDLAY	Applicant
v
THE KING	Respondent

---

JUDGES:	BOYCE and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2024
DATE OF JUDGMENT:	3 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 191
JUDGMENT APPEALED FROM:	DPP v Findlay (County Court of Victoria, Judge Ellis, 18 December 2023)

---

CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary – Threat to kill – Recklessly cause serious injury – Delay – Rehabilitation – Whether judge mistook maximum penalty for threat to kill offence – Offender suffering symptoms of PTSD and traumatic background – Whether sentence manifestly excessive – Application for leave to appeal refused.

Criminal Procedure Act 2009 s 280(1)(b).

Worboyes v The Queen [2021] VSCA 16; DPP v Meyers (2014) 44 VR 486; Bugmy v The Queen (2013) 249 CLR 571; Hogarth v The Queen (2012) 37 VR 658; R v Verdins (2007) 16 VR 269; Markarian v The Queen (2005) 228 CLR 357; DPP v Aydin and Kirsch [2005] VSCA 86; R v Beary (2004) 11 VR 151; R v Fuller-Cust (2002) 6 VR 496, referred to.

---

Counsel
Applicant:		Ms J Kretzenbacher
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Law and Advocacy Centre for Women
Respondent:	Office of Public Prosecutions

BOYCE JA
KAYE JA:

On 14 July 2023, the applicant pleaded guilty in the County Court to charges of aggravated burglary,[1] make threat to kill[2] and causing serious injury recklessly.[3] The applicant also pleaded guilty to a related summary offence of dealing with property suspected of being the proceeds of crime.[4]
[1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 20 of the Crimes Act 1958.
[3]Contrary to s 17 of the Crimes Act 1958.
[4]Contrary to s 195 of the Crimes Act 1958.
Plea hearings were held on 31 October 2023 and 7 December 2023. On 18 December 2023 the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Aggravated burglary	25 years	20 months	5 months
2	Make threat to kill	10 years	3 months	1 months
3	Causing serious injury recklessly	15 years	4 years and 2 months	Base
Related Summary Offences
11	Dealing with property suspected of being proceeds of crime	2 years	14 days	N/A
Total Effective Sentence:		4 years and 8 months’ imprisonment
Non-Parole Period:		2 years and 6 months’ imprisonment
Pre-sentence Detention Declared:		539 days
Section 6AAA Statement:		Total Effective Sentence: 6 years and 2 months Non Parole-Period: 3 years and 3 months
Other Relevant Orders: 1. Forfeiture and Disposal orders

The applicant applies for leave to appeal against sentence. The applicant’s notice pleads four proposed grounds of appeal:
Ground 1: The learned sentencing judge erred in not taking into account the mitigating factor of delay in the exercise of the sentencing discretion.
Ground 2: The learned sentence judge erred in finding that the Applicant’s prospect of rehabilitation were ‘anything more than guarded’.
Ground 3: The individual sentences, total effective sentence (including the orders for cumulation) and non-parole period were manifestly excessive having regard to:
a)         The correct maximum penalty for charge 2;
b)         The plea of guilty (including the role of Worboyes);
c)         The applicant having spent her time on remand in onerous conditions;
d)         Remorse;
e)         Verdins;
f)         Prospects of rehabilitation;
g)The applicant’s difficult and traumatic upbringing and applicability of the Bugmy principles;
h)         The applicant’s time spent on Supreme Court bail;
i)         Delay;
j)         Current sentencing practices;
k)         Parsimony.
Ground 4: The sentencing discretion on charge 2 miscarried as the learned sentencing judge mistook the maximum penalty of the to kill contrary to s 20 of the Crimes Act 1958 (Vic), as bring 20 years’ imprisonment, rather than 10 years’ imprisonment.
For the reasons that follow, the applicant’s application for leave to appeal against sentence must be refused.

Summary of key facts

The applicant’s offending involves her having broken into the premises of a 54-year-old male and causing him serious injury. The male victim resided at the premises with his 80 year-old mother. The applicant was not known to the male or his mother.
On 3 February 2021, the male went to bed in his bedroom located on the ground floor of his home. The mother was already asleep on the first floor. At approximately 1:30 am on 4 February 2021, the applicant entered the male’s home through a window in the study. The male heard a noise coming from the study; he got out of bed and walked to the study in order to investigate.
The male saw the applicant’s silhouette in the doorway of the study. It appeared that the applicant had an object in her hands (charge 1). The male told the applicant to ‘get out’. The male then called out in Greek to his mother requesting that she call the police. The applicant said to the male: ‘I’m going to kill you, you murdered my son and you raped my daughter’.[5]
[5]Those allegations were untrue and were entirely devoid of any basis in reality.
The applicant and the male began to exchange blows. The male did not strike first. He was trying to get away, but he was also attempting to lead the applicant to the front door so that she might leave the house. The applicant waved her arms in the air and the male heard a ‘swishing’ sound. The male backed down the hallway towards the front door; he believed the applicant had a weapon. The male then heard the applicant say: ‘you’re going to die, you’re going to die’ (charge 2). The male then felt himself being ‘slashed’.
The male kept telling the applicant to ‘get out’. He then realised that he was being stabbed because he felt sharp pain. The male punched the applicant in order to protect himself. On one occasion when he punched the applicant, something fell from her. The male heard something land on the floor. The male again called out to his mother telling her to call the police. The male was bare–foot and bleeding from his injuries. The male slipped over and landed on his back.
The applicant then got on top of the male and stabbed him in the right shoulder with an unknown weapon. The male attempted to get the applicant off him. The applicant was head–butting the male. The applicant bit the male’s fingers. The applicant told the victim she was going to ‘torture him’ and that he was going to ‘die slowly’. The male kicked the applicant on the right side of her leg and she fell off him.
The male then got up and turned on the lights. The male saw that he was bleeding profusely. There was a weapon on the floor near the front door, as well as a set of dentures. The applicant was laying on the ground, near the front door. The male went upstairs to see his mother. By this stage she had called 000.
The male returned downstairs. By this stage the applicant had moved and was near the kitchen. The applicant lunged at the male. The applicant had something in her hand and was repeatedly trying to stab the male. The applicant was saying things like: ‘I’m gonna kill your family’, ‘I’m gonna get your business’ and ‘You’re a paedophile and you hurt people’. The male heard the applicant say: ‘You want to die?’. The male told the applicant to leave him alone.
The male’s mother then came down the stairs and yelled at the applicant to leave her son alone and to get out of the house. The male’s mother saw the applicant holding a weapon to the male’s throat. The mother said ‘Please don’t do it’. The applicant left the premises via the front door.
The male was taken to hospital and treated. He had sustained serious injury which was life–threatening (charge 3). In particular, the male’s injuries consisted of the following:
(a)a penetrating wound in the front of the chest, allowing air to suck in from the outside;
(b)air and blood within the pleural cavity outside the lung (pneumothorax hemothorax);
(c)a laceration to the right middle lobe lung;
(d)two injuries to the top of the right shoulder into the lateral muscle; one measuring three centimetres and the other four centimetres;
(e)a large bleeding laceration to the muscle on the right side of the head, supraorbital region of the temporalis muscle;
(f)a laceration to the right arm (triceps muscle);
(g)a small laceration to the right armpit muscle;
(h)an incisional injury to the lower right side of the abdomen;
(i)a laceration over the knuckle of the first and second fingers;
(j)a 100 per cent separation of one finger straightened tendon;
(k)a further lacerations on the back of the hand.
The male also suffered a number of minor defensive injuries.
On 10 February 2021, the applicant was arrested. At the time she was in possession of identification cards of another person (related summary offence – charge 11).

The plea

The applicant was 49 at the time of the plea. She is an Aboriginal woman. She had a difficult and traumatic background. The applicant was born into circumstances of dysfunction. The applicant’s father was an alcoholic who died when the applicant was 16. The applicant was rejected by her mother. The mother was addicted to drugs and was also an alcoholic. The mother was violent to the applicant from an early age. So were the mother’s partners. The applicant commenced drug use when she was young. This use commenced with cannabis and graduated ultimately to heroin. The applicant alleged that her mother was the first person to ‘put a needle in [her] arm’. The applicant was, when she was very young, the victim of sexual abuse at the hands of an uncle. The applicant attempted suicide at age 11. She ceased her education at 13, and at 15 fell pregnant. The applicant’s first intimate partner committed suicide.
The applicant had five children. Her intimate relationships were characterised by violence. The applicant was the victim of sexual assault even into adulthood. The applicant had, on occasion, been placed in psychiatric institutions. She had spent periods in gaol. She had seen her own children removed from her care.
She had lost family members in tragic circumstances. Whilst on remand for the present matters she lost her daughter and her mother. Her imprisonment precluded her taking part in the necessary ‘Sorry Business’.
It was submitted that the applicant’s upbringing well qualified her for mitigation in penalty in line with the principles described by the High Court in Bugmy v The Queen.[6]
[6](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
The applicant relied on several psychological reports that were tendered on the plea. The most recent report was one authored by psychologist Ms Carla Lechner dated 6 October 2023.
The applicant had — in the past — been diagnosed with depression, anxiety and borderline and anti–social personality disorders. Ms Lechner diagnosed the applicant with ongoing symptoms of ‘Complex Post-Traumatic Stress Disorder.’ An earlier diagnosis of Post-Traumatic Stress Disorder (‘PTSD’) from 2012 was noted. The PTSD stemmed from the abuse suffered by the applicant as a child and was aggravated by the applicant’s experiences in adulthood. The applicant used drugs as a means of coping with her condition. The applicant presented also with symptoms of ‘Opioid Use Disorder’ in partial remission. On remand, the applicant had been housed predominantly in the ‘Marmak unit’.
Ms Lechner gave evidence on the plea. The tenor of this evidence was to establish that when the applicant felt threatened her psychological condition would cause her pre–frontal cortex to shut down and she would enter a ‘fight or flight’ mode. It was thought that this had occurred during the commission of the present charge 2 and 3. Nevertheless, it was not submitted — in terms — that Verdins[7] principles one to four were engaged in the present case.[8] It was expressly submitted that, given the applicant’s emotional vulnerabilities and diagnoses, a sentence of imprisonment would weigh more heavily upon the applicant than it would a person of normal health.[9] And it was submitted that there was a significant risk that imprisonment would have an adverse effect upon the applicant’s mental health.[10]
[7](2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[8]Counsel for the applicant originally submitted that Verdins principles five and six were in play. After Ms Lechner gave evidence counsel approached the Verdins issue with a ‘degree of caution’ and with ‘guardedness’ given the ‘inability of Ms Lechner, or anybody in fact, to differentiate or appropriately attribute the impact of Xanax coupled with [the applicant’s] trauma history’.
[9]Verdins (2007) 16 VR 269, principle five.
[10]Ibid, principle six.
It was emphasised that there were periods in the applicant’s life when there had been no court appearances. This had occurred, for instance, between 2015 and 2018 and also, for a period following the applicant’s release from custody in early 2020. The applicant had remained offence–free since being released on bail in respect of the present matters in June 2022. During her period on bail the applicant had been supported by a number of community agencies.
It was submitted that the applicant enjoyed ‘good’ prospects of rehabilitation.
It was submitted, also, that — in light of this matter’s procedural history — the applicant’s pleas could be considered to have been entered at an early stage. Moreover, the applicant’s pleas were indicated when the court’s listings were beleaguered due to delays caused by the COVID–19 pandemic.
The applicant had been remanded in custody soon after her arrest. In October 2021 — prior to committal — the applicant entered pleas of guilty including to the offence of intentionally causing serious injury. The plea was adjourned in order that the applicant’s mental health might be assessed. The applicant was granted bail in June 2022. The applicant withdrew her pleas in August 2022. The matter was listed for trial to commence in July 2023. In September 2022 the applicant offered to plead guilty to offences that included aggravated burglary (intent to steal) and recklessly causing serious injury. This offer was rejected. The same offer was renewed in June 2023. It was again rejected. The applicant’s offer was ultimately accepted one day prior to the trial listing date.
The applicant submitted that the applicant’s offending could be met with the imposition of a community correction order (‘CCO’) combined with a term of imprisonment.

Reasons for sentence[11]

[11]DPP v Findlay (County Court of Victoria, Judge Ellis, 18 December 2023) (‘Reasons’).

The judge in the Reasons outlined the circumstances of the applicant’s offending.[12]
[12]Reasons, [2]–[19].
The judge took into account the ‘profound effects’ that this offending had had upon the male victim.[13]
[13]Reasons, [20].
The judge traced the present proceeding’s ‘long and complicated history’. The judge paid particular attention to the fact that the applicant had offered to plead guilty — in terms that were ultimately accepted — back in September 2022. The pleas were therefore able to be characterised as early. They possessed utilitarian value. As her Honour put it: ‘[h]ad the matter resolved back in September 2022, [the applicant] would have been entitled to an appreciable discount in sentence given the backlog of trials faced by the court at that time, as a result of the pandemic’.[14]
[14]Reasons, [21]–[31].
The judge dwelt at some length upon the applicant’s very difficult, and quite traumatic, upbringing. The judge noted also that the applicant had recently lost one of her daughters and had been unable to participate in ‘Sorry Business’ due to her being held in custody.[15]
[15]Reasons, [32]–[41].
The judge observed that the applicant had a ‘longstanding history of drug and alcohol abuse’. The applicant had used cannabis from a young age and had been introduced to amphetamines by her mother at age 15. The applicant had struggled with heroin addiction since her teenage years.[16]
[16]Reasons, [47], [35], [40].
The judge noted that the applicant had a ‘lengthy prior criminal history’ which commenced when she was 22.[17]
[17]Reasons, [49].
The applicant suffered from ‘poor health’ and had suffered a fractured jaw in custody and experienced pain with arthritis.[18]
[18]Reasons, [50].
In respect of the applicant’s mental health, the judge took into account Ms Lechner’s diagnosis, namely that the applicant experienced ‘ongoing symptoms of Complex Post–Traumatic Stress Disorder’, that this stemmed from the abuse suffered by the applicant as a child and was aggravated by the applicant’s experience of adulthood. The judge referred to the applicant’s ‘high levels of anxiety’ and that the applicant would use drugs as a means of coping. The judge factored into account the applicant’s symptoms of ‘Opioid Use Disorder in partial remission’. The judge accepted, as had been submitted, that Verdins principles five and six were engaged. It was noted that a mental health plan had been prepared for the applicant.[19]
[19]Reasons, [52]–[56].
The judge also accepted that, in view of the applicant’s traumatic background, the applicant’s moral culpability ought be reduced in line with the principles discussed in Bugmy.[20] Nevertheless, the judge observed that:
However, conversely, community protection assumes greater weight, and I am satisfied that that is the case here.[21]
[20]Reasons, [57]–[58].
[21]Reasons, [59].
The judge took into account that the time that the applicant had spent in custody was marred by difficulties associated with COVID–19 protocols.[22]
[22]Reasons, [60].
When it came to the applicant’s prospects of rehabilitation, the judge concluded that it was difficult to say that those prospects were ‘anything more than guarded.’ This was so given the applicant’s extensive criminal history and her ongoing difficulties with drugs and unresolved issues in relation to PTSD.[23]
[23]Reasons, [62].
The judge accepted that the applicant was remorseful.[24]
[24]Reasons, [62].
As to the ‘nature and gravity’ of the applicant’s offending, the fact that the applicant had ‘violated the sanctity’ of the victims’ home under cover of night and in circumstances of repeated acts of violence (where the male victim posed no threat to the applicant) meant that the applicant’s offending could be characterised as ‘very grave’.[25]
[25]Reasons, [65]–[66].
The judge was prepared to accept Ms Lechner’s opinion that there was some connection between the applicant’s background (and consequent psychological difficulties) and the offending at least insofar as the judge was prepared to conclude that the applicant was ‘panicked and extremely frightened’ during the applicant’s commission of charges 2 and 3. Nevertheless, the judge observed that it was the applicant who had placed herself in that particular situation. The judge accepted that the offending ‘has a causal link to [the applicant’s] traumatic background and [her] PTSD’ but only to the extent that it provided the ‘context for [the applicant’s] conduct and the wanton violence that [the applicant] displayed’. The judge considered it ‘difficult … to disentangle the role that [the applicant’s] Xanax use played in the offending and in particular, to [the applicant’s] response to the occupant finding [the applicant] in his home’.[26]
[26]Reasons, [69]–[79].
The judge took into account the principle of individualised justice that arises in the particular instance of an Aboriginal offender.[27] The judge considered that the applicant’s ‘history of childhood trauma, the consequential symptoms of complex PTSD and the role they played in [the applicant’s] offending must be considered in determining the ultimate sentence’.[28]
[27]R v Fuller-Cust (2002) 6 VR 496; [2002] VSCA 168.
[28]Reasons, [81]–[83].

The judge rejected the applicant’s submission that a CCO in combination with a term of imprisonment could adequately meet the circumstances of the applicant’s case. The judge considered that the offending had to be met with a term of imprisonment combined with a non–parole period. In view of the steps that the applicant had taken to further her prospects of rehabilitation, the judge was ‘prepared to allow for a greater period on parole’.[29]
[29]Reasons, [85]–[86].

Proposed ground 1

In respect of proposed ground one, the applicant submitted that there was significant delay in this case and that the sentencing judge had failed properly to take this into account. In particular, the sentencing judge had failed properly to have regard to the rehabilitation that the applicant had achieved over the period since the offending, and the judge had failed to factor into account the stress and anxiety that the applicant had suffered over that period due to the fact of the charges hanging over her head.
The respondent submitted, to the contrary, that it was evident that the judge was fully aware of this matter’s procedural history and how long it had taken for matters to settle in the form that they had. In particular, the judge paid express regard to the rehabilitative steps the that applicant had taken in the interim between the offending and the plea. The respondent submitted that while the sentencing judge may not expressly in her reasons have referred to any stress or anxiety suffered by the applicant over the delayed period this was understandable because no such case for this had been made on the plea.
We are not persuaded that the judge erred in her consideration of delay. It is clear that delay may be mitigatory because of rehabilitation achieved over the delayed period and because of the stress and anxiety that may be suffered by an offender in having charges hanging over that person’s head for an extended period.[30]
[30]R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 400 [35]–[36] (Maxwell P); [2007] VSCA 1.
Insofar as the delay in this case raised for consideration the rehabilitative steps taken by the applicant during that period, the judge’s reasons reveal that her Honour took these matters into account.
Insofar as it was submitted on appeal that her Honour was also required to have regard to the stress and anxiety suffered by the applicant over the delayed period it is relevant to note that at no stage at the plea was it submitted that the applicant had suffered in such a manner. It was certainly not the subject of oral submissions on the plea. In terms of written submissions delay featured only in the following terms:
The plea of guilty albeit late is worthy of consideration with delay that has occurred in this case being partially attributable to initial reluctance by the Prosecution to accept a plea to the reckless charge.
That was not a submission about stress and anxiety suffered by the applicant so much as a submission that concerned the timing of the plea. In these circumstances, it is a little difficult to be critical of her Honour for not having made specific reference to any stress and anxiety suffered by the applicant in her reasons for sentence.
Further, it is clear that the judge did not overlook that the delay in this matter did cause the applicant a degree of stress and anxiety. Her Honour made express reference, in her reasons for sentence, to the ‘lengthy’ procedural history of this matter[31] and to the difficulties that the applicant experienced whilst on remand due to the loss of her daughter as well as the loss of two members of the Aboriginal prison population.[32] The judge observed as follows:
As I have said, during this period, you lost your daughter tragically and following your visit to the hospital in May 2022, you were again subjected to a period of quarantine. You had previously been in custody, but you have found this time to be starkly different to your earlier incarcerations, given your profound grief and loss and feeling as if you had failed your daughter. The difficulties you experienced during this period on remand was compounded by the loss of two members of the aboriginal prison population, the impact of which was felt through Dame Phyllis Frost. Your more recent remand, following your plea of guilty has been difficult, given that you had worked hard to engage with supports available to you and your incarceration meant a potential loss of your accommodation.[33]
[31]Reasons, [21], [29].
[32]Reasons, [60]–[61].
[33]Reasons, [61].
Proposed ground one cannot be upheld.

Proposed ground 2

In respect of proposed ground two, the applicant submitted that it was in error for the judge to conclude that it was difficult to assess the applicant’s prospects of rehabilitation as ‘anything more than guarded’. It was submitted, for instance, that the applicant’s acceptance of help from various organisations tasked with assisting the applicant with her integration into the community, as well as the applicant’s proven ability to remain offence–free whilst on bail, all augured very well for the applicant’s prospects of rehabilitation. Matters such as these ought to have resulted in a finding that the applicant’s prospects of rehabilitation were ‘good’.
The respondent submitted that in light of the present offending’s seriousness, the applicant’s long criminal history and her difficulties in the past with alcohol and drug consumption, it was well open to assess the applicant’s prospects of rehabilitation as ‘guarded’.
The judge did not err in assessing the applicant’s prospects of rehabilitation as ‘guarded’. The judge took express account of the applicant’s developing insight as well as her expressions of remorse and victim–empathy made with respect to the present offending. The judge took into account the applicant’s compliance on strict bail conditions over a 16-month period. The judge observed that the applicant:
[A]ppear[ed] to have made significant steps towards [her] own rehabilitation and to that end, a return to custody would have been difficult, I have no doubt.[34]
[34]Reasons, [63].
But the judge was required to balance these matters against the applicant’s ‘extensive criminal history, [her] ongoing difficulties with drugs and [her] unresolved issues in relation to [PTSD]’.
The prosecutor on the plea addressed the issue of the applicant’s prospects of rehabilitation by reference to an earlier psychological report that had been prepared on the applicant’s behalf, but was written well prior to the commission of the present offending. That earlier report had been filed at the plea in the present matter but made reference to the period between 2010 and 2014 during which the applicant was said to have ‘showed rehabilitative progress, with the support of a psychologist and various other organisations’.
It is apparent that the applicant, on the evidence placed before the sentencing judge, had taken positive steps towards the achievement of rehabilitation. To have spent a 16-month period in the community without further offending; to have accepted help from various community organisations who mission it was to assist the applicant with her day–to–day living; and — indeed — for the applicant to have volunteered her services at a local church; all these matters stand very much to the applicant’s credit. It is very much to be hoped that the applicant continues down this path.
Nevertheless, all things considered, we consider it to have been well open to the judge to have concluded that it was difficult to assess the applicant’s prospects of rehabilitation as ‘anything more than guarded’. In light of the applicant’s troubled history (which dates back to the point of her birth), her struggle with drug–addiction and her descent into serious criminality on numerous occasions since her early 20s, the judge’s assessment of the applicant’s prospects of rehabilitation in this manner was, we consider, fair and balanced.
Proposed ground two cannot be upheld.

Proposed ground four

In respect of proposed ground four, the applicant contends that the judge, in sentencing the applicant on the threat to kill offence, mistook the applicable maximum penalty referable to this offence. The applicant submits that the judge had regard to a maximum penalty of 20 years’ imprisonment rather than 10 years. The applicant submits that this error had the effect of vitiating the exercise of the sentencing discretion on that charge.
The respondent contends that the sentencing judge merely made a slip and could not have misapprehended the correct maximum. Alternatively, the respondent submits that even if the judge did misapprehend the applicable maximum then it is of no material consequence.
At the commencement of the judge’s reasons for sentence, when listing the offences to which the applicant was pleading guilty, her Honour expressed herself in the following terms:
One charge of make threat to kill, contrary to s 20 of the Crimes Act 1958, which carries a maximum penalty of 20 years’ imprisonment.[35]
[35]Reasons, [1].
As both parties agree, the applicable maximum was 10 years’ imprisonment.
The basal principle applicable if and when a sentencing judge mistakes the applicable maximum penalty is that such a mistake does not re–open the sentencing discretion unless the appellate court can be satisfied that the error could not have materially affected the sentence.[36] On the assumption that the maximum penalty represents a ‘yardstick’[37] only, and that the sentencer does not plot a sentence by reference to a maximum penalty by means of ‘arithmetical progression’,[38] it follows that a sentence which represents only a small fraction of any misapprehended maximum penalty may be unlikely to be infected by the error.
[36]R v Beary(2004) 11 VR 151, 159 [21] (Callaway JA; Buchanan JA agreeing at 163 [39]); [2004] VSCA 229.
[37]Markarian v The Queen (2005) 228 CLR 357, 372 [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ); [2005] HCA 25.
[38]DPP v Aydin and Kirsch[2005] VSCA 86 [11] (Callaway JA, Buchanan JA agreeing at [24]; Eames JA agreeing at [25]).
Here the sentence imposed on the threat to kill charge constituted only 1.2 percent of the misapprehended maximum. This percentage is so low that we are satisfied that the error could have made no difference.
But even if the contrary were true, and the error might have made a difference; we do not consider that any refashioned sentence for the threat to kill charge would attract a lesser order of cumulation that would give rise to a reasonable prospect of any lesser total effective sentence.[39]
[39]See the Criminal Procedure Act 2009, s 280(1)(b).
Proposed ground four cannot be upheld.

Proposed ground three

Next, under proposed ground three, the applicant contended that the individual sentences, total effective sentence, and the non–parole period were manifestly excessive.
The applicant relied, in this respect, upon the fact that the applicant had indicated pleas of guilty in circumstances of remorse and at a time when the Court’s lists were congested due to the COVID–19 pandemic.[40] The pandemic had also made more burdensome the applicant’s experience of prison. The applicant was, for instance, required to spend 14 days in isolation. The applicant whilst in custody had suffered the loss of her daughter and mother and had been unable to fulfil her cultural obligations in this respect or attend the consequent ‘Sorry Business’.
[40]Worboyes [2021] VSCA 169.
The applicant’s deprived background lessened her moral culpability[41] and her diagnosis with complex PTSD may have offered at least some contextual explanation as to why the applicant — who had no history of violence — might have offended as she did.
[41]Bugmy (2013) 249 CLR 571.
The applicant submitted that, having accepted that there was a ‘causal link’ between the applicant’s complex PTSD and her offending, the judge ‘ought to have given effect to all of the principles outlined in Verdins’.[42]
[42](2007) 16 VR 269.
The applicant repeated the submissions referred to above concerning the judge’s assessment of the applicant’s prospects of rehabilitation. The applicant’s submissions concerning ground 1 — delay — were also referred to and repeated as were the applicant’s submissions concerning proposed ground 4.
The applicant made reference to sentencing statistics which revealed that in the five years from 2017 to 2022, the median sentence for recklessly causing serious injury stood at 3 years and 9 months’ imprisonment. It was pointed out that this data included years when offenders were not entitled to any additional utilitarian benefit on a plea of guilty due to the COVID–19 pandemic’s effect on court lists.
The applicant emphasised parsimony and submitted that in light of the significant amount of pre–sentence detention already served by the applicant ‘a sentence of imprisonment and a community correction order … was an appropriate sentence’.
The respondent submitted that the sentences imposed were all within range. The respondent emphasised that the applicant ‘fell to be sentenced for objectively very serious offending’. Charge 1 carried a maximum penalty of 25 years’ imprisonment; charge 3 carried a maximum of 15 years’ imprisonment.
The respondent submitted that the commission of the recklessly cause serious injury offence was aggravated by the fact that:
Even when the victim retreated upstairs, and the offender would have seen copious blood at the scene when the lights were switched on, she nevertheless did not leave but continued to attack him when he returned downstairs.
The respondent emphasised that the applicant had a ‘lengthy criminal history’ containing charges of burglary and aggravated burglary as well as repeated contraventions of bail, breaches of suspended sentences and two CCOs, two of which had been breached.
The respondent also emphasised the very serious impact that the respondent’s offending had had upon the male occupant of the burgled premises. He had suffered the infliction of life–threatening injury and had experienced profound after effects.
In order to establish that the sentences imposed on the applicant are manifestly excessive it must be concluded that those sentences stand ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[43] As has often been observed, this ‘is a stringent requirement, difficult to satisfy’.[44]
[43]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA); See also Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[44]Clarkson v The Queen (2011) 32 VR 361, 383 [84] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
We are not persuaded that the sentences imposed by her Honour are manifestly excessive.
Insofar as the substance of proposed grounds 1, 2 and 4 are relied on under the cover of the present ground, we have already concluded that those proposed grounds are without substance.
Insofar as it was submitted, under the present ground of appeal, that that the judge erroneously failed to apply all Verdins principles, obvious difficulties attend this submission. First, counsel at the plea made no case for Verdins other than to rely on Verdins principles five and six. Secondly, a ground of manifest excess is an inappropriate shelter for what is — in truth — a contention of specific error. Thirdly, as seemed to be accepted on the plea, any finding of a connection between the applicant’s PTSD and her offending sufficient to bring into play Verdins principles one to four was precluded by the evidence of the applicant’s ingestion of the drug Xanax. The fact that the judge found a ‘causal link’ between the applicant’s offending and her traumatic background and PTSD so as to provide the ‘context’ for the applicant’s offending did not require the judge in this case to apply Verdins in any manner other than was sought.
Looked at in isolation, and paying particular regard to observations of this Court in Hogarth v The Queen[45] and DPP v Meyers[46] concerning sentencing practice for the offence of aggravated burglary, it is difficult to conclude other than that the sentence imposed on the aggravated burglary charge was modest to low in all the circumstances. This is so particularly in light of the fact that the applicant had two prior convictions for aggravated burglary (in 2018 and 2008) in respect of which she had been imprisoned.
[45](2012) 37 VR 658; [2012] VSCA 302.
[46](2014) 44 VR 486; [2014] VSCA 314.
In respect of the applicant’s commission of the recklessly cause serious injury offence, the agreed facts reveal that the applicant — on being told by the male victim to ‘get out’ — was given the opportunity to leave once she had been discovered. The applicant then attacked the male victim, stabbing him. The victim slipped and fell over. Again, rather than leave, the applicant jumped on top of the victim and continued to stab him while he was lying prone on the floor. The victim managed to free himself, turn on the light, and go upstairs. Still, the applicant did not leave. Once downstairs, the applicant again continued to try and stab the victim. She held a weapon to the victim’s throat. The presence of the victim’s 80 year–old mother may, in part, explain why the male victim described the ordeal in his victim impact statement as a ‘nightmare horror’.
The injuries suffered by the male victim were very serious (in particular, those to his chest and lungs); indeed, they were life–threatening. The injuries were inflicted upon the victim in his own home, in the dead of night, at a time when he was particularly vulnerable. The male victim was required to undergo an extended stay in hospital. It is apparent that the attack upon him has rendered the victim’s enjoyment of life substantially diminished.
The applicant’s stated intention during the attack was to kill and torture the male victim. The location of the this victim’s injuries, and their seriousness, do not contradict that intention.
But the judge was prepared to moderate the ‘nature and gravity of the offending’ in finding that the applicant was ‘panicked and extremely frightened.’ This was so notwithstanding that the applicant had placed herself in the situation in which she found herself. Moreover, as is referred to above, the judge placed the applicant’s offending against the context of her ‘traumatic background’ and ‘PTSD’. The judge determined that the applicant’s ‘tragic history has informed [the applicant’s] violent response’. The judge, in essence, upheld the applicant’s Bugmy submission and in consequence moderated the applicant’s moral culpability.
The applicant had an extensive criminal history with numerous prior convictions for dishonesty offences such as burglary and theft. Leaving aside her two prior convictions for aggravated burglary, that history contained only one prior for violence per se — an unlawful assault conviction sustained in 2018.
The offence of recklessly causing serious injury requires foresight on the part of the offender of the probability of serious injury as a consequence of their conduct and indifference as to whether or not those consequences occur.[47] The culpability of a reckless offender will increase as the degree to which the offender has adverted to the actual consequences of his conduct increases.[48] In the present case, it is evident that there must have been a degree of correlation between the actual injuries suffered by the victim and those foreseen by the applicant.
[47]Ashe v The Queen [2010] VSCA 119 (‘Ashe’) citing DPP v Terrick [2009] VSCA 220.
[48]Ashe [2010] VSCA 119, [31].
It is not contended by the applicant that the sentence imposed on her for the offence of recklessly causing serious injury is at odds with current sentencing practice in any manner other than that it stands in excess of a statistical median. Given the seriousness of the present case it is perhaps unsurprising that is so.

In the end, and having regard to all relevant considerations including the circumstances of the applicant’s plea, we are not persuaded that a sentence of four years and six months was manifestly excessive.
The sentence of three months’ imprisonment on the threat to kill charge is, we consider, unremarkable as is the amount of cumulation ordered overall. The non–parole period stands at merely 53 percent of the total–effective head term.
For these reasons, proposed ground three is without substance.

Conclusion

None of the applicant’s proposed grounds are reasonably arguable. The application for leave to appeal against sentence is therefore refused.
---

[2024] VSCA 191

3 September 2024