Fusca v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0109

DOMINIC FUSCA	Applicant
v
THE KING	Respondent

---

JUDGES:	WALKER and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2024
DATE OF JUDGMENT:	3 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 297
JUDGMENT APPEALED FROM:	DPP v Fusca [2024] VCC 745 (Judge Doyle)

---

CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to charges of intentionally causing injury, theft, attempting to pervert the course of justice and persistent contravention of Family Violence Intervention Order – Whether sentences and orders for cumulation imposed in respect of second and third charges manifestly excessive – Relevance of absence of aggravating features – Sentences and orders for cumulation not manifestly excessive – Application for leave to appeal refused.

R v Oksuz (2015) 47 VR 731, discussed; Brown v The Queen [2021] VSCA 204; Adamson v The Queen (2015) 47 VR 268; R v Conos (2021) 294 A Crim R 403; Stephens v The Queen (2016) 50 VR 740, applied; Carter v The Queen [2020] VSCA 15; Dragovic v The King [2024] VSCA 95, referred to.

---

Counsel
Applicant:		Ms A Peek-Lasry
Respondent:		Mr JCJ McWilliams
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
T FORREST JA:

Dominic Fusca pleaded guilty in the County Court to one charge of intentionally causing injury, one charge of theft, one charge of attempting to pervert the course of justice and one charge of persistent contravention of a family violence intervention order (‘FVIO’). The offences were committed between 1 July and 7 August 2023.
On 23 May 2024 the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Intentionally cause injury[1]	10 years	2 years and 2 months	Base
2	Theft[2]	10 years	4 months	1 month
3	Attempt to pervert the course of justice[3]	25 years	18 months	8 months
4	Persistent contravention of family violence intervention order[4]	5 years	6 months	1 month
Total Effective Sentence:		3 years’ imprisonment
Non-Parole Period:		1 year and 10 months
Pre-sentence Detention Declared:		326 days
Section 6AAA Statement:		Total Effective Sentence 4 years and 6 months’ imprisonment Non Parole-Period 3 years and 2 months

[1]Contrary to s 18 of the Crimes Act 1958.

[2]Contrary to s 74 of the Crimes Act 1958.

[3]Contrary to the common law.

[4]Contrary to s 125A(1) of the Family Violence Protection Act 2008.

The applicant now seeks leave to appeal against sentence pursuant to s 278 of the Criminal Procedure Act 2009. His two proposed grounds of appeal are as follows:
Ground 1: The sentence and order for cumulation on Charge 3 of attempting to pervert the course of justice is manifestly excessive.
Ground 2: The sentence and order for cumulation on Charge [2] of theft is manifestly excessive.
For the reasons that follow, we consider that neither ground of appeal has any real prospects of success. We will thus refuse leave to appeal.

Summary of relevant facts[5]

[5]The facts relevant to the offending were not in dispute, and were based on the summary of prosecution opening.

The applicant was 47 years’ old at the time of the offending. He and the complainant had been in an intimate relationship for approximately four months. They lived together in a unit which was owned by Brett Malloy. In the lead up to the offending, the complainant had noticed the applicant exhibiting controlling and threatening behaviours.
At approximately 7:00 pm on 30 June 2023, the applicant was at home with the complainant and Mr Malloy. The applicant and the complainant had been drinking heavily together and argued throughout the evening. At approximately 12:50 am the next day, the applicant left the unit with the complainant’s phone. The complainant used Mr Malloy’s phone to call a friend and ask for help. When the applicant returned, he checked the call log on Mr Malloy’s phone and believed that the complainant had made a call to her ex-partner.
The applicant then engaged in the following conduct:
(a)he grabbed the complainant by the face with both hands and smacked her face from left to right for 15–20 minutes;
(b)he repeatedly grabbed the complainant by the hair and dragged her back into the unit when she tried to escape through the front door;
(c)when the complainant almost succeeded in escaping through the front door, he threw her onto a bed, climbed on top of her and yelled abuse;
(d)while seated on the complainant, he inserted three fingers into her throat, thereby blocking her airway and causing her pain; and
(e)he pulled the complainant’s head back by the hair and hit her three times, while removing his fingers from her throat and then re-inserting them, causing her to lose consciousness.
This conduct comprised the offence of intentionally causing injury (charge 1).
As a result of the assault the complainant suffered injuries, including:
(a)bruising to both eyes and the right side of her face;
(b)swelling on both sides of the jaw;
(c)a laceration of the uvula;
(d)a partial dislocation of the left temporomandibular joint; and
(e)floating bone beneath her teeth and gums, which required surgical removal and a skin graft.
The following morning, the complainant checked her bank account and found that $400 had been transferred to the applicant at 3:00 am using her mobile phone. The transfer was described as ‘rent’. The complainant did not have access to her phone overnight and was not awake at the time of the transfer. The prosecution’s case, which the applicant accepted by his guilty plea, was that the applicant had transferred this money to himself. This conduct comprised the offence of theft (charge 2).
The applicant was taken by a friend to a police station to report the assault on the afternoon of 1 July 2023. She was taken to hospital by ambulance that evening.
The applicant was arrested on 1 July 2023. On 2 July 2023 he was charged and remanded in custody for charges 1 and 2, and an interim FVIO was made prohibiting the applicant, among other things, from contacting or communicating with the complainant.
Between 14 and 19 July 2023, the applicant called Mr Malloy on six occasions from Port Phillip Prison. In five of those calls the applicant asked Mr Malloy to alter or withdraw his statement.
The first call occurred on 14 July 2023 at 3:40 pm. The applicant phoned Mr Malloy and asked him to remove certain aspects from his statement. During the call the applicant said to Mr Malloy:
(a)‘There’s shit on there that doesn’t look nice’;
(b)‘I dunno, Brett, look what she made me do that night, I lost it that night, I couldn’t take it anymore. I just couldn’t. Like, what it is, it is. I fucked up’;
(c)‘If you go and say that she forced you to do it, if you just say it wasn’t true, I’ll get out straight away’;
(d)‘Do you reckon you can go and do that thing for me, Brett? Just tell them that night you were in a state of mind, that she pushed you to say all that shit, and that’s it’;
(e)‘I’ll look after you when I get out’.
The second call occurred on 14 July 2023 at 4:18 pm. The applicant phoned Mr Malloy and said to him:
(a)‘You know what I was telling you before, just detract it all because you don’t want to be involved in this shit because you were half asleep or whatever’;
(b)‘Get ’em to scrap it up. Say you want it — take it away that, you know, you don’t want to get involved’;
(c)‘I’ll be out in a few days; I’ll come and see you straight away’.
The third call occurred on 15 July 2023 at 2:05 pm. The applicant phoned Mr Malloy again. He asked if it ‘was all done’, to which Mr Malloy said the police wanted to speak to him. The applicant said:
(a)‘Tell them you’re not talking to ’em and that’s it. Tell them to fuck off’;
(b)‘They’re trying to wrap you around it just say you don’t know you were sleeping’.
At 2:40 pm on 15 July 2023 Mr Malloy went to Frankston Police Station to report the calls he had received from the applicant. He told police he was fearful that the applicant may harm him once released from prison if he did not withdraw his statement.
On 17 July 2023, Mr Malloy again went to Frankston Police Station, where he signed a statement regarding the calls received on 14 and 15 July 2023.
The fourth call occurred on 17 July 2023 at 3:12 pm. The applicant again called Mr Malloy and urged him to retract his statement. Mr Malloy said he had tried, to which the applicant responded ‘Go again, and tell them to detract it. Anyway, I’m going to give you my lawyers’ number, and you can talk to him’.
The fifth call occurred on 18 July 2023 at 11:45 am. The applicant attempted to call Mr Malloy, but he did not answer the phone.
The sixth call occurred on 19 July 2023 at 6:50 pm. The applicant called Mr Malloy and asked again if he had withdrawn his statement.
On 19 July 2023, Mr Malloy again went to Frankston Police Station. He told police he wished to withdraw his statement.
The above conduct comprised the offence of attempting to pervert the course of justice (charge 3).
Between 10 July and 7 August 2023, the applicant persistently contravened the interim FVIO (charge 4). He did so by using associates to contact the complainant on four occasions using text messages and phone calls. In those communications the applicant told the complainant that he loved her and missed her, that he would be back, and that he wished her a happy birthday. Additionally, when the applicant called Mr Malloy on 14 July, Mr Malloy mentioned that the complainant had received a call from an unknown man, to which the applicant said:
(a)‘yeah, no, no. I think it’s one of the minions, one of the minions’.
(b)‘Nuh, mate. It is. It is. I did that, yep. Just to see how she was and … It was nothing. I just gave him a note to read out’.
The applicant pleaded guilty to the charges in November 2023, before the second committal case conference.

The judge’s reasons for sentence

The judge took into account all the matters he was required to consider. He commenced by recognising that the applicant was ‘entitled to receive a significant sentencing discount’ by reason of his early plea of guilty.[6] He then dealt with the offence of intentionally causing injury — that sentence is not the subject of a ground of appeal, so it is not necessary to set out the judge’s reasons in relation to the sentence imposed on charge 1. Likewise, it is not necessary to set out the judge’s reasons in relation to charge 4 (the offence of persistently contravening a FVIO), which is not the subject of a ground of appeal.
[6]DPP v Fusca [2024] VCC 745, [36] (‘Reasons’).
In relation to charge 2, theft, the judge observed that the theft was of a relatively low amount. However, his Honour noted that the context was that the theft occurred after the applicant had committed a serious assault on the complainant, which meant that this was ‘not an insignificant example of theft’. In addition, the applicant had a prior conviction for theft.[7]
[7]Reasons, [45].
In relation to charge 3, attempting to pervert the course of justice, the judge observed that this is a serious offence with a maximum penalty of 25 years.[8] The judge accepted that the applicant’s conduct was not accompanied by threats of violence and that it was not directed at the victim of the offending, but at a witness. His Honour said this:
Had these other factors been in existence they would have been aggravating. … I accept that the attempt to pervert the course of justice offence covers a very wide range of conduct. In the end, in my opinion, this is at the lower end of the spectrum. It nonetheless remains a serious offence.[9]
[8]Reasons, [47].
[9]Reasons, [49].
The judge then referred to the applicant’s prior convictions, which were not for offences of violence. His Honour observed that at the time of the present offending, the applicant was on a community correction order (‘CCO’), but had not complied with that order. He also reoffended during the period of that order by committing the offence of handling stolen goods.[10] The judge said this:
Whilst your prior convictions are not directly relevant to the offending in this case other than in respect of the theft, it is nonetheless significant that you were not able to comply with an order designed to be both punitive and rehabilitative and that during that period of supervision you committed these serious offences. In my opinion, those matters are relevant to specific deterrence and to the assessment of your prospects of rehabilitation.[11]
[10]Reasons, [50].
[11]Reasons, [51].
Next the judge dealt with the applicant’s personal circumstances. His Honour accepted that the applicant’s use of alcohol and methamphetamine was relevant to his behaviour in the present offences.[12] He also took into account the fact that the applicant had, during his time in prison, worked towards his rehabilitation.[13] He also referred to the applicant’s family circumstances, including that he has lost contact with his son, who has autism spectrum disorder, that his family is in Italy and thus he has had no visits from them while in custody, and that he was unable to attend his younger brother’s funeral in early 2024.[14] The judge said this:
This is your first sentence of imprisonment and I accept the burden of this period will be substantial. In all the circumstances I take a positive view of your prospects of rehabilitation. That said, this was a very serious offence and if you continue to abuse drugs and alcohol you are obviously a risk to reoffend, particularly in an intimate partner setting.
As to the burden of your imprisonment, Mr Smurthwaite emphasised your brother's death, the enforced separation from your son, the fact that your family are all in Italy and you have had no family visits, some health problems you have experienced and some depression and anxiety you have also suffered in the prison. I am satisfied that this, your first sentence of imprisonment, will weigh heavily on you.[15]
[12]Reasons, [59].
[13]Reasons, [60].
[14]Reasons, [53], [58], [62].
[15]Reasons, [61]–[62].
The judge also said that he had had regard to the comparable cases referred to on the plea and in the written submissions, in particular the decision of this Court in Carter v The Queen.[16] His Honour observed that no two cases are the same and that Carter was different from the present case. However, he accepted that the cases to which he had been referred were ‘indicative of current sentencing practices for this type of offending’ and provided ‘a guide but not a controlling factor in deciding the appropriate sentences’.[17]
[16][2020] VSCA 156 (‘Carter’).
[17]Reasons, [63].
The judge then referred to the principle of totality, as follows:
The totality principle requires that the total effective sentences imposed must be just and proportionate to the total criminality of your offending. To achieve a proportionate sentence in your case significant concurrency between the charges is required.
Some cumulation though is necessary to reflect the separate criminality involved in the different charges. In my view, each charge here does involve separate criminality.[18]
[18]Reasons, [66]–[67].

Ground 1: was the sentence and order for cumulation on charge 3 manifestly excessive?

The applicant’s submissions on ground 1

The applicant submitted that the sentence of 18 months’ imprisonment, with cumulation of eight months, for the offence of attempting to pervert the course of justice (charge 3) was outside the range available in the sound exercise of the sentencing discretion when regard is had to:
(a)the gravity of the offending;
(b)the mitigating factors and the applicant’s personal circumstances; and
(c)comparable cases.
In relation to the gravity of the offending, the applicant accepted that the offending was serious, but pointed out that it did not involve various aggravating features found in other, more serious cases. In particular he submitted that:
a. The offending did not involve threats or violence.
b. The applicant did not use anyone else to carry out the offence.
c. The offence was unsophisticated and did not involve any methods of avoiding detection.
d. The offending was not sustained over an extended period.
e. The applicant did not ask the primary victim to lie about his violent offending against her.
f. The applicant is not a person ‘embedded in the legal system’.
g. The offending did not target a person within the legal system.[19]
[19]Citations omitted.
The applicant submitted that the absence of aggravating factors in his case was relevant to assessing where in the available sentencing range the applicant’s case fell, in comparison to other, comparable cases.[20]
[20]Namely, DPP v Gould [2018] VCC 349 (‘Gould’) (sentence of 18 months’ imprisonment after a plea of guilty, for course of conduct over several months); Mercer (a pseudonym) v The Queen [2021] VSCA 132 (sentence of 3 years and 6 months’ imprisonment after a trial, where, in calls made on a single day, the offender asked the victim to lie about his violent offending against her); Dieni v The Queen [2022] VSCA 16 (base sentence of 3 years and 6 months’ imprisonment after a plea of guilty, where offender was a person ‘embedded in the legal system’); R v Sener [1998] 3 VR 749 (sentence of 15 months’ imprisonment after a plea of guilty, for attempted bribery of police officers); R v Taouk (1992) 65 A Crim R 387 (sentence of 5 years and 4 months’ imprisonment after a trial, for attempted bribery of a judicial officer).
The applicant accepted that the objective gravity of the offending justified a sentence of imprisonment. However, he submitted that it did not warrant the sentence ultimately imposed.
In addition, the applicant submitted that the principle of totality required a greater degree of concurrency between the sentences in respect of charges 1 and 3. He accepted that these offences were separate and distinct, but submitted that they had a close connection because the attempt to pervert the course of justice was committed to try and avoid the consequences of the intentionally cause injury offence.
In relation to mitigating factors and personal circumstances, the applicant submitted that although the judge had referred to the applicant’s early plea, the fact that this was his first sentence of imprisonment, his family circumstances (which caused him to experience a greater burden of imprisonment) and his positive prospects of rehabilitation, these matters ‘were simply not reflected in the sentence imposed’.
In relation to comparable cases, the applicant submitted that one case — Dragovic v The King[21] — involved more serious offending, but resulted in a lesser sentence (of 14 months’ imprisonment, with cumulation of six months). Another case — Carter — also involved more serious offending, and resulted in a sentence of 2 years’ imprisonment, which was the base sentence. He submitted that these cases had ‘instructive similarities and differences’. In the present case, he submitted, the offending was less protracted and persistent and lacked two aggravating features found in those cases, namely that the attempt to pervert the course of justice was directed at the victim of family violence and involved threats. As noted above, he also relied on the presence of aggravating factors in other, comparable cases in relation to the relevance of the absence of aggravating factors in his case.

The respondent’s submissions on ground 1

[21][2024] VSCA 95 (‘Dragovic’).

The respondent submitted that the sentence imposed by the judge was open to his Honour. He submitted that the offending was objectively serious and that it was persistent, having occurred over a ‘relatively extended period’ of five days. Further, he submitted, the offending, albeit not sophisticated, was calculated. The respondent pointed out that the sentence of 18 months ‘represents about 6% of the maximum penalty’ and submitted that such a sentence ‘is consistent with an assessment of the offence as at the lower end’. As for cumulation, the respondent submitted that the judge had correctly concluded that each charge involved separate criminality, including because the offending acts were directed to different victims, the offending occurred at different times, and the nature of the offending was different. Cumulation of eight months was thus justified.
In relation to mitigating and personal factors, the respondent submitted that the judge had properly taken these into account and that both the sentence and the non-parole period reflected the judge’s recognition of the mitigating factors.
In relation to the comparable cases, the respondent submitted that the sentence imposed for the offence of attempting to pervert the course of justice and the cumulation ordered were ‘not out of kilter with current sentencing practice’.

Consideration

Ground 1 is that the sentence imposed on the applicant for the offence of attempting to pervert the course of justice, and the cumulation imposed for that offending, were manifestly excessive. No other, more specific, error was alleged. To succeed on this ground the applicant must show that the sentence imposed by the judge in the exercise of his discretion was ‘wholly outside the range of sentencing options available’.[22] As this Court has often observed, this is a ‘stringent requirement’, which is difficult to satisfy.[23] In our opinion the applicant has not satisfied this requirement.
[22]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen(1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[23]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; Nguyen v The King [2023] VSCA 212, [21] (Beach and Walker JJA).
As a starting point, the offence of attempting to pervert the course of justice is objectively serious. It carries a maximum sentence of 25 years. The judge, quite correctly, referred to R v Oksuz,[24] where this Court held that a sentence of 6 months’ imprisonment for the offence of attempting to pervert the course of justice was manifestly inadequate.[25] Kyrou JA said as follows:
First, the sentence is entirely out of proportion to the seriousness of the offence as reflected in the maximum penalty of 25 years and judicial pronouncements such as those made in R v Johns and DPP v Aydin. The offence is serious because the conduct that constitutes it strikes at the heart of the administration of justice. It does so because it involves an offender seeking to deter witnesses from giving evidence — or giving truthful evidence — in court proceedings. Where the offence is committed in the context of a criminal proceeding, the aim of the offending conduct is to undermine the Crown’s ability to secure a conviction against an accused person and thus bring him or her to justice. The serious harm to public safety and the rule of law resulting from such offending conduct is obvious.[26]
[24]R v Oksuz (2015) 47 VR 731; [2015] VSCA 316 (‘Oksuz’).
[25]Reasons, [47].
[26]Oksuz (2015) 47 VR 731, 753–4 [95]; [2015] VSCA 316 (citations omitted).
Furthermore, as Kyrou JA pointed out in Oksuz, the serious nature of the offence that the applicant sought to avoid by his conduct was relevant to assessing the seriousness of the offence of attempting to pervert the course of justice.[27] His Honour also observed that ‘individual sentences of between 2 and 4 years have regularly been imposed for the offence of attempting to pervert the course of justice’.[28] In Oksuz itself, the respondent was re-sentenced to a term of 4 years’ imprisonment for the offence of attempting to pervert the course of justice.[29]
[27]Oksuz (2015) 47 VR 731, 754 [97]; [2015] VSCA 316.
[28]Oksuz (2015) 47 VR 731, 754 [100]; [2015] VSCA 316. Kyrou JA referred to: R v Galea [2001] VSCA 115 (sentence of 4 years’ imprisonment after plea of guilty); Tognolini v The Queen (2011) 32 VR 104; [2011] VSCA 113 (sentence of 4 years’ imprisonment after a trial); R v Zaydan [2004] VSCA 245 (sentence of 4 years’ imprisonment after a trial).
[29]Oksuz (2015) 47 VR 731, 783 [220] (Kyrou JA, Redlich JA agreeing at 733 [1]); [2015] VSCA 316.
It is also necessary to say something about the applicant’s submission that his offending was at the ‘lower end of the spectrum’ because it ‘lacked aggravating features seen in more serious cases’. This Court has often said that ‘little benefit is to be gained from arguments which draw attention to the absence of aggravating features which might have been but were not in fact present in the offending before the court’.[30] Rather, sentencing judges are required ‘to assess the objective gravity of the offence, and the offender’s moral culpability, on the basis of what actually happened’.[31] The absence of aggravating factors does not reduce the objective gravity of the particular offending.[32] Likewise, moral culpability for criminal conduct ‘does not fall to be assessed simply by identifying aggravating features that could have been present and then asserting that the case under consideration cannot be regarded as serious or very serious because of the absence of some of those factors’.[33] However, we accept that it is open to this Court to undertake a comparison of the sentence imposed on the applicant with the sentences imposed in other, comparable cases by reference to the presence or absence of aggravating features.
[30]Brown v The Queen [2021] VSCA 204, [28] (Maxwell P and Sifris JA) (‘Brown’).
[31]Brown [2021] VSCA 204, [28] (Maxwell P and Sifris JA).
[32]Adamson v The Queen (2015) 47 VR 268, 299 [83] (Warren CJ, Redlich and Weinberg JJA); [2015] VSCA 194. See also R v Conos (2021) 294 A Crim R 403, 414 [50] (Maxwell P, Kaye and Sifris JJA); [2021] VSCA 367.
[33]Stephens v The Queen (2016) 50 VR 740, 747 [26] (Redlich, Santamaria and Beach JJA); [2016] VSCA 121.
In the present case there is no dispute that the offending was objectively serious. Furthermore, we do not accept the applicant’s submission that his offending lacked aggravating features. In particular, we reject the applicant’s submission that the offending lacked the aggravating feature of being ‘sustained over an extended period’. Rather, we accept the respondent’s submission that the offending was persistent and occurred over a ‘relatively extended period’ of five days. That might be shorter than the period involved in some other cases, such as Gould, but nonetheless it was not a short period of time — it involved pressuring Mr Malloy over several days.
We also accept the respondent’s submission that the offending was calculated — it involved several phone calls that were clearly designed to cause Mr Malloy to alter his statement to police. The applicant suggested to Mr Malloy how to justify the withdrawal of his statement (namely, because of pressure from the complainant), and what to tell police in place of his statement (that he was asleep). Furthermore, the applicant suggested to Mr Malloy that he blame the complainant for causing him to make a false statement to police. Thus, although the applicant did not directly place pressure on the complainant to change her evidence, his conduct was calculated to have Mr Malloy paint her as a liar and as someone who sought to have a witness make a false statement to police. That conduct was, to some extent, a continuation of the coercive behaviour Mr Malloy had previously engaged in towards the complainant.
In one of the phone calls, the applicant told Mr Malloy that he would ‘look after him’ when released from prison, which suggested some compensation or benefit for Mr Malloy (or, perhaps, some detriment to him — Mr Malloy had reported to police that he was fearful). The applicant also said to Mr Malloy that he would ‘come and see him straight away’ when released from prison. Importantly, the applicant’s persistence caused Mr Malloy to attempt to withdraw his statement on 19 July 2024.
The offending may have been ‘unsophisticated’, in that the applicant did not use another person to convey his messages to Mr Malloy, or otherwise attempt to disguise his role in the offending, but it was nonetheless serious offending, and his moral culpability was high. The fact that the offending lacked some aggravating features found in other cases does not alter that conclusion.
In relation to mitigating and personal factors, it is plain that the judge took into account all the matters identified by the applicant. We do not accept the submission that these matters were, nonetheless, not ‘reflected in the sentence imposed’. None of the mitigating factors was of such significance as to compel the conclusion that the sentence imposed for the offence of attempting to pervert the course of justice was manifestly excessive. Nor did they cumulatively have that effect.
In relation to the comparable cases, the applicant relied upon Dragovic and Carter in addition to the cases already mentioned above, to shed light on current sentencing practices. It is necessary to approach the consideration of comparable cases with some caution, given the relatively small number relied upon. As the applicant accepted, the decision in Oksuz reveals that there are other cases that might properly inform the identification of current sentencing practices for the offence of attempting to pervert the course of justice.[34] In that case Kyrou JA pointed out that sentences of between 2 and 4 years’ imprisonment have commonly been imposed for this offence. In any event, as Niall JA observed in Le v The Queen, and as the applicant accepted, ‘[e]ven where there is a discernible pattern, current sentencing practice does not set the limits of the sentencing discretion’.[35]
[34]We note that Oksuz was decided in 2015, and the cases to which it refers were decided prior to that. However, neither party suggested that sentencing practices up to 2015 were inappropriate or, relevantly for present purposes, that sentences for this offence had since reduced. Both parties accepted that Oksuz remained relevant to the identification of current sentencing practice.
[35][2021] VSCA 220, [17] (Priest JA agreeing at [1]).
Returning to the present case, and the cases on which the applicant relied, it appears to us that the sentence imposed by the judge was consistent with current sentencing practice. In relation to the particular cases emphasised by the applicant, we observe that in Carter the sentence imposed for the offence of attempting to pervert the course of justice was 2 years’ imprisonment — that is more than the sentence imposed on the applicant. And as noted above, Oksuz and the other cases referred to therein reveal that in the past sentences imposed for this offence have ranged up to 4 years’ imprisonment, even where a plea of guilty was entered. The fact that in Dragovic a lesser sentence — of 14 months’ imprisonment — was imposed for offending that, it was argued, was objectively more serious, does not require the conclusion that the sentence imposed on the present case was not open to the judge.
Ultimately, the comparable cases do not compel the conclusion that the sentence imposed in the present case was outside the range available to the sentencing judge. To the contrary, having had regard to current sentencing practice, we are satisfied that the sentence imposed by the judge was well within range.
Nor, in our view, was the cumulation imposed in relation to the sentence for the offence of attempting to pervert the course of justice manifestly excessive. The judge correctly recognised that this offending involved separate criminality from the offence of intentionally causing injury. As the respondent submitted, the offending acts were directed to different victims, the offending occurred at different times, and the nature of the offending was different. As explained above, it was serious offending.
Importantly, offending of this kind also has distinct and important effects on the administration of justice. In that context, general deterrence had an important role to play. That aspect of sentencing would be undermined if the cumulation in the present case were to be more limited. In cases of this kind, the sentence to be served must be sufficient to constitute a clear message that any person who is minded to engage in such conduct, will, on conviction, lose their right to be at liberty in society for a substantial period of time. The advantage they seek to obtain by acting unlawfully, in a manner calculated to undermine the operation of the system of criminal justice will, so far as the sentencing system can justly do so, be met with a corresponding disadvantage by way of penalty. In addition, it is necessary that the sentence imposed in such cases unequivocally denounce the kind of conduct engaged in by the applicant.
For these reasons, the offence of attempting to pervert the course of justice warranted more than a minimal degree of cumulation. In the circumstances, cumulation of eight months’ imprisonment, which is less than 50 per cent of the sentence imposed for the offence of attempting to pervert the course of justice, was within the range open to the judge.
For these reasons, we refuse leave to appeal on ground 1.

Ground 2: was the sentence and order for cumulation on charge 2 manifestly excessive?

The applicant’s submissions on ground 2

The applicant submitted that the sentence of 4 months’ imprisonment, with cumulation of one month, for the offence of theft was outside the range available in the sound exercise of the sentencing discretion, when regard is had to the gravity of the offending.
He submitted that the offending — which involved the applicant transferring $400 from the complainant’s bank account to his own bank account — would ordinarily be dealt with in the Magistrates’ Court and attract a fine. While he accepted that the offence occurred in the context of family violence, and that he has a prior conviction for theft, he nonetheless submitted that the sentence and cumulation imposed is manifestly excessive.

The respondent’s submissions on ground 2

The respondent submitted that the sentence of 4 months’ imprisonment on charge 2 (theft) and the order for cumulation of one month each sat comfortably within the range open to the judge, once regard is had to the full context of the offending, beyond the fact that a relatively small quantum of money was stolen. In particular, the respondent submitted that the offence occurred on a vulnerable victim, who had recently been the subject of a serious physical assault by the applicant, the end result of which was that she was apparently unconscious at the time the theft was committed.
The respondent relied upon the judge’s conclusion that the theft was ‘not an insignificant example’ of the offence, in light of the circumstances and the applicant’s relevant prior history. He pointed out that this finding is not challenged by the applicant.

Consideration of ground 2

In our opinion the sentence imposed by the judge in relation to ground 2 was within the range open to him in the circumstances. As the applicant accepted in oral argument, it is necessary and appropriate to take into account the full context of the offending, and not to focus solely on the amount of money involved or the method used. In that regard, as the respondent submitted, the victim was vulnerable and she had recently been the subject of a serious physical assault by the applicant in the context of family violence. The applicant, having taken the victim’s phone earlier in the evening, then took advantage of her unconscious state to use her phone to transfer money from her account to his account. The judge was correct to conclude that this was a ‘not insignificant’ example of theft.
Furthermore, as the judge correctly observed, the applicant had a relevant prior criminal history in relation to the theft offence.[36] And, at the time of the present offending, the applicant was subject to a CCO for offending which included a charge of theft, and other related charges.[37] On 1 June 2022 at the Frankston Magistrates’ Court, he was convicted and sentenced to a CCO of 14 months’ duration, with conditions including a requirement to complete 140 hours of community work and undergo treatment and rehabilitation. The applicant was in breach of his CCO by committing further offences, being the offences the subject of this leave application, along with a further offence of handling stolen goods.
[36]Reasons, [51].
[37]Reasons, [50].
His Honour concluded that it was ‘significant’ that the applicant was not able to comply with the CCO and that this was relevant to the need for specific deterrence, as well as an assessment of the applicant’s prospects of rehabilitation.[38]
[38]Reasons, [51].
In addition, the cumulation of one month imposed on charge 2 was moderate, and was not outside the range open to the judge. The offending involved distinct criminality and warranted a distinct sentence
For these reasons, we refuse leave to appeal on ground 2.

Conclusion

For the above reasons, we consider that the applicant’s application for leave to appeal has no prospects of success.
We note for completeness that, even if we considered that the judge had erred in relation to one of the two sentences the subject of the application for leave to appeal, we would in any event have refused leave to appeal pursuant to s 280(1)(b) of the Criminal Procedure Act 2009, on the basis that, having regard to the principle of totality, we would not have imposed any different total effective sentence. In our view the sentence imposed by the judge appropriately reflected the applicant’s overall criminality.
Leave to appeal is refused.

---

[2024] VSCA 297

3 December 2024