Harre v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0138

BRENDON HARRE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF JUDGMENT:	21 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 278
JUDGMENT APPEALED FROM:	DPP v Harre [2023] VCC 1178 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Stalking and perjury – Total effective sentence of 5 years and 6 months’ imprisonment with 3 years and 6 months non-parole – Whether sentence manifestly excessive – Stalking persistent and sadistic involving two victims – Perjury used to obtain an intervention order against an innocent victim – Leave to appeal refused.

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Counsel
Applicant:		Mr PJ Smallwood and Mr JD Cleveland
Respondent:		Mr J Lewis
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

The applicant, now aged, 42 years,[1] pleaded guilty before a judge in the County Court to an indictment containing two charges of stalking[2] (charges 1 and 2) and one charge of perjury[3] (charge 3); and to two summary offences, possessing explosive fireworks[4] (summary charge 12) and possessing a prohibited weapon[5] (summary charge 13).
[1]His date of birth is 6 November 1982.
[2]Crimes Act 1958, s 21A. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 314. The maximum penalty is 15 years’ imprisonment.
[4]Dangerous Goods (Explosives) Regulations 2011, r 20(a). The maximum penalty is 100 penalty units.
[5]Control of Weapons Act 1990, s 5AA. The maximum penalty is 240 penalty units or two years’ imprisonment.
Following a plea in mitigation conducted on 1 March 2023, the judge sentenced the applicant on 10 July 2023 to a total effective sentence of five years and six months’ imprisonment, with a non-parole period of three years and six months, in accordance with the following table:

Charge

Offence

Sentence

Cumulation

1

Stalking

3 years

Base

2

Stalking

3 years

18 months

3

Perjury

2 years

12 months

Related summary offences:

12

Possess explosive fireworks

$100

NA

13

Possess prohibited weapon

Convicted and discharged

NA

Total effective sentence:

5 years and 6 months’ imprisonment

Non-parole period:

3 years and 6 months

Section 6AAA declaration:

7 years’ imprisonment with 5 years non-parole

Other orders:

Disposal order for fireworks and weapon

The applicant now seeks leave to appeal against the sentence on a single ground that contends that the individual sentences imposed on charges 1, 2 and 3; the orders for cumulation imposed on charges 2 and 3; the resulting total effective sentence; and the non-parole period, are manifestly excessive.
In our view, leave to appeal should be refused. Our reasons follow.

The offending

Stalking: charges 1 and 2

Significantly, the stalking embraced by charges 1 and 2, which involved two individuals, ‘DA’ and ‘EW’, extended over a protracted period of 11 months, between 2 July 2020 and 2 June 2021. In the course of her sentencing remarks, the judge said that the applicant had
invested considerable time and energy in deviously trying to undermine the relationship between [DA] and [EW], as well as almost every significant relationship which [the applicant’s] victims had with other people, including those with their family, their housemates and even their employer. [The applicant] also entered their home on a number of occasions and engaged in creepy and disturbing conduct calculated to un-nerve them and cause them serious distress.
It cannot be gainsaid that the applicant’s conduct was truly disturbing. To gauge its true seriousness, however, it is necessary to summarise it in moderate detail.
In 2016, the applicant, then aged 34 years, met the victim in charge 1, DA, then aged 15 years, through a Facebook site called ‘Melbourne Gay Pals’. After some sporadic contact between the two via Facebook Messenger, DA began to receive messages from multiple Facebook accounts stating that he was a slut, promiscuous, had HIV and was taking drugs. Some of his friends received similar messages. When DA told the applicant about these messages, he received a supportive card at his home from the applicant. DA then received letters at home, telling him to kill himself. One contained two capsules and told him to overdose, and DA took both, trying to commit suicide. The applicant later told DA that the person responsible for this behaviour was ‘Nick James’, whom the applicant claimed to have met at a gay nightclub and had a physical confrontation, resulting in James being hospitalised. On 3 September 2016, DA’s sister received a Facebook message purporting to be from James falsely alleging that DA had had a sexual encounter with James’ boyfriend in the family home and that her parents should be aware of this conduct. These matters were relied upon by the prosecution as context for the offending and did not form the subject of any charge.
In December 2016, when DA had just turned 16, the applicant offered employment to him with the organisation where the applicant worked as a compliance manager. The following month, in January 2017, the applicant invited DA to move into a home at Point Cook, which the applicant shared with a male partner. Within three weeks, the applicant commenced a sexual relationship with DA, which continued until 2018, when DA informed the applicant that he wished to have other sexual relationships. Subsequently, DA would tell the applicant when he was seeing someone. That person would then begin to receive anonymous messages which were negative about DA. When DA told the applicant about this, the applicant falsely claimed to be receiving similar messages.
Towards the end of 2018, DA met EW, a female, the victim in charge 2, who was one year older than him. DA and EW later moved into a share house in Mount Waverley and developed an intimate relationship.
In March 2020, DA told the applicant that he no longer wished to have a sexual relationship, but wished to remain friends. That same month, DA, EW and a friend, ‘KL’, moved into a three-bedroom house in Heidelberg Heights. DA then stopped using a mobile phone which the applicant had given to him.
From 2 July 2020, for some 11 months, the applicant used a large array of methods to stalk both DA and EW. Thus, on 2 July 2020, the applicant connected a mobile phone, with a number ending in 103, with Vodaphone in his own name, then used it to send offensive text messages to DA, saying:
hope u get aids…ur a lying little slut pin dic…Btw ur breath stinks more of shit than ur room does... By the way this is no lie I had the clap at the time…I can’t help it you were just so easy.
Three weeks later, on 24 July 2020, the applicant connected another Vodaphone number, ending in 696, using EW’s name. The applicant then used it to send a message to KL, who became upset enough to move out of the shared house.
On 7 August 2020, the applicant connected another Vodaphone number, ending in 825, using EW’s name. The applicant then used the number to send messages to EW including:
[EW] could you lead me on? You obviously in live with [DA] waiting for him explains how you treat me when he shows up.
The next day, on 8 August 2020, based on information they had received, police executed a search warrant at the Heidelberg Heights house occupied by DA and EW, seizing a small amount of cannabis and psilocybin mushrooms. Both DA and EW were charged and bailed.
On 9 August 2020, the applicant sent an email to EW and her mother ‘EDC’ from an account the applicant had created, headed ‘Your Arrest’. The applicant claimed to have been outside the house at the time of the search; had told EW’s parents about it; and said that EW could not see the destructive nature of her relationship with DA.
Not quite a month later, on 5 September 2020, the applicant scanned a police charge sheet and bail document, then altered it to suggest that the applicant had assaulted a male who had a previous confrontation with DA. The applicant showed this false document to DA.
A few days afterward, on 8 September 2020, the applicant went to the Heidelberg Heights address and seized DA’s two dogs. The applicant took them to a veterinary clinic in Mont Albert and falsely told the staff that the dogs had been dumped by EW, giving a description of her and the registration of her car.
On 12 September 2020, the applicant sent an email to EDC saying that he had been receiving harassing text messages, calls and emails from DA’s house. The applicant claimed that these messages were sent whenever DA was with him or coming to see him, and that they were such that the applicant would be taking the matter to the police.
Less than a week later, on 16 September 2020, DA had a sexual encounter with a friend, ‘Ty’. The following day, the applicant sent DA an audio recording claiming to be of that sexual encounter, saying he had received it from an email account containing EW’s name (but which the applicant had in fact set up).
The applicant then created another account in the name of DA’s and EW’s housemate, KL. On 19 September 2020, the applicant used it to email EDC saying, ‘[EW] and [DA] are currently on shrooms at [an address in] Heidelberg’; but was unsuccessful in an attempt to forward it to the informant from the earlier drug possession arrest. The applicant also used the account to send an email to EW stating that ‘the truth will set you free’.
DA shortly afterward received an email from an unknown (alleged) female claiming to be the applicant’s solicitor, stating that police had CCTV footage of EW buying the sim card used to send the messages to DA. Separately, the applicant contacted DA and told him that his solicitor, whose husband was a police prosecutor and a private investigator, had obtained evidence that EW was responsible for the stalking of DA.
On 25 September 2020, the applicant sent an email to the informant from DA’s and EW’s earlier arrest (and another police officer) using a further created email address. The email referred to the search and pending charges against DA and EW, but also stated:
both the accused are using still and providing to friends. Whilst most of their stock is offsite. They currently have a larger quantity. Mushrooms are being kept in the back shed in mason jars (they call this shed the art studio) and a large quantity of cannabis is being stored in two locations. One lot for ‘personal use’ is in a coffee can in the garden bed just outside [DA’s] window under bushes. The other is stock in zip lock bags in a tin buried under a pot plant in the garden near the pergola. They also store their drug paraphernalia in [DA’s] room so if someone knocks on the door there is enough time to hid it under [DA’s] bed. I hope you find this information useful.
Around this time, the applicant stole the iPhone he had previously given to DA. The applicant then unlocked the iPhone and used it to change DA’s social media and email accounts. By doing so, the applicant was able to change DA’s Tinder account profile to state that DA was ‘HIV positive’, ‘fucked up’ and ‘mentally unstable’. Since his log-in details had been changed, DA was unable to reinstate his profile.
On 2 October 2020, the applicant sent an email to EW from a bogus account, with the subject ‘Controlling’. It stated:
[EM] controls you [DA] can’t you see
Three days later, on 5 October 2020, the applicant sent an email to the police informant from another email address purporting to belong to DA, which read:
Hi Mary, it’s [DA] from [an address] Heidelberg Heights. I’m not coping anymore [EW] and I are still using and [EW] is dealing we have it in our garden in tins. What do I do? I am addicted if people come at about 10 we will be using.
Once more using this false account, on 5 November 2020 the applicant sent another email to an address he had created:
Ty I cant keep pretending other people in my life like em need to take priority can you just forget me please im begging you.
Worryingly, on 14 November 2020, DA and EW returned to their Heidelberg Heights home and found a large kitchen knife was lying on DA’s bed. EW found another large kitchen knife had been stabbed into her bed so deeply that it pierced the doona cover and electric blanket, and was stuck in the mattress.
Not quite two weeks later, on 26 November 2020, the applicant sent another email to the informant from yet another bogus account he had created, purporting to belong to EW:
Hi mary if I provide evidence against [DA] can I get out of my charges. For example he’s saying he takes money out of his account that’s why he had that cash provided banks statements. But if you look at the statements there no other payments as shops because he always takes money and pays in cash.
During January 2021, the platonic friendship between DA and EW became intimate, and the applicant became aware of this. That month, on 22 January 2021, the applicant sent an email to EW from one of the accounts he had created. It purported to be from ‘Ty’, claiming responsibility for the stalking:
I’m tired of playing with you guys so heres my last message I know that I can admit this because [DA] is so gullible nieve and believes the best in everyone he’ll never believe it was me…[DA] I love you…[DA] and [EW] fucked…except for Brendon I hope he dies, disgusting peodophile who just wont go away.
The applicant forwarded this email to DA on 24 January 2021, adding:
BTW id be careful I wasn’t acting alone [EW] had an agenda too. I wish you were camping with me atm.
On 5 February 2021 the applicant sent an email from the same account to EW, under the subject ‘Happy Hunting’, saying:
Hope you find the brown snake in your room before it finds u or gd forbid one off the animals and don’t worry ur cameras don’t work when the power is turned off
The next day, the applicant sent another email from the same email address to DA and EW saying:
Your all pretty when you sleep.
Less than a week later, on 10 February 2021, EW received a white envelope in the post containing a photocopy of a picture of her cousin ‘H’, who had committed suicide by hanging the previous November. Chillingly, the picture had a noose drawn around the neck and a cross on each eye. And on 14 February 2021, the applicant sent an email to DA and EW from one of the bogus email addresses:
How many do u have
The same day, the applicant sent another email from the address:
Look what I found
Later that day the applicant sent another email from the address to DA and EW, with the subject heading, ‘And another one wow’.
Not quite a week later, on 20 February 2021, the applicant made an online report to police claiming that EW had been harassing him since April 2020 with texts, emails and social media messages, and alleging that EW had been telling him to kill himself and attacking his past relationship with DA.
Following up this email, the applicant sent five emails and seven Snapchat messages to police from DA’s accounts, claiming they had been sent by EW, when in fact they had been sent by the applicant using the stolen iPhone.
The applicant then created another email account, purporting to belong to a police officer, ‘Senior Constable Starkey’, and sent a self-serving email:
I have spoken to my Sergeant and he agrees your statements, and the evidence you have provided is enough to proceed with the investigation against [EW]. There are currently two other ongoing cases against [EW] for harassment and stalking so we will try to connect the three of them. I will call you next week to finalise things.
On 27 February 2021, the applicant sent a message to 39 of DA’s personal contacts, and to DA’s sister, ‘CA’:
Im selfish and only think about myself I don’t care who I hurt I get wat I want
A few days later, on 3 March 2021, the applicant forwarded the fake message from ‘Senior Constable Starkey’ to DA and EW, adding the words: ‘Starting to fall into place’.
The following day, the applicant went to the Heidelberg Heights house and punctured all of the tyres on EW’s car, which was parked outside. At 3.00 am, the applicant sent a laughing emoji to EW from DA’s Snapchat account.
On 9 March 2021, the applicant connected another mobile phone number in EW’s name, with her address. The applicant then used the number to contact DA’s mother, but she did not answer the call. Using the same number, the applicant then sent a text, purportedly from EW, to both DA’s mother and sister saying:
We need to cancel the police sorry if the police investigate further [DA] will get extremely hurt and will find out it hasn’t just been ty. Both ty and I have been causing problems so that [DA] would stop seeing Brendan I didn’t know ty would go so far or get yous involved…I don’t wat to lose [DA] it will ruin our house and family…I’m sorry for taking the dogs I was in a bad headspace.., please can we make this go away…you too treated me like family and after being with [DA] so long I fell in love with him…Ty and I have been working together to cause trouble but ty took over and has [DA’s] old phone instead of leaving it with me.
Two days later, on 11 March 2021, the applicant falsely reported to police having received a text message from the same telephone number, purportedly belonging to EW, stating that if he did not stay away from DA then ‘SA’, DA’s father, would shoot him.
On 15 March 2021, the applicant used the same number to send a text to DA’s mother and sister:
Thank u again for the lovely day I appreciate it and letting me celebrate as family
A few weeks later, on 2 April 2021, the applicant sent an email to the police informant for the drug arrest from an email account purportedly belonging to DA, which had attached a nine second video of DA and EW smoking cannabis. The message was:
Hi mary can we do this waiting for diversion?
The next day, on 3 April 2021, the applicant sent a text to DA’s father:
Hi [SA] hope your well. I’m reaching out to you because I’m not coping and now my pictures are being shared. Do you know who is doing any of this at all?
The applicant followed up the next day with a further text to DA’s father, attaching a colour photograph appearing to show that the applicant had attempted suicide by cutting his wrist in the bath, and the text:
Paedophile. Im not a paedophile. Look after him please.
On 5 April 2021, the applicant sent an email to his own employer, from an account purportedly belonging to DA, showing the applicant without pants and displaying genitals, with the text:
How can you let this paedophile work for you
A week later, on 13 April 2021, when their lease expired, DA and EW moved out of the Heidelberg Heights property since they did not feel safe there anymore. They each moved back to their family homes.
On 24 April 2021, the applicant telephoned the Bunnings store where DA, DA’s mother and EW worked, stating that he was a police member from Melbourne West and asking whether any of the three were working that day. They were not, and the receptionist was not able to say when they would be.
That same day, the applicant called EW’s grandmother, looking for EW. The applicant claimed to be a police member called ‘Ben’.
On 3 May 2021, the applicant provided to Detective Leading Senior Constable Bennett — who became the informant in the applicant’s case — 50 pages of documents, including texts, social media messages and emails, which the applicant claimed showed the nature of the applicant’s relationship with DA and the stalking suffered at the hands of EW. Additionally, on 5 May 2021, the applicant sent to Detective Bennett the message and attachment the applicant had himself sent to his employer on 5 April as further evidence of stalking.

Perjury: charge 3

Four days after he had supplied documents to Detective Bennett, on 7 May 2021, the applicant made an application for a personal safety intervention order against EW, based on the fake messages from an account created by the applicant, by emailing it to Werribee Magistrates’ Court. The applicant then attended the Court and signed a document before a Registrar falsely declaring that the contents of the application were true and correct. A week later, on 14 May 2021, the applicant gave sworn evidence in the Werribee Magistrates’ Court (via Webex), that EW was stalking him. Based on this deliberately false evidence, the presiding magistrate granted an interim intervention order against EW.
On 22 May 2021, the applicant contacted police and reported that his gate had been taken off its hinges and a flywire screen removed, and that EW had done this in breach of the intervention order.
A few days later, on 26 May 2021, Detective Bennett spoke to EW and informed her about the intervention order, which was served on EW in person that afternoon at Heidelberg Police Station.

Arrest, search and interview

On 2 June 2021, police executed a search warrant at the applicant’s home in Point Cook, and arrested the applicant. Police found the mobile phone used by the applicant to send fake messages, together with documents showing the registration of the various accounts in false names. They also located fireworks (summary charge 12) and four throwing stars (summary charge 13).
When interviewed by police, the applicant denied the offending, save for a few emails sent from one email address. The applicant continued falsely to allege having been stalked by EW.

The plea

On the plea, counsel for the applicant submitted that a community correction order (‘CCO’) should be imposed.[6] The prosecution submitted, however, that a term of imprisonment with a non-parole period was called for.
[6]In oral submissions in this Court, counsel for the applicant realistically conceded that a CCO ‘was never going to be imposed’.
In the course of his plea, counsel for the applicant acknowledged that the impact on the victims was significant. So far as the applicant’s personal circumstances were concerned, counsel submitted that the applicant’s prior criminal history was of little relevance. The applicant, whose biological father was a violent alcoholic, had a difficult childhood, raised primarily by his mother. Both the applicant’s father and step-father ridiculed the applicant with respect to sexual identity.
Counsel detailed the applicant’s history of drug and alcohol abuse after finishing school and continuing into adulthood. He submitted that the applicant was making active progress towards rehabilitation. The applicant had engaged in services and treatment to address offending behaviour, including dialectical behaviour therapy, engagement with the Forensicare problem behaviour program and counselling through Odyssey House. The applicant also engaged with WestCASA in 2021 to address being a victim of childhood sexual abuse.
The applicant’s counsel relied on a report of Mr Patrick Newton, psychologist, which addressed the applicant’s mental state. In Mr Newton’s opinion, the applicant suffered from a recurrent major depressive disorder, exacerbated by a borderline personality disorder and alcohol and drug abuse. Counsel submitted that custody would be more onerous given the applicant’s ‘diverse sexuality, pre-existing emotional distress, complex mental health needs and personality dysfunction’.
Counsel relied on the applicant’s early guilty plea which had high utilitarian value, noting the applicant had used the delay in court proceedings to further rehabilitation. The applicant, counsel submitted, had strong supports in place, evidenced by several tendered character references. A CCO was appropriate to continue to foster the applicant’s rehabilitation.
Having accepted that the applicant’s was an early plea which had utilitarian value, the prosecutor submitted that the applicant’s self-reported background, and discussion of the offending as set out in Mr Newton’s report, should be taken with a ‘large bag of salt’. There was no evidence before the court, the prosecutor submitted, to indicate remorse or insight into the serious nature of the offending. Specific and general deterrence, denunciation and community protection were relevant, and the applicant’s prospects of rehabilitation should be considered with caution.

The judge’s reasons for sentence

The judge commenced her reasons for sentence by describing the offending, before setting out the various steps that led to the matter finally being resolved. She then set out the applicant’s prior criminal history,[7] before turning to the applicant’s personal circumstances. The judge noted that the applicant had struggled with sexuality since early childhood and does not identify as male or female (using the pronouns ‘they’ and ‘them’). She noted that the applicant claimed to have experienced violence and abuse in childhood: the applicant’s biological father raped the applicant’s mother and strangled the applicant’s pet dog; the applicant’s step-father beat the applicant and used terms like ‘faggot’; and the applicant was sexually assaulted by a swimming teacher.
[7]On 17 April 2008, in the Brisbane Magistrates’ Court, on a charge of dishonest application of the property of another, without conviction the applicant was placed on probation for a period of 12 months and ordered to pay restitution in the sum of $4,603.10. The following month, on 2 May 2008, the applicant was again before the Brisbane Magistrates’ Court on three charges of dishonest application of property of another; and, without conviction, was placed on probation for a period of 12 months. Three years later, on 4 April 2011, the applicant was before Hobart Supreme Court on 24 counts of computer-related fraud, and was convicted and sentenced to be imprisoned for a period of six months, wholly suspended for an operational period of two years. He was also ordered to pay compensation in the sum of $6,123.60.
Counsel for the applicant, the judge noted, indicated that the applicant was bullied and subjected to homophobic taunts at high school. The applicant left home at age 15, and was introduced to cocaine and ecstasy, sometimes engaging in sex in exchange for drugs. By 2007, the applicant was a regular user of illicit drugs and was dependent on alcohol. Between 2002 and 2006, the applicant worked for a local dentist until leaving after an attempted sexual assault. An engagement to a woman broke down after five years. In 2010, the applicant moved to Melbourne and commenced work with an organisation where the applicant remained until recently.
The judge had before her a report of Ms Gina Cidoni, psychologist, dated 18 June 2021 (prepared for an earlier bail hearing) (Exhibit 2); and a report of Mr Patrick Newton, clinical and forensic psychologist, dated 21 February 2022 (Exhibit 1).[8]
[8]The judge also received: a Court Integrated Services Program (‘CISP’) Final Progress Report, dated 25 February 2022, and a bundle of other CISP reports (Exhibit 3); a letter authored by Molly Woolford, a clinician at Odyssey House, dated 17 February 2022 (Exhibit 4); letters authored by Kristina Sass-Nielsen, a counsellor at WestCASA, dated 22 February 2022 and 27 February 2023 (Exhibit 5); a letter authored by Dr Akinsola Akinbiyi, consultant psychiatrist, dated 26 February 2022 (Exhibit 6); a letter authored by Dr Bronwyn McKeon, a senior psychologist with the Problem Behaviour Program at Forensicare, dated 4 August 2022 (Exhibit 7); a letter from the Problem Behaviour Program at Forensicare, dated 23 February 2023 (Exhibit 8); a letter authored by Julie Speirs, a specialist family violence practitioner at Thorne Harbour Health, dated 3 February 2022 and a letter authored by Jessica Hunter, a team leader in family violence services at Thorne Harbour Health, dated 29 November 2022 (Exhibit 9); a letter authored by Prajakta Deshpande, psychologist (Exhibit 10); and a bundle of references (Exhibit 11).
Ms Cidoni considered that the applicant suffered from a personality disorder, Alcohol Use Disorder, Major Depression (which was recurrent and severe), Post-Traumatic Stress Disorder (‘PTSD’) and Adjustment Disorder (although, as the judge noted, Mr Newton diagnosed neither PTSD nor an Adjustment Disorder). She also observed that the applicant’s personality profile suggested that the applicant was depressive, fearful, socially anxious, self-pitying and pessimistic.
Mr Newton assessed the applicant as suffering from prominent dysfunctional personality traits, which have their origins in the applicant’s unstable childhood, reinforced by recurrent experiences of sexual violence. The applicant labours under a Borderline Personality Disorder which presents with prominent narcissistic features, and the applicant’s intense self-focus and distress limits any capacity for empathy towards others and compromises the development of remorse for the offending. Further, the presence of a Borderline Personality Disorder renders the applicant’s Depressive Disorder more difficult to treat and exacerbates substance-related problems. Mr Newton is also of the opinion that the applicant met the DSM-5[9] criteria for Alcohol Use Disorder of at least moderate intensity, exacerbating other mental health challenges, and constituting a profound criminogenic risk factor. The applicant also has a Substance Use Disorder of at least moderate intensity as defined by DSM‑5 (albeit in early remission).
[9]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5-TR).
Applying the screening assessment for stalking and harassment, Mr Newton considered that the applicant fell into the ‘moderate to high’ concern range. Mr Newton considered that the applicant’s behaviour manifested multiple characteristics associated with an increased risk of further stalking behaviour and that these are intensified by the applicant’s unstable mental health and the applicant’s chronic and continuing abuse of alcohol. Further, the concern Mr Newton had about the applicant’s behaviour was magnified by a lack of insight and persistence in giving an exculpatory narrative that placed responsibility for the applicant’s conduct on the complainants.
Finally, the judge noted that Mr Newton considered that the applicant would be a relatively vulnerable prisoner due to diverse sexuality, pre-existing emotional distress and complex mental health needs and personality dysfunction, which would likely attract adverse attention from other prisoners. Mr Newton also thought it important to ensure that the applicant was protected from impulsive acts of self-harm and expressed the view that, overall, the applicant’s experience of imprisonment was likely to be rather more onerous than would be typical for prisoners who did not suffer from the applicant’s challenges and problems.
The judge entertained a degree of what we regard as justified scepticism about the applicant’s reliability as a historian. She regarded the applicant as ‘an unreliable historian’ and ‘a practised liar’, when ‘not lying prone to give, what Mr Newton somewhat euphemistically describes as, a “hyperbolic narrative of [relevant] circumstances”’. Among other things, the judge observed:
I must say that I have had considerable difficulty in determining the issue of what, if any, of your mental impairments existed at the time of committing the crimes to which you have pleaded guilty and what, if any, connection exists between any mental impairment and your offending behaviour. This difficulty has arisen because the various diagnoses are largely reliant upon your self-report. My view of you, based on all of the material before the Court, is that you are a practised liar and, when not necessarily lying, are prone to give, what Mr Newton somewhat euphemistically describes as, a ‘hyperbolic narrative of [your] circumstances’. In other words, you are prone to exaggerate. You have narcissistic traits, which make your version of events very self-focused so that they demonstrate little, if any, appreciation of the impact that your conduct has upon others.
The histories given to various health professionals exhibit a great deal of self-justification and self-pity. You are an unreliable historian. For example, Mr Newton stated that your recollections of childhood were overshadowed by repeated acts of abuse which reportedly occurred throughout your early years, as your father had been prone to drink heavily and was violent when drunk. However, you also told him that your parents had separated when you were aged about three and you went to live with your mother’s six sisters and your grandmother. You told Ms Cidoni that your father was in the navy, and an alcoholic, and you typically saw him every two years for one week until age fourteen. You told Mr Newton that, when your mother re-partnered, you were about five and the family relocated to Cairns from 1987 to 1989 and that ‘[your] stepfather had “not been able to cope with” [your] non-binary identity and had “wanted to make a man out of [you]”’. To this end, he reportedly inflicted harsh physical punishments upon you and, on your account ‘this maltreatment escalated as [you] entered [your] teenage years’. I here interpolate that between 1987 and 1989, you would have been aged between four or five years and seven years, and it would be very surprising, indeed, if you had identified as being ‘non-binary’ at such an early age prior to puberty.
You stated to Ms Cidoni that, at age six, you were raped on one occasion by your swimming coach. You told Mr Newton, ‘that it had involved oral and anal penetration’. However, you had instructed your counsel that this involved ‘forcing oral sex’.
You told Ms Cidoni that you had been molested by your mother’s brother-in-law for two years, but told Mr Newton it was over some four years, between the ages eight and twelve, and it involved various forms of penetrative abuse. Your counsel’s submissions refer to you having been groomed by this uncle and then abused over a period of four to five years. The reference from your sister, Ms Driscoll, dated 5 February 2022, stated that: ‘It has recently been disclosed by [you] that often during [your] time with Aunty Sue, if left alone with her husband, Ray, [you] would be inappropriately touched under the guise of “tickling” in [your] genital area’. Your sister did not mention any alleged penetrative offending.
…
The concerns I have about the reliability of your histories given to the psychologists also apply, in part, to what is revealed in a number of the references tendered on your behalf as Exhibit ‘11’. One jointly authored by Michele Goldman, the CEO, and Michael Jones, Company Secretary, of Asthma Australia dated 2 February 2022, stated that you had been diagnosed with bowel cancer in recent years, however, there is no evidence of this before the court. The reference states that you had been ‘forthcoming’ with the organisation about your offending. However, astonishingly, it refers to ‘some slanderous messages’ about you which were received by Asthma Australia [the applicant’s employer] from persons unknown and which you found to be stressful and embarrassing. The authors do not appear to be aware, as stated in … the Prosecution Opening, that you sent these self-defamatory messages to yourself at your workplace.
The judge summarised the factor she took into account in the applicant’s favour as follows:[10]
[10]Emphasis added.
In sentencing you, I take into account the following matters in your favour:
(a)Your traumatic background of abuse, depression, and Borderline Personality Disorder, albeit, for reasons that I have stated, the mitigatory effect of these factors upon your moral culpability should be only moderate.
(b) Your early indication of an intention to plead guilty to the indictable offences. These pleas have utilitarian value in that they have saved you victims having to relive their harrowing experiences by giving evidence at a committal and trial. Given that you indicated your intention to plead guilty at a time when pandemic restrictions made the conduct of criminal trials in the state of Victoria very difficult, your pleas have added utilitarian value by facilitating the course of justice and not adding another trial to the already congested trial list.[11] I have indicated that I do not regard your pleas as remorseful in the light of your continued victim-blaming but, in fairness, note Mr Newton’s comment that your personality type and focus upon your own distress limits your capacity for empathy towards others and compromises the development of remorse for your offending.
[11]The judge cited Worboyes v The Queen (2021) 96 MVR 344.
(c) Prior to being granted bail on 22 June 2021, you were assessed as suitable for case management by the CISP and engaged with that program by telephone from shortly after being bailed until 25 February 2022. You cooperated with a number of suggestions and referrals by your CISP case management during that time.
(d) Between 19 August 2021 and 20 February 2022, you underwent ten counselling sessions for drug and alcohol abuse from Ms Molly Woolford at Odyssey House. These, like the CISP supervision, were by telephone during the restrictions of the pandemic.
(e) On 15 July 2021, you were assessed for counselling by WestCASA in relation to your alleged childhood and adult sexual abuse. Between 3 November 2021 and 23 February 2023, you attended eighteen counselling sessions for such abuse. A report from WestCASA, dated 27 February 2023, stated that you had completed a full episode of care and successfully achieved your counselling goals with WestCASA.
(f) In June 2021, you went to your general practitioner to obtain a mental health care plan and were referred to Wallace Avenue Specialist Suites. There, you had a medication review, undertaken by a psychiatrist, Dr Akinsola Akinbiyi, in relation to your conditions of Major Depressive Disorder, Borderline Personality Disorder and Substance Use Disorder. A letter from Dr Akinbiyi, dated 26 February 2022, notes that you were prescribed Effexor XR, 75 milligrams daily, for depression and were to see a psychiatrist every three months. ...
(g) Under the Medicare Better Access Scheme you attended a psychologist, Prajakta Deshpande, for 10 sessions of Dialectical Behaviour Therapy from June 2022. You are said to have engaged consistently and reflectively, but the clinician commented that you would benefit from further sessions.
(h) In August 2022, your solicitor referred you to the Problem Behaviour Program run by Forensicare. This is a program which addresses behaviours, including stalking, for which services may not be available elsewhere. You attended nine treatment sessions there between 4 August 2022 and 2 February 2023. Unfortunately, the brief reports tendered from this program only make it clear that you attended, but do not comment upon your progress in relation to acknowledging, understanding and rehabilitating yourself from stalking behaviour.
(i) Between 4 August 2022 and 2 March 2023, you attended Thorne Harbour Health, initially for an assessment and, then, to undertake the ‘ReVisioning’ group sessions via Zoom. This program is apparently designed to address the issue of BGTIQ male-identifying people who deny others the right to live their lives freely and safely by having used violent or controlling behaviours towards a partner or family member. You attended the minimum of twenty sessions necessary to complete the program, as well as a further five sessions. Unfortunately, the two brief reports from this organisation do not state what, if any, progress has been made by you. Indeed, the report dated 29 November 2022, acknowledges that the program is a long one and participation is in no way predictive of positive change. It states that, although there is evidence that men can, and do, modify their controlling behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change, or for how long.
(j) You have a good work history. In particular, you have been employed with the Asthma Foundation/Asthma Australia since 2011 and two references have attested to the high standard of you work and how well you are regarded by colleagues. It is to your credit that you returned to this employment after your release into the community on bail and remained working there until shortly before your plea hearing.
(k) You have demonstrated loyalty to some friends, like Ms Ottaway and Ms Sun-Ho, who provided references attesting to your kindness and volunteer work, with Wildlife Victoria, caring for sick and injured wildlife. However, I have difficulty in accepting their opinions that you are remorseful for your offending in the light of your persistent narrative that you are a victim and [EW] is a perpetrator.
(l) You have the ongoing support of your mother and older sister both of whom reside out of Victoria, unfortunately. Within Victoria, you have support from people with whom you used to work at Asthma Australia.

Having referred to the profound impact that the applicant’s offending had on DA and EW and their respective mothers, the judge said:
Your stalking behaviour is of a grave nature. It appears that you were obsessed with wanting to be in a relationship with [DA] and simply could not accept that this is not what he wanted. You persisted in your menacing conduct designed to isolate and terrify [DA] and [EW] for almost a year. This culminated in you actually making an application for an Intervention Order against [EW] based on fake messages created by you. You physically attended Werribee Magistrates’ Court and falsely declared that the contents of your application were true and correct. Then, on 14 May 2021, you participated in a court hearing at Werribee Magistrates’ Court via Webex and gave false sworn evidence about [EW’s] behaviour. This resulted in an interim Intervention Order being granted against her in favour of yourself. You even followed it up with a report to the police that [EW] had breached the Intervention Order. This conduct is seriously brazen and shows the extent to which you were prepared to go to try to harm [EW].
Committing perjury undermines the system of criminal justice upon which all citizens are entitled to rely to preserve rights in our democratic society. You appear to have been so consumed by your campaign of malicious behaviour that you did not care about the law, coming as this behaviour did on top of you having already impersonated a police officer in the emails which form part of your stalking behaviour.
In sentencing you there must be denunciation of your conduct, and emphasis upon general deterrence. Through sentencing you, the Court must let others know that this sort of perverse campaign of terror, apparently motivated by jealousy over [EW] having a relationship with [DA], will not be tolerated. The fact that you engaged in repeated devious acts of stalking and then the acts of perjury means that there must also be emphasis upon specific deterrence. Indeed, your prior offending involved fraudulent behaviour and the most serious offending, in 2011, which attracted a prison sentence (albeit suspended) was for computer-related fraud. You had no qualms, again, in using your IT skills to harm your victims in this case.

The applicant’s submissions in this Court

In this Court, the applicant’s counsel submitted that the sentencing orders made on the indictable charges, the resulting total effective sentence and the non-parole period fixed are each manifestly excessive. The sentences lie outside the permissible range of dispositions available to the sentencing judge. That conclusion follows, counsel submitted, from the combination of factors. In summary, those factors are:
·    first, the trauma to which the applicant had been exposed;
·    secondly, the applicant’s history of mental ill-health;
·    thirdly, the applicant’s prominent dysfunctional personality traits;
·    fourthly, the nexus between the applicant’s dysfunctional personality traits and the offending;
·    fifthly, the applicant’s vulnerability in custody, which engaged the fifth Verdins[12] proposition;
·    sixthly, the availability of a specialist intervention program targeting stalking-related risks, and the applicant’s attendance at Forensicare’s Problem Behaviour Program and Dialectical Behaviour Therapy counselling;
·    seventhly, the applicant’s engagement with CISP and the services to which the applicant was referred (including Odyssey House);
·    eighthly, the applicant’s engagement with WestCASA;
·    ninthly, the applicant’s engagement with a family violence behaviour change program through Thorne Harbour Health; and
·    tenthly, the applicant’s early guilty pleas.
[12]R v Verdins (2007) 16 VR 269, 276 (‘Verdins’).

The respondent’s submissions in this Court

Counsel for the respondent submitted that the proposed ground of appeal was without merit. Each of the individual sentences imposed on charges 1, 2 and 3; the total effective sentence; and the non-parole period; were within the range of penalties that might have been imposed in the reasonable exercise of the sentencing discretion. The orders for cumulation in relation to charges 2 and 3 were reasonably open to the sentencing judge in all the circumstances, properly reflecting the gravity and breadth of the applicant’s offending.
The respondent’s counsel drew attention to the judge’s characterisation of the offending conduct. Hence, the judge described the conduct the subject of charges 1 and 2 as of a ‘grave nature’. It was ‘premeditated, vindictive and gratuitous’, ‘very intricately planned’, and ‘calculated to deeply disturb and hurt’ the victims. The conduct was ‘deliberately cruel, malicious, defamatory and of an insidious nature’; and its scope was ‘very persistent, pervasive and protracted’. The conduct was neither spontaneous nor impulsive, and its impact on the victims (and their mothers) was significant. Moreover, the conduct comprising charge 3 was ‘seriously brazen’, acted to undermine the integrity of the criminal justice system, and underscored the ‘extent to which [the applicant was] prepared to go to try to harm’ EW.
Counsel for the respondent submitted that, in circumstances where the culpability of the applicant was high, the offending conduct itself was objectively serious and the impact on the victims was significant, the principles of general deterrence, denunciation and just punishment required the imposition of condign punishment. Having regard to the applicant’s substance abuse issues, mental health manifestations, limited insight and modest prospects of rehabilitation, the principles of specific deterrence and community protection were also significant considerations. The applicant’s personal history and its impact; the nexus between the applicant’s mental health and the offending; the applicant’s engagement with rehabilitative programs; the applicant’s guilty pleas; and the impact of incarceration; were all taken into account, and given appropriate weight, by the judge in the instinctive sentencing synthesis.

Discussion

As we have said, the sole ground of appeal contends that the applicant’s sentence, in its key components, is manifestly excessive. No complaint of specific error is made. As Hayne J observed in AB:[13]
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
[13]AB v The Queen (1999) 198 CLR 111, 160 [130].
The approach to a ground which contends that a sentence is manifestly excessive was discussed in Leimonitis:25F[14]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,26F[15] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.27F[16] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.28F[17] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.29F[18]
[14]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA).
[15]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[16]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[17]Ibid.
[18] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
We consider the individual sentences on the two charges of stalking to be well-justified. Drawing on our experience of other cases of stalking, we consider the applicant’s to represent one of the most grave examples of stalking this Court has encountered, given the persistence, intricacy, intrinsic nastiness and wanton sadism of the applicant’s conduct. The adjectives that the judge used to describe the applicant’s offending were entirely apt.[19] It was truly vindictive, gratuitous, cruel and malicious in nature, calculated to deeply disturb the victims.
[19]See [76] above.
Moreover, the various and diverse aspects that constituted the applicant’s behaviour were far from spur of the moment aberrations. The applicant intricately planned and meticulously executed the campaign of terror unleashed upon DA and EW. And, so it appears, at no time during the 11 months that the applicant tormented DA and EW did the applicant pause and reflect upon the enormity of the harm being inflicted on the victims. Indeed — whether or not it can be explained by the applicant’s personality disorder — we can detect no shred of remorse prior to, or following, the offending’s detection.
Furthermore, we consider the order for cumulation of 18 months between the sentence on charges 1 and 2 to be entirely justified. Although much of the offending conduct overlapped, both DA and EW were subjected to separate and distinct incidents of stalking, which had to be reflected in the individual sentences imposed on each charge and the order for cumulation between them.
As to the perjury charge, rather than being manifestly excessive, if anything we regard the individual sentence of two years’ imprisonment imposed to be lenient. The applicant’s perjury was used to obtain an intervention order against an entirely innocent victim. General deterrence and denunciation were prominent features which had to be reflected in the sentence. Perjury such as the applicant’s strikes at the heart of the administration of justice. In that regard, we express our complete agreement with the observations of Vincent JA (with whom Winneke P and Charles JA agreed) in Schroen:[20]
It is apparent that the integrity of the operation of the system of courts upon which, it must be remembered, our community depends for the proper determination of matters of fact in both civil and criminal proceedings, may be seriously compromised and the achievement of the ends of justice thwarted by the deliberate making of false statements on oath. It is not always easy or even possible to establish that perjury has been committed. Sometimes, unfortunately, the lie may not be exposed and the injustice which has been occasioned remain unrectified. Not only can this have a serious effect upon those with a direct interest in the outcome of the particular matter, but it may also engender a reduction of confidence in the community in the reliability of court decisions generally. For these and a number of other good reasons, the crime of perjury, particularly when committed in a curial setting, is regarded very seriously indeed. The sentencing judge correctly indicated that the principle of general deterrence will, in consequence, normally possess a high degree of significance as a sentencing consideration. As Charles JA pointed out in R v Patniyot and Dailakis,[21] this offence can strike at the very foundation of the legal process and it would be a wholly exceptional case where the giving of false evidence on oath would not warrant an immediate custodial sentence.
[20]R v Schroen [2001] VSCA 126, [14].
[21][2000] VSCA 55, [54].
We also consider cumulation of 12 months’ of the sentence for perjury upon the sentences for stalking to be unremarkable. It properly reflected the distinct criminality constituted by the applicant’s deliberately false evidence.
It is plain that the judge was astute to apply the principle of totality, and to avoid double punishment. She said:
In sentencing you, I am conscious that, although there are three discrete indictable charges, and there were specific acts of stalking which pertained to either [DA] or [EW] alone, there was also a great deal of your conduct which impacted upon both of them. For this reason, I consider that there should be some concurrency in relation to the sentence imposed on Charge 1 and 2 in order to avoid double punishment. In assigning sentences to those two charges, I have dissected the impact upon [EW] and those close to her of your conduct which comprises Charge 3: perjury. I have taken the distress caused by your false declaration and evidence leading to the Intervention Order into account as part of the circumstances pertaining to Charge 3. However, whilst recognising that it is a discrete offence from stalking, in the interests of totality, I consider that there should be some concurrency allowed in relation to Charge 3 in order to arrive at a just sentence in all the circumstances.
We detect no error in the manner in which the judge crafted the orders for cumulation. Indeed, we consider that her approach was faultless.
In our opinion, the sentence imposed on the applicant adequately reflects the mitigating features relied upon by the applicant’s counsel and pressed in this Court,[22] including Verdins considerations. As we have said, general deterrence and denunciation were prominent features which were required to be reflected in the sentence. Further, given the applicant’s lack of insight and remorse, prospects of rehabilitation must be regarded as problematic, and the need for community protection must be seen as enhanced. We also consider that there is a real need for an adequate measure of specific deterrence to be manifested in the sentence imposed. And, quite clearly, the applicant needed to be justly punished.
[22]See [74] above.
Synthesising for ourselves all relevant factors — including the circumstances of the offender and the offending, and all relevant aggravating and mitigating features — we are not persuaded that the sentence imposed is manifestly excessive. We consider it to be well within the range of sentences open in the proper exercise of the sentencing discretion.
The application for leave to appeal must be refused.

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Charge	Offence		Sentence	Cumulation
1	Stalking		3 years	Base
2	Stalking		3 years	18 months
3	Perjury		2 years	12 months
Related summary offences:
12	Possess explosive fireworks		$100			NA
13	Possess prohibited weapon		Convicted and discharged		NA
Total effective sentence:		5 years and 6 months’ imprisonment
Non-parole period:		3 years and 6 months
Section 6AAA declaration:		7 years’ imprisonment with 5 years non-parole
Other orders:		Disposal order for fireworks and weapon

[2024] VSCA 278

21 November 2024