Judge v The Queen; Dix v The Queen
[2021] VSCA 315
•18 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0272
| BENJAMIN JUDGE | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2021 0034
| HARLEY DIX | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 November 2021 |
| DATE OF JUDGMENT: | 18 November 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 315 |
| JUDGMENT APPEALED FROM: | DPP v Judge [2020] VCC 1952 (Judge Riddell); DPP v Dix [2021] VCC 45 (Judge Riddell) |
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CRIMINAL LAW – Appeal – Sentence – Applicants sentenced to 2 years, 6 months’ imprisonment for a charge of kidnapping and 2 years’ imprisonment for a charge of intentionally causing injury, with total effective sentence of 3 years, 4 months’ imprisonment – Whether judge erred in not imposing a combination sentence of a term of imprisonment and a community correction order for kidnapping charge – Whether sentences manifestly excessive – Leave to appeal refused – Sentencing Act 1991 s 5(2H).
CRIMINAL LAW – Appeal – Sentence – Whether judge infringed parity principle in sentencing second applicant to same sentence as first applicant for intentionally causing injury charge – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Judge | Ms C A Boston | Docherty Legal |
| For the Applicant Dix | Dr E Strugnell | James Dowsley & Associates |
| For the Respondent | Ms M Mahady | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KYROU JA:
Introduction and summary
The applicants, Benjamin Judge and Harley Dix, each pleaded guilty to a charge of kidnapping and a charge of intentionally causing injury. On 2 December 2020 and 29 January 2021, respectively, they were sentenced by the same County Court judge to identical sentences, as set out in the table below:[1]
[1]DPP v Judge [2020] VCC 1952 (‘Judge sentencing remarks’); DPP v Dix [2021] VCC 45 (‘Dix sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Kidnapping (common law) (Crimes Act 1958 s 320) 25 years 2 years, 6 months Base 2 Intentionally causing injury (Crimes Act s 18) 10 years 2 years 10 months Total effective sentence: 3 years, 4 months’ imprisonment Non-parole period: 1 year, 10 months Section 6AAA declaration: 6 years’ imprisonment, with non-parole period of 4 years, 3 months
On 2 December 2020, a co-offender, Jara Dix, was sentenced by the same judge to an identical sentence. Harley Dix was sentenced later than Benjamin Judge and Jara Dix because, after initially pleading guilty, he indicated that he might change his plea. Ultimately, he did not do so and he was sentenced on 29 January 2021. A fourth co-offender, Bo Valli, pleaded not guilty and, as at 29 January 2021, he was awaiting trial.
The definition of ‘category 2 offence’ in s 3(1) of the Sentencing Act 1991 includes kidnapping. Consequently, s 5(2H) precluded the sentencing court from imposing a community correction order (‘CCO’), or a combination sentence comprising a term of imprisonment of 12 months or less and a CCO, for charge 1 unless certain preconditions were satisfied. Section 5(2H), which is relevant to both applicants, is set out at [51] below.
Benjamin Judge seeks leave to appeal on the ground that the judge erred in not sentencing him to a combination sentence on charge 1 and that, for that reason, the sentence she imposed was manifestly excessive. Harley Dix seeks leave to appeal on three grounds which allege that the judge erred by: infringing the parity principle, not imposing a combination sentence, and imposing a sentence on charge 1 and making an order for cumulation on charge 2 which were manifestly excessive.
For the reasons set out below, the applications for leave to appeal will be refused.
Circumstances of the offending and events preceding it
In February 2019, Anthony Brown (then aged 19) moved into a unit in Flora Hill which Harley Dix (then aged 26) was sharing with Valli. Harley Dix and Valli are cousins. Brown began dating Starr Dix, who was then also aged 19. Starr Dix is the younger sister of Harley Dix. Jara Dix (then aged 20) is the aunt of Harley and Starr Dix and a close friend of Benjamin Judge (then aged 28). Jara Dix lived at the Judge family home in Long Gully.
Harley Dix was unhappy with what he believed was Brown’s poor treatment of Starr Dix. There is no evidence that Starr Dix made any complaint about Brown. Benjamin Judge and Valli were also unhappy with Brown’s behaviour at the unit. Based upon information provided to her by Harley Dix, Jara Dix had an unfounded belief that Brown had sexually assaulted or sexually abused Starr Dix. On 12 March 2019, Harley Dix assaulted Brown but Starr Dix intervened to stop him. Later that day, Brown and Valli had an altercation at Jara Dix’s family home.
Harley and Jara Dix decided that Brown needed to be taught a lesson. They formulated a plan whereby he would be kidnapped and driven in Valli’s car to the bush, beaten up and left there for two days chained to a tree. That plan was developed on 13 and 14 March 2019 and is evidenced by text messages. Those text messages included repeated entreaties by Harley Dix to Jara Dix that she should ‘deal with’ Brown. Harley Dix asked Jara Dix if she was going to let Brown ‘break up the family’. Jara Dix eventually messaged Harley Dix, stating ‘I said I will deal with him.’
On 15 March 2019, Benjamin Judge sent a message to Harley Dix stating ‘This shit will get sorted today! I m letting Jara do it her way ATM as I respect that she wonts to get to the bottom of it ... I honestly don’t give a fuck about Y.’[2] On the same day, Jara Dix arranged to borrow Valli’s car.
[2]Errors are in the original message. ‘ATM’ in this context means at the moment.
At around 9:00 pm, Benjamin Judge and Jara Dix used Valli’s car to collect Brown and Starr Dix and drive Brown to Bendigo police station where he reported on bail. They then drove to Long Gully, collected Harley Dix and his girlfriend, and all six of them travelled to Flora Hill where Harley Dix and his girlfriend were dropped off. Harley Dix knew that Brown remained with Benjamin Judge and Jara Dix, and that the plan to assault him would be carried out that night.
Starr Dix was dropped off at her father’s house. Jara Dix invited Brown to go with her to smoke a bong at One Tree Hill Lookout and he agreed. Benjamin Judge and Jara Dix drove with Brown via the Judge family home in Long Gully, where they loaded a tool box, a sledgehammer, a tarp and a bag of ropes and chains into the boot of the car, while Brown sat in the rear shed with Steven Judge, Benjamin Judge’s 24 year old brother. Steven Judge decided to go with the others for a ride and have a smoke. He, Brown, Jara Dix and Benjamin Judge drove to the One Tree Hill Lookout.
The facts set out at [11] above are the basis of charge 1 (kidnapping). That is so because Brown was fraudulently lured to go to smoke cannabis and Benjamin Judge, Harley Dix and Jara Dix intended that Brown would be kept captive and assaulted. Charge 1 is ongoing, covering the entire period that Brown was kept captive.
Brown was driven to a remote location in Spring Gully where he, Benjamin Judge, Steven Judge and Jara Dix shared a bong containing tobacco. Steven Judge and Brown stayed in the car while Benjamin Judge and Jara Dix got out.
Benjamin Judge removed the sledgehammer and bag of ropes and chains from the boot of the car and walked into the bushes. He tied the chain to a tree. Jara Dix walked into the bushes and checked what Benjamin Judge was doing.
Jara Dix then asked Brown to get out of the car. He stood next to the car, watching Benjamin Judge walk in and out of the bushes. While Brown was standing there, Benjamin Judge picked up the sledgehammer and moved towards Brown with it raised. Brown tried to push the sledgehammer away, using the car door to push Benjamin Judge away.
Brown was grabbed from behind and dragged to the ground, where he was assaulted for approximately five minutes by Benjamin and Steven Judge. Brown was kicked and hit. Benjamin and Steven Judge then dragged Brown by his hood and legs towards the site where the chain had been set up. Brown was continually hit and kicked. Brown believes that he was hit in the head at least once with the sledgehammer. While the assault was in progress, Jara Dix yelled out, ‘You shouldn’t have fucked with the family.’ Benjamin Judge was carrying out most of the assaults, while Steven Judge was assisting him by holding Brown down and also hitting and kicking Brown.
The facts set out at [16] above are the basis of charge 2 (intentionally causing injury).
Brown tried to run away but Benjamin Judge grabbed him from behind and dragged him to the ground in a headlock. Brown began to lose consciousness and believed he might die. As Benjamin Judge was holding Brown in the headlock, Steven Judge was on top of Brown. Brown pulled out a kitchen knife from his pants pocket and stabbed Steven Judge three times: once to his left arm, once to his chest and once under his left arm. Steven Judge backed away and Brown escaped by running into the bushes.
Steven Judge was bleeding heavily. Benjamin Judge and Jara Dix placed him in the car and drove to seek help. However, the car stopped after approximately one kilometre and would not re-start. Benjamin Judge and Jara Dix tried to carry Steven Judge, but could not go far. Benjamin Judge ran to a house and asked the occupant to call an ambulance. Two ambulances arrived at 11:29 pm, as well as several police cars. Resuscitation was commenced, however Steven Judge was pronounced dead at 11:47 pm.
Benjamin Judge and Jara Dix did not inform police of their plan to kidnap and assault Brown.
The following morning, Brown was found in a shed where he had spent the night. He was arrested in connection with the death of Steven Judge and was found to be in possession of a small kitchen knife.
Brown had a significant amount of dried blood covering his head, face, and clothes. He was examined at Bendigo Hospital and found to have multiple lacerations, abrasions and bruises to the face and neck, including an injury to the right side of his head which required three stitches. He also sustained multiple abrasions and bruising to the chest, upper and lower back, ribs and legs. Forensic examination indicated that Brown’s injuries were consistent with at least five episodes of blunt force trauma to his face and head. Abrasions to his face, torso, back and legs were caused by moving contact with an abrasive object such as fingernails or twigs. The abrasions to the back could also have been caused by the sole of a shoe with embedded stones. Brown’s lower legs were subject to multiple episodes of blunt trauma, in the form of blows or other impacts.
Brown was interviewed and gave a truthful account of what had occurred.
Admissions and offers to assist authorities
Harley Dix was arrested and interviewed on 16 March 2019. In his record of interview, he made full and frank admissions. He made sworn statements on 17 March 2019 and 23 August 2019. The latter statement implicated his co-offenders.
In his record of interview, Harley Dix stated that he started forming a plan with Jara Dix on 13 March 2019 for her to kidnap Brown, take him out to the bush somewhere and hurt him. He stated that he wanted Brown beaten up and told to stay away from Starr Dix. He had not spoken to Benjamin Judge about the plan but he knew that Benjamin Judge would be involved because Jara Dix and Benjamin Judge were like brother and sister. He said that he was the ‘mastermind’ of the plan.
Harley Dix stated that he arranged to borrow Valli’s car and that it was necessary to drop off Starr Dix at their father’s house as part of the plan to separate her from Brown. He said that he did not know precisely where Brown was to be taken. When police asked Harley Dix whether it was part of the plan to use weapons on Brown, he said that he did not care as long as Brown learnt his lesson. When he was asked whether he told Jara Dix how to assault Brown, he said ‘No. I just told her, “Look, I don’t care what you do, just make sure it’s done”.’ He also stated that he did not specify exactly what injuries were to be inflicted on Brown.
On 17 October 2019, Harley Dix gave a sworn undertaking to the County Court to give evidence in accordance with his record of interview and sworn statements if called upon to do so. He also stated, in relation to Brown, that ‘it wasn’t meant to happen that way and if [he] could take it back, [he] would’.
Benjamin Judge was arrested and interviewed on 17 March 2019. Initially, he lied, saying that he knew nothing of the plan to assault Brown and that the tools in the car were for his mowing business. He claimed that he blacked out and could not remember hitting Brown with the sledgehammer. He then admitted that there was a plan to tie up Brown so that Jara Dix could ‘have a chat with him’. He admitted removing the ropes and chains from the boot of the car and carrying them to the bushes and tying them there. He said that Jara Dix was going to leave Brown there for a couple of nights. He said that he had agreed to tie Brown to a tree but had not thought about whether force would have to be used to do this.
Benjamin Judge made a statement to police in October 2019 in which he indicated that he was willing to give evidence against Valli and Harley Dix.
Jara Dix was arrested and interviewed on 17 March 2019. Initially, she falsely claimed that Benjamin and Steven Judge were ambushed by Brown and two other men. She later admitted that there was a plan to tie Brown to a tree and leave him for a couple of days to teach him a lesson, and that she discussed the plan with Benjamin Judge. On the day that Benjamin Judge and Jara Dix were sentenced, namely, 2 December 2020, Jara Dix gave an undertaking to the County Court to give evidence in relation to Harley Dix and Valli.
Personal circumstances of Benjamin Judge, Harley Dix and Jara Dix
Benjamin Judge was 29 years old at the time of sentencing.
Benjamin Judge’s parents separated when he was three and a half years old. He struggled academically and required a teacher’s aide throughout primary school. In secondary school, he was verbally and physically bullied. He was involved in a number of fights and was often truant. He left school at the end of Year 10.
Benjamin Judge worked in a variety of jobs, including as a removalist and in a café, and experienced significant periods of unemployment. He and Steven Judge had started a maintenance business and were working together at the time of the current offending.
Benjamin Judge suffered from long-term depression and low mood throughout his teens. He was first medicated on antidepressants at the age of 17 and had attempted suicide on several occasions. In 2014, his paternal aunt was violently murdered by her partner. The murder and subsequent criminal proceedings against the offender were distressing for Benjamin Judge and members of his family. After the death of Steven Judge, Benjamin Judge’s mental health worsened and he was diagnosed with post-traumatic stress disorder.
A psychologist, Simon Candlish, prepared a report dated 19 August 2020 in relation to Benjamin Judge. Mr Candlish stated that Benjamin Judge appeared to have been experiencing symptoms of a persistent depressive disorder at the time of the offending but this did not appear to have been a causal factor in the offending. According to Mr Candlish, if the depression is left unmanaged, it could deteriorate further as a result of imprisonment.
Dr Sara Fratti, a clinical neuropsychologist, prepared a report dated 30 September 2020 in which she stated that Benjamin Judge was in the borderline to low average range of intellectual functioning but he did not have an intellectual disability. Dr Fratti stated that his depression, history of suicide attempts and post‑traumatic stress disorder would likely cause him a greater hardship if he was incarcerated for any length of time.
Benjamin Judge does not have any prior convictions.
Harley Dix was 28 years old at the time of sentencing.
Harley Dix’s parents separated when he was eight or nine years old. In addition to his sister, Starr Dix, he has a number of half-siblings on both his mother’s and father’s side.
Harley Dix had a difficult childhood. He was bullied on account of his surname, resulting in fights. He was suspended from school half-way through Year 8. He completed Years 8 and 10 at TAFE. He worked in a variety of jobs, including at a poultry farm, and was unemployed for approximately three years prior to the current offending.
Harley Dix began smoking cannabis at 12 years of age. He also used ecstasy and developed an addiction to methylamphetamine.
In the past, Harley Dix was prescribed Pristiq, an antidepressant, and Seroquel ‘for anger or sleep’.
Harley Dix has had several relationships. One of his former partners obtained family violence intervention orders against him (see [44] below). He has a nine year old daughter who is in permanent care and an eight year old daughter who is in her maternal grandmother’s care. He has no contact with his daughters. He married his current partner in March 2020 and has been in a stable relationship with her.
Harley Dix has a number of prior convictions involving violence. In 2013, he was released without conviction on an undertaking to complete a men’s behaviour change program and treatment plans through Bendigo Health for the offences of unlawful assault and criminal damage. He contravened that order and received another order. In 2015, he was sentenced to a 6 month CCO for two charges of contravening a family violence intervention order and one charge of possessing a dangerous article.
Harley Dix has a history of suicidal ideation and has made several suicide attempts. He was treated at Bendigo Health, where he was diagnosed with an acute stress reaction in 2011, a mild depressive episode in 2011 and an adjustment disorder in 2016.
Carla Lechner, a clinical psychologist, prepared a report dated 24 December 2019 in relation to Harley Dix, to which she appended an addendum on 22 January 2020. She assessed him as having a mild intellectual disability, with borderline personality disorder traits and symptoms of depression. She stated that imprisonment could potentially have an adverse impact on his mental health, with a risk of self-destructive behaviours or self-harm and suicide attempts. She also stated that his borderline personality disorder traits, symptoms of depression and intellectual disability may contribute to difficulties in the prison environment. She stated that he was not mentally impaired at the time of the offending and that he knew that the offending was wrong and unlawful.
An extended pre-sentence assessment report dated 12 August 2020 prepared by Corrections Victoria concluded that there was a high risk that Harley Dix would re-offend in the community.
Jara Dix was 22 years old at the time of sentencing. She experienced bullying at school including name-calling and physical assaults. This resulted in chronic low mood. She left school in Year 11. She was the victim of a number of sexual assaults and rape between the ages of 12 and 17. She was sexually assaulted by a male friend a week prior to the current offending. Between the ages of 12 and 18, she began cutting herself and attempted suicide on several occasions. In 2015, she was twice admitted to the Austin Hospital Child and Adolescent Mental Health Service.
Dr Keng Soh, a psychiatric registrar, prepared a report in which he diagnosed Jara Dix as suffering from a post-traumatic stress disorder, a social anxiety disorder and a persistent depressive disorder. Dr Soh opined that her post‑traumatic stress disorder and the sexual assault a week prior to the current offending would have impacted her and clouded her judgment, and that it played a ‘significant role in her hatching the plan to punish the victim’.
Jara Dix gave birth to a son on 18 August 2020. She does not have any prior convictions.
Section 5(2H) of the Sentencing Act and the six limbs of Verdins
Section 5(2H) of the Sentencing Act is referred to in the judge’s sentencing remarks for both applicants and is relied upon by them in their applications for leave to appeal. The section relevantly provides as follows:
In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a [CCO] in accordance with section 44) unless—
(a)the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
…
(c)the offender proves on the balance of probabilities that—
(i)subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces the offender’s culpability; or
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e)there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a [CCO] in accordance with section 44).[3]
[3]Division 2 of pt 3 of the Sentencing Act is headed ‘Custodial orders’. Section 5(2HA) is not presently relevant.
The six limbs of R v Verdins[4] are also relevant to both applicants. Those limbs are in the following terms:
[4](2007) 16 VR 269 (‘Verdins’).
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.[5]
[5]Verdins (2007) 16 VR 269, 276 [32] (citations omitted).
Plea hearings
At the applicants’ plea hearings, their counsel (who did not appear for them before us) submitted that the exceptions in s 5(2H) of the Sentencing Act applied and that the judge had the power to impose a CCO or a combination sentence comprising a term of imprisonment of 12 months or less together with a CCO.
Benjamin Judge’s counsel relied upon s 5(2H)(a) of the Sentencing Act on the basis that Benjamin Judge had provided an undertaking to assist in the charges against Valli if so required. Counsel also relied upon s 5(2H)(e) on the basis that Benjamin Judge’s difficult upbringing, the death of his brother, his vulnerability in a prison environment, his lack of prior convictions and his guilty plea satisfied the requirements of that provision. Counsel also relied upon Verdins limbs 5 and 6 and submitted that ‘an onerous CCO is available and can meet all of the Sentencing objectives’.
Harley Dix’s counsel relied upon s 5(2H)(a) of the Sentencing Act on the basis that Harley Dix’s admissions provided significant assistance to law enforcement authorities[6] and that the value of the undertaking he gave to the County Court could not be understated. Counsel also relied upon s 5(2H)(e) and all of the limbs of Verdins. Counsel referred to s 5(2H)(c), but ultimately did not rely upon it. In relation to parity, counsel submitted that Harley Dix should receive a lower sentence than the sentences of his co-offenders in relation to charge 2 because, unlike Benjamin Judge and Jara Dix, he was not aware that weapons would be used. Counsel contended that a ‘lengthy’ CCO was appropriate and that a combination sentence ‘could be considered’.
[6]Counsel relied upon R v Doran [2005] VSCA 271 (‘Doran’).
The prosecutor submitted that the kidnapping offence was too serious for a CCO or a combination sentence. In relation to parity, the prosecutor submitted that there was little to differentiate the offenders.
Judge’s sentencing remarks
The judge stated that, whilst the kidnapping offence was committed by fraud rather than force, it was ‘a most serious offence’.[7] She described it as ‘a serious example of the offence of [kidnapping], though somewhat moderated by the fact that [the] ultimate plan was thwarted’.[8]
[7]Judge sentencing remarks [42]; Dix sentencing remarks [45].
[8]Judge sentencing remarks [49]; Dix sentencing remarks [53].
The judge said that the offence involved planning and premeditation, largely by Harley and Jara Dix, but Benjamin Judge also knew of and agreed to the plan. The judge referred to the fact that the offence involved planned violence on Brown and noted that Benjamin Judge actually inflicted the violence. She found as a fact that Brown was hit with the sledgehammer at least once, but could not determine who hit him with it. She added that this was not particularly relevant, as the offence was one of joint enterprise.
The judge described the offending as ‘vigilante behaviour of high order’.[9] She stated that ‘[t]aking matters into your own hands in this way [was] unacceptable’, that the behaviour deserved denunciation on behalf of the community and that it warranted a sentence that would deter the three offenders as well as others from taking similar action.[10] She also said that the sentence must be directed to community protection and justly punish the offenders.
[9]Judge sentencing remarks [1]; Dix sentencing remarks [1].
[10]Judge sentencing remarks [48]; Dix sentencing remarks [52].
In sentencing Harley Dix, the judge described the gravity of the offence of intentionally causing injury as ‘a serious example of that offence’. She said that this was so in the light of the level of premeditation, the setting of night-time in the bush and the nature of the injuries Brown sustained.[11] She added that she would order some cumulation of the sentence for that offence because it was distinct offending and involved a sustained attack which resulted in a multitude of injuries for Brown. The judge made a similar observation in sentencing Benjamin Judge and Jara Dix.
[11]Dix sentencing remarks [54].
The judge said that Jara Dix encouraged the ongoing violence by screaming at Brown while Benjamin and Steven Judge assaulted him.
In relation to Harley Dix’s role in the offending, the judge said the following:
[The kidnapping] offence involved planning and premeditation, largely by [Harley Dix] along with [Jara] Dix and on [Harley Dix’s] own admission it was at [his] instigation. It involved a planned violence which was carried out.
There is no direct evidence that [Harley Dix was] aware weapons or tools would be used against Mr Brown. I accept [Harley Dix’s] comments made in [his] statement that [he was] not aware of the specific items taken to the site. I accept [he] did not actually inflict injury on the victim. I accept [his] comments that how the victim was to be hurt was a matter for [his] co‑offenders. However as [he] admit[s] in both [his] record of interview and [his] statements, it was [his] plan that Mr Brown be taken to the bush and hurt. [He] did not care how that was done. Therefore [his] lack of specific knowledge as to how [Brown] was hurt or what items might be used for that purpose does not reduce [his] responsibility for what ultimately occurred.[12]
[12]Dix sentencing remarks [46]–[47].
The judge stated that the moral culpability of Benjamin Judge, Jara Dix and Harley Dix was ‘high, given the planning and deliberate purpose of [their] offending’, which was carried out by Benjamin Judge and Jara Dix at Harley Dix’s instigation and with his assent.[13]
[13]Judge sentencing remarks [50]; Dix sentencing remarks [55].
In dealing with the seriousness of the offending, the judge noted the maximum penalties that applied. She also noted that kidnapping was a category 2 offence, which meant that s 5(2H) of the Sentencing Act required her to ‘impose a sentence of imprisonment, not in combination with a [CCO], unless special circumstances exist’.[14]
[14]Judge sentencing remarks [52]; Dix sentencing remarks [57].
In relation to Benjamin Judge, the judge said the following concerning the application of s 5(2H) of the Sentencing Act:
The special circumstances which were relied on by [defence counsel] in relation to [Benjamin] Judge, are that in October 2019 [he] made a statement to police elaborating on [his] interactions with [his] co-offender Bo Valli and indicated [his] preparedness to give evidence if his matter goes to committal or trial. [The prosecutor] confirmed that it is the prosecution’s intention to call [Benjamin Judge] to give evidence. That may also relate to Harley Dix if his matter now goes to trial. This is a matter which I have taken into account in [Benjamin Judge’s] favour.
…
Policy considerations confirm that where an offender is prepared to assist the authorities in bringing a co-offender to justice, that offender should receive a discount in sentence. In assessing the discount to be attributed, I am required to assess the value of [the] cooperation [of each of Benjamin Judge and Jara Dix]. In that regard, it is apparent that Mr Valli has already implicated himself in this offending, so [Benjamin Judge’s] evidence … is not of high value. Harley Dix, similarly, made fulsome admissions. So, in a similar sense, any evidence against him, will not be of high value. That comment relates to both [Benjamin Judge and Jara Dix].
Nonetheless I take … into account [the] preparedness [of] both [Benjamin Judge and Jara Dix] to give evidence against those persons. Giving evidence against someone you know and in [the case of Jara] Dix, [her] nephew, would not be easy and I accept as a general proposition, that may expose [Benjamin Judge and Jara Dix] to negative attention in the custodial setting.[15]
[15]Judge sentencing remarks [53], [55]–[56].
In relation to Harley Dix, the judge said the following concerning the application of s 5(2H) of the Sentencing Act:
The special circumstances which were originally relied on at [Harley Dix’s] plea relate to [his] cooperation with the authorities. That is s 5(2H)(a) namely where an offender has assisted or given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence.
Firstly, [Harley Dix’s] full admissions to police during [his] interview were relied on. While that is commendable and was important in this matter, I do not believe the intention of the legislation should be interpreted such that anyone who makes admissions in a record of interview is entitled to an exception under s 5(2H)(a).
I do however accept that [Harley Dix’s] level of cooperation with the authorities in that record of interview was important. [He was] the first interviewed. [His] interview largely confirmed what the victim had told police. [Harley Dix] nominated not only [his] own involvement but the extent of involvement with [his] co‑offenders.
The real reliance here under s 5(2H)(a) is that [Harley Dix’s] record of interview was followed by [his] sworn statement confirming and elaborating on the contents of that interview. Further, that in August 2019 [he] made a second statement, and … in October 2019 [he] swore an undertaking to give evidence should any matter proceed to trial.
[The prosecutor] confirmed the prosecution’s intention to call [Harley Dix] to give evidence at any trial for Mr Valli. [Harley Dix has] sworn to do so. I take those matters into account in [his] favour.
Policy considerations confirm that where an offender is prepared to assist the authorities in bringing a co-offender to justice, that offender should receive a discount in sentencing. In assessing the discount to be attributed, I am required to assess the value of [Harley Dix’s] cooperation. In that regard, it is apparent that Mr Valli has already implicated himself in this offending, so [Harley Dix’s] evidence will not be of high value.
Nonetheless I take … into account [Harley Dix’s] preparedness to give evidence. Giving evidence against someone you know, and in [Harley Dix’s] case who is a relation, would not be easy and I accept as a general proposition that it may expose [him] to negative attention in the custodial setting.
I have not reached a conclusion however that [Harley Dix’s] level of assistance in the face of this serious offending is such that it should lead me to impose either a [CCO] or a combination disposition.
…
On return of the extended pre-sentence assessment which I ordered, counsel then relied on s 5(2H)(e) of the Sentencing Act as another reason where an alternative to a term of immediate imprisonment should be imposed in [Harley Dix’s] case; that is counsel submitted that such an alternative was said to be available because of the constellation of circumstances which I have described and which in his submission should amount to a substantial and compelling reason to depart from a sentence of imprisonment. I do not accept that [Harley Dix’s] mild intellectual disability even in combination with the other diagnoses as outlined by Ms Lechner takes [his] case to that level, even in combination with [his] efforts to cooperate with the authorities.[16]
[16]Dix sentencing remarks [58]–[65], [93] (emphasis in original).
The judge stated that, although the timing of Jara Dix’s undertaking to give evidence against Harley Dix and Valli was such that the prosecution had not had time to consider the undertaking, she took it into account in Jara Dix’s favour.[17]
[17]Judge sentencing remarks [54].
The judge found that, although the death of Steven Judge was brought about by the offending against Brown, it constituted extra-curial punishment which should deter Benjamin Judge from involving himself in violent behaviour again, and which ‘moderates to an extent the need for specific deterrence and just punishment’.[18] The judge made similar observations in relation to Jara Dix[19] and Harley Dix.[20]
[18]Judge sentencing remarks [81]–[82], [128].
[19]Judge sentencing remarks [110].
[20]Dix sentencing remarks [96].
In relation to the prospects of rehabilitation, the judge found that they were ‘good’ for Benjamin Judge, ‘very positive’ for Jara Dix and ‘reasonable’ for Harley Dix.[21]
[21]Judge sentencing remarks [85], [123]; Dix sentencing remarks [104].
In relation to remorse, the judge found that Benjamin Judge had expressed genuine remorse but had not shown any victim empathy.[22] The judge said that she could not conclude that Jara Dix’s guilty plea reflected any real remorse or insight into the effects on the victim of the offending.[23] In relation to Harley Dix, the judge stated that his guilty plea could not be equated with an expression of remorse for the victim. She said that this was in part because his cognitive limitations rendered victim empathy difficult and because, like his co-offenders, his focus had largely been on Steven Judge’s death rather than the injuries inflicted upon Brown.[24]
[22]Judge sentencing remarks [87]–[88].
[23]Judge sentencing remarks [111].
[24]Dix sentencing remarks [106].
In relation to Verdins, the judge found that limbs 5 and 6 applied to Benjamin Judge,[25] that limbs 1, 3 and 5 applied to Jara Dix[26] and that limbs 1, 5 and 6 applied to Harley Dix.[27] In the case of Harley Dix, the judge also stated that she took his intellectual disability into account in moderating her consideration of general and specific deterrence, which indicates that she implicitly accepted that limbs 3 and 4 also applied.
[25]Judge sentencing remarks [90].
[26]Judge sentencing remarks [108], [116].
[27]Dix sentencing remarks [86], [87], [92], [108].
In the case of Benjamin Judge, the judge summarised in the following terms the reasons why an immediate term of imprisonment was warranted:
Although I reached a view that the seriousness of this offending warrants a term of immediate imprisonment, I have taken those matters regarding [Benjamin Judge’s] mental health, [his] willingness to assist the authorities, and the extra curial punishment and its relationship to specific deterrence, into account in determining the length both of the head sentence, but more pertinent, the length of the non-parole period.[28]
[28]Judge sentencing remarks [92].
The judge made similar observations in relation to Harley Dix:
Although I sought an extended presentence report and assessment for a [CCO], ultimately I have reached a view that the seriousness of this offending warrants a term of immediate imprisonment not in combination with a [CCO]. However, I take into account [Harley Dix’s] mild intellectual disability and [his] coexisting diagnoses, [his] willingness to assist the authorities, the extra curial punishment and its relationship to specific deterrence as well as [his] prospects of rehabilitation into account in determining the length both of the head sentence, but more pertinent, the length of the non-parole period.[29]
[29]Dix sentencing remarks [109].
In her sentencing remarks relating to Harley Dix, the judge said the following about parity:
Lastly, I am mindful of the issues of parity when dealing with co-offenders. Parity is an aspect of equal justice. There should be no unjustifiable difference in sentences imposed upon similar offenders for similar offending.
The key words are, ‘unjustifiable difference’. That is because parity takes into account, consideration of the offending and [the offenders’] roles in that offending but must also take into account [their] personal circumstances at the time and since. In that sense, equal justice may result in different outcomes.
I have given a great deal of consideration to parity as it applies to [Harley Dix’s] offending in this case. This offending happened at [his] insistence. The text messages which passed between [him] and Jara Dix bear out [his] repetitive requests and pressure of her to take action against the victim. At one point she tells [him] that the relationship is a matter for Starr — in other words, not something [Harley Dix] should get involved in. In that she was quite right. But [he] persisted and she agreed.
There is an argument that [Harley Dix] as the person who instigated and planned this event should receive a higher penalty than [his] co-offenders, despite not actually having carried out the actual violence. As I have found, although [he] may not have known the actual specifics of how the victim was to be hurt, [he] well and truly understood that [Brown] would be taken to the bush and hurt — that was [Harley Dix’s] whole plan. As far as parity is concerned the fact [he] did not carry out the actual violence, in those circumstances, in my view, does not justify a different outcome on the basis of [his] role.
However, I have accepted [Harley Dix’s] Counsel’s submission that I should view [his] actions and behaviour in the light of [his] intellectual disability, and I do so. To an extent that does temper my view, as I have described, of [Harley Dix’s] moral culpability. To that extent, although as I said, [Harley Dix’s] involvement may in fact justify a heavier penalty, in my view, ultimately and my conclusion is that I ought not impose a heavier penalty on [him] than on [his] co-offenders.
In terms of [Harley Dix’s] personal circumstances [his] cognitive capacity does loom large in sentencing [him]. However, both of [his] co-offenders also had their own mental health issues and Verdins applied to both of them. They also had dysfunctional upbringings, in many ways similar to [Harley Dix’s].
[Harley Dix has] prior convictions for violence where [Benjamin Judge and Jara Dix] had no prior appearances at all. [Harley Dix has] been assessed as a high risk of reoffending.
[Jara] Dix was a young offender and now has a young baby.
[Benjamin] Judge suffered the particular consequences of the death of his brother. [Jara] Dix was present when he died. [Harley Dix was] more removed from those events, though still affected.
[Harley Dix, Benjamin Judge and Jara Dix] all pleaded guilty and offered assistance. None of [them] have demonstrated remorse for the victim.
Ultimately, in all the circumstances, I have concluded that there should be no difference in [Harley Dix’s] sentence.[30]
[30]Dix sentencing remarks [110]–[120]. The judge made similar observations in her Judge sentencing remarks [124]–[132].
Grounds of appeal — Benjamin Judge
Benjamin Judge’s ground of appeal is in the following terms:
Error in the sentence first imposed arose from the sentencing judge not:
(a)Making a finding pursuant to s 5(2H)(a) of the Sentencing Act 1991 (Vic) that it was open to impose a term of imprisonment in combination with a [CCO] (a combination sentence) on charge 1;
(b)Considering whether, applying the principle of parsimony, a combination sentence could have achieved all of the applicable sentencing purposes;
(c)Imposing a combination sentence.
At the hearing of Benjamin Judge’s application for leave to appeal, his counsel (who did not draft the ground of appeal) submitted that para (c) incorporated a contention that the sentence was manifestly excessive. This was said to be because the wrong type of sentence was imposed.[31] We permitted the ground to be argued on that basis. However, we observed that the appropriate course is for manifest excess to be the subject of a separate ground.
[31]See Dinsdale v The Queen (2000) 202 CLR 321, 325 [6] (‘Dinsdale’).
Parties’ submissions — Benjamin Judge
Benjamin Judge submitted that there was a plain basis to find, pursuant to s 5(2H)(a) of the Sentencing Act, that the sentencing discretion was not constrained by s 5(2H). He contended that, even if the sentencing discretion was constrained by s 5(2H), there was no prohibition at law on imposing a term of imprisonment on charge 1 and a CCO on charge 2 if that structure served all of the applicable sentencing purposes.
Benjamin Judge argued that a combination sentence would have achieved all of the applicable sentencing purposes for the following reasons:
(a)Benjamin Judge cooperated with police, including giving an undertaking to give evidence. His evidence was of real value given his account contradicted Valli’s account and the prosecution intended to call him to give evidence against Valli and, if his matter went to trial, Harley Dix.
(b)Steven Judge’s death had a very significant impact on Benjamin Judge.
(c)Benjamin Judge pleaded guilty at an early stage.
(d)Benjamin Judge had no prior or subsequent convictions.
(e)The judge found that:
(i) Benjamin Judge’s prospects of rehabilitation were good;
(ii)gaol would weigh more heavily on him than it would on a person in normal health; and
(iii)there was a serious risk of imprisonment having a significant adverse effect on his mental health.
(f)Benjamin Judge regretted and acknowledged the wrongfulness of his criminal misconduct.
(g)The response to the COVID-19 pandemic caused additional hardship in custody.
(h)A CCO could facilitate the interventions recommended by Mr Candlish and Dr Fratti, unlike gaol where the opportunities and incentives for rehabilitation are very limited.
(i)The principle of parsimony in s 5(3) of the Sentencing Act required that the sentencing court must not impose a sentence that was more severe than that which was necessary to achieve the purposes for which the sentence was imposed.
Benjamin Judge submitted that the judge did not make any finding as to whether his circumstances satisfied s 5(2H)(a) of the Sentencing Act. He contended that, although the judge ‘reached a view that the seriousness of this offending warrants a term of immediate imprisonment’,[32] she did not address whether a combination sentence was open and could have achieved all of the applicable sentencing purposes.
[32]See [72] above.
Benjamin Judge argued that the sentence was manifestly excessive because the wrong type of sentence had been imposed.[33] He submitted that the sentence founded an inference of error in the exercise of the sentencing discretion and, therefore, there must have been some misapplication of principle when the sentence was imposed. He contended that, for the reasons set out at [78] above, a different sentence should be imposed, namely, a combination sentence.[34]
[33]Benjamin Judge relied upon Dinsdale (2000) 202 CLR 321, 325 [6].
[34]Benjamin Judge relied upon Criminal Procedure Act 2009 s 281(1).
In oral submissions, counsel for Benjamin Judge argued that the prosecutor’s submissions on the plea that the exception in s 5(2H)(a) of the Sentencing Act was not engaged led the Court into error. She acknowledged that the judge stated in her sentencing remarks for Benjamin Judge that she had taken his cooperation with the authorities into account in his favour.[35] However, she submitted that it could not be implied from those remarks that the judge was acknowledging that para (a) was engaged for three reasons. First, the judge did not state in her sentencing remarks that the exception in para (a) was made out. Secondly, the judge imposed a term of imprisonment which was not in combination with a CCO. Thirdly, the judge was clearer in her sentencing remarks for Harley Dix that she found that the exception in para (a) was not made out.[36]
[35]See [65] above.
[36]See [66] above.
In response to questions from the Bench, counsel for Benjamin Judge conceded that his appeal could not succeed if para 92 of the judge’s sentencing remarks for him could only be read as conveying that the judge considered that a term of imprisonment accompanied by a non-parole period was the sole sentence available in this case.[37] However, counsel contended that this was not a proper reading of that paragraph. That was said to be because there was no indication that the judge had considered a combination sentence or had compared a term of imprisonment with a non-parole period against a CCO or combination sentence.
[37]See [72] above.
Counsel for Benjamin Judge argued that the sentence was manifestly excessive in the light of the following matters. First, the kidnapping involved enticing Brown by trickery, rather than fraud, such that he was not aware he was being kidnapped. Secondly, Benjamin Judge had no prior criminal history. Thirdly, he pleaded guilty at the earliest opportunity. This was said to be of a very high value, particularly given the effects of the COVID-19 pandemic on the criminal justice system. Fourthly, he offered to assist authorities. Fifthly, Brown’s injuries were not that serious — although counsel accepted that the manner in which the injuries were inflicted was serious. Sixthly, the death of his brother was an additional punishing factor. Seventhly, Verdins limbs 5 and 6 applied. Eighthly, he is vulnerable in custody due to his short stature. Ninthly, the principle of double punishment applied. Tenthly, he participated in the offending in a misguided attempt to assist his co-offenders.
The Crown submitted that it was reasonably open for the judge to find that the seriousness of Benjamin Judge’s offending warranted only a term of immediate imprisonment beyond that available in combination with a CCO.
The Crown argued that Benjamin Judge fell to be sentenced for what was properly found to be very serious offending and his moral culpability was high. This was said to be so because of the following matters. First, the offending involved a degree of organisation and planning, including sourcing tools and chains to execute the plan. Secondly, multiple offenders participated. Thirdly, violence was planned and carried out, including by Benjamin Judge kicking, hitting (with his hands and a sledgehammer) and choking Brown. Fourthly, Brown was vulnerable, outnumbered and in an isolated location. Fifthly, the plan was to leave Brown there for two days. Sixthly, the offending had an ongoing and pervasive effect upon Brown.
The Crown contended that proper regard was required to be placed, and was placed, on current sentencing practices. It was said that, prior to the introduction of s 5(2H) of the Sentencing Act and kidnapping being listed as a category 2 offence, sentences of between 7 and 10 years’ imprisonment were not uncommon generally for kidnapping and associated offending.[38]
[38]The Crown relied upon Hanna v The Queen [2014] VSCA 187, [88] and Elmaghraby v The Queen [2016] VSCA 326, [55]–[65].
The Crown argued that the judge properly ordered a degree of cumulation for the intentional infliction of injury by Benjamin Judge on Brown given the proximity of this offending and how it overlapped with the ongoing kidnapping. It submitted that, in the circumstances, the sentence imposed and order for cumulation on charge 2 were modest. That was said to be because intentionally causing injury was a distinct offence and the current offending a serious example of that offence.
The Crown submitted that the judge was correct to find that Benjamin Judge’s assistance to the police was not of high value. It argued that, whilst his assistance was relevant, it did not warrant the imposition of an otherwise inappropriate sentence.
The Crown contended that s 5(2H)(a) of the Sentencing Act does not create a presumption that, whenever assistance is provided with respect to a category 2 offence, an offender must not receive a sentence that did not include a CCO. It argued that s 5(2H) should also not be construed as requiring that an offender who met some of the criteria specified for a relevant offence should avoid a sentence of imprisonment if such a sentence is the only appropriate sentence.
The Crown acknowledged that the judge did not specifically address in her sentencing remarks for Benjamin Judge whether there were substantial and compelling circumstances that were exceptional and rare and that justified a sentence other than a sentence of imprisonment alone. However, it submitted that para 92 of those sentencing remarks demonstrated that, having carefully considered all relevant matters, the judge did not consider any other sentence to be appropriate.[39] It contended that any error in applying the exceptions in s 5(2H) of the Sentencing Act could not have played any role in the sentences imposed. According to the Crown, there was no basis to consider that, in this instance, the judge could have found circumstances of a substantial and compelling nature to justify a CCO whether alone or in combination with a prison term of 12 months or less.
[39]See [72] above.
Decision — Benjamin Judge
In our opinion, no aspect of the ground of appeal relied upon by Benjamin Judge is made out.
The judge’s specific statements in her sentencing remarks concerning s 5(2H) of the Sentencing Act must be read in the context of those remarks as a whole and the detailed discussion on s 5(2H) at the plea hearing. Viewed in that light, it is readily apparent from the sentencing remarks that the judge considered the preconditions in s 5(2H) for the imposition of a CCO or a combination sentence and concluded that, having regard to the seriousness of the offending and all the mitigating factors upon which Benjamin Judge relied, a sentence which included a CCO was not appropriate. This reading is borne out by para 92 of the sentencing remarks, which is set out at [72] above. That paragraph draws together in summary form the judge’s discussion of all of the relevant sentencing considerations and leaves no doubt that, having regard to those considerations, only a term of immediate imprisonment exceeding 12 months with a non-parole period was appropriate for the kidnapping charge.
This conclusion is hardly surprising in the light of the gravity of the offending. The kidnapping of Brown was very serious having regard to the following:
(a)The offence involved premeditation and planning and was based upon the unfounded premise that Brown was mistreating Starr Dix.
(b)Benjamin Judge and Jara Dix enticed Brown to accompany them to an isolated bush area late at night. The fact that trickery, rather than physical coercion or threats, was used does not materially lessen the gravity of the offending. The plan involved gaining Brown’s trust and then betraying that trust.
(c)The offenders intended that Brown be assaulted during the period of the kidnapping.[40]
(d)The offenders planned to leave the injured Brown chained to a tree alone in an isolated bush area for two nights. This intended treatment of Brown was cruel, barbaric and dehumanising. It would have exposed him to serious risks to his health and safety. The plan was only thwarted because Brown was able to escape.
(e)As the judge correctly stated, the offending involved vigilantism. The courts have stated that, even if an offender has a justifiable grievance against a victim, the offender cannot take the law into his or her own hands by harming the victim. Such conduct elevates the importance of general and specific deterrence, denunciation and protection of the community.[41]
(f)The offence was committed in company.
[40]The assaults themselves cannot be taken into account in assessing the seriousness of the kidnapping offence because they are the subject of charge 2.
[41]Hamid v The Queen [2019] VSCA 5, [47]–[49]; Kelly v The Queen [2020] VSCA 171, [46].
As the judge correctly determined that a combination sentence was not appropriate, it was not necessary for her to undertake a detailed assessment of the requirements of s 5(2H) of the Sentencing Act. Indeed, having regard to the correctness of that determination, even if the judge had erred in her consideration of those requirements, the sentence on the kidnapping charge would not be vitiated on the basis of that error.[42]
[42]Barbaro v The Queen [2021] VSCA 61, [36].
However, that is not to say that the judge made such an error. On the contrary, the judge’s sentencing remarks set out at [64]–[65] above indicate that she understood the scope and operation of the requirements of s 5(2H) of the Sentencing Act. It was open to her to conclude that, even though the assistance that Benjamin Judge offered to provide to law enforcement authorities may fall within s 5(2H)(a), it was not of such significance in the intuitive synthesis as to warrant the imposition of a combination sentence.
We accept that the judge did not refer to the exception in s 5(2H)(e) of the Sentencing Act in her sentencing remarks regarding Benjamin Judge. However, there was no realistic possibility that the circumstances upon which his counsel relied could meet the high threshold in s 5(2H)(e) so as to warrant the making of a combination sentence.
As the judge correctly concluded that a combination sentence was not appropriate, it must follow that such a sentence could not have achieved all of the applicable sentencing purposes.
The contention that the sentence for the kidnapping charge is manifestly excessive depends upon acceptance of the proposition that, by failing to impose a combination sentence, the judge imposed the wrong type of sentence. That proposition is untenable having regard to our conclusion that the judge was correct to find that a combination sentence was not appropriate in the circumstances of this case.
The intentionally causing injury offence was serious having regard to its premeditated nature, the time and place at which it was committed, the injuries that Brown sustained and the fact that it was committed in company. The judge was correct to impose a sentence of 2 years’ imprisonment for this offence. A CCO would not have been an appropriate sentencing disposition having regard to the gravity of the offending.
We are satisfied that, in arriving at the individual sentences and the order for cumulation for charge 2, the judge gave appropriate weight to the powerful mitigating factors upon which Benjamin Judge relied. Having regard to the seriousness of the overall offending, in the absence of those mitigating factors, a significantly higher total effective sentence would have been warranted.
As no aspect of Benjamin Judge’s ground of appeal is made out, his application for leave to appeal must be refused.
We now turn to consider the application for leave to appeal by Harley Dix.
Grounds of appeal — Harley Dix
Harley Dix’s grounds of appeal are in the following terms:
[1]That the applicant was sentenced on Charge 2 to the same sentence imposed on the co-accused reflected an error [in] the application of the parity principle, which produced a legitimate and justifiable sense of grievance in an objective observer.
[2]The Learned Sentencing Judge erred in failing to find a special reason not to impose imprisonment on charge 1, pursuant to s 5(2H) of the Sentencing Act, with respect to the constellation of his personal circumstances and Doran undertaking.
[3]That the sentences imposed on Charge 1 and 2, and Order for cumulation on charge 2 were manifestly excessive.
Ground 1 — Harley Dix
Parties’ submissions on ground 1 — Harley Dix
Harley Dix submitted that, in imposing equal sentences on him, Jara Dix and Benjamin Judge in relation to charge 2, the judge misapplied the parity principle. This was said to be because the judge failed to distinguish between the level of knowledge and role of Jara Dix and Benjamin Judge on the one hand and him on the other. He argued that, whilst he entered into an agreement to kidnap and assault Brown, it was a vague plan and his moral culpability for charge 2 was objectively lower than his co‑offenders. This was said to be because the following matters applied to him, unlike his co-offenders:
(a)He did not know that weapons were to be used. The presence of weapons substantially elevated the objective gravity of the offending and the attendant risk of injury. However, he conceded that he had stated he did not care whether weapons were used.
(b)He was not present at the crime scene.
(c)He was not involved in gaining Brown’s trust.
(d)He did not recruit Benjamin Judge.
(e)He was not involved in coaxing Brown into bushland from the vehicle.
(f)He did not engage in post-offence lies/incriminating conduct or seek to minimise his role in the offending.
Harley Dix submitted that his comments that he was the ‘mastermind’ of the plan were hyperbolic and should be treated with caution because of his intellectual disability. He contended that the objective evidence indicated that Jara Dix took the lead role in formulating the detail of the plan, recruiting others and, together with Benjamin Judge, deciding to bring weapons. In oral submissions, counsel for Harley Dix argued that, in the circumstances of his intellectual disability, the judge misapplied the admissions he made.
The Crown submitted that any sense of grievance with respect to the sentence imposed upon Harley Dix relative to his co-offenders was not justifiable when regard was had to the judge’s findings about their respective circumstances and roles.
The Crown argued that it was more than reasonable for the judge to find that Harley Dix was the instigator of, and central to, the crimes despite not being physically present and there being no evidence that he was aware that weapons were to be used. It submitted that he was well aware of what was planned and drove the plan, including being largely responsible for proposing that Brown be taken to the bush and hurt. It contended that his lack of specific knowledge as to precisely how Brown was to be hurt or what items might be used for that purpose did not reduce his responsibility for what occurred. It argued that his moral culpability was high.
According to the Crown, Harley Dix’s submissions regarding his description of himself as the ‘mastermind’ of the plan were ill founded. It contended that those submissions belied the fact that he repeatedly admitted in his interview — and expanded upon in his written statements, which he adopted on oath — that he was the person who initiated the plan and who actively brought others into the plan. It argued that his characterisation as the driver of the offending was also based upon his text messages agitating for the offending.
The Crown submitted that, whilst Harley Dix was entitled to a discount for being candid, his candour did not mean that his role was insignificant. It also submitted that his admissions as to his role did not warrant a discount in accordance with the principles in R v Doran[43] because his role could be established from other evidence, such as the text messages.
[43][2005] VSCA 271.
The Crown contended that the judge paid careful consideration to parity between the offenders and her reasons clearly and expressly articulated the justification for the sentences imposed.
Decision on ground 1 — Harley Dix
In our opinion, the parity ground is without merit.
In paras 110–120 of the judge’s sentencing remarks, which are set out at [74] above, the judge correctly described the parity principle and explained why the application of the principle in the present case warranted Harley Dix being sentenced to the same sentences as Benjamin Judge and Jara Dix. In essence, the judge found that, although it was arguable that Harley Dix should be sentenced to a higher sentence than his co-offenders because he instigated the offending, his mild intellectual disability was a countervailing mitigating factor. It is also relevant that, as the judge noted, whilst Benjamin Judge and Jara Dix did not have a criminal record, Harley Dix had previously committed offences of violence. In our opinion, the judge’s reasoning does not disclose any misapplication of the parity principle.
The following circumstances were also relevant to the application of the parity principle:
(a)Like Harley Dix, his co‑offenders were able to rely upon Verdins principles, had dysfunctional backgrounds, pleaded guilty and offered to provide assistance.
(b)The risk of Harley Dix reoffending was assessed as ‘high’. Whilst his prospects of rehabilitation were found to be ‘reasonable’, this contrasts with the ‘very positive’ prospects for Jara Dix and ‘good’ prospects for Benjamin Judge.
(c)Although Steven Judge’s death affected all of the offenders, it had a more profound effect upon his brother, Benjamin Judge, and Jara Dix, who was with Steven Judge when he died.
(d)Jara Dix was a more youthful offender than Harley Dix — she was aged only 20 at the time of offending compared to him being aged 26 — and she had a three month old baby at the time of sentencing.
We reject Harley Dix’s submission that his statement in his record of interview that he was the ‘mastermind’ of the offending and his other admissions should be viewed with caution because of his intellectual disability. The text messages he exchanged with Jara Dix bear out his role in instigating the offending and support his admissions. Moreover, his intellectual disability was mild and it could not be said that it affected his ability to give a truthful account of his wrongdoing. We note that Ms Lechner concluded that he was not mentally impaired at the time of the offending and knew that the offending was wrong and unlawful.
We also reject Harley Dix’s submission that the fact that he was not aware that his co-offenders would use weapons in assaulting Brown meant that he should have received a lower sentence than them on charge 2.
Harley Dix was a party to an agreement with his co-offenders that Brown be kidnapped and physically hurt. He left it to Benjamin Judge and Jara Dix to decide how they would assault Brown. Although the use of weapons was not expressly discussed with Harley Dix, their use did not fall outside the terms of the agreement because he, in effect, delegated to Benjamin Judge and Jara Dix the means by which it was implemented. As appears from [26] above, in his record of interview, he in effect stated that he did not care whether weapons were used to hurt Brown, expressly telling Jara Dix ‘Look, I don’t care what you do, just make sure it’s done’.
The agreement, to which Harley Dix was a party, was for Brown to be injured and that is precisely what occurred. The fact that the injuries sustained by Brown were in part caused by at least one blow from a sledgehammer does not mean that the injuries fell outside the scope of the agreement or that the moral culpability of Harley Dix, as the instigator of the agreement, was lower than his co-offenders.
Grounds 2 and 3 — Harley Dix
Parties’ submissions on grounds 2 and 3 — Harley Dix
Harley Dix submitted that the judge erred in failing to find that an exception in s 5(2H) of the Sentencing Act warranted the imposition of a sentence other than a sentence of imprisonment on charge 1. He contended that his circumstances enlivened three exceptions in s 5(2H). First, para (a) was enlivened by his full and frank admissions, undertaking to the Court to provide assistance and apology to the Court, thereby warranting a significant discount in accordance with the principles in Doran. Secondly, para (c)(i) and (ii) was enlivened by the contents of Ms Lechner’s report, including the psychometric testing which confirmed he has an intellectual disability. Thirdly, the following factors enlivened para (e), even if they did not enliven paras (a) and (c):
(a)cooperation with and assistance to the authorities within 24 hours of the offending, which was not self-serving;
(b)intellectual disability;
(c)mental health conditions, including the presence of borderline personality disorder traits, depression and potential suicidality;
(d)Bugmy considerations, namely, exposure to family violence, physical abuse, sexual abuse, early exposure to trauma and limited education;[44] and
(e)a favourable assessment from Community Correctional Services and Disability Justice.
[44]Harley Dix relied upon Bugmy v The Queen (2013) 249 CLR 571, 594–5 [43].
Harley Dix argued that these factors, and the circumstances of the case viewed objectively, allowed the judge to depart from s 5(2H) of the Sentencing Act and impose a CCO and justice plan.
Harley Dix submitted that the sentences imposed on charges 1 and 2, and the order for cumulation on charge 2, were manifestly excessive in the light of the factors referred to at [118] above, in combination with the following matters:
(a)He indicated a plea of guilty at an early stage. His early plea had significant utility, especially during the COVID-19 pandemic.
(b)He was on bail from March 2019 awaiting sentence and, during that time, he engaged with a psychiatrist and did not commit any offences nor breach his conditions of bail.
(c)Whilst he has some criminal history, he had not previously received any custodial sentences or been held on remand.
Harley Dix contended that the judge erred in finding that the objectives of general and specific deterrence, just punishment and denunciation could not be achieved in this instance by a combination sentence of a term of imprisonment and an appropriately tailored justice plan and a CCO. He argued that he ought to be re‑sentenced to a combined sentence that allowed for his immediate release and further rehabilitation in the community by way of a CCO and justice plan.
In oral submissions, counsel for Harley Dix submitted that the sentence was manifestly excessive primarily because of his intellectual disability. She contended that, at the plea hearing, the judge had contemplated that all limbs of Verdins might be enlivened, but resiled from this position in her sentencing remarks in holding that only limbs 1, 5 and 6 applied.
Counsel for Harley Dix argued that the judge misstated the facts in finding that he had not demonstrated remorse for the victim. This was said to be because he gave an apology to the Court on 17 October 2019 and his capacity for remorse was impacted by his intellectual disability.
The Crown reiterated its submissions set out at [89] above concerning the effect of s 5(2H) of the Sentencing Act.
The Crown contended that, with respect to para (a) of s 5(2H) of the Sentencing Act, the judge had regard to Harley Dix’s cooperation and assistance, and appropriately considered them not to be at a level that warranted the imposition of a CCO or combination disposition. It argued that no apparent reliance was sought to be placed upon para (c) on the plea. In any event, it submitted that the exception in para (c) was not made out on the evidence. It contended that it was open to the judge to find that the matters raised by Harley Dix did not, in combination, satisfy para (e) so as to justify a sentence other than a sentence of imprisonment alone. The Crown argued that, even if there was any error in applying the exceptions in s 5(2H), it was not evident that it played any material role in the sentences imposed.
With respect to manifest excess in relation to Harley Dix’s sentence, the Crown repeated its submissions set out at [84]–[87] above in relation to Benjamin Judge.
Decision on grounds 2 and 3 — Harley Dix
As appears from [73] above, at para 109 of her sentencing remarks, the judge stated in summary form that, having regard to her earlier discussion of the relevant sentencing considerations, she had concluded that ‘the seriousness of this offending warrants a term of immediate imprisonment not in combination with a [CCO]’. For the reasons we have stated in the context of Benjamin Judge’s ground of appeal, the judge was entirely correct to reach that conclusion. It follows that, even if the judge had erred in relation to her consideration of the requirements of s 5(2H) of the Sentencing Act, that would not result in the sentence imposed by the judge being vitiated by error.
As in the case of Benjamin Judge, we are not satisfied that the judge erred in her consideration of the requirements of s 5(2H) of the Sentencing Act. It was open to the judge to conclude that, even though the assistance that Harley Dix offered to provide to law enforcement authorities may fall within s 5(2H)(a), it was not of such significance in the intuitive synthesis as to warrant the imposition of a combination sentence. In relation to s 5(2H)(c), contrary to counsel’s submission, defence counsel on the plea did not ultimately rely upon that provision. Defence counsel was right not to rely on s 5(2H)(c) in the light of Ms Lechner’s opinion that Harley Dix was not mentally impaired at the time of the offending. As for s 5(2H)(e), it could not seriously be maintained that the matters upon which counsel relied could meet the high threshold in that section.
For the reasons set out at [71] above, we reject counsel’s submission that the judge determined that only limbs 1, 5 and 6 of Verdins applied to Harley Dix.
We also reject counsel’s submission that the judge misstated the facts in relation to Harley Dix’s remorse for the victim. At para 106 of her sentencing remarks, the judge acknowledged that Harley Dix’s cognitive limitations rendered victim empathy difficult. She also stated that Harley Dix and his co-offenders focused largely on the death of Steven Judge rather than the injuries caused to Brown. That statement is amply supported by Harley Dix’s record of interview. As for Harley Dix’s apology to Brown, his precise statement is set out at [27] above. That statement is hardly a firm foundation for a finding of remorse.
It follows that ground 2 is not made out.
For the reasons set out at [93] above, the sentence for the kidnapping charge was appropriate having regard to the seriousness of the offending. It follows that the contention that it is manifestly excessive must be rejected.
As appears from [60] above, the judge described the intentionally causing injury offence as ‘a serious example of that offence’ in the light of the level of premeditation, the setting of night-time in the bush and the nature of the injuries Brown sustained. This description is entirely appropriate. A sentence of 2 years’ imprisonment cannot be regarded as manifestly excessive having regard to the seriousness of the offence and the maximum penalty of 10 years’ imprisonment.
The judge correctly observed that some cumulation was required for the intentionally causing injury offence because it represented distinct offending which involved a sustained attack that resulted in Brown suffering a multitude of injuries. In these circumstances, cumulation of 10 months is unremarkable and not manifestly excessive.
We are satisfied that, in arriving at the individual sentences and the order for cumulation for charge 2, the judge gave appropriate weight to the powerful mitigating factors upon which Harley Dix relied. Having regard to the seriousness of the overall offending, in the absence of those mitigating factors, a significantly higher total effective sentence would have been warranted.
For the above reasons, Harley Dix’s application for leave to appeal must be refused.
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