Kehayias v The Queen

[2021] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0012

BILL KEHAYIAS	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	NIALL and SIFRIS JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2021
DATE OF JUDGMENT:	17 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 261
JUDGMENT APPEALED FROM:	[2020] VCC 2004 (Judge Smallwood)

---

CRIMINAL LAW – Appeal – Sentence – Base sentence 4 years’ imprisonment for recklessly exposing emergency worker to risk by driving – 30 months’ imprisonment, 15 months’ cumulation for reckless conduct endangering persons – 18 months’ imprisonment, 9 months’ cumulation for dangerous or negligent driving whilst pursued by police – Whether judge misapplied principles in Bugmy v The Queen (2013) 249 CLR 571 – Whether individual sentences and orders for cumulation manifestly excessive – Judge gave appropriate weight to applicant’s difficult background – Need for community protection and general and specific deterrence in light of objective gravity of offending and applicant’s prior offending and long standing drug problem – Application for leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Munster with Ms A Renieris	Valos Black & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
SIFRIS JA:

Introduction

1. On 7 September 2020, the applicant pleaded guilty to a number of charges on two indictments and four related summary offences arising from multiple occasions of offending.  Following a plea hearing on 20 and 23 November 2020, the applicant was sentenced on 23 November 2020, in the County Court at Melbourne, as set out in the table below.

Charge	Offence	Maximum	Sentence	Cumulation
Indictment K10025817AC
1	Theft[1]	10 years	30 days
2	Reckless conduct endangering persons[2]	5 years	30 months	15 months
3	Recklessly exposing an emergency worker to risk by driving[3]	10 years	4 years	Base
4	Dangerous or negligent driving whilst pursued by police[4]	3 years	18 months	9 months
Indictment K10025817BD
1	Intentionally damaging property[5]	10 years	30 days
2	Intentionally damaging property[6]	10 years	30 days
Related summary charges
11	Committing an indictable offence while on bail[7]	3 months	30 days
24	Using an unregistered motor vehicle[8]	50 penalty units	Convicted and discharged
31	Unlicensed driving[9]	6 months	30 days
34	Contravening a personal safety intervention order[10]	2 years	30 days
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		3 years and 6 months’ imprisonment
Pre-Sentence Detention:		661 days
6AAA Statement:  9 years’ imprisonment with a non-parole period of 6 years.
Ancillary orders:  Disposal order pursuant to Confiscations Act 1997 s 78(1).  Licence cancellation and disqualification for 18 months pursuant to Sentencing Act 1991 s 89 on charge 3 on indictment K10025817AC. Licence cancellation and disqualification for 12 months pursuant to Sentencing Act s 89(1AA) on charge 4 on indictment K10025817AC.

[1]Contrary to Crimes Act 1958 s 74(1).

[2]Contrary to Crimes Act s 23.

[3]Contrary to Crimes Act s 317AE(1).

[4]Contrary to Crimes Act s 319AA.

[5]Contrary to Crimes Act s 197(1).

[6]Ibid.

[7]Contrary to Bail Act 1977 s 30B.

[8]Contrary to Road Safety Act 1986 s 7.

[9]Contrary to Road Safety Act s 18(1).

[10]Contrary to Personal Safety Intervention Orders Act 2010 s 100(2).

1. On 8 February 2021, the applicant filed an application for leave to appeal against sentence on the following two proposed grounds:[11]

Ground 1:  the sentencing judge misapplied the principles in Bugmy [v The Queen (‘Bugmy’)][12]

Ground 2:  the individual sentences imposed on charges 2, 3 and 4 and orders for cumulation on charges 2 and 4 are manifestly excessive.

[11]An extension of time to lodge an application for leave to appeal was granted on 29 April 2021 on the papers.

[12]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).

1. At the oral hearing of the application, the applicant confirmed that although proposed ground 1 relates generally to the judge’s approach to sentencing, the applicant only challenges the sentences imposed on charges 2–4 on Indictment K10025817AC.

1. For reasons which follow, leave to appeal on both proposed grounds is refused.

Circumstances of the offending[13]

[13]Notwithstanding the applicant’s confined challenge to the sentences imposed on charges 2–4, the circumstances of the offending the subject of all charges is described for context.

1. At about 1:30 am on 13 April 2018, the applicant drove his sister’s Ford Focus into the Westfield Southland car park and then erratically around it.  Shortly after, the applicant drove the car through an exit boom gate, snapping it from its pillar.  This offending gave rise to charge 1 on Indictment K10025817BD of intentionally damaging property and related summary charge 24 of using an unregistered motor vehicle.

1. At about 10:10 pm on 15 December 2018, the applicant drove a Holden Commodore to a 7-Eleven service station in Ferntree Gully to purchase fuel.  The attendant did not turn the petrol pumps on because the vehicle was not displaying any registration plates.  The applicant went into the store, shouted at the attendant, knocking over the cash register and various other items as he left.

1. The applicant returned to the same service station about an hour later, waving money at the attendant from the outside area near the petrol pumps.  The attendant said over the speaker that the applicant needed to pre-pay his fuel.  The applicant tried to get into the store but the doors were locked.

1. A second attendant turned the petrol pump on as the applicant walked back towards the car.  The applicant filled the Commodore with petrol worth $78.42 without paying.  That offending gave rise to charge 1 on Indictment K10025817AC of theft.

1. The attendants reported the incident to the police.  The police approached the service station and saw the Commodore beside the petrol bowsers.  The applicant drove the Commodore from the service station, accelerating quickly onto Burwood Highway without slowing or giving way.  The road was wet and three other vehicles had to brake heavily and swerve to avoid a collision.  The applicant also swerved hard to avoid a collision and lost control, fishtailing.  The Commodore spun 360 degrees and skidded off the road, over a nature strip and into a carpark.  The vehicle spun a number of times before the applicant drove back over the nature strip and onto Burwood Highway in front of another vehicle.

1. The applicant drove off at speed in the right-hand lane travelling west.  He was followed covertly by police.  One of the police officers was driving at 110 kilometres per hour in an 80 kilometres per hour zone, and the applicant accelerated from him, changing lanes two or three times without indicating.  A second police unit estimated that the applicant was travelling at about 150 kilometres per hour.

1. The applicant turned into Scoresby Road, travelling south.  The car crossed double lines to overtake other vehicles, causing two northbound vehicles to swerve to avoid collisions.  The applicant was travelling in excess of 100 kilometres per hour along Scoresby Road, which is a 60 kilometre zone.

1. The applicant then turned right into Anne Road without indicating and headed west.  He had to brake heavily to avoid a collision with another vehicle travelling through that residential area.  He was unable to pass due to parked vehicles, and swerved from side to side along Anne Road, narrowly avoiding a collision with another vehicle.

1. A covert police presence was kept up until they lost sight of the applicant at the intersection of Anne Road and O’Connor Road.  The applicant’s driving between the 7-Eleven and that intersection gave rise to charge 2 on Indictment K10025817AC of reckless conduct endangering persons.

1. On 2 January 2019, the applicant drove the same Commodore to the home of an associate and asked for cigarettes.  He was sent away empty handed.  He returned later that day and drove into the driveway, colliding with a ute belonging to a visitor at the property.  The applicant got out of the Commodore and ran past the front window of the house as the person inside called 000 for assistance.  The applicant jumped onto the bonnet of the Commodore and onto the tray of the ute, yelling and angrily demanding a cigarette.

1. Police arrived as the applicant was being given a cigarette.  The police asked the applicant to sit down to discuss the collision between the vehicles.  The applicant then ran towards a fence and climbed over it before climbing over the roof of the Commodore towards the driver’s side.

1. One of the police officers grabbed the applicant with both hands and tried to pull him out of the car.  The applicant managed to get into the driver’s seat.  Another police officer went to grab the applicant as he repeatedly revved the engine.  The applicant reversed the vehicle at speed with the driver’s door still open and the two police officers in the gap between the car and the door.  Both officers were struck by the door.  One officer, Senior Constable Gatehouse, fell to the ground and tried to hold onto the door but fell underneath it and was dragged down the road for several metres on his back.  That gave rise to charge 3 on Indictment K10025817AC of recklessly exposing an emergency worker to risk by driving and related summary charge 31 of unlicensed driving.

1. The other officer, Constable Hawking, lost his footing and fell to his knees but was pushed outside the path of the car door and was uninjured.  SC Gatehouse was freed as the vehicle hit the gutter and he lay on the nature strip at the side of the property until an ambulance attended.  He suffered extensive bruising and grazes.  The applicant reversed down the street before driving away.

1. Later on that night, another police unit observed the Commodore travelling in Ferntree Gully.  The police followed the Commodore as it turned right onto the Burwood Highway service road, driving on the wrong side of Burwood Highway and into Dawson Street.  The applicant slowed at the entry to the Royal Hotel car park and the police activated their lights and siren.  The applicant then accelerated quickly.  He drove dangerously or negligently whilst being pursued by police, who soon lost sight of him and desisted the pursuit.  This offending gave rise to charge 4 on Indictment K10025817AC of dangerous or negligent driving whilst pursued by police.

1. Also on 2 January 2019, the applicant had attended the home of LG and threatened LG in the driveway.  LG had a personal safety intervention order against the applicant.  LG awoke to discover the front window of his house had been smashed.  This gave rise to charge 2 on Indictment K10025817BD of intentionally damaging property.  LG attended a police station to report the damage.  The applicant followed LG to the police station and back to LG’s home.  When LG arrived home, the applicant pulled up behind him, screamed at LG for reporting him to police and threatened to smash LG’s belongings.  This gave rise to rolled-up summary charge 34 of contravening a personal safety order.

1. The applicant was on bail for a previous offence when he committed the indictable offences on 2 January 2019, giving rise to summary charge 11 of committing an indictable offence whilst on bail.

1. The offending the subject of all charges extended over a period of about 9 months from 13 April 2018 to 2 January 2019.  The offending the subject of charges 2–4 extended over a period of 2 months from 15 December 2018 to 2 January 2019.

1. The applicant was subsequently arrested on 3 January 2019 and declined to be interviewed.

The applicant’s personal circumstances

1. This applicant was 39 at the time of sentence.  He is a single man with no children.

1. The applicant had a very difficult upbringing.  His childhood was dysfunctional.  His father was a heavy drinker and a gambler and was mostly unemployed.  The applicant and his siblings were subject to abuse and violence by their father.  The applicant stated that his father ruled the family with an ‘iron fist’ and recalled the family ‘walking around on eggshells’.  The family moved to a number of places in Melbourne and Victoria.

1. His parents separated when he was about 13 years old.  At that stage the applicant rebelled.  He was expelled from a number of schools and institutions.  His work history is limited.

1. The applicant began using drugs in his mid-teenage years.  His drug use escalated at times of stress and associated depression.  His offending arose in that setting.  The applicant has been diagnosed with a Stimulant Use Disorder arising from chronic and long-standing drug addiction.  His history also indicates periods of Major Depressive Disorder, most recently after the death of his mother in 2014.  The applicant also reported past drug-induced psychosis with extreme paranoia and anxiety, as well as a serious gambling addiction, aggravated by drug use.

1. The applicant also has a past-history of Post-Traumatic Stress Disorder arising following his involvement in a serious car accident when he was 17 years old and a learner driver.  The applicant reported that he suffered very bad depression from the accident and used drugs to treat that depression.  His symptoms slowly dissipated.

1. The applicant reported that he had experienced suicidal thoughts and made three attempts on his life, twice by attempted hanging and once by overdose.  The most recent attempt was in January 2019.  The applicant also reported a head injury at 21 years of age when he was stabbed in the head and a further stab a couple of years ago.  He did not, however, report subjective cognitive change.

1. At the time of the most serious offending, the applicant had been homeless for a year, was living in his car and was abusing methylamphetamine daily.

1. The applicant has no contact with his father or younger half-sister.  He has a good relationship with his brother but is not as close to his two sisters.

1. Since entering custody, it appears that the applicant has focused on his rehabilitation.  He has produced clean samples and completed treatment courses.

Reasons for sentence

1. After setting out the circumstances of the offending, the judge referred to a victim impact statement from SC Gatehouse which described ‘just how dangerous’ the applicant’s conduct the subject of charge 3 was.[14]  The judge said that on the material the applicant was clearly aware of the presence of the officers and the ‘dreadful risk’ in what he did.[15]  The judge then referred to a letter tendered by the applicant, which said that the offending was a ‘split-second decision’.[16]  The judge said that the driving on all occasions indicated clearly that it was not a split-second decision and that the applicant was aware of what was occurring, albeit he was drug affected.

   [14]DPP v Kehayias [2020] VCC 2004, [16] (‘Reasons’).

   [15]Ibid.

   [16]Ibid [17].

1. The judge then referred to the applicant’s plea of guilty at a late stage, noting that there was still a utilitarian benefit for that plea.  While his Honour considered that remorse was ‘problematic’, he said he gave some benefit for the guilty plea.[17]

   [17]Ibid [18].

1. His Honour then dealt with the applicant’s ‘relatively extensive prior history’.[18]  Among other charges, the applicant had spent six months in prison for assaulting police.  He also had a poor history in respect of driving, including a number of charges relating to vehicles and fraudulent use of number plates.

   [18]Ibid [19].

1. The judge proceeded to emphasise the importance of community protection in the applicant’s situation, observing that over a couple of months the applicant placed many people at risk.  In particular, his Honour said that police should not have to put up with such conduct when they are trying to make an enquiry and keep the community safe.  His Honour said further that the offending also called for ‘the application of general and specific deterrence, denunciation and appropriate punishment’.[19]

   [19]Ibid.

1. The judge held that the offending was ‘too serious’ for a community correction order and would also mean that if the applicant was to relapse into drug use then it may be months before the matter was brought back to court.  In the particular situation, his Honour said community protection demanded the protection of a head sentence with parole.  The judge stated that he would give a ‘somewhat less than normal minimum term’ than he would have otherwise given because of the applicant’s behaviour in prison including his clean samples and family support.  In respect of rehabilitation, the judge considered that if the applicant used drugs again his risk of re-offending would have to be ‘high’.[20]

   [20]Ibid [25].

1. The judge then said:

There is a report on file by Carla Lechner, the psychologist;  I have read that.  That contains a history and also indicates the various difficulties that you have.  You did have a very, very difficult childhood and despite being urged to put the provisions or comments in Bugmy into effect in your circumstances I do so and I take into account that you have had a bad background.  But you are nearly 40 years of age at this stage, being 39 as I understand it, and that runs out after a certain period of time.[21]

[21]Ibid [27] (emphasis added).

1. The judge proceeded to outline the applicant’s personal circumstances and then concluded:

There is not much more I can say.  This is a situation which comes down to in my view very dangerous driving indeed and that is exemplified by the fact that two policeman were put in a very precarious set of circumstances.  Only a salutary sentence can signify the danger of what you did and so far as other people are concerned make them aware that if you drive like this and put people at risk like this you are going to receive significant gaol sentences indeed.[22]

[22]Ibid [32].

Proposed ground 1 —Bugmy

1. The applicant submits that the judge failed to properly apply the principles in Bugmy because he erroneously said those principles run out.

1. In Bugmy, the court said:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience.  The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience.  It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment.  Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.  An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[23]

[23](2013) 249 CLR 571, 594–5 [43]–[44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (emphasis added).

1. In Marrahv The Queen, the Court said:

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice.  The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences.  The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.  The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account.  Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.  That is not to say that an offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment.  It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender.  It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[24]

[24][2014] VSCA 119, [16] (Redlich and Tate JJA) (citations omitted) (emphasis added).

1. In Director of Public Prosecutions v Terrick, the Court set out the following propositions which emerged from the authorities:

1.The individual circumstances of an offender are always relevant to sentencing.

2.Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.

3.The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:

(a)       the nature and extent of the disadvantage;

(b)       the nexus (if any) with the offending;  and

(c)the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.

…

8.Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.[25]

[25](2009) 24 VR 457, 468 [46]; [2009] VSC 220 (Maxwell P, Redlich JA, Robson AJA) (citations omitted) (emphasis added).

1. The applicant contends that the High Court made clear in Bugmy that the effects of profound deprivation do not diminish over time and should be given full weight in every sentence, and consequently the judge erred in concluding at para [27] that the applicability of Bugmy runs out.

1. The respondent accepts that the judge’s statement at para [27] was not correct.

1. We agree that the judge’s statement at para [27] is not a correct statement of the principle that arises out of the decision in Bugmy and subsequent decisions of this court referred to above.  However, as will appear, we are satisfied that the judge actually applied the principles in Bugmy in a way that does not reveal any error and that was consistent with how the plea was presented.  In short, the observation that the principles explained in Bugmy ‘run out’, while erroneous, did not affect the sentencing process because the judge did not fail to give full weight to the applicant’s history of disadvantage.

1. In order to understand how the judge dealt with Bugmy, it is necessary to refer to aspects of the reasons for sentence and how the issue of the applicant’s background was dealt with on the plea.

1. In relation to the nature and extent of the offending, the judge said:

This is a situation where over that couple of months’ time frame it was you placed many people at very serious risk indeed ... [B]ut the real danger is that in those circumstances members of the public are not to be put at that risk and, being blunt about it, police should not have to put up with this sort of thing when they are simply trying to make an enquiry and keep the community safe.

Obviously community protection in your particular situation plays an important part in this sentencing process, the offending must be regarded as serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment.

...

This is a situation which comes down to in my view very dangerous driving indeed and that is exemplified by the fact that two policemen were put in a very precarious set of circumstances.  Only a salutary sentence can signify the danger of what you did and so far as other people are concerned make them aware if you drive like this and put people at risk like this you are going to receive significant gaol sentences indeed.[26]

[26]Reasons [20]–[21], [32].

1. Understandably, there is no challenge to the judge’s finding as to the gravity of the offending.  This was very serious offending over a number of separate episodes.

1. The gravity of the offending is also to be assessed by reference to the prescribed maximum sentences.  In relation to charge 3, Parliament has prescribed a maximum sentence of 10 years’ imprisonment.  In relation to charge 2, Parliament has prescribed a maximum sentence of 5 years’ imprisonment.  In relation to charge 4, Parliament has prescribed a maximum sentence of 3 years’ imprisonment.

1. Although the judge considered that remorse was limited, his Honour gave proper and appropriate consideration to the guilty plea.[27]  The judge referred to ‘a utilitarian benefit for that plea of guilty’ and said that it ‘saved what would have been at least one, probably more trials’ and that ‘it is certainly a saving to the community’.[28]  By characterising the plea in this way, the judge gave it sufficient weight.[29]

   [27]Ibid [26].

   [28]Ibid [18].

   [29]See Worboyes v The Queen [2021] VSCA 169, [41] (Priest, Kaye and T Forrest JJA).

1. The judge also gave proper consideration to the prospects of rehabilitation.[30]  In this regard, it should be noted that the judge fixed a shorter non-parole period.

   [30]Reasons [20], [24]–[25], [31].

1. On the plea, the applicant did not submit that his moral culpability was reduced because of his background.  Rather, it was submitted that ‘whilst the upbringing [of the applicant] was not so traumatic that it should be given significant weight in mitigation, it nonetheless set the foundations for the problems that ultimately coalesced at the time of the current offending – ie, homelessness, drug use and gambling problems’.

1. However, before this Court the applicant submits that the judge erred by not giving full weight to the reduction of the applicant’s moral culpability because of his background, in accordance with the principles in Bugmy.  The applicant argues that at the very least the more general approach articulated by the High Court in Bugmy to an assessment of moral culpability applies, that is, that a person raised in an environment of alcohol abuse and violence may be less morally culpable than an offender whose formative years have not been marred in that way.  The applicant accepts that the more specific approach expressed in Bugmy, that is, that an offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence such that their moral culpability for their inability to control that impulse may be reduced, was not argued on the plea and it would be difficult to establish the requisite nexus on the material available.

1. The respondent contends that notwithstanding the judge’s incorrect statement of law at para [27], the approach adopted by the judge in the sentencing exercise was not erroneous.  The respondent submits that the judge took the applicant’s deprived background into account, consistent with how the plea was conducted.  According to the respondent, it was not surprising that the applicant did not submit that his deprived background had a causal connection to his offending.  The only material that could be relied on was Ms Lechner’s psychological report which the respondent says did not address the effect of his background because the applicant was ambivalent about exploring that with her.

1. The respondent submits further that it was open and indeed necessary for the judge to give weight to the consideration of community protection which had the practical effect of decreasing the overall mitigatory weight to be accorded to the applicant’s deprived background.

1. We agree with the respondent’s submissions.  Although the judge referred to Bugmy running out, it is clear the judge took the applicant’s deprived history into account.  The judge did not, in terms, refer to any reduction in moral culpability, but he took into account the applicant’s difficult background in the way urged upon him by the applicant on the plea.[31]  In our view, the submissions made by the applicant on this topic at the plea fairly reflected the qualifications in the material and it was open to the judge to accept it.

   [31]Ibid [27].

1. The judge referred to the applicant’s ‘very, very difficult childhood’ and said that he ‘took into account that [the applicant] had a bad background’.  The judge accepted Ms Lechner’s report.  The judge also said he put the comments in Bugmy into effect.  Given the express statement that he had taken Bugmy into account and the many references to the applicant’s blighted upbringing, the failure of the judge to specifically mention a reduction in moral culpability does not mean that he either failed to apply or misapplied the principles.  We consider that, in the circumstances, his Honour did give appropriate and ‘full weight’ to the applicant’s deprived background.  Of course, that was not the only factor in play.

1. The judge however was most concerned that members of the public ‘are not to be put at risk and ... police should not have to put up with this sort of thing when they are simply trying to make an enquiry and keep the community safe’.[32]  In relation to community protection, the judge went on to say:

Obviously community protection in your particular situation plays an important part in this sentencing process, the offending must be regarded as serious and calls for the application of general and specific deterrence, denunciation and appropriate punishment.[33]

[32]Ibid [20].

[33]Ibid [21].

1. The judge was obviously alive to the conundrum that, when assessing the mitigatory relevance of the applicant’s social disadvantage and any reduction in moral culpability, appropriate weight must also necessarily be given to community protection where general and specific deterrence and denunciation become increasingly important sentencing considerations.

1. In relation to general deterrence and denunciation, the judge said:

There is not much more I can say.  This is a situation which comes down to in my view very dangerous driving indeed and that is exemplified by the fact that two policeman were put in a very precarious set of circumstances.  Only a salutary sentence can signify the danger of what you did and so far as other people are concerned make them aware that if you drive like this and put people at risk like this you are going to receive significant gaol sentences indeed.[34]

[34]Ibid [32].

1. In relation to specific deterrence the judge referred to the applicant’s ‘relatively extensive prior history’, which included assaulting police officers and driving offences.[35]

   [35]Ibid [19].

1. In our opinion, in exercising the sentencing discretion, the judge correctly understood and balanced the applicant’s difficult background and other factors in mitigation against the need for community protection in light of the objective gravity of the offending and the applicant’s prior offending and long standing drug problem.  In dealing with community protection the judge was correct to regard general and special deterrence and denunciation as relevant considerations.  This Court has acknowledged that the inability of an offender to control their violent response may increase the importance of protecting the community from the offender and that it ‘will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[36]

   [36]Marrahv The Queen [2014] VSCA 119, [16] (Redlich and Tate JJA).

1. We consider that, although erroneous, the judge’s observation about Bugmy running out, is best understood as, in effect, a warning that the applicant could not, into the future, rely on Bugmy principles.  That was of course incorrect.

1. For these reasons, there was no failure to sentence the applicant in accordance with the principles in Bugmy.  We reject ground 1.

Proposed ground 2 — manifest excess

1. The applicant submits that the sentences imposed on charges 2–4 on Indictment K10025817AC and the orders for cumulation on charges 2 and 4 are manifestly excessive in view of:

(a)               the applicant’s plea of guilty;

(b)               the applicant’s remorse reflected in his efforts at reform;

(c)               the applicant’s marked progress towards abstinence and rehabilitation in custody;

(d)              the applicant’s deprived background and the principles in Bugmy;  and

(e)               the principle of totality.

1. The respondent relies on the seriousness of the offending and contends that the mitigating factors are less than compelling.  The respondent says that the applicant admitted an extensive criminal history, the judge took into account his personal circumstances, the plea was late and the judge expressed the view that remorse was problematic, the applicant’s prospects of rehabilitation were somewhat guarded and the risk of re-offending was high if he returned to drugs, and that the judge was mindful of totality.  The respondent also refers to current sentencing practices.

1. The authorities make clear that the ground of manifest excess is very difficult to establish.  This Court said in Clarkson v The Queen:

As this Court has repeatedly emphasised, the ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.  That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender.  This is a stringent requirement, difficult to satisfy.  It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance.  Sentencing is not the task of appellate courts, except where clear error is shown.[37]

[37](2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

1. Having regard to the findings made by the judge on the plea, which we have referred to above, we are not persuaded that the sentence, or any of the components are manifestly excessive.  This was serious offending that placed many members of the community in danger.  The conduct that was caught by charge 3 was appalling and exposed the police officers to very serious risk.  The sentence of 4 years, given the conduct and the applicant’s relatively poor criminal record which includes driving offences and assaulting police was open.  The moderating factors that the applicant could call in aid, were not such as to render the term manifestly excessive.  Similarly, the other individual sentences were well within the range open to the judge in the sound exercise of his discretion.

1. In relation to totality, we are satisfied that the total effective sentence, the individual sentences, the orders for cumulation and the non-parole period are all within range.[38]  In particular, the orders for cumulation give proper recognition to the separate offending in relation to charges 2 and 4.

   [38]The applicant’s reliance on the recent decision of this Court in Hutchison v The Queen [2021] VSCA 235 is misplaced. The circumstances that led to a reduction in the sentence on the charge of recklessly exposing an emergency worker to risk by driving from 3 years’ imprisonment to 2 years’ imprisonment were self-evidently very different from this case.

Conclusion

1. For the reasons given, leave to appeal is refused.

---