Kellway (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0095

SEAN KELLWAY (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent
S EAPCR 2023 0014

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants and others.

ROSE DONALD (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023, 28 March 2023
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 109
JUDGMENT APPEALED FROM:	[2022] VCC 661 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Applicants pleaded guilty to negligently causing serious injury to child – Infliction of injuries on four-year-old child over four-month period – First applicant partner of mother of child – Total effective sentence of 6 years and 3 months – Reports that applicant subject to violence as child – Whether childhood deprivation necessarily reduces moral culpability – Open to judge to conclude no reduction – Any reduction offset by other sentencing considerations – Whether sentence manifestly excessive – Offending particularly serious – Whether sentence disparate – Disparity of insufficient magnitude – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Sentence – Application by second applicant (mother of child) for extension of time – Total effective sentence of 3 years and 9 months – Whether applicant inflicted some of the injuries – Open to conclude applicant had inflicted one or more injuries – Whether sentence manifestly excessive – Sentence lenient – Applicant failed to pursue application for leave to appeal over many months – Application for extension of time refused.

Crimes Act 1958, s 24.

Bugmy v The Queen (2013) 249 CLR 571, Director of Public Prosecutions v Herrmann (2021) 290 A Crim R 110, Sabbatucci v The Queen (2021) 98 MVR 256, discussed.

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Counsel
Applicant (Kellway):		Ms A Roodenburg
Applicant (Donald):		Mr J O’Connor
Respondent:		Mr C Boyce KC
Solicitors
Applicant (Kellway):	Victoria Legal Aid
Applicant (Donald):	Nelson Brown Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Background to both proceedings

SENTENCE APPEAL: KELLWAY

Plea hearing

Personal circumstances

Child protection and Austin Health materials

Psychologist’s report and evidence

Reasons for sentence

Ground 1: failure to apply Bugmy

Submissions

Discussion

Ground 2: misconceived discipline

Submissions

Discussion

Ground 3: timing of the plea

Submissions

Discussion

Ground 4: manifest excess

Discussion

Ground 5: parity

Submissions

Discussion

Disposition

SENTENCE APPEAL: DONALD

Reasons for sentence

Ground 1: findings not open

Submissions

Discussion

Ground 2: manifest excess

Submissions

Discussion

Extension of time application

Disposition

EMERTON P
NIALL JA
KAYE JA:

Introduction

On 12 November 2021, Sean Kellway pleaded guilty to negligently causing serious injury to a four-year-old child, Charlie Lynas,[2] in relation to whom he stood in loco parentis. Kellway’s partner, Rose Donald, the mother of Charlie, pleaded guilty to the same charge on the same day.
[2]A pseudonym.
Kellway and Donald were sentenced on 12 May 2022.
Kellway was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C1912761
1	Negligently causing serious injury (contrary to s 24 of the Crimes Act 1958)	10 years’ imprisonment	6 years and 3 months’ imprisonment	N/A
Total Effective Sentence:		6 years and 3 months’ imprisonment
Non-Parole Period:		4 years and 6 months’ imprisonment
*Pre-sentence Detention Declared pursuant to s 18(1) of the Sentencing Act 1991:*		100 days
Section 6AAA Statement:		7 years and 9 months’ imprisonment with a non-parole period (‘NPP’) of 6 years
Other relevant orders:		Nil

Donald was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C1912761
1	Negligently causing serious injury (contrary to s 24 of the Crimes Act 1958)	10 years’ imprisonment	3 years and 9 months’ imprisonment	N/A
Total Effective Sentence:		3 years and 9 months’ imprisonment
Non-Parole Period:		2 years and 6 months’ imprisonment
*Pre-sentence Detention Declared pursuant to s 18(1) of the Sentencing Act 1991:*		56 days
Section 6AAA Statement:		5 years and 9 months’ imprisonment, with a NPP of 4 years and 3 months
Other relevant orders:		Nil

The prosecution case was that between about 22 November 2017 and 19 March 2018, Kellway and Donald negligently caused serious injury to Charlie, who was in their joint care. They repeatedly inflicted injuries on Charlie and failed to take appropriate action regarding his health and welfare, causing him serious injury.
After he was removed from the care of Kellway and Donald on 19 March 2018, Charlie was medically examined and found to have injuries on every limb of his body and on almost every plane of his head and torso. His injuries were identified and documented by forensic paediatrician, Dr Trusha Brys, as follows:
(a)sixteen identified injuries (bruises, scratches and other wounds) to his head and neck, including bruising and scratches to his cheeks and both ears, and a small area of subconjunctival haemorrhage of his right eye;
(b)eleven identified injuries to his trunk;
(c)bruises and several linear scars to his left buttock, a bruise and several linear scratches to his right buttock, genital bruising and a bruise near his anus;
(d)swelling and bruising of his hands on both sides, including healing circular wounds on his fingers and right palm;
(e)four bruises on his upper and lower left arm, two bruises (including a patterned bruise) on his upper right arm and a scratch at his right wrist;
(f)thirteen injuries (bruises, scratches and other wounds) to various parts of his right leg; and
(g)eight injuries to his left leg, including behind his knee.
Dr Brys gave evidence that she could not exclude the possibility that one or two of the injuries might have been accidental. However, in her opinion, given the nature and extent of the injuries, of the more than 60 injuries individually identified, most, if not all, had been caused by the deliberate infliction of force. According to Dr Brys, the extent and nature of Charlie’s injuries suggested he had experienced trauma on multiple occasions. Dr Brys described Charlie’s presentation as one of the worst she had ever seen in terms of the extent and nature of the injuries in over 17 years of treating children and seven years of paediatric forensic medicine.
In addition, Charlie was malnourished. He weighed only 14.4 kg, and was in the 8^thpercentile for his age. He appeared very hungry and was distracted if food was available. He had a distended firm abdomen and his ribs, scapula and clavicle were clearly visible. Both his feet were swollen and his skin appeared loose, especially around his buttocks. While the weight loss was not alleged to be part of the serious injury or due to the criminal negligence of Kellway and Donald, it was presented as relevant to the context of the injuries inflicted upon Charlie and the negligence of his custodians in not stopping, intervening or in seeking help for him.
In March 2021, Charlie was assessed by psychologist, Dr Julianne Read, who described the ongoing psychological and developmental impact of the injuries caused to Charlie as substantial and protracted.
Kellway now seeks leave to appeal his sentence on the following grounds:
1.The judge failed to apply the principle in Bugmy v The Queen.[3]
2.        The judge erred in failing to provide sufficient reasons.
3.        The judge erred in finding that Kellway’s plea of guilty was not an early plea.
4.        The head sentence and non-parole period are manifestly excessive.
5.The sentence imposed breaches the principle of parity, having regard to the sentence imposed on Donald.
[3](2013) 249 CLR 571 (‘Bugmy’).
Donald seeks leave to appeal her sentence on the following grounds:
1. The judge erred in finding that Donald ‘engaged in physical assaults’ of Charlie, had actively caused harm to Charlie, and was ‘directly responsible for some of the assaults’, in circumstances where: (a) Donald was not afforded procedural fairness with respect to those findings; and (b) the findings were not open.
2. The sentence and the non-parole period are manifestly excessive.
Both required an extension of time in which to make their application. Kellway was granted an extension of time on 10 October 2022. We consider Donald’s application for an extension of time below.

Background to both proceedings

At the time of the offending, Kellway was 27 years’ old and Donald was 28. They had been in an intimate relationship since October 2017, a period of under two months before the offending began. Both Kellway and Donald had children from other relationships: Kellway was the father of five children and Donald was the mother of seven children.
Charlie is the eldest of Donald’s youngest three children, whose father is Elijah Lynas. When he was almost two-and-a-half years’ old, Charlie was identified as having developmental delays, which required assessment and attention. Charlie was clumsy, had poor eating and communication skills and, as a 4-year-old, was still not toilet trained. However, he was otherwise happy and healthy. Because of these developmental delays, he was regularly seen by professionals, who did not observe any injuries.
Until October 2017, Donald and Elijah Lynas lived together in Wodonga with Charlie and their other two children. In early October 2017, Donald left Wodonga with the younger two children, telling Elijah Lynas that she was going to Melbourne for a break from their relationship. Charlie remained in Wodonga with his father and another relative.
At this point, Donald commenced her relationship with Kellway. They and the two children Donald had brought to Melbourne moved into the Reservoir home of Donald’s parents.
In late October 2017, the Wodonga office of the Department of Health and Human Services (‘DHHS’) contacted Donald and asked her to take custody of Charlie. Donald and Kellway duly drove to Wodonga to collect Charlie. At the time, he was described as being a happy child and physically healthy. He had no apparent bruises.
Kellway and Donald took Charlie back to Donald’s parents’ house, where they lived for a time. Members of Donald’s family described Kellway’s attempts to take on a father role, which included instances where Kellway responded aggressively to Charlie’s clumsiness, including calling him a ‘fuckin’ feral’. Mr Donald[4] told Kellway not to speak to Charlie in that way, to which Kellway responded that he could do whatever he wanted, as Charlie was his son. After this incident, Kellway and Donald moved out with the younger two children and Charlie remained with Donald’s parents in Reservoir for about four or five weeks. However, on 22 November 2017, Donald attended the Reservoir house and left with Charlie.
[4]A pseudonym.
After they left Reservoir, Donald and Kellway, along with the children, effectively ‘camped out’ in a number of places over several weeks. They spent time in a two bedroom unit with Kellway’s stepfather and stepbrother. They also spent time at the Parkside Inn Motel in Bundoora. Donald would sometimes return to her parents, asking for food and other items. At one point, Charlie was left with Donald’s mother for two days and, in January 2018, Charlie and the younger two children stayed with Donald’s mother for three days.
During the period after they had left Reservoir, Kellway and Donald repeatedly caused injuries to Charlie, either by inflicting injuries directly or by supporting the other to do so. By 19 March 2018, Charlie had suffered the very extensive injuries described. On that day, police officers attended (on unrelated matters) the apartment where Kellway and Donald were living. The officers saw Kellway and Donald asleep together on a mattress in the bedroom, with Charlie curled on the floor asleep next to a baby’s bassinette. His back was exposed to the officers and they saw bruising on his back. The officers notified DHHS.
That same day, Donald contacted her family, expressing concerns that DHHS wanted to take her children. Mr Donald attended the apartment with Donald’s sister, Zara.[5] Mr Donald saw bruising on both sides of Charlie’s face and removed him from the apartment. Later that day, when the Donalds realised the extent of Charlie’s injuries, they took him to the Austin Hospital and contacted 000. Police officers attended the hospital, photographs were taken of the bruising to Charlie’s body and the Victorian Forensic Medical Service was notified. Charlie was transferred to the Royal Children’s Hospital.
[5]A pseudonym.
Kellway and Donald were detained by police and DHHS officers pursuant to the Family Violence Protection Act 2008. The two younger children were taken into the care of DHHS and transported to the Royal Children’s Hospital for observation. Donald and Kellway were interviewed. They were subsequently served with family violence safety notices and released.
From 1 July to 8 September 2018, the police intercepted telephone communications involving Donald. From 30 August to 3 September 2018, police recorded other conversations between Donald and Kellway, and between them and others.
On 30 August 2018, police arrested Donald and took her to Heidelberg Police Station, where she was interviewed. In the course of that interview, Donald said that she had never laid a hand on Charlie but had seen Kellway smack him. She said she lied to the police when she said Kellway did not hurt Charlie and she lied to herself. She would walk into the room and Charlie would be in a state saying ‘Sorry daddy.’ Kellway would say he did not know why Charlie was doing that. Kellway struck Charlie, including on his bottom and to the back of his head. She repeatedly found Kellway hitting Charlie between his bottom and his back with an open hand. At times, Kellway would verbally abuse Charlie, calling him ‘spastic’. She saw Kellway smack Charlie across the face. Kellway used an egg flip on Charlie and she called her father when Kellway broke the handle on Charlie. She saw Kellway pushing Charlie’s head into a pillow.
A conversation that occurred between Donald and Kellway shortly after Donald’s interview is set out in the reasons of the sentencing judge.[6] In that discussion, Kellway made certain admissions, including that he hit Charlie with an egg flip. In subsequent conversations, Kellway was recorded admitting to smacking Charlie but denying that smacking constitutes child abuse:
(a)In the early hours of 31 August 2018, the police recorded Kellway stating that he might have ‘smacked’ Charlie, but he had not committed child abuse.[7]
(b)On 2 September 2018, the police again recorded Kellway stating that he struck Charlie.[8]
(c)On 3 September 2018, the police recorded Kellway stating that he would admit that he ‘smacked’ Charlie, but would not admit to abuse. After stating that he ‘might smack them, and … might go a bit far’, he said, ‘I’ve got a bit of me mum in me’.[9]
[6][2022] VCC 661 (‘Reasons’).
[7]Ibid [31].
[8]Ibid [32].
[9]Ibid [33]. Kellway alleges that his mother was physically abusive towards him when he was a child.
Kellway was interviewed by police on 3 September 2018. In the course of the interview he said that he knew Charlie had bruising, as he had been shown the photos by Donald. Not all of the bruises were caused by him and Donald. There was no child abuse or neglect. They did everything they could for the kids to make them grow into a happy family. Charlie’s injured eye was caused by falling over on a concrete path. Other than Charlie’s eye, he could not remember any injuries. He had no idea how Charlie got his injuries as he would never do that. Donald’s family must be responsible. If Charlie had been bruised like that, he would have taken him to hospital. He never smacked Charlie other than one time on the hand when Charlie went to grab a cigarette.
Kellway was released without being charged.
On 5 September 2018, Donald provided a formal statement, confirming much of what she had said in her interview, including that she saw Kellway hit Charlie and verbally abuse him. Donald said that a couple of days prior to making her statement, Kellway had told her that he knew how the bruises to Charlie’s face had happened, as he had stomped on Charlie’s head and picked him up by the cheeks and pinched them.
Kellway and Donald were arrested and charged on 3 July 2019. Kellway was interviewed and played the recorded conversations. He said it was a ‘set up’ by Donald and denied hitting Charlie with an egg flip. He said he did not lay a finger on Charlie and none of Charlie’s injuries were caused by him. When he was told he was going to be charged, he blamed Donald, saying she was the one who stomped on Charlie’s head and hit Charlie with the egg flip.
Donald was interviewed shortly afterwards and told police that Kellway had just texted her, calling her ‘a dog’ and saying that he was being charged. When the recorded conversations were played to Donald, she said she had seen Kellway use the egg flip once on Charlie. She tried to talk to him and called her father. She said Kellway should be charged and not her.
Each of Kellway and Donald was charged and released on bail.
There was a committal hearing on 30 October 2020, following which Kellway and Donald were committed for trial on multiple charges, including negligently causing serious injury. They each pleaded not guilty.
On 10 June 2021, each pleaded guilty to one charge of negligently causing serious injury to Charlie.

SENTENCE APPEAL: KELLWAY

Plea hearing

On the plea, Kellway relied on quite extensive evidence about his personal circumstances and the difficulties he experienced as a child. That evidence comprised, first, a confidential psychological report prepared by Sandra Cokorilo, psychologist, dated 2 November 2021, which was tendered on the plea; secondly, a package of materials from Austin Child and Adolescent Mental Health Service (‘Austin Health’) in the form of reports from various dates recording Kellway’s contacts with the service as a child; and, thirdly, a package of child protection documents (exhibit L5 on the plea).

Personal circumstances

Kellway was 27 years’ old at the time of the offending. He was 31 years’ old at the time of sentencing.[10] His personal history, as reported by him, is set out in the Cokorilo report.
[10]Reasons, [42].
Kellway’s parents separated when he was an infant. When he was 4 years’ old, his mother re-partnered with his stepfather. He had a positive relationship with his stepfather, ‘but only had a more limited contact in recent years’.[11] He met his biological father when he was 17 years’ old and had contact with him for a couple of years, but then ‘the contact dropped away’.[12]
[11]Ibid [45].
[12]Ibid.
Kellway reported that as he grew up with his mother, she was physically abusive towards him and his siblings. His mother reported he exhibited aggressive behaviours towards his siblings. His older brother, who was intellectually disabled, was placed with his maternal grandmother. Kellway also witnessed violence between his mother and her partner.
Kellway attended Preston East Primary School. In 2001, when Kellway was in Grade 6, he spent a term at the Austin Hospital School Social Education Program and then returned to Preston East Primary School. He then attended Northland Secondary College. He completed Year 11 at Kangan TAFE in Broadmeadows.[13]
[13]Ibid [50], [52].

By the age of 17, Kellway had fathered two children with different partners. He has no contact with either child. He then had a six-year relationship resulting in the birth of three children. That relationship ended in 2015 and Kellway has had no contact with those children since.[14]
[14]Ibid [52].
At the plea hearing, Kellway admitted his prior criminal history. This comprised:
(a)three previous court appearances for property offences of burglary and criminal damage, for which Kellway received non-custodial dispositions;
(b)previous court appearances for violent offending;
(c)a $1,000 fine in May 2011 for unlawful assault and a failure to appear on bail;
(d)a conviction and sentence of three months’ imprisonment (wholly suspended for 12 months) in August 2014 for recklessly causing injury; and
(e)a conviction and $500 fine in April 2016 for recklessly causing injury.[15]
[15]Ibid [43]–[44].
However, Kellway had ‘a reasonably stable work history’, having worked full-time for nine of the 14 years prior to sentencing.[16] He was variously employed as a machine operator, labourer, forklift driver and factory worker.[17]
[16]Ibid [53].
[17]Ibid.
In 2014, Kellway was diagnosed with and treated for testicular cancer. In 2018, he was diagnosed with chronic obstructive pulmonary disease, depression and anxiety. He also has asthma. Throughout his twenties, including the period of his offending against Charlie, he used cannabis and methylamphetamine.[18]

Child protection and Austin Health materials

[18]Ibid [54].

The child protection and Austin Health materials were summarised for the judge in further plea submissions made on behalf of Kellway dated 20 January 2022. The DHHS file commenced in April/May 1994 when Kellway was four years’ old, reporting a notification that Kellway’s mother had been abusing him, including hitting him around the head on at least three different occasions, throwing him against a wall and swearing at him, calling him a ‘fucking little cunt’. He was observed to have a black eye and a red hand mark on his face.
In October 1995, his mother admitted hitting Kellway on the head six months earlier.
Two years later, when Kellway was seven, there were reports of bruising to his lower legs and reported changes in personality. Two months later, there were reports of his older brother refusing to go into the home because of abuse at home.
Three years later, when Kellway was 11, there was a notification in relation to exposure to domestic violence, the likelihood of physical harm and emotional trauma. A year later, when Kellway was 12, DHHS recorded his grandparents expressing concern about the ongoing abuse that Kellway and his sister were receiving from their mother. The grandparents informed DHHS of a pattern of the children phoning them as their mother was being violent and then, after a few days, the mother collecting them and then assaulting them again the following day. Kellway apparently disclosed that his mother hit him at least every second day, sometimes every day, and that she hit both him and his sister. She punched them, hit them, pulled their hair, pushed them and struck them with an egg lifter. He also reported being strangled by his mother and nearly unable to breath. There were scratches and marks on his body.
When Kellway was 14, he was reported to have accessed his mother’s medication and overdosed. When he was 16, he was also reported to have been assaulted by an uncle, which resulted in bruising and cuts to his body. He had been accused of stealing $30 and had been taken down a laneway and kicked in the stomach and legs by two uncles.
The Austin Health records commenced in 1997 when Kellway was seven and concluded in August 2006 when he was 16. They describe Kellway’s early childhood experiences of physical abuse, and him witnessing physical and sexual violence against his mother. They describe him as sad and anxious, as having a high need to please and appease, and being careful about what he says, often pretending that things were better than they were. He is described as being overwhelmed by his mother’s demands due to her epileptic illness and mental state. The records note a long history of physical violence and neglect in the household.

Psychologist’s report and evidence

As discussed, Ms Cokorilo’s report is based largely on self-reporting by Kellway. Ms Cokorilo records that psychometric tests were sent to Kellway for completion but were not returned to her in time for her report. Ms Cokorilo also observed that it was difficult to facilitate the assessment with Kellway as the video was disconnected on two occasions, after which he failed to answer phone calls. Numerous unsuccessful attempts were made to complete the assessment.
Nonetheless, based on Kellway’s self-report, psychometric assessment, clinical presentation at interview and available collateral information, the following diagnoses were indicated:
(a)Major Depressive Disorder (previously diagnosed) in full remission;
(b)Generalised Anxiety Disorder (previously diagnosed);
(c)Post-Traumatic Stress Disorder (‘PTSD’) (previously diagnosed);
(d)Cannabis Use Disorder, severe;
(e)Cluster B (anti-social and borderline) personality traits were also noted.
Ms Cokorilo opined that Kellway’s dysfunctional background, characterised by paternal absence, poor maternal attachment, early exposure to substance and alcohol use and chronic verbal and physical abuse, had compromised his emotional and cognitive development and contributed to the ensuing pattern of maladjustment. She opined that his experience of maltreatment and abuse by his mother was of relevance to his current offending. This conclusion was based on child abuse literature concerning intergenerational transmission of child maltreatment.
Ms Cokorilo referred to what she described as Kellway’s ‘complex and multifactorial clinical profile’, which she said was characterised by ‘marked impulsivity, hyperarousal, affective instability and poor self-regulation’, and she observed that it was associated with increased risk of aggression. She opined that Kellway’s deficits in emotional regulation and impulse control undermined his ability to cope with stressors, and to think clearly and respond calmly.
Ms Cokorilo observed generally that PTSD is associated with greater impulsivity, aggression, negative emotions, and affect dysregulation. Rumination and worry, implicated in PTSD, represent a failure of emotional regulation, impair problem solving and erode healthy information processing. Further, negative thought processes and rumination are known to correlate with higher PTSD severity and reduced empathy. She observed that Kellway’s presentation was further complicated by the presence of depression, which, combined with PTSD, is associated with higher incidence of anger and emotional regulation problems than either disorder on its own. Kellway reported symptoms of depression at the time of offending. Literature reports that the risk of violent behaviour in those with clinical depression was three times higher than in the general population.
Ms Cokorilo considered Kellway’s reduced empathy for the victim in the context of emotional and social deficits arising from PTSD, as impairments in social interactions and relationships are common in PTSD. Ms Cokorilo considered it important to note when understanding this suppression of empathic contagion that Kellway was exposed to chronic and significant family violence until the age of 15.
Ms Cokorilo opined that Kellway’s cannabis abuse ‘may’ also have been relevant to the offending.
As to risk assessment, Ms Cokorilo assessed Kellway’s risk of re-offending to be moderate, on the basis of his prior offending, some of which was violent in nature, and his contravention of previous orders, along with his history of poly-substance use, psychosocial adversity (including unemployment), limited supports, antisocial cognitions, and emotional and personal factors (including impulsivity and poor self-regulation). She stated that some of these risk factors are amenable to treatment and can be managed through a combination of psychological and behavioural interventions and psycho-education programs.
For the purpose of her oral evidence at the plea hearing, Ms Cokorilo had the benefit of the DHHS and Austin Health documents. She was asked whether that material affected her opinion about Kellway. She responded that it did not because he had already provided details of the physical, emotional and verbal abuse that he was subjected to by his mother. If anything, she said, those materials verified the accuracy of some of his statements.
Ms Cokorilo commented on Kellway’s lack of empathy in discussions concerning the offending, which she interpreted in the context of ‘social and emotional deficits’ that can arise from PTSD. She referred to the theory that the earlier protracted trauma he was exposed to could actually reduce capacity to feel empathy and give rise to a tendency towards self-centred interpretations and the externalisation of problems.
Ms Cokorilo was asked specifically about ‘modelling behaviour’ as an effect of childhood trauma. She referred to literature and to different theories explaining the phenomenon, including that a child subjected to aggressive, coercive behaviours and parenting in the form of corporal punishment is likely to perpetrate those same behaviours that have been taught and normalised.
When asked whether Kellway is more prone to aggression and overreacting as an adult because of what happened to him as a child, Ms Cokorilo stated that that response was not always a by-product of child abuse, but in Kellway’s case, that would seem to be a ‘likely explanation’. She confirmed that Kellway’s trauma when he was young compromised his ability to feel empathy, stating ‘that could be one of the explanations’.
According to Ms Cokorilo, it was evident that Kellway lacked empathy and she interpreted that in the context of his PTSD and chronic exposure to trauma, which would have undermined his neurological development as well, giving rise to a ‘deficient empathy response set’ and an inability to relate to others. Moreover, the symptoms of depression and anxiety that he described at the time of the offending could affect cognitions and behaviours.
Ms Cokorilo again opined that, based on the literature and research, when reference is made to reduced capacity for empathy, ‘perhaps’ it would be appropriate to consider Kellway’s early experiences and trauma. The chronic and repeated assault on Kellway’s developing brain and the psychosocial adversity he was experiencing at the time of the offending would have exacerbated some of his mental health symptoms and reduced or compromised his decision-making abilities.
Ms Cokorilo expressed the view that it was likely from the reports that Kellway was suffering from internalising and externalising behaviours linked to his early environment, which was quite invalidating.

Reasons for sentence

After considering the victim impact statement from Charlie’s legal guardian, the judge considered Kellway’s personal circumstances. His Honour noted previous court appearances for violent offending in May 2011, August 2014 and April 2016.
As part of Kellway’s personal history, the sentencing judge recorded that his parents had separated when he was an infant and his mother had re-partnered by the time he was four years’ old. He enjoyed a positive relationship with his stepfather but had only had limited contact with him in more recent years. Kellway had fathered a total of five children himself, with three different partners, but he had no contact or relationship with any of his children.
The judge noted that Kellway reported that his mother was physically abusive to him and his siblings while they were growing up. In respect of the history of DHHS involvement, the judge recorded as follows:
The initial report to [DHHS] was made by your mother when you were seven years old. Your mother reported that you were exhibiting aggressive behaviours to your siblings. Your older brother … was placed with your maternal grandmother. He was intellectually disabled.[19]
[19]Ibid [46].
The judge recorded that the Austin Hospital file was closed in August 1997. At that point in time, Kellway was still attending school regularly. The judge also noted from one of the psychological reports tendered that Kellway and his mother had an unusual relationship, in the sense that they both referred to each other as children. The judge described an interdependence ‘which was unusual’.[20] He then stated:
The contemporaneous reports of violence by your mother to you do not seem to substantiate what you report.[21]
[20]Ibid [48].
[21]Ibid.
The judge recorded that Kellway’s contact with Austin Health ceased in 2003. He spent a term at the Austin Hospital School Social Education Program in Grade 6 before returning to Preston East Primary School, and then attending Northland Secondary College.
On the question of childhood exposure to violence and the interventions of DHHS, the judge summarised:
You were exposed to violence your mother perpetrated against your older intellectually disabled brother. He was removed by DHS or DHHS to the maternal grandparent’s home. You also saw violence between your mother and her partner. This was a constant feature of your formative years.[22]
[22]Ibid [51].
On the question of the application of the Bugmy principles to Kellway, the judge said:
I accept that you have experienced childhood deprivation in the form of violence from your mother and observing violence by your mother against your intellectually disabled older brother. You also experienced violence in your home between your mother and her de facto partner.[23]
[23]Ibid [89].
The judge noted, however, that Kellway had been appropriately referred to the clinic at the Austin Hospital by his mother and that hearing and other assessments had been performed. He also observed that Kellway had completed his education to Year 11 and maintained consistent employment for a period of nine years.
The judge concluded that he was not satisfied that the offending was ‘the effects of profound childhood deprivation as outlined by the High Court in Bugmy’s case’.[24] The judge then said:
Your offending occurred whilst you were using cannabis and methylamphetamine. This fact does not excuse or justify your actions. You have had a difficult childhood where you were, on your report, subjected to some violence by your own mother. Whilst this may explain your conduct to an extent, it does not excuse it. I find there is nothing in your upbringing that reduces your moral culpability for causing serious injury to a four-year-old child over an extended period of four months.[25]
[24]Ibid [91].
[25]Ibid [92].
The judge referred to Ms Cokorilo’s report, noting that Ms Cokorilo had diagnosed Kellway as suffering from Generalised Anxiety Disorder, PTSD and severe Cannabis Use Disorder. She had also observed antisocial and borderline personality traits. The judge set out in full that part of Ms Cokorilo’s report recording Kellway saying that the only reason he was pleading guilty was because the mother of the victim had a recording of him stating that everyone knew he ‘did it’.[26] The judge stated that while the plea of guilty was indicative of remorse, these statements neutralised any genuine remorse on his part.
[26]Ibid [56].
As to the plea of guilty, the judge noted that the charges against both Kellway and Donald were resolved after the committal hearing and that they had pleaded guilty to the one charge. While the plea was finalised after the negotiations, the judge did not accept that it could be described as an early plea. Nonetheless, he recognised that it had obviated the need for Charlie and other witnesses to give evidence and that it had the utilitarian value of allowing for the orderly and effective administration of justice, particularly in the context of the COVID-19 pandemic. Furthermore, the sentencing judge recognised that the pleas were a clear acknowledgement that Kellway and Donald accepted responsibility for their criminal behaviour and recognised that they were willing to facilitate the course of justice in the community. However, he was not convinced that the plea demonstrated remorse on the part of Kellway.
The judge assessed Kellway’s prospects of rehabilitation as ‘fair’.[27]
[27]Ibid [94].
The judge considered current sentencing practices, stating that he had considered Mok v The Queen[28] and Director of Public Prosecutions v Weston.[29] In the first of those cases, the negligence alleged was based on one incident of momentary inattention; in the second, the alleged offending was over a four-day period. His Honour considered this case to be different from those cases: this case involved persistent, consistent and sustained maltreatment of a small child over a period of four months.
[28][2011] VSCA 247.
[29](2016) 262 A Crim R 304; [2016] VSCA 243 (‘Weston’).
Generally, the judge considered the offending to be a very serious example of the offence of negligently causing serious injury. The degree of negligence was high. The duty of care owed to Charlie was a high one, particularly after DHHS had removed him from his biological father’s care and placed him in the care of Kellway and Donald. Kellway stood in the position of a father to Charlie. Both Kellway and Donald had not merely failed to protect Charlie from harm from the other, but had been actively causing the harm, albeit by negligent conduct. This made the breach of duty so grave.[30]
[30]Reasons, [85].
The judge went on to consider the question of delay, accepting that the delay of four years had caused Kellway stress in not knowing what his future held and that he had placed his life on hold.
His Honour concluded that the sentencing principles of general and specific deterrence, just punishment, denunciation of his actions, protection of the community, and his rehabilitation dictated that the only appropriate sentence for Kellway was a term of imprisonment with a non-parole period.

Ground 1: failure to apply Bugmy

Submissions

Kellway submits that extensive evidence was provided to the Court demonstrating that systematic and continual physical abuse had been inflicted upon him throughout his childhood. Kellway submits that in these circumstances, the sentencing judge erred in holding that the principles in Bugmy did not apply. His Honour failed to take into account at all the violence experienced by Kellway as a child as relevant childhood deprivation within the meaning of Bugmy, despite his observation that violence was an essential part of Kellway’s formative years. According to Kellway, had the judge taken into account his childhood deprivation in the form of violence, and applied the principles in Bugmy, the sentence imposed would have been different.
In this regard, Kellway relies on the two ways in which childhood deprivation was said to be relevant to the assessment of moral culpability in Director of Public Prosecutions v Herrmann.[31] It is generally relevant in that the moral culpability of a person who was raised in a community surrounded by alcohol abuse and violence is likely to be less than other offenders who had not been raised in this way; and it may be specifically relevant in that the exposure of a person during formative years to violence and alcohol can explain the offender’s recourse to violence such that the offender’s culpability for the inability to control the recourse to violence is reduced.
[31](2021) 290 A Crim R 110; [2021] VSCA 160 (‘Herrmann’).
Kellway also relies on the statement of this Court in Marrah v The Queen[32] that
[t]he 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. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[33]
[32][2014] VSCA 119.
[33]Ibid [16] (Redlich and Tate JJA) (emphasis omitted) (citations omitted).

Moreover, Kellway contends, deprivation in the specific sense described in Herrmann can have an ‘explanatory nexus’ to the offending or a ‘causative nexus’ to it. The former can explain the conduct; the latter provides that the offending would not have occurred but for the deprivation.
Kellway submits that the judge erred by not properly taking into account the early reports of abuse from the age of four. Moreover, the Reasons contain a series of statements that are inconsistent as to whether the judge accepted that Kellway had experienced violence from his mother. Some parts of the Reasons suggest that Kellway only observed the violence that his mother inflicted on his older brother. In particular, the judge stated that when it came to Kellway’s report of his mother’s violence towards him, ‘[t]he contemporaneous reports of violence by your mother to you do not seem to substantiate what you report’.[34] Instead, the judge noted that Kellway had completed Year 11, had maintained consistent employment for a period of nine years and had been in a relationship for six years. He also noted that the offending occurred while Kellway was using cannabis and methylamphetamine.[35]
[34]Reasons, [48].
[35]Ibid [91].
The respondent submits that in the circumstances of this case it was open to the judge to approach the matter as he did. Despite Kellway having grown up in an immediate domestic environment characterised by drug abuse and violence, he had managed to navigate the world with some success. The evidence also revealed that he had been in receipt of professional support since he was young. Moreover, the nature of the expert evidence relied upon by Kellway in this context was wanting. It fell short of making the necessary connection between the applicant’s childhood experiences and his present offending so as to oblige the judge to mitigate as requested.

Discussion

Kellway has established that he had a difficult and deprived childhood due in large part to his mother’s frailties and the physical violence that she inflicted on him and his brother. He was raised in a dysfunctional household that attracted the attention of child protection workers and clinicians. He was, apparently, also hit with an egg flip.
However, as submitted by the respondent, Ms Cokorilo’s evidence does not establish a sufficient link between Kellway’s childhood deprivation and his appalling offending against Charlie. While Ms Cokorilo states in her written report that Kellway’s own experience of maltreatment and abuse by his mother ‘is of relevance to his current offending’, the balance of her opinion consists largely of generalised statements derived from the literature and research on the consequences of PTSD, and her evidence is expressed in a manner that avoids any firm conclusion about there being a causative link between Kellway’s childhood experiences and his offending. Ms Cokorilo’s oral evidence was similarly non-committal. As senior counsel for the respondent pointed out, her evidence was
framed relevantly in terms of: what ‘can arise’; what ‘may have contributed’; what ‘can also manifest in — in aggression in PTSD’; what ‘could be one of the explanations’; and again, what ‘could be one of the explanations’; the ‘possibility that some of … [the applicant’s] … experiences in terms of what we now know from literature and research may have impacted’; what ‘we believe’; what ‘could be viewed in — in that way’; how ‘perhaps it would be more appropriate to — to consider Mr [Kellway’s] early experiences and — and trauma’; and, how ‘perhaps in — in my professional opinion the — the stresses … etc’.
That evidence stands in contrast to the evidence of the causative connection that was available to the offender in Herrmann. In that case, a forensic psychiatrist, Dr Carroll, opined that the offender had spent his infancy in an environment that was ‘unsafe, unpredictable and unresponsive to his basic needs’.[36] As a result, the offender’s ‘fundamental socio-emotional needs were not met in his very early years’, and the ‘foundational building blocks of normal personality functioning were simply never established’.[37] As a result of the offender’s childhood environment, ‘enduring deficits developed in his personality’.[38] Dr Carroll identified four deficits which added up to ‘a severe personality disorder with very significant impairment in [the offender’s] functioning’.[39] Dr Carroll was of the opinion that ‘there was a clear causal nexus between the disorder and the offence’.[40]
[36]Herrmann (2021) 290 A Crim R 110, 125 [63] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.
[37]Ibid.
[38]Ibid 125 [66] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
[39]Ibid 124 [58] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
[40]Ibid 126 [72] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
Dr Carroll’s evidence in Herrmann explained — in terms that were described as ‘illuminating’ by this Court[41] — how a direct causal relationship could be drawn between that particular offender’s background and the commission of his offending. No such relationship is discernible in the evidence of Ms Cokorilo.
[41]Ibid 127–8 [81] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
That is not to say, however, that Kellway’s moral culpability for the offending may not be assessed having regard to his disadvantaged childhood. The High Court expressed the different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability. As this Court explained in Herrmann:[42]
[42]Ibid 118–19 [36]–[38] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
The first — more general — expression was as follows:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[43]
[43]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2013] HCA 37.

The second — more specific — expression was in these terms:
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.[44]

Importantly, the High Court [in Bugmy] also 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. 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.[45]

[44]Ibid 595 [44] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[45]Ibid 594–5 [43]–[44] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

When applying the general approach, it is unnecessary to prove a direct nexus between the disadvantage and the offending. In Herrmann, the Court explained:[46]
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. As Victoria Legal Aid pointed out in its helpful submission as amicus curiae, ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’[47] reflects the principle of equal justice. As Dawson and Gaudron JJ said in Postiglione v The Queen:
Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.[48]
[46]Herrmann (2021) 290 A Crim R 110, 121 [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.
[47]Bugmy (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2013] HCA 37.
[48](1997) 189 CLR 295, 301.
The Court continued:
It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender’s formative years. As the present case graphically illustrates, childhood trauma can permanently damage — and seriously distort — a person’s view of the world around them and their understanding of social norms.[49]
[49]Herrmann (2021) 290 A Crim R 110, 121 [46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.
However, it is necessary to note that those circumstances may not necessarily mitigate the sentence imposed on an offender. In Bugmy, the plurality noted that an offender’s deprived background does not necessarily have ‘the same (mitigatory) relevance for all of the purposes of punishment’.[50] For instance, an offender’s childhood exposure to extreme violence and alcohol abuse may explain their recourse to violence when frustrated and reduce their moral culpability for their inability to control that impulse. But their inability to control that impulse ‘may increase the importance of protecting the community from the offender’.[51] Moreover, this Court in Sabbatucci[52] said:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.
[50](2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2013] HCA 37.
[51]Ibid.
[52](2021) 98 MVR 256, 259 [6] (Maxwell P and Emerton JA); [2021] VSCA 340.
A deprived childhood and exposure to violence at a young age does not necessarily result in a reduction in moral culpability for offending as an adult in accordance with the general approach described in Bugmy. In this case, it is necessary to pay particular attention to the nature and circumstances of the offending when considering the impact of childhood disadvantage on Kellway’s moral culpability.
The judge did not ignore Bugmy and it cannot meaningfully be said that he failed to apply it. The judge’s conclusion that the applicant’s background afforded no reduction in moral culpability was an assessment that was open to him to make on a topic that is inherently evaluative. Kellway’s offending was based on criminal negligence, the essence of which involved a criminal departure from the standard of care owed to the vulnerable boy in his care. The gross extent of the departure and the consequences for the child made the offending particularly serious. Kellway’s conduct itself involved a very high degree of blameworthiness. It occurred over a period of four months and involved the repeated and cruel mistreatment of a small and vulnerable child in respect of whom he stood in loco parentis. Kellway was not incapable of exercising rational thought and moral judgement. He did not suffer from a severe personality disorder or a seriously distorted world view like Mr Herrmann. Notwithstanding his difficult childhood, he had been able to maintain a reasonably stable life, at least in regard to his employment. He did, however, engage in drug use, and it may reasonably be inferred that his negligent conduct, and the complete absence of moral judgment during the relevant period, reflected this fact.
The judge adequately expressed the reasons why he did not accept that the principles in Bugmy applied to the case. In our view, it was open to the judge to conclude that Kellway’s moral culpability for repeatedly hurting Charlie, and for doing so deliberately over a protracted period, was not diminished by reason of his childhood disadvantage.
Moreover, in our view, any diminution in moral culpability would be offset by other sentencing considerations, reflecting the overriding need and desire for the community to protect its children. Despite being characterised as ‘negligent’ rather than as intentional or reckless, Kellway’s offending demanded strong denunciation. While the infliction of ‘serious’ injury may have been unintentional, the individual acts of violence inflicted on Charlie were deliberate. General deterrence and community protection were also very important sentencing considerations.
Ground 1 is not made out.

Ground 2: misconceived discipline

Submissions

Kellway submits that his offending comprised acts of ‘misconceived discipline’. The basis of his plea was not that he ‘intended to inflict any greater trauma than the physical injuries inflicted’, but that he was negligent for failing to advert to this possibility. He submits that the judge failed to consider this distinction and that, accordingly, there was a real possibility that the judge may have incorrectly sentenced Kellway on the basis that he intentionally or recklessly inflicted the injuries.
Alternatively, Kellway submits that the judge failed to provide reasons for rejecting his submissions, or about his liability in negligence generally. Such a failure is an error of law.

Discussion

There is no substance to ground 2. The submission that the Kellway’s acts merely constituted ‘misconceived discipline’ of a vulnerable 4-year-old child has no merit whatsoever. The nature and number of the injuries, and the circumstances in which they were inflicted, contradict such a proposition. It did not need to be expressly addressed by the judge.
It was not contested that the injuries inflicted upon Charlie were inflicted intentionally. The Prosecution Opening recorded Dr Brys’ opinion that ‘given the nature and extent of injuries (more than 60 individually identified), most, if not all, had been caused by the deliberate infliction of force’. The cumulative effect of the injuries constituted the ‘serious injury’ to which the negligence applied.
Kellway pleaded guilty to causing ‘serious injury’ negligently. It was open to the judge to sentence him on the basis that the individual injuries were inflicted intentionally but the combined effect of such infliction was negligent insofar as that effect constituted serious injury. The judge made appropriate findings as to the basis of negligence, namely, consistent, persistent and sustained maltreatment of Charlie over a period of four months. The judge did not elevate the charged culpability above the level of negligence.
Ground 2 is not made out.

Ground 3: timing of the plea

Submissions

Kellway submits that the judge erred in not recognising his plea of guilty as an early plea. He was initially committed on more serious charges. After the committal hearing, the parties’ lawyers discussed the proposed charges and the basis of the plea, and the Office of Public Prosecutions obtained further medical evidence. The matter resolved following further discussions. Kellway submits that a guilty plea will not be late when, as in this case, it is made to a lesser offence shortly after the prosecution discontinues a more serious charge or where the offender pleads guilty as soon as a charge is amended to reflect the proper factual basis or particulars of the offending. He submits that, had the sentencing judge correctly held his plea to be an early plea, the sentence would not have been as long.

Discussion

In relation to the timing of the plea, the judge said:
A committal was conducted in this matter, and the charge against you both were resolved after that committal hearing. You have pleaded guilty to this charge. Whilst the plea was finalised after the negotiations, I do not accept that it could be described as an early plea in this case.[53]
[53]Reasons, [75].
Kellway indicated an intention to plead some time after the committal. The question is whether it was realistic or practicable, in the context of the case, for Kellway to have pleaded guilty to the offence of negligently causing serious injury at any earlier stage of the proceeding.
The judge was correct to find that the plea was ‘not … an early plea’. It was made two years after Kellway was charged with negligently causing serious injury. While he was also charged with other more serious offences, he could have pleaded guilty to the (lesser) negligence charge before committal.
In our view, there was no good reason for him not to have done so. The physical injuries sustained by Charlie, taken together, were unarguably serious injuries, notwithstanding that the physical injuries were not themselves permanent. The fact that a report on the psychological ramifications of the abuse on Charlie was subsequently obtained does not change this position.
Ground 3 is not made out.

Ground 4: manifest excess

Kellway submits that it was not reasonably open to the judge to impose the sentence of 6 years and 3 months’ imprisonment, if proper weight had been given to all relevant factors. He submits that the sentence is manifestly excessive given the degree of seriousness of the injury caused to Charlie. While the degree of negligence was high, the offending ‘has strong elements of misconceived discipline’ by someone who was emotionally and mentally ill-equipped to perform a parenting role and with limited awareness of the potential harm he might be causing.
Further, it is submitted, the judge gave no or insufficient weight to significant subjective factors of Kellway’s personal circumstances, in particular, his experience of violence as a child.
Kellway also points to current sentencing practice and, in particular, the case of Weston, which resulted in a sentence (on appeal) of 3 years and 9 months for negligently causing serious injury to a newborn infant who was shaken and 6 months for recklessly causing injury to her three-year-old sister by striking. A non-parole period of 2 years and 6 months was imposed. The offending in Weston took place over a four-day period but there was a history of shaking and rough handling of the victim by the offender. There was a risk of permanent brain injury. While the offender in that case had a dysfunctional upbringing and was exposed to violence, the offending had nothing to do with discipline. This Court agreed with the sentencing judge who found that his deprived upbringing did not reduce his culpability for causing injury to a child and, as he had other children, he was aware of the consequences of what he was doing. Therefore, his culpability was said to be very high.

Discussion

The injuries in this case, while not individually ‘serious’ injuries, were the result of the deliberate infliction of force over a period of four months. There were a large number of injuries, such that the victim’s body was covered in bruises and abrasions. The judge took care to describe the injuries in some detail. The child victim was four years’ old at the time of the offending. His presentation was described by Dr Brys as one of the worst she had ever seen, in terms of the extent and nature of the injuries, in over 17 years of treating children and seven years of paediatric forensic medicine. Furthermore, the injuries were inflicted upon the victim when he was in an ‘increasingly vulnerable state’, having been denied appropriate nutrition and having ‘lost significant weight’.[54] As the judge also noted, ‘[t]he psychological impact on [the victim] is substantial and will be protracted’. Kellway stood in the position of parent to the victim.
[54]Ibid [23].

The judge assessed this case as a ‘very serious example of the offence of negligently causing serious injury’ and the degree of negligence as ‘high’.[55]
[55]Ibid [82].
The sentence is stern. However, the offending was particularly serious. The sentencing purposes of denunciation and general deterrence should be given particular weight in cases such as this. It is the duty of the Court to ensure that sentences imposed for such offending are sufficient to deter other persons from engaging in the kind of reprehensible and cowardly conduct engaged in by Kellway.
In these circumstances, current sentencing practice is of limited assistance.
Ground 4 is not made out.

Ground 5: parity

Submissions

Kellway submits that the sentence infringes the parity principle in that, in all of the circumstances, the sentence is excessively disparate from the sentence imposed on the co-accused Donald, giving rise to a justifiable sentence of grievance.
Kellway accepts that their different roles, different levels of remorse and different criminal history means that some level of disparity between his sentence and Donald’s is appropriate. He accepted primary responsibility for the physical acts, he was found to have less remorse than Donald and he had prior convictions for violence, whereas Donald had no prior convictions. However, in circumstances where the co-accused were held to be equally culpable, albeit having different roles at different times over the four-month period that led to the combination of injuries resulting in a ‘serious injury’, and notwithstanding the different mitigatory matters raised for each, the disparity between the sentences gives rise to a justifiable sense of grievance.
Kellway relies on the fact that he was not the biological parent of Charlie, even though he was in loco parentis, and he did not share the biological connection with Charlie that Donald did. He also had childhood disadvantage and physical health issues to call upon in mitigation. He accepts that the other matters raised in mitigation by the two co-accused were relatively similar. It was the first time in custody for both of them. Both were assessed as having fair prospects of rehabilitation and they pleaded guilty at the same time. They both experienced the same delay of four years; the drug use and the circumstances of the way in which they lived at the relevant time was the same; both had been diagnosed with PTSD. Donald had available to her Verdins 5 and 6,[56] while Kellway had available to him childhood disadvantage, depression and anxiety and physical health issues.
[56]See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102 (‘Verdins’).
Kellway submits that his prior convictions should not carry much weight. He has prior convictions for recklessly causing injury from 2014 and 2016. Both cases were heard in the Magistrates’ Court. For the first, he received a sentence of 3 months’ imprisonment, wholly suspended for 12 months; for the second he received a $500 fine. According to Kellway, they were in a very different category from the current offending.
Accordingly, it is submitted, a difference on the head sentence of 2 years and 6 months and a difference of 2 years on the non-parole period is a disparity that is outside the range that would be expected, and is excessive, given the many matters raised in Kellway’s favour.

Discussion

The purpose of parity in sentencing is to ensure consistency in punishment.[57] As Kaye AJA (as his Honour then was) said in Dawid v Director of Public Prosecutions, ‘the principle of parity is based on the broad principle of equal justice’.[58] Significant disparities in sentences ‘should be capable of a rational explanation’.[59] However, that is not to say that there will be a ‘scientifically precise answer to the quantification of disparities between offenders’.[60] The assessment of the amount of disparity between offenders is ‘[u]ltimately … an evaluation based on impression’.[61]
[57]Abdou v The Queen [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA) (‘Abdou’). See also Green v The Queen (2011) 244 CLR 462, 473 [28] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49; Nipoe v The Queen [2020] VSCA 137, [38] (Maxwell P, Niall and Emerton JJA).
[58][2013] VSCA 64, [43] (‘Dawid’).
[59]R v Tien [1998] VSCA 6, [40] (Tadgell JA).
[60]Ah-Kau v The Queen [2018] VSCA 296, [51] (McLeish and T Forrest JJA).
[61]Ibid.
A ground of appeal complaining about disparity should be approached within the same analytical framework as the ground of manifest excess.[62] As this Court said in Barbaro v The Queen:
[T]he question for consideration is whether it was reasonably open to the sentencing judge to differentiate — or fail to differentiate — between the co-offenders in the way he/she did, if proper weight were given to the similarities and differences between them as regards culpability, criminal record and personal circumstances.[63]
[62]Barbaro v The Queen (2012) 226 A Crim R 354, 371 [63] (Maxwell P, Harper JA and T Forrest AJA); [2012] VSCA 288.
[63]Ibid 371–2 [63] (Maxwell P, Harper JA and T Forrest JA).
For an appellate court to intervene on the basis of disparity, the disparity must be ‘“marked” or “manifest” and such as to produce a legitimate and justifiable sense of grievance in the objective observer’.[64] The question whether there is such a sense of grievance depends on whether there were reasonable grounds for differentiation (or lack thereof) between the co-offenders.[65] As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’[66]
[64]R v Mercieca [2004] VSCA 170, [17] (Winneke P).
[65]Abdou [2015] VSCA 359, [62] (Redlich and Beach JJA, Beale AJA).
[66](2001) 207 CLR 584, 608 [65] (emphasis in original); [2001] HCA 64.
One differentiating factor may be the role the co-offenders played in the offending. A co-offender who is the principal offender may receive a heavier sentence than another co-offender.[67] Another differentiating factor is remorse. A co-offender who displays no remorse may receive a heavier sentence than a co-offender who demonstrates some remorse.[68]
[67]See, eg, Dawid [2013] VSCA 64, [46] (Kaye AJA); Marku v The Queen [2012] VSCA 51, [48]–[49] (Williams AJA).
[68]See, eg, Case (a pseudonym) v The King [2023] VSCA 12, [150]–[154] (Emerton P, McLeish and Taylor JJA).
There is some substance to ground 5. However, the difference between the sentence imposed on Kellway and the sentence imposed on Donald is not of sufficient magnitude — or so manifest — as to produce a legitimate and justifiable sense of grievance in the mind of an objective observer. The sentence imposed on Kellway was stern. As we will discuss, the sentence imposed on Donald was fairly lenient. The difference may be explained by the difference in the roles that they played in the infliction of injury. It was accepted that Kellway was responsible for the infliction of most of the physical injuries. Donald’s culpability lay principally in her failure to stop Kellway tormenting her child. Furthermore, Donald had no prior criminal history.
Importantly, the judge found that Donald felt genuine remorse and that Kellway did not. Given the nature of the offending, this was an important difference between Kellway and Donald. It was relevant, among other things, to their respective prospects of rehabilitation and the degree to which community protection features as a sentencing consideration.
Ground 5 is not made out.

Disposition

None of the grounds of appeal is made out. Leave to appeal will be granted but the appeal will be dismissed.

SENTENCE APPEAL: DONALD

Donald’s personal circumstances are set out in three expert reports tendered on the plea:
(a) reports of Laura Fleming dated 10 November 2021 and 26 April 2022; and
(b) a report of Linda Borg dated 19 April 2022.
Ms Fleming recorded that Donald was one of five girls in her family and that she has three older half-brothers who are her father’s children. She described her home life to Ms Fleming as being good, stating that she had ‘happy memories’.
Donald has had seven children, the first of whom was born in 2005 when Donald was 15 years’ old. That child was adopted out at birth. Donald had three children from her first significant relationship. Two of those children live with their father and the third child died at the age of three weeks. Donald reported that she commenced drug use at that time to deal with her grief. Donald’s second relationship was with Elijah Lynas, the father of Charlie. As previously mentioned, Donald had two more children with Elijah Lynas.
Donald admitted using cannabis and methylamphetamine at the time of the offending. She has a subsequent charge for drug possession. However, she had no prior criminal history.
Ms Fleming found that Donald presented with symptoms of PTSD, Major Depressive Disorder and several Substance Use Disorders. At the time of offending, Donald reported symptoms of PTSD which she self-medicated through substance use. However, her depressive symptoms were thought to have commenced subsequent to the offending period. According to Ms Fleming, the PTSD symptoms are relevant to the offending as they can fluctuate in intensity and frequency but are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues or substance use. Donald’s complex profile is further complicated by her history of alcohol and poly-substance use, which is thought to have developed as a form of self-medication for her untreated PTSD and depression. Donald’s self-medication with methylamphetamine during the period of offending heightened her risk of engaging in impulsive and reckless behaviour, further impairing insight, decision-making and judgment, as well as exacerbating her underlying mental health issues. Ms Fleming opined:
It seems clear that at the time of offending Ms [Donald] would have had difficulty to think clearly, make calm and rational choices and appreciate the wrongfulness and consequences of her conduct. It is likely she would have exerted more control over her behavior had she not been struggling with exacerbation of her PTSD symptomatology. Despite this, Ms Donald accepted the seriousness and wrongfulness of her actions or inactions in relation to the offending.
Ms Fleming recommended a neuropsychological assessment.
Dr Borg, a clinical neuropsychologist, prepared a neuropsychological assessment. Dr Borg identified a language disorder, but did not consider that Donald’s cognitive difficulties appreciably impacted her mental capacity or to be causal factors of or contributory factors to her offending. However, her history was suggestive of a degree of dependency in her relationships and a tendency for self-centredness in her thinking and responses, suggesting that she may consider her own needs or the needs of her partner to be of primary significance, as opposed to the needs of her children.
In her second report, following the assessment by Dr Borg, Ms Fleming also commented on Donald’s tendency to externalise blame to others while being dependent on their support. She concurred with Dr Borg that there was no causal link to her offending. According to Ms Fleming, Donald has developed dependent traits on partners, likely due to her experiences of trauma and difficulty with verbal communication to communicate her needs. In addition, her dependence on housing associated with Mr Kellway may have reduced her ability to feel she had agency to adequately support the needs of her child. Furthermore, while she externalised blame to agencies which she believes did not support her adequately, she continued to accept responsibility for her actions.

Reasons for sentence

The judge recognised that Donald was not the person principally responsible for the assaults on Charlie, but sentenced her on the basis that she was directly responsible for some of the assaults. For the assaults perpetrated by Kellway, Donald stood by and did nothing. The judge said that it ‘[beggared] belief’ that she could be complicit in injuring her own child.[69]
[69]Reasons, [96].
As he had for Kellway, the judge assessed Donald’s offending to be a very serious example of the offence of negligently causing serious injury. The degree of negligence was high. The duty of care that Donald owed to Charlie was a high one, particularly after DHHS had removed him from his biological father’s care and placed him into her care and the care of Kellway. She had not merely failed to protect Charlie from harm by Kellway, but she had also been actively causing harm, albeit by negligent conduct. This made her breach of duty grave.
The judge accepted that Donald was remorseful and felt shame for her offending. However, she also sought to blame others for the circumstances giving rise to her offending. It was necessary for her to accept that she could have put a stop to the offending against Charlie at any time. However, both she and Kellway chose to continue with it for four months until police intervention and the intervention of Donald’s father. They were caught up in drug use and the cycle and effect that it has on people.
The judge did not accept that Donald’s upbringing or the fact that she is of Aboriginal background enlivened the sentencing principles in Bugmy. However, he did accept that her subsequent depression would make her time in custody more burdensome and the Verdins principles were enlivened to that extent.
The judge noted the delay of four years between the police interview and sentence and the fact that Donald had one charge of drug possession while she was on bail. She had experienced stress awaiting the outcome of the proceedings and had developed a diagnosed depression in that time. His Honour took the effect of delay into account in fixing the sentence
The judge observed that Donald had no prior convictions while her co-accused, Kellway, had prior convictions for violence. Donald’s active part in the violence against her son was less than that of Kellway. These factors meant that an appropriate sentence for each would not be the same. In short, the roles of each of them in the offending and the personal circumstances between Donald and Kellway were different. Nonetheless, the only appropriate sentence was a term of imprisonment with a non-parole period to satisfy the sentencing principles of general and specific deterrence, denunciation of Donald’s actions and protection of the community and just punishment.
The judge also noted that both Ms Fleming and Ms Borg opined that Donald externalised blame to agencies who did not support her when looking after Charlie and other children during the period of offending. However, the judge stated that the applicant accepted ‘responsibility for [her] offending or [her] part in the offending’.[70]
[70]Ibid [68].
As a result of her substance abuse disorder, the judge assessed Donald’s prospects of rehabilitation as fair. His Honour stated that her chances of rehabilitation would improve if she remained drug free upon release.[71]
[71]Ibid [102].
In light of Donald’s culpability and the extent of the injuries inflicted, the judge held that the only proper sentence was a term of imprisonment.[72] A term of imprisonment with a non-parole period satisfied the sentencing principles of general and specific deterrence, denunciation of Donald’s actions, protection of the community and just punishment.[73]
[72]Ibid [97].
[73]Ibid [104].

Ground 1: findings not open

Ground 1 is that the sentencing judge erred in finding that Donald ‘engaged in physical assaults’, actively caused harm to the victim, and was ‘directly responsible for some of the assaults’ in circumstances where:
(a)the applicant was not afforded procedural fairness with respect to those findings; and
(b) the findings were not open.

Submissions

Donald submits that all parties accepted at the plea hearing that Kellway perpetrated all of the physical acts. She contends that the sentencing judge’s failure to indicate he might not accept the agreed position was a breach of procedural fairness. She argues that relief in such a case should only be refused ‘where a court can say that had such an opportunity been afforded, it could not have yielded a different result’.[74]
[74]Quoting Davey v The Queen [2010] VSCA 346, [29] (Redlich JA).
Donald also submits that it was not open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant had herself physically assaulted the victim, and in doing so actively caused the harm. Donald points to her record of interview in which she stated that she ‘never laid a hand on Charlie’.
Counsel for Donald acknowledged that the Prosecution Opening for the plea hearing asserted that Kellway and Donald ‘repeatedly inflicted injuries on [Charlie] and failed to take appropriate action regarding his health and welfare, causing him serious injury’. However, according to counsel, during the course of the plea the basis of Donald’s criminal liability for the offence of negligently causing serious injury was clarified and confirmed. Defence counsel, after beginning the plea on behalf of Donald, outlined the basis of her culpability as follows:
And Ms [Donald’s] culpability lies in her failure to modify her own behaviours and failure to protect [Charlie]. It’s not in direct causation of the injuries herself, it’s about her failure to take appropriate action to protect him …
According to counsel, this submission prompted the judge to clarify that it was ‘the accepted position by everyone at the Bar table that the physical actions happened by [Kellway], she failed to protect her little boy against Mr [Kellway]’. The judge then stated: ‘Everyone nodded at the Bar table.’
Donald submits that the judge erred in failing to indicate that he might not accept ‘that agreed position’. The agreed position on which she was to be sentenced was that her culpability was constituted by her failure to protect her son in the context of the physical actions perpetrated by Kellway. The prosecutor accepted the accuracy of that description of Donald’s criminality during the plea hearing when the judge sought to clarify the position and, further, did not submit that he was in a position to prove beyond reasonable doubt that Donald herself had assaulted her son and in doing so, actively caused him serious injury.
Despite this, it is contended, the judge made the following factual findings that were inconsistent with that agreed position:
(a)‘Whilst Kellway is primarily responsible for the physical actions causing serious injury to Charlie Lynas, or causing the injuries to Charlie Lynas, you [Donald] also engaged in physical assaults of your son.’ (at Reasons, [65]);
(b)‘[B]oth of you have not merely failed to protect Charlie from harm by the other, but you have been actively causing the harm, albeit by negligent conduct.’ (at Reasons, [85]);
(c)‘You [Donald] are directly responsible for some of the assaults.’ (at Reasons, [96]);
(d)Donald’s ‘active part in the violence against [her] son is less than that of … Mr Kellway’ (at Reasons, [103]).
Donald submits that given the failure of the judge to inform the parties that he might not accept the agreed position, there was a breach of procedural fairness. In this case, it is submitted, it is not possible to conclude that no different result might have been reached had procedural fairness been afforded to Donald.

Discussion

Donald pleaded guilty to the charge in the indictment. Donald and Kellway were each charged with a single charge of ‘negligently cause serious injury’. The particulars and statement of offence on that charge is as follows:
The Director of Public Prosecutions charges that [Rose Donald] and [Sean Kellway] at Heidelberg West and divers other places in Victoria between the 22^nd day of November 2017 and the 19^th day of March 2018 negligently caused serious injury to [Charlie Lynas], a child in the care of [Rose Donald] and [Sean Kellway], by repeatedly causing injury to [Charlie Lynas] and failing to take appropriate action regarding [Charlie Lynas’] health and welfare.

Donald submits that, by her plea of guilty, she pleaded guilty to one charge of negligently causing serious injury, and by that plea she necessarily admitted the essential elements of that offence. That is, she admitted that she owed Charlie a duty of care as his mother, that she breached that duty by criminal negligence and her breach of that duty of care caused serious injury to Charlie. However, she did not admit that she physically assaulted him.
In this regard, Donald relies on the statement as to the formal effect of a plea by Priest and Beach JJA in Giri v The Queen[75] as follows:
As a matter of principle, an accused person’s entry of a plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the relevant offence. By the bare plea, the accused is taken to have admitted guilt of the charge, nothing more. Any dispute as to the facts beyond the essential ingredients admitted by the plea must be resolved by the application of ordinary principles that apply in criminal cases.
[75][2022] VSCA 64, [21] (citations omitted).
Thus, according to Donald, her plea was not an admission that any particular of negligence asserted by the prosecutor was made out.
As discussed, the Prosecution Opening outlined the offending as follows:
Between about 22 November 2017 and 19 March 2018 [Rose Donald] and [Sean Kellway] negligently caused serious injury to Ms [Donald’s] child, 4-year old [Charlie Lynas] (‘[Charlie]’), who was in their joint care over that period. Ms Donald and Mr Kellway repeatedly inflicted injuries on [Charlie] and failed to take appropriate action regarding his health and welfare, causing him serious injury.
Paragraph 18 of the Prosecution Opening also states that during the period between 22 November 2017 and 19 March 2018, Ms Donald and Mr Kellway repeatedly caused injuries to Charlie ‘either by inflicting injuries directly or supporting the other to do so’. Paragraph 19 refers to the fact that injuries were repeatedly caused to Charlie by Donald and Kellway while Charlie was in an increasingly vulnerable state, with no appropriate action being taken by them regarding his health and welfare.
At the hearing before us, counsel for Donald agreed that her plea was negotiated and that Donald chose to plead guilty to a charge containing particulars that she had repeatedly caused injury to Charlie and failed to take appropriate action. The Prosecution Opening stated quite expressly in at least three places that Donald physically participated in the causing of the injuries. Counsel for Donald nonetheless maintained that the plea to the charge as particularised was nothing more than an admission that all of the elements necessary to make up the charge were made out and it was not necessarily an admission to any one particular. Counsel submitted that although there were references in the Prosecution Opening to Donald having herself physically caused injuries to Charlie, the position was ambiguous. Furthermore, during the course of the plea, things materially changed and the way in which the prosecutor put the case became much clearer and, indeed, was defined in a particular way.
The transcript evidencing the ‘material change’ in question is as follows:
COUNSEL FOR DONALD: They [Kellway, Donald and the three children] were initially with Ms [Donald’s] parents. Her mother had been in hospital in a coma, had returned home, and having three small children creating the noise that three normal small children make was a problem in the house. The other problem was Ms [Donald’s] father witnessing domestic violence by Mr [Kellway] to her that created a tension in the house and, with the benefit of hindsight, the decision on her part to leave with Mr [Kellway] was quite frankly the worst decision she could have made. She chose the relationship and to stay with that relationship.
HIS HONOUR:                   They were drug-using.
COUNSEL FOR DONALD: They were drug-using.
HIS HONOUR:                   Yes. Let’s not step around this.
COUNSEL FOR DONALD: No.
HIS HONOUR:                   They stayed together, drug-used together, and still had these three kids they were looking after. That’s what was going on.
COUNSEL FOR DONALD: That’s right. And Ms [Donald’s] culpability lies in her failure to modify her own behaviours and failure to protect [Charlie]. It’s not in direct causation of the injuries herself: it’s about her failure to take appropriate action to protect him and with the …
HIS HONOUR:                   Can I just on that — I just want to get really clear here that is the accepted position by everyone at the Bar table that the physical actions happened by [Kellway], she failed to protect her little boy against Mr [Kellway]. Is that the agreed position? Alright.
COUNSEL FOR DONALD: And Ms …
HIS HONOUR:                   Sorry, everyone nodded at the Bar table.
COUNSEL FOR DONALD: Yes.
HIS HONOUR:                   Yes.
COUNSEL FOR DONALD: And in the context of substance use — so the substance use on behalf of Ms [Donald] commences in the context of losing her third child, the death of her third child.
According to counsel for Donald, at this point in the transcript the prosecutor made it clear the way in which he defined the conduct or omission of Donald which caused the serious injury to Charlie. The judge in this passage recognised the importance of identifying exactly how the prosecutor put the particulars of negligence and recorded for the benefit of the transcript that ‘everyone nodded’ at the Bar table.
It is not, however, the case that either the prosecutor or counsel for Kellway accepted this proposition, despite the fact that they were at the Bar table at the relevant time. The prosecutor in his submissions on the plea stated that it seemed to be accepted that ‘the bulk’ of the physical abuse was committed by Mr Kellway. Moreover, before us, counsel for Donald accepted that even if it was fair to say that counsel for Kellway was one of the counsel who nodded, his later submission certainly indicated disagreement with the proposition that Kellway was responsible for all of the physical acts. Counsel for Kellway pointed out that Donald was heard to say to Kellway, after the August 2018 interview:
If you want to turn yourself in for smacking him and using the egg flip, hop to it. Cause I have, about me. I told them I smacked him. I told them I told him to shut up. I smacked my son. I also smacked my son when he was naughty. I smacked him when he threw the Tonka truck at William’s^[[76]] face.[77]
[76]A pseudonym.
[77]Reasons, [30].
Indeed, in further submissions filed in the Kellway application, Kellway points out that the prosecution written submissions on the plea stated that both offenders appeared ‘equally culpable’, even though their personal circumstances might justify some disparity in sentence.
In the light of the foregoing, we do not consider that the plea transcript, and the judge’s observation that ‘everyone nodded’, indicated a change in the way in which the prosecution put the case against Donald. It is unclear precisely what the judge meant when he observed the nodding at the Bar table. But viewed in the context of the plea hearing as a whole, we are satisfied that his Honour could not have been confirming that there was general agreement that Donald should be sentenced on the basis that she did not inflict any of the myriad of injuries that together comprised the ‘serious injury’ the subject of the charge.
In our view, it is clear that the prosecution put the case on the basis of complicity, with Donald directly responsible for some of the physical assaults. The ‘serious injury’ the subject of the charge was a combination of injuries, not a single injury, and therefore to plead guilty to the ‘serious injury’ charge, Donald must have accepted responsibility for the combination of injuries.
In this regard, it is necessary to distinguish between causing ‘injury’ and ‘causing serious’ injury. The charge is one of negligently causing serious injury, but the particulars are of causing injury. It was well open to find that Donald had inflicted one or more injuries on Charlie, based on what she was recorded as saying to Kellway after her police interview, as well as the negotiated Prosecution Opening.
Ground 1 is not made out.

Ground 2: manifest excess

Submissions

Donald submits there were significant mitigating factors in this case:
(a)She had no prior convictions.
(b)She had pleaded guilty, and that plea had a significant utilitarian value in the context of the COVID-19 pandemic.[78]
(c)The judge accepted that the guilty plea was indicative of remorse, and that Donald was remorseful and felt shame for the offending.
(d)Donald’s depression which would lead to her time in custody being more burdensome in comparison to a prisoner of normal mental health.
(e)There had been a delay of four years between charge and sentence.
(f)Donald had fair prospects of rehabilitation, which would have been considered to be ‘good’ but for her substance abuse disorder.
(g)The context of Donald’s relationship with Kellway. Donald had reported Kellway was violent towards her. Kellway’s conduct ‘included apparent control over [Donald] in influencing her to decide to leave her parents’ home’.
[78]See ibid [75]–[79].
Donald contends that, in light of the above matters and the maximum penalty of 10 years’ imprisonment, the sentence imposed and non-parole period fixed are manifestly excessive.

Discussion

This ground may readily be rejected. In our view, the sentence imposed on Donald was lenient. Viewing her conduct in the most favourable light, she stood by for four months while Kellway tormented and repeatedly physically abused her small, vulnerable son and covered his body in bruises and abrasions. She could have put an end to that torment with a single phone call to her family. She did not.
Ground 2 must fail.

Extension of time application

Donald filed her notice of application for leave to appeal against sentence on 30 January 2023. This was more than eight months after the judge sentenced her on 12 May 2022.
Donald now seeks an extension of time within which to file a notice of application for leave to appeal. She submits that:
(a)she applied for Legal Aid funding as soon as practicable after her current solicitors received materials from her previous solicitors, and the application was not granted until 5 January 2023, after which counsel was briefed as soon as practicable;
(b)the application for leave to appeal against sentence was prepared and filed as soon as reasonably practicable after her current solicitors received instructions from the applicant and materials from her previous solicitors; and
(c)the delay is not inordinate and unlikely to significantly prejudice the respondent.
An email from Donald’s previous solicitors (Gallant Law) to her current solicitors (Nelson Brown Legal) is exhibited to the affidavit in support of the application for an extension of time. It sets out the history of her previous solicitors’ dealings with her, commencing on 12 May 2022 and concluding on 1 December 2022. The chronology reveals a series of missed attendances by Donald that prolonged the process of bringing the appeal.
We are unimpressed by Donald’s failure over many months to pursue her application. Given our conclusions on her grounds of appeal, the application for an extension of time will be refused.

Disposition

The application for an extension of time is refused.
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[2023] VSCA 109

11 May 2023