JUDGES:	T FORREST JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2019
DATE OF JUDGMENT:	16 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 182
JUDGMENT APPEALED FROM:	DPP v Lim [2018] VCC 1474 (Judge Mullaly)

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CRIMINAL LAW — Application for leave to appeal — Sentence — Aggravated burglary, intentionally causing injury (two charges), threat to kill (two charges), persistent breach of intervention order and summary assault — At 5:00 a.m., applicant, while drunk/drug-affected, forced his way into home of former partner KC, where he threatened to kill KC’s father and rendered him unconscious with a sleeper hold — As KC fled outside, applicant grabbed her in headlock and threatened to kill her, and also threatened elderly neighbour who sought to intervene — Headlock on KC ceased only when police forcibly intervened — Applicant also in breach of intervention order in favour of KC — Applicant had prior convictions for violence against KC, her father and others — Early pleas of guilty — Remorse — Medical problems created particular hardship in custody — Reasonable prospects of rehabilitation — Whether sentence on summary assault exceeded maximum penalty — Whether judge erred in sentencing on basis that prior convictions were “relevant to … assessment of the gravity of [applicant’s] crimes” — Whether sentence of six-and-a-half years’ imprisonment on aggravated burglary manifestly excessive — Whether other individual sentences and directions for cumulation manifestly excessive — Whether total effective sentence of nine years and seven months’ imprisonment with non-parole period of seven years manifestly excessive or in breach of totality — Application granted and appeal allowed — New evidence admitted on resentencing — Applicant resentenced to total effective sentence of seven years’ imprisonment with non-parole period of five years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J McLoughlin	Victoria Legal Aid
For the Respondent	Mr J McWilliams	Mr J Cain, Solicitor for the Director of Public Prosecutions

T FORREST JA:

I have had the benefit of reading a draft of Croucher AJA’s judgment. I agree with his conclusions and the orders he proposes.

CROUCHER AJA:

At 5:00 a.m. on 1 July 2017, Anthony Leo Lim, while drunk and drug-affected, forcibly broke into his former partner Kylie Carter’s home in a suburb of Ballarat. Intent upon mayhem, he then went on a rampage of violent and threatening behaviour. Immediately upon entry, Mr Lim assaulted Ms Carter’s father Neil Carter, threatened to kill him and choked him with a sleeper hold to the point of unconsciousness. Next, he followed Ms Carter as she fled outside, uttered a threat to kill her and grabbed her around the neck in a similar choker hold while her terrified six-year-old daughter clung to her leg. Just before he grabbed Ms Carter, Mr Lim also shook his fist at Therese Harvey, a 77-year-old neighbour who had simply tried to comfort those in fear. Police arrived and tried, but failed, to subdue Mr Lim with OC spray. He ultimately released his grip around Ms Carter’s neck only after a police officer, justifiably, struck him with a torch and placed him in a headlock.

This offending was preceded by over a month’s worth of persistent breaches of a family violence intervention order by contacting Ms Carter via Facebook and text messages. It was also committed against a background of prior convictions for violent offending, including against Ms Carter, her father and others.

On 11 September 2018, following pleas of guilty entered the day before, Mr Lim was sentenced in the County Court on eight charges over this matter, including aggravated burglary, intentionally causing injury, threatening to kill, assault and breaching a family violence intervention order. The judge imposed various individual sentences and orders for cumulation, resulting in a total effective sentence of nine years and seven months’ imprisonment with a non-parole period of seven years.

The judge used various epithets to describe aspects of the offending, including that it was “very grave”, “sustained and dangerous”, “gratuitous” and “cruel and chilling”. His Honour considered that general deterrence, specific deterrence, denunciation and protection of the community “loom[ed] large” as sentencing purposes. He also classified Mr Lim’s approach to relationships as “selfish and cowardly”. Mr Lim’s criminality, both past and present, merited condemnatory language.

On the other hand, he was able to rely on significant mitigating factors, including his early pleas of guilty, remorse, medical conditions causing particular hardship in custody, and reasonable prospects of rehabilitation.

Mr Lim now applies for leave to appeal against the sentences imposed in the County Court. He relies on four grounds:

Ground 1: The sentencing judge erred in imposing a sentence of [four] months’ imprisonment in respect of [the] summary charge [of] unlawful assault that exceeded the maximum penalty of [three] months’ imprisonment for that offence.

Ground 2: The individual sentences and orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive.

Ground 3: The sentencing judge paid insufficient regard to the principle of totality.

Ground 4: The learned sentencing judge erred in treating the applicant’s prior convictions as relevant to the assessment of the gravity of the applicant’s offending.

The judge’s reasons for sentence are detailed, carefully assembled and seem to me to address all relevant considerations. Except in one respect, counsel for Mr Lim accepted that those reasons are a model. That exception, as submitted under cover of Ground 4, is that his Honour erroneously took into account Mr Lim’s prior convictions in assessing the gravity of the crimes for which he stood for sentence. While it is a close-run thing, I am not persuaded that that ground is made good.

In those circumstances, the central question becomes whether, in the absence of any identifiable error in the judge’s reasoning, any of the individual sentences, the directions for cumulation, the resulting total effective sentence or the non-parole period is or are nevertheless manifestly excessive or otherwise in breach of the totality principle.

Making full allowance for the mitigating factors, the present offending still warranted a very substantial prison sentence. The offending was very grave. Mr Lim’s prior convictions were relevant to sentence. It was necessary and appropriate that his offending be denounced, deterred and adequately punished.

That said, I have come to the view that there are aspects of the sentences that are indeed manifestly excessive and in breach of totality. It was also conceded by the Crown that the sentence for the assault on Ms Harvey had exceeded the maximum penalty.

In the result, I would grant the application for leave to appeal, allow the appeal and resentence Mr Lim in a way that results in a total effective sentence of seven years’ imprisonment with a non-parole period of five years.

My more detailed reasons and proposed orders follow.

Summary of the offending and surrounding circumstances

On 10 September 2018, Mr Lim was arraigned on an indictment in the County Court. He pleaded guilty to charges of aggravated burglary,[1] intentionally causing injury (two charges),[2] threatening to kill (two charges)[3] and persistently breaching a family violence intervention order.[4] He also pleaded guilty to uplifted[5] charges for summary offences of using a drug of dependence (methylamphetamine)[6] and unlawful assault.[7]
[1]Pursuant to s 77 of the Crimes Act 1958 (Vic) (maximum penalty: 25 years’ imprisonment).
[2]Pursuant to s 18 of the Crimes Act 1958 (Vic) (maximum penalty: 10 years’ imprisonment).
[3]Pursuant to s 20 of the Crimes Act 1958 (Vic) (maximum penalty: 10 years’ imprisonment).
[4]Pursuant to s 125A of the Family Violence Protection Act 2008 (Vic) (maximum penalty: five years’ imprisonment).
[5]Pursuant to ss 145 and 242 of the Criminal Procedure Act 2009 (Vic).
[6]Pursuant to s 75 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (maximum penalty: one year’s imprisonment).
[7]Pursuant to s 23 of the Summary Offences Act 1966 (Vic) (maximum penalty: three months’ imprisonment).

After hearing a summary of the offending, a plea in mitigation and submissions, the judge adjourned the matter to the next morning for sentence. In the course of his reasons, his Honour summarised the offending in the following way:[8]
[8]DPP v Lim [2018] VCC 1474 at [1]-[8]. I have amended the reasons to use the third person, instead of the second, when referring to the applicant and the complainants, to be consistent with the way in which matters are expressed in this judgment.

[1] … [A]pproximately five years ago, [Anthony Lim] commenced a relationship with [Kylie Carter]. [Mr Lim was] living with her. However, in May of 2017, [he was] violent towards her and she called the police. An intervention order was taken out, naming [Ms Carter] and her daughter as the protected persons. The final order was made on 9 May 2017, which included conditions that [Mr Lim was] not to commit family violence against the protected persons, not to contact or communicate with the protected persons, not to approach or remain within 100 metres of the protected persons and not [to] go or remain within 200 metres of the place where the protected persons lived.
[2] As will be made clear later, this was not the first time that [Ms Carter] had taken out an intervention order against [Mr Lim] or the first time that [he had] breached the intervention order by committing violence or contact. And so it was that, notwithstanding the strict [conditions] of the intervention order, [Mr Lim] routinely contacted or attempted to contact the protected persons via Facebook and text messages. This occurred from 25 May 2017 almost every day thereafter to 30 June 2017.[9]
[3] On around 30 June 2017, [Mr Lim was] using methylamphetamines[10] and later … alcohol. [Mr Lim says] that [he] learned from an associate that [Ms Carter] had taken up with another man. It seemed to infuriate [Mr Lim] and [he] went around to where she was living [in Ballarat] at approximately 5:00 a.m. [the next] morning. [Ms Carter] was in fact awake and near her back door. She heard tapping on the back door which was [Mr Lim], and then the sound of kicking on the door. She ran to the lounge room and yelled out for her father [Neil Carter] who was there at the premises asleep. [Mr Carter] … went to the back of the house and endeavoured to stop [Mr Lim] coming through the laundry door. [Mr Lim] used considerable force on the door which caused it to fall inwards and the father fell to the ground.[11]
[4] Once [he] got into the house and once [Mr Carter] had fallen down, [Mr Lim] commenced to assault him in a violent manner. [He] took [Mr Carter] in a headlock and screamed at him, “I’m going to kill you. What’s it like knowing that you will never see your daughter or granddaughter again?”[12] [Mr Lim] continued to punch and hold [Mr Carter] in a headlock until he was unconscious. In the end, he sustained a black eye, cuts to his forehead, as well as pain in his ribs and knee.[13] …
[5] [Ms Carter] had run to the front of the house to try and get help. Her six-year-old daughter had woken and run outside with her mother, crying and holding on to her … . [Mr Lim] headed outside, screaming insults at [Ms Carter]. The noise and disturbance caused a 77-year-old neighbour [Ms Harvey] bravely to come out to the front of her house to try and comfort [Ms Carter] and the child. While [Ms Carter was] out the front, [Mr Lim] came outside and said to [her], “Your dad’s dead, you’re next.”[14]
[6] Then, in a gratuitous act of violence, [Mr Lim] went up to the 77-year-old neighbour with [his] right fist clenched, raising [his] arm and telling her to go away. She was extremely fearful.[15] [He] continued to yell at her to get away from [his] ex-partner. [He] then grabbed [his] ex-partner from behind and held her while her daughter continued to hold on to her mother, screaming. [Mr Lim] gripped [Ms Carter] around the throat. The 77-year-old neighbour begged [him] to stop.
[7] At about [5:18 a.m.], the police, who had been called by other neighbours, arrived and witnessed [Mr Lim] holding [Ms Carter] in a headlock. [Mr Lim was] yelling, “I’m going to fucking kill her, get back, I’ll fucking kill her.” The police who were there radioed for further assistance and endeavoured to help [Ms Carter] by getting [Mr Lim] to let go of [his] chokehold. [Ms Carter] was struggling to breathe and she felt that she was going to pass out. [Mr Lim] started walking backwards towards the house, dragging [Ms Carter] with [him]. A police officer deployed OC spray but it had no immediate effect. He then hit [Mr Lim] with his police-issued torch and was able to place [him] in a headlock and bring [him] to the ground. [Mr Lim] eventually then released [Ms Carter], who ran.[16]
[8] After [his] arrest, [Mr Lim was] taken to the Ballarat Hospital where it was revealed that [he] had a blood alcohol concentration of 0.06. Later in the morning, [he was] interviewed by the police where [he] minimised [his] offending. [He was] remanded in custody and [has] remained in custody to this point. …

[9]This is the behaviour encompassed by Charge 6, persistent contravention of a family violence intervention order.

[10]Charge 11, the summary offence of using a drug of dependence.

[11]Charge 1, aggravated burglary.

[12]Charge 4, threat to kill Mr Carter.

[13]Charge 2, intentionally causing injury to Mr Carter.

[14]Charge 5, threat to kill Ms Carter.

[15]Charge 12, the summary offence of unlawful assault on Ms Harvey.

[16]Charge 3, intentionally causing injury to Ms Carter.

The judge’s reasons for sentence

Given their detail and clarity, and the grounds of appeal agitated, I think that, instead of summarising the judge’s reasons for sentence, it is preferable to reproduce them in full in this judgment:[17]
[17]DPP v Lim [2018] VCC 1474 at [10]-[45].

[10] This offending is very grave indeed. What makes it serious is that [Mr Lim] used considerable force to get inside the premises. It was in the very early hours of the morning when those inside were in the main asleep. The offence was committed in front of a child and [he was] well aware that the child would be present. [His] attack upon [Mr Carter] was sustained and dangerous. Likewise, [his] attack by choking [Ms Carter] was also sustained and persistent despite the police using significant force and OC spray to get [him] to stop holding her in the headlock and dragging her back towards the house. This violence was also in front of and directed towards an elderly female neighbour who had simply come to the assistance of [Ms Carter] and her child.
[11] All of this of course was done in breach of a recently obtained intervention order to prevent [Mr Lim] from being in the vicinity and committing violence upon [Ms Carter]. I am also told [he was] on a community corrections order at the time as well. Of course, [he] had to that point breached the intervention order routinely by communicating with [Ms Carter] when [he] should not have done so.
[12] The features that I have outlined are identified by the Court of Appeal in DPP v Meyers[18] as those things to consider when assessing the gravity of an aggravated burglary against a previous partner. I note that [Mr Lim was] not armed and [that he was] alone.
[18]DPP v Meyers (2014) 44 VR 486.
[13] As I have been required to say too often in circumstances such as these when passing sentences, men like [Mr Lim] have to understand that women are entitled to leave relationships and form new ones. They are entitled to do so safely and without cowardly men like [Mr Lim] attacking them in their own homes. The community is heartily sick of violent men like [Mr Lim] committing significant violence against women in the sort of circumstances that occurred here. The fact that [he was] under the influence of drugs and alcohol is no matter of mitigation, excuse or indeed explanation. It serves to make [his] offending more serious as [he was] not in any state to listen to reason but rather seemed emboldened to continue with [his] violence notwithstanding the efforts of [Mr Carter], an elderly neighbour and then the police.
[14] In my view, this is a very grave example of the crime of aggravated burglary, intentionally cause injury and threats to kill. The sentencing purposes of denunciation, protection of the community from [Mr Lim] and deterrence to others and to [him] loom large. These sentencing purposes are not just to the fore as a consequence of this offending. What is relevant … in particular [to] the sentencing purposes of the need of deterrence to [him] and the protection of the community from [him] and [his] prospects of rehabilitation is both the instant offending but also [his] recent past similar criminal behaviour.
[15] Before embarking on an analysis of those prior convictions, I need to stress from the outset that [Mr Lim is] not to be re-punished for past crimes. Rather, those matters are relevant to my assessment of the gravity of [his] crimes, [his] moral culpability and the sentencing purposes that I have just mentioned.
[16] What is particularly concerning is that [his] violent crimes on 1 July 2017 were the third time [he] had been brought before the courts for violence upon [Ms Carter]. As noted in the prosecution opening for [the] 1 July 2017 crimes, [he was] the subject of an intervention order because of violence towards [Ms Carter]. That is not one of the instances of a prior criminal matter. There are others which I will turn to shortly. Before doing so, there was an earlier episode of violence on an ex-girlfriend and her housemate that has disturbing similarities to the current circumstances.
[17] What occurred on 24 October 2013 is that [Mr Lim] attended at the premises of an ex-girlfriend. She was with her young housemate. [He] yelled at her that [he] wanted to speak to her but she went inside. [He] became abusive, in particular when she closed the door. [He] then damaged the front security door and smashed a glass panel in the front door, reached in, unlocked the door and entered the premises. [He] then took hold of the ex-girlfriend by her jumper and while that was occurring, she yelled for her housemate to call the police. [Mr Lim] then threw [his] ex-girlfriend on the couch and turned to the housemate, grabbing her from behind, wrapping her up so she could not move and screamed at her, “Do you wanna call the cops now, huh?” She dropped to the floor. Her friend, that is [Mr Lim’s] ex-girlfriend, came to her assistance. [He] then punched her to the face a number of times, causing her to fall to her knees. She believed that [he] then kicked or kneed her in the chest. [He] then left the premises with property that [he] claim[s] was [his].
[18] Other offending involved [Ms Carter] and indeed her father. An intervention order was taken out on 17 June 2014 against [Mr Lim]. [He was] not to communicate with or be within [five] metres of the protected person. It seems that, on 4 July 2014, [he] went to her address where [he was] not meant to go. Once there, [he] had a conversation with her saying that [he was] going to count down, saying [he was] going to smash the window to unlock the door prior to [Ms Carter’s] father arriving at the address. This was in breach of the intervention order and frightening behaviour.

[19] Some days later, on 29 July 2014, [Ms Carter] was travelling towards Geelong on a bus. [Mr Lim] happened to be on the bus as well. [He] sat near her and attempted to engage her in communication, making threats or intimidating her. She got off the bus. That was not enough for [him]. [He] then attended at her address in a suburb in Geelong. [He] approached the front door and knocked and asked to come inside to collect [his] property. She ran to the bathroom fearing that [he] would assault her, and remained on the windowsill ready to escape if [he] came inside. [He] threw a computer tower into the front yard from the front lounge and then climbed through the window frame and confronted [Ms Carter’s] father, the same man [he] injured and dealt with and threatened on this occasion.
[20] [Mr Lim] then said [he was] only there to collect property. The father then left [him] and a mobile phone was used to call for immediate assistance. [Mr Lim] became enraged, believing that the police had been called, and [he] yelled out, “Tell your daughter if she is ringing the cops, I’m going to kill her.”
[21] There [were] other breaches of intervention orders with a previous partner that were done via Facebook.
[22] It is unfortunately clear that [Mr Lim has] a propensity to commit violence against women who are or were in a relationship with [him], often in breach of an intervention order granted by a court to protect the woman. [He has] had the benefit of suspended gaol terms directed in part at deterring [him] and rehabilitating [him] but these sentences that have been imposed have not had any deterrent effect on [him], neither have the terms of imprisonment that were ultimately imposed when [he] breached the intervention orders.
[23] I do not propose to go through each and every one of the sentences and crimes that are summarised in the narrative that I have just outlined. There was on 5 August 2014 importantly a conviction for threats to kill and I will return to the consequences of that at a later point.
[24] [Mr Lim’s] prior offending reveals a violent and unrestrained aspect of [his] character. The offending before me is an escalation in violence and the level of threat. Also, the aggravated burglary aspect is likewise an escalation but [he has] in the past shown little regard for [his] victims’ entitlement to feel safe and secure in their own home[s]. As the courts and indeed the community understand in respect to domestic violence, there is often an escalation from lesser criminal conduct that leads up to serious violence being displayed. [Mr Lim] displayed early signs of those aspects of becoming a serial perpetrator of domestic violence. These sorts of offences are a scourge. Corrosive fear is engendered in the victims and, as is the case here, the wider family and others such as neighbours who witness or are caught up in the violence. [Mr Lim’s] is a selfish and cowardly approach to relationships. It seems to me [he] seeks to dominate and control and turn to violence if rejected.
[25] As was said by the Court of Appeal in Pasinis v The Queen,[19] “Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence.” It recognises that often women have been subject to — and I paraphrase — assaults many times previously before the offences that are before the court. What the Court went on to say in Pasinis was it makes “both specific and general deterrence very important factors in sentencing men who assault their partners”.
[19]Pasinis v The Queen [2014] VSCA 97 at [53].
[26] The community has expressed abhorrence to such crimes and attitudes. The time of softer approaches to domestic violence is well gone, as outlined by the Court of Appeal in Pasinis. I cannot ignore such sentiments. My sentence here today must be a stern one.
[27] As the High Court in Dalgliesh[20] and Kilic[21] have made clear, other sentences and current sentencing practices are but one factor. Individualised sentencing is the authorised approach. Thus the just and appropriate sentence for crimes of this kind committed by a man with [Mr Lim’s] criminal history must be severe, involving years of incarceration.
[20]DPP v Dalgliesh (2017) 262 CLR 428.
[21]The Queen v Kilic (2016) 259 CLR 256.
[28] As to [Mr Lim’s] personal circumstances, [he is] now 39. [He was] born in Malaysia, migrating to Australia at the age of two. [His] father returned to Malaysia within a short period of time and [his] mother re-partnered. This new partner or [his] stepfather was violent to [Mr Lim]. [He was] raised and went to school in Geelong. After school, [he] spent about six months in the army before a variety of jobs in hospitality and retail. [He was] particularly close to [his] grandmother who died sadly when [he was] just a teenager.
[29] [Mr Lim] married in [his] mid-20s and had three children. The eldest was autistic and, to [Mr Lim’s] credit, [he] retrained in the disability field and gained work in that area for three years. It is not easy work. [He] separated from [his] previous wife in 2011 and it seems have had little to do with [her] or [their] children. However, [he has] indicated recently in particular to Ms Warren, the medico-legal psychologist that saw [him] for this plea, that [he] wanted to develop a relationship with [his] children into the future.
[30] [Mr Lim] commenced a relationship with [Ms Carter] in around 2012 or thereabouts. [His] drug use escalated. [He] took to using ice. [His] previous good work history fell away.
[31] Although [Mr Lim is] not yet 40, [he has] had a number of health problems which are relevant. [He] suffered an apparent heart attack at the age of 31. I am told [he is] no longer medicated or not medicated for that.
[32] In custody since this offending, [Mr Lim has been] suffering from significant nasal passage problems. This has had other implications in respect of [his] health. Scans reveal that there was a mass on [his] brain and surgery occurred to remove what was discovered to be a mucus mass. It seems that it was connected with [his] nasal passage problems. [He] await[s] further scans and assessment by the specialist as to whether the problem has resolved or whether [he is] at risk of it redeveloping.
[33] [Mr Lim has] been an inpatient at St Vincent’s for surgery and investigations. The key relevant point here is understandably [he has] been anxious about [his] health. [He] thought, as [he was] told, that [he] had a brain tumour and for some months [he was] highly stressed. As it turns out, it appears that there is not a brain tumour as such but nonetheless it is the stress upon [him] and the risks are that things may develop in the same domain as they have before. Also and of importance, [his] hearing has deteriorated and [he has] only recently received hearing aids to assist [him].
[34] [Mr Lim has] had surgery as I have indicated but what has occurred post-surgery is that [he has] difficulty sleeping without snoring. This causes problems for other prisoners and [he is] at risk of being assaulted by them because of it. [He has] been kept in 23-hour lockdown for a number of weeks as a consequence.
[35] The treatment plans for [Mr Lim] are uncertain. As [he is] in custody, [he is] not advised as to when treatment or investigation appointments occur. There was a delay in various aspects of [his] investigation and treatment and the provision of hearing aids. All of this added to [his] stress. The medication that has been prescribed … post-surgery has not been thoroughly administrated and it seems that [he] need[s] a regular routine of medication and other treatments for [his] nasal passage that are not always provided to [him]. I take all this into account in the sense that prison has been and will be onerous for [him] because of these health problems.
[36] The psychologist Ms Warren made this point about [his] anxiety in her report. The other observation she made was the obvious one: that [he was] a drug addict. [His] life was compromised in many aspects because of [his] addiction to ice. However, [his] previous convictions for violence and threats subsequent to [his] taking up the use of ice were also within a context of abuse of drugs. Thus, [he knew] of [his] risk of violence towards [his] ex-partner while [he] continued to use drugs especially in combination with alcohol.
[37] [Mr Lim] told Ms Warren that [he] regard[s] the immediate physical symptoms of ice use is that it induces calm, but importantly [he] told her that aggression arises as the effects wear off and [he] begin[s] to experience withdrawal effects. [He] claim[s], and I accept, that [he was] under the influence of drugs at the time of this home invasion and that [he was] sleep deprived, a condition that is well understood to flow from the use of ice. [He] also said that [he] had drunk an excessive amount of alcohol; as to precisely how much that was, what is certain is that [he] had alcohol in [his] system when tested in the hospital at 0.06. But this is all in circumstances where I take it that [he] knew or should have known that it would lead to poor judgment and likely violence. Thus the use of drugs and alcohol on the evening and prior to [his] attack on the victims is not a matter in mitigation but to the contrary.
[38] [Mr Lim has] now expressed remorse in [his] unsworn letter tendered on [his] plea and in [his] conversation with Ms Warren, the psychologist. I accept [he is] contrite and the thought of having a brain tumour has woken [him] up to [his] problems. [Mr Lim] indicated [his] plea of guilty in April 2018 after a committal was organised by other lawyers. [His] plea of guilty will be acknowledged in that the sentence that I have fixed is less than it would have otherwise had been had [he] pleaded not guilty and been found … guilty. [His] is an early plea but not at the earliest opportunity. [His] plea of guilty is an acknowledgement of [his] responsibility and an expression by [him] of [his] remorse.
[39] While on remand, notwithstanding [his] anxiety and [his] health problems, [Mr Lim has] done all that [he] can which has included courses to extend [his] skills. On release, as I said, [he] seek[s] to re-establish some relationship with [his] children. [He] recognise[s] [his] relationship with [Ms Carter] is over. As noted, the important sentencing purposes are denunciation of [his] dreadful violent crimes and deterrence to [him] and to others. However, given [his] prior conviction for threats to kill and [his] repeat of that crime on two occasions in this episode, [he] fall[s] to be sentenced as a serious offender. That is, if I determine that [his] sentence for the threats to kill must be a gaol term, then [he] become[s] a serious offender.
[40] I am certainly of the view that the threats to kill in this case to [Ms Carter] and to her father warrant a sentence of imprisonment. They were no idle words but calculated and chilling threats to kill while [he was] in the midst of [his] violent attacks. Thus, for those crimes, because of the serious offender provisions, protection of the community must be the primary sentencing purpose. I should state that without the statutory mandate, protection of the community from [Mr Lim] is a matter of real importance. [He] must be imprisoned and thus incapacitated and thereby the community is protected. It is hoped that [he does] learn a lesson and on [his] release reform so the community remains safer from [his] violence. As I said, [he] say[s] that [his] brain tumour scare has caused [him] to wake up to [himself]. It was said that, given [his] many years of good work history and [his] lack of prior convictions until taking up ice into [his] thirties, [his] prospects for reform were reasonable.
[41] I accept that there is a basis for that but I am a little more guarded. Whether [Mr Lim] reform[s] is up to [him] to take up assistance that can be provided to [him] and, most importantly, cease taking drugs. I will do what I can to establish conditions to facilitate [his] rehabilitation by allowing for a potential parole period. Whether [he is] granted parole or not is a matter for others, not me.
[42] As was made clear by the Court of Appeal in Hogarth v The Queen[22] and DPP v Meyers, the range of sentences imposed in the past for aggravated burglary [was] less than what ought to be expected. That said, depending on the circumstances of the offending, merciful and flexible sentences are appropriate in certain cases, for example Bradshaw.[23] However, sentences of years of imprisonment are also seen as appropriate in serious cases when the accused has relevant prior convictions — for example, Bux v The Queen,[24] Hi v The Queen[25] and Meyers itself.
[43] By operation of the Sentencing Act, the maximum term in this case for aggravated burglary, the long maximum of 25 years, must be factored into the equation as must the maximum terms for each offence. I do not, to use the analogy of Justice Callaway, sail towards the maximum but I am guided by the light of the maximum term. The array of decisions by the Court of Appeal in cases on aggravated burglary indicate that the light of the maximum term was too dimly appreciated.
[44] Although aggravated burglary is an enabling offence and often the intents and the conduct thereafter is the more serious aspect of the criminal conduct, nonetheless breaking the safety and sanctity of someone’s home is grave offending causing real fear in a victim and the community, especially in the context of the violence within this relationship. In this case, the attack and injury caused to the father was, as I have said, concerning and dangerous. All he was doing was bravely trying to hold [Mr Lim] off and protect his daughter as he has done in the past. The injury to [Ms Carter] was also troubling and committed in front of her daughter as she tried to escape even when the police came to her assistance.
[45] It is difficult and perhaps not necessary to differentiate between the two threats to kill. Each was cruel and chilling. Each of the crimes needs to be acknowledged by a degree of cumulation and in the case of the threats to kill, that cumulation must recognise the serious offender provisions. In taking that into account in respect of the cumulation, I do not ignore the principle of totality. It still has application otherwise the sentence that I would impose would become just an outlier of a sentence. So I have factored in and otherwise ordered that there will be [some] level of concurrency with the threat to kill.

[22]Hogarth v The Queen (2012) 7 VR 658.

[23]Bradshaw v The Queen [2017] VSCA 273.

[24]Bux v The Queen [2017] VSCA 70.

[25]Hi v The Queen [2017] VSCA 315.

The judge then sentenced Mr Lim in accordance with the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25 years

6½ years

Base

2

Intentionally causing injury (Mr Carter)

10 years

2 years

10 months

3

Intentionally causing injury (Ms Carter)

10 years

20 months

6 months

4

Threat to kill (Mr Carter)

10 years

20 months

10 months

5

Threat to kill (Ms Carter)

10 years

20 months

10 months

6

Persistent breach of FVIO

5 years

6 months

None

11 (summary offence)

Use of drug of dependence (methylamphetamine)

1 year

Convicted & discharged

N.A.

12 (summary offence)

Unlawful assault (Ms Harvey)

3 months

4 months

1 month

Total effective sentence:

9 years and 7 months

Non-parole period:

7 years

Pre-sentence detention:

437 days

Section 6AAA declaration:

TES: 12 years
NPP: 9 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25 years	6½ years	Base
2	Intentionally causing injury (Mr Carter)	10 years	2 years	10 months
3	Intentionally causing injury (Ms Carter)	10 years	20 months	6 months
4	Threat to kill (Mr Carter)	10 years	20 months	10 months
5	Threat to kill (Ms Carter)	10 years	20 months	10 months
6	Persistent breach of FVIO	5 years	6 months	None
11 (summary offence)	Use of drug of dependence (methylamphetamine)	1 year	Convicted & discharged	N.A.
12 (summary offence)	Unlawful assault (Ms Harvey)	3 months	4 months	1 month
Total effective sentence:	9 years and 7 months
Non-parole period:	7 years
Pre-sentence detention:	437 days
Section 6AAA declaration:	TES: 12 years NPP: 9 years

The application to this Court

Introduction

Mr Lim applies for leave to appeal to this Court against the individual sentences, the directions for cumulation, the resulting total effective sentence and the non-parole period.

Initially, he raised only three grounds of appeal. The fourth was added (unopposed) by leave granted at the hearing.

I shall deal with each in turn.

Ground 1: Sentence for unlawful assault exceeded the maximum penalty

The ground of appeal

Ground 1 complains that the judge erred in imposing a sentence of four months’ imprisonment on the summary offence of unlawful assault on Ms Harvey when the maximum penalty was only three months’ imprisonment.

Submissions and discussion

Section 23 of the Summary Offences Act 1966 (Vic) provides that the maximum penalty for unlawful assault is 15 penalty units or three months’ imprisonment. A sentence of four months’ imprisonment is therefore beyond the maximum penalty.

Mr McWilliams, who appeared for the Director in this Court (but not on the plea), conceded, correctly, that this ground is made good, that the sentence and associated direction for cumulation must be set aside and that there must be a resentencing on that offence in consequence.

I should add that the prosecutor had identified the correct maximum penalty in the summary of prosecution opening before the County Court. Mr McWilliams offered that it may be that the judge mistakenly thought that the maximum penalty that applies to the common law offence of common assault, which is five years’ imprisonment,[26] applied to the offence committed against Ms Harvey. Whatever the reason, the sentence is beyond the statutory maximum, and is therefore unlawful.
[26]See s 320 of the Crimes Act 1958 (Vic).

Mr McLoughlin, who appeared for Mr Lim in this Court (but not on the plea), accepted that this error did not reopen the sentencing discretion on the other offences. While it is unnecessary to determine the issue finally, in my view, that was a proper concession in the particular circumstances of this case. The sentence on the unlawful assault represented such a small component of the total effective sentence (indeed, it added only one month to a total of what otherwise would have been nine years and six months’ imprisonment) that the error should not be regarded as reopening the sentencing discretion on the other offences.[27]
[27]In the respondent’s response to the applicant’s written case, reference was made to, inter alia, Smith & Ors v The Queen [2012] VSCA 5 at [47]-[48]; Young & Ors v The Queen [2015] VSCA 265 at [82]; and Cox v The Queen [2016] VSCA 124 at [28] & [32].

Mr McWilliams submitted that, upon a resentencing, it would be open to impose a prison sentence for the assault and to direct at least partial cumulation of that sentence upon the others.

Mr McLoughlin submitted that, while a prison sentence less than the maximum penalty should be imposed, it would be hard to justify a sentence of even two months’ imprisonment. Further, and in any event, in his submission, totality might dictate that there be no cumulation.

I shall defer the resolution of these issues until later in the reasons.

Ground 4: Whether prior convictions relevant to assessment of gravity of crimes

Ground 4 added at hearing

It is convenient to turn next to Ground 4, which, as I have said, was added at the hearing. This ground complains that the judge erred in treating Mr Lim’s prior convictions as relevant to an assessment of his offending.

Submissions

Mr McLoughlin submitted that the error is apparent in the italicised passage in paragraph 15 of the judge’s reasons, which is set out again below. In order to place the impugned passage in context, and for convenience, I shall reproduce paragraph 14 as well:[28]

[14] In my view, this is a very grave example of the crime of aggravated burglary, intentionally cause injury and threats to kill. The sentencing purposes of denunciation, protection of the community from [Mr Lim] and deterrence to others and to [him] loom large. These sentencing purposes are not just to the fore as a consequence of this offending. What is relevant … in particular [to] the sentencing purposes of the need of deterrence to [him] and the protection of the community from [him] and [his] prospects of rehabilitation is both the instant offending but also [his] recent past similar criminal behaviour.

[15] Before embarking on an analysis of those prior convictions, I need to stress from the outset that [Mr Lim is] not to be re-punished for past crimes. Rather, those matters are relevant to my assessment of the gravity of [his] crimes, [his] moral culpability and the sentencing purposes that I have just mentioned.

[28]DPP v Lim [2018] VCC 1474 at [14]-[15].

In support of this ground, Mr McLoughlin relied on this Court’s reasoning in Dirbass v The Queen.[29] Mr Dirbass had been sentenced in the County Court on aggravated burglary and theft. In the very early hours of the morning, he had broken into a residential property carrying a jemmy bar while the occupants were sleeping (knowing that there were persons in the house). Once inside, he stole a car worth about $50,000 and headed off in it with other goods worth about $30,000. For over 20 years, Mr Dirbass had engaged in “relentless criminality”, which included three prior offences of aggravated burglary, two of which were committed without weapons (and had been dealt with in the Magistrates’ Court) and the third of which included a weapon (and had been dealt with in the County Court).
[29]Dirbass v The Queen [2018] VSCA 272 at [47]-[56] (per Kyrou and Ashley JJA).

In this Court, it was submitted that the judge had erroneously treated Mr Dirbass’s criminal history as an aggravating factor in sentencing on the aggravated burglary. In a joint judgment, Kyrou and Ashley JJA said this:[30]

[47] [W]e are of the opinion that error will be shown if it can be established that the judge took into account [Mr Dirbass’s] three prior convictions for aggravated burglary in assessing the gravity of the current aggravated burglary offence. This is because, while an offender’s criminal history is a relevant sentencing consideration,[31] it cannot inform an objective assessment of the gravity of the instant offence.
…
[56] It follows from the above discussion that the judge would have erred in the exercise of her sentencing discretion if she treated [Mr Dirbass’s] three previous convictions for aggravated burglary as aggravating circumstances of the instant offence of aggravated burglary, or as informing the gravity of that offence.

[30]Dirbass v The Queen [2018] VSCA 272 at [47] & [56].

[31]Their Honours cited ss 5(2)(f) and 6(a) of the Sentencing Act 1991 (Vic) at this point.

As is apparent from the opening sentence of the latter paragraph, between the two paragraphs extracted, Kyrou and Ashley JJA had referred to authorities supporting those propositions. Those decisions included Veen v The Queen (No 2),[32] Baumer v The Queen,[33] Hoare v The Queen[34] and Muldrock v The Queen[35] in the High Court; R v McNaughton[36] in the New South Wales Court of Criminal Appeal; and R v O’Brien & Gloster[37] in this Court. The Court went on to hold that, while the judge erred, the application must be refused because no different sentence should be passed.[38]
[32]Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 (per Mason CJ, Brennan, Dawson and Toohey JJ).
[33]Baumer v The Queen (1988) 166 CLR 51 at 57.
[34]Hoare v The Queen (1989) 167 CLR 348 at 354.
[35]Muldrock v The Queen (2011) 244 CLR 120 at 132[27].
[36]R v McNaughton (2006) 66 NSWLR 566 at 574[24] (per Spigelman CJ, with whom McClellan CJ at CL, Grove, Bar and Bell JJ agreed).
[37]R v O’Brien & Gloster [1997] 2 VR 714 at 718 (per Charles JA, with whom Winneke P and Southwell AJA agreed).
[38]Dirbass v The Queen [2018] VSCA 272 at [57]-[71].

As I understood Mr McLoughlin, he submitted that, when regard is had to the impugned passage, the extent to which the judge emphasised the prior convictions in his reasons generally and the length of the sentences imposed — particularly on the aggravated burglary, the level of cumulation and the resulting total effective sentence — it is apparent that his Honour must have acted upon the reasoning in the impugned passage to inform the gravity of the objective circumstances of the offences by reference to the prior convictions and thereby erroneously increased the sentences beyond what he otherwise would have imposed.

Mr McWilliams submitted that there was no error, for two alternative reasons. First, read in the context of the reasons as a whole — including the immediately preceding sentence, in which his Honour stressed that “[Mr Lim is] not to be re-punished for past crimes” — the impugned passage should not be understood as reflecting a decision by the judge to assess the objective gravity of the instant offences by reference to Mr Lim’s prior criminal history. Instead, his Honour’s use of the impugned words should be regarded as no more than a slip in expression.

His second and alternative point turned on a passage in a footnote in the reasons for judgment of Priest JA in Dirbass. Sitting alone, his Honour had heard (and refused) Mr Dirbass’s initial application for leave to appeal. Kyrou and Ashley JJA heard the subsequent renewal of the application. As their Honours recorded in their joint judgment,[39] Priest JA, in his reasons, had said, in response to a similar complaint, that, “[a]bsent a statutory provision to the contrary, the presence of prior convictions generally is not an aggravating feature of an offence”. In a footnote to that passage,[40] however, his Honour had also said this:

There may, however, be unusual circumstances — for example, repeated offending against the same victim or class of victims — when earlier offending might be a feature of aggravation. This is not such a case.

[39]Dirbass v The Queen [2018] VSCA 272 at [59].

[40]Dirbass v The Queen [2018] VSCA 272 at [59], fn 40.

Mr McWilliams submitted that, unlike Dirbass, this was such a case. He gave the example that, consistently with the list of factors ordinarily relevant to an assessment of the gravity of an aggravated burglary of this type set out by this Court in DPP v Meyers,[41] the judge would have been entitled to find that, by reason of his past offences against her, Ms Carter was more vulnerable to his violence on this occasion and she would have experienced even greater terror. In that way, as I understood Mr McWilliams’s submission, Mr Lim’s prior convictions would be relevant to an assessment of the gravity of the offending, whether it be aggravated burglary, intentionally causing injury or threatening to kill.
[41]DPP v Meyers (2014) 44 VR 486 at 498[48].

In reply, Mr McLoughlin submitted that, if the judge had decided to act in accordance with the reasoning in Priest JA’s footnote, it would be expected that his Honour would have made it clear that he was considering doing so when hearing the plea and that he was in fact doing so in his reasons. Yet there was no such discussion or indication either on the plea or in the reasons for sentence, which were so carefully expressed. Mr McLoughlin also noted that the judgment of Kyrou and Ashley JJA in Dirbass was not published until 26 October 2018, which was over a month after the imposition of his Honour’s sentence.[42]
[42]Priest JA’s reasons for judgment on the original leave application were not published on type="1">
I have found this ground difficult.

On the one hand, as Mr McWilliams submitted, the impugned passage is constituted by only a few words immediately preceded by a clear statement stressing that Mr Lim was “not going to be re-punished for [his] past crimes”. On the other, the judge — who is very experienced in the criminal law, both as counsel and as a judge — had reserved his decision overnight and appears to have chosen his words carefully in both this and all other parts of his sentencing reasons. Thus, it might be thought to be a bit of a stretch to accept that the words employed were a mere slip.

In what might be regarded as a variant of the same submission, I considered whether the impugned passage might be explained by the words that immediately followed them in the same sentence — namely, “[his] moral culpability and the sentencing purposes that I have just mentioned“. Read in that way, the whole passage would be taken as meaning no more than that, because of the potential increase in moral culpability and the weight to be accorded to certain sentencing purposes on account of Mr Lim’s prior convictions (which, on the authorities, is an authorised approach), the judge might have to impose heavier sentences for the crimes at hand. Thus, on that reading, the reference to “the gravity of [the] crimes” would not be a reference to their objective gravity but to a measure of where the offending sits on the sentencing spectrum taking into account both the objective gravity of the offences and the circumstances of the offender, which include the impact of his prior convictions.

This, however, is very similar to an argument raised, but rejected, in Dirbass[43] itself. In that case, the respondent had submitted that the following passage in The Queen v Kilic[44] represented a departure from the principle that an offender’s criminal history cannot be taken into account in assessing the objective gravity of an instant offence:[45]

[19] Where … an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty … a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category, properly so called.

[43]Dirbass v The Queen [2018] VSCA 272 at [40]-[41] & [53]-[55].

[44]The Queen v Kilic (2016) 259 CLR 256.

[45]The Queen v Kilic (2016) 259 CLR 256 at 266[19].

The respondent had argued that the reference to the facts of the offender means that the circumstances of the offender, including his criminal history, and the circumstances of the offence are relevant to an assessment of the gravity of the offence. However, Kyrou and Ashley JJA opined that the High Court was doing no more than stating that the facts of the particular offence and the offender must be considered in determining where on the spectrum a particular case fell for the purposes of sentencing, and did not say that an offender’s criminal history can inform the gravity of the instant offence.[46]
[46]Dirbass v The Queen [2018] VSCA 272 at [54]-[55].

I shall return to these points shortly. If both were rejected, that would leave Mr McWilliams’s alternative submission to the effect that it was open to employ the prior convictions in the manner described as a possibility in the obiter dictum of Priest JA, and which Kyrou and Ashley JJA also noted, in Dirbass. However, for reasons that follow, I think there are difficulties in accepting that argument.

First, while I offer (without deciding) that it may well be correct, at least as a matter of logic, to say that the objective gravity of instances of aggravated burglary, intentionally causing injury or threatening to kill may be greater where the person at whom that offending is directed is one to whom the offender has directed such violent or threatening behaviour in the past, on the basis that such a victim may be more likely to suffer greater fear a second or subsequent time she is attacked or threatened by the same offender, it does not appear that his Honour made any such specific findings. Nor does it appear that either the prosecutor or the judge on the plea raised any such argument. As Mr McLoughlin submitted, if this (very experienced) judge had meant to take that particular course, it would be expected that he would raise that possibility with counsel on the plea or at least make it clear that he was reasoning in that fashion in his reasons for sentence.

Secondly, and in any event, it is not clear to me whether Priest JA was referring to factors of the type urged by Mr McWilliams as grounding the potential exception to the general rule that prior convictions do not inform the objective gravity of an offence. His Honour cited no authority for the proposition so stated. And, as we shall see shortly, this has been a matter of some controversy in the law for over 30 years.

In those circumstances, I am not prepared to accept this aspect of Mr McWilliams’s argument.

In any event, I think that consideration of whether an exception of the type mentioned by Priest JA is authorised should await a case in which it might be determinative. As it happens, resolution of the point is unnecessary to the determination of the ground of appeal in this case because I reject Mr McLoughlin’s primary submission in any event, which is sufficient to dispose of the ground.

Before explaining why I take that view, I wish to say something, very briefly, about the state of the debate surrounding this matter. As I indicated a moment ago, this issue has vexed trial and intermediate appellate courts ever since the decisions of the High Court in Veen (No 2),[47] Baumer[48] and Hoare[49] in the late-1980s.[50] Thus, for example, in 2006, in McNaughton,[51] the New South Wales Court of Criminal Appeal sat a bench of five to consider the point. In separate judgments, Spigelman CJ, McClellan CJ at CL and Grove J highlighted some of the difficulties in interpreting those and other decisions, as well as the arguments for reading them as authorising the use of prior convictions as informing the objective gravity of an offence. In the end, Spigelman CJ concluded as follows:[52]

[24] Notwithstanding the views expressed by some judges, I interpret the joint judgments in both Veen v The Queen (No 2) and Baumer as establishing that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions. …

[47]Veen v The Queen (No 2) (1988) 164 CLR 465.

[48]Baumer v The Queen (1988) 166 CLR 51.

[49]Hoare v The Queen (1989) 167 CLR 348.

[50]See also Muldrock v The Queen (2011) 244 CLR 120 at 132[27], where French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ, in a joint judgment, when considering aspects of the approach under the statutory sentencing regime in operation in New South Wales, said this: “The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending”.

[51]R v McNaughton (2006) 66 NSWLR 566.

[52]R v McNaughton (2006) 66 NSWLR 566 at 574[24] (per Spigelman CJ, with whom McClellan CJ at CL, Grove, Bar and Bell JJ agreed).

And, as we have seen earlier, the point was agitated yet again in this Court as recently as 2018, in Dirbass, but with a similar result to that which was reached in McNaughton. But, to reiterate, the equally important — but as yet unresolved — variant of the point is whether an exception of the type mentioned by Priest JA might be recognised. While it will be a matter for others if and when that issue arises, I should have thought that it might be dealt with, not by a bench of two judges, but three, or perhaps even five (as was done in McNaughton).

I now return to the first two points discussed. Initially, I considered that there was a good deal of force in Mr McLoughlin’s primary submission that the impugned passage does indeed reveal that the judge employed Mr Lim’s prior convictions to inform the gravity of the offending. On reflection, however, and after considering Mr McWilliams’s submissions and re-reading the judge’s reasons for sentence and the authorities to which Kyrou and Ashley JJA referred in Dirbass, I have been turned around. There are three main reasons.

First, as Spigelman CJ showed in McNaughton, the nomenclature employed and the statements of principle made in this area of legal discourse are, at times, a little ambiguous and confusing. For example, it might be said that, while prior convictions may illuminate the moral culpability of an offender in an instant case,[53] I should have thought that an offender’s moral culpability in committing an offence could be regarded as part of the objective gravity or seriousness of an offence.
[53]See, for example, Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 (per Mason CJ, Brennan, Dawson and Toohey JJ); and R v O’Brien & Gloster [1997] 2 VR 714 at 718 (per Charles JA, with whom Winneke P and Southwell AJA agreed).

Secondly, against that background, it strikes me that to speak of an “assessment of the gravity of [an offender’s] crimes”, as the judge did here, might not be the same as speaking of an assessment of the objective gravity of a crime. Instead, as suggested earlier, the impugned remarks might be taken as being explained by the references to moral culpability and sentencing purposes that immediately follow in the same sentence (which reflect conventional uses of prior convictions). Similarly, in contradistinction to the conclusion reached on the facts in Dirbass, the remarks might be taken not as a reference to the objective gravity of the offending but as a reference to a measure of where the offending sits on a spectrum taking into account both the objective gravity of the offences and the circumstances of the offender, which include his prior convictions. To reach such a conclusion does not represent a failure to follow Dirbass. Nor does it mean that the argument put by the respondent in that case is accepted. Instead, it is merely to distinguish Dirbass on the facts.

Finally, I think that the foregoing interpretations of the impugned remarks are made all the more compelling by the following factors. First, as Mr McWilliams emphasised, the remarks were immediately preceded by his Honour’s assurance that “[Mr Lim is] not to be re-punished for past crimes”. Secondly, his Honour did not use the impugned turn of phrase again in his reasons. Thirdly, it is difficult to conceive of such an experienced judge reasoning in the fashion alleged, unless he clearly indicated that he was acting pursuant to an exception of the type Priest JA raised. Finally, as I have said when dealing with Mr McWilliams’s alternative submission, that his Honour did not raise such a possibility with counsel and that he does not appear to have developed any such point in his sentence rather suggests that he did not reason in that fashion at all.

In coming to this view, I do not overlook Mr McLoughlin’s submission that the extent to which the judge emphasised the prior convictions in his reasons generally and the length of the sentences imposed both suggest that he must have erred in the way alleged. However, these points cannot be a makeweight for a complaint of specific error otherwise lacking in sufficient persuasive force (even if it is only just lacking). To be sure, his Honour’s emphasis on the prior convictions may well help explain how it is that he arrived at a manifestly excessive sentence, but that is a different question, to which I shall turn presently.

Thus, for the foregoing reasons, I reject this ground of appeal.

Grounds 2 & 3: Manifest excess and totality

Introduction

Ground 2 complains that the individual sentences, the directions for cumulation, the resulting total effective sentence and the non-parole period are manifestly excessive.

Ground 3 complains that the judge paid insufficient regard to the principle of totality.

It is convenient to consider these two grounds together, for they are, to a large extent, interrelated in this particular case.

Applicable legal principles: Manifest excess

The applicable principles are not in dispute. In the written response to Mr Lim’s written case, Mr McWilliams’s predecessor referred to Clarkson v The Queen,[54] where, in a joint judgment, five members of this Court (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA) said the following:[55]

[89] [T]he ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.[56]

[54]Clarkson v The Queen (2011) 32 VR 361.

[55]Clarkson v The Queen (2011) 32 VR 361 at 384[89].

[56]In a footnote at this point, their Honours referred to DPP v Karazisis (2010) 31 VR 634 at 662-663[127]; and FAJ v The Queen [2011] VSCA 137 at [23].

Applicable legal principles: Totality

Also in the response to the written case, on the totality principle, reference was made to the joint judgment of Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen,[57] where the following was said:[58]

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57 as follows (omitting references):
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong(’); ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”

See also Ruby, Sentencing, 3rd ed. (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

[57]Mill v The Queen (1988) 166 CLR 59.

[58]Mill v The Queen (1988) 166 CLR 59 at 62-63.

Unlawful assault (Charge 12)

While Ground 2 must also be regarded as made good in respect of the individual sentence on the unlawful assault of Ms Harvey, that fact adds nothing to Ground 1.

I shall return to the unlawful assault when considering resentencing.

Intentionally causing injury and threats to kill (Charges 2, 3, 4 & 5)

Submissions

While Mr McLoughlin submitted that the individual sentences on the offences of intentionally causing injury and threatening to kill are manifestly excessive, he did not address any separate argument in support of that submission.

As will be seen, his principal focus was the sentence on the aggravated burglary, the level of cumulation, the resulting total effective sentence and the non-parole period, to which I shall come shortly.

Discussion

I do not accept that any of the sentences on the offences of intentionally causing injury or threatening to kill is manifestly excessive.

Each offence involved vicious and terrifying behaviour directed against persons in or near (what should have been) the sanctity of their own home or property and to whom Mr Lim had been violent previously.

Charge 2 (intentionally causing injury): Mr Carter was assaulted and choked to the point of unconsciousness while doing his best to defend his daughter and granddaughter. He also sustained a black eye and cuts to his forehead, as well as pain in his ribs and knee.

Charge 4 (threat to kill): The threat made to Mr Carter was cruel. It was made all the worse by the fact that it was uttered at a time when, as a father and grandfather, he must have felt utterly helpless, not just for himself, but also for his daughter and granddaughter.

Charge 5 (threat to kill): Mr Lim’s threat to kill Ms Carter was also aggravated by the spiteful and false assertion that her father had just been killed.

Charge 3 (intentionally causing injury): While Ms Carter was not rendered unconscious by the sleeper hold placed on her, Mr Lim released his grip only when, with complete justification, he was struck by a police officer with a torch and placed in a headlock.

Given the nature and gravity of these particular offences and Mr Lim’s previous criminal history, the judge was correct to emphasise the importance of general deterrence, specific deterrence, denunciation and protection of the community. I would have added just punishment to the equation.

Both types of offence carry a maximum penalty of ten years’ imprisonment. That said, as serious as they were, these were far from objectively the gravest examples of intentionally causing injury or threatening to kill. No weapons were used. And there does not appear to have been any permanent (physical) injury suffered by Ms Carter or her father. No victim impact statements were filed, but it is reasonable to infer that all present would have been frightened and disturbed by Mr Lim’s violence.

There were also several important mitigating factors, including Mr Lim’s early pleas of guilty, his remorse, matters causing him hardship in custody, and his progress towards reform (about which I shall say more shortly).

Nevertheless, I cannot agree that individual sentences of two years’ imprisonment (for the intentional injury to Mr Carter) and 20 months’ imprisonment (for each of the other three offences against Mr Carter and his daughter) are manifestly excessive.

I take a different view, however, of the level of cumulation of these sentences upon the base sentence for aggravated burglary. I shall return to this issue later.

Persistent contravention of family violence intervention order (Charge 6)

I did not understand that any complaint was made about the sentence (of six months’ imprisonment, concurrent) imposed for the offence of persistent contravention of a family violence intervention order.

Nor could there be. The offence involved repeated instances of contravening the order by messaging Ms Carter by text or Facebook almost daily for over a month. The maximum penalty for the offence is five years’ imprisonment. Given Mr Lim’s history of breaching such orders, and the consequent heightened importance of specific deterrence, the sentence imposed was open to the judge.

Use of drug of dependence (Charge 11)

There was, of course, no complaint about his Honour’s decision to convict and discharge on the offence of using a drug of dependence.

Aggravated burglary (Charge 1), cumulation, total effective sentence and non-parole period

Introduction

I turn now to the sentence imposed on the aggravated burglary, the directions for cumulation, the resulting total effective sentence and the non-parole period.

While these different aspects of the sentence involve discrete considerations, there is also a degree of overlap among them that makes it convenient to deal with them together, while still observing the necessary distinctions. This was also the approach that counsel took at the hearing.

Submissions

Mr McLoughlin submitted that the sentence of six-and-a-half years’ imprisonment on the offence of aggravated burglary is manifestly excessive. Given the level of cumulation imposed on top of that sentence, in his submission, the total effective sentence (of nine years and seven months’ imprisonment) is also manifestly excessive and in breach of totality, which in turn renders the non-parole period manifestly excessive.

In the alternative, he submitted that, even if the individual sentence on the aggravated burglary is not manifestly excessive, it must be at the upper limit of sentences open (which Mr McWilliams conceded). If so, having imposed such a heavy sentence for that offence, it was not open to go on and order as much cumulation of the other sentences as his Honour did upon that sentence. To have done so, in Mr McLoughlin’s submission, produced a manifestly excessive level of cumulation and a total effective sentence which itself is manifestly excessive and in breach of totality, which, again, in turn rendered the non-parole period manifestly excessive.

Turning back to Mr McLoughlin’s first point, he accepted that the aggravated burglary had several serious attendant or aggravating features. But it lacked the two additional features that tend to be present in instances of aggravated burglary that attract sentences of the order imposed in this case — namely, the carrying of a weapon and the presence of co-offenders. In his submission, the offence also lacked the planning of some of the more serious instances of so-called confrontational aggravated burglary.

Mr McLoughlin referred to sentencing statistics that showed that, from the period 2012-13 to 2016-17, only four out of about 400 sentences imposed for aggravated burglary in the higher courts exceeded the sentence imposed in this case (i.e., four involved seven or more years’ imprisonment); and only four out of about 399 cases in which aggravated burglary was the principal offence exceeded the total effective sentence imposed in this case (i.e., four attracted total sentences of ten or more years’ imprisonment).[59] He also made the point that those statistics include sentences imposed following pleas of not guilty as well. The same source also shows that the average (or mean) sentence for aggravated burglary during the same period ranged from two years and six months’ imprisonment in 2012-13 to three years and three months’ imprisonment in 2016-17.[60]
[59]Sentencing Advisory Council, Sentencing Snapshot No 211: Aggravated burglary, June 2018, at Figure 3 and Figure 6.
[60]Sentencing Advisory Council, Sentencing Snapshot No 211: Aggravated burglary, June 2018, at Figure 4.

As to the directions for cumulation and the total effective sentence, Mr McLoughlin accepted that it was open to order some cumulation of the sentences for the injury and threat offences upon the sentence for the aggravated burglary. This was so particularly given that there were three separate victims (and a fourth indirect victim), the overall seriousness of that offending and the requirements of the serious offender provisions in respect of the offences of threatening to kill. On the other hand, he submitted that the fact that all of the offences were part of the one episode required to judge to limit the level of cumulation, as did the totality principle.

Mr McLoughlin also accepted that the fact that the offences were committed while serving a community correction order (“CCO”), and the additional fact that (most of) the offences were committed in breach of an intervention order, were features that counted against Mr Lim. He also accepted that Mr Lim’s criminal history for violence was relevant to the weight to be accorded to sentencing purposes such as specific deterrence, protection of the community and rehabilitation.

Mr McLoughlin also emphasised the mitigating factors, which included Mr Lim’s early pleas of guilty, remorse, hardship in custody, work towards reform and prospects of rehabilitation (albeit the judge was guarded on that score).

In his submission, given the foregoing, and despite what he conceded was the “extremely discreditable conduct involved”, the sentence for the aggravated burglary, the directions for cumulation, the resulting total effective sentence and the non-parole period overstated the individual and total level of criminality and the weight to be accorded to Mr Lim’s criminal history and paid insufficient regard to the factors in mitigation, and therefore were also manifestly excessive.

While the nature of a complaint of manifest excess is such that the reason for the error need not be identified, Mr McLoughlin submitted that it appears that the judge was overly influenced by his assessment of Mr Lim’s character as demonstrated by his prior criminal history. He submitted that his Honour must have lost perspective in consequence and that he thereby failed accurately to appreciate just where on the spectrum the offending sat or the true worth of the mitigating factors. In an attractive submission, Mr McLoughlin encapsulated his point in this way: while it was appropriate for the judge to find that Mr Lim’s offending was contemptible, and he should be sentenced accordingly, it was not appropriate to sentence him for being a contemptible person.

Mr McWilliams accepted that the sentence for aggravated burglary and the total effective sentence were towards the “top end” of the range of sentences available, but submitted that, given the gravity of the conduct, Mr Lim’s prior criminal history and all other relevant considerations, they were nevertheless open in the exercise of sound discretionary judgment.

As for the aggravated burglary, Mr McWilliams emphasised the forcible manner of, and the violent intention accompanying, Mr Lim’s entry to the home; his knowledge that Ms Carter’s child and her father would be present as well; the early hour of the intrusion; and the terrifying nature of Mr Lim’s presence.

Mr McWilliams also pointed to Mr Lim’s criminal history, especially for violence against Ms Carter and other women, the fact he was serving a CCO, his breach of the family violence intervention order and his state of drug-affectedness and intoxication as factors justifying a heavy sentence.

He submitted that, while the absence of a weapon and co-offenders meant the absence of further aggravating features, the aggravated burglary was nevertheless so serious as to warrant the sentence imposed.

As for the level of cumulation and the total effective sentence, he drew on essentially the same submissions, but added some other points, including the following. First, while the offences were committed as part of the one continuous episode, there were three separate victims (plus the indirect child victim who was hugging her mother’s leg). Secondly, there were cruel aspects to the threats and dangerous aspects of the choker holds. As he said, these were not idle threats of the type hurled from the window of a passing car: Mr Lim was either engaging in actual violence at the same time or was about to do so. Thirdly, the threat to the elderly neighbour was nasty and gratuitous. Fourthly, overall, this was “dreadful” offending. Fifthly, Mr Lim was a “determined recidivist”, such that specific deterrence was an important sentencing purpose, as were general deterrence, denunciation, protection of the community, just punishment and rehabilitation.

In Mr McWilliams’s submission, when all of these factors and the other relevant matters are considered, it can be seen that the level of cumulation, the resulting total effective sentence and the non-parole period were all open.

Discussion

I accept that the aggravated burglary was a very serious instance of that offence. It was perpetrated on a family’s home in the early hours of the morning, when most would be expected to be asleep. Mr Lim’s mode of entry was to force the door despite Mr Carter’s resistance. His intention upon entry was to assault a person inside, knowing persons were inside. The judge found that Mr Lim would have known that Ms Carter’s daughter also would be present. The offence (like most of the other offences) was committed in breach of the family violence intervention order and while Mr Lim was subject to a CCO. It also represented an escalation in the gravity of his offending over time. The judge also found that Mr Lim’s “use of drugs and alcohol on the evening and prior to [his] attack on the victims is not a matter in mitigation but to the contrary”.[61] In those circumstances, even without any actual or threatened violence after the offence was complete upon entry, I consider Mr Lim’s mere presence would have been a frightening thing for those at the home. His Honour was also right to emphasise general deterrence, specific deterrence, denunciation and protection of the community as important sentencing purposes.
[61]DPP v Lim [2018] VCC 1474 at [37].

On the other hand, that Mr Lim was unarmed and alone (which the judge acknowledged) meant that the offence lacked aggravating features that would have placed it in a more serious category. These are important factors. As will be seen shortly when considering a comparative case, experience tells that the presence of weapons and multiple offenders tends to lead to greater fear and far more serious violence. This Court has said that the taking of a weapon for the purposes of committing a burglary “markedly increases the objective gravity of the offence” and that it “makes the situation inherently dangerous”.[62] Indeed, concern about the risks involved in multiple individuals being armed with weapons is in part the policy justification for the retention of the doctrine of extended common purpose in homicide in the common law of Australia.[63]
[62]DPP v Bowden [2016] VSCA 283 at [30] (per Maxwell P, Redlich and Kyrou JJA).
[63]See, for example, Miller v The Queen (2016) 259 CLR at 397[32]-398[34] (per French CJ, Kiefel, Bell, Nettle and Gordon JJ), 422[121] & 422[123] (per Gageler J) and 429[145]-430[148] (per Keane J).

Another point, albeit much less significant, is that, while most might be expected to be asleep at 5:00 a.m., it is the start of the day for many, and it is not as if this offence had been committed at, say, 2:00 a.m. As it happened, Ms Carter was up and about, and was able to alert her father to Mr Lim’s presence after she heard him tapping on the door.

The mitigating factors were of considerable significance in this case. First, Mr Lim pleaded guilty at an early stage. The judge accepted that those pleas involved an acknowledgment by Mr Lim of his responsibility. They also obviated the need for a contested committal or trial, and thereby spared the witnesses (especially the victims) the ordeal of reliving these events by giving evidence about them.

Secondly, his Honour also accepted that Mr Lim had shown remorse through his pleas of guilty, his letter tendered on the plea and in his discussions with the psychologist Ms Warren.

Thirdly, he had also suffered hardship in custody as a result of his medical problems. These included a concern that he had a brain tumour; an operation to remove a mucus mass from his head; related breathing/snoring difficulties which put him at risk of assault by other prisoners; and impaired hearing which necessitated hearing aids. As I read his reasons, the judge accepted that there would be particular hardship, not only in believing he had a brain tumour, but also as a result of the surgery to remove the mass and the ongoing uncertainty about his health in that regard. The judge also accepted that “the thought of having a brain tumour has woken [Mr Lim] up to [his] problems”.

Finally, his Honour accepted that Mr Lim’s work history and his lack of prior convictions (until he started taking ‘ice’ in his thirties) gave a basis for concluding that his prospects of rehabilitation were reasonable — although he was “a little more guarded” than that, since those prospects depended upon his ability to cease taking drugs. Other factors that augur well for Mr Lim’s rehabilitation include that he has shown he can work in various occupations, including in the disability field, and that he participated in all available courses while on remand.

Comparable cases

In the written case for Mr Lim and at the hearing, counsel referred to some decisions of this Court concerning sentences imposed for aggravated burglary and assault-related offending committed thereafter.[64] I have considered those decisions and others.[65]
[64]In the written case for Mr Lim, previous counsel referred to DPP v Bowden [2016] VSCA 283; Gale v The Queen [2014] VSCA 168; Carrington v The Queen [2015] VSCA 175; Evison v The Queen [2014] VSCA 132; Cartwright v The Queen (2015) 45 VR 168; Bux v The Queen [2017] VSCA 70; and Hi v The Queen [2017] VSCA 315. In passing, Mr McWilliams mentioned the sentence of eight years’ imprisonment for aggravated burglary in DPP v Cooper [2018] VSCA 21, but accepted that it was quite different from and more serious case than Mr Lim’s case.
[65]The judge referred additionally to Bradshaw v The Queen [2017] VSCA 273 and DPP v Meyers (2014) 44 VR 486 in his reasons for sentence, to which I have had regard as well.

Counsel recognised that other sentencing decisions, whether by this Court or trial courts, are not precedents to be applied or distinguished. They do no more than act as ‘yardsticks’ against which to compare an instant case and as data for the purposes of forming a range of sentences that might be considered for related offending so as to assist in attempting to achieve consistency in sentencing and in the application of relevant sentencing principles.[66]
[66]See, for example, The Queen v Kilic (2016) 259 CLR 256 at 267[22] (per Bell, Gageler, Keane, Nettle and Gordon JJ). See also DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428 on the approach to be taken to current sentencing practices.

Of the cases considered, it struck me that this Court’s decision concerning one of the (two) respondents to the Director’s appeal against sentence in DPP v Barnes & Barnes[67] was the most helpful comparator. Both the similarities and the differences between that case and Mr Lim’s case make that so. In the circumstances, I think it is instructive to spell out the detail of Barnes.
[67]DPP v Barnes & Barnes [2015] VSCA 293 at [45]-[48] (per Croucher AJA; with Redlich JA and Kyrou JA agreeing) (some footnotes omitted).

Trevor Barnes was estranged from his wife Emma Bethune. He had a history of serious violence against her. Only three days before committing the offences the subject of the appeal, he had been released from a three-month stint in prison, on a nine-month partially-suspended sentence, for offences that included assaulting Ms Bethune and multiple breaches of an intervention order she had against him.

At 5:00 a.m. on the day in question, Trevor Barnes and his younger brother Glenn Barnes surreptitiously entered Ms Bethune’s farmhouse in Sunbury as trespassers through an unlocked door. Each man was carrying a jemmy bar. Trevor Barnes had violence on his mind. Ms Bethune had moved to this address, hoping to keep it a secret from her estranged husband, of whom she was afraid. Upon entry to the house, the brothers moved to the bathroom. Ms Bethune and her new partner Mr Karaula were in the shower together, naked. This was too much for Trevor Barnes. He went berserk, smashing the door of the shower. He then struck Mr Karaula several times to the head with the jemmy bar, causing him to fall unconscious onto the glass-splintered floor and to suffer a fractured skull, a broken nose, a large gash to his head and other cuts to his leg and arm.

Ms Bethune fled in terror. Trevor Barnes gave chase and caught her near the lounge room. He struck her on the back with the jemmy and screamed, “Is this why you want a divorce?” He then struck her on the head and legs with the jemmy, and kicked her in the face and chest. She suffered a laceration to (what he knew to be) her only kidney, a wound to her head, and numerous bruises, abrasions and incisions to other parts of her body. Trevor Barnes then pulled out a Stanley knife. In order to get him to stop, Ms Bethune told him she loved him. Glenn Barnes, who was standing nearby, pointed out that Ms Bethune was bleeding, which, fortunately, caused him to desist.

Trevor Barnes took his wife to the emergency department of a nearby hospital. Mr Karaula was not favoured with such courtesy: he was left to his own devices. However, things were not as they seemed. Mr Barnes told his estranged wife not to tell staff that he was her assailant but, instead, that he found her in an injured state. Despite this cunning plan, Ms Bethune, at some opportune point, was able to whisper the truth to a doctor, who then contacted police. Trevor Barnes was arrested and charged five days later.

When interviewed by police, he compounded his misconduct by claiming not to know how his wife and Mr Karaula became injured. He and his brother just happened along to find her that way, so he said. Ultimately, he pleaded guilty in the County Court to aggravated burglary and to two counts of intentionally causing serious injury (which carries a maximum penalty of 20 years’ imprisonment).

As I have noted, the cases of Trevor Barnes and Mr Lim are similar, in several ways. For example:

· Each had a disturbing history of violence towards his former partner and of breaching intervention orders.

· Each pleaded guilty to aggravated burglary and assault-related offending against his former partner and at least one other person with her.

· Each had failed to cope with the end of the relationship with his former partner and had acted out in these violent ways.

But there were also important differences too. For example:

· Mr Barnes’s aggravated burglary was committed in company and each offender had a lethal weapon.

· His offences of violence after entry were far more serious than those committed by Mr Lim, involving, as they did, the frenzied and extremely vicious use of a jemmy bar in company and the causation of far more serious injuries in consequence.

· Both of Mr Barnes’s victims were extremely vulnerable, as they were taken completely by surprise while naked in the shower. Indeed, it was no exaggeration to say that, by striking each victim to the head with a jemmy bar, he could have killed Mr Karaula or Ms Bethune.

· While both men seem to have similar prospects for rehabilitation, Mr Barnes’s pleas of guilty came late (i.e., after committal and while in the reserve list awaiting trial) and did not evince remorse, whereas Mr Lim’s pleas of guilty came early (i.e., prior to committal) and he was found to be remorseful.

As a result, much heavier sentences were warranted in the case of Mr Barnes than in the case of Mr Lim, and especially so in respect of the assault-based offences.

The judge of the County Court imposed on Trevor Barnes a total effective sentence of six years’ imprisonment with a non-parole period of three years.

On the Director’s appeal against the inadequacy of the sentences, this Court allowed the appeal and resentenced Mr Barnes to four years’ imprisonment on the aggravated burglary and to five-and-a-half years’ imprisonment on each count of intentionally causing serious injury.[68] After orders for cumulation, the total effective sentence was eight years’ imprisonment with a non-parole period of five years. But for the constraining effect of the undisturbed lesser sentences imposed on Glenn Barnes (because of the operation of the principles of parity among co-offenders), the individual sentences, the total effective sentence and the non-parole period imposed on Trevor Barnes would have been longer.[69]
[68]Trevor Barnes was sentenced as a “serious violent offender” on the second offence of intentionally causing serious injury (DPP v Barnes & Barnes [2015] VSCA 293 at [65], [68] & [76]).
[69]DPP v Barnes & Barnes [2015] VSCA 293 at [52], [72], [88] & [160].

In my view, it is plain that, as serious as Mr Lim’s offences were, whether considered individually or collectively, they were not as serious as those committed by Trevor Barnes. Thus, even allowing for the constraining effect of parity, when regard is had also to the other key relevant similarities and differences between the two cases, the sentences imposed on Trevor Barnes stand in stark contrast to Mr Lim’s sentence of six-and-a-half years’ imprisonment for a less serious aggravated burglary and a total effective sentence of nine years and seven months’ imprisonment with a non-parole period of seven years for substantially less serious overall criminality.

Conclusions

I turn now to my conclusions.

In view of the foregoing, I am persuaded that the sentence of six-and-a-half years’ imprisonment on the aggravated burglary, the cumulation of three years and one month’s imprisonment of the other sentences upon the base sentence, the resulting total effective sentence of nine years and seven months’ imprisonment and the non-parole period of seven years are all manifestly excessive and in breach of totality.

I also accept Mr McLoughlin’s alternative submission to the effect that, even if the sentence on the aggravated burglary is not manifestly excessive but is merely at the very top of the range of sentences available, to impose over three years’ worth of cumulation of the other sentences and thereby produce the total effective sentence and non-parole period that were fixed is nevertheless manifestly excessive and in breach of totality.

I should add that I reach these conclusions irrespective of whether it is proper to treat, and irrespective of whether the judge did treat, Mr Lim’s prior convictions as “relevant to [his] assessment of the gravity [or objective gravity] of [his] crimes”.

While it is unnecessary to identify where any error in reasoning might have occurred, I think it is likely that the judge placed too much weight on Mr Lim’s prior criminal history, was overwhelmed by the gravity of the offending or gave insufficient weight to the mitigating factors, or that some combination of these factors was operative.

In either case, the sentencing discretion must be regarded as reopened on all aspects of the sentence.

Accordingly, I turn to consider resentencing.

Resentencing

Affidavit

At the hearing of the application, without objection, the Court received an affidavit affirmed by Mr Lim’s solicitor. Annexed to the affidavit were certificates attained and a list of courses attended by Mr Lim while in custody. The affidavit was received on the basis that it contained information relevant to resentencing, should the Court get to that point. In essence, as Mr McLoughlin explained, the new material shows that Mr Lim has continued on the path of self-improvement that he was on at the time of the plea hearing.

I have considered the new material. In my view, that Mr Lim has continued his education and occupied himself in these ways adds to his prospects of rehabilitation.

Aggravated burglary

On the aggravated burglary, I propose a sentence of five years’ imprisonment.

In my opinion, such a sentence would give adequate recognition to all relevant considerations, including the maximum penalty, current sentencing practices, the nature and gravity of the offence, Mr Lim’s culpability and degree of responsibility for the offence, the impact on the victims, Mr Lim’s prior convictions, the fact that the offence was committed in breach of the intervention order and while serving a CCO, his plea of guilty and the other factors in mitigation or aggravation.[70] Like the judge, I have sought to emphasise the importance of the sentencing purposes of general deterrence, specific deterrence, denunciation and protection of the community. I have also given weight to just punishment and rehabilitation, and have applied the principle of parsimony.[71]
[70]See the Sentencing Act 1991 (Vic), s 5(2)(a), (b), (c), (d), (daa), (db), (e), (f), and (g).
[71]See the Sentencing Act 1991 (Vic), ss 5(1), (3) and (4).

While this sentence is a good deal heavier than the sentences imposed in (what I consider to be) the more serious cases of aggravated burglary in, say, Meyers and Barnes, it must be remembered that special features constrained this Court in resentencing in each of those cases.[72]
[72]In DPP v Meyers (2014) 44 VR 486 at 489[7], the constraining factor was the position of the prosecutor on the plea; and in DPP v Barnes & Barnes [2015] VSCA 293 at [52], [72], [88] and [160], the constraining factor was parity vis-à-vis the undisturbed sentence of the co-offender.

In any event, this is the sentence that I think is necessary to achieve all the relevant purposes of sentencing for this offence by this offender.

Assault on Ms Harvey

Balancing all matters, I would impose a sentence of two months’ imprisonment for the assault on Ms Harvey. In my view, such a sentence would allow sufficient weight to the same factors just mentioned (with necessary adaptation), including, importantly, the maximum penalty (of only three months’ imprisonment) and Mr Lim’s early plea of guilty to the offence.

Other offences

Since none of the other individual sentences imposed by the judge were manifestly excessive — indeed, I think they were all appropriate — I would re-impose the same sentences. Each of those sentences adequately recognises the same factors I mentioned when dealing with aggravated burglary (again, with necessary adaptation).

Further, in the case of the two charges of threatening to kill, I have taken into account, as the judge did, the requirement in s 6D(a) of the Sentencing Act 1991 (Vic) — namely, that protection of the community from the offender must be regarded as the principal purpose for which sentence is imposed.

Cumulation, total effective sentence and non-parole period

In considering the proposed orders for cumulation, I have had regard, on the one hand, to the continuing nature of the episode of offending and the temporal overlap between the threat to Mr Carter and the behaviour causing him injury and, on the other, to the fact that there were three separate victims (and a fourth indirect victim, in the case of the child), as well as the requirements of s 6E of the Sentencing Act in respect of the sentences for threatening to kill. In proposing the individual sentences and the orders for cumulation between the sentences for aggravated burglary and the subsequent offences of violence, I have sought to avoid double punishment. I have also ‘stood back and taken a last look’ to ensure that the overall criminality is not overstated or understated in the total effective sentence in view of all competing considerations.

In the result, I would direct that eight months of the sentence for the offence in Charge 2 (intentionally causing injury to Mr Carter), five months of the sentence on each of the offences in Charge 3 (intentionally causing injury to Ms Carter), Charge 4 (threat to kill Mr Carter) and Charge 5 (threat to kill Ms Carter), and one month of the sentence for the offence in Charge 12 (the summary offence of assault on Ms Harvey) be served cumulatively upon the sentence for the offence in Charge 1 (aggravated burglary) and on each other.

That would make a total effective sentence of seven years’ imprisonment.

I would fix a non-parole period of five years.[73]
[73]See s 11 of the Sentencing Act 1991 (Vic).

In my view, that period would adequately reflect all of the sentencing purposes mentioned earlier, and also would allow for Mr Lim’s conditional freedom on parole at an appropriate time. Whether — and, if so, when — he is released on parole will be a matter for the Parole Board, not this Court.

Pre-sentence detention

Pursuant to s 18 of the Sentencing Act, I would declare that, including today, Mr Lim has served 777 days in custody under this sentence.

Section 6AAA declaration

Declarations pursuant to s 6AAA of the Sentencing Act are notoriously difficult to estimate. This is because the presence or absence of a plea of guilty tends to impact on other sentencing considerations, such as remorse, the weight to be accorded to specific deterrence, prospects of rehabilitation and so on. Nevertheless, doing the best I can, I would declare that, but for Mr Lim’s pleas of guilty, I would have proposed a total effective sentence in the order of nine-and-a-half years’ imprisonment with a non-parole period in the order of seven years.

Proposed orders

Accordingly, I would grant leave to appeal; treat the appeal as instituted and heard instanter; allow the appeal; set aside the sentences imposed in the County Court; and resentence Mr Lim in accordance with the following table:

Charge

Offence

Maximum

Sentence

Cumulation

1

Aggravated burglary

25 years

5 years

Base

2

Intentionally causing injury (Mr Carter)

10 years

2 years

8 months

3

Intentionally causing injury (Ms Carter)

10 years

20 months

5 months

4

Threat to kill (Mr Carter)

10 years

20 months

5 months

5

Threat to kill (Ms Carter)

10 years

20 months

5 months

6

Persistent breach of FVIO

5 years

6 months

None

11 (summary offence)

Use of drug of dependence (methylamphetamine)

1 year

Convicted & discharged

N.A.

12 (summary offence)

Unlawful assault (Ms Harvey)

3 months

2 months

1 month

Total effective sentence:

7 years

Non-parole period:

5 years

Pre-sentence detention:

777 days

Section 6AAA declaration:

TES: 9½ years
NPP: 7 years

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25 years	5 years	Base
2	Intentionally causing injury (Mr Carter)	10 years	2 years	8 months
3	Intentionally causing injury (Ms Carter)	10 years	20 months	5 months
4	Threat to kill (Mr Carter)	10 years	20 months	5 months
5	Threat to kill (Ms Carter)	10 years	20 months	5 months
6	Persistent breach of FVIO	5 years	6 months	None
11 (summary offence)	Use of drug of dependence (methylamphetamine)	1 year	Convicted & discharged	N.A.
12 (summary offence)	Unlawful assault (Ms Harvey)	3 months	2 months	1 month
Total effective sentence:	7 years
Non-parole period:	5 years
Pre-sentence detention:	777 days
Section 6AAA declaration:	TES: 9½ years NPP: 7 years

I would confirm all other orders and declarations of the County Court, including that, pursuant to s 6F of the Sentencing Act, in respect of the offences of threatening to kill in Charges 4 and 5, Mr Lim is sentenced as a serious offender.

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Details

AGLC: Lim v The Queen [2019] VSCA 182
Case: [2019] VSCA 182
Decision Date: 16 August 2019

CaseChat Overview and Summary

In the case of Lim v The Queen, the applicant, who was found guilty of multiple criminal offences, sought leave to appeal against the severity of his sentence. The applicant was convicted of aggravated burglary, intentionally causing injury, threatening to kill, persistent breach of an intervention order, and summary assault. The events leading to these charges occurred when the applicant, under the influence of drugs and alcohol, forced his way into the home of his former partner, where he threatened to kill her father, rendered him unconscious, and subsequently assaulted the former partner and a neighbour. The applicant had a history of violence against the former partner and others, and was in breach of an intervention order at the time of the offence. The court was required to decide whether the sentence imposed on the summary assault charge exceeded the maximum penalty, whether the judge had correctly considered the prior convictions in assessing the gravity of the crimes, whether the sentence for the aggravated burglary was manifestly excessive, and whether the cumulative sentences and non-parole period were excessive or in breach of the principle of totality.

The court found that the sentence for the summary assault did exceed the maximum penalty and that the judge had erred in considering the prior convictions as relevant to the gravity of the crimes. The court also found that the sentence for the aggravated burglary was not manifestly excessive but acknowledged the cumulative sentences and non-parole period were manifestly excessive. The applicant's medical problems, which created particular hardship in custody, and the reasonable prospects of rehabilitation were factors considered by the court in reassessing the sentence. The court granted the application for leave to appeal, allowing the appeal, and admitted new evidence on resentencing. The applicant was resentenced to a total effective sentence of seven years' imprisonment with a non-parole period of five years.

The final orders of the court reflected the resentencing of the applicant, taking into account the factors of the maximum penalty error, the inappropriate consideration of prior convictions, and the excessive cumulative sentences. The court's decision resulted in a reduction of both the total effective sentence and the non-parole period, demonstrating the court's consideration of the applicant's circumstances and the principle of proportionality in sentencing.

Orders