Njovu v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0206

MARVIN NJOVU	Applicant
v
THE KING	Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 85
JUDGMENT APPEALED FROM:	[2024] VCC 1574 (Judge Maidment)

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Criminal damage, intentionally cause injury, attempt to pervert the course of justice and persistent contravention of a family violence safety notice – All offending occurred within the context of family violence – Whether term of imprisonment with non-parole period manifestly excessive – Whether time served with Community Correction Order the only available sentencing option open – Leave to appeal refused.

Boulton v The Queen (2014) 46 VR 308; DPP v Reynolds (a pseudonym) (2022) 71 VR 366, referred to.

Skeates (a Pseudonym) v The King [2023] VSCA 226, applied.

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Counsel on the papers
Applicant:		Mr E Daniel (solicitor)
Respondent:		Ms A French
Solicitors
Applicant:	Daniel Legal Group
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

On 2 May 2024 the applicant pleaded guilty to charges of criminal damage, intentionally cause injury, attempt to pervert the course of justice and persistent contravention of family violence safety notice. On 21 August 2024 the applicant pleaded guilty to the summary offence of unlawful assault. On 8 October 2024 the applicant was sentenced in relation to all charges as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Criminal damage (intent damage/destroy)[1]	10 years	2 months	Concurrent
2	Intentionally causing injury[2]	10 years	15 months	5 months
3	Attempt to pervert the course of justice[3]	25 years	2 years	Base
4	Persistent contravention of family violence safety notice[4]	5 years or 600 penalty units	14 months	4 months
Related Summary Offences
1	Unlawful assault[5]	15 penalty units or 3 months	1 month	Concurrent
Total Effective Sentence:		2 years 9 months
Non-Parole Period:		1 year 10 months
Pre-sentence Detention Declared:		154 days
Section 6AAA Statement:		Total Effective Sentence 3 years 10 months Non Parole-Period 2 years 7 months

[1]Contrary to s 197(1) of the Crimes Act 1958.

[2]Contrary to s 18 of the Crimes Act 1958.

[3]Contrary to Common Law.

[4]Contrary to s 125A(1) of the Family Violence Protection Act 2008.

[5]Contrary to Common Law.

The applicant now seeks leave to appeal against his sentence.
The proposed ground of appeal against sentence is:
The individual sentences for charges 2, 3 and 4, the total effective sentence, the non-parole period imposed, and the orders for cumulation are manifestly excessive and offend the principle of parsimony in view of:
(a) the appellant's (sic) lack of alleged prior criminal history,
(b)the appellant's (sic) remorse which is reflected in the plea of guilty at the earliest opportunity and his reported active participation in the Men's Behaviour Change Program since the date of offending,
(c)the period of two years and nine months which had passed between the last date of offending and the date of sentencing,
(d) the appellant's (sic) good prospect of rehabilitation,
(e) the current sentencing practices and the least severe sentencing options given in comparable cases, and
(f) the fact that, on a proper exercise of a sentencing discretion, there was nothing else other than a sentencing option of a short term of imprisonment together with a lengthy Community Correction Order ('CCO') was available to the sentencing judge.
For the reasons that follow the application for leave to appeal against sentence should be refused.

Circumstances of offending

In March 2021 the applicant and AW commenced an intimate relationship and in April 2021 AW moved in to the applicant’s apartment with him. On 7 May 2021 the applicant and AW were sitting in AW’s car together when they had an argument. The applicant became angry and punched the windscreen of the vehicle three times. This caused the windscreen to shatter (charge 1).
On 16 May 2021 the applicant and AW were at their shared apartment. During the course of the evening the pair began to argue and the applicant punched AW in the face. This rendered AW unconscious and left two gashes on her lips. The following day AW was in a lot of pain. She attended the Alfred Hospital and received medical care (related summary offence 1).
On 22 August 2021 the applicant and AW were at their shared apartment when AW made a comment which angered the applicant. She apologised several times but he became angrier. The applicant grabbed AW by the throat and threw her onto the floor where she hit her head. The applicant then got on top of AW and wrapped his hands around her throat. He began to strangle her so that she could not breathe. This lasted for about seven seconds. AW felt scared for her life. She sustained redness and bruising around her neck and the underside of her chin (charge 2).
After the choking ceased the applicant moved off AW. She attempted to calm him down. The applicant grabbed a hammer and told AW that he would smash her face if she ‘didn’t shut up’. He then told AW to take off her clothes so he could send a photo to his friends to ‘show them what a “whore” she was’. AW was terrified and complied with the applicant’s demand.
On 24 August 2021 AW attended Victoria Police in relation to the above three incidents. She showed police photographs of her injuries sustained on 16 May 2021. Police took photographs of the injuries sustained by AW on 22 August.
The applicant was arrested, cautioned and interviewed the same day. He was subsequently charged and bailed. During the interview the applicant admitted breaking the windscreen. He said he did it out of frustration and did not hit it ‘that hard’. In relation to the 16 May 2021 incident he said that he and AW had an argument and he went to restrain her. He said that he was not sure how she fell and cut her mouth. In relation to the 22 August 2021 incident he said that AW had thrown a plate at him, he showed his disapproval and ‘grabbed her to control her’, at which point they fell to the ground. The applicant further said that he grabbed her upper arms to stop her throwing things, they ‘tussled’ and fell to the floor where he thought she had hit her head. As to the red marks and bruising around AW’s neck and chin, the applicant said ‘we had sex that night and she likes rough sex’.
A Family Violence Safety Notice (‘FVSN’) was served on the applicant on 25 August 2021. The FVSN served on the applicant prohibited him from:
(a)Committing family violence against AW.
(b)approaching, telephoning or otherwise contacting AW unless in the company of a police officer.
(c)Being anywhere within 5 metres of AW.
(d)Being at or within 200 metres of any place where AW lives.
(e)Causing another person to engage in conduct prohibited by the notice.
During September 2021 the applicant resumed an intimate relationship with AW. By 5 October 2021 the applicant was attempting to persuade AW to withdraw her complaints against him. On that day the applicant sent AW a draft statement, intended to be sent to the police, withdrawing her previous statements and requesting charges against the applicant be dropped. Between 5 October and 14 November 2021 the applicant contacted AW by text message on at least seven different dates to pressure her to make a statement of no complaint. He also contacted her for the same purpose by email on two separate occasions. Those communications included a suggested draft statement in the following terms.
To whom it may concern,
I would like to withdraw the statement I made on the 24^th August.
The Main reason for this is that the information I provided is not accurate and should next (sic) be used as evidence and or anything regarding any related charges towards [the applicant].
My mental state, alcoholism and the fact I was not taking my medication during the period leading up to the statement made including an inaccurate statement has brought me to do the right thing and withdraw it.
I want all the multiple charges towards [the applicant] dropped as they also are not accurate or relevant.
The purpose and outcome of what I wanted has spiralled out of control and has impacted me more than I can take on. [The applicant] and I are in a relationship and he has been the person supporting, helping and giving me strength each day.
The statement was made during a moment of weakness.
Please withdraw my statement and drop all charges against my partner [the applicant].
Thank you
On 3 November 2021 AW attended a police station and made a statement of no complaint. In it AW said that she ‘wasn’t in the right mental state’ and was affected by alcohol when she made the initial complaint.
On 22 December 2021 police conducted a telephone welfare check on AW. She told police that she and the applicant were no longer living together and that during the brief time they had resumed their relationship, she had been coerced by him into the statement of no complaint. AW signed a statement to that effect on 27 December 2021 (charge 3).
In the statement made 27 December 2021 AW also said that there was an incident in November 2021 when the applicant would not leave her flat. (Charge 4 – in combination with the October and November 2021 correspondence).
The applicant was arrested on 11 January 2022. In an interview police asked him about the text messages sent to AW. He said that she had been arrested for breaking into his home and stealing his phone and that she was the last person that had his phone before it started having problems with hacking. He said that he told AW that she needed to tell the truth about her mental health, alcoholism and lies. The applicant also said that he had seen a draft email on her phone about withdrawing the charges and that he had told her to make sure she was telling the truth. He claimed that he had no reason to manipulate her or make her change her mind.

Sentencing Reasons[6]

[6]DPP v Njovu [2024] VCC (‘Reasons’).

The judge commenced his Reasons by noting the applicable maximum penalties and the applicant’s lack of prior convictions. The judge then summarised the offending.[7]
[7]The respondent notes an error in the factual summary in paragraph [25] of the Reasons. The prosecution opening before the judge was to the effect that between 5 October 2021 and 14 November 2021 the applicant contacted AW by email on two occasions and by text message on at least seven different dates. The judge misdescribed the applicant as having sent seven separate text messages and two emails between those dates. The applicant raises no issue with respect to this matter. Indeed, it is trivial.
The effect of the applicant’s offending on AW was next addressed. The judge noted that in her victim impact statement AW had said that the physical wounds would heal but the emotional scars would remain.
The judge then addressed the matters that were put on the plea by the applicant’s counsel.
It was not accepted that the plea of guilty had been entered at the earliest opportunity. AW had been cross-examined some two years after the offending occurred. Nonethless the judge did accept that the plea was of significant utilitarian value and had saved AW from further cross-examination and the stress of a trial. The judge also accepted that it was some evidence of remorse. The applicant was described as an ‘intelligent and business-orientated person’. The judge accepted that his prospects of rehabilitation were good.
The judge described the applicant’s personal circumstances as follows. He was born in 1981 and has a younger sister. His mother is a neo-natal intensive nurse and midwife. His father is a medical doctor. The applicant was attracted by business and worked in various roles including as a business development manager and managing director for a number of companies. After the applicant married he formed a company with his wife. That marriage produced a child, aged eight years at the time of sentence. The applicant was no longer married, but had an amicable relationship with his ex-wife and was involved in the life of his child.
The judge said that the applicant was required, as part of his bail conditions, to attend a 20 week men’s behaviour program between 13 November 2023 and 21 February 2024. The judge noted that the applicant had completed only three-quarters of that program, failing to attend five sessions.
Current sentencing practice was referred to by the judge, who noted that ordinarily a charge of attempting to pervert the course of justice gives rise to a substantial term of imprisonment. The judge said that one of the aggravating features in the applicant’s case was that his offending was linked to a course of conduct involving domestic violence and the attempt to avoid the consequences of his course of violence and intimidation aimed at AW. The judge also said that general deterrence is a very significant sentencing consideration with respect to domestic violence offences.
The judge said that he needed to impose a just punishment, to denounce the applicant’s conduct and give proper weight to both general and specific deterrence. In that regard the judge noted that the applicant had ample time to consider and reconsider his behaviour towards AW. It was also noted that the applicant persisted with lies to police designed to hide his offending.
Finally, the judge said he was not persuaded by the argument that a community correction order (‘CCO’) with time served would be sufficient to meet the various sentencing considerations.

Applicant’s contentions

The applicant’s main contention is that the wrong type of sentence has been imposed. That is, the individual sentences of imprisonment imposed with respect to charges 2, 3 and 4, the orders for cumulation, the total effective sentence and the non-parole period are manifestly excessive because they offend the principle of parsimony. It is argued that the only sentencing option available to the judge was a short term of imprisonment equal to the time already served coupled with the imposition of a CCO. It is put that there is no evidence that the judge considered, as he was required to by s 5(4C) of the Sentencing Act 1991, whether the identified sentencing purposes could be achieved by a CCO to which one or more of the specified conditions was attached.
In support of that argument the applicant relies upon the observations of this Court in Boulton v The Queen[8] and rehearses the matters put on the plea before the judge. That is, the plea was entered ‘at the earliest opportunity’, the applicant’s lack of prior criminal history, his remorse and participation in the Men’s Behaviour Change Program and his good prospects for rehabilitation. The applicant additionally contends that, although not agitated during the plea hearing, the delay of two years and nine months between the end of the offending and the sentence was significant and its relevance ‘ought to have been apparent’ to the judge. The sentences are further said to be contrary to current sentencing practice as well as the least severe sentencing options given in comparable cases.
[8](2014) 46 VR 308; [2014] VSCA 342 (‘Boulton’).

Respondent’s contentions

The respondent submits that it was open to the judge to determine that the relevant sentencing purposes could not be sufficiently served by the making of a CCO.
It is argued that the offending was very serious. Each of the charges to which the applicant pleaded guilty was a serious example of its type. Just punishment, denunciation and deterrence were therefore all significant factors in the sentencing exercise.
As to the matters relied upon by the applicant in mitigation of penalty, the respondent submits that the plea was not entered at the earliest opportunity. The applicant conducted a s 198 B Criminal Procedure Act 2009 hearing of AW during which her version of events was challenged. He had made no plea offer prior to that hearing which occurred two years after the commission of the offending. It follows, the respondent argues, that the applicant has demonstrated little remorse. In that regard the respondent notes that the applicant told lies in his interviews with police. The respondent submits that the applicant did not complete the Men’s Behaviour Change Program. Further, he did not enrol in any other such program.
It is put that the applicant made no submission to the judge that the period of two years and nine months between offending and sentencing weighed heavily on his mind. Further, the judge was cognizant of the delay, asking the applicant’s counsel how it should be taken into account. The answer was that in that time the applicant had not committed any offences of violence and had developed insight into his offending.
As to the applicant’s good prospects for rehabilitation, it is argued that less weight is to be given to that factor in cases of domestic violence offending.
Finally the respondent submits that the sentences imposed by the judge are consistent with current sentencing practices. It is argued that the cases provided by the applicant as ‘comparable’ are in fact not in terms of the nature and circumstances of the offending and the circumstances of the offender.

Consideration

A ground of appeal arguing manifest excess is difficult to make out. It must be established that the sentence imposed by the judge was wholly outside the range of options available in the sound exercise of sentencing discretion.
The applicant has failed to do so.
The applicant’s offending was very serious. The offending relevant to charge 2 involved him twice grabbing the victim by the throat. On the second occasion AW was choked for approximately seven seconds to the point where she had difficulty breathing. As this Court has observed, ‘… within the context of domestic or family violence, choking represents a chilling exploitation of physical power or dominance.’[9]
[9]DPP v Reynolds (a pseudonym) (2022) 71 VR 366 [80] (T Forrest JA and Kidd AJA); [2022] VSCA 263.
That AW did not lose consciousness does not lessen the force of that statement.
After releasing AW the applicant then threatened her with a hammer and sought to humiliate her by demanding that she pose naked for a photograph to demonstrate through its dissemination that she was a ‘whore’.
The attempt to pervert the course of justice of charge 3 occurred over six weeks and at a time when the applicant was subject to a FVSN. He sought to escape the legal consequences of his violent conduct against AW by emotionally manipulating her into blaming herself for the allegations. Aside from being an inherently serious offence, it exhibited an alarming level of asserted control by the drafting of the statement of no complaint. The terms of that draft, reproduced at paragraph [12] above, not only describe AW as a liar affected by mental problems and alcoholism, but gratuitously describe the applicant as supportive, helpful and the daily source of strength to the victim of his violence.
The applicant’s lies to police that the visible injuries to AW were a result of her liking for ‘rough sex’, her aggressive behaviour required him to ‘restrain’ her and he only wanted AW to ‘tell the truth’ about her alcoholism, mental health issues and lies exhibit the same entitlement, dominance and control.
The offending relevant to charge 4 has some overlap with the conduct in charge 3 but the criminality in each is distinct.[10] That conduct, like all the charges before the judge, fell to be assessed within the context of family violence.
[10]Carter v R [2020] VSCA 156, [72] (Niall and Weinberg JJA).

In Skeates (a Pseudonym) v The King[11] this Court reviewed the many statements previously made as to the seriousness of offending that occurs within the context of family violence.[12] In such circumstances general deterrence and denunciation assume prominence in the sentencing exercise. Offending which is in breach of an extant family violence order is particularly aggravated. The sentencing judge must have regard to the impact of the offending on the victim.
[11][2023] VSCA 226 (Emerton P, Niall and Taylor JJA) (‘Skeates’).
[12]Skeates, [55]–[62].
The judge correctly approached this case on that basis.
The judge also gave weight to the matters relied upon by the applicant in mitigation of sentence.
The judge described the plea of guilty as ‘undoubtedly’ valuable with ‘significant utilitarian value’ and to be given ‘significant weight’ in determining the appropriate sentence. The judge did so notwithstanding his finding that the plea was not made ‘at the earliest opportunity’, a finding that was obviously correct. No plea offer was made until after AW had been cross-examined at a s 198 Criminal Procedure Act 2009 hearing some two years after the applicant had been charged. The judge also gave what weight was available to the plea of guilty as evidence of remorse.
The judge also gave weight to the applicant’s lack of prior criminal history and his good prospects of rehabilitation. In accepting those prospects to be good, the judge gave weight to the ‘active’ participation of the applicant in the Men’s Behaviour Change Program as evidenced by the letter of Sanctum tendered on the plea. In doing so the judge was required to consider that the applicant did not complete that program.
As to the issue of delay, the applicant did not rely on any evidence or make any submission as to the effect of the two years and nine months ‘hanging over his head’.[13] When specifically questioned by the judge as to how he was to consider the delay the applicant’s counsel said the ‘main point’ was that in the period of that delay the applicant had developed insight into, and remorse for, his behaviour. As just discussed, to the extent that it was appropriate to do so given little evidence of remorse other than the plea of guilty and the incomplete Men’s Behaviour Change Program, the judge gave weight to those matters.
[13]Tones v The Queen [2017] VSCA 118, [38] (Maxwell P, Redlich and Kyrou JJA).
Ultimately the applicant’s submission is that any sentencing disposition other than one of a sentence of imprisonment the equivalent of time already served coupled with a CCO was wholly outside of the range of sentences available to the judge in the sound exercise of his sentencing discretion.
Contrary to the applicant’s submission, the judge did consider s 5(4C) of the Sentencing Act. The judge expressly referred to – and rejected – the applicant’s submission to that effect.
In Boutlon the Court said
There will, of course, be cases where the sentencing court concludes, after engaging in the deliberation now required by s 5(4C), that certain sentencing purposes – typically, just punishment, denunciation and/or deterrence – cannot be sufficiently served by the making of a CCO, even with onerous conditions. Consistently with the principle of parsimony, the court would then impose the shortest term of imprisonment consistent with the achievement of those purposes.[14]
[14]Bourton, [140].
It is not reasonably arguable that the judge erred in his conclusion that this was one of those cases. That is so particularly given the prominence denunciation, deterrence and just punishment assume with respect to offending that occurs in the context of family violence, coupled with the limited matters available to the applicant in mitigation of penalty. As discussed, his plea was entered late and only after AW had been challenged in cross-examination. That late plea was the only evidence of his remorse. Incomplete participation in a Men’s Behaviour Change Program was the only evidence of the applicant’s insight. The orders the judge made as to concurrency (charges 1 and summary offence 1) and cumulation (five months of charge 2 and four months of charge 3) illustrate that the judge considered and applied the principle of parsimony.
Finally, current sentencing practices, as one of the relevant factors in the sentencing exercise, are not contrary to that conclusion. Reviewing the authorities relied on by both parties,[15] a sentence of imprisonment with a head sentence and non-parole period was well open to the judge.
[15]Carter v The Queen [2020] VSCA 156; Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157; Director of Public Prosecutions v Hayes [2021] VCC 744; Director of Public Prosecutions v Merryfull [2023] VSCA 244; Director of Public Prosecutions v Parker (a pseudonym) [2021] VCC 2129; Director of Public Prosecutions v Reynolds (2022) 71 VR 336; [2022] VSCA 263; Dragovic v The King [2024] VSCA 95; Fusca v The King [2024] VSCA 297.

Conclusion

Leave to appeal will be refused.

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[2025] VSCA 85

28 April 2025