R v Craig Barton (a Pseudonym)
[2025] HCATrans 63
[2025] HCATrans 063
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M38 of 2025
B e t w e e n -
THE KING
Applicant
and
CRAIG BARTON (A PSEUDONYM)
Respondent
Application for special leave to appeal
GORDON A‑CJ
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA AND BY VIDEO CONNECTION
ON THURSDAY, 11 SEPTEMBER 2025, AT 9.29 AM
Copyright in the High Court of Australia
GORDON A‑CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.
MS E.H. RUDDLE, KC appears with MR L.C.A. McAULIFFE for the applicant. (instructed by Office of Public Prosecutions (Vic))
MS R.B. SHANN, SC appears with MR J.R. MUPRHY for the respondent. (instructed by Doogue + George Defence Lawyers)
GORDON A‑CJ: Ms Ruddle. We would be grateful if you could direct your submissions to ground 4.
MS RUDDLE: Yes, your Honours. Do your Honours wish to hear in regard to any of the other grounds, or primarily just in regard to ground 4?
GORDON A‑CJ: Primarily in relation to ground 4. If there are particular things that you really wish to say in relation to grounds 1, 2 and 3 then we, of course, will not stop you, but our primary interest for the moment is ground 4.
MS RUDDLE: Thank you, your Honour. In our respectful submission, ground 4 is not, we accept, the sort of matter that we would ordinarily bring on its own before this honourable Court. It forms part of a problematic set of decisions which form and inform the more substantive grounds of grounds 1, 2 and 3 which we rely on.
The difficulty that we submit this case presents to sentencing courts in Victoria is the issue of the assessment of intimate partner violence and its importance. Not just by reason of the numbers provided but by reason of, essentially, what conclusions have to be drawn from those decisions. That is, we would submit, that intimate partner violence does not deserve condign punishment. It is not able to hold the kind of sentences that are the subject of this appeal.
Now, no invitation was made to the applicant to address the additional grounds of rape that were the subject of the additional reductions by the court. In our submission ‑ ‑ ‑
GORDON A‑CJ: Am I right that they fall into two categories? There are those which were, as I understand it, dealt with by the Court of Appeal on the grounds that they were excessive and not the subject of submission by you.
MS RUDDLE: Yes, your Honour.
GORDON A‑CJ: And then there is another one which is reduced, and that is count 14.
MS RUDDLE: Yes, your Honour.
GORDON A‑CJ: Without the Court of Appeal identifying that it was excessive itself.
MS RUDDLE: Yes, your Honour. In our submission, there was a wholesale failure by the Court of Appeal to assess the objective gravity of each of the charges that was the subject of the appeal. Without trying to belabour the points in grounds 1 through 3, we would submit that charge 17 is a good example of that failure.
So, charge 17 was an incident three weeks post‑birth, wherein the victim CM was in a situation where she was breastfeeding; she had a cesarean section some three weeks earlier. It was held by the Court of Appeal that 12 years for that offending, which, in our submission, is a serious example of that offence.
It is not, in our submission, an issue of, say, consensual sex gone too far or sex gone wrong. This was not sex; this was power and violence, and the violent insertion of his fist into her vagina whilst she was tied up in those vulnerable situations are, in our submission – it was not open to the court to find that 12 years was too much in that circumstance.
That was entirely outside the range, but it is from that error that the court has felt, in our submission, compelled to start dropping or reducing other sentences that the respondent in this matter had not complained about, had not provided any reason for their reduction, other than the reference at paragraph 87 to the inability to reconcile some of the charges.
In our submission, if you look at each of the sentences that were reduced, they each have various features that rendered them serious examples. The applicant in this case was prevented – or was not given the opportunity of highlighting to the Court of Appeal why the sentencing judge was right, or why it was open to her Honour to make the findings that she did.
For example, charges 8 and 9 occurred on a day where the complainant LV had undergone a colonoscopy and a gastroscopy. She had had a general anaesthetic and she was feeling unwell. She was clearly, on the evidence, in a fragile state, and the offending in that case took place by both penile‑anal and vaginal penetrations. They were forceable actions to satisfy himself sexually, despite his victim saying “no”, crying and being upset. She was clearly, in our submission, in a vulnerable position. Now, in those ‑ ‑ ‑
GORDON A‑CJ: Ms Ruddle, count 9 was the subject of complaint in the Court of Appeal, but as I understand your argument on ground 4, charges 8, 11, 14, 23 and 26, being the ones which were the subject of reduction – you were not put on notice in relation to those charges.
MS RUDDLE: Yes, your Honour, and no argument was put, by the respondent in the court below, as to why those charges should be reduced. I am indicating to your Honour that there were reasons that we could have put forward in relation to charge 8 – that they are tied up with 8 and 9, because they form part of the same incident – but those are examples of the charge of rape because of the vulnerability of the complainant at that point.
The only rationale that could possibly be given by the court is that if these offences were not as serious as the court below considered them to be. That is why I started with charge 17, notwithstanding that that is not the subject of complaint in ground 4, because it is clear that that is where the problems start. That is where the misthinking of the Court of Appeal – in relation to the objective seriousness of offending – starts, and then the court has essentially tied itself into a position, therefore deciding to reduce sentences that were not ever in the subject of appeal.
GORDON A‑CJ: So, your proposition is: charge 17 was an error, and that infected the way in which the Court of Appeal subsequently dealt with the remainder of the charges. Of those, some of them you were on notice of in terms of a challenge by the ground of manifestly excessive before the Court of Appeal, and the others you were not.
MS RUDDLE: Yes, your Honour. Each of those offences has its own features that – had the issue of these charges been raised – we could have brought to the court’s attention. For instance, charge 11 involves the penile‑vaginal rape of the complainant despite her protestations and her crying. He also used a piece of wood to threaten the victim during the offending, which we would submit is an aggravating feature.
Charge 26 involved the respondent engaging in penile‑vaginal penetration without lubrication, causing pain, despite what is described as significant protestations. So, in our submission, there were matters that the court should have taken into account. That is why, in our submission, it is difficult to untangle the problems that arise from ground 4 from the more substantive problems that arise in grounds 1, 2 and 3, which relate to ‑ ‑ ‑
JAGOT J: Sorry, Ms Ruddle. Accepting that to be so – that ground 4, in a sense, depends on the other grounds, which I do not debate – what about the proposition that is put that there has been legislative amendments so that the significance of the reasoning in this case really does not extend into future cases?
MS RUDDLE: We would accept that, of course, with the introduction of the standard sentencing scheme in relation to the charge of rape, that these sentences – in fact, the figures given by the Court of Appeal – cannot form part of current sentencing practice going forward. However, the issue is not that numbers themselves but the principles that underlie them.
So, whilst in this decision, the court has not said in terms that intimate partner violence is not serious, it has essentially done so by way of conclusion. The most obvious example of that is in fact not the rape charges – which are of course serious, and we submit ought not have been reduced – but the two indecent assault charges, which your Honours have obviously read in the written case, are incredibly serious examples of that charge. We would submit ‑ ‑ ‑
BEECH‑JONES J: I mean, you really sound like you are inviting this Court to step in and issue a sort of broad edict about the seriousness, undoubtedly, of these types of charges, when is that not what Parliament does and has in fact done since then?
MS RUDDLE: Parliament has made a statement in relation to the seriousness of rape, not rape in a domestic context, and certainly not threats to kill or assaults in a domestic violence context. In our submission, the error that arises – as I say – is not the Court of Appeal saying in terms: this is not serious. It says so in result by reducing the sentences, particularly two indecent assaults from six years and five and a half years, on the basis that they are higher than other counts.
It says to sentencing courts: this offending is just not that serious and it is not serious enough to, after a trial, whilst being sentenced as a serious sex offender, warrant a sentence of 60 per cent of the maximum penalty. In our ‑ ‑ ‑
JAGOT J: The actual – sorry, to interrupt you.
MS RUDDLE: Sorry, your Honour. No, of course.
JAGOT J: The actual reductions or the charges you are referring to – which I assume are 18 and 19 ‑ ‑ ‑
MS RUDDLE: Yes, your Honour.
JAGOT J: I mean, there is a reduction – well, it is basically by one year for each ‑ ‑ ‑
MS RUDDLE: Yes, your Honour, but as we have set out in the written case, in our submission that essentially creates a new de facto maximum penalty. It is not about the reduction, it is about saying to sentencing courts below that offending at this extremely high end is, in our submission – the assault in that context, the pain that is caused to a complainant – or any in a painful and vulnerable situation – is, in our submission, at the high end.
To say that is cannot hold six years but it can hold five, essentially says to sentencing courts below: here is your new maximum. Because the practical effect – accepting, of course, that sentences are not precedents, but the practical effect is that a sentencing court will look at this sentence and the guidance given by the Court of Appeal on this charge – and, of course, the charge is now phrased as a sexual assault rather than indecent assault, but we submit they are analogous – the Court of Appeal has said to us: that sentence, after a trial, where is it being sentenced as a serious sexual offender? That is manifestly excessive. It cannot hold a sentence of six years.
BEECH‑JONES J: What you appear to be putting, if I might say so, is a cogent argument about why it was not manifest success, but that does not appear to be raising, in and of itself, a question of legal principle as opposed to overall sentencing approach.
MS RUDDLE: In my submission, it is not apparent where the court went wrong, but it must be one of two considerations. That is, they have considered themselves bound by previous authorities, which essentially falls into a Dalgleish‑style error while saying that they are complying Dalgleish, to do something this Court should consider and interfere with and explain to courts again, or they have come to the conclusion that it is just not that serious.
In my submission, it was not open to the court to find that this offending – particularly charges 18 and 19, but I will get to the threats together in a moment – was just not that serious. It could only do so essentially by ignoring the insidious nature of domestic violence and somehow considering that because they had been in a relationship, or were in a sexual relationship, and had used restraints and devices consensually in the past, that that somehow mitigated what, in our submission, amounts to sexual torture.
GORDON A‑CJ: Crown appeals against sentence are rare and exceptional. One of the reasons why Justice Beech‑Jones asked you it is about this identification of principle that would warrant consideration of it.
MS RUDDLE: Yes, your Honour. We ‑ ‑ ‑
GORDON A‑CJ: For my part – sorry, I will let you answer.
MS RUDDLE: We acknowledge that this Court will generally not interfere in sentencing matters unless they are very exceptional, and that is particularly so when they come from the Crown. In our submission, this case is exceptional, because in making the findings that they have made, the court below has completely disregarded the seriousness of intimate partner violence.
Instead of using appropriate methodology, it has essentially either relied on the previous sentencing or decided that intimate partner violence is not that serious. We submit that either of those are deeply problematic matters to leave to stand in this jurisdiction. The impact of this decision as a guidepost for sentencing courts, in my submission, cannot be understated. It is for that reason that the Crown brings this decision to the Court.
This case sets very real parameters around sentences for serious intimate partner violence. It undermines the numerous statements of the Court of Appeal in other cases that intimate partner violence should be taken seriously and subject to condign punishment. We accept that their reports have said that in the past, but such statements are robbed of their force by decisions such as this case.
It is a decision that says to sentencing courts, not in words but by conclusion, that intimate partner violence does not warrant significant penalties. That, in our submission, is a matter of legal principle that this Court needs to consider. The scourge of intimate partner violence is known throughout our community, it has been declared a national emergency by the Prime Minister, it has been the subject of a royal commission in this State.
Yet three experienced judges of the Court of Appeal have essentially dismissed what we submit are entirely appropriate and in some cases, particularly those indecent assaults, merciful sentences. For that reason, this Court should consider, not just on ground 4 but on grounds 1 through 3, what has gone wrong in the sentencing matrix.
Perhaps if I just go quickly to the matters in relation to the threats to kill. Again, we would submit that there is a difficulty that has arisen in the treatment of the features of these crimes which fails to reflect the seriousness of intimate partner violence and creates a problematic precedent of guidance for the courts going forwards. Specifically at paragraph 88 of the Court of Appeal’s judgment, and noting that:
there was an absence of other aggravating features such as planning, the use of weapons –
or it being:
in‑company –
or the fact that it was not in:
commission of the offence to further other criminal objectives.
But the use of traditional features of aggravation, which apply in circumstances other than intimate partner violence, again fails to engage with the specific seriousness of intimate partner violence.
A weapon is considered aggravating because it makes it more likely that the victim believes the threat would be carried out. In this case, CM thought that she was going to die. The fact that she thought she was going to die by way of strangulation rather than by way of a weapon, in our submission, does not undermine the objective seriousness. These are matters of principle which need, in our submission, to be considered by this Court.
Likewise, threats to kill, in the context of intimate partner violence, are particularly insidious and should be considered serious, notwithstanding the traditional features of aggravation that attach to non‑intimate partner threats. Threats form part of the control a perpetrator has against his victim. Of course, such fear is well founded, given that the most dangerous time for a victim of domestic violence is when they choose to leave that relationship.
The issue that arises from ground 4 is that the court did not engage with the objective features of each of the offences. It has not given the Crown an opportunity to highlight why each of those sentences was within range, by pointing to the aggravating features of those incidents. It is particularly in the case when one looks at the way the judgment is written, in which the summary of each of the offences – whilst we accept are accurate, they are lacking in significant detail.
So, the Crown had been denied a meaningful opportunity to respond on a number of changes which, had we been given the opportunity to respond, may have impacted the court’s determination not only on those additional charges but on the other rape charges that were the subject of express appeal. May it please the Court.
GORDON A‑CJ: Thank you, Ms Ruddle. Ms Shann.
MS SHANN: Thank you. The resolution of each of the grounds here would require considerations highly particular to this case, including requiring this Court to in effect pick apart the words of the Court of Appeal in its reasons, and they are not points of general application. I will come to the grounds in a moment, but there is this theme which runs underlying a lot of what the Crown is arguing here, which is whether current sentencing practices in Victoria for intimate partner violence reflect community expectations.
Even if that may be a question of general importance, this case is an entirely inappropriate vehicle for this Court to consider it, for a number of reasons. First, the standard sentence regime for rape means that, in relation to those charges, this question would be of academic interest only. As the Act now mandates, no court is to have regard to a comparable sentence which predates that regime.
Second, turning to the indecent assault and threat to kill sentences, the reality is that the Crown did not argue in the Court of Appeal that current sentencing practises for those offences were inadequate, that they did not reflect community expectations. Nor did the Crown actually put any comparable sentences before the Court of Appeal.
They now put before this Court, but only in reply, statistics which are said to create some sense of general importance of looking at this particular issue. They did not submit it to the trial judge who was sentencing that these were worst‑case instances. They did not make that submission, in writing, to the Court of Appeal. It was said orally, and then rebuffed by senior counsel for Mr Barton below, who noted that it had never been put to the sentencing judge.
So, what this Court had before it was completely different to the circumstances in a case like DPP v Dalgleish (2017) 262 CLR 428. In that case, at the Court of Appeal stage, there was material that was put on to establish a foundation for a complaint that there were sentencing practices that were out of step with community expectations.
There was a broad analysis, including from material from the Sentencing Advisory Council, and the Court of Appeal was able to – in its proper function as experienced sentencing judges dealing with manifest excess, manifest inadequacy cases on a weekly, perhaps, basis – contemplate all of that. When that matter came to this Court, the High Court had a proper foundation for analysing those arguments.
Here, the High Court would be doing that for the first time. None of that analysis was done by the intermediate appellate court. This Court has said, on earlier occasions, the High Court is not a sentencing court. That includes in Markarian v The Queen (2005) 228 CLR 357, that the High Court is not well placed to wade through a raft of County Court sentences to discern current sentencing practice and determine whether there is an issue.
The late attempt here to use sentencing statistics as some kind of foundation, we cannot even see from them what other offences were charged alongside the indecent assaults or make threat to kill, whether or not and to what proportion we are in the context of intimate partner violence, whether they are reflective of any idiosyncrasies in charging practices, what the matters in litigation were or were not.
Even with those particular charges, it is of note that this broad idea of intimate partner violence could attach to far more charges than just those ones which are brought before this Court. So, to the extent that there is some need for consideration, at an intermediate court level, of sentencing practices for offences which may fall under that rubric, this again only provides a slice, and not one which provides this Court with any proper foundation.
There are now new offences. So, indecent assault does not exist. There is a new offence of sexual assault which has the same actus reus but a different mens rea. There is now a new charge of non‑fatal strangulation. So, some of the conduct which sat in this case behind the threat to kill charge is now covered by a different offence.
Again, the utility of this Court on inadequate material and with no real attention given to these matters at the Court of Appeal stage, for this Court to now take this and try to consider how these sentences sit against current sentencing practices and community expectations, it is just not the right vehicle.
Further, any guidance by looking at these particular sentences, and the focus really – perhaps after we, in our response, identified the implications of the standard sentence regime on rape, focus has really become on indecent assault and threat to kill, but it is really difficult to generalise in circumstances where individual charges are bound up in other charges.
One can see that particularly with the indecent assault charges, where they were part of five charges which occurred within a single event, and one other of the charges – the false imprisonment – occurred concurrently with those charges. Again, they are bound up, and this is not a vehicle for trying to disaggregate just those charges to make some particular comment on them.
We pointed in writing to the authoritative statements that already exist about intimate partner violence in the Court of Appeal. There is no requirement for this Court to itself restate or to state principles which are accepted. In effect, the applicant is accepting that whilst those principles existed, that this – they say – a departure from them.
BEECH‑JONES J: Ms Shann, when you come to the – I gather you are going to come to the procedural fairness question?
MS SHANN: Yes, would you – why do I not do that now.
BEECH‑JONES J: There is a particular question I would just like to raise perhaps at the outset.
MS SHANN: Certainly.
BEECH‑JONES J: If you look at paragraphs 98 to 99 of the Court of Appeal’s judgment, which appears to be the conclusions about manifest excess.
MS SHANN: Yes.
BEECH‑JONES J: Now, two of the sentences that were interfered with that were not the subject of challenge were, I believe, counts 11 and 14.
MS SHANN: Yes, albeit we do not necessarily accept they were not the subject of challenge. They certainly were not particularised under ground 1.
BEECH‑JONES J: Well, maybe I have not read closely enough, but I cannot find a finding as to manifest excess for the individual sentences on 11 and 14. There are findings about some sentences that were not the subject of challenge in those two paragraphs.
I think that is 8, 15, 26 and 23, but before you even get to that – I may be wrong, but I do not even see a finding that 11 and 14 were manifestly excess. In fact, if you look at 87, I thought it was the other way around. I thought what was said was you cannot reconcile some of these sentences with 11 and 14.
MS SHANN: Can I answer that in two parts.
BEECH‑JONES J: Yes, certainly.
MS SHANN: Firstly, 87 is a summary of some of the applicant’s submission, rather than findings by the court. Paragraph 101 is a conclusion which identifies that:
synthesising for myself all relevant features — the circumstances of the offences and those of the offender –
each of which have been articulated earlier:
together with the circumstances . . . I would resentence –
and then there is a table. That is the conclusion of manifest excess.
GORDON A‑CJ: This is the point that I put to Ms Ruddle, that there are in effect two grounds of complaint, I understand, in ground 4. One is there is this reduction in respect of charges that were not the subject of particularisation by you, but then there is a second group where – as Justice Beech‑Jones just identified, and I thought it was just 14 but it might be 11 and 14, but it’s at least 14 – there is no finding of manifest excess.
MS SHANN: We would say that the finding is at 101. It has been articulated by this Court, in cases such as Disdale v The Queen (2000) 202 CLR 321, that frequently conclusion of manifest excess:
does not admit of amplification –
Indeed, in that case, there was no articulated conclusion, and the Court found, at paragraph 9, that it:
did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection.
That was in relation to manifest inadequacy, but the same point applies.
BEECH‑JONES J: I am sorry, you are drawing that conclusion from a table that says this is the new sentence, but how do even know that the basis for interfering with it was manifest excess?
MS SHANN: That was the – so, at paragraph 97, the court says:
Paying due regard to the governing principles –
and above that has just talked about manifest excess in a quote from Leimonitis, which itself cites Dinsdale, and then goes on to articulate what has occurred. Can I say this about ground 4 and then come back to those particular matters. This raises a narrow and discrete complaint, and the difference on these grounds between what the sentencing judge did and what the Court of Appeal did is a reduction . . . . . of one year and two months, in a sentence which overall is in excess of two decades.
Three of the six impugned charges, there was no change in the orders for cumulation. So, what the Court of Appeal did made no difference to the overall sentence. On a remitter, Mr Barton could seek to amend his notice of appeal. That would be a very long process to change what is in effect approximately five per cent of the total effective sentence for someone serving two decades.
These are proceedings which have already been very protracted. In any event, this complaint really, we say, elevates form over substance, because the complaint is in effect in two parts, that the Crown was not given an opportunity to address on reductions to those specific sentences and the Crown was not given an opportunity to address on changes for orders of cumulation.
It is convenient to start with the second, and I have already said something about the first. Ground 2 of the notice of appeal challenged all orders for cumulation. It did not specify individual charges in the way that ground 1 did. Grounds 2 and 3 were argued together, making it plain that Mr Barton was complaining of all orders resulting in the total effective sentence.
So, his written arguments on grounds 2 and 3 expressly challenged the total sentence in terms plainly concerned with totality and the overall effects of cumulation. Whilst he did then go on to make particular complaints, he did not express himself as abandoning that broader complaint, so that the Crown ‑ ‑ ‑
BEECH‑JONES J: Sorry, is not that broader complaint – if it is suggested that the broader complaint encompasses complaints about individual sentences, is that not inconsistent with Pearce? Because Pearce says exactly the opposite: you have to identify proper sentences for each charge and then look at questions of totality, and they are clearly not the same.
MS SHANN: There is a relationship, particularly in circumstances where there are instances of offending which occurs in a single event, because some of the features which may attach to one particular charge, and otherwise aggravate, may in effect end up being double‑counted. There is a preferred way to account for totality, which is to deal with individual sentences and then to consider orders for cumulation.
There is another way which it can be given effect to, which is to consider and at times compress an individual sentence, but the issue here in relation to procedural fairness was that all of these were matters which were the subject of argument in circumstances where the ultimate adjustment by the Court of Appeal to these particular charges made very little difference to the overall effect.
That is, along with the procedural delay, which would be occasioned by this matter being relooked at – for example, because the Court of Appeal on a remitter would consider: we may not then adjust anything to do with individual sentences, but the orders for cumulation which we did give some effect to and which were part of grounds 2 and 3, that type of delay is in effect a tinkering.
Can I finish by just briefly dealing with some of the other points. We detailed them in writing, but we say that part of what the Crown is arguing – which is that one can conclude, from the conclusion of the Crown, of the Court of Appeal that they had fallen into a Dalgleish error is just not right. Very experienced criminal judges looked at matters in mitigation which included that this is a person sentenced to in excess of two decades of custody whose time was going to more onerous than an ordinary prisoner, that he had had charges hanging over his head for six years as a form of punishment.
This decision itself has very limited utility for any future report, because the majority of sentences are pre‑standard sentence regime. Those that were not are bound up with them. There is no erroneous statement of principle in the Court of Appeal reasons, and comparable sentences have limited utility in any event.
If this decision was treated by any future sentencing judge as creating some kind of ceiling, they would fall into an error and the Crown could appeal them. On the orders of the Court of Appeal, the respondent in this case has been sentenced to a term of imprisonment which finishes in 2043. That is on the Court of Appeal. That is a sentence of over 20 years and quite obviously, we would submit, reflects that serious offending has been denounced, messages of deterrent sent and the community protected.
Three of the most experienced criminal lawyers and judges in Victoria had plenty before them to weight those matters, including those matters in mitigation, against the sentence, against the gravity. It is, quite frankly, an insult to those judges for the Crown to suggest – and I think this was put – mitigated this offending because it was intimate partner violence.
That is an outrageous submission to make in circumstances where no such thing was said and where, obviously, two decades in prison is a matter which operates and is of concern to experienced judges considering onerous prison conditions of an individual who was a first‑time offender.
GORDON A‑CJ: Thank you, Ms Shann. Ms Ruddle, anything in reply?
MS RUDDLE: Yes, your Honour. In relation to ground 4, it is our position that no finding whatsoever was made in relation to charges 11 and 14. We make that point at paragraph 31 of our original submissions. No finding was made, and the findings in relation to the other charges that were reduced, but not the subject of argument, is scant at best.
Particularly when one looks at, for instance, charge 23, which is one of the threats to kill. In our submission, this is a serious example of that offence in circumstances where the offender threatened to kill CM if she left. It is a submission I would have made to the court below that that is an insidious type of threat, it is a serious kind of threat.
Absence of the aggravating features that are mentioned at paragraph 88, in our submission, is something that I would have – and should have been taken into account by the court. The fact that there are descriptions in the table, in 101 – in our submission – are not findings. They are just conclusions on audits.
The reason – and this is not an attempt to insult the learned appellate judges below – that the Crown says to this Court the only way the court below could have come to the conclusions that they have is by either disregarding the maximum penalty for the offences or considering intimate partner violence less serious, because there is no other explanation for why the individual sentences were reduced.
I accept the force of Ms Shann’s submission about 20 years in jail is a lengthy period of time. The orders for cumulation are not significant. What is significant in this case, and what is of import to sentencing courts below, is the individual figures that were challenged and the subject of reduction. In this case, there was six individual sentences challenged. The wording of the application was the individual sentences on charges 9, 17, 18, 19, 25 and 27 were manifestly excessive. Otherwise, the challenge was only to total effective sentence and the orders for cumulation.
In our submission, that does not open a legitimate challenge to the other six sentences. As I have submitted, it is our submission that the errors are all bound up in each other, which is why I took the Court through grounds 1 through 3, notwithstanding its interest ground 4, but ground 4 is demonstrative of the way that the court has mis‑considered the nature of the offending in this case.
It has waved a wand over a number of sentences that were not the subject of challenge below and said, well, they were obviously all
insufficiently serious to hold the sentences that were given. As I said, the only reason this could possibly be is because of the nature of the relationship between the parties.
My learned friend says, well, the Court ought not come and consider the sentences in this case, because the Crown did not submit that sentencing was out of step with community expectations. That is not the submission I make here; it was not the submission that the Crown made below. Indeed, below, the Crown accepted that the indecent assault charge was higher than other charge handed down in the State of Victoria, and we argued strongly – as we argue here – that there were very good reasons for that.
I accept the force of Ms Shann’s submission that if sentencing courts were to expressly say six years is a ceiling, then of course that would fall into a Dalgleish error, but the issue and the problem and why this Court needs to intervene is because the practical reality is, having received guidance from – as my learned friend says – three very senior criminal judges, that torturing your intimate partner by attaching electrodes to their nipples post‑c‑section when you are a serious offender cannot carry of sentence of six years, a court below is going to struggle to reconcile that with any sentence above six years.
In our submission, it does bring up a significant point of principle the way this case has been handled and the findings by the Court of Appeal, notwithstanding the introduction of the standard sentencing scheme. These are – this Court needs to make clear to sentencing courts below that this type of offending does warrant condign punishment, and that the Court of Appeal must give everybody an opportunity to highlight what the important features of these sentences are. In our submission . . . . . May it please the Court.
GORDON A‑CJ: Thank you, Ms Ruddle. The Court will adjourn for a short time to consider the course it will take.
AT 10.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.20 AM:
GORDON A‑CJ: The applicant, the Crown, seeks special leave to appeal from part of the judgment of the Court of Appeal of the Supreme Court of Victoria – comprising Justices of Appeal Priest, Boyce and Kaye, given on 11 April 2025 – in which the Court of Appeal allowed the respondent’s appeal against the sentences ordered by the County Court of Victoria on 27 November 2023 and then resentenced the respondent. One of the grounds of the application contends that the Court of Appeal erred in not affording the applicant procedural fairness before interfering in individual sentences not the subject of appeal.
The Court of Appeal found several individual sentences were manifestly excessive in circumstances where those individual sentences had not been challenged by the respondent and where the Crown was given no opportunity to make submissions about those individual sentences. Such an approach should not be adopted by an appellate court. The Crown is entitled to natural justice like any other litigant.
While Crown appeals to this Court against sentence should only be brought in rare and exceptional circumstances – see, for example, Everett v The Queen (1994) 181 CLR 295 at 299 to 300 – a denial of procedural fairness to the Crown involves a different kind of error when compared to an alleged inadequacy of a sentence. That said, if a denial of procedural fairness is established, the necessary order would be remittal of the proceedings to the Court of Appeal, in which event the respondent would have the opportunity to challenge the additional grounds directly.
We are not persuaded that the Court of Appeal failed to recognise the objective seriousness of the intimate partner violence offences or that its reasons set a precedent in sentencing for such offenses in another case, particularly given that the legislative landscape has materially changed subsequently.
In circumstances where the other proposed grounds of appeal have insufficient prospects of success to warrant the grant of special leave to appeal and do not raise any question of law of general application or public importance, and no conduct of the respondent caused or contributed to the alleged denial of procedural fairness, it is not in the interests of the administration of justice for special leave to be granted. Special leave to appeal is refused.
Adjourn the Court until 10.00 am on Tuesday, 7 October.
AT 10.23 AM THE MATTER WAS CONCLUDED
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