Rezaee v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0054

MOHAMMED REZAEE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST ACJ and BOYCE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2025
DATE OF JUDGMENT:	23 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 237
JUDGMENT APPEALED FROM:	DPP v Rezaee [2025] VCC 170 (Judge Lauritsen)

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CRIMINAL LAW – Application for leave to appeal – Sentence – Home invasion – Theft of motor vehicles and other items – Total effective sentence of 1 year and 10 months’ imprisonment with non-parole period of 12 months – Applicant assisted authorities against co- offenders – Whether sentencing judge erred by failing to account for risk to applicant in custody due to the assistance – No error made by sentencing judge – Whether sentences manifestly excessive in light of mitigatory factors – Not reasonably arguable that sentences manifestly excessive – Application for leave to appeal against sentence refused.

Haamid (a pseudonym) v The Queen [2018] VSCA 330; Mejia (a pseudonym) v The Queen [2020] VSCA 141; Scerri v The Queen (2010) 206 A Crim R 1; Nguyen v The Queen (2011) 31 VR 673, discussed.

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Counsel
Applicant:		Mr J Lavery with Ms EA Byrt
Respondent:		Mr JH Shaw
Solicitors
Applicant:	Chester Metcalfe & Co
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST ACJ
BOYCE JA:

Introduction

The applicant pleaded guilty on 26 November 2024 to one charge of home invasion, two charges of theft of a motor vehicle and one charge of theft. He also pleaded guilty to one charge of driving whilst disqualified. On 24 February 2025 the applicant was sentenced as follows.

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Home invasion[1]	25 years	18 months	Base
2	Theft of motor vehicle[2]	10 years	6 months	2 months
3	Theft of motor vehicle[3]	10 years	6 months	2 months
4	Theft[4]	10 years	1 month	Nil
Related Summary Offences
6	Drive whilst disqualified	240 penalty units or 2 years’ imprisonment	14 days	Nil
Total Effective Sentence:		1 year and 10 months’ imprisonment
Non-Parole Period:		12 months
Pre-sentence Detention Declared:		51 days
Section 6AAA Statement:		2 years and 4 months’ imprisonment with non-parole period of 1 year and 3 months
Other Relevant Orders: 1. Disqualified from obtaining any licence or permit for 12 months from 24 February 2025; 2. Compensation in the sum of $2,906.33; and 3. Recorded pursuant to s 5(2AB) Sentencing Act 1991, that the Court has imposed a less severe sentence due to the accused’s undertaking to assist law enforcement authorities in the investigation or prosecution of an offence.

[1]Contrary to s 77A of the Crimes Act 1958 (‘Crimes Act’).

[2]Contrary to s 74(1) of the Crimes Act.

[3]Contrary to s 74(1) of the Crimes Act.

[4]Contrary to s 74(1) of the Crimes Act.

The applicant seeks leave to appeal against his sentence. His proposed grounds of appeal are as follows:
Ground 1 The learned sentencing judged erred in failing to account for the actual risk the applicant exposed himself to in custody as a result of the undertaking given to assist authorities.
Ground 2 The sentences imposed were manifestly excessive.
For the reasons that follow, we are of the view that the application for leave to appeal against sentence should be refused.

The offending

On Tuesday 3 October 2023, at approximately 12:15 am, the applicant, and a second male offender, arrived at the residence of victims Sivashanker Manoharan and Sathani Chandrasegran. The applicant and the second male entered the rear yard through an unlocked side gate; they then located a sliding window — which was also unlocked — at the premises. The applicant opened this window. Both males climbed through the window and entered the house. Mr Manoharan and Ms Chandrasegran, as well as their three young children, were at home and asleep at the time. Upon entry, the applicant was armed with a machete, and the co-offender a cricket bat (charge 1 — home invasion).
Once inside, the two men located a small table near the front door; there they found a wallet containing various bank and identification cards. They also found two sets of keys to the victims’ vehicles. Having taken possession of these items, the two men exited through the open window (charge 4 — theft). They walked to the front of the house to where the victims’ vehicles were parked in the driveway. The applicant opened one of the vehicles — Mr Manoharan’s 2023 blue Porsche Taycan sedan. The applicant drove this vehicle away while the second male was seated in the passenger seat (charge 2 — theft of a motor vehicle).
At approximately 1:38 am, the stolen Porsche returned to the victims’ address. There were now four men inside the vehicle. The applicant, and a third male, got out of the Porsche and walked towards the victims’ second car — Ms Chandrasegran’s 2023 black Mercedes SUV. This car was parked in the driveway and was being charged with electricity. The applicant unplugged the charging cable and unlocked the vehicle using one of the stolen car keys. The applicant got into the driver’s seat of the Mercedes; the third man entered the passenger seat. The applicant then drove the Mercedes away in convoy with the stolen Porsche (charge 3 — theft of a motor vehicle).
At approximately 2:20 am, Mr Manoharan began receiving alerts on his mobile phone; these notified him of an unauthorised online credit card transaction on his AMEX credit card. He also discovered that his wallet, both sets of car keys, and two vehicles had been stolen. Mr Manoharan contacted the authorities and blocked his bank cards. Mr Manoharan activated a tracking device that had been installed in the Mercedes.
With the assistance of the tracking device, police were able to track the stolen Mercedes to an address in Narre Warren. There police saw the applicant and the third male exit the vehicle and walk into a nearby front yard. The applicant and the third male noticed police and decamped, jettisoning the keys to the Mercedes and various items of clothing.
At approximately 3:15 am, the applicant was located by the police K9 unit. He was found hiding in the rear yard of a nearby property. The third male was also located. The applicant was arrested, interviewed and remanded in custody.
At the time the applicant drove the Porsche and the Mercedes he was disqualified from driving a motor vehicle (related summary offence 6 — drive whilst disqualified). The applicant was also, at the time of the offending, subject to two undertakings of bail, each with a condition that prohibited him from driving.
The Mercedes, and its keys, were found by police. When interviewed, the applicant did not admit his offending; nor did he identify the other offenders, or assist in finding the stolen Porsche. The Porsche was ultimately found on 9 October 2024.

The plea

On the plea, the applicant tendered a formal police statement that he had made and in which he identified co-offenders, two of whom were previously unknown to police. The applicant gave evidence on the plea adopting this statement as true and correct. He also undertook to give future assistance to the prosecution including by giving evidence in accordance with the statement.
A police officer also gave evidence on the plea. This evidence was to the effect that, as a result of the applicant’s statement, two co-offenders had been arrested and charges were pending against them.
As the offence of home invasion is a ‘category 2 offence’ for the purposes of s 5(2H) of the Sentencing Act 1991 (‘Sentencing Act’), the sentencing court was required to impose a sentencing order under div 2 of pt 3 of that Act (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with s 44 of the Act) unless an exception listed in s 5(2H) applied. Both the prosecution and defence agreed that, in view of the applicant’s past and promised assistance, the exception to this requirement described in s 5(2H)(a) applied.
Thus it was agreed by the parties at the plea that, in the circumstances of this case, it was open to the sentencing judge to impose a term of imprisonment coupled with a community correction order. The applicant sought that the custodial aspect of such a sentence extend no further than the 51 days that the applicant had already served. Counsel for the respondent responded to this submission in the following manner:
The prosecution position ultimately is that a combination sentence is open to Your Honour. In my respectful submission however it should include a lengthy community corrections order as both a punitive measure and to foster the rehabilitative prospect as the accused is still a youthful offender. He has served 51 days of pre-sentence detention. I’m not making any submissions as to whether time served is sufficient or not. That’s ultimately a matter for Your Honour.
On the plea, the defence tendered a neuropsychological report authored by Dr Takagi dated 16 November 2020 and three supervised bail progress reports dated 23 February 2024, 17 September 2024 and 25 November 2024 respectively.
The sentencing judge had the applicant assessed to determine his suitability for a community correction order. The applicant was ultimately assessed as unsuitable.
A central aspect of the plea was to emphasise the applicant’s Hazara background and to make clear that, because of this, the applicant had experienced significant trauma as a member of a persecuted minority in Pakistan. The Hazaras, it was submitted, had been subjected to assassinations, bombings, massacres, mass shootings and terrorist attacks. The applicant, as a young man, was witness to ‘lots of people dying’. It was described that the applicant’s family had arrived in Australia in 2012 as refugees. It was submitted, on instructions, that if the applicant was to be deported to Pakistan, ‘he will be killed due to the ongoing conflict in Pakistan of the Hazara people’. The applicant has no family remaining in Pakistan. It was submitted that the risk of the applicant’s deportation was ‘real’ if he was to receive a term of imprisonment longer than 12 months.
The applicant’s schooling in Pakistan was characterised by physical discipline. Once in Australia, the applicant struggled with learning at school. This prompted concerns about his cognitive abilities. Nevertheless, there was no diagnosis of any acquired brain injury or traumatic brain injury. Dr Takagi recommended a further psychological assessment to investigate the possibility of a neurodevelopmental disorder and/or mental health difficulties. The applicant left school early and commenced taking cannabis. Since being on bail, however, it was said that the applicant was ‘substance-free’.
The bail progress reports revealed that the applicant had been on strict bail conditions that included a curfew and daily reporting to police. The applicant commenced this regime of bail on 22 November 2023. By the date of the plea’s commencement, the applicant had been on bail for approximately a year.
Because of concerns about the applicant’s cognitive abilities, the plea was adjourned twice in order to obtain a further psychological report. On both occasions the applicant missed his appointment with a nominated psychologist. In consequence, a further report was not obtained.

The reasons for sentence

The judge commenced his reasons with a summary of the applicant’s offending. The judge then summarised the applicant’s criminal history. This summary was as follows:
Between 24 December 2020 and 21 April 2023, [the applicant] appeared in the Children’s Court on three occasions and an adult court once. In the Children’s Court, there were 61 charges, penalised by probation, youth supervision orders and a bond. [The applicant’s] first two appearances involved charges including armed robbery, attempted armed robbery, aggravated burglary, burglary, reckless conduct endangering life and affray.
In the Magistrates Court there were six charges for traffic offences including failing to remain at a breath testing station. [The applicant was] fined and disqualified from obtaining a licence or permit to drive a motor vehicle for two years from 21 April 2023.
At the time of [the applicant’s] offending here, [he was] then the subject of three adjourned undertakings imposed on 10 February 2023. Clearly, [the applicant] took no notice of an essential part of these adjournments, namely, to be of good behaviour. At the time of [the applicant’s] present offending, [he] had no regard for the law.[5]
[5]DPP v Rezaee [2025] VCC 170, [12]–[14] (‘Reasons’).
The applicant had spent 51 days in custody connected with the present matters. This was his first time in custody.[6]
[6]Reasons, [24].
The judge then took into account a victim impact statement prepared by Mr Manoharan. The judge noted that Mr Manoharan still felt unsafe at home, was unable to sleep and was worried that the undetected intruders would return.[7]
[7]Reasons, [15].
As to the applicant’s personal circumstances, the judge noted that the applicant was born and raised in Pakistan and was of Hazara origin. The Hazaras suffered persecution from militant groups in the area where the applicant grew up. The violence was indiscriminate and many victims were children. The applicant’s family sought refuge in Australia. The applicant’s father arrived first in 2012 and the applicant followed thereafter. The applicant was a permanent resident of Australia. The judge recorded that the applicant’s experience of schooling in Pakistan was difficult.[8] The applicant was now able to read and write English but he did not complete Year 12.[9] The applicant had a limited work history and had been working with his father as a roof tiler.[10] The judge accepted that the applicant’s difficult upbringing engaged the sentencing principles described by the High Court in Bugmy’s case.[11]
[8]Reasons, [17]–[20].
[9]Reasons, [21].
[10]Reasons, [22].
[11]Reasons, [51]; Bugmy v The Queen (2013) 249 CLR 571, 594 [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
The judge took into account the opinion of psychologist Dr Tagaki. This was that the cognitive difficulties suffered by the applicant were likely explained by a neurodevelopmental disorder or mental health difficulties or both.[12]
[12]Reasons, [27].
The judge took into account that the applicant had been granted bail on 22 November 2023, and that he had been predominantly compliant with a Youth Justice supervised bail program. This had achieved positive results. The applicant had reduced his cannabis use which, in turn, lessened his predisposition to offend. He had also begun to acknowledge the seriousness of his offending.[13] The judge acknowledged that the applicant had ‘progressed well’ on supervised bail and that, overall, the applicant’s prospects of rehabilitation were ‘good’.[14]
[13]Reasons, [28]–[29].
[14]Reasons, [34]–[35].
As to the applicant’s commission of the home invasion offence, the judge observed as follows:
Home invasions are highly prevalent and have been for years. A week does not go by, almost a day does not go by, without one or more home invasions being reported in the media. This prevalence makes general deterrence of much importance as a sentencing purpose …
The offence usually has a significant and long-lasting effect on the victims. A year after the invasion, the father of the household feels unsafe in his home and is unable to sleep. I expect these reactions will continue into the foreseeable future. He worries the undetected intruders will return, which probably will not be the case in the near future.[15]
[15]Reasons, [31]–[32].
The judge noted the applicable maximum penalties, and the fact that — notwithstanding the applicant’s commission of the home invasion offence — it was legally open to impose a combination sentence in view of the applicant’s satisfaction of the exception described in s 5(2H)(a) of the Sentencing Act.[16]
[16]Reasons, [38]–[40].
As to the applicant’s past and promised assistance, the judge observed — addressing the applicant — that:
[S]uch assistance is relevant to the sentences I will impose. How it is relevant is discussed by the Court in Haamid (a pseudonym) v The Queen.[17]
The statement is a full and frank disclosure of what you know, it describes the incidents and names the participants. Since your co-accused was arrested shortly after you, naming him in your statement did not reveal his identity to the police. However, your willingness to give evidence against him adds to the strength of the prosecution case against him. The naming of the others helped the police to identify them. I doubt whether the police knew of their involvement until you named them. Again, your willingness to testify against them adds to the strength of the prosecution case.
Your assistance regarding the co-accused in the home invasion is assistance in relation to a most serious charge. Your assistance in relation to the others concerns charges of car theft, a significant offence in our community.
Your assistance is a significant mitigating factor.[18]
[17][2018] VSCA 330, [24]–[27] (Kyrou, Niall and Weinberg JJA) (‘Haamid’).
[18]Reasons, [41]–[44].
The judge took into account that the applicant was 19 at the time of the offending, and 21 at sentence. As such, the judge considered that the applicant was a ‘youthful offender’. This was a matter, according to the judge, that required ‘careful consideration’ given that a term of imprisonment was in prospect. The judge quoted liberally from the reasons of Redlich JA in Azzopardi v The Queen[19] concerning the question of youth and how youth was relevant to the imposition of sentence.[20]
[19](2011) 35 VR 43, 53–4 [34]–[36]; [2011] VSCA 372.
[20]Reasons, [45].
The judge noted that the applicant had indicated an intention to plead guilty at a ‘mid-way’ stage in the criminal process. Nevertheless, the judge accepted that the applicant’s pleas were evidence of remorse. Indeed, the judge accepted that that the applicant was remorseful. The applicant’s pleas were also of utilitarian benefit.[21]
[21]Reasons, [46]–[48].
Given that the applicant is not an Australian citizen, the judge recognised that the sentence to be imposed would expose the applicant to the risk of deportation on character grounds.[22] The judge accepted that this risk would make more difficult the applicant’s experience of imprisonment, and that deportation, should it occur, would constitute additional punishment for the applicant by destroying his opportunity to settle permanently in Australia. Nevertheless, the judge noted that the prospect of deportation could not ‘control or dictate the sentencing outcome’.[23] The judge observed that:
Although your counsel submitted a sentence of imprisonment and a community correction order is appropriate, I disagree. The appropriate sentence involves a head sentence exceeding 12 months’ imprisonment. This means your visa is automatically cancelled and you will need to apply to the relevant minister to reverse the cancellation.[24]
[22]Reasons, [52].
[23]Reasons, [53], quoting Loftus v The Queen [2024] VSCA 24, [81] (Whelan AP and Niall JA).
[24]Reasons, [54].
The judge recognised the seriousness of the prospect of deportation in the applicant’s case. As the judge described it (addressing the applicant):
Deportation is a dreadful prospect. You have lived in Australia since you were 9, your immediate family lives in Australia. You have a good relationship with your family except your relationship with your father is strained because of your offending. You are a Hazara. Hazaras have faced a difficult time in Pakistan simply because of their ethnicity. Returning to Pakistan may expose you to the difficulties which led your family to leave Pakistan in the first place. You fear being killed. You have no family living in Pakistan now. My sentences will expose you to the possibility of deportation. Accordingly, the prospect of deportation will weigh very heavily upon you.[25]
[25]Reasons, [55].

The judge noted defence counsel’s submission which contended that the applicant’s return to prison was antithetical to his ultimate rehabilitation.[26] Defence counsel had also submitted that a community correction order might be imposed in ‘relatively serious’ cases.[27] Moreover, the judge had particular regard to the fact that it was the joint position of the prosecution and defence that a term of imprisonment combined with a community correction order was open in this case.[28]
[26]Reasons, [58].
[27]See Boulton v The Queen (2014) 46 VR 308, 377 [25] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA); [2014] VSCA 342.
[28]Reasons, [59].
Nevertheless, the judge noted that the applicant had been assessed as unsuitable for a community correction order. This was due to the applicant’s breach of a family violence intervention order. In light of this breach, the judge concluded that he had ‘no confidence’ that the applicant would be able to comply with the conditions of a community correction order. The judge noted, also, that the applicant had been in breach of bail reporting conditions. The judge said that he was not satisfied of the applicant’s ability to comply with the terms of a community correction order.[29]
[29]Reasons, [60]–[62].
Having imposed the sentences referred to above, the judge stated that he would fix a low non-parole period in view of the applicant’s successful progress on bail over a lengthy period.[30]
[30]Reasons, [71].

Proposed ground 1

Applicant’s submissions

In support of proposed ground 1, the applicant submitted that assistance given by an offender to the authorities must be reflected in a significant and substantial sentencing benefit so that offenders would be encouraged to inform upon their co-offenders.[31]
[31]Citing Lowell (a pseudonym) v The Queen [2022] VSCA 134, [39] (Priest and T Forrest JJA).
Although it was acknowledged that the judge had taken into account the applicant’s past and promised assistance, it was submitted that, as a result of the undertaking given by the applicant, he was exposed to the risk of being known as a police informer whilst in custody. The burden of imprisonment was therefore likely to be much greater if he is required to serve the remainder of his sentence in protective custody. It was submitted that the risk of reprisals against a known informer in custody is notorious, and the applicant was now in essence a ‘marked man’.[32]
[32]Citing Scerri v The Queen (2010) 206 A Crim R 1; [2010] VSCA 287 (‘Scerri’).
It was submitted that the learned sentencing judge had erred by failing to account for the actual and very grave risk to which the applicant was now exposed as a result of his undertaking.

Respondent’s submissions

In response, the respondent submitted that the judge had not misconstrued the significance of the applicant’s past and promised assistance. The judge had concluded, after all, that this assistance was a ‘significant mitigating factor’.[33]
[33]Reasons, [44].
It was submitted that whilst the judge may not have referred expressly to any ‘custodial risks that the applicant might face as a result of providing the assistance’, there was in fact ‘no evidence before the learned sentencing judge of any actual or specific risk that the applicant would be exposed to in custody as a result of providing assistance’. It was submitted that the judge ‘could not have been expected to account for an unspecified, speculative risk’.
Nevertheless, the respondent submitted that the sentencing judge had implicitly recognised the existence of risk. The judge had noted that the relevance of the applicant’s assistance was as described by this Court in Haamid, and the judge cited the relevant paragraphs from that case.[34] In one part of this Court’s reasons in Haamid, at the paragraphs referred to by the sentencing judge, it was said that ‘the extent to which the offender … [is] exposed to the risk of harm as a result of the offender’s cooperation’ was a factor that was relevant to the determination of the discount to be provided.[35]
[34]In particular, Haamid [2018] VSCA 330, [24]–[27] (Kyrou, Niall and Weinberg JJA).
[35]See ibid [24](b)(vi).
Thus, so the respondent submitted, it could be inferred from the judge’s citation of the relevant paragraphs in Haamid, that his Honour was ‘aware of the general proposition that the potential for custodial risk was one of several matters to take into account when considering the mitigatory effect of the applicant’s assistance upon sentence’.

Consideration

In Haamid this Court summarised the principles that apply when a discount in sentence is sought because of an offender’s cooperation with authorities. Under the heading ‘Relevant legal principles’ the Court stated as follows:
The principles governing the discount on sentence for an offender who cooperates with the authorities are well known. It is not necessary for us to restate them. For the purposes of the current application, it suffices to refer to the following:
(a)There is no set ‘tariff’ or standard discount to be provided for cooperation.
(b)Factors relevant to the determination of the discount to be provided include:
(i)the quality and reliability of the information provided by the offender and its value to law enforcement authorities;
(ii)whether the offender fully and frankly discloses all relevant information of which he or she is aware;
(iii)whether, in addition to providing information, the offender has undertaken to continue to provide assistance and to give evidence against other offenders;
(iv)the nature and gravity of the offences disclosed by the information provided by the offender and the number of people implicated;
(v)the nature of the offender’s involvement in the offending in respect of which he or she provides information and his or her moral culpability;
(vi)the extent to which the offender and his or her family are exposed to the risk of harm as a result of the offender’s cooperation; and
(vii)whether the offender’s cooperation has already achieved positive law enforcement outcomes, such as recovery of stolen or dangerous goods, the interception of a shipment of illicit drugs, the prevention of an act of terrorism or the arrest or conviction of offenders.
(c)The offender is entitled to a discount even if his or her motive is self-interest. However, if the motive is remorse, contrition, acceptance of responsibility or rehabilitation, a greater discount may be warranted based on the application of normal sentencing principles.
(d)The discount to be provided to a ‘true informer’ may be as high as 66 per cent. An example of a ‘true informer’ is a person who is a member of an organised crime syndicate who provides information against other members of the syndicate in circumstances where his or her personal safety, and that of members of his or her family, is placed at grave risk.
(e)There are a number of cases in which a discount of 50 per cent has been provided.
(f)The magnitude of any discount provided is not always apparent. Unlike the discount for a plea of guilty which must be quantified under s 6AAA of the Sentencing Act1991, s 5(2AC) of that Act provides that a sentencing court need not quantify any discount provided for cooperation.
(g)As long as the offender provides genuine cooperation, the fact that, for reasons unconnected to the offender, the cooperation is ultimately not required to achieve a law enforcement outcome does not disentitle him or her to a discount. An example is where the offender undertakes to give evidence against a co-offender but is not required to do so because the co-offender decides to plead guilty.
(h)The discount allowed for cooperation will necessarily affect both the head sentence and the non-parole period.
The Court will give considerable weight to any assessment in a letter of assistance in relation to matters such as the value of the offender’s assistance and the degree of risk to his or her safety. However, the Court will make its own assessment of these matters.
Section 5(2AC) of the Sentencing Act, to which we have already referred, must be read with s 5(2AB). Those sections provide as follows:
(2AB) If, in sentencing an offender, a court imposes a less severe sentence than it would otherwise have imposed because of an undertaking given by the offender to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence, the court must announce that it is doing so and cause to be noted in the records of the court the fact that the undertaking was given and its details.
(2AC) Nothing in subsection (2AB) requires a court to state the sentence that it would have imposed but for the undertaking that was given.
Section 5(2AB) promotes the public policy that offenders should be encouraged to provide information and other forms of assistance to law enforcement authorities to help them bring other offenders to justice.[36]
[36]Ibid [24]–[27] (citations omitted).
As to the potential for it to become ‘known’ that an accused person has given assistance to authorities, in Mejia (a pseudonym) v The Queen,[37] this Court observed that
for the purposes of quantifying a cooperation discount, there is a material difference between a case where the fact of cooperation is known or will inevitably become known (as when the offender makes a statement which incriminates a co-offender) and a case like the present, where the fact of the cooperation is unknown and the court has no reason to anticipate that it will become known. Other things being equal, a judge is entitled to regard the actual risk in the first case as warranting a greater discount than the potential risk in the second case.[38]
[37][2020] VSCA 141 (‘Mejia’).
[38]Ibid [6] (Maxwell P, Beach and Weinberg JJA).
As to the benefit of assistance that includes an undertaking to give evidence in accordance with a statement, the Court in Mejia went on to state as follows:
As to benefit, an undertaking to give evidence against (for example) a co-offender will ordinarily be of significantly greater value than the provision of information which (for example) leads to an arrest. For obvious reasons, evidence from a participant in the relevant offending will ordinarily be highly probative of the guilt of the co-offender. The giving of evidence is, in short, the most visible and tangible form of assistance, and its benefits are likely to be most readily apparent.
Even more significant is the effect on risk. A person who undertakes to give evidence against a co-offender, and provides a statement for that purpose, inevitably becomes known as a police informer, whatever the outcome of proceedings against the co-offender may be. The risk of reprisals against a known informer is notorious, and very grave.[39] And the burden of imprisonment is likely to be very much greater if (as usually occurs) the informer serves his/her sentence in protective custody.[40]
[39]Citing Scerri (2010) 206 A Crim R 1, 8 [33]–[34] (Maxwell P and Buchanan JA); [2010] VSCA 287.
[40]Mejia [2020] VSCA 141, [23]–[24] (Maxwell P, Beach and Weinberg JJA) (emphasis added).
In Scerri, the appellant gave an undertaking on oath to give evidence in accordance with the terms of a written statement made to police. The appellant’s evidence related to the supply of chemicals and equipment to a person who was connected to others concerned in the manufacture of drugs. The appellant, subsequent to sentence, complied with the undertaking and gave evidence at a committal hearing. On appeal, the appellant submitted that
[t]he fact is that anyone who informs in the manner the appellant has is a marked man. He is in protection ... He will remain in protection for the duration of his extremely long sentence. He has been and will continue to be a marked man during his sentence and beyond (see eg R v Rostom[1996] 2 VR 97 at 102; (1995) 83 A Crim R 58 at 63). He will never know whether or not he or his family is at risk of physical harm. Not knowing is as bad as knowing. There is nowhere to run in prison. And the fear of the unknown on the outside is also a form of imprisonment in itself.[41]
[41]See Scerri (2010) 206 A Crim R 1, 8 [33] (Maxwell P and Buchanan JA); [2010] VSCA 287.
The Crown in Scerri submitted that there was no evidence of direct danger to the appellant as a result of his undertaking to give evidence; and that the appellant’s evidence did not directly implicate any third person. Thus, so the Crown submitted, it was not open to conclude on the balance of probabilities that the appellant’s life was at risk.[42]
[42]Ibid 8 [32].
Responding to the submission made by the appellant, this Court in Scerri observed as follows:
With respect, we think there is real force in the appellant’s submission. … The appellant gave evidence of an important step in the production of amphetamine and — critically — exposed himself publicly as an informant, with all the attendant risks.[43]
[43]Ibid 8 [34].
In Nguyen v The Queen (‘Nguyen’),[44] the appellant Ms Nguyen — a participant in a large drug importation — cooperated with police and made a statement implicating her co-accused who were higher up in the drug importation chain. She also gave an undertaking to assist by giving evidence. At Ms Nguyen’s plea it was submitted, and accepted, that the risk of retributive violence in prison needed to be factored into the discount for cooperation. As in Scerri, by the time of Ms Nguyen’s appeal she had already given evidence at committal.[45]
[44](2011) 31 VR 673; [2011] VSCA 32.
[45]Ibid 677 [9]–[10], 684–5 [40]–[43].
Maxwell P observed in Nguyen that:
In my view, it is not possible to calibrate with any meaningful precision the degree of risk to which a person in [Ms Nguyen’s] position exposes herself by undertaking to give, and giving, evidence against co-offenders. Irrespective of the identity of the co-offenders, the risk will almost always be substantial.[46]
[46]Ibid 690–1 [64].
Thus, it has been accepted that once a person seeks a discount in sentence by making a statement against co-offenders and then undertaking to give evidence in accordance with that statement, the nature of such assistance will inevitably become known to others.[47] Importantly, it has been accepted that such knowledge necessarily carries with it a risk of reprisal against the person who has given the undertaking. Should the person actually give evidence, the risk is likely enhanced.
[47]See the disclosure requirements specified in pts 3.2 and 4.4 of the Criminal Procedure Act 2009 (‘CPA’).
In the present case, there was no evidence adduced concerning any specific, or particular, risk to the applicant in custody on account of his past and promised assistance. Indeed, the question of risk to the applicant was not mentioned on the plea at all. It is perhaps unsurprising, then, that the sentencing judge made no express reference to the existence of any such risk in his reasons for sentence. And yet, in view of the authority referred to above, it must be accepted that there was — objectively speaking — a level of risk of reprisal against the applicant given his undertaking to assist. Such risk was relevant to any proper assessment of the weight to be accorded to the applicant’s assistance as a matter going in mitigation of sentence.
We did not understand the respondent, in submissions before this Court, to gainsay any of this. The respondent’s argument is that, to the extent that any risk to the applicant arose from his undertaking to assist, the sentencing judge must be assumed to have taken this risk into account. The respondent contends that this conclusion flows necessarily from the sentencing judge’s citation, in the sentencing reasons, of certain paragraphs taken from this Court’s judgment in Haamid; in particular, those paragraphs where the ‘extent to which the offender and his or her family are exposed to the risk of harm as a result of the offender’s cooperation’ was stated by this Court to be one of the ‘[f]actors relevant to the determination of the discount to be provided’.[48]
[48]Haamid [2018] VSCA 330, [24](b) (Kyrou, Niall and Weinberg JJA).
The respondent submits that once the judge’s attention was directed to the issue of risk through his analysis of Haamid, it would have been obvious to the judge how a risk of this nature arose in the circumstances of the present case: the judge knew that the applicant had undertaken to give evidence in accordance with his statement; the judge must have recognised that this would come to the attention of the applicant’s co-accused and that the applicant was consequently at some risk.
For the reasons relied on by the respondent, we are unpersuaded that the sentencing judge erred by failing to have regard to any risk of reprisal to the applicant in custody that, it may be assumed, arose consequent upon the applicant’s promise to be of assistance. In light of the sentencing judge’s citation of the relevant paragraphs in Haamid, it can be accepted that the judge had regard to the relevant principles which apply in assessing the mitigatory weight to be accorded to the applicant’s assistance. Those principles summarised in Haamid include express reference to an accused’s exposure to the risk of harm. Assuming then that the judge, in accordance with this reference, turned his mind to the issue of risk in the applicant’s case, it seems to us that the judge must have registered that the applicant’s assistance would become known to his co-accused, and thus, in turn, give rise to the sort of risk that is notoriously associated with such knowledge and is described in the authorities referred to above.
Had we been persuaded that the sentencing judge overlooked the risk to which the applicant made himself subject by undertaking to assist authorities, we would not have been persuaded, in light of the seriousness of the applicant’s offending (considered together with all mitigatory matters),[49] that a different sentence should be imposed.[50] The sentences imposed on the applicant were, in our view, very low all things considered.
[49]As to which, see proposed ground 2 below.
[50]CPA, s 281(1)(b).
Proposed ground 1 cannot be upheld.

Proposed ground 2

Applicant’s submissions

In support of this proposed ground of appeal, the applicant drew attention to the fact that it was the joint position of the parties at the plea that it was open in this case to the judge to impose a term of imprisonment combined with a community correction order. The applicant also emphasised his youth, as well as the seriousness of the risk of deportation given his status as a person of Hazara origin and the prospect of persecution should he be returned to Pakistan. The applicant relied on his pleas of guilty, his assistance (both past and promised), his remorse and his good prospects of rehabilitation.
It was submitted that, in all these circumstances, it was apparent that the sentences imposed were manifestly excessive.

Respondent’s submissions

The respondent acknowledged that the Crown had submitted on the plea that a combination sentence was open in the particular circumstances of this case. Nevertheless, it was emphasised that the applicant had been assessed as unsuitable for a community correction order. And it was submitted that the judge had concluded that the applicant would be unable to comply with the terms of such an order. Thus, it was submitted that
[i]t was not reasonably open to the learned sentencing judge to impose a CCO or combination sentence where the applicant was assessed as unsuitable for a CCO, and where his Honour was not reasonably satisfied of the applicant’s ability to comply with the conditions of a CCO.

The respondent submitted that the judge had taken into account all mitigatory matters relied on by the applicant. The respondent emphasised that the sentence imposed on the home invasion charge stood at only 6 per cent of the relevant maximum penalty; that cumulation of sentence was ordered only in respect of the charge 2 and 3 sentences; and that the degree of cumulation regarding charge 2 and 3 was already very modest.[51] It was submitted that sentences of between 2 years’, and 3 years and 6 months’, imprisonment are not uncommon for ‘non-confrontational home invasions’, such as the one carried out in this case.
[51]Such orders resulting in cumulation of only two months on each charge.
It was submitted, for all these reasons, that the sentences imposed on the applicant were not manifestly excessive.

Consideration

It has often been said that a ground of manifest excess is difficult to make out. Indeed, in order to establish that a sentence is manifestly excessive it must be shown that the sentence imposed was wholly outside the range of sentences available in the sound exercise of the judge’s sentencing discretion.[52]
[52]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing at [1]); [2010] VSCA 350; R v Boaza[1999] VSCA 126, [42] (Chernov JA, Winneke P agreeing at [1], Phillips JA agreeing at [54]); DPP v Dalgliesh (a pseudonym)(2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41.
The applicant’s offending was very serious. The home invasion offence carried a maximum penalty of 25 years’ imprisonment. The home invasion occurred in the dead of night and was certainly a frightening experience for Mr Manoharan. He had been asleep at home with his wife and three children. Despite his youth, the applicant was hardly a first offender; his prior convictions were quite serious, notwithstanding that the worst of them had been sustained in the Children’s Court. The applicant’s offending was in breach of conditions of bail.
There were, however, some powerful mitigatory factors. The most prominent of these was the applicant’s assistance. There were also the pleas of guilty, the applicant’s youth, the finding of remorse and the applicant’s good prospects of rehabilitation. As to those prospects in particular, it was important to recognise that the applicant had spent a year on bail since the offending; and that the conditions of his bail were somewhat onerous. The applicant’s risk of deportation was also a weighty matter. This was so, in particular, given the applicant’s age, his Hazara ethnicity (and well-founded fear of persecution), and his lack of any connection to Pakistan. Yet, as the sentencing judge properly recognised, it would have been erroneous to have artificially lowered the sentence in order to avoid the consequences of the Migration Act 1958.[53]
[53]Tufue v The King [2024] VSCA 22, [30] (Beach and Macaulay JJA).
Then there was the joint position between the parties at the plea hearing concerning penalty. This position was that it was open to the judge to impose a term of imprisonment combined with a community correction order. Of course, the respondent did not submit at the plea that it would have been erroneous for the judge to have further imprisoned the applicant and then make a community correction order.[54] As it was, the judge imposed a total effective sentence of 22 months’ imprisonment, with a non-parole period that stood at around 54 per cent of the total effective head term.
[54]A combination sentence might have resulted in the applicant serving a further 12 months’ imprisonment: see the Sentencing Act 1991, s 44(1).
Commission of the offence of home invasion is viewed very seriously by the legislature. A very low sentence was imposed on the applicant for this offence. The orders of cumulation on the two car theft sentences were modest. It seems to us that the judge properly took into account all mitigatory matters, including — in particular — the significance of the applicant’s past and promised assistance.
In all the circumstances, we are not persuaded that the sentences imposed upon the applicant were manifestly excessive. Proposed ground 2 cannot be upheld.

Conclusion

The application for leave to appeal against sentence must be refused.
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[2025] VSCA 237

23 September 2025