Rozynski v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0099

JOSHUA ROZYNSKI	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2025
DATE OF JUDGMENT:	28 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 199
JUDGMENT APPEALED FROM:	[2023] VSC 773 (Justice Champion)

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CRIMINAL LAW – Appeal – Sentence – Murder – Applicant shot deceased in back whilst deceased seated in car – Sentence indication of not more than 25 years’ imprisonment – Applicant sentenced to 24 years’ imprisonment with 17 years’ non-parole period – Whether judge erred in application of Bugmy principles – Whether head sentence and non-parole period manifestly excessive – Application for extension of time in which to seek leave to appeal refused.

Bugmy v The Queen (2013) 249 CLR 571; DPP v Herrmann (2021) 290 A Crim R 110; Hurst v The King [2023] VSCA 286; R v Verdins (2007) 16 VR 269; Sabbatucci v The Queen [2021] VSCA 340, referred to.

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Counsel
Applicant:		Mr SJ Tovey
Respondent:		Mr JCJ McWilliams with Ms A Harrold
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA:

I have had the considerable advantage of reading in draft the reasons for judgment of Taylor JA. For the reasons her Honour gives, I agree that the extension of time within which to file an application for leave to appeal against sentence should be refused.

TAYLOR JA:

Following a sentence indication given on 31 May 2023,[1] the applicant, on 5 June 2023, pleaded guilty to the murder of Daniel Eagle. The applicant was sentenced on 15 December 2023[2] as follows:
[1]R v Rozynski (No 1) [2023] VSC 288R (Champion J).
[2]R v Rozynski (No 2) [2023] VSC 773 (Champion J) (‘Reasons’).

Charge on Indictment	Offence	Max Penalty	Sentence
Indictment M10636917
1	Murder[3]	Life imprisonment	24 years’ imprisonment
Total Effective Sentence:		24 years’ imprisonment
Non-Parole Period:		17 years’ imprisonment
Pre-sentence Detention Declared:		992 days
Section 6AAA Statement:		Total Effective Sentence 29 years Non Parole-Period 24 years

[3]Contrary to Common Law.

The applicant now seeks an extension of time in which to file an application for leave to appeal against sentence on the following grounds:
Ground 1: That the learned sentencing judge erred in his application of the ‘Bugmy’ principles by moderating the weight to be given to the applicant’s disadvantaged upbringing.
Ground 2: That the head-sentence and non-parole period imposed are, in all of the circumstances of the case, manifestly excessive.
The principles relevant to the granting of an extension of time in which to seek leave to appeal are uncontroversial. Guided by where the interests of justice fall in any particular case, the Court will consider the reasons for the delay in seeking leave and the merits of the proposed grounds.[4] The reasons for the delay in this case were explained in an affidavit sworn by Sally Anne Vardy, the applicant’s solicitor, on 7 June 2024. For the reasons below, however, the proposed grounds do not have merit. Accordingly the application for an extension of time in which to seek leave to appeal against sentence should be refused.
[4]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).

Factual summary

In the early hours of 27 March 2021 Mr Eagle, the deceased, was with two friends, Matthew Gibbons and Kerubino Angok. The three men arranged to purchase drugs from the applicant’s stepfather and half-brother. They made a down-payment but, prior to receipt of any drugs, cancelled the transaction. The trio then attempted to reclaim the down-payment. Gibbons and Angok later said that the transaction was a set-up to facilitate the assault of the applicant’s stepfather or half-brother by the deceased.
This lead to a dispute which escalated when damage was caused to the Corio home of the applicant’s stepfather. Then, at about 5:10 am, shots were fired into the deceased’s Norlane house.[5] The deceased was not home but his partner was. She contacted both him and the police. The latter attended around 5:25 am.
[5]The Crown did not allege that the applicant was directly involved in this incident.
At about 5:45 am the deceased attended the address of an associate to collect a firearm which had been stored there six weeks prior when the deceased had become subject to a firearms prohibition order. The deceased told his associate he needed the gun because his house had been shot at while his partner was home. After obtaining the gun the deceased entered the front-passenger seat of a Ford Territory wagon. Gibbons was in the driver’s seat. Angok was also in the vehicle.
The three men drove to the house of the applicant’s stepfather, at which the applicant was also present. There, a further argument took place and non-ballistic damage was caused to the property.[6] The trio then drove away in the Ford. Again, Gibbons was driving and the deceased was in the front-passenger seat.
[6]Those present in the house, however, gave evidence that they had heard gunshots.
The applicant entered the front-passenger seat of a Toyota Landcruiser being driven by either his stepfather or half-brother. There was a sawn-off shotgun in the Landcruiser. The Landcruiser pursued the Ford through the streets of Corio. At about 5:59 am during the chase the applicant discharged a shot which struck the Ford. The pursuit continued until the Ford entered the intersection of the Princes Highway and Harpur Road where, at about 6:01 am, it was struck by a semi-trailer. The Landcruiser stopped in the service lane some 10–15 metres away from the collision. Occupants from each vehicle fired shots at the other vehicle.
The applicant got out of the Landcruiser and approached the Ford with the sawn-off shotgun. He leaned through the driver’s-side window and fired a shot which hit the deceased, then facing away from the driver’s side, in the right upper back. The applicant ran back to the Landcruiser which returned to the house of the applicant’s stepfather. At 6:06 am the applicant drove home in his own vehicle. There he burned his clothes in a firepit.
The applicant’s stepfather was arrested the same day. The applicant and his half-brother surrendered themselves into custody on 28 March 2021. When interviewed, the applicant made admissions to the offending.
A post-mortem examination determined the deceased’s cause of death to be the shotgun wound to the back.

Sentence indication

On 31 May 2023 the judge gave an indication that a sentence of no more than 25 years’ imprisonment would be imposed for the charge of murder. The applicant accepted this indication and entered a plea of guilty on 5 June 2023, approximately two years and two months after he was charged.

Sentencing reasons

The judge commenced his sentencing reasons by noting the applicable maximum penalty and standard sentence for the charge of murder before summarising the offending, police investigation and procedural history.
The Victim Impact Statements given by Mr Eagle’s partner, mother and daughter were noted by the judge to establish that lasting psychological and financial pain had been caused by the applicant’s offending.[7]
[7]Reasons, [50].
The judge then summarised the applicant’s personal circumstances as follows. He was 29 years old at the time of sentencing and 26 years old when he murdered Mr Eagle. The applicant did not know his biological father. His mother commenced her relationship with his stepfather when she was pregnant with the applicant. The applicant has 10 siblings and half-siblings. The applicant’s childhood was ‘chaotic, unstable and abusive’ and marked by drug use and violence. His mother was unable to care properly for him due to ongoing serious mental health issues and substance use. His stepfather was in and out of prison.[8] Consequently the applicant was shifted between his immediate family and other family members in the Geelong area. He also spent time in the care of the State.
[8]Reasons, [53].
Records of the South Australian Department for Child Protection evidence that, by the time he was eight years old, the applicant had witnessed ongoing violence between his mother and stepfather, lacked supervision, was exposed to drug use and suffered emotional abuse. This caused the applicant distress, anxiety and fear. By the applicant’s early teenage years he had begun to use drugs and alcohol to deal with the stress and instability of his home life. This resulted in his expulsion from multiple schools due to poor behaviour. He made it to Year 10 at Corio Bay High School.
The applicant had a successful employment history which began at the age of 15 years. This included an apprenticeship in auto electrical work, running a landscaping business and being floor manager of a business in Corio.[9]
[9]Reasons, [56]–[57].
The applicant has a daughter from a previous relationship and was in a relationship with another women until his arrest. That relationship produced a second daughter. He was also stepfather to his partner’s child from a previous relationship. The Court was told that the applicant is a ‘caring and loving father who, despite the significant disadvantage and turbulence [he] faced in [his] formative years, has worked hard to create a stable and productive life’ for himself and his family.[10] The judge noted that, while at the time of the offending the applicant was an occasional drug user, he was, unlike his half-brother and stepfather, not involved in the drug trade.
[10]Reasons, [59].
The judge described the applicant’s criminal history as limited and noted that it did not include serious violent or weapons offences.[11] The applicant’s most recent prior conviction concerned a threat to inflict serious injury made in a Facebook post when drunk. He was fined $800 by the Magistrates’ Court.
[11]Reasons, [61]–[62].
The judge then turned to an analysis of the applicant’s drug and alcohol use as detailed in two reports from Mr Patrick Newton, a clinical and forensic psychologist, tendered on the applicant’s behalf.[12] Mr Newton formed the view that the applicant tended to downplay his cannabis use, which involved the daily consumption of cannabis at levels significant enough to produce transient episodes of cannabis-induced psychosis. Mr Newton also noted the applicant’s history of heavy drinking. Prior to having children the applicant would drink a 10-pack of pre-mixed spirits each evening but he reported this was reduced to a few cans most nights after becoming a father.
[12]Reasons, [63].
The judge recounted the applicant’s inconsistent answers provided about his drug use to Mr Newton and a prison clinician. After confirming use of psilocybin (magic mushrooms), MDMA and amphetamines to Mr Newton, but denying methamphetamine use, the applicant then told a prison clinician he used multiple pipes of methamphetamine a day along with heroin and prescription opiates. As a result he was placed on a substitution program and given weekly injections of buprenorphine. In a subsequent interview with Mr Newton the applicant confessed he had lied to the clinician to get buprenorphine injections as a means of alleviating stress. He said that other prisoners had told him what to say to get access to the injections. The applicant again strenuously denied to Mr Newton the use of heroin. Based on the interviews Mr Newton diagnosed the applicant with a substance-use disorder of a mild to moderately severe level, which was then in remission in a controlled environment.[13] The judge referred to Mr Newton’s opinion that the applicant’s substance-use disorder did not have an active effect upon him at the time of Mr Eagle’s death.[14]
[13]Reasons, [69]–[70].
[14]Reasons, [71].
Concerning the applicant’s mental health, the judge referred to the opinion of Mr Newton that the applicant suffers from a mild-to-moderate level of post-traumatic stress disorder (‘PTSD’) which is partially due to his childhood trauma and partly as a result of the offending. The applicant presented with significant anxiety, flashbacks to Mr Eagle’s death and the reoccurring fear his half-brother could have been injured in the confrontation. The applicant also expressed anxiety about the welfare of his children and former partner as well as distress that he will have little involvement in their lives. Mr Newton assessed the applicant to have depressive symptoms that did not rise to a diagnosis of depressive disorder. The applicant is at the low end of the normal intelligence range. Mr Newton also said that the applicant’s PTSD symptoms would cause the applicant considerably higher distress than other prisoners and that the burden of imprisonment on the applicant would be significantly increased by his PTSD.[15] The judge noted Mr Newton’s finding that there was no realistic connection between the applicant’s PTSD and his actions which led to Mr Eagle’s death.[16]
[15]Reasons, [72]–[73], [75].
[16]Reasons, [74].
Mr Newton described the applicant as a relatively immature man with limited appreciation of his emotions and subjective experience, but noted that he expressed regret for his offending and wished he could ‘take it all back’.[17] Using the Historical Clinical and Risk Management – 20 criteria, Mr Newton found the applicant posed an elevated risk of recidivism for further violent offending due to his family history, substance use, the nature of his current offending and his limited emotional insight.[18] The judge also noted that Mr Newton described the applicant’s moral reasoning as focused on desired ends rather than accepted social morality or other principles.[19] This included the applicant’s manifest tendency to tailor his statements and even incorporate falsehoods if necessary to meet his goals.[20]
[17]Reasons, [76].
[18]Reasons, [77].
[19]Reasons, [78].
[20]Reasons, [79].
Next the judge considered each party’s submissions on the plea.
Defence counsel accepted that the offending was a very serious example of the crime of murder given the applicant approached the crashed, incapacitated Ford before leaning into the car to shoot Mr Eagle in the back. Nonetheless it was put that the applicant’s conduct was not premeditated but instead intimately connected to the preceding events. The decision to pursue and shoot Mr Eagle was said to have occurred in the ‘heat of the moment’. The shooting occurred within minutes of the applicant and his family hearing gunshots outside of the family home.[21] Defence counsel highlighted the utilitarian value of the guilty plea. It was also argued that the guilty plea demonstrated remorse along with the tendered character references and utterances during the record of interview.[22] The applicant’s modest criminal history was noted to lack serious violence or weapons offences.[23] His relatively young age of 26 years was argued to require moderate application of the principles relating to young offenders and the applicant’s prospects of rehabilitation were said to be ‘very good’.[24]
[21]Reasons, [81]–[83].
[22]Reasons, [84]–[85].
[23]Reasons, [86].
[24]Reasons, [91]–[92].
Based on the South Australian Department of Child Protection documents and the reports of Mr Newton, defence counsel characterised the applicant’s ‘entire childhood’ to the age of 15 years as being ‘consumed by instability and chaos’.[25] It was contended that this instability impacted the way the applicant saw the world, his reasoning capabilities and ability to make decisions. Accordingly, it was pressed that the Bugmy[26] principles applied ‘with real force’ to reduce the applicant’s moral culpability and mitigate the sentence to be imposed.[27] Limbs 5 and 6 of Verdins[28] were also argued to be enlivened.[29]
[25]Reasons, [87].
[26]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[27]Reasons, [88].
[28]R v Verdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
[29]Reasons, [89].
Defence counsel argued that a non-parole period of less than 70 per cent of the head sentence was open given the applicant’s relative youth and reputation as hard-working, reliable and generally non-violent.[30]
[30]Reasons, [93]. Defence counsel referred to DPP v Pan [2022] VSCA 98 and Power v The Queen (1974) 131 CLR 623.
The Crown characterised the offending as an act of retribution in which the applicant intentionally pursued and murdered Mr Eagle. There was a ‘good portion’ of time after the collision in which the applicant could have reassessed his objective and desisted. Accordingly the Crown argued the offending was ‘midrange’. It did not occur in the heat of the moment nor was it the product of premeditation.[31] The applicant’s significant level of remorse was accepted. The plea of guilty was accepted as significant even though it was not early.[32] The Crown disputed that the applicant was a young offender given his age and significant life experience. It was also argued that Mr Newton’s conclusion that the applicant had an elevated risk of violent offending recidivism meant that his prospects for rehabilitation were ‘less than good’.[33]
[31]Reasons, [96]–[97].
[32]Reasons, [98].
[33]Reasons, [102]–[103].
The Crown conceded that the applicant’s background attracted the general principles of Bugmy to some extent and that a moderate reduction in moral culpability was warranted.[34] The Crown also accepted that limbs 5 and 6 of Verdins had work to do.
[34]Reasons, [100].
The judge then turned to an analysis of the matters relevant to the exercise of his sentencing discretion. That murder is a Category 1 offence, has a maximum penalty of life imprisonment and a standard sentence of 25 years’ imprisonment were acknowledged as relevant to the instinctive synthesis.[35]
[35]Reasons, [105]–[106].
The judge described the applicant’s offending as a serious example of the offence of murder, particularly given the public nature of the offending. The applicant’s conduct preceding Mr Eagle’s death was ‘reckless, dangerous and entirely unacceptable’.[36] The judge further described the applicant’s actions after the collision as ‘senseless’,[37] observing that despite Mr Newton’s opinion as to the style of the applicant’s decision-making processes consequent upon his upbringing, the applicant was not deprived of the ability to exercise restraint. The applicant made a deliberate choice to get out of the Landcruiser and approach the Ford to shoot Mr Eagle at close range.[38] The judge accepted that the distance between the cars was short and that it was more than likely the applicant formed the intention to shoot Mr Eagle as he approached the Ford. The judge was unable to make a finding as to when the applicant took possession of the sawn-off shotgun.[39] The judge found that the applicant did regret the decision he made, but characterised his actions as ‘inexcusable’.[40]
[36]Reasons, [107].
[37]Reasons, [108].
[38]Reasons, [108].
[39]Reasons, [110].
[40]Reasons, [109].
In light of proposed ground 1 it is convenient to reproduce the following remarks of the judge (addressed to the applicant) which appeared in the Reasons under a sub‑heading ‘Moral culpability’.
I accept, given the evidence placed before the court, that your subjective culpability is not the same as a person who has had the advantage of a stable and regular home environment during their formative years. I have no doubt your disadvantaged background has contributed to shaping your personality and responses to stressful situations.
As a result, I accept that the principles articulated in Bugmy do apply in your case, and that these operate to reduce your moral culpability. However, their impact is somewhat qualified in your case. The court has been told that, despite your difficult upbringing, you largely pulled yourself out of your disadvantaged circumstances, undertaking an apprenticeship, obtaining gainful employment, and creating a family of your own. You have had little contact with the criminal justice system in your adult life, up to this point, and have been a functioning member of society, and clearly loved by your family. These matters are to your credit.
However, they also reduce the impact of the submission that your upbringing has indelibly shaped your life, personality and responses. This is not to say that your dysfunctional upbringing did not leave a mark on you. Indeed, I accept that your ability to control your impulse to shoot Mr Eagle is likely to have been reduced on this occasion. Therefore, I have applied the principles articulated in Bugmy and reduced your moral culpability to a moderate extent when determining the sentence to be imposed upon you.[41]
[41]Reasons, [112]–[114] (citations omitted).

The Judge also accepted that limbs 5 and 6 of Verdins applied ‘to a moderate extent’.[42]
[42]Reasons, [115].
The applicant’s guilty plea was found to evidence remorse and have significant utilitarian value.[43] The effects of being on remand during the COVID pandemic were also considered,[44] as were current sentencing practices.[45]
[43]Reasons, [116]–[117].
[44]Reasons, [118].
[45]Reasons, [119]–[121].
The judge gave weight to the principles of general deterrence, denunciation and just punishment.[46] The applicant was found to be an appropriate vehicle for general deterrence notwithstanding that the consideration of general deterrence was ‘tempered somewhat’ by the applicant’s sad and difficult early life.[47]
[46]Reasons, [123]–[125].
[47]Reasons, [123].
The judge found that sentencing principles relevant to young offenders had minimal application[48] but accepted that the applicant’s plea of guilty, expressions of remorse, minimal criminal history and positive progress in custody reduced the emphasis to be placed on specific deterrence.[49] Bugmy principles were also found to operate to lessen the weight to be given to specific deterrence.[50] The judge found the applicant’s prospects of rehabilitation to be positive but guarded.[51]
[48]Reasons, [126].
[49]Reasons, [127].
[50]Reasons, [127].
[51]Reasons, [128].
As to protection of the community, the judge said
Community protection is also of relevance, in light of your elevated risk of reoffending. It is important that the community is not exposed to potentially violent behaviour in the future. At the same time, I do acknowledge that the person sentenced today may well be different to the one released into the community at the end of your sentence. Taking into account all matters put forward, I do not consider that protection of the community requires particular emphasis to be given in the sentence to be imposed.[52]
[52]Reasons, [129].

Ground 1 — specific error

Applicant’s contentions

The applicant argued that the judge erred in the manner in which he applied the Bugmy principles to the sentencing task. It was put that it was not open to the judge to ‘somewhat qualify’ the operation of them. The applicant described the opinion of Mr Newton that the impact of the applicant’s childhood experiences were ‘profound’ as both unequivocal and unchallenged. That being so, the applicant contended that it was not open to the judge to act in contrast to that opinion. Rather, the judge was bound to find that the applicant’s difficult upbringing indelibly shaped his life, personality and responses, notwithstanding that he had managed to largely pull himself out of his disadvantaged circumstances.
At the oral hearing, the applicant disavowed that his contention was a question of weight to be given to the operation of the Bugmy principles. The applicant maintained that the judge made an error of principle in failing to give full effect to Mr Newton’s opinion.

Respondent’s contentions

The respondent argued that the judge correctly applied the Bugmy principles. Both the general and specific applications were given effect. It was put that, as a matter of principle, it is open to a sentencing judge to determine the extent to which the circumstances of an offender’s upbringing moderates his or her moral culpability. Accordingly, the respondent argued that the applicant’s complaint was not of principle but of weight.

Discussion and analysis

An offender’s childhood experience of violence and/or deprivation is a matter relevant to sentence because the effects of social disadvantage do not diminish with time.
… the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.[53]
[53]Bugmy (2013) 249 CLR 571, [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37 (citations omitted).
In DPP v Herrmann[54] this Court held that Bugmy specified two ways in which childhood deprivation may be relevant to the assessment of moral culpability. The first is general. There need not be a nexus between the offending and the relevant background circumstances.[55] An offender’s childhood circumstances may mitigate his or her sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years were not marred in that fashion. The second is specific. An offender’s childhood experiences may explain his or her inability to control violent impulses when frustrated. There being a nexus between the offending and the relevant background circumstances means, however, that an inability to control a violent response may increase the importance of community protection as part of the sentencing synthesis.
[54](2021) 290 A Crim R 110, 118–19 [36]–[37] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.
[55]Leslie v The King [2025] VSCA 13, [81] (Emerton P and J Forrest AJA).
It is not necessary for the childhood deprivation to have been ‘profound’.[56] It is necessary for every sentencing decision to give ‘full weight’ to an offender’s deprived background.[57] That does not mean, however, that a judge does not evaluate the extent to which the Bugmy principles apply in any given sentencing exercise or necessarily preclude a finding of qualified application. In Sabbatucci v The Queen[58] this Court said
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[59]
[56]Newton (a pseudonym) v The Queen [2023] VSCA 22, [37] (Beach and Macaulay JJA).
[57]Bugmy (2013) 249 CLR 571, [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.
[58][2021] VSCA 340.
[59]Ibid [6] (Maxwell P and Emerton JA).
In Hurst v The King[60] this Court said
Deprivation will not, however, always result in an amelioration of sentence. The sentencing judge must evaluate the extent to which past disadvantage has featured in the offender’s upbringing and impacted the course of their life.[61]
[60][2023] VSCA 286.
[61]Ibid [69] (Macaulay and Whelan JJA) (citations omitted).
In this case the following opinion of Mr Newton was before the judge.
[The applicant’s] early problems had a profound impact upon him. The absence of secure attachments undermined his personality development, whereas the need to cope with entrenched disadvantage and unpredictable circumstances led him to adopt a ‘pragmatic’ approach to ethical decision making. While adaptive in those circumstances, this has underpinned later problems and acting out on his part.
The judge also had evidence that the applicant had an impressive work history, had remained almost entirely offence free and had created a stable and loving family environment.
This evidence cumulatively informed the judge’s finding on moral culpability as reproduced above at [33].
At the oral hearing the applicant pressed that the specific error was the judge’s qualification of Mr Newton’s evidence based on additional information before him. That argument cannot be accepted. The applicant’s argument is, properly understood, an argument as to weight.
It was incumbent upon the judge to evaluate the effect of all the evidence relevant to moral culpability. This included the applicant’s work and criminal history, his recent family environment as well as the opinion of Mr Newton as to the effect of his childhood. Doing so does not mean that the judge failed to give full weight to both the general and specific Bugmy principles.
The judge found that the applicant’s upbringing contributed to the shaping of his personality. It had ‘indelibly shaped’ his life. In other words, the judge did not qualify the general application of Bugmy vis-à-vis the applicant’s moral culpability. The judge also found that the applicant’s disadvantaged background contributed to the way in which he responded to stressful situations and that his ability to control his impulse to shoot Mr Eagle was likely to have been reduced. While the judge ameliorated the reduction in the applicant’s moral culpability because he had been able to control his impulses in many other circumstances, the judge also found in an entirely orthodox manner that that meant community protection did not require particular emphasis. If there had been a greater reduction in the applicant’s moral culpability because of a demonstrated history of a lack of impulse control, there would necessarily have been a greater need for the sentence to reflect the importance of protecting the community.
The applicant’s contention of specific error cannot be upheld. Ground 1 must fail.

Ground 2 — manifest excess

Applicant’s contentions

The applicant accepted that his offending was ‘serious’ and that there was need for the sentence to give appropriate weight to general deterrence. Nonetheless it was contended that he had a ‘powerful array’ of mitigating factors available to him. These were:
(a)The plea of guilty.
(b)The proactive conduct of the deceased’s party.
(c)Difficult custodial conditions relating to the COVID-19 pandemic.
(d)Bugmy principles.
(e)Limbs 5 and 6 of Verdins.
(f)A lack of a significant prior criminal history.
(g)Strong prospects for rehabilitation.
In all the circumstances it was contended that both the sentence and non-parole period were manifestly excessive. In particular, a sentence of one year less than the standard sentence for murder was said to support the submission that the sentencing discretion miscarried.

Respondent’s contentions

The respondent contended that the judge’s description of the offending as serious speaks for itself. It was argued that the judge considered all the factors in mitigation relied upon by the applicant and that the sentence imposed is not wholly outside the range available.

Discussion and analysis

As is often observed, a ground of manifest excess is difficult to make out. An applicant must establish that the sentence imposed was wholly outside the range of sentences available in the sound exercise of the judge’s sentencing discretion.[62]
[62]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.
In this case I am unable to conclude that the sentence and non-parole period imposed was other than firmly within the range open to the judge.
The offending was serious. Whatever the conduct of Mr Eagle and his two associates in the lead-up to the murder, the applicant participated in a dangerous car chase through the streets of suburban Geelong. Armed with a sawn-off shot gun, he not only was prepared to fire at the Ford but, when it was incapacitated, walked to it, leaned through the driver’s-side window and shot Mr Eagle at very close range in the back. It was callous and brutal behaviour.
The mitigating factors relied upon by the applicant were all given weight by the judge. In particular, the judge gave weight to the Bugmy principles in the manner discussed under cover of ground 1. Balancing all the matters, including the legislative guidepost of the standard sentence of 25 years, the applicant has failed to demonstrate that the sentence was manifestly excessive.
Ground 2 must fail.

Conclusion

The application for an extension of time in which to seek leave to appeal against sentence must be refused.

BOYCE JA:

I agree with Taylor JA.

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[2025] VSCA 199

28 August 2025