Skeates (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0105

ZAC SKEATES (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2023
DATE OF JUDGMENT:	19 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 226
JUDGMENT APPEALED FROM:	DPP v Skeates (A Pseudonym) [2022] VCC 692 (Judge Smallwood)

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CRIMINAL LAW – Appeal – Sentence – Threats, various assault offences, rape and breaches of family violence intervention orders – Offences committed against four intimate partners – Significant history of family violence offending – Whether individual sentences and orders for cumulation manifestly excessive – Importance of family violence context in assessing gravity of offending – General deterrence, specific deterrence and community protection of paramount importance – Leave to appeal refused.

Pasinis v The Queen [2014] VSCA 97, Marrah v The Queen [2014] VSCA 119, DPP v Meyers (2014) 44 VR 486 discussed; Filiz v The Queen [2014] VSCA 212, Uzun v The Queen [2015] VSCA 292, Kalala v The Queen (2017) 269 A Crim R 1, Nolan v The Queen [2017] VSCA 240, DPP v Smith [2019] VSCA 266, Laa v The Queen [2020] VSCA 136 referred to.

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Counsel
Applicant:	Mr J Connolly
Respondent:	Ms D Piekusis KC
Solicitors
Applicant:	SLKQ Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
NIALL JA
TAYLOR JA:

Introduction and Overview

On 18 February 2022 the applicant pleaded guilty to 15 charges across two indictments. The charges concerned threats, various assault offences, rape and breaches of family violence intervention orders (‘FVIOs’) committed against four of the applicant’s intimate partners between July 2016 and September 2019.
Following a plea hearing in the County Court on 13 May 2022, the applicant was sentenced on 17 May 2022 as follows:

Charge	Offence	Max Penalty	Sentence	Cumulation
*Indictment K12399880A*
1	Common assault contrary to common law	5 years	1 year	N/A
2	Causing injury intentionally	10 years	2 years 6 months	12 months
3	Common assault contrary to common law	5 years	2 years	6 months
4	Make threat to inflict serious injury	5 years	6 months	N/A
5	Rape	25 years	5 years 6 months	Base
6	Causing injury intentionally	10 years	3 years	12 months
Total Effective Sentence imposed on Indictment K12399880A:		8 years’ imprisonment
*Indictment K12399880B*
1	Causing injury intentionally	10 years	1 year	3 months
2	Common assault contrary to common law	5 years	2 years	Base
3	Common assault contrary to common law	5 years	1 year	N/A
4	Causing injury recklessly	5 years	1 year 6 months	6 months
5	Persistent contravention of a FVIO	5 years’ imprisonment or a fine (max 600 penalty units) or both	1 year	N/A
6	Common assault contrary to common law	5 years	1 year	N/A
7	Causing injury intentionally	10 years	2 years	6 months
8	Causing injury intentionally	10 years	2 years	9 months

9	Persistent contravention of a FVIO	5 years’ imprisonment or a fine (max 600 penalty units) or both	1 year	N/A
Total Effective Sentence imposed on Indictment K12399880B:		4 years’ imprisonment of which 2 years concurrent with sentence imposed on Indictment K12399880A
Total Effective Sentence imposed on both Indictments:		10 years’ imprisonment
Non-Parole Period:		7 years
Pre-sentence Detention Declared:		918 days
Section 6AAA Statement:		14 years’ imprisonment Non-parole period of 11 years
Other Relevant Orders: Nil

The applicant seeks leave to appeal against sentence on the following grounds:
1.The individual sentences imposed on the particularised charges and the orders for cumulation between charges and indictments are manifestly excessive.
PARTICULARS
(a)In fixing the head sentences and orders for cumulation between charges and between indictments insufficient weight was given to the principle of totality.
(b)Insufficient weight was afforded to the valuable pleas of guilty and the material steps towards rehabilitation in custody.
(c)The order for cumulation between indictment K12399880A and K12399880B is manifestly excessive.
(d)The individual charges imposed on charge 1, charge 2, charge 3 and charge 6 are manifestly excessive.[1]
(e)The orders for cumulation imposed on charge 2, charge 3 and charge 6 are manifestly excessive.[2]
(f)The individual sentences imposed on charges 1–9 are manifestly excessive.[3]
(g)The orders for cumulation imposed on charge 1, charge 4 and charge 8 are manifestly excessive.[4]
[1]Indictment K12399880A.
[2]Indictment K12399880A.
[3]Indictment K12399880B.
[4]Indictment K12399880B.
For the reasons that follow, leave to appeal should be refused.

Circumstances of the offending

Indictment K12399880A

All six charges within indictment K12399880A concerned the applicant’s offending against Jeana Warner.[5] The applicant and Ms Warner met in Perth in 2014 and commenced a casual sexual relationship. Ms Warner became pregnant and relocated to live with family in Queensland. Their child was born when the applicant was in custody. Ms Warner informed him of the birth.
[5]A pseudonym.
Upon the applicant’s release from custody in April 2019, he and Ms Warner recommenced their relationship. Together with their three-year-old child, they lived with the applicant’s father and step-mother in regional Victoria.
The applicant and Ms Warner argued constantly. During these arguments, the applicant would cover her mouth with his hand and say words like ‘how dare you fight with me in my parents’ house’. The applicant would accuse Ms Warner of sleeping with other people, confiscate her phone and spit on her.
On 21 June 2019 the applicant received an injury to his ribs during a fight at a football game. Ms Warner made a joke that the injury prevented him from hugging her, while she and the applicant were in bed that night. The applicant then punched Ms Warner to the back, causing pain (charge 1 — common assault).
Ms Warner, who was pregnant at the time, suffered a miscarriage nine days later.[6]
[6]It was not alleged that the assault subject of charge 1 was causative of the miscarriage.
On an occasion between 29 August 2019 and 5 September 2019 Ms Warner, then pregnant again, was using her phone while having a bath with her child. The applicant entered the bathroom and asked who she was texting. Ms Warner got out of the bath and tried to walk past the applicant. He grabbed her elbow and threw her, stating that she knew what was going to happen and that she would again suffer a miscarriage. After grabbing her phone and reading a SMS conversation in which Ms Warner discussed the relationship difficulties with a friend, the applicant smashed the phone. He then ‘backhanded’ her to the back of the head, causing Ms Warner to lose consciousness (charge 2 — intentionally causing injury).
When Ms Warner regained consciousness, she was in the doorway of her bedroom and in the presence of the applicant and his father. The applicant had called his father to come home from work when he was unable to wake Ms Warner.
On 9 September 2019 Ms Warner’s child was unwell. She brought the child into the bedroom she shared with the applicant. He told her to return the child to its own room. Ms Warner did not do so. When the child was asleep, the applicant again told Ms Warner to remove the child. He became increasingly angry, pulling Ms Warner’s hair and squeezing the back of her neck, and threatening to do so harder unless she complied. Ms Warner took the child to its own room.
Upon returning and entering the bed, Ms Warner was told by the applicant to roll over and cuddle him. She froze. The applicant slapped her on the side of her head and spat in her face and hair (charge 3 — common assault). Ms Warner got out of bed and said that she would sleep in the child’s room. The applicant said that if she left and continued her refusal to cuddle him, he would have his father kick her out of the house. Ms Warner spent the night in the child’s room.
The following morning Ms Warner made plans to meet a friend. When she told the applicant of her plans, he told her that she could not leave. The applicant’s father then entered the room. The applicant told him that Ms Warner was leaving him. He said that if his father did not kick Ms Warner out of the house he would ‘bash the fuck’ out of her (charge 4 — make threat to inflict serious injury).
Ms Warner and her child left the house. She was found crying and running down the street by her friend. Ms Warner told her friend that the applicant had been assaulting her. Together they went to visit some other women and devised a system whereby Ms Warner would send a ‘thumbs up’ emoji via Facebook Messenger if she needed assistance in the future.
Meanwhile the applicant sent Ms Warner multiple text messages in which he apologised, asked her to return home and also accused her of ‘fucking around’. Ms Warner did not respond to the messages. She did return home later that afternoon. When she took a shower the applicant asked her if she was washing something off. He promised to change and to fix things before picking up her underwear to smell it.
On 11 September 2019 Ms Warner and the applicant dropped their child at school before collecting the keys for their new rental property. At lunch the applicant took Ms Warner’s phone and keys and refused to return them unless she proved to him that she wanted to be with him. Ms Warner left.
When Ms Warner returned to the applicant’s father’s home, the applicant cornered her in the kitchen and asked if she had slept with someone else. He instructed her to remove her clothing and told her that he was going to ‘feel your fanny’. Ms Warner was scared that refusing would result in the applicant hitting her and also concerned about her pregnancy. She pulled down her leggings and underwear. The applicant placed two fingers in her vagina (charge 5 — rape), then took them out and smelt them. The applicant apologised to Ms Warner as she was crying.[7]
[7]The prosecution put the charge of rape on the basis that at the time of the penetration the applicant held a belief that Ms Warner was consenting, but that such a belief was not reasonable.
That night the applicant and Ms Warner were at the newly rented house. When Ms Warner was preparing their child for a bath, the applicant demanded to know who she was texting. She told him that it was a friend and said it was about what he had done. She also said that the police were on their way. The applicant left the premises in a taxi.
Ms Warner’s friend arrived at the house. After some time Ms Warner told that friend that as the applicant had not contacted her, the friend could leave. Shortly after the friend left, the applicant started texting Ms Warner and told her he was coming back. Ms Warner responded that her friend was still present and the police were coming.
At about 3:00 am on 12 September 2019 the applicant returned to the property. He banged on the windows and yelled at Ms Warner to be let in. She called a taxi, hoping its arrival would scare him off. It did not. The applicant then entered the house through a window. He questioned Ms Warner about why she lied about someone being in the house. He then threw her across the lounge room causing a carpet burn to her hip and elbow. As Ms Warner got up to leave the room, she felt a knee or kick to her spine. She began screaming. The applicant dragged her by her hair back into the room. Ms Warner managed to get up again and ran from him before dropping to the ground and covering her stomach. The applicant then punched and kicked her all over her body (charge 6 — intentionally causing injury). Ms Warner then went to lie down with her child. The applicant entered the room and said that he wanted a hug.
The following day Ms Warner woke and was sore all over. She left the premises and reported the matter to police later that same day. Upon medical examination Ms Warner was found to have multiple bruises.

Indictment K1239980B

The charges of indictment K1239980B relate to offending against three other former partners of the applicant: Bess Boyce, Libby Read and Kathleen May.[8]
[8]All pseudonyms.
The applicant and Ms Boyce were in a relationship between January 2016 and August 2017. Until August 2016 they resided in Perth. Thereafter they lived in Victoria with the applicant’s father and stepmother. In April 2017 they had a child.
The applicant was violent to Ms Boyce in Perth. On occasion he would kick her and burn her with the flame of a meth pipe. He would also call her fat, ugly and a dog. As they boarded the plane to move to Melbourne in August 2016 the applicant said ‘you’re going to my territory now, you’re fucked’. After arrival in Victoria the applicant’s behaviour towards Ms Boyce escalated. He broke Ms Boyce’s phone and retained her SIM card. He then used that SIM card in his own mobile phone to send messages to Ms Boyce’s mother, pretending to be Ms Boyce and asking for money. He would also log in to and monitor Ms Boyce’s social media accounts.
In early August 2016 Ms Boyce told the applicant that she wanted to go home to Perth. He became angry and punched her to the mouth, causing one lip to split and bleed and swelling to both lips (charge 1 — intentionally cause injury). After observing these injuries the applicant’s step-mother called police. When police attended, out of fear Ms Boyce made no complaint against the applicant.
A few days later Ms Boyce and the applicant engaged in consensual sex during which the applicant put a belt around Ms Boyce’s neck. At one point she lost consciousness. Upon waking she felt pain in her anus and assumed the applicant had had anal sex with her whilst she was unconscious. When Ms Boyce confronted the applicant, he became angry and she began to cry. While she was naked, the applicant covered her mouth and told her to be quiet before punching and kicking her numerous times (charge 2 — common assault).
The applicant and Ms Read had an ‘on-again, off-again’ relationship between late 2016 and 9 October 2018. At about Christmas 2016 Ms Read told the applicant that she had managed to buy a quantity of speed (methylamphetamine). The applicant went to her house where they engaged in consensual sex during which he hit Ms Read with an open hand to the side of the head and told her to give him the drugs (charge 3 — common assault).
In early 2017 the applicant stayed with Ms Read for a week or two until they had an argument in which he accused her of seeing another man. The applicant became angry and pushed Ms Read to the floor. When she stood he threw her into the dining room door, causing pain and bruising to her arm (charge 4 — intentionally cause injury). Ms Read told him to leave. He did so, leaving his belongings behind. A while later Ms Read received a text message from the applicant warning her against touching his belongings. On a later occasion he banged on the door and yelled at her.
The applicant was remanded in custody on 13 July 2018.[9]
[9]The applicant’s criminal history is considered further below.
On 18 July 2018 the Magistrates’ Court made a FVIO in which Ms Read was a protected person and the applicant was the respondent. Its conditions required the applicant not to commit family violence against a protected person, not to contact or communicate with a protected person by any means or get another person to do so, not to approach or remain within 15 metres of a protected person and not to go or remain within 200 metres of any place where a protected person lived, worked or attended school.
Whilst in custody the applicant asked Ms Read, via a friend, for her number so she could be added to his contact list. Another friend told Ms Read that the applicant was sorry and would put her on his contact list under a false name to disguise any FVIO breach.
Between 1 August 2018 and his release from custody on 9 October 2018 the applicant called Ms Read from custody (charge 5 — persistent contravention of a FVIO, particular 4).
On the day of release the applicant met Ms Read and they went to the applicant’s father’s house (charge 5 — persistent contravention of a FVIO, particular 6). On 14 October 2018 he went to Ms Read’s house (charge 5 — persistent contravention of a FVIO, particular 6).
Later in October 2018 the applicant was again at Ms Read’s house. During an argument he went through her phone looking for messages to prove she had been seeing other men whilst he was in custody. The applicant shoved Ms Read, causing her to bounce into a door and wall and hit her head, back and arm. Apparently in a panic, the applicant told Ms Read that he did not mean it. When she did not respond he became angry and left (charge 5 — persistent contravention of a FVIO, particular 7).
The applicant and Ms May were in a relationship between August 2017 and February 2018. The relationship ended when she obtained a FVIO against him.
On 21 November 2017 the applicant hit Ms May to the chest, causing a red mark (charge 6 — common assault).
On 1 January 2018 the applicant spat on Ms May and hit her on the leg during a fight. Ms May was bruised (charge 7 — intentionally cause injury). When she left the applicant sent her a message asking where she was and told her to ‘chill the fuck out’ because she was overreacting.
On 11 January 2018 the applicant again spat on Ms May. He hit her numerous times to the face, causing red marks and swelling to her nose and lips as well as swelling around her eyes (charge 8 — intentionally cause injury).
On 28 February 2018 Ms May was made the protected person in an FVIO to which the applicant was the respondent. Its conditions included a prohibition on contacting her. Between 21 and 30 May 2018 the applicant telephoned and sent approximately 180 messages to Ms May (charge 9 — persistent contravention of a FVIO, particular 4).
Between 1 and 7 June 2018 the applicant sent a further 80 messages to Ms May (charge 9 — persistent contravention of a FVIO, particular 5).

Sentencing Reasons

The learned sentencing judge referred to the applicant’s ‘very significant and very disturbing criminal history’[10] and noted that some of the offending occurred when the applicant was subject to two Community Correction Orders (‘CCOs’) for violence against women, of a significant nature.[11] His Honour then summarised the applicant’s offending with respect to indictments K12399880A[12] and K12399880B.[13]
[10]DPP v Zac Skeates (A Pseudonym) [2022] VCC 692, [7] (‘Reasons’).
[11]Reasons, [15].
[12]Reasons, [18]–[44].
[13]Reasons, [45]–[58].
The judge described the applicant’s offending as ‘serious’[14] and showing at least ‘total disrespect,’ if not hatred, towards women.[15] His Honour characterised the rape offence, being a standard sentence offence, as being ‘lower than the middle range’[16] but not ‘at the lower end’.[17] The judge noted that the rape was the ‘culmination of protracted violence over an extended period of time, the act of total ownership and degradation on a helpless and pregnant woman.’[18]
[14]Reasons, [59].
[15]Reasons, [38].
[16]Reasons, [37].
[17]Reasons, [84].
[18]Reasons, [81]. See also [38].
His Honour referred to the need for denunciation, general and specific deterrence, public protection and appropriate punishment to be reflected in the sentence.[19] His Honour summarised the victim impact statements before the court,[20] noting that one victim had wondered what she had done to deserve the applicant’s violence and the other worried for her child, who had witnessed the applicant hurting and spitting on her.
[19]Reasons, [59]–[60].
[20]Reasons, [61]–[66].

The sentencing judge then turned to matters put on behalf of the applicant. His Honour accepted the submission that ‘proactive therapeutic treatment’ had been undertaken by the applicant, but noted that the specifics of his treatment were unclear. His Honour recorded the absence of psychological or psychiatric material before him.[21] The judge was not satisfied of any connection between a traumatic incident in the applicant’s childhood and his treatment of women.[22]
[21]Reasons, [68].
[22]Reasons, [69].
His Honour recorded that the applicant was born and grew up in regional Victoria. He was a happy and intelligent boy. He was a good footballer. His parents separated when he was aged 12 years. The applicant’s father said that the applicant fell apart within six months of his mother leaving the family home. He disengaged from secondary school and associated with peers who used alcohol and drugs.[23] He did later complete Year 10 before undertaking an apprenticeship as a mechanic.[24]
[23]Reasons, [70].
[24]Reasons, [71].
The applicant served his first custodial sentence at the age of 20. Following his release, the applicant re-established a relationship with his mother, who had moved to Perth. The applicant has served custodial sentences in Western Australia.[25]
[25]Reasons, [72]–[73]. The applicant’s criminal history in Western Australia does not include family violence offending.
His Honour noted that the applicant found the body of a childhood friend who had died by suicide and that had a marked effect on him.[26] The judge did not accept the submission that that event led to self-medication with illicit drugs and ‘unhealthy romantic relationships’. His Honour noted that by then the applicant had already been incarcerated for assaulting one woman and placed on a CCO for assaulting another.[27]
[26]Reasons, [73]–[74].
[27]Reasons, [75].
The sentencing judge took into account the applicant’s plea of guilty[28] and his custodial restrictions as a consequence of the COVID–19 pandemic.[29] The judge noted the applicant’s qualifications and his completion of available courses in custody.[30] While his Honour had ‘grave doubts’ as to the applicant’s expression of ‘shame and embarrassment’ the judge was not prepared to find a total absence of remorse.[31] His Honour noted that the applicant wished to stay drug free and had examined residential rehabilitation options in Western Australia.[32]
[28]Reasons, [4].
[29]Reasons, [77].
[30]Reasons, [81].
[31]Reasons, [78].
[32]Reasons, [78].
His Honour noted that the applicant stated that he did not wish to resume contact with any of the complainants and had removed himself from the lives of his children. The judge found in that statement a sense of self-justification.[33] His Honour assessed the likelihood of the applicant reoffending as ‘high’.[34]
[33]Reasons, [79].
[34]Reasons, [82].
His Honour said:
You are either going to come to understand why you cannot belt women the hard way, or you are never going to understand it at all, and it is a fair description to say that you are, on the material before me and your prior criminal history and the comments made by the magistrate, a serial woman basher.
You do not get sentenced for your lifestyle. You do not get sentenced in any way for preventative detention or anything like that, but you have to come to understand that this sort of behaviour is something that the community abhors and it is only in recent times that people are becoming aware of the full extent of it. You are a classic example of a perpetrator.[35]
[35]Reasons, [87]–[88].
His Honour then referred to the principle of totality and explained the manner in which he approached the sentencing task.[36]
[36]Reasons, [89]–[90].

Submissions of the parties

The applicant submitted that the sentencing judge erred in the application of the totality principle such that the individual sentences and orders for cumulation were insufficiently moderated to avoid a sentence that was crushing. While accepting that his overall conduct was ‘deplorable’, the applicant argued that the individual offences were less so. In particular, it was argued that the physical injuries sustained by the victims were limited. Accordingly, the criminality of each of the charges did not justify the overall sentence imposed, even when regard was had to the need for the sentence to reflect specific deterrence and community protection.
The respondent submitted that the applicant’s offending must be viewed in the context of his history of violence and disrespect towards intimate partners over ten years. His Honour was correct to characterise the offending as serious. It comprised 15 separate offences against four victims over three years. The judge was required to reflect the aggregate criminality in the sentence imposed and approached the issue of totality in an orthodox manner. Accordingly, the total effective sentence cannot reasonably be characterised as crushing.
Discussion
In 2014 this Court in Pasinis v The Queen[37] sent ‘an unequivocal message’[38] as to the prominence deterrence must achieve in sentencing criminal conduct in the context of family violence. It was in the following terms:
Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately the criminal law now gives greater recognition to the devastating effects of family violence. It has also been recognised that women who are killed by their husband, boyfriend or de facto partner have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.
The effects of family violence are now well documented. They are not confined to physical injury. Victims often feel responsible for the violence and ashamed that they were not able to prevent the perpetrator from offending. As occurred in this case, it is common for victims to deny or conceal that their partners have assaulted them until the violence becomes unbearable. … Victims who have been dominated, controlled and beaten by their partners over a significant period experience serious and long-lasting psychological trauma. As in the present case, the physical effects of the violence and its erosion of the victim’s confidence can also affect their ability to participate in paid work and have other serious financial effects.
…
General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would–be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.[39]
[37][2014] VSCA 97 (Neave JA and Kyrou AJA) (‘Pasinis’).
[38]DPP v Smith [2019] VSCA 266, [35] (Kyrou, Kaye and T Forrest JJA) (‘Smith’).
[39]Pasinis [2014] VSCA 97, [53], [54] and [57] (Neave JA and Kyrou AJA).
Since then this Court has made repeated statements that sentences imposed for family violence should be ‘set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members’[40] and reaffirmed that the ‘fundamental importance’[41] of the need for condign punishment to denounce and deter family violence is because of its prevalence and the seriousness of its consequences.
[40]Uzun v The Queen [2015] VSCA 292, [48] (Maxwell P, Beale AJA agreeing at [51]) (‘Uzun’).
[41]Kalala v The Queen (2017) 269 A Crim R 1, 18 [61] (Maxwell P and Redlich JA, Osborn JA agreeing at 25 [95]); [2017] VSCA 223.
In Marrah v The Queen the Court said:
Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage. It goes without saying that such a response, to what is a common human situation, is utterly unacceptable. The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence. The sentences must be of such an order as to strongly denounce violence within a domestic relationship.[42]
[42]Marrah v The Queen [2014] VSCA 119, [25] (Redlich and Tate JJA) (‘Marrah’).
And in DPP v Meyers the Court stated:
Violence of this kind is alarmingly widespread, and extremely harmful. The statistics about the incidence of women being killed or seriously injured by vengeful former partners are truly shocking. Although the cases under consideration do not fall into that worst category, they are symptomatic of what can fairly be described as an epidemic of domestic violence.
General deterrence is, accordingly, a sentencing principle of great importance in cases such as these. Those who might, in a mood of anger or frustration or bitterness, contemplate this kind of violent entry into the home of a former spouse or partner must realise that, if they do so, they will almost certainly spend a long time in prison.[43]
[43]DPP v Meyers (2014) 44 VR 486, 497–498 [45]–[46] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314 (‘Meyers’).
The Court has ‘made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable.’[44] The strength of the language used in these statements is not accidental. Family violence is contemptible. It warrants both condemnation and appropriate punishment.
[44]Laa v The Queen [2020] VSCA 136, [52] (Maxwell P, Kaye and Niall JJA) (‘Laa’).
As is plain from these authorities, the fundamental importance of general deterrence in arriving at the appropriate punishment does not diminish the value of specific deterrence and protection of the community as sentencing considerations.[45] And, the gravity of family violence offending will be aggravated if it breaches an extant FVIO[46] or is committed in front of children.[47]
[45]See generally, Uzun [2015] VSCA 292, [33] (Priest JA, Maxwell P agreeing at [48], Beale AJA agreeing at [51]) and Smith [2019] VSCA 266, [35] (Kyrou, Kaye and T Forrest JJA). See also Nolan v The Queen [2017] VSCA 240, [31] (Beach, Ferguson and Coghlan JJA) (‘Nolan’).
[46]Marrah [2014] VSCA 119, [25] (Redlich and Tate JJA). See also Filiz v The Queen [2014] VSCA 212, [21] (Maxwell P and Redlich JA) (‘Filiz’).
[47]Nolan [2017] VSCA 240, [31] (Beach, Ferguson and Coghlan JJA) and Laa [2020] VSCA 136, [52] (Maxwell P, Kaye and Niall JJA).
Further, the seriousness of family violence and the harm it inflicts is not to be simply equated with physical injury.[48] Family violence is now understood — and defined in law — to encompass behaviour that is physically, sexually, emotionally, psychologically and economically abusive or threatening or coercive, even if such behaviour does not constitute a criminal offence.[49] That kind of behaviour produces situations where people, disproportionately women, live in ‘real and justified fear of men who are, or were, their intimate partners.’[50] It produces a domestic atmosphere steeped in dread. It robs victims of capacity and agency and also engenders shame.
[48]Pasinis [2014] VSCA 97, [54] (Neave JA and Kyrou AJA).
[49]Family Violence Protection Act 2008, s 5.
[50]Filiz [2014] VSCA 212, [23] (Maxwell P and Redlich JA).
It follows that in assessing the totality of the circumstances that pertain to any offence committed in the context of family violence, the surrounding behaviours of the offender must be considered to assess the true gravity of the offending and for ‘the sentence to vindicate the dignity of [the] victim’.[51]
[51]Marrah [2014] VSCA 119, [16] (Redlich and Tate JJA).
In light of these principles, it is instructive to review the applicant’s criminal history alongside the offending for which the learned sentencing judge imposed the total effective sentence of ten years with a non-parole period of seven years.
In August 2010, when he was 20 years of age, the applicant was given an aggregate term of six months’ imprisonment, to be served by way of an intensive correction order (‘ICO’) in respect of two charges — intentionally destroy property and reckless conduct endangering life. Those offences were committed against the applicant’s then partner, KB.
Five months later, in January 2011, he was sentenced to an aggregate ten–month term of imprisonment, partially suspended, in respect of three charges — intentionally damage property, contravene FVIO and recklessly cause injury. Again the victim was KB. The respondent was also convicted of failing to comply with the ICO imposed in August 2010. The ICO was cancelled and the applicant was required to serve the unexpired portion of it.
Between September 2013 and August 2017 the applicant had seven appearances in Western Australia. They related to driving, drug, weapon and property offences, but not family violence. In March 2015 he was sentenced to an aggregate term of imprisonment of 16 months.
The offending the subject of charges 1 and 2 of Indictment K12399880B in which Ms Boyce was the victim occurred between 1 July 2016 and 1 August 2016. The offending relevant to charge 3 of that indictment in which Ms Read was the victim occurred in about December 2016.
On 20 February 2017 the applicant appeared in a Victorian Magistrates’ Court for contravention of a FVIO. The protected person in that FVIO was KB.
The conduct relating to charge 4 of Indictment K12399880B in which Ms Read was the victim occurred between April and May 2017.
On 20 September 2017 he again appeared in a Victorian Magistrates’ Court in respect of numerous driving charges, drug charges, a weapons charge and one charge each of recklessly cause injury, criminal damage and aggravated assault of yet another female partner, ED. The applicant was sentenced to a 24–month CCO which included various treatment and rehabilitation conditions. The court noted that correctional services ‘should consider a referral to the problem behaviours clinic or a Forensicare assessment as [the applicant] has very serious violent offences over time and against at least two people he has had an intimate relationship with including strangling and pouring chemical substances over’.
The conduct the subject of charges 6–9 of Indictment K12399880B in which Ms May was the victim occurred between November 2017 and June 2018.
On 13 July 2018 the applicant was remanded in custody in relation to driving and bail offences as well as charges of threat to inflict serious injury, threat to damage property, unlawful assault and use a carriage service to harass. The victim of the latter was Ms Read. The FVIO protecting her was granted on 18 July 2018. The conduct relevant to charge 5 of Indictment K12399880B occurred between that day and 1 December 2018. On 9 October 2018 the applicant was sentenced to an aggregate term of imprisonment of 88 days, being time served since his remand. He was also convicted of breaching the CCO imposed on 20 September 2017. The CCO was varied and extended for a further 24 months.
On 17 June 2019 the applicant was sentenced to an aggregate term of imprisonment of 120 days and a 12–month CCO with various treatment and rehabilitation conditions in respect of charges of persistent contravention of a FVIO, contravention of a FVIO with intent to cause harm or fear and unlawful assault as well as contravention of the CCO. The protected person in that FVIO was Ms Read.
Four days later, the assault of Ms Warner, the subject of Charge 1 of Indictment K12399880A, occurred. The offending relevant to the remaining charges of that indictment occurred between then and 12 September 2019.
The applicant was 20 years of age when first sentenced with respect to family violence. He was aged 32 at the time of his sentence for the present offending.
The sentencing judge was clearly correct to describe the applicant’s criminal history as ‘very significant and very disturbing’[52] and to characterise the likelihood of him reoffending as high. Despite multiple opportunities to address his offending behaviour, the applicant has shown disregard for the law and continued to offend against intimate partners even whilst serving sentences for such behaviour and being subject to FVIOs.
[52]Reasons, [7].
The applicant’s submission that the gravity of his offending is to be principally understood by separately measuring the relatively limited physical consequences of his assaults on a charge by charge basis must be rejected. It is incorrect to deconstruct the whole in an attempt to divorce each individual offence from its context. While the degree of physical injury sustained in each assault is relevant, the applicant’s offending must be understood in the context of his persistent perpetration of family violence. His behaviour towards each of the victims was degrading. He exhibited an alarming attitude of ownership and control. He created domestic environments in which there was an ongoing latent threat of physical violence if he was displeased. He was prepared to engage in physical and verbal violence in front of his children. He minimised the harm he caused to his partners. The learned sentencing judge’s characterisation of him as a ‘serial woman basher’ and ‘a classic example of a perpetrator’ was apt.
There was no psychiatric or psychological evidence tendered on the plea. That may mean no more than that no mental impairment or compromised psychological state was involved in the offending. It certainly did not aggravate the offending. More importantly, there was a dearth of material about the availability or prospect of effective interventions into the applicant’s offending behaviour. The judge referred to the applicant undergoing ‘proactive therapeutic treatment’ but rightly noted that there was no detail as to what this entailed. That left the blunt tool of sentencing and any steps taken by the applicant personally to moderate his behaviour. Neither course has been successful in the past and given the applicant’s history, there must be little confidence about their efficacy in the future.
It follows that his Honour was correct to emphasise general and specific deterrence along with protection of the community as being of primary significance in the sentencing exercise. The sentence imposed needed to carry heavy opprobrium of the applicant’s conduct, to both punish him adequately for it and deter him from such conduct in the future, as well as to signal to other family violence perpetrators that such behaviour will not be lightly regarded. Community protection is also a very important consideration, given the applicant’s apparent inability to learn — despite the intervention of the justice system on a number of occasions — that violent, controlling behaviour towards domestic partners will not be tolerated by the community.
The learned sentencing judge approached the sentencing task conscious of the need to arrive at a sentence that was proportionate to the overall criminal offending.[53] In neither the individual sentences nor the orders for cumulation is error discernible. The individual sentences reflected the true gravity of each separate offence. The orders for cumulation produced a total effective sentence well within the range available to give effect to all sentencing objectives and, further, was not crushing.
[53]Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70.
Conclusion
Leave to appeal must be refused.

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[2023] VSCA 226

19 September 2023