In the circumstances of your prior criminal offending, and having regard to the crime for which I must sentence you, I do not accept that your prospects of rehabilitation are good, or even moderate. Your previous convictions illustrate quite well your propensity to commit acts of violence when drunk. Your ongoing failure to abide by court dispositions, and, it seems, to take advantage of supervision and any other treatment or assistance offered under a succession of CCOs, is concerning. Your overtly violent and aggressive conduct towards [Mr Francis] on the occasion you attacked him was a return, as a man who was then 26 years of age and a father of three young children, to the same type of alcohol-fuelled violence directed towards innocent people in public places to which you showed yourself to be prone as a younger person.

It should have been obvious to you years ago that you should not drink to excess. And yet, you persisted in doing so.

Your prospects of rehabilitation in future depend largely on your being willing to cease drinking altogether, or at least to substantially reduce your intake.

As things currently stand, it is not possible to view your rehabilitative prospects in a favourable light.[26]

1. The judge considered that the need for specific deterrence was very strong in circumstances where the applicant had 'entirely failed to heed the lessons in [his] past' and 'failed to take advantage of a number of seemingly quite lenient dispositions' previously imposed upon him.[27] As a result, the sentence had to send 'a very clear message' to the applicant.[28]
2. The judge gave the following reasons in respect of the non-parole period:

[Defence counsel] urged me to impose what she described as 'a comparatively lower non-parole period with a longer than average [parole] period to facilitate appropriate supervision in the community'.

At the heart of that submission, it seems, was [defence counsel's] claim that [the applicant] need[s] ... intense psychological treatment ... there was no evidence before me to indicate [he] need[s] any such treatment.

Whilst I note the Court of Appeal have been at pains to point out that there is no 'usual' ratio of non-parole period to head sentence, I see no reason why there would be a need in [this] case for the length of the non-parole period to be reduced in order to increase the period of time for which [the applicant] would be in the community under the supervision provided by parole.

The non-parole period I will specify will be the lowest term of imprisonment which I consider justice requires in [this] case, in light of all of the circumstances and the head sentence at which I arrive. It must be remembered that both the head sentence and the non-parole period must be appropriate in all of the circumstances, paying due regard to the purposes for which sentence is to be passed ...[29]

1. The judge had regard to current sentencing practices, indicating that he had considered relevant statistics published by the Sentencing Advisory Council as well as a number of decisions placed before him by the parties that were concerned with sentences for manslaughter carried out by the infliction of a punch or punches.[30] The judge emphasised the limits of such materials and said 'even as between cases that may seem comparable, differences invariably abound in the factual circumstances and the circumstances of the offenders'.[31]
2. Next, the judge referred to a submission by defence counsel that he should not have regard to 'the fact that crimes of the nature committed by [the applicant] have become prevalent in our community'.[32] He noted that this phenomenon had been commented on and relied on, including in Vincec[33] and Lee.[34] The judge rejected counsel's submission, stating:

I do not agree. For many years, it has been apparent that precisely the type of violent crime ... carried out in this case has been a growing concern in our community and has become an all too common occurrence. This is obvious to the community, and has been frequently commented upon by judges of this Court and the Court of Appeal. Indeed, as long ago as 2014, the legislature, by means of the Crimes Amendment (Coward's Punch Manslaughter and Other Matters) Act 2014, introduced a specific provision into the Crimes Act 1958[35] which dictates that a single punch delivered to the head or neck is to be taken to be a dangerous act for the purposes of the law relating to manslaughter by unlawful and dangerous act. This was a clear indication of the concern felt by the legislature about the prevalence of offending of the type committed by [the applicant].

I take into account ... , amongst all of the other relevant matters, that the crime ... carried out is of a type which is worryingly prevalent in our society.[36]

1. Finally, the judge concluded by stating that the offending called for a substantial term of imprisonment with a significant non-parole term, and indicated that the important considerations underlying the sentence were just punishment, denunciation, general deterrence, specific deterrence and protection of the community.[37] The judge said that 'this sort of unprovoked, drunken attack upon an innocent person in a public place is the sort of crime which would cause great dismay and concern in the community'.[38] The sentence needed to 'bring it clearly home to any person who might be minded to carry out unprovoked crimes of violence targeting innocent victims in public, that such conduct will be met with very strong punishment'.[39]

Ground 1 - Whether non-parole period manifestly excessive

Applicant's submissions

1. The applicant submitted that the non-parole period fixed by the judge bore an unusual proportion relative to the head sentence (80 per cent) so as to attract appellate scrutiny.[40] Senior counsel submitted that such scrutiny requires consideration of whether it was open to the judge to fix the non-parole period, having regard to the principle that it was to last for the minimum term that justice requires.[41] It was submitted that the task of fixing a non-parole period was 'no sinecure', and that it required discrete consideration of factors bearing upon consideration of when the prisoner should be eligible for mitigation of confinement and rehabilitation under conditional supervision.[42]
2. The applicant submitted that the judge failed to fix a non-parole period in accordance with those principles. While he addressed the non-parole period, he went no further than explaining why he had declined to fix the 'comparatively lower non-parole period' sought by defence counsel.[43] The judge's statement that the period would be 'the lowest term of imprisonment which I consider justice requires in your case' did not explain how he determined its length. The judge drew no distinction between the purposes for setting the head sentence and the purposes for setting the non-parole period. That observation supported an overarching submission advanced by the applicant that, in fixing the non-parole period, the judge gave too much weight to considerations that bore more forcefully on determination of the head sentence, most particularly to protection of the community and 'proportionality with the offence'.[44]
3. The applicant attacked the judge's finding that his prospects for rehabilitation were not 'good, or even moderate'.[45] Senior counsel outlined the applicant's prior convictions and observed that he had not offended for nearly three years, during which time, as the judge found, the applicant had weaned himself from drug use and become hardworking.[46] An alcohol use disorder he had suffered from was in remission and he complied with his bail conditions after the offending. The applicant pointed to evidence that he had abstained from drinking from 15 August 2022 until his remand on 21 December 2022. Counsel also relied on Associate Professor Carroll's report, which recorded the applicant as having said that there is 'definitely something wrong with me when I drink', and that he thinks he does not want to touch alcohol again.
4. The applicant submitted that the judge failed to deal with the steps he had taken to address his behaviour, and made no allowance for the offending to act as a turning point in his life. The judge had found that his prospects for rehabilitation depended 'largely on [his] being willing to cease drinking altogether, or at least to substantially reduce [his] intake'.[47] It was said that, despite this finding, the judge failed to address the applicant's willingness to do just that. Further, the applicant argued that the finding did not point to 'negative prospects of rehabilitation', nor did it mean that his prospects were bleak.[48]
5. In written submissions, the applicant submitted that current sentencing practices supported the proposition that the non-parole period was manifestly excessive. A review of cases involving a single charge of manslaughter since 2020 revealed that non-parole periods imposed ranged, as a proportion of the head sentence, between 60 and 76 per cent of the head sentence (leaving aside one case involving a mandatory sentence under 'one punch' laws).[49] The cases relied on at the plea hearing demonstrated a sentencing practice imposing non-parole periods of about 62 to 66 per cent of the head sentence.
6. In oral submissions, senior counsel for the applicant accepted that the issue was whether the non-parole period considered as a number of years, rather than its proportional relationship to the head sentence, was manifestly excessive.

1. The respondent submitted that there is no 'usual' non-parole period.[50] While rehabilitation is important, countervailing factors such as punishment, deterrence, denunciation and community safety must also be reflected in the fixing of a non-parole period.[51] It was submitted that, if a period of parole is inappropriately long, the sentence risks falling short of imposing adequate punishment.[52]
2. The respondent contended that 'one punch' manslaughter cases are particularly bad examples of a grave offence. Parliament's view of the seriousness of manslaughter involving a single unexpected punch or strike towards the head or neck of the victim was said to be reflected in s 9C of the Sentencing Act which, where it applies, fixes a minimum non-parole period of 10 years in such cases.
3. The respondent made further submissions about the seriousness of the offending in the present case, the applicant's moral culpability and the impact of the offending. It was said that there were few mitigating factors upon which the applicant could rely. There were sound reasons to conclude that his prospects of rehabilitation could not be viewed favourably, and those prospects were conditional upon him not drinking to excess. His prior convictions for very similar alcohol-fuelled public violence, some involving strikes to the head of the victim, were said to be of great concern. Specific deterrence and protection of the community were very important sentencing considerations in this case.
4. The respondent submitted that the fact that the non-parole period was a relatively high proportion of the head sentence reflected the judge's bleak view of the applicant's prospects of rehabilitation. The judge was aware of the applicant's past efforts to refrain from excessive alcohol consumption, and his asserted willingness to do so in future, but remained pessimistic about his prospects.
5. Finally, the respondent submitted that the cases relied on by the applicant to evince current sentencing practices provided very limited guidance. Setting a non-parole period was something unique to each case. Manslaughter, in particular, could be committed in infinitely diverse ways and covered a broad range of culpability. In any event, all but one of the cases relied on involved offending when the maximum sentence for manslaughter was 20, not 25 years imprisonment. The sentencing judge had clearly articulated his reasoning for imposing a significant non-parole period in which the applicant's conditional prospects of rehabilitation 'very much [took] a back seat to more prominent sentencing objectives'.[53]

1. An argument alleging manifest excess in a sentence impugns the exercise of the sentencing discretion, without necessarily ascribing the asserted miscarriage in the discretion to any specific error, as contemplated in House v The King.[54] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[55]
2. It is not necessary, in the circumstances, to decide whether the judge erred in his approach to fixing the head sentence and the non-parole period, respectively. Submissions were made as to the different objectives of each aspect of the sentencing exercise, and the different weight that various factors might have in either context.[56] But no specific error of this kind was attributed to the judge. The question is instead whether the ultimate result revealed that the discretion had miscarried.
3. In the present case, we are concerned only with the discretion to fix a non-parole period, in circumstances where the head sentence is 10 years' imprisonment and no challenge is made to that sentence. The scope of the discretion that is under challenge is correspondingly limited.
4. In writing, the applicant submitted that the fact that the proportion in this case (80 per cent) was higher than the proportion in cases said to be comparable, supported the proposition that the non-parole period imposed on the applicant was manifestly excessive.
5. It is true that it has been said that a non-parole period that is 75 per cent of the head sentence, 'may invite appellate scrutiny'.[57] But that scrutiny is directed at the question of manifest excess, which is not answered by a comparison of such percentages.
6. A rather similar argument was advanced in Stefani v The Queen,[58] a case involving convictions for kidnapping and assault. The appellant in that case challenged a non-parole period of 8 years, imposed in respect of a head sentence of 10 years, on the basis of manifest excess. In particular, it was said that a disparity existed between that non-parole period and those fixed in relation to co-offenders of the applicant. In dismissing the appeal, this Court said:[59]

The non-parole period is the minimum term which justice requires to be served.[60] The question the appellant raised on the appeal is whether, in all of the circumstances of his case, it was reasonably open to the sentencing judge to fix a non-parole period of 8 years, being 80 per cent of the total effective sentence. He urged a negative answer to that question on the basis that the non-parole period was manifestly excessive...

As has often been observed, there is no 'usual' non-parole period for an offence or category of offence.[61] Nonetheless, this Court has said that regard should be had to the range of non-parole periods commonly or 'usually' imposed, as a means of promoting consistency in sentencing.[62] As a matter of empirical observation, in the majority of cases the non-parole period is between 60 per cent and 75 per cent of the head sentence.[63] However, the authorities make clear that this range 'ceases to be of much guidance where the head sentence is in the order of 10 years' imprisonment or more'.[64]

1. The Court in Stefani doubted the utility of a mechanical comparison of the proportional length of non-parole periods.[65] Such a comparison was said to be 'incomplete', because an unduly high proportional figure could suggest that the non-parole period was too long, or it could suggest that the head sentence was too short.[66]
2. Reference to other cases or statistics suggesting that a given case involves an unusually high non-parole period, as a proportion of the head sentence, reveals little, if anything, about whether that non-parole period is manifestly excessive. This is especially so in the case of manslaughter, an offence which embraces a wide range of possible offending. The answer to the question whether a non-parole period is manifestly excessive depends on an assessment of the whole of the circumstances of the case, in order to decide whether something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion, such that it miscarried.
3. In addressing the question whether a non-parole period is manifestly excessive, regard is to be had to the purposes of fixing a non-parole period and the relationship between the period fixed and the head sentence. In Bugmy, Mason CJ and McHugh J explained:

A prisoner's prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger to the community of relaxing the requirement of imprisonment.[67]

In fixing the proportion of the head sentence to be given to the minimum sentence there are sentencing principles in operation which, together with the individual circumstances of the case, will determine the proportion which the non-parole period must bear to the head sentence. First, like the head sentence, the non-parole period must also reflect the objective gravity of the offence so that the non-parole period should constitute the minimum period of imprisonment that justice requires the prisoner to serve. Secondly, punishment is mitigated in favour of the prisoner's rehabilitation. The benefit of the minimum term is for the purpose of the offender's rehabilitation. Thirdly, in fixing the minimum term, the interests of the community, which imprisonment is designed to serve, must be taken into account.[68]

1. Bearing in mind that the head sentence of 10 years' imprisonment is not challenged, we are not persuaded that the imposition of a non-parole period of eight years was outside the range available to the sentencing judge in this case. Unprovoked public alcohol-fuelled violence is a scourge from which the community requires protection. Such conduct is bound to attract a substantial term of imprisonment, including a substantial non-parole period. That also serves the interests of general deterrence and denunciation. Here, specific deterrence also loomed large. On the other hand, as the authorities show, the applicant's prospects of rehabilitation were a significant factor to be taken into account in fixing the non-parole period. The applicant submits that the period of eight years which the judge fixed reveals error in his balancing of the relevant considerations
2. The applicant has an unenviable track record of engaging in such conduct, and milder sentencing dispositions failed to modify his behaviour sufficiently to prevent the death of Mr Francis, a complete stranger going about his life as he was entitled to do. The applicant's prospects of rehabilitation, conditional as they are in light of their dependence on him abstaining from alcohol, have to be judged in light of that history. The non-parole period that was imposed reflects the judge's pessimistic assessment of those prospects. On that basis, while we would characterise the non-parole period as stern, we do not consider that it was manifestly excessive.
3. We also do not accept that the judge failed to explain why he was imposing a 'higher than usual' non-parole period. This Court has stated that the absence of an explanation for a non-parole period that exceeds 75 per cent of the head sentence 'invites appellate scrutiny'.[69] That observation has been endorsed in cases where the head sentence was 10 years' imprisonment or more.[70] As this Court observed in Cummins, which involved a total effective sentence of 13 years and 6 months' imprisonment, 'although a ratio of more than 75 per cent between the head sentence and the non-parole period will not necessarily connote error, the justification for such a ratio should normally be provided'.[71]
4. In light of these observations, it would have been desirable for the sentencing judge to refer to the fact that the non-parole period he imposed was a high proportion of the head sentence and to briefly state the reasons for this. It is, however, clear from the sentencing remarks that the judge considered that eight years was the lowest term of imprisonment which justice required, taking account of all relevant sentencing considerations. He stated that the applicant's offending called for a significant non-parole period. He considered the applicant's prospects of rehabilitation were not good or even moderate, and depended on him addressing his alcohol problem. In all the circumstances, rehabilitation had to 'take a back seat to more prominent sentencing objectives'.[72] Without specifically addressing the ratio with the head sentence, the judge's reasons for imposing a relatively high non-parole period emerge clearly enough.
5. Leave to appeal on the first proposed ground should be refused.

Ground 2 - Whether judge erred in treating prevalence as an aggravating factor

1. The second proposed ground of appeal seeks to challenge the way in which the judge addressed the prevalence of offending of the kind seen in this case. The applicant submitted that the judge was entitled to make observations on the matter and to take account of prevalence as a factor informing general deterrence, denunciation and objective gravity.[73] It was submitted, however, that the judge had gone further, by treating prevalence as a distinct aggravating factor. The effect was said to be that the prevalence of this kind of offending was 'double counted' in the sentencing calculus.

1. The respondent submitted that the judge had not treated prevalence as an aggravating factor. It was accepted that, strictly speaking, prevalence did not aggravate offending, but it informed its objective gravity and was also relevant to general deterrence.

1. It is well established that the prevalence of a particular offence is a factor relevant to the weight to be given to general deterrence, and that it informs the objective gravity of the offence.[74] Consistently with that position, the judge addressed the 'prevalence of the crime of manslaughter committed by one or more punches' under a heading to that effect.[75] Counsel for the applicant at the plea hearing had submitted that a 'more robust' evidentiary basis was required in order to rely on any such prevalence.[76] The judge rejected that submission and said that he took into account 'amongst all of the other relevant matters' that the crime committed by the applicant is 'worryingly prevalent in our society'.[77]
2. Senior counsel for the applicant submitted that the judge's reference to 'all of the other relevant matters' revealed that he took account of prevalence as a distinct matter, in addition to matters including objective gravity, denunciation and general deterrence. This meant that prevalence had been 'double counted'.
3. That submission cannot be accepted. The judge was addressing a submission about the evidentiary basis needed in order to establish prevalence. When he came to address globally the 'important reasons' for imposing sentence, which he identified as 'just punishment, denunciation, general deterrence, specific deterrence, and protection of the community', he made a reference to the offending being of a kind 'which would cause great dismay and concern in the community'.[78] It is clear, reading this part of the sentencing remarks as a whole, that the judge was treating prevalence as a factor in the context of the identified sentencing considerations, and not as a separate aggravating matter.
4. Leave to appeal on this proposed ground should be refused.

1. The proposed application for leave to appeal against sentence would therefore be dismissed. For that reason, it would be futile to grant an extension of time, and that extension must be refused.

[1] DPP v Armstrong [2023] VSC 374 ('Sentencing Remarks').

[2] The applicant suggested that during this exchange Mr Francis spoke to him in a provocative way that sought a fight. That claim was rejected by the judge: Sentencing Remarks [11].

[11] This offence has since been repealed: see Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021, s 5, repealing Summary Offences Act 1966, s 13.

[15] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

[16] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269.

[17] Sentencing Remarks [97], [107].

[18] Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

[19] Sentencing Remarks [108]-[113].

[30] The judge cited DPP v McDonough [2023] VSC 352; DPP v Tiumali [2023] VSC 233; R v Lucas [2021] VSC 81; R v Rivett [2020] VSC 563; R v Nolan [2020] VSC 416; Esmaili v The Queen [2020] VSCA 63; Lee v The Queen [2018] VSCA 63 ('Lee'); Vincec v The Queen [2018] VSCA 18 ('Vincec').

[31] Sentencing Remarks [151]-[154]. At [155] the judge referred to observations made by Weinberg JA in Vincec considering a sentence of 8 years' imprisonment with a non-parole period of five years (when the maximum penalty was 20 years' imprisonment) for offending bearing some similarities to the present case. The judge went on to use Vincec as an example of 'the limitation on the utility of seemingly comparable cases', pointing to ways in which the cases differed: at [157].

[33] [2018] VSCA 18 [66] (Weinberg JA).

[34] [2018] VSCA 63 [75] (Kyrou JA).

[36] Sentencing Remarks [158]-[163].

[40] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]) ('Romero'). It was also said that the ratio applicable to the judge's s 6AAA statement, which is 77 per cent, demonstrates a lack of internal consistency and invites scrutiny. Nothing turns on this slight mathematical disparity.

[41] Wallace v The Queen [2012] VSCA 114; (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA) ('Wallace').

[42] R v Mulvale (Supreme Court of Victoria, Winneke P, 20 February 1996) 11, referring to R v Currey [1975] VicRp 63; [1975] VR 647.

[44] Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531-3 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ) ('Bugmy').

[48] Cf DPP v Wain [2024] VSC 533 [69] (Incerti J).

[49] Sentencing Act 1991, s 9C.

[50] Wallace [2012] VSCA 114; (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA); Kumova v The Queen [2012] VSCA 212; (2012) 37 VR 538, 545 [26] (Redlich and Osborn JJA) ('Kumova'); McLean v The Queen [2018] VSCA 209 [18] (Whelan and Kyrou JJA) ('McLean').

[51] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 627-9 (Barwick CJ, Menzies, Stephen and Mason JJ); Mush v The Queen [2019] VSCA 307 [101] (Maxwell P and Kaye JA).

[52] Romero [2011] VSCA 45; (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]).

[54] (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370-1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[55] Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[56] Bugmy [1990] HCA 18; (1990) 169 CLR 525, 531-3 (Mason CJ and McHugh J), 537 (Dawson, Toohey and Gaudron JJ); R v Mulvale (Supreme Court of Victoria, Winneke P, 20 February 1996) 11.

[57] Romero [2011] VSCA 45; (2011) 32 VR 486, 493 [25] (Redlich JA, Buchanan JA agreeing at [28], Mandie JA agreeing at [29]). McLean [2018] VSCA 209 [20] (Whelan and Kyrou JJA).

[58] [2024] VSCA 29 ('Stefani').

[59] Ibid [42]-[43] (McLeish, Walker and Taylor JJA).

[60] Wallace [2012] VSCA 114; (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).

[61] McLean [2018] VSCA 209 [18] (Whelan and Kyrou JJA). See also Wallace [2012] VSCA 114; (2012) 35 VR 520, 521 [2] (Maxwell ACJ and Buchanan JA).

[62] McLean [2018] VSCA 209 [18] (Whelan and Kyrou JJA); Kumova [2012] VSCA 212; (2012) 37 VR 538, 541 [11] (Nettle JA), 547-8 [33]-[35] (Redlich and Osborn JJA).

[63] Kumova [2012] VSCA 212; (2012) 37 VR 538, 542 [12] (Nettle JA), 545 [27] (Redlich and Osborn JJA).

[64] Ibid 544 [19] (Nettle JA, Redlich and Osborn JJA agreeing at 545 [25]). See also Romero [2011] VSCA 45; (2011) 32 VR 486, 493-4 [25]-[27] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]).

[65] Stefani [2024] VSCA 29 [45] (McLeish, Walker and Taylor JJA).

[67] [1990] HCA 18; (1990) 169 CLR 525, 532. See also 537 (Dawson, Toohey and Gaudron JJ) (citation omitted).

[68] [2012] VSCA 212; (2012) 37 VR 538, 545 [27].

[69] Gray v The Queen [2010] VSCA 312 [20]-[21] (Nettle J, Tate JA agreeing at [26]). See also Stowers v The King [2022] VSCA 203 [42] (Kyrou, McLeish and Kennedy JJA); Kumova [2012] VSCA 212; (2012) 37 VR 538, 542 [14] (Nettle JA), 546-7 [32] (Redlich and Osborn JJA); Cummins (a pseudonym) v The Queen [2013] VSCA 352; (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA) ('Cummins').

[70] Kumova [2012] VSCA 212; (2012) 37 VR 538, 541 [14] (Nettle JA), 545 [32] (Redlich and Osborn JJA); Cummins [2013] VSCA 352; (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA).

[71] Cummins [2013] VSCA 352; (2013) 40 VR 319, 333 [80] (Redlich, Weinberg and Priest JJA).

[73] Haddara v The Queen [2016] VSCA 168; (2016) 260 A Crim R 306, 322 [62] (Redlich, Priest and Beach JJA); [2016] VSCA 168; Downie v The Queen [1998] 2 VR 517, 522 (Callaway JA, Phillips CJ agreeing at 517, Batt JA agreeing at 524) ('Downie').

[76] See Downie [1998] 2 VR 517, 521-2 (Callaway JA, Phillips CJ agreeing at 517, Batt JA agreeing at 524).