Bieljok v The Queen [2018] VSCA 99

1 On 28 September 2017, the applicant, Kuachjan Bieljok, now aged 22, was sentenced in the County Court at Melbourne, on two separate indictments, to a total effective sentence of two years and nine months' imprisonment with a non-parole period of 18 months. He now seeks leave to appeal against that sentence.

2 The first indictment related to a charge of theft of a motor vehicle, which took place on the night of 22 June 2013. The applicant was not charged with that offence until sometime after November 2015. On 1 July 2016, he was sentenced to 163 days' imprisonment, to be followed by a 12 month Community Correction Order ('CCO'), in respect of that matter. The custodial component of this sentence was effectively time served. The applicant was accordingly released from custody.

3 Within just a few weeks, on 30 July 2016, the applicant committed two offences of attempted armed robbery. These offences gave rise to the sentences that are, in part, the subject of this application. They also gave rise to a breach of the CCO, with which the applicant was subsequently charged. Plainly, he had barely commenced compliance with the terms of that order when he again offended.

4 On 28 September 2017, the applicant, having pleaded guilty, was sentenced as set out in the table below. The sentence for theft of the motor vehicle, was imposed pursuant to s 83AS of the Sentencing Act 1991, to which we shall later return in these reasons for judgment. It is sufficient for present purposes to note simply that that section provides that a judge who is dealing with a contravention of a CCO, can deal with the offender for the original offence with respect to which that order was made, 'as if' the Court had just found him guilty of that offence. In other words, the offender is to be re-sentenced entirely afresh.

Two attempted armed robberies, s 75A and s 321M Crimes Act 1958

Theft of motor vehicle, s 74(1) Crimes Act 1958

Contravene community corrections order, s 83AD Sentencing Act 1991

S6AAA

Other: contravention of CCO proved and order cancelled. Disposal order. S 464ZF Crimes Act 1958

6 It can be seen that the judge elected not to impose any sentence at all for the breach of the CCO as such, but rather simply treated that breach as triggering re-sentencing for the original offence of theft of a motor vehicle. [1]

7 The applicant seeks to rely on the following grounds:

Ground 1 - The sentence imposed on charge 1 on indictment F13870193B [theft of motor vehicle] and the order for cumulation of that sentence on the sentence on indictment G13485124 [two attempted armed robberies] are manifestly excessive.

Ground 2 - The sentence imposed on Indictment G13485124 [two attempted armed robberies] and the non-parole period are manifestly excessive.

Ground 3 - The learned sentencing judge erred in:

(a) Failing to take account of the period of time in custody between charge and remand for the attempted armed robberies; and/or

(b) failing to have regard to the period of time the Applicant had been in continuous custody prior to sentence:

a. at all; or

1. in relation to the sentencing orders other than the non-parole period.

Ground 4 - The learned sentencing judge erred in failing to apply the principle of totality.

8 On the night of 22 June 2013, the applicant, then aged 17,[2] stole a white Toyota Corolla sedan that was parked in a residential street in Springvale. Later that evening, police attempted to intercept the vehicle, and a chase ensued. The applicant drove through an intersection at high speed, causing the vehicle to crash. He ran from the scene, and police were unable to locate him that night. The applicant was injured in the collision and left his blood, and therefore his DNA, on the driver's side door.

9 Some three years later, on 30 July 2016, at approximately 12.25 am, the applicant, by this stage aged 21, attended a Coles Supermarket, at Dandenong. He was carrying what seems to have been a thin metal pole, about a metre in length. He was wearing a hood and a red bandanna which covered his face from just below his eyes.

10 The applicant entered the store, and approached a staff member at the cash register. He raised the pole in a threatening manner towards her, and demanded money. He then picked up a customer's motorcycle helmet that was sitting at the end of the counter, and threw it in the general direction of the staff member. He yelled 'give me the money, give me the money'. He swung the pole several times towards customers, and then walked off to another register. There, he confronted a customer in the line, and pushed him in the chest. He also confronted a security guard, whom he threatened with the pole.

11 The applicant was approached by several staff members. One of them, a Mr Friday Kerbehl, snatched the pole from his hands. The applicant then left the store, telling staff that he would be back. These events gave rise to the first of the two charges of attempted armed robbery.

12 About ten minutes later, at 12.38 am, the applicant returned to the store. This time, he was armed with a wooden chair leg. He still had on the hood and the red bandanna, which covered his face. He approached a register and raised the chair leg menacingly towards a staff member. He again demanded money. The staff member ran from her register, and the applicant pursued her. Another staff member, a Mr Chirag Patel, attempted to block the applicant with a shopping trolley. The applicant raised the chair leg and threatened to hit Mr Patel with it.

13 Mr Kerbehl then again intervened. He tackled the applicant to the ground, and took the chair leg from him. The applicant pleaded to be allowed to go free, promising not to return to the store. Mr Kerbehl permitted him to stand up and escorted him to the exit. Whilst at the door, the applicant turned and gestured towards Mr Kerbehl in a threatening manner. Mr Kerbehl then tackled him to the ground a second time. For whatever reason, he allowed the applicant to leave. These events gave rise to the second of the two attempted armed robbery charges.

14 The metal pole, the chair leg and the shirt worn by Mr Kerbehl with the applicant's blood on it were seized by police. DNA sampling of the blood on the shirt, and additional blood that was detected on the floor at the store, matched that of the applicant, and led to his ultimately being charged with these offences. Both attempted armed robberies were captured by the supermarket's CCTV system, and we have studied them carefully.

15 The applicant was arrested about two months later, on 25 September 2016, on unrelated matters. He was remanded for those matters, and eventually, in December 2016, charged on summons in relation to the attempted armed robberies.

16 It was submitted on behalf of the applicant on the plea that these attempted armed robberies should be regarded as being at the lowest end of the scale for offences of that character. Indeed, they were said to have been 'hopeless attempts', that were not taken all that seriously at the time by staff members.

17 It was next submitted that although there were two separate charges of attempted armed robbery, they were so closely linked as to warrant being treated as 'part of the same transaction'. Implicitly at least, it was submitted that there should either be total concurrency between them, or that a single aggregate sentence should be passed in respect of both of them.

18 It was noted that the applicant had been aged only 17 when he committed the theft of the motor vehicle in 2013 for which he now fell to be re-sentenced. He was still only just 21 when he committed the attempted armed robberies.

19 The applicant's family were originally from Sudan. He had been born in a refugee camp in Kenya and, along with his family, had suffered terrible deprivation in his early life.

20 After the applicant and his family arrived in Australia in 2002, they lived in various suburbs in the south-east of Melbourne. Despite being part of a loving family environment, he faced a number of serious challenges. Not surprisingly, he had not received any formal education while in Kenya, and could not initially speak any English.

21 In 2007, when the applicant was aged 12, he was diagnosed with a mild intellectual disability. His education was accordingly limited, and he was streamed into what was described as the 'applied learning area'. He attempted unsuccessfully to complete his year 12 studies through the Victorian Certificate of Applied Learning program. Then, in July 2015, on referral from a disability service, he commenced a Certificate in General Education for Adults. By reason of his having been remanded in custody, he was unable to complete that program.

22 In 2010, the applicant's stepfather left the family and returned to Sudan. This created a difficult situation for the applicant. Since having been remanded into custody for these matters, his stepfather had returned to Australia.

23 In around 2013, the applicant's older brother was diagnosed with schizophrenia. The applicant looked up to his brother, and found that situation particularly distressing.

24 It was clear that the applicant had a serious drinking problem. It was submitted that his offending was 'critically linked' to his problems with alcohol. He also used cannabis. He had commenced drinking from the age of 16, within his own social environment. He would binge drink, and explained that he did so in order to gain a measure of self-confidence.

25 The applicant had made various attempts to overcome his alcohol addiction. These included self-referral to counselling. At one stage, in about October 2014, he managed to stay sober for a short period, after he completed a residential withdrawal program. Unfortunately, within a month or so, he began drinking again and committed further offences.

26 It was submitted that the applicant's family were very concerned for his welfare. It was said that he was motivated to address his drinking problem as a result of his stepfather's return to Australia, and the opportunity this gave them to rekindle their relationship. The applicant's mother and brother were supportive, and visited him regularly in custody.

27 Although the applicant presented with a lengthy history of alcohol related offending, it was submitted that this should not be taken as an aggravating factor. That was because his alcoholism stemmed from his deprived childhood, and his intellectual disability.

28 It was submitted that, in sentencing the applicant, the judge should give weight to his permanent, though mild, intellectual disability. That condition was supported by multiple reports from the Department of Human Services. The fact that the disability was classified as mild, did not mean that it was not a significant factor in explaining his continual offending. It was submitted that principles 1, 2 and 3 of Verdins[3] applied, with principles 2 and 3 being the most directly relevant and applicable.

29 It was properly conceded, on the applicant's behalf, that given his lengthy criminal history, specific deterrence was an important sentencing consideration. It was noted, however, that he had been in custody almost continuously since 2015, and that there was a real risk, therefore, given his age and circumstances, that he would become institutionalised.

30 It was acknowledged that the applicant had been treated with some leniency in the past. He had been before the Children's Court on a number of occasions and had managed to escape conviction, despite the offences having been proved.

31 It was submitted that the principles set out in R v Mills[4] regarding the sentencing of youthful offenders were of particular importance in this case. In accordance with those principles, it was desirable that a supportive disposition be arrived at. The maximum custodial sentence that could be combined with a CCO was 12 months' imprisonment. It was therefore submitted that a sentence of that order in combination with a CCO, to be freshly imposed, would be appropriate. This was so, having regard to the period of 163 days that the applicant had previously been in custody on the charge of theft of a motor vehicle.

32 It was noted that, at the time of the plea, the applicant was on remand for other outstanding matters. These included a charge of armed robbery that was said to have been committed in September 2016. The judge was told that that matter was to be contested, on the basis of identity. It was conceded that if the applicant were to be convicted of that particular offence, he would certainly be required to serve a substantial term of imprisonment, beyond the 12 months that had been put forward on his behalf. However, it was acknowledged that as at the date of the plea, this was all speculative.

33 With regard to the principle of totality, it was submitted that considerable weight should be given to the applicant's youth. Since the theft of the motor vehicle in 2013, the applicant had been sentenced to several terms of youth detention, in addition to the 163 days on remand that he had served with regard to that offence.

34 Ultimately, it was submitted that the judge should consider imposing a combination sentence involving a short term of imprisonment in conjunction with a CCO of relatively short duration. Alternatively, her Honour was invited to impose a fresh period of imprisonment in respect of the motor vehicle theft that would be wholly concurrent with any term of imprisonment that might be fixed in respect of the two attempted armed robberies.

35 In response, the Crown properly acknowledged that the applicant had a 'mild' disability, which was complicated by alcoholism. Therefore, Verdins called for a 'sensible' moderation of sentencing principles, but, it was said, only within reason.

36 The Crown also submitted, on the plea, that the only appropriate sentence in this case was a term of imprisonment, with a non-parole period. The availability of parole, it was said, would allow for the various mitigating factors raised on behalf of the applicant to be given appropriate weight.

37 The Crown conceded that these attempted armed robberies were properly to be regarded as being at the 'lower end' of the scale for offences of that gravity. It was further acknowledged that the applicant had demonstrated remorse, and shown an awareness of the impact of his offending upon others. However, the conduct giving rise to these two charges represented a significant escalation in the gravity of the applicant's offending. These were two separate attempts on a 'soft target'. Moreover, it was an aggravating factor that these offences were committed within weeks of the imposition of a CCO, and in clear breach of the terms of that order.

38 It was submitted that the applicant's extensive criminal history called for specific deterrence to be a paramount consideration. It was also necessary that any sentence be of sufficient severity to meet the requirements of general deterrence. To a certain extent, community protection also had to be considered.

39 The Crown conceded, that the principle of totality was relevant. That said, it submitted that any sentence that involved a term of less than 12 months' imprisonment, in combination with a CCO, could not possibly be adequate.

40 In relation to the breach of the CCO itself, and the re-sentencing exercise that would have to be undertaken for the theft of the motor vehicle, it was submitted that a term of imprisonment, greater than the 163 days previously imposed, was warranted. In part, this was due to the breach having occurred so soon after the CCO had been imposed, in circumstances where the applicant had been warned in the clearest of terms of the consequences if he failed to comply with its terms.

41 In sentencing the applicant, the judge noted his lengthy criminal history. Her Honour observed that he had appeared before the Children's Court many times, usually charged with theft and related offences. He had been treated leniently in the past.

42 The applicant's offending had escalated in 2015, when he was convicted of a series of offences involving violence. These included recklessly causing injury, attempted armed robbery, and making threats to kill. He was first given a custodial sentence in that year, being 12 months in a youth facility.

43 Her Honour also noted that the applicant had been sentenced to a further eight months' imprisonment in August 2015, and again to two months' imprisonment in November 2015. That latter sentence was imposed in respect of a bomb hoax.

44 The judge said that the applicant's extensive criminal record, and the fact that he had already been afforded lenient treatment in the past, meant that a combination sentence of the kind for which his counsel contended was simply not appropriate.

45 In dealing with the objective gravity of the offending, the judge accepted that the two attempted armed robberies were at the 'lower end of the scale' for offending of that kind. That had to be balanced, however, against the gravity of the charge of attempted armed robbery itself, which attracted a 20 year maximum term of imprisonment.

46 The judge cited general deterrence as an important sentencing consideration. Her Honour observed that supermarkets often stay open late at night, and are sometimes regarded as 'soft targets'. Their employees ought to be protected from violence of this kind.

47 Nonetheless, the judge said that she would moderate the application of the principle of general deterrence, in accordance with Verdins, given the applicant's intellectual disability.

48 Her Honour also took into account the applicant's youth, and his disadvantaged background. She made it clear that, in imposing an aggregate sentence of 30 months' imprisonment for the two attempted armed robberies, she had further reduced the sentence that might otherwise have been imposed, by reason of the applicant's guilty pleas, and remorse.

49 In support of this ground, which complained of the sentence of six months' imposed upon the applicant for theft of the motor vehicle, it was submitted that that sentence was manifestly excessive. So too, was the cumulation of three months of that sentence upon the aggregate sentence of 30 months imposed for the attempted armed robberies.

50 The argument proceeded as follows. It was said that the orders made had failed to give the applicant credit for the 163 days that he had previously served when first sentenced on the charge of theft of the motor vehicle. This meant that his sentence for that offence should properly be regarded as one of 11 months and two weeks' imprisonment (being six months plus 163 days). A sentence of that order was said to be manifestly excessive on a charge of this nature for an offence committed by a 17 year old boy.

51 It was further submitted that the judge had erred by cumulating three months of that six month sentence upon the 30 month aggregate sentence imposed on the two attempted armed robberies. It was acknowledged that, should that submission in that form be accepted, the best the applicant could hope for would be a reduction in his total effective sentence from two years and nine months to two years and six months. Counsel who appeared for the applicant before this Court understood the difficulty posed by that latter submission. It would seem to involve 'tinkering' in response to a claim that a sentence was manifestly excessive.

52 In support of ground 1, it was submitted that the delay between the commission of the motor vehicle theft in 2013 and the applicant's having first been sentenced for that offence in July 2016,[5] was itself substantial, and that this was a mitigating factor. There had been even more delay between that initial sentencing process, and the resentencing that took place in September 2017. The effect of delay was said to be of particular importance, given that throughout that entire four year period, the applicant had served a further five periods of detention, as well as the 163 days originally served for the theft of the motor vehicle.

53 It was further submitted in support of ground 1 that the applicant had, by reason of that delay, lost the opportunity to serve this particular sentence concurrently with other sentences that had been imposed in the interim.

54 In response to this ground, the Crown reminded this Court of its many pronouncements to the effect that manifest excess is a stringent ground, difficult to make good. It submitted that the sentence of six months' imprisonment for theft of the vehicle, and the order for three months cumulation on the other indictment, were plainly within range. The fact that the applicant had avoided the police, driven away at speed, and damaged the vehicle in a collision, was itself an aggravating factor.

55 It was further submitted that the judge had extended considerable leniency in the initial sentencing process when she imprisoned the applicant for 163 days with a CCO for the theft of the motor vehicle. The applicant was warned when that sentence was imposed, that if he did not comply with the CCO he would be likely to be re-sentenced for that theft, and also likely to spend further time in custody. He ignored that warning. Not only did he fail to comply with the conditions of the order, but he committed further serious offences within a month or so of its having been made.

56 The Crown submitted that some measure of cumulation between the re-sentence on the theft charge, and the fresh sentence on the two charges of attempted armed robbery, was necessary in order to give proper effect to the principles of general and specific deterrence.[6] Given the applicant's criminal history, specific deterrence was of particular importance. There was nothing to suggest that the judge had failed to pay due regard to the mitigating factors that were present.

57 With regard to the delay between the commission of the theft and the re-sentencing that took place four years later, the Crown submitted that this was not attributable to the investigation, or the prosecution of the offending. Rather, it was due to the applicant having avoided detection for several years. This was said to render the delay less significant, as a mitigating factor, than it might otherwise have been. In addition, far from the applicant having used that period to rehabilitate himself, it seems that he continued to offend throughout.

58 In our view, ground 1 cannot be sustained. If the offence of theft of the motor vehicle warranted a term of 163 days' imprisonment, combined with a 12 month CCO, when the applicant was first sentenced on that charge, it is difficult to see how, once the CCO was cancelled, a term of six months' imprisonment (of which only three months was cumulated), can be said to be wholly outside the range. It might be thought that when the applicant was first sentenced for the theft in July 2016, he had greater prospects of rehabilitation than he did when he came to be re-sentenced in conjunction with the attempted armed robberies.

59 Indeed, if one accepted the submission put on the applicant's behalf on ground 1, the result might be thought paradoxical. The CCO would be cancelled, and the applicant would be left with no additional penalty, on top of the aggregate sentence for the two attempted armed robberies. In other words, his breach of the CCO, resulting in the need to re-sentence him would lead to his being better off than if he had not breached the CCO. Such a result would surely be regarded as irrational.

60 There is one other point to note with respect to ground 1. We were told in the course of oral submissions that judges in the County Court seemed to be approaching the re-sentencing exercise mandated under s 83AS(1)(c) of the Sentencing Act 1991, by cumulating any new sentence under that section upon other sentences that might have to be imposed. That is precisely what her Honour did in this case. The approach has the effect of leaving the issue of pre-sentence detention somewhat uncertain and, in our view, may not be the best course to adopt.

61 Recently in Luu v The Queen,[7] this Court (Ferguson CJ, Osborn and Beach JJA) considered the very same issue with respect to s 83AS(1)(c). There, it was held:

.. the better approach is for the judge to set aside the whole of the sentence imposed (that is, by cancelling the CCO and setting aside the term of imprisonment earlier imposed). The Court would then sentence afresh 'as if [the Court] had just found [the offender guilty]' of his or her earlier offending. Pre-sentence detention would then be declared, and would include the time already served by the offender under the original sentence of imprisonment.[8]

62 We agree with the course recommended in Luu. A judge engaged in re-sentencing under that section should do precisely what the section itself stipulates. The judge should cancel the CCO, if it is still in force, and deal with the offender who has breached it for the offence with respect to which the order was originally made 'as if it had just found him or her guilty of' that offence.

63 Thus, the judge in this case should have calculated afresh what would be an appropriate term of imprisonment for the offence of theft of the motor vehicle. Having arrived at that figure, she would declare pre-sentence detention which would include any time already served in respect of the initial sentence. This would not amount to double counting of pre-sentence detention because the new sentence would be just that, an entirely new sentence, requiring a fresh declaration of pre-sentence detention in accordance with s 18 of the Sentencing Act 1991.

64 The judge plainly considered that 163 days' imprisonment fell well short of what would have been appropriate for this offence, given that she had initially combined a 12 month CCO with that term of imprisonment. The fact that the new sentence might be thought to be something of the order of 11 months and two weeks' imprisonment does not of itself, viewed globally, suggest that this sentence was wholly outside the range. It does not call for appellate intervention.

65 As previously indicated, ground 2 contends that the aggregate sentence of 30 months' imprisonment imposed for the two attempted armed robberies was manifestly excessive. So too, it is said, was the non-parole period of 18 months fixed on the total effective sentence of two years and nine months.

66 In support of that ground, the applicant relied primarily on the matters personal to him that he had also invoked in support of ground 1. In addition, he pointed to the fact that this offending fell at the lower end of gravity for criminality of this type, and repeated that the two offences were effectively part and parcel of the one transaction.

67 In response, the Crown submitted that the offence of attempted armed robbery is always a serious matter, as reflected in the maximum penalty of 20 years' imprisonment. The Crown did concede, however, that the two instances of attempted armed robbery in this case were at the lower end of the scale for offences of this type. They nonetheless had to be denounced, and appropriate weight given to both specific and general deterrence.

68 The submission that a sentence of 30 months' imprisonment for these two attempted armed robberies was manifestly excessive, as with all such submissions, admits of little argument. It is sufficient for present purposes to say that we regard that sentence as moderate and clearly within range, having regard to the applicant's criminal history, the escalation in his offending, and the fact that these offences were committed within weeks of his having been afforded considerable leniency. The breach of the CCO was, of course, a significant aggravating factor.

70 Ground 3, it will be recalled, contends that the judge erred by failing to take into account both the time that the applicant had been in continuous custody prior to being sentenced in September 2017, and the time that he had spent in custody between being charged and remanded for the attempted armed robberies.

71 The applicant was remanded on 25 September 2016, on unrelated matters. These were yet to be finalised at the time that he filed his written submissions in this Court.

72 The applicant was charged on summons with the attempted armed robberies on 19 December 2016. He was remanded on these charges at his filing hearing on 30 December 2016. The sentencing judge declared the period of 272 days between 30 December 2016 and the date of sentencing on 28 September 2017 as pre-sentence detention. It was submitted that her Honour instead ought to have also taken into account the time spent in custody from the date he was charged on unrelated matters (yet to be finalised), between 25 September 2016, and 19 December 2016 as Renzella time.[9]

73 It was submitted that the judge fell into error by failing to take into account, in a general way, any imprisonment other than that declared as pre-sentence detention. It should be noted that, her Honour did not expressly state whether she had or had not taken into account any other period of time.

74 In response to ground 3, the Crown submitted that though the judge did not specifically refer to having taken into account the time spent in custody for unrelated offending, it was clear that her Honour had done so. This was evident in the judge having referred specifically to the applicant having spent time in custody, when explaining her reasoning for fixing a relatively short non-parole period of 18 months on a 33 month total effective sentence.

75 Once again, we are not persuaded that the judge failed to take into account, in a general way, the fact that the applicant had been in custody on unrelated offending.

77 Ground 4 concerns an alleged error on the part of the judge in failing to apply the principle of totality, or at least to do so explicitly. According to the applicant, it cannot be inferred from her Honour's reference to his having served multiple periods of detention and imprisonment, that she must implicitly have taken totality into account. That is because those various periods of detention and imprisonment were relevant to other sentencing considerations. They did not necessarily reflect an appreciation on her part of how important they were on the question of totality.

78 In response, the Crown submitted that the judge clearly had regard to the fact that the applicant had spent multiple periods of time in custody. Again, it was noted that her Honour had specifically referred to that matter as one basis for imposing a relatively short non-parole period.

79 The Crown also submitted that the judge, who is experienced in this area, could not have failed to have regard to the principle of totality, despite not having used that term explicitly in her sentencing remarks. To have done so in a more formal and rigid way, it was submitted, may have amounted to a 'structural approach' to sentencing.[10] All that was required was a 'broad brush' approach to totality,[11] whereby the end result can be seen to reflect the need to avoid an unjust, or perhaps even crushing, sentence.

80 A sentence imposed in respect of multiple offence will not be held to have failed to take into account the principle of totality merely because the judge, in imposing that sentence, did not use that specific term.

81 In the present case, the less than usual ratio between the head sentence and the non-parole period shows that totality was taken into account, at least in respect of that part of the sentencing process.

82 The aggregate sentence of 30 months' imprisonment was, as we have said, moderate, and cannot be viewed as violating totality. The suggestion that a mere three months cumulation upon that sentence by reason of the re-sentencing for theft of the motor vehicle breached totality, is devoid of merit.

84 It follows that the application for leave to appeal against sentence must be dismissed.

[1] Neither the sentencing remarks nor the record of orders reveal any sentence imposed for the contravention of the CCO. It does not appear that the six months imposed on resentencing for the theft of motor vehicle involved an aggregate sentence encompassing the breach of the CCO as well (cf R v McCallum [2007] VSCA 286 [26]-[27]).

[2] He was, in fact, only two weeks or so shy of 18 at that stage.

[3] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[4] R v Mills [1998] 4 VR 235.

[5] The delay was said to have resulted from the applicant having first been identified as the offender through a DNA match obtained in November 2015.

[6] Of course, if the applicant was sentenced for the theft under the Children Youth and Families Act 2005, then general deterrence would not be a relevant sentencing consideration. See CNK v The Queen [2011] VSCA 228; (2011) 32 VR 641.

[7] Luu v The Queen [2018] VSCA 92 ('Luu').

[9] See R v Renzella [1997] 2 VR 88.

[10] See Jomaa v The Queen [2014] VSCA 103 [53].