• Conduct endangering persons (contrary to s 23 of the Crimes Act 1958)

• Conduct endangering persons (contrary to s 23 of the Crimes Act 1958)

• Trespass (contrary to s 9(1)(e) of the Summary Offences Act 1966)

• Trespass (contrary to s 9(1)(e) of the Summary Offences Act 1966)

• Total Effective Sentence 6 years
• Non Parole-Period 4 years

1. Forfeiture order (hammer and imitation firearm)

1. The applicant seeks leave to appeal against sentence on two grounds, namely:

1. The learned sentencing judge erred by imposing sentence on summary charge 1 (trespass) in circumstances that punished the applicant for another more serious offence with which he had not been charged. 2. The sentence imposed was manifestly excessive in respect of:

1. summary charge 1 (trespass) in that it was not reasonably open to impose the maximum penalty; and/or, 2. the resultant head sentence of fifty (50) months imprisonment.

1. In November 2022, the applicant, who was then 25 years of age, commenced an intimate relationship with the victim of the offending, Melissa Koniaras. At the time of the offending, the applicant lived in premises in Corio, and Ms Koniaras lived in premises in Highton with her three children who were respectively 17 years, 12 years and seven years of age. At the time, Ms Koniaras conducted a business which provided in-home support to people with a disability. The applicant, who then worked as a disability support worker, was one of her employees.
2. The offences to which the applicant pleaded guilty were committed on 22 December and 23 December 2022. The assaults, the subject of charges 1 and 4 respectively, were each rolled-up charges, being a charge for each of those days and which encompassed various instances of assault by the applicant on Ms Koniaras on those days.
3. In the early hours of Thursday 22 December 2022, Ms Koniaras visited her friends, Matthew and Ally Wakefield, at their home in Belmont. While she was there, the applicant contacted her on her mobile telephone. The applicant was invited to attend the home of Mr and Mrs Wakefield. When he arrived there at about 6:20 am, he telephoned Ms Koniaras who then walked to her Hyundai vehicle. The applicant began to argue with her and accused her of cheating on him. Ms Koniaras then walked away from her Hyundai motor vehicle.
4. The circumstances, that were the subject of charge 1 (common law assault), then commenced. After Ms Koniaras had walked about 50 metres, the applicant caught up with her and grabbed her by the back of the neck with one hand. He also grabbed her by the hair with his other hand, and dragged her back to the Hyundai vehicle. The applicant grabbed Ms Koniaras by the arm and pushed her into the passenger seat of the vehicle. He then shut the door and walked towards the driver's door. While he was doing so, Ms Koniaras removed the keys to the ignition and alighted from the vehicle. She got into the driver's side of the vehicle, placed the keys into the ignition and started the engine.
5. The applicant then walked towards Ms Koniaras, grabbed her by the hair, and pulled her out of the vehicle. He grabbed her by the left arm and yelled at her that she had to get back into the vehicle. After she had done so, the applicant drove off at a fast speed. While he was doing so, Ms Koniaras telephoned the emergency number 000 on her mobile telephone. When he realised what Ms Koniaras was doing, the applicant grabbed her telephone from her. A short time later, a member of the police, who was monitoring emergency calls, rang Ms Koniaras's telephone. The applicant handed the telephone to Ms Koniaras and told her that she must not say anything. Ms Koniaras spoke to the police member and told him where she was. The police member could hear the applicant screaming at Ms Koniaras in the background. The applicant then grabbed the telephone and ended the call. He told Ms Koniaras that if she did not report what had happened to the police, he would leave her alone for good. Ms Koniaras agreed and remained in the car.
6. A short time later, police members attended at the Hyundai on Highmont Drive and spoke to Ms Koniaras. Ms Koniaras told police that she had been assaulted, but she gave police a false telephone number and a false identity for the assailant. She also declined to make a formal statement.
7. After the police left the area, Ms Koniaras drove the Hyundai back to her own home in Highton. She parked the vehicle in her driveway as she was unable to open the garage door. She then entered her home. A short time later, she walked to the garage to find out why the door had not opened. As she did so, she saw the applicant's vehicle, a silver Ford Falcon, parked in the garage. After Ms Koniaras entered the garage, the door connecting the garage to the house closed behind her. Ms Koniaras then saw the applicant, who told her to sit down. He grabbed her by the arms and made her sit on a seat within the garage. The applicant's entry into the garage, and his conduct that followed in remaining in it, were the subject of the first summary trespass charge.
8. The applicant then spoke to Ms Koniaras, telling her that he loved her and that she must not leave him. Ms Koniaras responded that she would never stop trying to leave him. The applicant was in possession of a hammer. Each time Ms Koniaras told him she did not want to be with him, he intimidated her by repeatedly smashing the hammer onto the concrete floor of the garage. On a number of occasions when Ms Koniaras tried to get out of the seat, the applicant grabbed her and pushed her into the side of the vehicle. On each occasion, he slammed her face into the Ford Falcon and used both of his hands to push down on either side of her face.
9. At one point while they were in the garage, the applicant pushed Ms Koniaras into his vehicle. Ms Koniaras fought back and grabbed him by the shirt. The applicant responded by grabbing her round the neck with both arms and squeezing hard. Ms Koniaras found it difficult to breathe. She attempted to pull the applicant's hands away from her neck but was unable to do so. He continued to choke her for about a minute, before she fell to the ground out of breath. That conduct by the applicant was the subject of charge 2 (reckless conduct endangering a person).
10. Ms Koniaras then changed her approach to being friendly, and in response, the applicant calmed down and stopped assaulting her.
11. After a period of time, the applicant asked Ms Koniaras to go for a drive with him so they could discuss their relationship. Ms Koniaras told him that she had left her purse at Matthew Wakefield's home. The applicant reluctantly agreed that she could go there. He told her they would drive in two vehicles and he would follow her. Instead of driving directly to Mr Wakefield's home, Ms Koniaras drove to a car park in Belmont Ten Pin Bowling Centre. She stopped the vehicle. When she tried to restart it, she snapped the key in the ignition.
12. The applicant then got out of his Ford vehicle and walked to the driver's side of the Hyundai. He said to Ms Koniaras, 'I've had this gun the whole time and I could have shot you'. He directed Ms Koniaras's attention to what appeared to be a handgun, which was visible through the fabric of his shirt. He said, 'I didn't shoot you because I love you'. Ms Koniaras then got into the applicant's Ford vehicle and they drove back to her home in Highton. After the applicant had parked the vehicle in the garage and closed the door, he removed what appeared to be a black handgun from the waistband of his trousers and held it towards Ms Koniaras, saying, 'I should shoot you'. He slammed the handgun onto the table and left it there. That conduct by the applicant was the subject of charge 3 (prohibited person in possession of an imitation firearm).
13. While they were still in the garage, the applicant took possession of Ms Koniaras's telephone and threatened to smash it with a hammer if she did not unlock it to allow him to look at it. Ms Koniaras and the applicant then talked together for a long period of time, during which she repeatedly asked him to leave.
14. At about 6 am on the next morning, Friday 23 December 2022, the applicant told Ms Koniaras that Katrina Younie would be attending soon. He instructed Ms Koniaras to get into his vehicle and she complied with that direction. As she did so, she observed that he was holding a hammer. The applicant's conduct in remaining in the garage on 23 December 2022 was the subject of the second summary charge of trespass.
15. After Ms Koniaras got into the passenger seat of the applicant's vehicle he drove the vehicle along the Princes Highway. He then pulled into a truck spot, parked his vehicle, and began to yell at Ms Koniaras, who responded by saying that she did not want to be with him.
16. The applicant became more agitated and grabbed her by the back of the head before slamming her face into the dashboard. That conduct was part of the second rolled-up common law assault charge (charge 4). The applicant also punched the interior of his vehicle and ripped off the rearview mirror. Ms Koniaras exited the vehicle, but the applicant also got out of it, ran to her and dragged her back into the vehicle. He then drove out of the truck stop. As he did so, he continued to yell at Ms Koniaras, and slapped her face with the back of his fingers.
17. The applicant drove the vehicle to a rural area a short distance from Winchelsea. When he parked on the side of the road, Ms Koniaras asked if she could get out of the vehicle so she could 'have some air'. She grabbed her handbag and ran towards the nearby tree‑lined reserve in order to escape. When she had almost reached the trees in the reserve, the applicant drove his vehicle at her, and Ms Koniaras fell over while trying to avoid being struck by it. The conduct of the applicant in driving his vehicle in that way was the subject of charge 5 (reckless conduct endangering a person).
18. The applicant got out of his vehicle and told Ms Koniaras to get into it. However, she was unable to do so as her knees had given way. The applicant approached Ms Koniaras who was still lying on her back. He placed one leg on either side of her torso, grabbed her around the neck with both hands, and squeezed her neck with sufficient force to stop her breathing. Ms Koniaras attempted to stop him doing so and was able to slightly relieve the pressure so that she could get some breath. That conduct by the applicant was the subject of charge 6 (reckless conduct endangering a person).
19. The applicant ceased strangling Ms Koniaras and fetched her handbag from under the wheel of the vehicle. He assisted Ms Koniaras to get back into the front passenger seat of the vehicle. The applicant was acting in an agitated manner. He pulled side mirrors from the vehicle and got into the driver's seat. He then used his fist to smash the windscreen.
20. After he had been driving for some time, Ms Koniaras convinced the applicant to stop the vehicle so they could each have a cigarette. They each alighted from the vehicle, and she began to walk away from it. The applicant drove after her, stopped the vehicle, and made her get back into it. The applicant then drove the vehicle to a BP petrol station in Winchelsea. Ms Koniaras asked the attendant at the petrol station for a cup of tea and while she was doing so, she mouthed the word 'police'. As a result, the attendant called 000 and reported what had taken place. The applicant and Ms Koniaras then left the petrol station. Ms Koniaras regained possession of her telephone and called 000. She also sent a series of text messages to Mr Wakefield.
21. After some time, the applicant noticed an unmarked police vehicle, and drove at extremely high speeds to escape detection. Ms Koniaras asked him to let her out of the car. He parked the vehicle by train tracks and fled. The police attended and assisted Ms Koniaras. Subsequently, police members observed the applicant in Winchelsea and arrested him there.
22. When interviewed by police, the applicant made a number of false denials about his conduct. He said that the injuries to Ms Koniaras were caused by a medical event or a seizure at an earlier time. He also claimed to have little or no memory in respect of a number of the allegations which were put to him concerning his conduct.
23. The applicant was remanded in custody until he was subsequently granted bail on 18 May 2023. In August 2023, a contested committal hearing was held and the applicant was committed for trial. After a series of directions hearings and case assessment hearings in the County Court, the matter ultimately resolved on 26 June 2024.

1. The applicant was born in June 1997. At the time of the offending he was 25 years of age. He was raised in most difficult circumstances. His parents were drug users and drug dealers, and they both had a criminal record. They had each spent time in custody, and his father had been sentenced to lengthy periods of imprisonment.
2. The applicant's parents' relationship was marked by anger and violence towards each other, and violence towards their children, including the applicant. Each of the applicant's three siblings have been in significant trouble with police and have been sentenced to terms of imprisonment. The applicant himself has one previous conviction. In September 2021, he came before the Geelong Magistrates' Court on charges of making a threat to kill and intentionally damaging property. The applicant, without conviction, was fined an aggregate of $1,000 and the case was otherwise adjourned on the condition that the applicant undertook a men's behaviour program.
3. After the applicant's parents separated, he was placed under State care. During the rest of his childhood he was in and out of foster care and he was often separated from his siblings. At the age of seven or eight years, he was sexually abused by older cousins.
4. The applicant's education was disrupted, principally due to the conduct of his parents. He needed significant assistance with his education, and at the age of 16 years was assessed as having an intellectual disability. As a consequence, he has been in receipt of a disability pension for a number of years. The applicant has had employment in a number of different labouring positions, working as a bricklayer, floor sander, working in an abattoir, and undertaking furniture removal work. While he was on bail, he undertook some gardening and landscaping work for a friend. The applicant has an ex-partner with whom he has a daughter. He also has a son from an earlier casual relationship. The applicant's daughter is cared for by her mother and his son by the applicant's step-mother.
5. The applicant has a long history of drug abuse. He commenced using cannabis at the very young age of eight years, and subsequently he commenced using cocaine, methamphetamine and Xanax, which he continued to use until his arrest in December 2022.
6. After the applicant was released on bail on 18 May 2023, he commenced a CISP program. The CISP report of August 2023 noted that the applicant had attended ten case management appointments and had presented as being engaged. The applicant also connected with the Salvation Army, through which he completed a 12‑month drug and alcohol program. The report of the Salvation Army AOD and Mental Health Services Barwon dated 29 August 2024 stated that the applicant was then engaged in his second period of support, and that he had displayed commitment to positive behavioural change with a main focus on ceasing illicit substance use and becoming a positive influence and support in his children's lives. It appears that the applicant remained drug-free while he was on bail.
7. The applicant was examined by Mr Jeffrey Cummins, a clinical and forensic psychologist, on 1 August 2024. Mr Cummins concluded that at the time of the offending the applicant had an Alcohol Use Disorder, a Cocaine Use Disorder, a Methamphetamine Use Disorder, and a Xanax Use Disorder, each of which were severe in type. Mr Cummins noted that the applicant had had a highly dysfunctional upbringing, and that he had been diagnosed with an intellectual disability. Mr Cummins concluded that the applicant suffered a complex post-traumatic stress disorder which most probably would have played some role in his offending in the present case. In addition, Mr Cummins considered that the applicant's unresolved issues in relation to parental attachment figures would probably have played a role in his offending. Mr Cummins assessed the applicant's risk for committing a further offence of violence as low-moderate and trending towards low. The primary risk factors for the applicant were a return to using illicit substances and abusing alcohol and/or Xanax. A further risk factor would arise if the applicant's mental health deteriorated.
8. Mr Cummins considered that a further term of imprisonment would be more onerous for the applicant in view of the extent of the rehabilitation he had undertaken after his release on bail. Mr Cummins also considered that the applicant's mental health would most probably, if not inevitably, deteriorate if he was returned to custody.

1. In his reasons for sentence,[1] the judge noted that the applicant's offences had had a significant adverse impact on his victim. Ms Koniaras had suffered post-traumatic stress disorder, and was unable to continue in her work, as a result of the trauma associated with the offending.[2]
2. In assessing the gravity of the offending, the judge noted that the applicant had subjected Ms Koniaras, whom he claimed to love, to unrelenting violence which was sustained and protracted.[3] The fact that the violence occurred in the victim's home, where her children were also located, aggravated the offending.[4] The judge also noted that the applicant's resort to the use of frightening weapons to increase the level of intimidation and fear over his victim, was a very concerning aspect of his offending. His conduct in choking the victim until she collapsed, and attempting to drive his vehicle at her while she was defenceless on the ground, elevated the gravity of the offences of conduct endangering a person.[5] The judge also noted that all the offences were committed in the context of family violence, in which a powerful and stronger man hurt a defenceless and easily subdued woman who had simply decided to terminate a relationship, as she was entitled to do. His Honour noted that the appellate courts of this State have emphasised the gravity of the increasing scourge of family violence in the community, so that the sentencing purposes of denunciation, deterrence and protection of the community must be given prominence.[6]
3. On the other hand, the judge noted that the applicant did have positive prospects of rehabilitation and that appropriate weight needed to be given to the facilitation of his rehabilitation.[7]
4. The judge, having outlined the applicant's violent and dysfunctional upbringing and family circumstances, considered that the applicant's deprived upbringing was relevant in the sense that he had not been given an opportunity to develop resources to cope with his temperament and to enable him to consider the consequences of his conduct. Accordingly, his Honour considered that the general principles articulated in Bugmy v The Queen[8] should apply to reduce the applicant's moral culpability.[9] In addition, his Honour considered that the specific aspects of the principles discussed in Bugmy and in Director of Public Prosecutions v Herrmann[10] should also apply to reduce the applicant's moral culpability, so that there should be some moderation of the sentencing purposes of denunciation and deterrence.[11] Nevertheless, his Honour considered that the applicant's moral culpability remained 'significant'.[12]
5. His Honour also took into account the applicant's guilty plea, which in the circumstances he regarded as an early plea.[13] His Honour noted that there were solid signs of the applicant reforming, having benefitted from the CISP programs and connected with the Salvation Army drug and alcohol program.[14]
6. On the plea, counsel for the applicant had submitted that the judge should impose a combined sentence comprising time already served (147 days) and a community corrections order. As a consequence, the judge had the applicant assessed for suitability for a community corrections order and the applicant had been found to be a suitable candidate for such a disposition. However, his Honour concluded that, in view of the gravity of the offences committed by the applicant, and the priority which must be accorded to the sentencing purposes of denunciation, deterrence and protection of the community, such a disposition would not be appropriate.[15] His Honour considered that a sentence of imprisonment alone was necessary in order to vindicate those purposes.[16]

1. In support of ground 1, counsel for the applicant noted that the judge imposed the maximum sentence of six months' imprisonment for the offence that was the subject of summary charge 1 (trespass). In doing so, the judge found that during the trespass, the victim had been subjected to 'hours of intimidation and violence' in which the applicant had used a hammer to smash the concrete floor of the garage in order to intimidate his victim.[17] It was submitted that, in taking those matters in account, the judge punished the applicant for the offence of stalking, under s 21A of the Crimes Act 1958. Thus, it was submitted, the judge in sentencing the applicant on that charge failed to comply with the principle that the circumstances of an uncharged offence may not be taken into account as circumstances of aggravation of the offence charged. In support of that proposition counsel relied on the principle stated by the High Court in R v De Simoni,[18] and by this Court in Director of Public Prosecutions v McMaster[19] and in Farah v The Queen.[20] Counsel further noted that in his reasons for sentence the judge did not explicitly acknowledge that the applicant was not to be sentenced for uncharged acts.
2. In response, counsel for the respondent submitted that while the judge had been astute to avoid imposing punishment for uncharged acts, his Honour was entitled to consider the circumstances of each charge and take those matters into account as context. Counsel noted that the judge did in fact emphasise that the applicant was not to be punished for any offence that was not the subject of a charge.[21] Counsel submitted that there was no indication in the judge's sentencing remarks that his Honour took into account facts which would otherwise give rise to the offence of stalking.
3. Counsel noted that the applicant had unlawfully entered, and remained in, Ms Koniaras's premises in circumstances in which, given his previous conduct, he knew that Ms Koniaras had contacted the police, and that he was not welcome. The applicant placed his vehicle in the garage and closed the garage door before Ms Koniaras returned home and he remained there awaiting her return. She was not expecting him. After she returned home, the applicant remained in the premises for several hours, although he was clearly unwelcome.
4. Counsel submitted that there were a number of serious factors pertaining to the applicant's offending that was the subject of the charge of trespass. In particular, the applicant had entered the premises, and the garage, knowing that Ms Koniaras would be afraid of and intimidated by him. The trespass that was the subject of summary charge 13 (trespass) was committed over a lengthy period of time. During that time, the applicant, by his presence and conduct, deliberately intimidated Ms Koniaras in the home in which she was entitled to feel safe. Further, at some stage during the trespass, the applicant was aware that there were children nearby. Taking those matters into account, it was submitted that the conduct of the applicant constituted a serious example of the summary offence of trespass.

1. It is well-established that a judge, in imposing sentence, is entitled to consider all the conduct of the accused person that includes conduct that would aggravate the offence, but the judge may not take into account any circumstances of aggravation which would have warranted the conviction of the accused person for a more serious offence.
2. In De Simoni, Gibbs CJ expressed that principle in the following terms:

[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. ... The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[22]

1. In considering the application of that principle, it is important to bear in mind that reasons for sentence, as in the present case, are ordinarily delivered in the second person, and are addressed in terms which are designed to ensure that the accused person has some understanding of the reasons why the particular sentence is imposed.
2. In the present case, counsel for the applicant relied, in support of ground 1, principally on the first section of the reasons delivered by the judge, in which his Honour outlined, in narrative terms, the applicant's conduct during the two days on which the offences, that were the subject of the charges, were committed by him. In doing so, his Honour specifically noted that he would not punish the applicant for any offence that he had not been charged with, such as threats while holding the gun and pointing the gun at Ms Koniaras.[23] After the judge had outlined, in such narrative terms, the circumstances of the offending, his Honour then took care to state that the applicant was only to be sentenced for the charges to which he had pleaded guilty. His Honour stated:

To be clear; the charges you pleaded guilty to were two rolled-up charges of common law assault, being a charge for each of the days of the instances of your assaults on each of those days, as I have outlined.

You pleaded guilty to three charges of reckless conduct endangering serious injury, being the two instances of choking the victim and the one of driving the car at her, and one charge of being a prohibited person in possession of the imitation firearm. There were two summary charges of trespass for each instance of you being in her garage.[24]

1. As noted in the written case in support of the application for leave to appeal, it was submitted on behalf of the applicant that the judge had, in effect, outlined, and imposed sentence on the applicant for conduct that would constitute the criminal charge of stalking under s 21A of the Crimes Act 1958. Pursuant to that section, it is an offence for a person to engage in a course of conduct which includes (inter alia) entering the victim's place of residence '... with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person'.
2. Certainly, aspects of the conduct by the applicant, that were described by the judge in the narrative section of his reasons, may have been sufficient to warrant a charge of stalking pursuant to that provision. However, at no stage during the sentencing reasons did his Honour, in sentencing the applicant for the summary offence of trespass, take into account, or purport to impose sentence for, conduct that specifically was committed with the requisite intent for the offence of stalking, namely, that of causing mental harm to the victim or arousing apprehension or fear for her own safety. Rather, the observations by the judge, as to the fearful conduct engaged in by the applicant, were directly and properly relevant to a number of the charges on which the applicant was to be sentenced, including, in particular, the circumstances in which the applicant committed the offences of conduct endangering a person, that were the subject of charges 2, 5 and 6, and the two assault charges.
3. For those reasons, the judge did not, by imposing sentence on summary charge 1, (trespass), punish the applicant for another more serious offence with which he had not been charged. Accordingly, ground 1 of the application for leave to appeal must fail.

1. The submissions on behalf of the applicant, in support of ground 2, were directed to two propositions.
2. First, it was submitted that the maximum sentence imposed on summary charge 1 (trespass) was manifestly excessive. In particular, it was submitted that, by imposing the maximum sentence for that offence, the judge had failed to give appropriate weight to the number of mitigating factors relied on by the applicant and which were accepted by his Honour.
3. Secondly, it was submitted that the total effective sentence of 4 years and 2 months' imprisonment was manifestly excessive, being a sentence that was crushing for a relatively young person who would be serving what was, in effect, his first sentence of imprisonment. Counsel submitted that in imposing that sentence, the judge failed to give appropriate weight to the number of mitigating factors relied on by the applicant. In particular, in view of the fact that the applicant had been released on bail for almost one year before sentencing, and that during that time he had not reoffended and had taken positive steps in his rehabilitation, both the head sentence and non-parole period were manifestly excessive.
4. In response, counsel for the respondent submitted that, based on the matters discussed in respect of ground 1, the trespass offence was a serious example of that offence. It was committed by the applicant in the context of earlier and ongoing violence by him, and with an awareness that the trespass would, at the least, unsettle and frighten Ms Koniaras, the occupier of the property. Further, the trespass was committed over an extended period of several hours, during which time the applicant asserted his presence and dominance over the applicant's space in an extension of his repeated controlling behaviour. In addition, as an aggravating circumstance, the victim's young children were present nearby in the house, where Ms Koniaras herself was entitled to feel safe.
5. Counsel for the respondent accepted that, although the offending by the applicant was a very serious example of trespass, nevertheless, the imposition of the maximum sentence for that offence did invite review, particularly given that the applicant had pleaded guilty to the offence, and that there were other matters in mitigation of sentence. Nevertheless, it was submitted that if the judge erred in imposing the maximum sentence for that charge, the total effective sentence should not be reduced.
6. In that respect, counsel noted that notwithstanding the applicant's mitigating circumstances, the offending by the applicant in the present case involved violence arising from jealousy in a relationship. The applicant's mitigating factors needed to be balanced against the other important sentencing purposes, including the seriousness of the crimes, the impact on the victim, the need to express the community's intolerance for such offending and the need to send a powerful message to others by way of general deterrence.
7. Counsel for the respondent further submitted that the individual offences committed by the applicant should not be viewed in isolation from each other. Over the course of two days, the applicant had subjected his victim to unrelenting violence in a frightening ordeal, with the terrifying episode only coming to an end when police were able to intervene. The offences were committed in the context of a powerful and stronger man hurting a defenceless woman, who had simply decided to end their relationship. In that context, the judge was obliged to take into account the scourge of family violence, and the consequent need for denunciation, general deterrence and protection of the community. For those reasons, it was submitted, the head sentence, and the non-parole period, were not manifestly excessive.

1. As noted, ground 2 is directed, first, to the sentence of 6 months' imprisonment imposed on the applicant on summary charge 13 (trespass), and, secondly, to the total effective sentence of 4 years and 2 months' imprisonment.
2. In order to sustain the proposed ground of appeal, that the sentence on summary charge 13, and the total effective sentence, are manifestly excessive, the applicant must demonstrate that those sentences were wholly outside the range of sentencing options available to the judge. Such a test is, by its nature, a stringent requirement. It is not sufficient for the applicant to demonstrate that the sentence in question was longer than this Court might have imposed in the circumstances of the case. Rather, the applicant must establish that the particular sentence was so excessive as to bespeak error by the judge in the exercise of his sentencing discretion.[25]
3. In considering whether the sentence imposed on summary charge 13 was manifestly excessive, the starting point is that the conduct of the applicant, in engaging in the act of trespass, was particularly serious. The offence was committed by the applicant over a prolonged period of time, in circumstances in which his attitude towards Ms Koniaras was one of dominance and hostility. He well knew, or ought to have been aware, that as a result of his conduct, Ms Koniaras was intimidated and confronted. As counsel for the respondent has noted, at the time of the offending, Ms Koniaras's young children were present nearby in the house, in which Ms Koniaras herself was entitled to feel safe. Those factors, in combination, certainly warranted the imposition of a substantial sentence for the offence of trespass.
4. On the other hand, ordinarily the maximum sentence that is prescribed for an offence should only be imposed for the most serious and egregious instance of the offence in question.[26] In the present case, while the conduct of the applicant was most certainly egregious, it is questionable whether it could be fairly characterised as falling within that category. Further, the applicant pleaded guilty to the offence, which the judge accepted was an early plea. The applicant only had limited previous convictions. The judge accepted that there were a number of mitigating circumstances available to the applicant, principally deriving from his dysfunctional, disadvantaged and traumatic upbringing, and his intellectual disability. Further, the applicant had made positive steps towards his rehabilitation during the period in which he had been released on bail.
5. Taking those matters into consideration, we are persuaded that the sentence imposed on summary offence 13 (trespass) was manifestly excessive. Accordingly, the sentence imposed on that charge should be set aside, and in lieu the applicant should be resentenced to a term of 4 months' imprisonment on summary charge 13. It should be directed that one month of that charge be cumulated on the sentence imposed on the base charge, namely charge 6 on the indictment.
6. The second aspect of ground 2 of the application for leave to appeal concerns whether the total effective sentence imposed on the applicant was manifestly excessive.
7. In considering that issue, the starting point is that it is not contended, nor could it be, that any of the individual sentences imposed on the six charges on the indictment were manifestly excessive. Nor is it contended that the individual periods of cumulation directed by the judge in respect of charges 1 to 5 were excessive. Indeed, it may be fairly accepted that the individual sentences, and the periods of cumulation, were quite moderate in the circumstances of the case.
8. In total, the conduct engaged in by the applicant, that constituted the offending in each of the six indictable offences, and the two related summary offences, was particularly serious. Over the course of two days, the applicant repeatedly engaged in violent, intimidatory and confronting conduct towards his partner, in circumstances in which he was plainly physically superior to her and stronger than her. The applicant's conduct, in twice choking Ms Koniaras to the point at which she was unable to breathe, and driving his vehicle at her in circumstances that endangered her, (charges 2, 5 and 6) was particularly serious. Each of the two assault charges involved repeated violent conduct by the applicant to his partner over that period of time. As we have discussed, the two related summary offences of trespass involved the applicant attending at, and remaining present in, Ms Koniaras's premises, when he was plainly uninvited and unwelcome, in circumstances in which he manifested hostility towards her, and in which his conduct towards her was fundamentally confrontational and frightening.
9. The type of conduct engaged in by the applicant, involving violence by one partner towards another in a domestic relationship, is, regrettably, all too common. In cases such as the present, it was necessary for the judge to give significant weight to the sentencing principles of denunciation and general deterrence. In particular, it was necessary that the sentences imposed on the applicant, including the total effective sentence, be sufficient to properly express the community's condemnation of the violent and unacceptable conduct by the applicant towards his partner. Further, it was necessary that the sentences imposed on the applicant, including the total effective sentence, be of sufficient moment to constitute an unequivocal message to the community that persons, who choose to engage in such conduct towards their partner, will, on apprehension, lose their right to remain at liberty in the community for a substantial period of time. It is only in that way that the courts can play a proper role in deterring the kind of conduct that the applicant chose to engage in, and to thereby protect innocent persons, in particular women, from violence by their partners.[27]
10. Further, it was necessary in the present case that the total effective sentence be sufficient to specifically deter the applicant from engaging in any further such episodes of offending, by instilling in him a proper understanding that if he chooses to indulge in such conduct again, he will lose his right to remain at liberty in society for a substantial period of time.
11. In the course of submissions, counsel for the applicant placed particular reliance on the relatively low non-parole period of 2 years' imprisonment. He submitted that that non‑parole period should be 'matched' by a total effective sentence that was less than double its length.
12. That submission may be readily disposed of. Ordinarily, in sentencing an offender, mitigating factors, particularly those that point in the direction of rehabilitation, are accorded more weight, and are given greater prominence, in determining the length of a non-parole period. In the present case, as we have discussed, the applicant, when released on bail, had made positive steps towards his rehabilitation. In sentencing the applicant, the judge, correctly, acknowledged the need to facilitate the applicant's rehabilitation, in view of his Honour's assessment that the applicant did have positive prospects of reform. In those circumstances, it was quite appropriate that the judge imposed a non-parole period that was materially lower than might otherwise have been the case. The imposition of that non-parole period did not, and could not, affect an assessment of whether the total effective sentence was appropriate.
13. For the reasons we have discussed, we are not persuaded that the total effective sentence (as adjusted in accordance with our conclusion relating to the sentence imposed on summary charge 13) was manifestly excessive. On the contrary, the sentence was quite reasonable and appropriate in all the circumstances of the case. Accordingly, proposed ground 2 of the application for leave to appeal does not succeed insofar as it is directed to the total effective sentence.

1. For the foregoing reasons, we have reached the following conclusions:

(1) The applicant is refused leave to appeal on ground 1 of the application for leave to appeal.

(2) Leave to appeal is granted, and the appeal allowed, on ground 2, in respect of the sentence imposed on related summary charge 13 (trespass). On that charge, the sentence of 6 months' imprisonment, and the cumulation period of 2 months' imprisonment, are set aside, and in lieu the applicant is sentenced to 4 months' imprisonment, with a period of 1 month imprisonment cumulated on the base sentence.

(3) The applicant is otherwise refused leave to appeal on ground 2.

(4) Accordingly, by reason of our conclusions in respect of the sentence imposed on summary charge 13, the total effective sentence of 4 years and 2 months' imprisonment is set aside, and in lieu the total effective sentence imposed on the applicant is a term of imprisonment of 4 years and 1 month with a non-parole period of 2 years. The sentences otherwise imposed on the applicant are confirmed.

[1] DPP v Blackney [2024] VCC 1462 ('Reasons').

[8] (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').

[10] [2021] VSCA 160; 290 A Crim R 110 ('Herrmann').

[18] (1981) 147 CLR 383; [1981] HCA 31 ('De Simoni').

[19] [2008] VSCA 102; (2008) 19 VR 191, 200 [41] (Ashley JA); [2008] VSCA 102 ('McMaster').

[20] [2019] VSCA 300, [61] (Priest and Weinberg JJA) ('Farah').

[22] De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ); [1981] HCA 31 ; see also R v Newman and Turnbull [1997] 1 VR 146, 150-151 (Winneke P); Farah [2019] VSCA 300, [61] (Priest and Weinberg JJA); McMaster [2008] VSCA 102; (2008) 19 VR 191, 200 [41] (Ashley JA); [2008] VSCA 102.

[25] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).

[26] Veen v The Queen (No 2) (1988) 164 CLR 465, 489 (Wilson J); [1988] HCA 14.

[27] Smith v The Queen [2020] VSCA 159, [7] (Maxwell P, Kyrou and Weinberg JJA); Freeburn v The Queen [No 2] [2020] VSCA 176 [45]-[47] (Kyrou, Kaye and Emerton JJA).