Caddy v The King [2025] VSCA 87

1. The appellant was granted leave to appeal against a sentence imposed in the County Court on 27 October 2023. He pleaded guilty to 38 indictable offences and two summary offences. The majority of the offending was grouped together by the sentencing judge into individual categories for the purposes of imposing a number of aggregate sentences. This was an efficient way to deal with the appellant's quite prolific offending.
2. The details of the sentences imposed are set out in the table below:

3 years' imprisonment (aggregate on charges 17-‍21, 23, 24)

Dangerous driving while pursued by police[7]

Pre-Sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Section 6AAA Statement:

Total Effective Sentence of 10 years' imprisonment with a non‑parole period of 8 years.

1. The Prosecution opening on plea[11] was tendered on the plea. It is a complex document that sets out the relevant offending of both the appellant and his brother, Brent Caddy, who were co‑offenders for much of the offending. We shall reproduce relevant portions of that document:

Background

The accused in this matter,

(1) Brent CADDY, was born 1st March 1988.

(2) Korey CADDY, was born 8th July 1989_._

(3) Between 9th May 2021 and 26th July 2021, Korey CADDY and Brent CADDY together with unknown co‑accused committed a series of burglaries and thefts, both at residential and commercial properties, with some of the thefts including motor vehicles which were then used to break into other buildings.

(4) Three of the stolen motor vehicles were set alight and destroyed by the accused.

(5) On a number of occasions, force was used to gain entry to the premises which resulted in damage being caused to the building. It has been agreed as between the parties that rather than there being separate charges for the damage caused to the various buildings, the damage caused by the entry by force is an aggravating feature of the relevant burglary charges.

1. In total, there were 40 charges against the appellant said to have occurred over a little more than two months. The prosecution grouped these charges into six series and the facts are summarised below.

1. On 9, 16 and 22 May 2021, the appellant and co‑offender were captured on CCTV driving and storing a stolen Ford Laser (charge 1). The car had been stolen from Epsom without keys, was unregistered and the registration plates had been removed.
2. On 22 May 2021 at 3:36 am, the appellant and co‑offender drove the stolen vehicle to Weeroona Secondary College where they forced entry into a shed, broke a padlock bolt, searched the place and then left empty handed (charge 2). At 4:12 am on the same day, they stole a 2006 Holden Commodore from Cathcarts Smash Repairs in California Gully, locating the keys under a car mat (charge 3).
3. Between 8:00 am on 21 May 2021 and 11:40 pm on 22 May 2021, the appellant and co‑offender went to Bendigo East where they stole a 2006 Mazda Bravo Utility without a key (charge 4).
4. At 11:50 pm on 22 May 2021, the stolen Mazda Bravo and Ford Laser were driven in convoy to Ultra Tune in Kangaroo Flat. The appellant and co‑offender located and loaded a large industrial air compressor, valued at $5,000 into the Mazda Bravo. This air compressor was taken to the co‑offender's house (charge 5).
5. At 4:00 am on 23 May 2021, the stolen Mazda Bravo and Ford Laser arrived in convoy at Abbott Supply in Golden Square. The Mazda Bravo was used to ram the external gates and reverse into the shop's roller door, causing damage valued at $9,138.17. Two multipacks of Milwaukee power tools, valued at $3,500, were stolen by an offender wearing all dark clothing (charges 6-‍7). These stolen power tools were subsequently located at the appellant's residence. The appellant burnt the Mazda Bravo in Huntly (charge 8).

1. On 6 June 2021 at 4:41 am, the appellant and co‑offender entered a car yard in Epsom, where they opened and examined a number of cars before stealing two batteries and an engine (charges 10-‍12). A Holden Commodore utility, valued at $15,000, was stolen. It was likely started with one of the stolen batteries (charge 9). This stolen vehicle, carrying the batteries, was seen reversing into the car yard's gates and was later observed travelling north in Goornong at high speed closely followed by a 4WD towing a tandem trailer.

1. On 29 June 2021 at 12:00 am the appellant and co‑offender used bolt cutters to cut the wire fence at Cathcarts Smash repairs in Long Gully. At 3:00 am, they returned through the pre‑cut hole and stole a black Honda CBR650 motorcycle, valued $2,250 which they placed into a red Holden Colorado utility, valued at $8,000 (charges 13-‍14). The stolen utility was driven through the gate to exit the premises, causing damage valued at $7,500 (charge 15). At 4:00 am, the red Holden Colorado was set on fire in a Long Gully bushland (charge 16). The stolen motorcycle was later found at the appellant's residence.

1. On 7 July 2021 at 1:40 am, the appellant went to a business named 'ISH24' in Goornong and used bolt cutters to cut a hole in the exterior fence (charge 17). The appellant used bolt cutters to enter the classroom area and stole 'jaws of life' machinery, valued at $8,000 (charge 18).
2. On 8 July 2021 at 8:30 am, the appellant stole a 2014 Toyota Landcruiser from Barwon Heads, valued at $80,000 (charge 19).
3. On 9 July 2021 at 4:23 am, the appellant and the appellant's then‑partner, Danae, arrived at Golden Square Mower in the stolen Toyota Landcruiser, where the appellant used the 'jaws of life' machinery to cut a gate padlock and metal sliding door to gain entry to the store. They stole six chainsaws (charges 20-‍21). One of these chainsaws was later located in the appellant's residence. The $80,000 Toyota Landcruiser was subsequently set on fire in Maryborough (charge 22).
4. On 13 July 2021 at 2:40 am, the appellant and another person stole a white Ford Ranger Wildtrak from Mortlock Hydroponics in Carisbrook (charge 23). On the same day between 5:00 am and 6:00 am, the appellant stole a gold coloured Nissan Patrol from a residence in Golden Square (charge 24).

1. On 17 July 2021 at around 2:10 am, the appellant used bolt cutters on a gate at Kerang Mechanical Repairs in Kerang (charge 25). At 2:43 am, the appellant and co‑offender attended the Kerang Ford commercial premises. They stole a white Ford Courier from the yard, valued at $7,000 (charges 26-‍27). After the appellant used the Ford Courier to ram the premises' glass panelling, he entered the premises searching for keys to two showroom vehicles.
2. On 18 July 2021 at 2:45 am, the appellant, co‑offender and another person attended Harrison 4WD Centre in Bendigo East. The appellant cut the fencing next to the gates of the premises, kicked the roller door and forced it open to gain entry before taking 4WD driving lights, Clearview mirrors, a Fridge slide and Makita grinder (charges 28-‍29). At 4:38 am on the same day, the appellant, co‑offender and another person attended Cathcarts Smash Repairs in Long Gully in the stolen white Ford Courier, with the stolen goods from Harrison 4WD Centre stowed in the vehicle's tray. The appellant used the stolen Makita grinder to gain access into the premises (charge 30). The appellant attempted to cut a chain that was securing motorcycles before a member of the public drove past, causing the offenders to leave the premises. The stolen white Ford Courier was later located by police in a Maiden Gully bushland, along with two car batteries.

1. On 23 July 2021 at 2:45 am, the appellant, co‑offender and another person arrived at a rural property in Tarilta, near Castlemaine. They stole a white Mazda BT‑50, grey Nissan Navara, green Kawasaki motorbike and four chainsaws (charges 31-‍33). At 2:54 am, the offenders were captured on CCTV driving through Guildford in the stolen vehicles. At around 7:40 am, a witness became suspicious of the Nissan Navara having observed the stolen chainsaws in its rear, and reported it to police. The appellant and co‑offender abandoned the Mazda BT‑50 in dense bushland in Eppalock. It was subsequently located by police.
2. On 24 July 2021 at 1:18 am, CCTV footage captured the appellant getting a yellow jerry can and driving a black Suzuki Swift from Goornong. He drove to another location where he met the co‑offender who was driving the stolen Nissan Navara. At 1:50 am, they cut the wire fence at Paul Evans Welding in Rochester before stealing truck straps, rims, car batteries and other car parts, which they loaded into the Nissan Navara (charge 34). They drove both vehicles to the Elmore area. At 3:16 am, the appellant and co‑offender attended IGA in Elmore in the stolen Nissan Navara. The co‑offender rammed the window and frame of the premises and the appellant entered the supermarket, and attempted to access the cigarette cabinet before a fogging system discharged a fog screen (charge 36). The appellant and co‑offender each then drove toward the Goornong area. On the same day, a burglary was committed at Rochester Mini Storage (no items were taken), and the appellant's black Suzuki Swift was captured on CCTV parked at this location at that time (charge 37).

1. On 24 July 2021 at 3:52 am, the appellant drove the black Suzuki Swift into the driveway of his residence. Following a verbal altercation between him and Danae and the latter throwing gravel at the vehicle, the appellant accelerated heavily towards Danae which made her airborne and sent her over the car's bonnet. The argument continued, and the appellant again struck Danae with the vehicle (charge 38). At 4:54 am on the same day, police observed the black Suzuki Swift, without registration plates, travelling west along Huntly‑Fosterville Road. Police attempted to intercept the appellant who failed to stop on police direction and, instead, accelerated at an estimated speed of 150 kph. The Suzuki Swift was subsequently detected to be travelling at 172 kph on a radar device (charge 39).
2. The appellant was arrested at his residence on 30 July 2021 and was remanded in custody until sentence. A search warrant was executed at this residence, and, among other things, the following items were located:

(a) blue bolt cutters;

(b) black and orange Kioritz chainsaw;

(c) Stihl D24 orange chainsaw;

(d) Stihl MS171 chainsaw in orange container;

(e) Milwaukee‑branded tools including:

(i) M18 angle grinder;

(ii) Impact drivers;

(iii) a tool bag containing instructions for power tools;

(iv) two battery chargers;

(v) M18 saver saw;

(f) Clearview expandable fridge slide;

(g) black Honda CBR6S0;

(h) green Kawasaki 250s;

(i) black light bar;

(j) Stihl BG85c blower;

(k) Stihl FSSSc brush cutter;

(l) Honda generator;

(m) GMC generator;

(n) Trojan bolt cutters; and

(o) Makita grinder.

1. In the children's bedroom, police also located:

(a) a black bag with brown handles containing assorted edged weapons, a black balaclava and a black firearm scope;

(b) a Slazenger bag containing assortment of door fittings; and

(c) two vehicle registration plates.

1. Counsel for the appellant put forward the following matters said to be in mitigation of sentencing:

(a) the matter resolved to pleas of guilty prior to a contested committal proceeding, and ought be treated as a plea at the earliest practicable opportunity;

(b) there was significant utilitarian benefit to the plea, particularly during the COVID‑19 pandemic and the appellant should receive a 'full discount' for his plea;

(c) there is some evidence of remorse and the appellant has made expressions of remorse to his mother and his forensic psychologist;

(d) the appellant has experienced hardship in custody with COVID‑related extended lockdowns, quarantine during his first 14 days on remand and limited access to personal visits and programs;

(e) the appellant is at risk of institutionalisation;

(f) his prospects of rehabilitation are guarded given his significant relevant criminal history. He has a prospect of employment as a restumper upon release, and has made progress in custody as a head unit billet and completing available programs;

(g) the sentence must be just and appropriate and avoid crushing the appellant. Totality is an important consideration;

(h) when considering the gravity of offending, the court should consider the volume and duration of offending; the loss and damage to the victims; the fact that the offending was in company; there was some evidence of planning although overall the offending was unsophisticated; and there was no confrontation or violence in the burglaries, nor were weapons used. The court should also consider the 'family violence nature' of the reckless conduct endangering serious injury in which the appellant struck Danae with the car.

1. The appellant conceded that 'a term of imprisonment involving a head sentence and non‑parole period [was] required'. Counsel for the appellant reminded the judge that imprisonment was a sentence of last resort and that the 'principle of parsimony' ought be observed.
2. A report by a forensic psychologist, Mr Jeffrey Cummins, was tendered on the plea.
3. In an exchange with the judge, counsel for the appellant conceded that the appellant was 'facing a significant custodial sentence'.
4. After referring to the lengthy Prosecution opening on plea, the prosecutor submitted (correctly) that the serious offender provisions apply to the appellant, if imprisoned on charge 8, when he fell to be sentenced as such on charges 16 and 22. The prosecutor noted that he was not instructed to seek a disproportionate sentence on those charges, however, protection of the community would become a primary sentencing purpose. The appellant, as it was submitted, had a lengthy and serious criminal history. Victim impact statements were tendered and some were read to the court.

1. In her reasons for sentencing, the judge dealt first with the appellant. She summarised the offending in the same terms as the Prosecution opening on plea. Her Honour then summarised the numerous victim impact statements. It was observed that it was:

... evident from all the victim impact statements that your offending has taken a significant toll on your victims, often both emotional and financial, and has caused many of your victims to feel unsafe in their homes and in their community.[12]

You should both feel thoroughly ashamed for the loss you have caused your victims and the havoc you have wreaked across a number of communities by your grossly dishonest and destructive behaviour.[13]

1. The judge then turned to the appellant's personal circumstances. She observed:

(a) at the time of the plea he was 34 years old;

(b) his parents were separated when he was aged about 15 years;

(c) he was bullied at school and left in year 9;

(d) he told a forensic psychologist (Mr Cummins) that he thought he may have had learning difficulties at school;

(e) he worked intermittently until he was around 18 years old, and then 'prioritised drug taking and drinking';

(f) he has two children: a daughter aged 11 and a son aged 10. He is separated from their mother;

(g) he has a criminal history going back to 2010 including many findings of guilt or convictions for dishonesty offences, weapons and firearm offences and driving offences;

(h) on 10 February 2021 at Geelong Magistrates' Court, he received a sentence of 460 days' imprisonment together with an 18 months' community correction order ('CCO'), operational at the time of the current charges. This was for charges of theft of a motor vehicle, driving while disqualified, negligent driving while pursued by police and theft;

(i) he has used his presentence time in custody (819 days) productively;

(j) a former employee provided a sound reference and would be open to re‑employing him;

(k) he is anxious and depressed, according to Mr Cummins, at the prospect of a long prison sentence; and

(l) Mr Cummins was of the opinion that the appellant most probably suffered from an anti‑social personality disorder and a poly substance dependency.

1. The judge (after reviewing the co‑offender's circumstances), returned to the submissions made on the appellant's plea. The judge, in summary, referred to counsel's references to:

(a) the early plea of guilty;

(b) remorse;

(c) custodial privations during the COVID‑19 pandemic;

(d) the risk of institutionalisation;

(e) his productive use of his time in custody and his guarded prospects of rehabilitation (as opposed to them being forlorn or hopeless); and

(f) that a crushing sentence was to be avoided and totality remained important.

1. The judge assessed the objective gravity of the offending as high, describing 'a rampage of ongoing criminal conduct'. The judge considered the arson offending to be 'very serious' and noted that on charges 16 and 22 the appellant fell to be sentenced as a serious arson offender. His offending was aggravated by the fact that he was serving a CCO at the time of offending.

1. Insofar as totality is concerned, the judge said this:

Korey Caddy, you fall to be sentenced as a serious arson offender on Charges 16 and 22 if convicted and sentenced to a term of imprisonment on Charge 8. I must regard protection of the community as the principal purpose of sentence. I must order the relevant sentences to be served cumulatively unless I direct otherwise. The principle of totality is not displaced by the application of the serious offender provisions. The prosecution do not seek a disproportionate sentence.

The principle of totality is an important consideration in sentencing you. You have both pleaded guilty to a number of serious charges all potentially carrying lengthy sentences of imprisonment. I must endeavour to impose a sentence that is reflective of the overall gravity of your offending.

I have concluded the best way to achieve a sentence that is just and proportionate in respect of both of you is to impose aggregate sentences on the offences which are captured in what are described as the series, as they are offences which are as required by s 9 of the Sentencing Act 1991, part of a series of offences of the same or similar character, with the exception of the arson charges for you Korey Caddy, for which I will impose discrete sentences. I will also impose discrete sentences on the charges which are not captured in the series and on the summary charges.[14]

1. The judge concluded by saying that she took into account 'all the matters she was required to under the Sentencing Act and matters personal to you'.[15]

1. On ground 1, the appellant contended that the judge's reasons were insufficient. In a peculiar irony, the ground itself as drafted provides no particulars whatsoever. In argument, the appellant contended that the reasons for sentence were deficient in that the judge did not explain how the following factors informed the sentencing task:

(a) plea of guilty at the earliest opportunity with significant utilitarian benefit due to the pandemic;

(b) remorse;

(c) hardship in custody due to the pandemic; and

(d) risk of institutionalisation.

[f]urthermore, when addressing the objective gravity of the offending, moral culpability and application of the sentencing principles, the sentencing judge engaged in a mere recitation of the facts, accompanied by bald statements of conclusion.[16]

1. Having scrutinised the reasons for sentence, the transcript of the plea hearing, the Summary of prosecution opening tendered on the plea and the Defence submissions also tendered on the plea, we consider that this ground of appeal is not established. The judge had before her comprehensive written submissions from the appellant's counsel, a psychological report from Mr Jeffrey Cummins,[17] three letters of support, bundles of prison certificates and negative drug screen results taken during the appellant's 22 months on remand.
2. We have set out her Honour's sentencing remarks in some detail at paragraphs [28]-‍[34] of these reasons. It is clear that the judge read all of the material that was before her, and by reciting the submissions of the appellant's counsel which were undisputed by the prosecution, it is clear to us that her Honour took these matters into account. These matters included:

(a) the early guilty plea;

(b) some evidence of remorse;

(c) pandemic‑related custodial restrictions;

(d) the risk of institutionalisation;

(e) the appellant's apparently productive use of his time on remand; and

(f) the appellant's guarded prospects of rehabilitation.

1. Whilst the judge did not specifically say, 'I take each of these matters into account', so much is implicit from their context in the sentencing remarks.
2. Where her Honour differed in a material way from the mitigatory submissions put by the appellant, she stated as much. In particular her Honour assessed the overall objective gravity of offending as 'high' and considered the arson offending to be 'very serious'. Her Honour observed that a crushing sentence was to be avoided and the totality principle had work to do.
3. The further complaint that the judge merely recited the facts and accompanied them with bald statements of conclusion is bereft of merit. The appellant's criminal conduct, over a series of months, spanned most of the Central Highlands, the Murray Plains, the Central Goldfields and down to the Bellarine Peninsula. That same conduct also spanned a large portion of the Crimes Act. It was accurately described by the sentencing judge as a 'rampage'.[18] The details of this rampage only have to be factually recited to explain the 'bald statements of conclusion'. The appellant's actions speak for themselves.
4. Before leaving this ground, it would be remiss of us not to record our reservations as to whether an 'inadequacy of reasons' ground is an appropriate ground in an appeal of this nature. In view of our conclusion on this ground, it is unnecessary to determine this issue. Nevertheless, we are grateful for counsel's further research and assistance on it.[19]

1. It cannot be gainsaid that a total effective sentence of 8 years' imprisonment with a minimum of 6 years is a condign sentence for this type of offending. However, the appellant's prior criminal history, the sheer extent and duration of his offending, and the aggravating fact that it was all carried out whilst the applicant was subject to a CCO, in our view, calls for a lengthy sentence. That is so, notwithstanding the early plea and its pandemic related consequences.
2. Protection of the community was obviously the principle sentencing purpose of the serious arson offender sentences on charges 16 and 22, however in all the circumstances it was a highly relevant consideration more broadly across all offending.
3. The appellant, and at times his brother, were responsible for waves of destructive, highly dishonest, dangerous and breathtakingly stupid conduct which caused great alarm to the victims of their behaviour and must have also to the wider rural community upon which they preyed. We shall mention only a few instances. The appellant's penchant for stealing vehicles and burning them (including, on one occasion, in bushland surroundings) was correctly regarded by her Honour as 'very serious'. Driving a motor vehicle at his former partner, striking her with it causing her to become airborne and being flipped over the bonnet of the vehicle is also a serious example of reckless conduct endangering serious injury; and then he drove at her again, striking her once more with the vehicle. One hour later, police pursued the appellant in the same vehicle. He was disqualified from driving with several prior convictions for negligent driving while being pursued by police and failing to stop on police request. He was on a CCO and he drove away from police at speeds reaching 172 kph.
4. The totality of the appellant's offending must be considered in light of his substantial criminal history which informs the need for community protection, specific deterrence, just punishment and the bleak but not hopeless prospects of rehabilitation. By our best understanding of the complex Victorian Police Criminal History report,[20] the appellant has been convicted or found guilty of the following offences over the last 15 years:

• Fail to comply with undertaking order
• Recklessly causing injury (two charges)

• Theft from shop (three charges)
• Handle/retain stolen goods (two charges)
• Unlicenced driving
• Possess methylamphetamine
• Use methylamphetamine

• Breach of suspended sentence order
• Unlicenced driving
• Fail to answer bail
• Possess controlled weapon without excuse
• Possess methylamphetamine
• Possess cartridge ammunition without a licence
• Unlicenced driving
• Exceed 80 kph speed sign by 35 kph but less than 45 kph
• Enter intersection - red traffic arrow
• Use vehicle display other than issued
• Use unregistered motor vehicle - highway
• Drive while vehicle number plate not affixed as required

• Contravene CCO
• Fraudulent use of identification
• Fraudulent use of a registration label
• Careless driving
• Use an unregistered vehicle on the highway
• Dishonestly undertake the retention of stolen goods
• Possess controlled weapon without excuse
• Fail to stop on police request[21]
• Drive while disqualified21
• Drive in a manner dangerous21
• Fail to exchange person name and address after a motor vehicle accident in which a person was seriously injured
• Drive in a manner dangerously causing serious injury
• Handle stolen goods
• Commit an indictable offence while on bail

• Fail to stop vehicle on police direction
• Use an unregistered vehicle on the highway
• Possess cartridge ammunition
• Drive while disqualified
• Contravene CCO
• Possess suspected stolen goods
• Possess methamphetamine
• Prohibited person possessing a firearm
• Fail to stop a motor vehicle on request[22]
• Drive whilst disqualified22
• Theft of a motor vehicle22
• Reckless conduct endangering serious injury22

• Contravene a CCO
• Theft of a motor vehicle[23]
• Reckless conduct endangering serious injury23
• Contravene a condition of bail
• Going equipped to steal
• Theft
• Burglary with intent to steal
• Drive whilst disqualified
• Contravene a personal safety intervention order
• Possess cannabis
• Refuse to provide a sample of oral fluid

• Theft of a motor vehicle
• Drive whilst disqualified
• Negligent driving while pursued by police
• Theft
• Theft from shop

1. We have considered the comparative cases that we have been referred to by the parties. Notwithstanding the careful and comprehensive submissions put on behalf of the appellant, we are not satisfied that this sentence is manifestly excessive. As is routinely observed in appeal grounds of this nature, this is a difficult ground to establish.[24] The impugned sentence must be wholly beyond the range available to the sentencing judge in the proper exercise of the sentencing discretion.[25] It must bespeak underlying error.[26] We are unable to discern such error. There was little room in this sentencing exercise for emphasis on the scant factors in mitigation.

[1] Contrary to s 74(1) of the Crimes Act 1958.

[2] Contrary to s 76 of the Crimes Act 1958.

[3] Contrary to ss 197(1) and 197(6) of the Crimes Act 1958.

[4] Contrary to s 197(1) of the Crimes Act 1958.

[5] In the Record of Orders dated 27 October 2023, the Court ordered 6 months of the sentence on charge 37 to be served cumulatively on the base sentence. This charge forms part of an aggregate sentence of 3 years with charges 31-36, 9 months of which were to be served cumulatively. Accordingly, this additional order on charge 37 appears to be an error.

[6] Contrary to s 23 of the Crimes Act 1958.

[7] Contrary to s 319AA(1) of the Crimes Act 1958.

[8] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[9] Contrary to s 5AA of the Control of Weapons Act 1990.

[10] Contrary to s 30 of the Road Safety Act 1986.

[12] DPP v Korey Caddy & Brent Caddy (County Court of Victoria, Judge Hassan, 27 October 2023), [146] ('Reasons').

[16] After this passage, the appellant's written submissions referred to Reasons, [189]-[202].

[19] See, eg, R v Robins [2016] SASFC 55, [20]-[25]; Oatley v Commonwealth Department of Public Prosecutions [2021] SASCA 108, [27]-[29]; R v Davey [2006] SASC 177; (2006) 95 SASR 63, 72-3 [36]-[40]; [2006] SASC 177; Cross v Police [2001] SASC 47, [21]-[30]; Makeham v Sheppard [2020] VSCA 242, [77]-‍[80]; Salmon‑Urbani v The Queen [2022] VSCA 170, [48].

[21] These three offences were heard on the same day and would appear to relate to a police chase.

[22] These four offences would appear to relate to a police chase.

[23] This may be the same offending as referred to above.

[24] See, eg, Director of Public Prosecutions (DPP) v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662 [127] (Ashley, Redlich and Weinberg JJA, Warren CJ and Maxwell P agreeing); [2010] VSCA 350; Cook v R (2021) 98 MVR 23, 31 [38] (Priest and T Forrest JJA); [2021] VSCA 293; Leslie v The King [2025] VSCA 13, [104] (Emerton P and J Forrest AJA); Shanker v The Queen [2018] VSCA 94, [214] (Tate, McLeish JJA and Kidd AJA); Al Qassim v The King [2024] VSCA 302, [45] (T Forrest and Kenny JJA).

[25] Young v The Queen [2016] VSCA 149, 128 (Ashley, Whelan and Kaye JJA); Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

[26] Karam v The King [2024] VSCA 164, [30] (T Forrest JA).