procedural. Leave to appeal refused on all three grounds: (1) no failure to assess objective gravity of charge 6; (2) Bugmy principles were considered and applied appropriately by the sentencing judge, who...
Key principles
Leave to appeal against sentence refused: where a sentencing judge has addressed relevant matters and the sentence imposed falls within the range of available sentencing...
A sentencing judge may give 'full weight' to an offender's deprived background but nonetheless conclude that it does not reach the threshold of 'profound childhood deprivation'...
Where the sentencing judge's reasons and the plea material read as a whole demonstrate that the judge regarded the objective seriousness of offending as 'very serious' and...
Issues before the court
Whether the sentencing judge failed to assess properly (or at all) the objective gravity of charge 6 (intentionally damage property).
Whether the sentencing judge failed to properly assess and apply Bugmy principles concerning moderation of moral culpability owing to the...
Whether the individual sentences, orders for cumulation and the total effective sentence were manifestly excessive.
Plain English Summary
The Court of Appeal refused the applicant's application for leave to appeal his County Court sentence. The applicant had pleaded guilty to a course of family-violence offences including assaults, voluminous death threats by messages, property damage, and an armed attempt to set fire to his former partner's parents' home. The Court found the sentencing judge had taken the applicant's deprived childhood and PTSD into account but reasonably concluded the background did not meet the Bugmy threshold for reducing moral culpability. The Court also held the sentences and orders for cumulation were within the range open to the sentencing judge given the sustained, threatening and violent circumstances, so the manifest excess ground failed. Leave to appeal was refused on all grounds.
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Deep Dive
1,949 words · generated 09/07/2026
What happened
Cited legislation
2 cited instruments linked from this judgment.
This is an application for leave to appeal a County Court sentence. The applicant, anonymised as Clarke, pleaded guilty to multiple offences arising from a sustained course of domestic and associated violence following separation from his long-term partner. The offending spanned assaults upon the partner (headbutts and hair-pulling), persistent and voluminous threats to kill and seriously injure the partner, her parents and a friend via Facebook Messenger, text messages and voicemails (over a five day period and over 200 contacts between 24 and 28 September 2021), intentional damage to the partner's property, and a violent episode on 29 September 2021 where the applicant attended the partner's parents' home armed with a meat cleaver, knives, a metal pole and a butane canister, smashed multiple windows, attempted to ignite curtains and otherwise damaged property (attempted arson, intentional damage, trespass) (see factual narrative at paras 1–37 of the Reasons recited in the Court of Appeal summary).
On plea the County Court sentenced the applicant to a combination of State and Federal sentences producing a total effective sentence of 5 years and 2 months, non-parole period 3 years and 1 month. The applicant sought leave to appeal to the Court of Appeal on three grounds: (1) alleged failure by the sentencing judge to assess the objective gravity of charge 6 (intentionally damaging Mr and Mrs Black's home); (2) alleged failure to properly apply Bugmy principles to moderate moral culpability in light of the applicant's deprived background and an episode of sexual abuse; and (3) manifest excess, that the individual sentences, cumulation and total effective sentence were plainly unjust and outside the permissible range.
The Court of Appeal (NIALL and HARGRAVE JJA) refused leave on all three grounds and dismissed the application for leave to appeal.
Why the court decided this way
The Court's reasoning is compact and rests on ordinary appellate sentencing principles and the application of Bugmy (and Verdins) principles.
Ground 1, objective gravity of charge 6:
The applicant argued the sentencing judge had given specific assessments of objective gravity for the other offences but had not made any findings about charge 6 (damage to the parents' home). The Crown submitted, and the Court agreed, that when the Reasons and the plea material are read together it is plain the judge regarded the objective seriousness of the overall offending as "very serious and traumatic on the victims," and that counsel had, in the plea, characterised charge 6 as a serious example of the offending. Thus, no separate express finding was necessary when the judge's consideration of the course of offending as a whole made the assessment plain.
Ground 2, Bugmy mitigation:
The applicant relied on Bugmy (High Court) and contended his deprived childhood and a sexual abuse episode should have moderated his moral culpability. The sentencing judge expressly stated he had given 'full weight' to the deprived background but did not consider it reached the level of 'profound childhood deprivation' in Bugmy, nor did he consider it clearly explained the offending; the judge further recognised PTSD and followed Verdins in treating PTSD as increasing the burden of imprisonment. The Court of Appeal endorsed the judge's approach, holding that giving general weight but declining to treat the background as meeting Bugmy's threshold was a permissible conclusion on the evidence (the judge was entitled to find the deprivation did not explain the offending in the requisite sense). Accordingly, no error was established.
Ground 3, manifest excess:
The Court reiterated the settled test for manifest excess: the sentence must be "wholly outside" the range reasonable open to the sentencing judge and it is a stringent requirement. The Court analysed the offending: the voluminous, persistent and extremely vile threats; the attempted arson in the presence of victims (including the applicant's older son) while armed and the presence of premeditation (weapons, butane canister); the property damage and assaults; and the ongoing pattern of family-violence conduct. It compared the case to authorities relied upon by the applicant (Marrah and Lim) and distinguished them as materially different. Given the context and the impact on victims (including the parents' decision to sell their long-term home), the Court found the individual sentences and cumulative effective sentence were within the range reasonably open to the sentencing judge. The Court also adopted the strong denunciatory and deterrent approach to relationship-failure violence expressed in DPP v Derby.
Overall, the Court concluded that the sentencing judge had addressed the relevant matters, made permissible evaluative judgments, and arrived at a sentence within the permissible range; leave to appeal was refused.
Before and after state of the law
Before:
The applicable legal principles are well established in Victorian appellate practice:
Bugmy (High Court) establishes that profound childhood deprivation may reduce moral culpability where such deprivation helps to explain the offending; courts must assess whether background reaches that threshold and whether it explains the offending sufficiently to moderate culpability.
Verdins (VSCA) and subsequent authorities guide assessment of mental health and how conditions like PTSD affect the burdens of imprisonment.
The manifest excess appellate test is articulated in Clarkson and other authorities: an imposed sentence will only be disturbed if it is wholly outside the reasonable range.
After this decision:
The Court of Appeal reaffirmed those principles and demonstrated their operation in the sentencing context:
A sentencing judge can give "full weight" to a deprived background yet conclude it does not meet Bugmy's threshold; that conclusion is an ordinary exercise of sentencing evaluation open to the judge on the evidence.
Where Reasons and plea material read as a whole point to the judge's considered view of the objective gravity of offences, an appellant cannot successfully complain of an absent discrete finding on one charge if the context demonstrates the judge's view.
Appellate courts will be slow to intervene where a sustained pattern of violent, threatening and premeditated family violence plainly supports stern sentences; the manifest excess hurdle remains high.
Thus the decision operates consistently with existing law rather than changing it. It confirms the practical operation of Bugmy and manifest excess principles in a factually serious family-violence case.
Key passages with plain-English translation
"In sentencing you I have given full weight to your deprived background. However, I do not consider that your childhood experiences, as difficult as they were, reach the level of 'profound childhood deprivation' described by the High Court in the case of Bugmy." (Judge's succinct reason reproduced by the Court of Appeal.)
Plain English: The judge considered the applicant's hard childhood carefully but decided it was not so severe that it would reduce his blameworthiness under the legal test in Bugmy.
"A ground of manifest excess will only succeed if it can be demonstrated that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge."
Plain English: To overturn a sentence because it is 'too harsh', you must show it was completely unreasonable, not merely that another judge might have imposed a lesser sentence.
Quotation from Derby adopted: "The employment of violence... simply cannot be tolerated... those who engage in such behaviour must, save in the most unusual of circumstances, anticipate the imposition of condign punishment."
Plain English: The Court emphasises that violence used in response to relationship breakdowns is unacceptable, and sentences should ordinarily be severe to deter such conduct.
Court's summation: "The conduct of the applicant in this case amounted to a sustained course of very serious offending in the context of family violence. Such cases deserve stern punishment."
Plain English: The offending was not isolated; it was repeated, serious and traumatic for the victims, and therefore a strong sentence was appropriate.
What fact patterns trigger this precedent
This decision provides guidance for similar sentencing and leave-to-appeal scenarios where:
The offending comprises a sustained course of family-violence conduct, including repeated assaults, persistent menacing communications (texts/voicemails), and property damage culminating in violent, weapon‑equipped conduct that risks mass harm (attempted arson).
The offender has a deprived childhood and mental health diagnosis (e.g. PTSD) but where the facts do not show that the deprivation meets Bugmy's threshold of 'profound childhood deprivation' or that it explains the particular offending.
Challenges to sentencing that rely on the absence of an express, discrete finding on the objective gravity of a particular charge where the judge's Reasons and plea material show the judge treated the offending as a whole and as very serious.
Applications for leave on manifest excess grounds where the aggregate and contextual features (persistence, premeditation, presence of weapons, victims' trauma) weigh heavily towards stern punishment.
Practitioners should note the factual emphasis: volume and persistence of threats, the presence of weapons and a combustible canister, the attempt to ignite curtains in the occupants' presence, the impact on long-term victims, and the presence of children as witnesses, all contribute to justifying stern sentences.
How later courts have treated it
This judgment is itself an appellate treatment applying prior authorities (Bugmy, Verdins, Derby, Clarkson, Marrah, Lim and others). It confirms that:
Appellate courts will accept a sentencing judge's evaluative assessment of background if adequately reasoned.
A failure to state a discrete sentence‑by‑sentence objective-gravity finding will not necessarily amount to error where the judge's Reasons and plea framework make the assessment clear.
The Derby approach to deterrence in family-violence sentencing continues to be influential.
As this is the decision of the Court of Appeal handed down on 8 May 2023, subsequent treatments by later courts would need to be searched in case law databases after that date. The present judgment itself does not record later appellate responses.
Still-open questions
The precise demarcation of Bugmy's "profound childhood deprivation" threshold remains an evidentiary and evaluative question in each case. This decision reaffirms that incremental or moderate deprivation does not suffice; the court did not lay out a precise formula for comparison to Bugmy. Practitioners must therefore continue to focus on detailed evidentiary proof that background both reaches the high Bugmy threshold and explains the offending behaviour in a causative sense.
The extent to which a sentencing judge must articulate a finding on objective gravity for each count in multi-count matters remains fact-sensitive. This Court accepted that the Reasons and plea material viewed together sufficed here. But appellants may still successfully argue error where nothing in the Reasons or plea points to how the judge treated a particular charge.
How much weight should be given to the mode of communication for threats (face-to-face versus electronic) remains case-dependent. The applicant relied upon distinctions between face-to-face threats and those via messages; the Court here treated voluminous, graphic electronic threats as equally or more serious because of persistence and trauma caused. Future cases will continue to refine how communication mode affects objective gravity.
Cumulation practices: The Court accepted the particular cumulations here as within range. However, the exercise of deciding what sentences to cumulate, and to what extent, continues to require careful totality analysis; this case confirms the appellate reluctance to intervene absent clear error but does not provide an exhaustive rule on cumulation.
Interaction between PTSD/mental health and Bugmy: the Court accepted Verdins as relevant to the burden of imprisonment and Bugmy to moral culpability. The borderline situations where PTSD and deprivation interact to justify a reduction in moral culpability remain finely balanced and fact-sensitive.
Conclusion
This decision reinforces the established appellate stance on sentencing appeals: the manifest-excess standard is a high threshold; Bugmy mitigation requires proof of profound deprivation that explains offending; and in sustained family-violence scenarios involving threats, weapons and attempted arson, stern sentences are within the ordinary range.
Judgment (31 paragraphs)
[1]
The applicant left a voice message at 2:27 pm on the same day: 'Thanks a lot you fuckin' cunt all right? Thanks for everything, I swear I'm gonna smash your fuckin' face in. When I get to you, I swear for this, I'm gonna fuckin' kill you.'
The applicant sent further messages to Ms Black:
[2]
(a) 28 September 2021 via text message at 2:37 pm: 'Just remember it takes police minutes to arrive and that will be a long time if pops is hogtied you hogtied cos you leave me with no money ... Like say minutes can last a long time waiting for those sirens as specially if suspect has fled the scene already ... I be at home still waiting for you to...'; and
>
> (b) 28 September 2021 via text message at 4:50 pm: '[S]ome cunts Gunna be giving me money whether you. Ur old cunt dad or ya mum other wise cunts will end up in hospital.'
[3]
The applicant left a further voice message at 5:14 pm: 'What's the the matter kid, don't you like clowns? Don't we make you laugh? Ain't we fuckin' funny? I tell you right now, if I come back and tell me the reason you don't like clowns, I'm gonna kill you, your mother and your whole fuckin' family, you got that.'
The applicant sent further voicemails that evening telling Ms Black that he was 'going to get her', that he would take her dad's head off with a meat cleaver and a machete and that he would stab them all. The applicant told her that he would find her, would tie up her parents and would bash her like she's never been bashed before. He also told her that she's 'gonna be fucking dead' and that he was going to 'hang her' (paragraphs [14]-[21] contain particulars of Charge 4: Make Threat to Kill - rolled up charge comprising four instances).
Over the course of the evening on 28 September 2021, Ms Black received multiple text messages from the applicant indicating that he was destroying property belonging to her at the Altona Meadows property where the applicant, Ms Black and the two children lived. These messages included:
[4]
(a) 'You have two broken windows' followed by 'least when I'm gone you will come to your clean house you dirty slut ... ha ha ha it b destroyed';
>
> (b) 'All your clothes gone making bon fire with all ur trash';
>
> (c) 'Every out of cabinet destroyed';
>
> (d) 'Your bedroom setting im Gunna hack with meat cleaver';
>
> (e) 'U Gunna have nothing just like me';
>
> (f) 'All jewellery boxes fucked jewellery fucked'; and
>
> (g) 'I feel alive'.
[5]
The applicant smashed a window at the address, graffitied a further window, damaged a buffet unit, smashed the lid of a washing machine, broke crockery, a steam mop, and a jewellery box, amongst other damage (Charge 3: Intentionally Damage Property).
On 28 September 2021, the applicant began sending abusive text messages to Ms Black about her friend Alison Howard. The messages included:
[6]
(a) 'Tell [Alison] to come over I wouldn't mind a head job ... tell her I want to rape her up her tight big arse. Black nigger bitch then when I'm finished I'd spit in her dirty skinned face'; and
>
> (b) 'Tell me [Alison's] address I wanna come stand over that Indian bitch and take over her place. Told ya I want her to taste shit of my cock after I've raped her'.
[7]
Ms Howard read those messages.
The applicant left further messages for Ms Black in the evening of 28 September 2021 in which he threatened Ms Howard. The messages included threats that he would cut Ms Howard's throat, hang her, that he was going to 'get [Alison] and her', that Alison would end up in a ditch and that he would make her dig her own grave and cut her head off. Ms Howard sat and listened to the voicemail messages with Ms Black (Charge 5: Make Threat to Inflict Serious Injury - rolled up charge comprising three instances).
The applicant contacted Ms Howard by Instagram and sent her SoundCloud links to songs which included vile lyrics. He also posted a public message to his Facebook page asking if anyone knew where she lived and that he wanted to bash her.
Ms Howard was left feeling scared as a result of hearing and seeing the threats. Ms Black was left feeling terrified and was concerned for her parents.
As a result of receiving the threats, Ms Black contacted police. Police applied for a complaint and warrant intervention order.
On 29 September 2021 at approximately 3:30 pm, the applicant attended the home of Ms Black's parents. The applicant was carrying a grey backpack. The backpack contained a meat cleaver (30 centimetres in length), three kitchen knives (30 centimetres in length), a one metre black metal pole and a butane gas cannister and nozzle.
Mr Black was sitting in the lounge room with his wife and their grandson. He watched as the applicant approached the house. Mrs Black grabbed the child, ran to the kitchen and called police.
The applicant walked up onto the front porch of the house (Summary Charge 21: Trespass). The applicant was holding a black metal pole, which he then used to smash the front window of Mr and Mrs Black's lounge room. The applicant was yelling, 'I am going to kill you and burn the house down' and 'come here you fucking dog'.
As the applicant continued to hit the front window with the black metal pole, he removed one of the knives from his backpack and used this to break the glass further. He reached his hand through the front window and said, 'I'm going to smash your fucking head in you cunt'.
The applicant yelled out, '[i]f I get a chance to tie you up, I'll burn you.' He continued yelling and smashing the front window with the metal pole. He also yelled out that Mr Black was a 'weak cunt'. The applicant was holding a knife and the metal pole. He then used the metal pole and hit the window a number of times with considerable force.
[8]
(a) The applicant was no longer in a relationship with Ms Black and the plan was they were going to continue to reside at Altona Meadows together until the applicant found a job and another place to live;
>
> (b) Ms Black had done the applicant a favour in ending it, and they had separated on the weekend;
>
> (c) This was the second time the relationship had broken up;
>
> (d) Mr Black was telling the applicant to come inside and the applicant was on their porch. The applicant told him to move back to Malta or next time he would 'come with 30 cunts'; and
>
> (e) The applicant called Ms Black 'a fucking slag' and said that she stole his money.
[9]
Ms Black returned to the Altona Meadows address on 1 October 2021, where she saw the damage done to the property. The house was also in disarray. The applicant had upended the contents of drawers, cupboards and rooms and thrown them throughout the house.
[10]
The applicant seeks leave to appeal on three grounds:
[11]
(a) Ground 1 - the sentencing judge failed to assess properly (or at all) the objective gravity of charge 6 (intentionally damage property).
>
> (b) Ground 2 - the sentencing judge failed to properly assess the effect of the applicant's deprived background and history of sexual abuse.
>
> (c) Ground 3 - the individual sentences imposed, the orders for cumulation made, and the consequent total effective sentence are manifestly excessive.
[12]
The applicant contends that the sentencing judge specifically assessed the objective gravity of all of the other offences but made no findings in relation to the objective gravity of charge 6. It was contended that this was an error because no reasons were given for assessing the individual sentence on charge 6 (2 years' imprisonment with a cumulation of 5 months) at 'near the top of the sentencing hierarchy on the facts of this case'.
In response, the Crown contends that, reading the material on the plea and the Reasons as a whole, it is plain that the judge regarded the objective seriousness of all of the offending as both very serious and traumatic on the victims, a fact recognised by counsel for the applicant on the plea. Moreover, the Crown contended in its submissions on the plea that charge 6 was a serious example of the charged offending. From a reading of the Reasons and the plea transcript as a whole, it should be inferred that the judge took a similar view.
We agree with the Crown on this issue. Leave to appeal on ground 1 is refused.
[13]
Ground 2 - applicant's deprived background and history of sexual abuse
[14]
The applicant contends that the principles enunciated by the High Court in Bugmy v The Queen[5] applied to moderate his moral culpability in light of his deprived background and an alleged episode of sexual abuse. He contends that the judge failed to apply these principles notwithstanding that the judge accepted the following matters in relation to the applicant's background, as follows:
[15]
(a) his mother and step-father separated shortly after his birth;
>
> (b) his father spent 10-15 years in custody during the applicant's childhood;
>
> (c) his mother struggled and resorted to consuming a significant amount of alcohol;
>
> (d) his mother re-partnered, however the applicant witnessed domestic violence against his mother and was also subjected to physical abuse by his mother's partner;
>
> (e) he was required to move from school to school and found it difficult to form friendships; and
>
> (f) at the age of six, he was sexually assaulted by a 16-year-old boy, who forced the applicant to perform oral sex on the boy and threatened to harm his family if he told anyone.
[16]
Counsel for the applicant emphasised the applicant's uncontested diagnosis of post‑traumatic stress disorder ('PTSD') arising from the above matters, which the judge said he would take into account under R v Verdins[6] as increasing the burden of imprisonment on the applicant and which condition would likely be adversely affected by imprisonment.[7]
The applicant's contention is based on the judge's succinct reasons on this issue. The judge stated:
Your counsel submits that the principles in the case of Bugmy v The Queen apply in your case because of your background of 'emotional hardship, dysfunction and disadvantage'.
In sentencing you I have given full weight to your deprived background. However, I do not consider that your childhood experiences, as difficult as they were, reach the level of 'profound childhood deprivation' described by the High Court in the case of Bugmy.
Further, it is not clear that your childhood deprivation can 'explain' your present offending so as to reduce your moral culpability as explained in the case of Bugmy. The evidence before the court is that it is your 'inability to move on from the relationship' with [Ms Black] as well as your 'drug abuse and inability to manage stress' provide an explanation for your violence.[8]
As the emphasised sentence demonstrates, the judge did give weight (in the sense of moderation to the applicant's moral culpability) for his deprived background in a general sense. However, the judge was not satisfied that the applicant's background was, comparatively speaking, as deprived as that of the appellant in Bugmy - and necessarily factored that into his consideration. On the other hand, on the evidence, the judge was not satisfied that it was clear that the applicant's childhood deprivation explained the particular offending so as to reduce his moral culpability in a specific sense.[9] There was no error in approaching the Bugmy issues in this way.
Leave to appeal in respect of ground 2 is refused.
[17]
A ground of manifest excess will only succeed if it can be demonstrated that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[10] It must be shown that it was not reasonably open to the sentencing judge to come to the conclusion he did if proper weight was given to all the relevant circumstances of the offending and of the offender.[11] It is a stringent requirement, difficult to make good.[12]
The applicant contends that the sentences imposed on each charge, the orders for cumulation made, and the consequent total effective sentence were manifestly excessive on the above basis. He contends that the total effective sentence was plainly unjust, did not comply with principles of totality and parsimony, did not give sufficient regard to the overlapping nature of some of the charges and did not give sufficient weight to mitigating factors which the judge recognised in the Reasons or in argument on the plea. Those mitigating factors comprised the applicant's early guilty plea during the COVID‑19 pandemic, deprived background, PTSD diagnosis, lack of significant prior convictions, experience on remand - he was stabbed in the neck in custody - and significant attempts at rehabilitation while on remand by completing many available courses. We have factored each of these matters into account in considering the manifest excess ground and are not persuaded that the total effective sentence is outside the range of sentencing dispositions available to the judge.
The applicant endeavoured to support his manifest excess contention by attacking the components of the total effective sentence. The applicant first attacked the individual sentences and amounts of cumulation on charges 2, 4, 5 and 7. Those charges concern the threats to kill or inflict serious injury and the Commonwealth charge of using a carriage service to menace Ms Black. Charge 2 involved numerous threats to kill Ms Black over a five day period. Charge 4 involved a further threat to kill Ms Black. Charge 5 involved a threat to inflict serious injury on Ms Howard. Charge 7 involved a threat to kill Mr Black in the context of the attempted arson and intentional damage to Mr and Mrs Black's home. These were not isolated threats but part of a continuous pattern of conduct over six days.
[18]
The employment of violence, almost invariably by disappointed males, whether directed against the person or property of a former or desired partner to express anger or as a form of retribution in consequence of a relationship failure or perceived rejection simply cannot be tolerated. Insofar as they are able to do so, through the sentences handed down for such conduct, the Courts must endeavour to deter those who may be motivated to act in this way. Accordingly, those who engage in such behaviour must, save in the most unusual of circumstances, anticipate the imposition of condign punishment.[16]
[19]
[1] To ensure that there is no possibility of identification of the victims of the offending, this judgment has been anonymised by the adoption of pseudonyms in place of certain names.
[20]
[2] No order was made for cumulation on this charge, but the practical effect of the orders with respect to the order in which the Federal and State sentences were to be served resulted in 4 months of cumulation.
[21]
[3] The overall total effective sentence does not appear in the Record of Order, but is stated by the sentencing judge in DPP v [Clarke] (County Court of Victoria, Judge Rozen, 16 August 2022) at [136] ('Reasons').
[22]
[4] The s 6AAA statement does not appear in the Record of Order, but is stated in the Reasons at [139].
Leave to appeal refused on all three grounds: (1) no failure to assess objective gravity of charge 6; (2) Bugmy principles were considered and applied appropriately by the sentencing judge, who concluded background did not meet Bugmy threshold; (3) sentences and cumulation were not manifestly excessive and lay within the range of available dispositions.
The applicant walked to the dining room window which was also at the front of the house, used the metal pole to strike the window and yelled out, '[y]ou're fucking dead'. He kept repeating he was going to kill Mr Black and burn the whole family alive. He took out the meat cleaver and used this to continue to smash the window.
Mr Black came to the window armed with a stick and tried to push the applicant away. The applicant lit the butane gas cannister and attempted to set the window curtains alight. Mr Black pulled the curtains away from the applicant (Charge 8: Attempted Arson). The applicant yelled out 'come here you fucking dog' and paced back and forward hitting the window with a knife or the meat cleaver. He was heard yelling, 'I will kill you, I will tie you up' and 'I'll burn the fucking place down, I'll kill you all' (paragraphs [32] to [36] contain particulars of Charge 7: Make Threat to Kill).
The applicant then struck a water tank with the meat cleaver and yelled to Mr Black, 'come outside' (paragraphs [32] to [37] contain the particulars of Charge 6: Intentionally Damage Property).
The applicant noticed that he was being filmed by a neighbour and yelled out, 'stop fucking filming or you're going to get involved'.
The applicant threw the metal pole onto the carport roof, collected his backpack and began walking away. As he walked away, he yelled out, 'I'm coming for you cunt, just remember that'.
The applicant was arrested by police approximately 200 metres from Mr and Mrs Black's home.
On seeing police, the applicant threw the backpack into the front yard of a nearby property. He walked towards police with his hands raised and he was arrested.
Police attended at Mr and Mrs Black's address and located a black metal pole on the roof of the carport, a black handled knife under a wooden bench and a red handle located underneath the broken front window. Police observed that the entire front window of the address was shattered, as was the dining room window. Lacerations were also visible on the water tank.
The applicant was interviewed by police and he made the following comments:
The applicant's contentions in this regard centred on a comparison of the offending in this case with that in two other cases considered by the judge, namely, Marrah v The Queen[13] and Lim v The Queen.[14] In Marrah, the accused pleaded guilty to a charge of threat to kill in the context of other domestic violence, including rape. He held a knife to his partner's throat and threatened to kill her. A sentence of 5 years' imprisonment on the threat to kill charge was reduced to 3 years by this Court. In Lim, this Court upheld a sentence of 20 months for threat to kill in the context of a drug-fuelled violent rage by the applicant in which he had violently assaulted his former partner's father. Each of these cases involved, as here, a threat to kill in the context of family violence. The applicant placed particular reliance on the fact that the threats to kill in those cases were made face to face rather than, as for most of the threats here, by text and voice message. On the other hand, the applicant acknowledges that the threat to kill Ms Black's father (the subject of charge 7) was, practically speaking, made face to face - albeit while the applicant was outside threatening and attempting arson of Mr Black's house.
In our view, there is nothing to be gained from an examination of these cases, which differ markedly from the circumstances of this case. Here, the threats against Ms Black and her friend, Ms Howard, were voluminous, persistent, extremely vile and, as their victim impact statements show, extremely traumatic for them and have had lasting consequences. As to the threats against Mr Black, the judge correctly took account of Mr Black's victim impact statement in which, among other things, he describes the impact of the offending against him and his wife as including a decision to sell the house in which they have lived for 45 years because they no longer feel safe there. That is an understandable reaction to threats to kill in the circumstances of this case. In our view, the individual sentences, and the total effective sentence for these charges of 3 years and 5 months, were well within the range of sentencing options reasonably available to the judge.
Next, the applicant contends that a sentence of 2 years' imprisonment (with 6 months cumulated on the head sentence) was manifestly excessive on charge 8 - attempted arson. The applicant accepts that the judge was correct to treat the fact that the arson was made in the context of family violence, threats to kill and at a time there were persons present in the property - including the applicant's own son - as aggravating factors. However, the applicant contends that his offending was 'a spontaneous and unsophisticated example of this offence'. On this basis, the applicant contends that there was no basis for the judge to impose a sentence which was greater than those imposed for other attempted arson cases. We do not agree. The attempted arson occurred in the context of family violence, in the presence of Ms Black's parents and her eldest son, and while the applicant was in the course of a frenzied attack on the parents' home while armed with a meat cleaver, knives, a metal pole and a butane gas canister. Given the items taken by the applicant to the home, there was clearly a degree of premeditation and planning. The judge correctly characterised this offending as an egregious example of a serious offence. Viewed in context, the sentence of 2 years was well within range.
The applicant also contends that the sentences for intentionally damaging property (charges 3 and 6) were manifestly excessive - 2 years' imprisonment on each charge with 6 and 5 months cumulation respectively. Charge 3 concerns damage to Ms Black's property. The applicant contends that the value of the property damaged was, while not specified, not significant and that this was a relevant factor in assessing the gravity of the offending.[15] The applicant acknowledges, however, that the items the subject of charge 3 included those of sentimental value to Ms Black and that the offending against her property was committed out of spite and in circumstances of family violence. Charge 6 concerns the damage to Mr and Mrs Black's home in the violent rage described above. The respondent contends that the sentences and cumulations were reasonably open.
Viewed alone, while the offending which is the subject of charges 3 and 6 was serious, the sentences imposed were, although stern, within range given the context of the offending.
Finally, on the rolled-up charge of common assault, the applicant contends that the sentence of 18 months' imprisonment (4 months cumulation) was manifestly excessive in circumstances where Ms Black suffered 'no discernible physical injury'. We disagree. As the judge said, headbutting is a 'particularly nasty' mode of assault. The sentence on this charge was, while stern, within the range for three instances of this conduct. The cumulation was lenient.
We conclude our assessment of the manifest excess ground by emphasising that the conduct of the applicant in this case amounted to a sustained course of very serious offending in the context of family violence. Such cases deserve stern punishment. Like the judge, we adopt the statement of Vincent JA in Director of Public Prosecutions v Derby: