Cross v The Queen [2019] VSCA 310

Ms A Hogan, Acting Solicitor for Public Prosecutions

1 Amanda Cross, the applicant, is aged 36 years.[1] She has five children, four of them under five years of age. Her children are Charley, aged 11; Kalais, aged four; Chevy, aged three; Aasher, aged two; and Leiland, aged nine months. The applicant's former partner, Luke Moyle, is the father of the four youngest.

2 Significantly, the four youngest children were all born with neutropenia, a serious blood condition; and the applicant's daughter Charley recently has had some psychological difficulties. The applicant, who has been in custody since 11 October 2019, has been refused permission to have her baby reside with her in prison.

3 The applicant is presently in custody pursuant to a sentence of imprisonment imposed upon her in the County Court on 11 October 2019 for attempting to pervert the course of justice.[2] She pleaded guilty to that offence on 5 September 2019; and, after a plea hearing which proceeded over three separate days (5 and 16 September, and 2 October), was sentenced to six months' imprisonment, to be followed by a community correction order ('CCO') of two years' duration. Conditions of the CCO require the applicant: to undergo treatment, including testing for drug abuse or dependency; to undergo any mental health assessment and treatment as directed by the Regional Manager; and to participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. There is also a condition that she not associate with 17 named individuals connected with her offending.

4 An important feature of the plea made by counsel on the applicant's behalf was claimed family hardship. The sentencing judge, however, was

drawn to conclude that there is nothing in the material placed in front of me that persuades me that the hardship to [the applicant's] family following on from [her] incarceration would be 'exceptional' as that phrase is understood and as I have attempted to explain it.

5 The applicant has sought leave to appeal against her sentence on a single ground that contends that the sentencing judge 'erred in concluding imprisonment of the [applicant] would not give rise to exceptional hardship to the [applicant's] children'.

6 In our opinion, the applicant has not made out that ground. We would refuse leave to appeal.

7 The applicant's offending may be briefly summarised.[3]

8 In October 2016, members of the police Echo Taskforce commenced an investigation into the Comancheros Outlaw Motorcycle Gang ('OMCG') and an associated gang known as the Last Kings. At the centre of police investigations was the drug dealing syndicate operated, controlled and directed by Robert Ale. Omid Said was a member of the Last Kings who worked closely with Ale. Said had his own group, which included Corey Hayes, Matthew Leftley and John Vave. The applicant was a confidante.

9 In the early hours of 12 October 2016, Hayes and Leftley committed an aggravated burglary at premises in Mount Eliza, where a motorcycle and keys for two Audis and a Nissan Patrol were stolen. A few days later, on 16 October 2016, Hayes returned to the property with Vave. They stole a black Audi Q7 vehicle and a white Audi Q3 using the keys that had been taken on 12 October.

10 On 20 October 2016, Victorian members of the Rebels OMCG travelled to Canberra for a motorcycle run, so that nobody was present at their Southeast Chapter Clubhouse, located in a former factory in Dandenong South. Said had accepted the mission of burning down the clubhouse. By arrangement, Vave, Said, Hayes and Leftley drove to the clubhouse, with Vave driving the black Audi Q7, stolen on 16 October. Once there, at Said's direction fuel was poured around the clubhouse. The black Audi Q7 was used to ram the roller door of the factory, before fuel was poured over it, setting it alight. A fire then took hold which completely destroyed the factory, together with five Harley Davison motorbikes and other items.

11 In the early morning of 21 October 2016, the applicant rang the news desk at Channel 7, informing them of the blaze and stating that it would be of interest to the news outlet as breaking news. She did not identify herself and quickly ended the call.

12 On 10 November 2016, the applicant and Said had a coded conversation where the success of the arson attack and other matters were discussed.

13 The next day, on the morning of 11 November, Corey Hayes, who had been staying at the applicant's home, was found by police outside her home in Cranbourne North, slumped unconscious and drug-affected in the driver's seat of the white Audi Q3 stolen on 16 October 2016. Realising that police could link the white Audi back to the attack on the Rebels clubhouse, the applicant became involved in arrangements to petrol-bomb the vehicle. At 8:52 am, the applicant contacted Vave by text message telling him, 'emergency, emergency, emergency', and then that, 'They just got lil fella and white one', a reference to Hayes and to the white Audi. She told Said in an intercepted communication beginning at 9:28 am that she had 'someone coming past to petrol bomb it as we speak in my drive, out the front of my house. ... I'm trying to have it destroyed as we speak'.

14 The applicant tried to calm Said, assuring him that Hayes would not have given up his name, so that she would have time to 'do what [she had] to do'. She indicated that as soon as possible she would get somebody to the hospital where Hayes had been taken. It seems plain that the applicant was advising Said that she would arrange for the destruction of the Audi Q3, so as to prevent its use as evidence in any prosecution for the clubhouse arson.

15 Vave and another, Matthew Butler, drove with others to a street next door to the applicant's. At 9:44 am, she sent a text message to Vave which read, 'Do it now do it now'. (There were also further voicemails and exchanges between the applicant and Vave that supported the charge of attempting to pervert the course of justice.)

16 A short time later, Butler and Vave got out of their vehicles and one of them threw a bottle filled with petrol and an improvised wick at the Audi vehicle, which was then being guarded by police until a tow truck arrived. The wick fell out of the petrol bomb, however, and the attending officers were splashed with petrol. Fortunately, the petrol did not ignite.

17 The applicant was interviewed by police on 10 January 2017, but denied any involvement in the offence. She was again interviewed on 14 March 2017, and told police that Said used to sell her drugs, and that the boys listened to her (a fact which led Said to try to get her to work for him). Once more she minimised any involvement in the offending.

18 At the conclusion of a contested committal, on 28 November 2017 the applicant pleaded guilty to one charge of attempting to pervert the course of justice and a plea date was set in the County Court for 26 April 2018.

19 Thereafter, the applicant indicated that she would not be pleading guilty and that the matter would proceed to trial. A trial date was set for 22 October 2018, which was later vacated and refixed for 4 February 2019. At the end of January 2019, the applicant again indicated that she would plead guilty. On 1 February 2019 the applicant formally entered a plea of guilty and the trial date was vacated. A plea hearing was fixed for 29 July 2019. There had been several adjournments to enable enquiries and arrangements to be made for the settling of her children and also to see if she would be admitted into the mother and baby unit at the Dame Phyllis Frost Centre, a maximum security women's prison.

20 At the time of the offence the applicant was aged 33 years. She was then residing with her partner, Luke Moyle, together with Hayes and three children.

21 The applicant did not complete Year 10, and in her late teens went to live with her grandmother. She did part-time work as a dog groomer for two years, before working in a plastics factory for three and a half years. When the applicant was in her 20s, she again moved in with her grandmother, who had been diagnosed with terminal bowel cancer, and cared for her until her death in August 2008.

22 In 2006, the applicant commenced a Certificate III in Disability Studies through Mission Australia, and she went on to complete her Certificate IV in Disability Studies. Apart from a short period of maternity leave in 2008, she worked in this field until November 2014. At the time of sentence, she supported herself and her family with a Centrelink family allowance.

23 The applicant's criminal history includes five appearances in the Magistrates' Court between October 2004 and January 2016, involving charges of recklessly causing injury, unlawful assault, wilful damage, criminal damage and driving offences, but the penalties imposed seem to indicate that the prior offending was towards the lower end of seriousness.

24 Chevy was four months old when the applicant committed the present offence, and both Aasher and Leiland were conceived and born after the applicant was charged.

25 It seems that within a couple of months of Chevy being born the applicant started smoking methamphetamine, having postnatally developed generalised anxiety and depression. At the time of the offence the applicant was regularly using methamphetamine with Moyle's associates.

26 Shortly after being interviewed by investigators, on 3 March 2017 a protection application was issued with respect to the applicant's children. They were placed on an interim accommodation order in home-based care for a month, and then were the subject of a family reunification order. As part of drug testing required by the Department of Health and Human Services ('DHHS'), the applicant and Moyle initially tested positive for amphetamine and methamphetamine, but all subsequent tests were clear. The sentencing judge accepted that the applicant had not used drugs since the children were placed on the order and she was released on bail.

27 In July 2018, the applicant and Moyle moved in with Moyle's father in Maryborough with the four eldest children (Leiland not yet having been born). Charley then suffered a traumatic event, for which she has received counselling (a matter to which we will return).

28 Moyle was arrested and remanded in custody in July 2019. The applicant's relationship with him has ceased. As at the time of sentence, however, Moyle's mother helped the applicant with the care of the children, and the applicant and her children remained living in the property owned by Moyle's father.

29 The birth of the youngest child, Leiland, in March 2019, was traumatic. Following an emergency caesarean the applicant developed posterior reversible encephalopathy syndrome, a swelling on the brain. This is a complication from pre-eclampsia and is life-threatening. The applicant was admitted to intensive care and placed on life support for two days, being discharged from hospital one week later. Leiland spent time in the special care unit before he was discharged. We will later return to the applicant's psychological trauma resulting from Leiland's birth. (As we have indicated, the applicant has been refused permission to have her baby reside with her in prison.)

30 Counsel for the applicant on the plea sought a CCO. She submitted that the offending should be viewed as a spontaneous response to a situation in which the applicant found herself, the offending occurring over a very short period of time. At the time of the offending, counsel submitted, the applicant was stressed by the pressures of motherhood and an unsettled infant. Through use of drugs and associated drug connections, the applicant had become involved with associates that were 'out of [her] league'.

31 The applicant's counsel submitted there should be some moderation or reduction of her moral culpability, since there was a sufficient link between the applicant's poor decision making and her depression, and the offending. Propositions five and six of Verdins[4] were engaged.

32 Counsel for the applicant submitted that she has positive prospects for rehabilitation, given her family connections, abstinence from drugs and limited criminal history. It was submitted that the plea of guilty, although late, had utilitarian benefits.

33 As we have indicated, the centrepiece of counsel's plea was family hardship, which counsel submitted was exceptional.

34 The prosecutor submitted that the offending was serious, and that denunciation, deterrence and just punishment were important. Only an immediate term of imprisonment, the prosecutor submitted, would sufficiently address all sentencing purposes. The prosecution did not accept that the applicant's imprisonment would impose exceptional hardship upon her family.

35 It is unnecessary to set out the sentencing judge's thorough reasons in any detail.

36 His Honour accepted that the applicant's offending was of relatively short duration. The judge found, however, that the evidence did 'not establish any sufficient connection between [her] mental state at the time of [her] offending and the offending', or any 'serious risk of imprisonment having a significant adverse effect upon [her] mental health'. These findings were not challenged on this application.

37 With respect to family hardship, the judge accepted that the separation of the applicant's children from their mother, and their necessary placement with their maternal grandmother, 'will cause them great distress and anxiety'. He also accepted that the applicant's 'separation from [her] children will weigh heavily upon [her] and that in consequence prison will be more burdensome for [her]'. With respect to the baby, Leiland, the judge also accepted that 'there is potential for damage arising from the separation of a young, pre-verbal child from their mother', but was not persuaded that the hardship to the applicant's family following from her incarceration would be exceptional.

38 In a very attractive oral argument - which departed significantly from the filed written case - counsel for the applicant[5] submitted that, in his reasons for sentence, the judge had failed altogether to explain how the trauma experienced by the eldest child, Charley, and her psychological state, bore on the issue of family hardship. Further, counsel submitted, apart from noting that the four youngest children suffered from neutropenia, the judge does not appear to have given that factor any weight. Ultimately, counsel submitted that, had the judge given proper weight to Charley's circumstances, the children's neutropenia and the separation of the baby from its mother, the finding that there was exceptional family hardship was inevitable. The judge's finding that the family hardship was not exceptional simply was not open. That being so, the sentencing discretion was unravelled, and this Court should resentence the applicant.

39 Turning first to the children's neutropenia, the evidence before the judge as to any relevance that condition might have on the issue of family hardship was very thin. Thus, Dr Fiona Best, a consultant forensic psychiatrist who had assessed the applicant, in a report dated 26 July 2019 stated that:

Ms Cross reported that her 4 younger children were treated for neonatal alloimmune neutropaenia (low white cell counts) at birth resulting from the production of maternal IgG (mother's antibodies) to her children's white cells at birth. The condition resolved over a period of months for three of her children. Ms Cross reported that her youngest child has required medical intervention as the condition has not resolved spontaneously.

At the time of the offending, Ms Cross's post-natal depression and anxiety, her worry about her baby (who had reflux and a reported neutropaenic syndrome) and illicit drug use are likely to have impacted on her ability to think clearly and her judgment was likely to have been impaired as a consequence of these factors.

40 Dr Best gave evidence on the plea which tied the applicant's suggested impaired mental functioning at the time of offending to three things: her illicit drug use; her post-natal depression and anxiety; and her worry about her baby, who had reflux and 'a reported neutropaenic syndrome'. Beyond Dr Best's evidence, however, it seems that there was nothing before the sentencing judge detailing any impact that the children's neutropenia may have had upon them, or, for that matter, upon their mother. So far as we can gather from the material put before the judge, the sole relevance of the neutropenia was its presence in a constellation of factors bearing upon the applicant's psychological state. There was nothing before the judge to indicate that neutropenia caused any ongoing hardship for any of the children.

41 As we have indicated, the evidence suggested that the applicant's eldest child, Charley, had suffered some trauma, the nature of which it is unnecessary to set out. She had been in engaged in counselling with Ms Jane Kelly since 25 February 2015. By the time Ms Kelly gave evidence on the applicant's plea, she had conducted 13 counselling sessions with Charley. The applicant, Ms Kelly said, is Charley's 'primary attachment figure, and as such the person who is best placed to support her outside of counselling sessions'; and Charley looks to her 'for stability and support and comfort' and 'to help her emotionally regulate'. Ms Kelly said that she had seen Charley 'improve quite a lot over the course of counselling', but that she had regressed when faced with the prospect of her mother's incarceration. Her evidence included the following:

Yep, so I'm already seeing ... what I consider to be a regression ... from the progress that she was making ... and I know that another - or I believe that ... another traumatic experience such as ... her mother being incarcerated is going to, um, mean that it's not ... likely that, um, she will be able to get back to that place of - of making some progress ... that we were in.

42 Ms Kelly also gave evidence that there was nobody to 'step in' to take the applicant's place, save for Moyle's mother, Heather Moyle, who has 'a conflictual relationship' with Charley, and she said that

there's no one who is ... an adult that she can feel safe with, and ... her level of distress is ... that high ... and there are a number of significant adverse childhood experiences that she's had up to ... now. So ... in my opinion that's what's exceptional.

43 It is clear that the judge understood and accepted Ms Kelly's evidence. In his reasons for sentence, his Honour summarised Ms Kelly's evidence as follows:

She spoke of Charley exhibiting high levels of distress due to the combination of trauma she is currently facing, one of which was the prospect of your incarceration.

Ms Kelly's evidence was that there was risk of Charley regressing from the improvements she had made in counselling if you were to be incarcerated. She also noted that Charley has a conflicted relationship with Heather Moyle, Luke Moyle's mother. Ms Kelly told the Court that you had supported Charley in attending sessions ... and that there is no other person that could provide the safety and care that Charley requires at this time.

44 With respect to the situation confronting the applicant's children, counsel for the applicant called Ms Karen Sutherland, a senior child protection practitioner employed by the DHHS, to give evidence. Ms Sutherland had visited the applicant at her home on 19 July 2019, partly to discuss 'concerns' that the DHHS had, 'but also to meet with her to discuss her application to have baby Leiland in prison with her'. Between that first visit and when she gave evidence on 16 September 2019, Ms Sutherland had observed the applicant with her children on a number of occasions, and she had spoken to Charley (on 3 September 2019). Ms Sutherland had also spoken to Heather Moyle, who was 'prepared to reside at the home in Maryborough to care for the children for a short basis if need be.[6] In the course of her evidence, there was the following exchange:

HIS HONOUR: Before you move on from Charley, Ms Sutherland, if I may, mothers commit crimes, all right, as a given, and sometimes mothers go to prison. The fact of a child who's old enough to have a sense of what's going on in the world, Mum is being charged with a criminal offence, that in itself can increase a child's anxiety, can it not?---Absolutely.

And of course, the father has been separated. He apparently, I'm told, is now languishing on remand. Presumably that's something that ... doesn't help a child's anxiety?---I totally agree, Your Honour.

All right. I mean, is there anything that you've observed from your brief interaction with Charley that you would say is exceptional or out of the ordinary?---No.

From a child who, unfortunately, and I stress that so everyone can hear me, who unfortunately is confronted with the prospect of both parents being imprisoned?---No, I believe that her anxiety is entirely normal for those circumstances.

Thank you very much for your candour, Ms Sutherland.

45 So far as the baby, Leiland, was concerned, Ms Sutherland had noted that he is 'a very happy infant, who responds very well to his mother'. She had 'also observed the start of backwards and forwards conversation between him and [the applicant]'.

46 During the course of the plea - which unfolded over several days - it became clear that the applicant would not be permitted to have the baby, Leiland, live with her in prison. In a letter under the hand of an Acting Commissioner from the Department of Justice and Community Safety, dated 25 September 2019, the applicant was advised as follows:

As part of the application process, Corrections Victoria seeks advice from the Living with Mum Steering Committee. The Committee has advised me that on the basis of a number of factors, including exposure of your children to drug use and family violence, it is not supportive of your son residing with you in prison at this point in time.

The Steering Committee believed it to be in your son's best interests to remain with his siblings in the care of his paternal grandmother should you receive a term of incarceration, and for you to continue to work with Child Protection to support you in maintaining contact with your child.

I regret to advise that I have accepted the Committee's recommendation, and have declined to approve Leiland residing with you in prison.

47 Counsel for the applicant submitted to the sentencing judge with some vigour - as the judge put it, 'most ably and persistently' - that the applicant's separation from Leiland (and the next child) constituted exceptional family hardship. She relied heavily on the opinion of Dr Best, who, when discussing the applicant's anxiety disorder, had made the following observations:

Ms Cross's impaired mental functioning as a consequence of her anxiety disorder means that imprisonment may have the capacity to weigh more heavily on her than on an individual without those difficulties, and imprisonment may lead to deterioration in her mental health over time. Additionally separation from her children is likely to have a detrimental effect on her mental health. Ms. Cross has been separated from her children twice previously, the first when she placed her daughter Charley in the care of her mother when she was extricating herself from a violent intimate relationship and the second when she was remanded in March 2017. On both occasions DHHS were involved, but are not involved currently (other than to assess her for the Mother Baby Program at DPFC). Ms Cross's youngest child is 4 months old and her fourth child is 1½ years old. Both children are at a critical stage in their development, and disruption of secure attachment bonds will occur with separation. This has potential lifelong detrimental consequences for the children's mental health and potential consequences for Ms Cross's mental health also. Ms Cross has also recently acted proactively with her eldest child ... Her eldest daughter may suffer if deprived of her mother's support as her primary care giver at this time.

48 Finally, on the day the judge was to pass sentence, 11 October 2019, counsel informed him that the applicant had been arrested, charged and fined for unlawfully assaulting Heather Moyle, who 'was going to take over the care and responsibility of the five children', a little over a week earlier. Counsel told the judge that, under a protection order, the DHHS had taken the care of the five children; and, as a result of an interim accommodation order, the five children were now with their maternal grandparents in regional Victoria. These further submissions prompted the judge to make the following observations:[7]

During the course of the plea, [the applicant's counsel] submitted with great force and persistence that should Ms Cross lose her liberty, there would be a consequential hardship upon her children which, in all the circumstances, were exceptional. In the course of argument I made it clear that in my view, having read the authorities ... the bar is very high, and tragically mothers who have young children commit crime, and mothers with young children go to prison.

Now, the mother and baby unit at DPFC [Dame Phyllis Frost Centre], an application was made, I think with my encouragement, and that application was refused. ...

[The prosecutor] was very firm in his submissions that separation of children from their parents, whilst of course unfortunate, and the court does not intend to sound inhumane in that regard, but that is just one of many flow-on consequences from crime. The many victims. But nothing that was brought to my attention persuaded me that the hardship to the children was exceptional.

Now it seems, throughout all the arguments or all the submissions, I should say, no mention was made of a maternal grandmother being capable or able to take the children. Now it seems that as a result, as a result of interpersonal violence, the maternal grandmother has not only come onto the scene, but is looking after all five children. So it's not clear to me how the substitution ... of a paternal grandmother for a maternal grandmother alters, or has the capacity to alter my finding as to whether or not exceptional hardship has been made out.

... Had the children now been left unattended in some Dickensian fashion, to fend for themselves with no adult or parent, then it seems to me that that might, legitimately, at least lead to the question of exceptional hardship being reopened, not necessarily to a different determination.

But what I've been told, and I just want to be sure I have it right, we have the prospect of a maternal grandmother looking after the children ... we have a maternal grandmother and maternal grandfather. DHHS sometimes comes slowly to the piece, but presumably there's going to be no family reunification sorted if Ms Cross is not at liberty.

49 In his reasons for sentence, the judge cited passages from Esposito,[8] Markovic[9] and Wirth[10] (which had been cited in Markovic). At the risk of repetition, the judge accepted that, in relation to the baby, Leiland, there was the potential for damage arising from his separation from his mother. His Honour was drawn to conclude, however, that there was nothing in the material placed before him that persuaded him that the hardship to the applicant's family following on from her incarceration would be 'exceptional' as that phrase is understood.

50 Prior to Markovic, there was a school of thought that, notwithstanding that exceptional family hardship had not been demonstrated, there was still room for the extension of mercy in appropriate cases. Thus, in Carmody,[11] the applicant had pleaded guilty to being knowingly concerned in the importation of heroin with her husband. Having found that the sentencing judge had erred in the way in which he dealt with the applicant's co-operation, necessitating the applicant's resentence, the Court took into account the effect of the applicant's incarceration on her four year old child. He had suffered convulsions when separated from her, but subsequently had been allowed to live with her in prison. Tadgell JA (with whom Winneke P agreed) said:[12]

I cannot regard this as a case where exceptional circumstances have been shown. Nevertheless, this Court is in a position - as the learned sentencing judge necessarily was not - to learn something, with less than satisfactory material, of the actual impact that the applicant's incarceration has had on her son. We cannot act as though exceptional circumstances have been shown, for they have not been shown. We can, however, show some mercy, tempering the wind to the shorn lamb. I think this is a case in which to do it: compare Miceli [1997] VSC 22; (1997) 94 A Crim R 327 [R v Miceli [1997] VSC 22; [1998] 4 VR 588]. A similar attitude has been taken in the English cases of Vaughan (1982) 4 Cr App R (S) 83 and Haleth (1982) 4 Cr App R (S) 178. In each of those cases an amendment of sentence was made on appeal so as to achieve the immediate release of a prisoner in order to allow a sick child or children to be cared for.

51 As Markovic has since made clear, however, there is no residual discretion to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional. The Court said:[13]

We have concluded that the established common law position should be reaffirmed. Our reasons may be summarised as follows:

1. Reliance on family hardship - that is, hardship which imprisonment creates for persons other than the offender - is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the 'exceptional circumstances' test is to limit the availability of the court's discretion to exercise mercy on that ground.
3. Accordingly, there can be no 'residual discretion' to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the 'exceptional circumstances' test has no application.

52 The Court observed that: first, it is almost inevitable that imprisoning a person will have an adverse effect on the person's dependants;[14] secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime; thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less; and, fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.[15] For these reasons, it is only in the exceptional case, where the plea for mercy is seen as irresistible, that family hardship can be taken into account.[16]

53 As we have indicated, the material concerning the children's neutropenia did not go very far (if anywhere at all). Moreover, so it seems to us, any hardship that might be caused to Charley and Leiland (and the other children) did not extend beyond the kind of hardship that might be expected when children of their ages and in their situations are separated from their mothers. We think it to be almost inevitable that the children of an imprisoned mother will suffer some hardship. Without more, however, the mere hardship to be expected from such separation cannot amount to exceptional circumstances. We make clear, that we do not ignore Dr Best's opinion that there is the 'potential' for lifelong detrimental consequences for the two youngest children's mental health as a result of separation from their mother. Whether any adverse consequence will eventuate, however, remains to a large extent in the realms of speculation.

54 None of the three matters relied upon to establish exceptional family hardship was capable of doing so, whether considered alone or in combination. The judge was correct to find that exceptional family hardship had not been demonstrated.

[1] Her date of birth is 7 October 1983.

[2] Attempting to pervert the course of justice is a crime at common law. By virtue of s 320 of the Crimes Act 1958 it attracts a maximum penalty of 25 years' imprisonment.

[3] See Butler v The Queen [2019] VSCA 132, [9]-[17], where the offending is also summarised.

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

[5] Counsel had neither appeared on the plea nor prepared the written case.

[8] R v Esposito [2009] VSCA 277, [14] (Nettle JA).

[9] Markovic v The Queen [2010] VSCA 105; (2010) 30 VR 589, 591 [3], 591 [5] and 593-4 [13] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) ('Markovic').

[10] R v Wirth (1976) 14 SASR 291, 295-6.

[11] R v Carmody (1998) 100 A Crim R 41.