Mr Nancarrow, who was a builder, cabinet maker, checked into the Hamilton Caravan Park around lunch time on 24 April 2021, with his female partner and two dogs. After being made to surrender his dogs, he started drinking. He was a heavy drinker and consumed something in the order of about 3.5 litres of wine over about three hours. He recalled walking to the toilet block with his partner at some point in the evening, but nothing else until he woke up in hospital after [the applicant's] assault.

Whilst Mr Nancarrow does not recall what else he did, it is clear from the evidence of the people in the nearby cabin that at some point, he was wandering about trying to find his caravan. This group consisted of five men of differing ages, who had also checked into the caravan park that day. They had travelled from across the state in order to attend a motorbike race the next day. Early in the evening, when it was still light, Mr Nancarrow approached their cabin and started talking to them about motorbikes. He had a drink bottle of alcohol with him. He told them he had had 'a blue with his missus'.

One of them, Ryan Farley, described Mr Nancarrow as follows:

• He was fairly drunk, like, he was definitely drunk. He could barely stand up. Like, he was leaning against the wall of the veranda of the cabin talking to us, but he seemed like a really nice - nice bloke.

And a bit later on he said this:

And then he just said he was going to go find his caravan, but he couldn't remember which one it was. We asked him if he needed a hand doing it. He said 'No, I'll be right'. And then that was it. He wandered off.

Sometime later, when it was dark, Mr Farley was out the front of his cabin when he heard what sounded like a bat, repeatedly hitting concrete and then screams of help. Another member of the group, Andrew Cottier, described the sound as like two metal poles banging. Mr Farley alerted the people inside the cabin and all five ran over to where the noise was coming from, only a short distance away. Using their mobile phones as torches, the group saw Mr Nancarrow lying on the ground near the rear wheel of [the applicant's] caravan. He was helpless and posing absolutely no danger to [the applicant]. [The applicant was] standing over him with, as Mr Farley put it, 'a metal pole just whacking him'. Mr Nancarrow was yelling for help and begging you to stop. He was also moaning and possibly had his hands up to protect his head.

The group yelled at [the applicant], whereupon [the applicant] stopped and ran back to the front of his van. Some of the group followed to ensure [the applicant] did not leave and [the applicant] shook [his] pole at them from the door before going inside.

One of the group, Michael Smythe, administered first aid to Mr Nancarrow while his son, Connor, called an ambulance. This was at 8.13 pm.

[The applicant] also called Triple 0 from inside [his] van. This was at 8.15 pm. [The applicant was] on the phone for several minutes and told operators variously that somebody had just broken into [his] caravan, that there were 10 of them outside and that 'they_'_ had broken [his] caravan window and that 'they' were breaking into [his] caravan and smashing it up at that very moment, none of which was true. [The applicant] later told attending police that Mr Nancarrow had 'just smashed up the whole caravan' which was not only also untrue, but was an attempt by [him] to justify what [he] knew to be unjustifiable. [The applicant] had savagely beaten Mr Nancarrow for no good reason and [he] knew it.[2]

1. The sentencing judge rejected the applicant's account of events, as shown in the following paragraphs.

[The applicant] gave evidence that [he was] inside watching television when [he] heard banging and voices outside [his] caravan. The voices said things like 'go that way, yeah that'll be open'. [He] noticed the curtain of [his] previously closed window blowing in and went outside to investigate, taking [his] pinch bar with [him]. [He] saw people everywhere and one of them, Mr Nancarrow, ran at [him]. [He] hit him with the pinch bar, but [Mr Nancarrow] just kept charging at [him] aggressively, trying to punch and kick you, no matter how many times [he] struck him.[3]

Suffice to say I found [the applicant's] evidence incredible. I do not accept that there were many people outside your caravan prior to [him] striking Mr Nancarrow. I do not accept that [Mr Nancarrow] charged at [him], or that [Mr Nancarrow] had been trying to break into [his] caravan, or even that [Mr Nancarrow] damaged [his] window. There is nothing in [Mr Nancarrow's] history to cause me to think he did any of that. [The applicant's] account of [Mr Nancarrow] repeatedly charging at [him] was Monty Pythonesque in its ludicrousness. It was, I am satisfied, complete nonsense. Similarly, the rest of [the applicant's] evidence was, I am satisfied, a fabrication to justify [his] actions. The only thing I do accept is that [the applicant] heard a noise of some sort, which caused [him] to investigate.

1. Mr Nancarrow was very badly injured as a result of the applicant's conduct. Her Honour stated:

Forensic physician Dr Rachel Marr outlined Mr Nancarrow's injuries, which included scalp lacerations, multiple small puncture wounds on his hands and wrists, fractures to his head and facial bones, bleeding to the scalp and in and around his brain, multiple rib fractures, a haemothorax and pneumothorax, a fracture to his shoulder blade, and multiple fractures in his wrists, hands, fingers and right leg. There was no evidence of any injury to Mr Nancarrow's internal abdominal organs.[4]

1. Her Honour stated that she could 'not determine precisely how many times [the applicant] struck Mr Nancarrow, as eyewitness accounts varied between over 40 to less than 10'. She added:

Dr Marr opined that the minimum number of separate blows required to account for the various injuries was five and I am satisfied that you delivered at least that many. Regardless, it was a horrific and brutal attack, which not only caused serious life threatening and life changing injuries to Mr Nancarrow, but profoundly affected those who witnessed it. Mr Farley described it as 'one of the most brutal things I've ever seen'. ...

... Mr Nancarrow was ... airlifted to the Alfred Hospital, because of the severity of his injuries. He ... was admitted to the intensive care unit of the Alfred Hospital. He was determined to have post-traumatic amnesia and required surgery on both hands. ... Mr Nancarrow still has no memory of the incident.

In hospital, Mr Nancarrow developed deep vein thrombosis. This was treated with blood thinners once the doctors were confident that the bleeding in his brain was not going to extend further. ... On 24 May 2021, he was transferred back to Hamilton Hospital where he stayed for approximately two weeks primarily for rehabilitation. ...

1. As will be seen, the plea hearing took place over two days. The prosecutor and the applicant filed written submissions. The prosecutor tendered a victim impact statement. The applicant tendered the Psychiatric Report of Associate Professor Sullivan dated 19 January 2024 ('Sullivan Report') and also his Supplementary Psychiatric Report dated 23 January 2023 ('Supplementary Sullivan Report'). Dr Sullivan also gave evidence at the plea hearing. A medical report from Ravenhall Correctional Centre dated 3 April 2022 was also before the judge.

1. According to the judge's sentencing reasons[5] the applicant was 56 years old at the time of the offending. He reported to Dr Sullivan that he had an unhappy childhood and had been sexually abused as a child. He was estranged from his siblings and his parents were dead. He struggled at school, which he left aged 15. He divorced after two years' marriage and has had periods of homelessness. He has a daughter with whom he has limited contact. At the time of the plea hearing, the applicant had not worked for more than 25 years. Having been assessed as ineligible for a disability support pension, he survived on the jobseeker allowance. He had previously worked in factories, timber mills and renovating houses, and had owned at least one farm and traded in sheep and cattle.
2. At the time of sentencing the applicant suffered from multiple conditions, including asthma, possible emphysema, irritable bowel syndrome, eczema, and industrial deafness, tinnitus and was missing all but four teeth. He was not diagnosed as having cognitive impairment but Dr Sullivan assessed his cognitive function in the 'borderline to low average' range. Dr Sullivan noted that he suffered from 'rigid thinking' and considered his low intellectual functioning was likely exacerbated by chronic cannabis use. Dr Sullivan diagnosed the applicant with 'severe substance use disorder involving cannabis and recurrent depressive disorder of mild-moderate severity, currently in abeyance with medication'. The applicant admitted to sometimes disproportionate outbursts and that, as a young person, he had displayed 'aggressive and disordered behaviour'. Dr Sullivan concluded, and the sentencing judge accepted, that the applicant likely has 'a significant mixed personality disorder, including paranoid, schizoid, and antisocial traits' and that this had 'likely impacted all aspects of his life'.

Objective gravity of the applicant's offending and moral culpability

1. The sentencing judge found that the applicant's offending was a 'serious example of a serious offence'. Her Honour noted that he had armed himself with an iron bar and locked his caravan door 'before going around the back of the van to investigate'.[6] In her Honour's words:

[The applicant] then used this iron bar to savagely beat a defenceless and vulnerable man. After he fell to the ground, [the applicant] struck him again and again, only desisting when other people intervened. [The applicant] had absolutely no reason to strike [the victim] in the first place and even less of a reason to continue to strike him when he was on the ground. Inherent in the offence is the causing of serious injury, but the injuries [the applicant] caused were not only life threatening and extensive, they have had lasting consequences for [the victim].

1. Dr Sullivan opined that the applicant's personality disorder was causally associated with the offending, predisposing the applicant to be suspicious, easily angered, and disproportionately aggressive.[7] He also considered that the disorder likely impacted the applicant's capacity to think clearly and make rational choices during the incident, although it did not affect his understanding of wrongdoing or 'obscure' his intent.[8] Under cross-examination, Dr Sullivan maintained his opinion regarding the applicant's diagnosis and its relevance. He described the applicant's personality disorder as moderate to severe and opined that, even if the applicant's account of events was false, the disorder compromised his ability to deal with the situation. Dr Sullivan considered that the applicant's personality made it likely that he would have felt threatened, not necessarily physically, but in at least a broad sense of believing that someone was seeking to do the wrong thing by him in some way.[9]
2. The judge was satisfied that the applicant lied to the police, the jury and Dr Sullivan about what happened, and this indicated an appreciation of wrongdoing. Her Honour accepted, however, that his personality disorder contributed to the offending as Dr Sullivan described and that this reduced his moral culpability 'somewhat'. Her Honour accepted Dr Sullivan's evidence that, for the applicant to have reacted as he did, he 'likely felt threatened' and 'that [his] ability to react appropriately was compromised, even if as [he] must have realised ... [the victim] was not armed and posed no threat. Her Honour added that:

I am satisfied ... beyond reasonable doubt, that [the applicant] immediately recognised that [he] had done the wrong thing and that [he had] been trying to cover up for it ever since by lying.[10]

1. The sentencing judge noted that, in his victim impact statement, the victim described feeling extremely jumpy and nervous since the assault. Her Honour noted that Mr Nancarrow was struggling to come to terms with the changes in his life brought about by his injuries and regularly consulted a doctor in relation to his mental health. Her Honour also noted that his social life had ceased; he resorted to alcohol to cope with his feelings; and had body aches, sleepless nights, and difficulty performing daily and work tasks, such as writing, gripping, and operating machines.[11]
2. The judge highlighted that the victim, who was a builder and cabinet-maker by trade, had lost his occupation. He could only engage in labouring work, resulting in a significant reduction in his income, compounded by unpaid leave for medical and court reasons. Her Honour found that the victim doubted he would recover and that he was, frustrated and worried about his future and recovery prospects.[12]

1. The sentencing judge accepted that she was required to consider current practices. Her Honour observed that the most recent Sentencing Advisory Council Statistics indicated that 95% of people sentenced for ICSI between 1 July 2017 and 30 June 2022 received an immediate term of imprisonment, ranging from months to 14 years, with five to six years being the most common. Her Honour noted that the 'wide disparity of sentences is reflective of the wide spectrum of seriousness of the offence';[13] and that while sentences in comparable cases were generally more useful as a guide, she had found none 'truly comparable' to the present case.[14]

1. According to the judge's sentencing reasons, the applicant had been before the courts on three prior occasions for assault and once for damaging property and resisting police. He had been 32 and 46 years old at the time of the first two assaults, and was fined on both occasions. He was 51 years old at the time of the third assault in 2017, and received a suspended sentence. Her Honour also noted that, prior to 2017, he had a history of dishonesty, drug, and driving offences.[15]
2. The sentencing judge concluded that the current offending represented 'a significant escalation of violence and criminality'. Her Honour stated that '[t]o the extent your personality disorder explains your conduct ... it gives cause for concern', because this disorder might lead to future violent reactions to perceived threats. Her Honour was not entirely persuaded by the submission that his age and physical condition mitigated the risk to the community. Her Honour observed that the applicant had kept 'a large iron bar within the confines of a small caravan, just in case [he] might need it';[16] and that, although Dr Sullivan's evidence was that aging often improves maladaptive behaviours in people with personality disorders, Dr Sullivan had acknowledged this did not appear to be true in the applicant's case. While Dr Sullivan's evidence was that the applicant's poor health might offer some protection, he had accepted that the applicant's personality structure would likely lead to further problematic situations. Her Honour noted that Dr Sullivan had recommended psychological and pharmaceutical treatment, but that the applicant's behaviour in custody indicated that he was not amenable to treatment.[17]
3. The judge also noted the applicant's lack of remorse and persistent lying about the incident.[18] As to the applicant's rehabilitation prospects, her Honour said that:

When combined with your personality disorder and attitude to treatment so far your complete and utter lack of remorse, does not bode well for your future. I could not describe your prospects as good, or even reasonable. At best, they are fair and that is only because of your age and health.[19]

1. The sentencing judges' statement about delay is set out below at paragraph 28. I shall not refer to it further here.

1. The sentencing judge determined that Verdins[20] limb five was engaged and took this into account in fixing the applicant's sentence. Her Honour accepted that the applicant's time in custody would continue to be harder on him because of his personality disorder, for the reasons given by Dr Sullivan.

1. On this topic, her Honour affirmed that '[f]or crimes of violence such as [the applicant's], general deterrence and denunciation are paramount sentencing considerations'. Her Honour considered specific deterrence was relevant given the applicant's history and attitude to his offending; and that '[t]o the extent [the applicant's] personality disorder require[d] a moderation of those principles ... the need for community protection is correspondingly increased'.[21]

Ground 1: Whether the sentencing judge erred with regard to the principle of delay

1. This question arises in the following circumstances. The incident of offending occurred on 24 April 2021. The applicant was found guilty on 13 October 2023. He was sentenced on 1 May 2024. He had been remanded in custody since his arrest on 24 April 2021.

1. In written submissions at the plea hearing, the applicant cited Mackie v The Queen,[22] in support of his submission that:

Although perhaps not a weighty factor, the nearly 3-year delay between the date Mr Dennert was arrested (24th of April 2021) and the anticipated date of his sentence should also be taken into account in mitigation. The court can readily accept that a delay of this length, with a sentence of unknown duration hanging over his head, has been a source of ongoing anxiety for Mr Dennert.

1. In relation to the matter of delay, the judge stated:

Ms Dixon [counsel for the applicant] submitted I should take into account the three-year delay between arrest and sentence. I accept that [the applicant has] had this matter hanging over [his] head for all that time and no doubt, it has been a worry, but this delay was largely brought about by [his] decision to run a trial. [He was] entitled to do that, but [he] can hardly complain of the delay it has caused. I give this delay little weight.[23]

1. In written submissions in support of this application, the applicant referred to a number of cases in support of his submission that it was an error of principle to diminish the weight to be afforded to the matter of delay on the basis the delay was mostly attributable to the applicant's 'decision to run a trial'.[24] Referring to Rodriguez v DPP (Cth),[25] the applicant submitted that, having the matter hanging over his head for a significant period had cause him significant anxiety and uncertainty, and that he was entitled to have the delay taken into account in mitigation without the matter being diminished because he had run a trial.
2. His case was, so the applicant submitted, clearly distinguishable from Arthars where the applicant determined to stand trial 'in the face of an overwhelming prosecution case, and then at the door of the court' pleaded guilty and unsuccessfully sought to rely on delay in mitigation.[26] He also submitted that it was distinguishable from Bradley v The Queen[27] where the delay arose from the applicant's absconding. Rather, this was a case, so the applicant submitted, in which he had done nothing that could properly be regarded as engaging in 'deliberate delaying tactics'.[28]

1. The respondent submitted that there was no error apparent in the judge's determination to attach little weight to the mitigatory effect of delay. The respondent argued that, for delay to be taken into account as mitigatory, the applicant had to show that, by reason of the delay, there was unfairness to him or that there was rehabilitation. The respondent submitted that while a sentence may be reduced in recognition of the fact that the matter has been 'hanging over the offender for an unduly long time, causing anxiety',[29] there was no 'automatic discount' for delay in every case.[30] Further, the respondent contended that whether delay was undue was 'essentially a matter of degree to which common sense will be applied'.[31] While accepting the applicant was not to be penalised for exercising his legal rights, the respondent emphasised that the delay in this case was unexceptional.[32] The respondent contended that in this case 'the delay existed in large part' because of the way the applicant's case was conducted; and referred to the fact that, on the plea, delay was not raised by the defence in oral submissions and little was made of delay in the applicant's written submissions. The respondent submitted that there was no basis for the sentencing judge to take the matter of delay further than she did.

1. Significant delay between the time an offender is charged and eventually sentenced can be a strong mitigating factor.[33] There are two limbs upon which the effect of delay is considered: unfairness and rehabilitation.[34] Unfairness concerns the anxiety arising from having a charge hanging over an accused's head. Rehabilitation concerns the progress the accused may have made towards rehabilitation during the period of the delay.[35]
2. I accept that an accused is not to be punished for his decision to run a trial, but the applicant was not punished in this way here. Further, neither party suggested that the delay in this case was exceptional: there is indeed nothing to indicate that any delay was out of the ordinary. The Sullivan Report did not, moreover, indicate that the applicant suffered from any serious anxiety or stress while being held on remand. On the contrary, the Report stated that the applicant considered that 'he was managing adequately in prison'; at most, he was 'irritated' by finding himself in prison', having 'promised himself when he was 15 that he would never go to prison'. There was no evidence that he had progressed during this period towards rehabilitation. On the contrary, the sentencing judge found that he had shown absolutely no remorse[36] and that he had been uncooperative in receiving treatment to aid in his rehabilitation.[37] In this context, the sentencing judge found the applicant's prospects of rehabilitation at best fair only because of his age and ill health. Bearing all this in mind, it is unsurprising that the applicant's written submissions on the plea acknowledged that delay was 'perhaps not a weighty factor' and that neither delay nor rehabilitation featured in the oral submissions made at the plea hearing on the applicant's behalf.
3. In the circumstances of the case, there was little more that the sentencing judge could do beyond giving some 'little' weight to the fact that the applicant had had the matter hanging over his head for three years, presumably occasioning him some worry. Her Honour's statement that 'you can hardly complain of the delay' 'largely brought about by your decision to run to trial' must be understood in this context. The applicant was not being punished for bringing his matter to trial. Rather, there was nothing before her Honour to indicate that the applicant in fact satisfied the conditions that allowed delay to be given more substantial mitigatory weight.
4. For the above reasons, the applicant's first ground is not reasonably arguable.

Ground 2: Whether the sentence imposed on charge 1 is manifestly excessive

1. The applicant accepted that, in order to establish that the sentence imposed on him is manifestly excessive, he must show that 'the sentence imposed was wholly outside the range of sentencing options available to the judge'.[38] The applicant accepted that 'the circumstances of the commission of ICSI are very variable and, as a consequence, sentences imposed for the offence vary widely'.[39] The applicant also accepted that the impact on the victim was significant.
2. In written submissions, the applicant referred to the following mitigatory matters:

(a) the Verdins principles, including limbs 1 (reduced moral culpability) and 5 (burden of imprisonment), having regard to his moderate to severe personality disorder;[40]

(b) his health issues as a 59 year-old with a history of cardiomyopathy;[41]

(c) the apparent lack of premeditation (which the sentencing judge apparently accepted[42]); and

(d) the applicant's relatively limited (albeit relevant) prior criminal history;

1. While acknowledging that the sentencing judge found that his rehabilitation prospects were only fair,[43] the applicant relied on DPP v Hermann[44] for the proposition that offenders should be given access to the support services and specialised treatment on which their rehabilitation depended. He also noted that, as in Hermann, his personality disorder, which was found to be causally associated to the offending,[45] was not of his making.
2. The applicant submitted that the table provided to the sentencing judge on the plea fortified the submission that the sentence imposed on him was outside the range that was reasonably open. Particular attention was drawn to Nicholls v The Queen[46] and Hope v The Queen; Pua v The Queen.[47] The applicant also relied on the following data from the Sentencing Advisory Council's SACStat research:

(a) For Intentionally Causing Serious Injury, in the five years to 30 June 2022 there were 125 charges dealt with in the Higher Courts, with the median sentence 5.5 years' imprisonment. In 2021-22, the average sentence was 5.5 years' imprisonment.[48] > > (b) For the aggravated offence of ICSI in Circumstances of Gross Violence (also with a maximum penalty of 20 years' imprisonment), in the five years to 30 June 2022 there were 27 charges dealt with in the Higher Courts, with the median sentence 7.5 years' imprisonment. In 2021-22, the average sentence was 8.6 years' imprisonment.[49]

1. The respondent emphasised that the question with respect to this ground was 'not whether a different sentence could have been imposed, but whether it was reasonably open to the sentencing judge to impose the sentence that they did'.[50] The respondent submitted that there was nothing in the sentencing judge's reasons that indicates a failure to have proper regard to matters in mitigation, or that anything has gone 'obviously, plainly or badly wrong in the exercise of the sentencing discretion'.[51]
2. The respondent relied on Carbis v The King,[52] Dhal v The King,[53] Lukudu v The King,[54] and Pihlgren v The King,[55] contending that:

In respect of current sentencing practices, her Honour had regard to the most recent Sentencing Advisory Council Statistics of the higher courts. Her Honour noted the wide disparity between 1 July 2017 and 30 June 2022 which ranged from a number of months to 14 years which was likely reflective of the varying seriousness of the offence, some of which may have involved guilty pleas and others a discount due to the pandemic.

The head sentence represents 50% of the maximum penalty which is not indicative of manifest excess given that this is a serious example of a serious offence.

1. Ground 2 can only succeed if the total effective sentence imposed was wholly outside the range of sentencing options available to the sentencing judge. It has been said that it must be shown that something has gone 'obviously, plainly or badly wrong' in the exercise of the sentencing discretion.[56] As this Court explained in Clarkson v The Queen:

That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy.[57]

1. It is evident from her Honour's sentencing reasons that the sentencing judge had careful regard to the principles set out in Verdins,[58] particularly limb 1 (reduced moral culpability) and limb 5 (burden of imprisonment).[59] Her Honour expressly accepted that the applicant's personality disorder made his time in custody more difficult, and that this engaged the fifth limb in Verdins.[60] Her Honour also accepted that the applicant's personality disorder contributed to his offending as Dr Sullivan described, and that this reduced his moral culpability.[61] This led her Honour to accept that the applicant's personality disorder required a moderation of some sentencing principles, including general deterrence and denunciation. Against this, however, her Honour found that his criminal history and his attitude to his offending gave rise to a need for specific deterrence;[62] and that having regard to his personality disorder, the need for community protection was correspondingly increased.[63]
2. Further, the sentencing judge clearly had regard to the applicant's health and age. These considerations not only figured in her Honour's discussion of the applicant's risk of reoffending but more particularly they figured in her assessment of the applicant's prospects of rehabilitation.[64]
3. As already noted, however, the sentencing judge found that the applicant's offending was 'a serious example of a serious offence'. The applicant properly did not challenge this assessment of the gravity of his offending. As her Honour noted, before leaving his caravan, the applicant had armed himself with an iron bar and, so armed, gone out to investigate. He had set upon his victim with the bar, and continued to hit him with it even after the victim had fallen to the ground. The applicant stopped only after other people intervened. The victim was seriously injured and has continued to suffer from the attack. Amongst other things, he has been unable to pursue his occupation as a builder or cabinet maker.
4. There were other matters that also tended against the applicant: her Honour found that his criminal history, though 'relatively limited', showed a 'preparedness to assault when the occasion arises'; and the offending with which she was concerned 'represent[ed] a significant escalation of violence and criminality'. There was, moreover, what the judge described as the applicant's 'utter lack of remorse' for his offending and his disinclination to accept treatment to assist in rehabilitation.[65]
5. Reference to the statistical data is of limited assistance in this context, since much depends on the circumstances in each case - and these differ widely from case to case. The applicant referred to Nicholls v The Queen[66] and Hope v The Queen; Pua v The Queen.[67] The respondent referred to Lukudu v The Queen,[68] Carbis v The Queen,[69] Dhal v The King,[70] and Pihlgren v The King.[71] However, none of these cases is truly comparable to this case. Such assistance as they provide is limited.
6. Ultimately, when the judge's sentencing reasons are considered in their entirety, they do not show that something has gone 'obviously, plainly or badly wrong' in the exercise of the sentencing discretion.[72] Reference to statistical data and other cases does not change this perception. Having regard to her Honour's reasons and the circumstances of the case, I am not persuaded the sentence imposed on the applicant was one that was not reasonably open to her Honour to impose in the exercise of her sentencing discretion.
7. For the reasons stated, Ground 2 is not reasonably arguable.

1. It follows from the reasons stated above that the application for leave to appeal is refused.

[1] See DPP v Dennert (County Court of Victoria, Judge Carlin, 1 May 2024), [6]-[11] ('Reasons').

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

[22] [2022] VSCA 28, [33]-[34].

[24] R v Merrett, Piggott and Ferrari [2007] VSCA 1; (2007) 14 VR 392, [34]-[35]; [2007] VSCA 1 ('Merrett'); Arthurs v The Queen [2013] VSCA 258; (2013) 39 VR 613, [27]; [2013] VSCA 258 ('Arthars'); R v Tezer [2007] VSCA 123.

[25] [2013] VSCA 216; (2013) 40 VR 436, [36]; [2013] VSCA 216.

[27] [2017] VSCA 69, [124].

[28] Compare Chandler v The Queen [2010] VSCA 338, [18].

[29] Citing R v Nikodjevic [2004] VSCA 222, [22] ('Nikodjevic').

[30] Citing Nikodjevic; Merrett, 400-1.

[31] Citing R v Idolo, Fulvio [1998] VicSC 176 (21 April 1998), 13.

[32] Citing Merrett; R v Cockerell [2001] VSCA 239; (2001) 126 A Crim R 444, 10; [2001] VSCA 239; Tones v The Queen [2017] VSCA 118; and Stafford v The King [2022] VSCA 229.

[33] See for example, Merrett, [34]-[35]; and Merryfull v DPP [2023] VSCA 244 ('Merryfull').

[34] See for example, Merryfull, [44]-[45].

[38] Citing Rohen v The King [2024] VSCA 1, [123] ('Rohen').

[39] Citing Nash v The Queen [2013] VSCA 172; (2013) 40 VR 134, [55] (Priest JA); [2013] VSCA 172.

[40] Referencing Applicant's Submissions on Plea Following Trial dated 23 January 2024; Further Submissions on Plea Following Trial dated 27 March 2024; Sullivan Report, [70], [74]-[75] and an addendum report dated 23 January 2024, [2].

[41] Referencing the Applicant's Submissions on Plea Following Trial dated 23 January 2024, [30].

[44] DPP v Hermann [2021] VSCA 160; (2021) 290 A Crim R 110, 135 [112]; [2021] VSCA 160.

[45] Sullivan Report, [70], [74]-[75].

[46] [2016] VSCA 250.

[47] [2018] VSCA 230.

[48] Sentencing Advisory Council, SACStat, Causing serious injury intentionally, Crimes Act 1958 (Vic) s 16, Higher Courts sentencing outcomes, 1 July 2017 to 30 June 2022.

[49] Sentencing Advisory Council, SACStat, Causing serious injury intentionally in circumstances of gross violence, Crimes Act 1958 (Vic) s 15A(1), Higher Courts sentencing outcomes, 1 July 2017 to 30 June 2022.

[50] Citing Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, [89]; [2011] VSCA 157; Ayol v The Queen [2014] VSCA 151, [30]; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, [127]; [2010] VSCA 350; Young v The Queen [2016] VSCA 149, [128]; Wan v The Queen [2019] VSCA, [36]; DPP v Macarthur [2019] VSCA 71, [57]-[59].

[51] Citing Young v The Queen [2016] VSCA 149, [128].

[52] [2023] VSCA 285.

[53] [2023] VSCA 289.

[54] [2019] VSCA 248.

1. [55] [2024] VSCA 47.

[56] See for example, Rohen, [123].

[57] [2011] VSCA 157; (2011) 32 VR 361, [89]; [2011] VSCA 157.

[66] [2016] VSCA 250.

[67] [2018] VSCA 230.

[68] [2019] VSCA 248.

[69] [2023] VSCA 285.

[70] [2023] VSCA 289.

[71] [2024] VSCA 47.

[72] See for example, Rohen, [123].