DPP v Blackney [2024] VCC 1462

'Choking another person is a pernicious and dangerous form of violence. The risk which such conduct entails cannot be ignored when assessing its gravity. Within the context of domestic or family violence, choking represents a chilling exploitation of physical power and dominance.' [2]

1. You ultimately stopped choking her and she was able to get up. Once back in the car you continued to smash up the car, pulling mirrors off and breaking the windscreen. You then drove into a service station. Once inside the victim mouthed the word 'police' to an observant female attendant, who, having silently confirmed with the victim that she needed the police, she then called Triple 0. She should be commended.
2. You then drove the victim around Winchelsea. She was able to convince you to give her back her phone to call her children, who I interpose were 17,12 and just 7 years old, and they were living with her, she being a single mother.
3. When she got the phone she again called Triple 0. You were overheard again yelling at the victim before the call was terminated. She was able to send text messages to friends, including information of the location where she was. Both friends then called the police. A police officer called the victim who pretended it was someone connected with her work, however, she was unable to provide information as to her location before she terminated the call in fear.
4. Around or just before midday on 23 December, police located your car in a dead-end rural road. You, having seen the police, then drove off at high speed through paddocks. You got to the streets of Winchelsea and drove at high speeds, causing the victim great fear. You then stopped the car and you escaped on foot. The victim was able to run to the approaching police, visibly shaken but relieved that she was finally safe. You were arrested some time later in Winchelsea.
5. In your interview with police you gave false denials or explanations that the injuries to the victim were caused when she had a medical event or seizure at an earlier time. You gave some detail, but false or untenable exculpatory answers, while, with respect to many of the allegations as to your behaviour, you claimed to have no or little memory.
6. To be clear; the charges you pleaded guilty to were two rolled-up charges of common law assault, being a charge for each of the days of the instances of your assaults on each of those days, as I have outlined.
7. You pleaded guilty to three charges of reckless conduct endangering serious injury, being the two instances of choking the victim and the one of driving the car at her, and one charge of being a prohibited person in possession of the imitation firearm. There were two summary charges of trespass for each instance of you being in her garage.
8. Your plea of guilty to these charges followed from cross-examination at the committal, case management hearings in the County Court and negotiations with the prosecution that resulted in more serious charges not proceeding.
9. Your plea of guilty will be considered an early one given your plea of guilty came when the charges on the indictment crystallised. I will say more of your plea and remorse shortly.
10. Your crimes had a significant adverse impact on the victim, as she set out in the relevant parts of her victim impact statement. I have taken into account, as I must, the impact upon her of your crimes.
11. She commenced by referring to her life before your crimes. She said:

'Before the incidents and trauma I was a successful single mother who had built a business from the ground up, helping the community. I had had a child at 16 years old and only completed Year 8. From there, I chose a better life, accomplished multiple diplomas and found a job I loved and lived my life helping others.'

'I was a great successful member of society who strived to help the community. I now suffer post-traumatic stress disorder. I have been in and out of mental health hospitals. I no longer work. I am in the process of receiving NDIS myself. I just can't believe how much this destroyed me and my children's life.'

1. She lists things that have affected her, she says:

'I don't sleep. I struggle to leave my room, let alone the house. I have lost my business. My children have suffered greatly, they do not have the same mother that they had before. I have been diagnosed with complex post-traumatic stress disorder, also requiring time in a mental health hospital.'

1. She says she is on medication every day and continues to see a trauma psychiatrist or clinician every week. I was provided with psychological counselling reports from her clinician.
2. She concludes:

'I have no social life any more. I can't talk to people, I have no friends and can only go out into the community in short bursts without having a panic attack and needing to go home.'

1. As referred to already, I must assess the gravity of your crimes and your moral culpability. I will return to the question of your moral culpability when discussing your own deprived upbringing.
2. Taking first the gravity of your offending. As I said at the outset, your crimes subjected the victim, that is your previous partner who you claimed to love, you subjected her to your unrelenting violence. It was sustained and protracted, violent offending. In the context of family violence, the protracted nature of an unpredictable episode of rage increases the fear of the victim as they do not know how and when it will all end.
   1. The fact this violence happened in the victim's home where her children were nearby, aggravates it. She was entitled to feel safe in her home and not be subject to hours of violence, stuck in the garage intimidated by the use of first a hammer and then an imitation handgun, and at points being slammed into a car.
   2. In response to your unrestrained rage the victim tried to reason with you, then she tried to be friendly to you, to promise, which was her first step, promise she would not tell everything to the police. Then she tried to contact the police, escape and run, albeit in a rural setting. She mouthed her need for police to a service station attendant and she contacted friends. All this bespeaks of her lengthy, terrifying ordeal, and it bespeaks of your cruel determination to control her come.
   3. Your resort to the use of frightening weapons to increase the level of intimidation and fear is a very concerning aspect of your offending. As mentioned, your choking of her until she collapsed, and once when she was utterly defenceless on the ground having run from you, attempting to drive at her in the car, certainly elevates what you did in terms of the seriousness of the crime of conduct endangering a person. Each of those crimes committed by you in all the circumstances of this episode, are very serious examples of that crime, save for Charge 3. As to that crime, I am not satisfied you had the imitation weapon for further criminal activity. That type of aggravation is absent here.
   4. Common law assaults being rolled up and committed on two days, over lengthy periods where she was at your mercy are, likewise, serious examples of those offences. Slamming someone's head or face into a car, or into the dashboard of a car, only has to be said for decent minded people to recoil at the dreadful violence involved.
   5. As I have said, your crimes are within a context of the ever troubling setting of a powerful and stronger man hurting a defenceless or easily subdued woman, who had simply decided to end a relationship, as she was fully entitled to do.
   6. The appellate courts of this State have spoken firmly, and all too often over many years, of the scourge of family violence. What has been expressed time and time again is that the courts on behalf of the community will not tolerate family violence of this kind. This intolerance and the denunciation needs to be reinforced by the courts imposing stern punishment.
   7. The starting point in Victoria was the judgment in Pasinas v The Queen[3] delivered over a decade ago in 2014. The court spoke of how the criminal law now, or at that point, properly appreciated the seriousness of family violence. What the court said was:

'Historically perpetrators of family violence were rarely prosecuted. Even when offenders were convicted of such offences, they often received lenient sentences. Fortunately, the criminal law now gives greater recognition to the devastating effects of family violence. It has been recognised that women who are killed by their husband, boyfriend or de facto partner, have frequently been assaulted by them many times previously. This makes both specific and general deterrence very important factors in sentencing men who assault their partner.'[4]

1. In the DPP v Reynolds,[5] a Director's appeal against the leniency of a combination sentence imposed on an accused who had one minor criminal conviction in New Zealand many years ago, and had committed on a single night or over 90 minutes a violence directed to his partner, who notably came to forgive and support him, in that case the Court of Appeal by a majority determined that the combination sentence was manifestly inadequate. In speaking of the criminal law's general condemnation of family violence, the majority wrote the following under a heading 'Family Violence Sentencing Principles'. The court said:

'Regrettably, this is yet another example of appalling family violence which has come before the courts. Family violence is a blight on society which this court 'has been at pains to denounce'.[6]

It is convenient to re-state what this court has said about family violence and how this informs the sentencing process'.[7]

This court in Pasinis held that the key to protecting victims of family violence was:

'...It lies in deterring violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.'[8]

'soon afterwards, and in a similar vein, this Court said in Mercer (a pseudonym) v The Queen:[9]

'This court has said on many occasions that domestic violence will not be tolerated and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this court said recently in Filiz v The Queen[10], offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. The court has made clear, and will continue to make plain, that offending of this kind will attract serious consequences.'[11]

Again, in Kalala v The Queen[12] the court said:

'Trial courts of this State are imposing sentences for family violence with increasing frequency. This court has repeatedly emphasised the need to condemn family violence in line with community expectations. In Filiz v The Queen the court acknowledged the shameful truth that family violence is the leading cause of illness, disability and death among Victorian women aged between 15 and 44.'[13]

More recently in the DPP v Evans[14] this court stated:

'Violence of this kind is alarmingly widespread and extremely harmful. It is never justified. The sentences imposed must convey that message strongly.'[15]

1. And the majority judgment in Reynolds concluded:

'As these authorities make plain, general deterrence, public denunciation, just punishment and community protection, must be the prominent sentencing factors when sentencing for family violence.'[16]

1. In recent months the Court of Appeal again reiterated the sentencing principles as set out in Reynolds. In Dragovic v The King,[17] a judgment delivered on 16 May 2024, the court said:

'Those, (mostly) men, who elect to engage in violent activity within the home can expect little sympathy from sentencing courts. As noted by the court in Reynolds, the authorities make plain that 'General deterrence, public denunciation, just punishment and community protection must be prominent sentencing factors when sentencing for family violence offending.'[18]

'Never have these observations been more resonant than now. The community is highly distressed at the tragic prevalence of intimate partner violence. The court joins in that distress. Those inclined to this type of emotional and physical violence must understand that they will be held to account.'[19]

1. The appellate courts have made clear that in sentencing for family violence offences the sentencing purposes that must be given prominence are denunciation, deterrence and protection of the community.
2. That said, the need to facilitate rehabilitation is not to be overlooked. Indeed, it too can operate to achieve protection of the community via an accused hopefully permanently reforming. Your counsel understandably gave significant emphasis to what he justifiably contended was your positive prospects of rehabilitation. It was not the only point raised in mitigation but many of the points funnelled into, as it were, the need for real weight to be given to facilitating your rehabilitation, as opposed to retributive punishment. The central argument put by your counsel was that as a consequence of your deprived upbringing there ought to be a finding that your moral culpability was substantially lower, which must, in turn, moderate the weight to be given to denunciation and deterrence.
3. Your counsel relied on the gathering of your personal information done by the medico-legal psychologist, Mr Cummins. Mr Cummins confirmed that you are now 27. You were 25 at the time of the offending. You were born to parents who were drug users and drug dealers. They did not parent in any sense of the word as they were concerned with securing drugs to feed their addictions. They committed crimes, and as a consequence both, but especially your father, spent lengthy periods in custody. They separated when you were around nine to twelve years old - it is unclear. Their relationship involved anger and mutual violence and violence towards you. You have three siblings, all who have had significant trouble with police and have been sentenced to imprisonment. Indeed, one brother was imprisoned, when you were remanded recently. Your criminal history is far less significant, certainly than theirs, it seems.
4. You were, in September 2021, before the Magistrates Court for violence directed at an ex-partner's new boyfriend. Thus, it is a matter with concerning relevance to this offending. However, it is to be noted you were not convicted but fined and your case adjourned on condition that you did a men's behaviour program. You in fact did not do that program. But it is important to note that despite your very difficult upbringing and the trajectory to gaol of your siblings, you have had a much less serious forensic history.
5. After your parents separated, your care was taken over by the State. You were in and out of foster care and separated often from your siblings. You told Mr Cummins that at the age of seven or eight you were sexually abused by older cousins. This no doubt scarred you mentally and emotionally.
6. Your schooling was fractured. You were bullied because your parents, especially your father, was well known in the area as a criminal drug dealer and he was disliked.
7. You needed significant help at school and at 16 were assessed as having an intellectual disability. This assessment has been the basis for your receipt of a Disability Pension for many years. It is not said you have a formally recognised intellectual disability that would enliven the principles in Muldrock[20] or allow for a Justice plan. Your lower intellect, nonetheless, remains as a relevant personal attribute that moderates against the punitive sentencing purposes I have mentioned.
8. What you said to Mr Cummins as to your upbringing is important. You said: 'No child should have to go through what I went through.' Your counsel argued your deprived upbringing lead to a conclusion that your moral culpability should be seen as substantially lower. In this regard he relied upon the High Court decision in Bugmy[21] and the application of that decision by an enlarged bench of our Court of Appeal in Herrmanns.[22] He argued that your moral culpability should be seen as, as I have said, substantially lower due to your childhood experience of family violence giving rise to a causal link to you engaging in family violence in this offending - that is, the specific principles as articulated in Bugmy.
9. The prosecution conceded there was, by reason of your circumstances, a role for the application of the general principles of Bugmy but the prosecution argued the material contained in the report of Mr Cummins did not allow for a causal connection between your deprived circumstances and your violence towards the victim to be established.
10. In my assessment, your deprived upbringing is relevant in the sense that you were not given an opportunity to develop internal personal resources, allowing you to think through the consequences of antisocial behaviour. This can explain how you fell into drug use, abuse of alcohol and poor peer influences. However, you have been able to stay away from crime, much to your credit. There is, in my view, a role for the general principles articulated in Bugmy to lower your moral culpability.
11. In my view, what you said about your exposure in your early years, it seems up to the age of nine to twelve, of your parents' violence before you separated, is more problematic. It is very difficult to isolate one aspect of deprivation from others or confine the impact to the years that you were with your parents before their separation. In my view, the sense of abandonment and the quick resort to anger and violence from your parents when they were with you and together, likely has left a mark on you - in the end by a bare margin, and on the balance of probabilities, I consider the specific aspects of Bugmy and Herrmanns apply to further reduce your moral culpability. Thus, there needs to be moderation of denunciation and deterrence because of this lowered moral culpability.
12. That said, and as I have referred to at points in describing the features of your terrible conduct, you did know, or came to appreciate, what you were doing was wrong. Thus, even moderated by the operation of the full principles in Bugmy, your moral culpability remains still significant, requiring weight to be given to denunciation and punishment, as well as deterrence, especially to others.
13. Your counsel argued that on the basis of Mr Cummins' report you would find gaol onerous and your mental health may deteriorate. As I understand it, your counsel did not press this in oral argument, or not as forcefully as it was written. However, I do not overlook that you have, as I have said, been affected by traumatic events as you grew up, and as I have said, they have in combination left a mark on you and one that enlivens some compassion.
14. With respect to whether the effect of circumstances of trauma are such that your moral culpability is lowered by reason of an impaired mental functioning, it seems to me all these matters are connected, and the matters that I have raised in Bugmy are the ones that really are doing the work to lower your moral culpability.
15. There are other factors that were relied on in mitigation as outlined by your counsel. I have mentioned what is, in effect, an early plea of guilty. That plea does express remorse and there were other things you said to Mr Cummins which show you have taken responsibility and regret what you did to the victim. Your plea of guilty has a utilitarian benefit in that the victim was not required beyond the committal to re-live any of the circumstances in a criminal trial.
16. It was put that your remorse and greater insight were foundations for reform. There were other solid signs of you getting your life back to the mainly law-abiding ways you had in the past. On release on bail you complied with, and more importantly, benefited from CISP programs. You connected with the Salvation Army, a drug and alcohol program, and completed a 12 month program, and have in recent times engaged again in what is called a second episode of support. You have made arrangements to do a men's behavioural program, that is one you did not complete at an earlier point. It was put you have been drug free whilst on bail, which is obviously a positive sign and no easy achievement.
17. You have two young children and remain connected to them, although that has been difficult, but you are committed to being involved, as far as you can, in their lives. Your counsel emphasised the importance of you staying away from your immediate family, as well as old associates. It seems you have benefited in terms of stability and being crime and drug free in that better environment. That is one orchestrated by you and again that is to your credit.
18. Your counsel submitted that the combination of factors, that is, the reduced moral culpability and the reduction that should be given to the weight ordinarily attributable to deterrence, together with the array of positive signs of reform, meant that a combination sentence was appropriate. Such a sentence, of course, has elements of the previous punishment in prison, that being 147 days, and further punishment that is available, or would be available, under a community corrections order via unpaid work and being under supervision.
19. Your counsel pointed out such a sentence does have deterrent aspects and you, yourself, have been deterred by your time in prison and the fear of returning. All that said, the most important aspect of a combined sentence would be the enhancement of your rehabilitation in the community, and as I understood it, this was at the heart of your counsel's submission. In this regard he called in aid the sentencing guidelines provided by our Court of Appeal in Boulton v. The Queen.[23]
20. The prosecution submitted that a combined sentence was not appropriate or within range. In essence, the offending was plainly too serious, the impact on the victim was significant and the message of deterrence would not be forceful enough if you had a combined sentence.
21. I had you assessed for your suitability for a community corrections order and unsurprisingly you were found suitable.
22. The tension in your case is those matters that I have just spoken of, that is, the seriousness of your crimes, the impact on the victim, the need to express the community's intolerance and the need that the message of deterrence be unambiguous and operate to make clear to violent men that gaol awaits them if they commit family violence of this order. All this must be to the fore, notwithstanding the matters in mitigation and your prospects of rehabilitation.
23. This type of tension was at the heart of the majority judgment in Reynolds. The majority recognised that a combined sentence was punitive and could be appropriate for serious offending, but the court said:

'That all said, the authorities equally recognise that there are limits to the field of operation of community corrections orders and combination sentences.

The punitive effect of a community corrections order (even of some duration and with onerous conditions) cannot be compared with a gaol sentence. Imprisonment is 'uniquely punitive', principally because it involves 'the complete loss of liberty'. As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing.

It follows that there will be cases where the sentencing court concludes that certain sentencing purposes - typically, just punishment, denunciation and/or deterrence - cannot be sufficiently served by the making of a community corrections order, even with onerous conditions.

The same can be said of a combination sentence, which authorises only short terms of imprisonment (up to one year). A combination order is a less flexible sentencing option now than it was when Boulton was decided (when the maximum length of imprisonment available as part of a combination sentence was two years).

As the level of criminality increases, and the punitive and denunciation sentencing objectives become more prominent in the sentencing calculus, the likelihood that a community corrections order or combination disposition remains open diminishes.

Accordingly, a point is reached where a community corrections order or a combination sentence simply cannot satisfy the sentencing requirements of just punishment, denunciation, general deterrence and community protection.'[24]

1. The majority concluded: 'We think that point was reached here.'[25]
2. In Reynolds there was powerful evidence of remorse, there was forgiveness and rehabilitation, it was important in mitigation in the whole sentencing synthesis. What the majority in Reynolds concluded or reaffirmed was that in sentencing, as the seriousness of the offending increased, the weight to be given to the rehabilitation and other matters personal to an accused must diminish or yield to the sentencing purposes of denunciation, protection of the community and deterrence. The majority said:

'In our view, in this sentencing exercise considerations personal to the respondent, even if powerful, had to play a subsidiary role to the punitive elements of sentencing. There are limits on how far leniency can be extended to someone who has engaged in the level of family violence which occurred here.'[26]

1. My task here confronts the same sort of issues, though there is no sense of identical equivalence. Here, without reciting again the dreadful dangerous and protracted acts of the family violence perpetrated by you, the seriousness of those crimes are such that the sentence must reveal that proper priority has been given to the purposes of punishment, deterrence and protection of the community.
2. Important matters raised in mitigation, including those that lower your moral culpability, must, to a degree, yield. A combination sentence restricted to the 147 days you have spent in custody, or even a further period combined with an onerous community corrections order, would dilute the important punitive purposes of sentencing in this family violence matter - that is, a sentence of about five months that you have done so far, or even longer, as allowed, together with a lengthy community corrections order, would, in my view, over emphasise rehabilitation and mercy and would undervalue denunciation, deterrence, particularly to others, and protection of the community.
3. A sentence of imprisonment alone can still be tailored to facilitate rehabilitation by allowing for the potential for a period on parole. There are no fixed formulas, and whether and when you are released on parole is for others, not the court.
4. You have committed a number of crimes in what I have described as an ordeal for the victim, my sentence must be proportionate to the totality of what you did, no more and no less.
5. I have re-visited the sentences, the orders for cumulation and the total sentence and the non-parole period and I have adjusted so as to be certain, as best I can, that the principles of totality have been met.
6. It is always a grave step to send someone at your age to what, in effect, is your first sentence of imprisonment. It will no doubt be hard, especially as you will be returning to prison, but I have come to the view that there is no other option.
7. Doing the best I can I impose the following sentences:
8. Charge 1, the common assault, you are sentenced to 12 months' imprisonment.
9. Charge 2, the conduct endangering a person, you are sentenced to 14 months' imprisonment.
10. Charge 3, being a prohibitive person in possession of an imitation weapon, nine months' imprisonment.
11. Charge 4, the common assault, 15 months' imprisonment.
12. Charge 5, the conduct endangering a person, 18 months' imprisonment.
13. Charge 6, the conduct endangering a person, 26 months' imprisonment.
14. The summary charge, the first one of trespass, six months' imprisonment.
15. And Charge 2, the summary offence of trespass, four months' imprisonment.
16. I order that three months of Charge 1, four months of Charge 2, two months of Charge 3, six months of Charge 4, seven months of Charge 5 and two months on the first summary offence of trespass be cumulative upon each other and upon the base sentence of 26 months.
17. To be clear; there is no cumulation on the second trespass.
18. The total effective sentence, as I calculate it, is 50 months or four years and two months and I fix a non-parole period at two years.
19. You have done 147 days on remand in custody. This figure having been reckoned I now declare it is part of the sentence that I have just imposed.
20. I will ensure this declaration is entered into the records of the court so that the prison authorities are left in no doubt you have done 147 days of the sentence I have just imposed.
21. Had you pleaded not guilty to the offences and been found guilty of them, I would have imposed a sentence of six years with a minimum term of four years.
22. Are there any other orders.
23. MS MARTIN: A disposal order please, Your Honour.
24. HIS HONOUR: A disposal order will be signed unless there is any opposition to that.
25. MR ROFE: No opposition, Your Honour.
26. HIS HONOUR: So I thank counsel for their considerable assistance.

[1] [2022] VSCA 263 ('Reynolds').

[3] [2014] VSCA 97 ('Pasinas').

[5] [2022] VSCA 263.

[6] Ibid [71], with reference to Edward-Hayes v The Queen [2022] VSCA 76 [29] (McLeish JA), citing Pasinis v The Queen [2014] VSCA 97 [57] (Neave and Kyrou JJA) (citations omitted).

[8] Ibid [73], with reference to Pasinis [2014] VSCA 97 [57].

[9] [2015] VSCA 257

[10] [2014] VSCA 212.

[11] Reynolds [2014] VSCA 97 [74] in Mercer [2015] VSCA 257 [54] (Maxwell P and Beach JA)

[12] [2017] VSCA 223; 269 A Crim R 1.

[13] Reynolds [2014] VSCA 97 [75] reference to Kalala v The Queen [2017] VSCA 223; (2017) 269 A Crim R 1 [59]

[14] [2019] VSCA 239.

[15] Reynolds [2014] VSCA 97 [76], with reference to DPP v Evans [2019] VSCA 239 [84] (Maxwell P, T Forrest and Weinberg JJA).

[17] [2024] VSCA 95

[20] Muldrock v The Queen - [2011] HCA 39 - [2011] HCA 39; 244 CLR 120

[21] Bugmy v The Queen - [2013] HCA 37 - [2013] HCA 37; 249 CLR 571 ('Bugmy')

[22] DPP v Herrmann [2021] VSCA 160; 290 A Crim R 110 ('Herrmann')

[23] Boulton v The Queen [2014] VSCA 342 - 46 VR 308.

[24] DPP v Reynolds [2022] VSCA 263; 71 VR 336. [107]-[111] with reference to Shbaro v The Queen [2022] VSCA 190 [48] (Priest and Walker JJA); Boulton [104]; Hutchinson v The Queen [2015] VSCA 115; (2015) 71 MVR 8 [16]-[17] (Priest JA, Ashley JA agreeing); Sentencing Act 1991 (Vic) s 44(1) & Williams [47] (citations omitted).