DPP v Daniher

1. At the time of the first offence, you were 20 years old. You turned 21 on 2 August 2019, just days before the kidnapping incident on 6 August 2019. Thus far, you have spent most of your 21st year in an adult prison. The victim in this matter is Ms Alexia Fisher[2], was 17 years at the time of the offending. You and Ms Fisher had been in a relationship for three months.

1. In relation to Charge 1, of common law assault on 4 July 2019, the circumstances are that late in the evening, on 4 July, you and Ms Fisher were at her house in her bedroom. You started to argue. She asked you to leave but you refused. You obtained a serrated knife from the kitchen and held it against your arm. Ms Fisher managed to get the knife off you. Next, you obtained a razor and held that against your arm. Again, she managed to take that item from you. Then, you took a set of keys and attempted to cut your arm with them. Once again, Ms Fisher was able to dispossess you. You then grabbed a large kitchen knife and held that out in front of you.
2. Ms Fisher walked towards you, around a bed that was between the two of you. You lunged towards her. She sat down and cried while you continued to scream at her. You said, 'you're staying, you're not going anywhere'. Ms Fisher responded, 'I'll stay as long as you give me the knife'. You handed over the knife and Ms Fisher put it away. You said to her, 'you're not leaving me, you can never leave me'. She said, 'it isn't working Kane, we can't be together'. You then grabbed her by the collar of her shirt and pushed her against the wall a few times. You threw her on the bed. While this was happening, you were saying, 'you're not leaving, you're not leaving'; Ms Fisher was saying, 'I'll stay with you just stop'. The next day Ms Fisher's collar bone was bruised, and she was in pain. She took no photographs of her injury.
3. I turn then to the charges of kidnapping and common law assault on 6 August 2019. At approximately 6 am on 6 August 2019, you called Ms Fisher and you asked her to give you one more chance and to go out to the movies together that day at about 12 pm. She agreed. You picked her up her place, at about 6.30 am, in your Falcon sedan. You took her to a nearby lookout. At the top of the lookout you and Ms Fisher got out of the car. You took her phone from her and you saw a text message from a male friend. The text message read 'was my bed comfy?'. You became angry and you began yelling and screaming at her.
4. You said, 'I can't believe you cheated, we are going to the bridge'. Ms Fisher understood this reference to the bridge to mean an old rickety bridge in a Melbourne suburb. She said to you, 'can we please not, just please leave me alone, can I have my phone back'. You responded, 'not unless you get in the car'. You and Ms Fisher then returned to the car and you got in. Ms Fisher sat in the passenger seat on the edge of the seat with the door open just in case something happened. You threw the phone at her. She closed the car door and sat down normally.
5. She said to you, 'I don't want to be here, can you just drop me home'. You were yelling and you said, 'you've got to watch me die'; and 'you've fucked me up a lot'. You drove to the old wooden bridge. Once you got there, Ms Fisher got out of the vehicle and ran away from you. You chased her and you caught her approximately 50 metres away from the vehicle. You grabbed her by the hood of her jumper and by her hair. You dragged her back to the car. She stopped struggling. She believed she could not get away from you.
6. You then tried to shove her in the back of the car. She resisted by putting her hands against the door. She spun around so her back was against the boot of the car while you continued to try and push her into the car. She kicked you in the groin. You slapped her to the face. She began to cry. You tackled her and threw her onto the ground. You sat down on top of her with all your weight. She was winded by this and cried out in pain. You crouched down beside her and you tried to put your arm around her.
7. After a few minutes you walked around to the front of the car. Ms Fisher stood up and began running away from you. You said, 'I'm going to run you over with the car'. As Ms Fisher was running, she did not look behind, but she could hear the tyres of the car spinning behind her. She was running in the direction of her house. You pulled up the car and you got out and you started running to cut her off. She turned around and she began running back towards the car. You caught her and you grabbed her around the collar and her hair, and you dragged her back to the car again.
8. You said, 'I'm taking you home' and you threw her in the back seat of the car. You then started driving down the main road but instead of going straight to Ms Fisher 's house you turned left down a different road. She asked, 'where are we going?' and you said, 'you'll find out'. You then said, 'we are going to the cops and you're getting a restraining order put against me'. When you arrived at the police station carpark, you grabbed her by the collar and the hair and started dragging her towards the station. She pulled free of you and started running towards a local shopping centre. You did not follow.
9. You went into a local police station and you spoke to Constable Tim Forrester and you gave him some details of your offending. You were told by Constable Forrester to remain at the station for a family violence safety notice to be issued against you. Soon after or later that day police obtained a statement from Ms Fisher and also you were formally arrested by Constable Forrester. You were interviewed about these offences. You made extensive and frank admissions to the offending. Ms Fisher re-enacted the incident for police at relevant locations and she made a further statement. You were remanded in custody for this offending.
10. I turn to Charge 4 being the persistent contravention of a family violence intervention order. On 28 August 2019, you were served with a family violence intervention order made at the Melbourne Magistrates' Court on 23 August 2019 in favour of Ms Fisher. The prosecution opening indicates that that order expires on 22 August of this year. The intervention order prohibited you from, amongst other things, contacting Ms Fisher.
11. On 17 December 2019, you were granted bail not to contact witnesses and to comply with the intervention order that had been made on 23 August 2019. Around 1 January 2020, with some help from a friend, you and Ms Fisher organised to meet. You wanted to express your remorse for the earlier offences. You met at a local shopping centre and later you went to the skate park. After this you began to call Ms Fisher to organise further meetings. You and she met approximately five to eight times.
12. On 12 January 2020, you used your mobile phone to contact her three times. On 13 January 2020, you used your mobile phone to contact her seven times. On 14 January 2020, you used your mobile phone to contact her four times. On 15 January 2020, you used your mobile phone to contact her four times. It is noteworthy that on this day the contested committal hearing was listed, and you pleaded guilty to charges arising out of the first and second incidents. On 17 January 2020, you used your mobile phone to contact Ms Fisher once. On 18 January 2020, again using your mobile phone, you contacted her twice. On 19 January 2020, using your mobile phone you contacted her once. On 20 January 2020, again by mobile phone, you contacted her once.
13. On 21 January 2020, you and Ms Fisher attended a local shopping centre together. When traveling back from the shopping centre, Ms Fisher told you she did not want to be a in relationship with you and she wanted to go home. You stopped the vehicle in a housing estate in Harkness Victoria. You began to scream at her. She left the vehicle.
14. You yelled at her, 'get back in the car you fuckin' idiot'. Ms Fisher attempted to calm you down and she got back in the car and told you she would get back together with you. You then took her back to her address. You also contacted her on this day by mobile phone once. On 22 January 2020 she called you to continue her attempts to end the relationship and the two of you agreed to meet in person. When you were together, she decided not to discuss the relationship as she thought you would become abusive. You took her back to her address after meeting with her. She then called you and said she did not want to be in a relationship with you. You responded by threatening suicide and you threatened to take her dog saying, 'you'll never see Nala[3] again'.
15. Ms Fisher hung up on you; you called her back a number of times until she blocked your phone number. You then used your grandparent's landline which displays as a private number, to contact her. You told her 'I'm gonna do it, I'm gonna slit my wrists' and you also said, 'ow, it really hurt'. She hung up on you and you called back a number of times. She then told you that you needed to comply with the family violence intervention order and to stop calling her or she would report the matter to the police. You continued to call her. On that day you contacted her by phone eight times.
16. On 22 January 2020, she made a statement to the police and you were remanded in custody. On 26 February, the earlier bail was revoked, and you have been in custody since that time.

1. I turn to your guilty plea and the issue of the Doran[4] discount in this case. Mr Daniher, you pleaded guilty to Charges 1 to 3 on the indictment on 15 January 2020 when this matter was listed for a contested committal hearing. No witnesses were required to give evidence. Whilst this was not a plea at the earliest available opportunity, it is still a plea with significant utilitarian value. It saved the community the time and cost of a trial and it has spared the witnesses, particularly the young victim in this case, the ordeal of giving evidence about this matter.
2. I accept your plea to these charges is an indication of some remorse although as pointed out by the prosecutor, Mr Barrington, the extent of your remorse, when you first entered the plea of guilty at the time of the committal, is undercut by the breaches of the intervention order and the bail conditions that were occurring at the time you were entering that plea. You also expressed remorse and shame to your psychologist, Ms Jackson in November 2019 and later went on to persistently contravene the intervention order.
3. You pleaded guilty to the charge of persistently contravening a family violence intervention order at an early stage. You indicated your intention to do so when you received the preliminary brief.

1. In relation to the first group of offences, you took the most unusual step of driving to the police station and telling the police what you had done. It has been submitted on your behalf that I should apply a Doran discount in sentencing you because you provided the evidence to the police that proved the case against you and the matter may never have come to light but for your surrender to police for crimes they knew nothing about.
2. You gave a full account in the record of interview and made very significant admissions. I am satisfied that notwithstanding your later breaches, at that time you were remorseful, and you had insight into the criminal nature of your conduct. The prosecution opening acknowledges that your subsequent resumption of contact with the victim while misguided and entirely inappropriate was initially motivated by an intention to apologise for what you had done. I accept this but I am of the view that it was inevitable that things would deteriorate in the way that they subsequently did.
3. In relation to the Doran discount, the prosecutor submits that your guilt would have been discovered and established at some later time by the victim coming forward and making a statement.
4. The prosecutor further submitted it is relevant that in January 2020 the victim made an unprompted complaint to the police after persistent breaches of the intervention order. Whilst I think it is entirely possible that the victim may have ultimately made a statement about Charges 1 to 3, there is an element of speculation about such a conclusion.
5. In my view it is appropriate to give you very substantial credit for alerting the police to your own offending, thereby triggering an investigation of your conduct and then by making full admissions to that conduct.

1. I turn to the nature and seriousness of your offending. Mr Daniher, your offending was serious, as reflected in the maximum penalties, especially the 25-year maximum penalty for kidnapping, and also its status as a category 2 offence under the Sentencing Act. While no victim impact statement has been submitted in this case, it takes no imagination to understand that the offending, especially the incident on 6 August, would have been alarming and harrowing for the victim. Your offending was an example of family or domestic violence as you were in an intimate relationship with the victim.
2. You behaved in a controlling, violent and obsessive fashion. You were unable to accept Ms Fisher's wishes that she did not want to remain in a relationship with you. The Court of Appeal has repeatedly condemned offences of violence by men against woman in the context of a relationship. In Kalala v The Queen [2017] VSCA 223, the Court of Appeal said in relation to such offending:

'the trial courts of this state, that is the County Court and the Supreme Court are imposing sentences for family violence offences with increasing frequency. This court has repeatedly emphasised the need to condemn family violence in line with community expectations.

'sentencing has long recognised the prevalence of violence by men against women in or after domestic relationships and the importance of general deterrence in such circumstances.'

1. These observations of the Court of Appeal are applicable to your offending in this case, albeit that those observations were made in the context of offending much more serious than this, being an incitement to murder.
2. Your willingness to resume contact with the victim in defiance of the intervention order and the bail conditions, in Charge 4, is concerning, even though your initial purpose was to apologise. As I said earlier, it seems to me that the relationship, such as it was, was quickly heading in the same direction as earlier. You will need to develop the emotional maturity required to cope with rejection in a relationship without resorting to the sort of outrageous behaviour you displayed in this offending.
3. The prosecution submits that this offending was very serious, involving a protracted campaign of manipulation, control and violence against the victim's stated wishes and court orders designed to stop the offending. The prosecution submitted you were motivated by jealousy and a desire to control the victim. Most of this is an accurate assessment of your offending. However, I would not characterise your overall conduct as a campaign, given that it was punctuated by turning yourself in at a police station and going into custody; and the resumption of contact was motivated by your desire to apologise. This is accepted by the prosecution. In my opinion, there is not the continuity of intention throughout the period of the offending implied by the use of the term, 'campaign'.
4. Dealing with the kidnapping offence, Ms Jones, whilst conceding the seriousness of your offences, submitted that the kidnapping on 6 August was motivated or initiated out of the desire to make the victim witness your act of self-harm. No threat was made on the victim's life and that the kidnapping ended with you taking the victim to the police station and reporting your own conduct.
5. As regards to the assault on 6 August 2019, while sustained and reflecting multiple acts, it was committed without a weapon and no injuries were sustained by the victim. The knife that was produced during the assault on 4 July was also produced out of a desire to make the victim witness your act of self-harm. No threat was made on her life with a knife.
6. I accept these submissions; however, in my view, your conduct, making the witness fear you would engage in acts of self-harm, was manipulative conduct designed to stop her ending the relationship.
7. I would observe, as to the kidnapping, that this took place in the context of what was initially a voluntary interaction between you and the victim and involved no planning at all. As far as I can see it was spontaneous. It was of relatively short duration for such offending and it ended with you driving yourself into the police station to report your own conduct. That said, the kidnapping and assault on 6 August 2019 was a serious incident of domestic violence involving extremely erratic behaviour that the victim must have found distressing and very threatening.
8. Physical assaults were inflicted on the victim as represented by Charge 2, the common assault.
9. Your overall behaviour across all the charges was serious and does give cause for concern about how you will cope with relationships in the future. However, the kidnapping incident does lack a number of the features of more serious examples of that offence, often involving weapons, very serious violence, and extended deprivation of liberty frequently occurring against a background of very serious criminality.
10. In my view the objective gravity of the kidnapping offence is at the lower end of the spectrum and in all the circumstances of this case, given your cognitive deficits, your age, your very difficult upbringing involving abandonment and your mental health, there is considerable room for reduction in the assessment of your moral culpability. Subject to your age and principles of rehabilitation, I must give weight to general deterrence and I must denounce your offending. I must also seek to protect the victim in the community at large from this type of criminal offending.

1. I turn to your personal history. Mr Daniher, you were removed from your biological mother's custody at six months of age due to her ongoing substance abuse and you were placed in Department of Health and Human Services care. Your biological father also had significant drug issues and could not care for you. You maintained a relationship with your partner and maternal grandparents, but they were unable to care for you at that time. You were placed with foster parents, John Heppell[5] and Martha Heppell[6], both of whom have been supportive of you during this case and I will come back to their role in your life.
2. Initially that was not to be a permanent arrangement. At some stage, Mrs Heppell became unwell and with five children of their own, including two foster placements, you were returned to temporary care. From the ages of three to seven, you lived in temporary foster homes along with your younger half-sister. On one of these placements where you remained for two and a half years, the foster parents were abusive and apparently you were regularly beaten by one of those foster parents.
3. When you were aged seven and a half, the Department asked Mr and Mrs Heppell to consider taking you back into their care. They agreed and you have remained with their family ever since. The psychological material to which I will return, documents the dysfunction you experienced in your early years prior to permanent placement and the associated abandonment issues you have experienced.
4. I turn to the issue of your cognitive deficits. At the age of nine you were assessed as having an IQ in the borderline range. Non-verbal reasoning was identified as a particular difficulty. At the age of 12 you were assessed as having general intelligence in the bellow average range. You exhibited, 'a tendency to interpret challenging social situations as hostile'. The psychologist treating you said:

'These findings suggest that Kane can be aggressive if frustrated and this tendency is likely to be influenced by mood and thinking difficulties. Kane's challenges in concentrating, planning and self-monitoring and misinterpreting social cues as threating are create situations where he can become frustrated, fearful and angry and his strong emotional responses can be acted out aggressively'.

1. You were assessed by psychologist Ms Lisa Jackson on 4 November 2019, 5 March and 11 May 2020. Reports were provided and have been tendered and marked as Exhibits JS3, JS4 and JS5. The reports of earlier psychologists, Mr Dilleo and Mr Brewer and Lewis and Lewis are marked as JS1 and JS2. Your standard score of 74 for verbal knowledge, on Ms Jackson's assessment, placed you in the below average range, with an age equivalent of 11 years. Your score of 82 on the non-verbal performance placed you in the below average range, with an age equivalent of 16.
2. Ms Jackson considered this evidence of a learning disability and indicated 'this result offers some explanation as to intellectual functioning, associated link with decision making and judgment'. She said your history of chronic mental health problems are reflective of your dysfunctional family history. Ms Jackson went on to say, 'the association between these factors and poor decision making is clear'.
3. In her most recent report, Ms Jackson was of the view that, 'these test results identify problematic areas that include memory difficulties, problems with concentration and decision making, impulsivity or judgment and (indistinct words) association between your functioning and reactive behaviour'. She offers the view that your offending highlights your reduced capacity to communicate effectively, especially regarding interpersonal relationships and 'this has formed the basis of much of his difficulties'.
4. With respect to your vulnerability in custody, she says, 'your age, intellectual functioning and mental health risk reinforce some vulnerability in custody'. She went on to say your 'experience of prison has been particularly arduous' given your vulnerabilities. This is reflected in your placement in a mental health unit. I will come back to other issues in relation to your mental state.
5. I turn now to your employment history. You have a positive employment history, you are four months from completing a three-year horticultural apprenticeship when you were remanded in custody. You started as an apprentice in 2016 when you left school shortly before the end of year 12 and you were working full time from late 2016 until August 2019. This apprenticeship was organised by The Brotherhood of St Laurence to assist young adults of your background. It was part of a Certificate III course where you completed work placements at Bunnings, V.I.P. Gardening Services and Natureform. You were not able to resume your apprenticeship when you were granted bail and regrettably you have lost that opportunity.
6. You have the support of your foster parents John and Martha Heppell and other family members including your siblings and your parental grandparents. When you are released from custody you will live with Mr and Mrs Heppell. They have consistently attended court in support of you and they have both provided character reference to which I have had regard. This family support, together with your employment history and the absence of prior convictions is an important factor in my assessment of your prospects of rehabilitation.
7. You are now aged 21. You are a youthful offender. The principles in R v Mills [1998] 4 VR 235 relating to the primacy of rehabilitation as the sentencing objectives for youthful offenders apply to you. You have no prior convictions and you have now been in gaol for nearly 10 months. In my opinion, the punitive aspects of sentencing in respect of the kidnapping charge have been satisfied to the degree required. I should look to your rehabilitation.
8. Those observations of course are all subject to the application of the provisions of s.5 (2H) of the Sentencing Act. The two periods you have spent on remand reflect your only experience of imprisonment and you have never been placed on any supervisory orders. In my view, given you have no prior convictions, you have a solid employment record and a supportive family, with supervision your prospects of rehabilitation are good.
9. Since 20 March 2020, as part of Corrections Victoria's response to the COVID-19 virus, you have not had visits, you are unable to participate in programs and lockdowns have been prevalent. During your initial period on remand when afforded the opportunity to do so, you completed a number of programs. Certificates have been provided to the court confirming your attendance and participation in those programs and I have had regard to those matters. You have also worked in your unit as a billet.
10. When you were initially admitted into the prison, you were diagnosed with depression and anxiety and you were prescribed medication. You continued this medication while you were on bail and you have continued in the second period of remand to take medication, namely, mirtazapine in a dose of 5 milligrams daily. You were assessed by Ms Jackson as suffering severe anxiety and depression. You have spent the duration of your remand following your initial reception in the mental health unit in MRC because of your status as being at risk of suicide and self-harm.
11. Whilst in the unit you have indicated your desire to continue with mental health treatment. The justice health file confirms that on several occasions you sought out psychological assistance. You have signed up for a number of group counselling programs but all Forensicare programs were postponed in response to the COVID-19 virus. It is indicated you have consistently not met the threshold for individual intervention. You requested to continue engaging with Ms Jackson but this has not been possible in custody. I agree with Ms Jones' submission that all of this represents and obstacle to your rehabilitation as a youthful offender if I was to impose a further period of imprisonment.
12. I turn now to the neuropsychological report of Dr O'Meara which was tendered as Exhibit JS10. The plea in this matter was adjourned until yesterday in order for a neuropsychological assessment to be prepared. That report from Dr O'Meara dated 23 June 2020 was tendered into evidence. Dr O'Meara referred to your Justice Health records, noting the diagnosis of anxiety, depression, intellectual disability and post-traumatic stress disorder.
13. It is worth observing that the notes recorded that on 8 August 2019 you were placed on observations due to self-reported suicidal ideation over the preceding two and a half months in the context of relationship difficulties. Two previous attempts at suicides were noted and a file note suggests that you have issues with abandonment and emotional dysregulation and anger secondary to childhood trauma. As earlier observed, you were placed on medication and your suicide risk was rated as 'moderate'.
14. Dr O'Meara described your full-scale IQ of 73 as 'only mildly fitting typical criteria for a diagnosis of intellectual disability. She said your 'longstanding and stable deficits are likely to reflect a neurodevelopmental disorder with potential prenatal exposure to substances as a possible contributing factor'. She says you have 'difficulty with sustained high-level attention that could be indicative of attention deficit hyperactivity disorder superimposed on intellectual difficulties'. She refers to this as a cognitive impairment.
15. She says in relation to the current offending that it is likely you 'acted impulsively in response to obvious emotional stressors on a background of longstanding issues with abandonment and psychological functioning'. She said 'this hypothesis is supported by the fact that he attended a police station independently and without prompting immediately following the initial offending in order to report his actions and to request an intervention order protecting his ex-partner.
16. Dr O'Meara said this about the impact of imprisonment on your mental health:

'I would be more concerned about the potential impact of the term of imprisonment on Mr Daniher's mental health given his ongoing clinical significant symptoms of depression and anxiety'.

1. She said your symptoms of anxiety are likely to be exacerbated in an intrinsically threatening environment such as a prison, particularly given your history and reported difficulty coping with larger groups.
2. Dr O'Meara also said:

'it is also likely that his longstanding symptoms of depression will be exacerbated by his lack of access to supports and treatment particularly given the current COVID-19 restrictions'.

1. Specifically, you identified difficulty not being able to receive visits from your foster family; not being able to engage in individual psychological therapy; and not having access to group programs in prison. You also reported daily suicidal ideation and an intention to execute specific plans in relation to that. Dr O'Meara recommended regular risk assessments and access to psychiatric treatment in the event of a further period of imprisonment.
2. Nothing that Dr O'Meara says in her report is challenged by the prosecution. I have perhaps said this earlier, but I will repeat it. In my view, the deprivation and abandonment you experienced in your early years along with your cognitive deficits and the depression and anxiety you were experiencing at the time of the offences, left you ill-equipped to deal with rejection in an intimate relationship and contributed to the offending in that way and a reduction of the assessment of your moral culpability is justified.

1. I turn now to the issues arising from the status of the kidnapping charge as a category 2 offence and the limitations imposed by the Sentencing Act in sentencing for such offences. The first issue is whether, if I impose a sentence of imprisonment on the kidnapping charge and a community corrections on one or the remaining charges which are not category 2 offences, I am imposing a combination sentence under s.44 of the Sentencing Act for the kidnapping charge, being the category 2 offence.
2. If s.5(2H) is so constructed, I cannot make such orders unless satisfied that Mr Daniher falls within one of the statutory exceptions. In this case it is argued that he falls within s.5(2H)(e).
3. On behalf of the prosecution, Mr Barrington submitted that s.44(1) of the Sentencing Act governs the imposition of combination sentences not only for single-charge combination orders but also for multiple charge combinations. He fairly conceded that in circumstances where the court is sentencing an offender for a category 2 offence and a separate non-category 2 offence, there is ambiguity as to whether s.5(2H) prohibits the imposition of a community correction order on the non-category 2 offences. He submitted that s.5(2H) is a limitation placed not on a designated offence but on the court that is sentencing the offender for that offence.
4. Ms Jones on behalf of Mr Daniher submitted that such a construction is not warranted. She submitted that restrictions in s.5(2H) apply only to sentences imposed for category 2 offences. She submitted that as a criminal statute, if there is ambiguity, the construction most favourable to Mr Daniher should be adopted.
5. Section 5(2H) excludes a combination sentence as an option 'in sentencing for a category 2 offence' subject to falling within one of the exceptions. Section 44 allows a combination sentence 'subject to any provision relating to the offence'. The reference in both provisions to the sentence to be imposed is to a sentence for an offence, singular. Section 5(2H) could have explicitly provided that combination sentences were precluded for multi-charge combination sentences where one of the offences on the indictment is a category 2 offence but it does not do so.
6. In my opinion, the s.5(2H) limitation does relate to designated offences. It relates to the category 2 offences in the Sentencing Act. In my view, a combination sentence is limited by the s.5(2H) only in relation to a sentence for a category 2 offence or offences. I do not propose to release Mr Daniher on a combination prison sentence and community correction order for the category 2 offence of kidnapping. The proposed sentence is not a combination sentence in the sense of imprisonment and a community correction order on one charge being the category 2 offence, or an aggregate sentence across all the charges including the category 2 offence.
7. There is no provision in the Sentencing Act precluding a community correction order for common law assault or for persistently breaching a family violence intervention order, the offences on which I propose to release Mr Daniher on a community correction order. To construe s.5(2H) in the way submitted by the prosecutor would be to impose limitations on the sentencing discretion in respect of those charges simply because they are on the same indictment as a category 2 offence.
8. If the interpretation argued for by the prosecutor is accepted, it would have the effect that a sentencing judge satisfied that an offender who has served as pre-sentence detention a sufficient period of imprisonment for a category 2 offence and who then imposes a sentence of imprisonment in compliance with s.5(2H) is thereafter precluded from imposing a community correction order on the non-category 2 offences on the indictment in the circumstances where such a sentence is appropriate.
9. In my view, the words of s.5(2H) are clear and the limitation that is stipulated relates only to a sentence for a category 2 offence. To the extent that there is ambiguity in these provisions, I agree that as the Sentencing Act is a criminal statute, I should adopt the construction most favourable to Mr Daniher.

1. If I am wrong in relation to my interpretation of the availability of a community correction order for the non-category 2 offences on the indictment, I am nevertheless of the view that there are substantial and compelling circumstances that are exceptional and rare that justify the imposition of a combination sentence of imprisonment and a community correction order pursuant to s.44 of the Sentencing Act for a category 2 offence, if that is what my orders are considered to be.
2. In determining whether there are substantial and compelling circumstances under s.5(2H)(e), I must have regard to s.5(2H)(c) which directs that general deterrence and denunciation have greater importance than the other sentencing purposes. I must give less weight to the personal circumstances of the offender compared to other matters such as the nature and gravity of the offence and I must not have regard to the offender's previous good character, other than the absence of previous convictions or findings of guilt. I must not have regard to an early guilty plea or the offender's prospects of rehabilitation.
3. Section 5(2I) of the Sentencing Act provides that in determining whether there are substantial and compelling circumstances, I must have regard to Parliament's intention that in sentencing an offender for a category 2 offence, a prison sentence, not including a combination sentence under s.44, should ordinarily be made. I must also have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
4. In the recent case of Farmer v The Queen [2020] VSCA 140, the Court of Appeal made this observation at paragraph 52:

'In many cases, given the type of offences within category 2, a term of imprisonment is inevitable. In some cases, the operation of s.5(2H) will be harsh. In other cases, a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the viewpoint of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided'.

1. In this case having regard to a combination of factors and the cumulative impact of the circumstances of the case, I am satisfied that the offender, Mr Daniher, has shown on the balance of probabilities, compelling circumstances are exceptional and rare that justify the imposition of a combination sentence of imprisonment and a community correction order, if that is what the Act requires, given the structure of the sentence that I propose in this case.
2. The factors that I have had regard to are as follows:
   • the lower objective gravity of this example of kidnapping emphasising amongst other things the offender's very unusual conduct in driving himself to the police station as the end point of the kidnapping offence;
   • the low IQ of the offender, being just above the level of intellectual disability;
   • the deprivation and abandonment in Daniher's upbringing which together with his cognitive deficits and mental health reduce his moral culpability;
   • the age of the offender and the absence of prior convictions, further factors reducing his moral culpability. In this context the offender was just 21 when he first went into prison and as a 21-year-old without prior convictions, he has now been in adult custody for 290 days;
   • the offender's suicidal state on reception to the prison and that he has been suffering anxiety and depression, both noted in the neuropsychological report as being clinically significant, and post-traumatic stress. In this context, I have had regard also to the notes from the Justice Health file;
   • the fact that the offender has spent the substantial proportion of his time on remand in the mental health unit at the MRP because of his status as a suicide risk;
   • the prison conditions arising from the response to the COVID-19 virus including the unavailability of mental health treatment and group programs or any rehabilitative programs and the suspension of visits and the unchallenged evidence of Dr O'Meara in relation to the effect of these restrictions. I note that while this might not be a particularly unusual feature for a prisoner at this moment in time, it is in fact unprecedented, and just six months ago, unforeseeable. Considered against the life of this piece of legislation, these prison conditions are most unusual. In my view the prison restrictions to which I have referred are an unusual aspect of Mr Daniher's incarceration which have increased the burden of his imprisonment in a real and identifiable way;
   • the uncontested evidence in the neuropsychological report of Dr O'Meara, I referred to earlier, concerning the impact on the offender's mental health of a further prison sentence given his significant symptoms of depression and anxiety; and,
   • Finally, that all of the above factors combine to create a very clear need for extended supervision.

1. I turn now to the sentences in this case. In relation to Charge 2 of kidnapping, I sentence you to a period of imprisonment of nine months. In relation to Charge 3 of common assault, I sentence you to a period of imprisonment of three months. In coming to a decision about whether to make any of that sentence cumulative or not, I have had regard to considerations of totality, that the offending in Charge 3 occurred as part of the same incident as the offending in Charge 2 and that I have considered the violence as an aggravating feature of the kidnapping offence. In all the circumstances I do not propose to make any of that sentence cumulative.
2. So, the total effective sentence for Charges 2 and 3 is nine months with the sentence of Charge 3 being nine months and then three months on Charge 2.
3. In relation to Charges 1 and 4, Mr Daniher, I intend to place you on a community correction order for a period of 18 months. In coming to that view obviously I have had regard to all of the factors I set out as being exceptional and rare justifying the imposition of a combination sentence of imprisonment and a community correction order and they are all relevant in the event that I am wrong in my interpretation of s.44.
4. But assuming I am not wrong in relation to s.44, in coming to the view that a community correction order is warranted, I have had regard to s.5(2J)(4) of the Sentencing Act which provides that I should not impose a sentencing involving confinement unless I consider that the purpose or purposes affords the sentence is imposed cannot be achieved by a sentence that does not involve confinement. And I have had regard to your age, your mental health, deprivation in your upbringing, your very low IQ and the absence of prior convictions and what I regard as your prospects of rehabilitation with supervision in coming to the view that a prison sentence is not warranted for these charges and that a period of supervision is clearly appropriate.
5. So, I just make it clear, I have dealt with the matter on the basis that my interpretation of s.44 is correct but if I am wrong about that I have nonetheless found rare and compelling circumstances exist.
6. Now, the terms of the community correction order, Mr Daniher, will be as follows. It will be for 18 months. I am going to order you perform 100 hours of unpaid community work. Because the punitive component in the period that you have served has really been applied the kidnapping charge in this case and in my view, there should be a period of unpaid community work and it is 100 hours.
7. I am imposing supervision for the period of 18 months. There will be assessment and treatment in respect of your mental health. Also, assessment and treatment and programs in relation to alcohol. And I am making an order pursuant to the community correction order provisions that you are not to contact or associate with Alexia Fisher for the duration of the order. Do you understand that, Mr Daniher?
8. OFFENDER: Yes.
9. HIS HONOUR: Just a moment and we will get that document printed out and I want to read you the mandatory conditions that apply to any community correction order and the consequences of a breach. Look, I do intend to also make the order that 20 hours of participation in the various rehabilitative programs can be deducted from the unpaid community work. Now, just while that is happening, Mr Daniher there may be no unpaid community work in the short term because of the COVID-19 virus. But you are on this order for 18 months so there is plenty of time for that to occur.
10. Now, Mr Daniher, all community correction orders have mandatory conditions, do you understand what I mean by that? They are conditions you must observe, do you follow?
11. OFFENDER: Yes.
12. HIS HONOUR: Yes. So, they are that you cannot commit another offence for which you could be imprisoned during the period of the order is in force, do you understand?
13. OFFENDER: Yep.
14. HIS HONOUR: Now, there is an intervention order in place, if you were to contact Ms Fisher, well that is an offence punishable by imprisonment, do you understand?
15. OFFENDER: Yes.
16. HIS HONOUR: And you would have breached the order.
17. OFFENDER: I won't breach the order.
18. HIS HONOUR: Yes. You must comply with any obligation or requirement in the sentencing regulations. You must report and receive visits from Corrections. You have to attend Corrections within two clear workings days of this order, so that means two days from today.
19. OFFENDER: Yep.
20. HIS HONOUR: Now, you may in these current circumstances have to do that by phone. If you change your address or if you change your job, you have to tell Corrections. You cannot leave Victoria without informing Corrections that you are doing that and you have to obey all lawful instructions from your correctional officer, do you understand that?
21. OFFENDER: Yes.
22. HIS HONOUR: You have to perform 100 hours of unpaid community work over 18 months. You will have to undergo supervision. There will be treatment and rehabilitation which will involve assessment and treatment for alcohol abuse or dependency; mental health assessment and treatment as directed and as I said, you cannot contact or associate with Alexia Fisher for a period of 18 months. Now, I indicate that, I should have done this earlier but, you have served 290 days of pre-sentence detention and pursuant to s.18 of the Sentencing Act, I declare that that period be deducted from the prison sentence of nine months which I have imposed, do you understand?
23. OFFENDER: Yes.
24. HIS HONOUR: Yes, all right, just bear with me for a moment. But for your plea of guilty in this matter, I would have sentenced you to a period of imprisonment of two years and three months with a minimum of 16 months. So, that is the 6AAA such as it is. Now, are there any other orders that need to be made in this matter? Mr Barrington?
25. MR BARRINGTON: Has Your Honour made a PSD declaration?
26. HIS HONOUR: I did, 290 days.
27. MR BARRINGTON: Thank you, my screen must have cut out there.
28. HIS HONOUR: That is correct is it? Yes, yes, sorry, it is not that easy, yes.
29. MR BARRINGTON: But that is correct, yes.
30. MS JONES: That is in excess of nine months.
31. HIS HONOUR: It is. Do you say that I cannot declare the excess?
32. MS JONES: I think Your Honour can. I was just working out the maths to equate it to the specific nine-month period.
33. HIS HONOUR: It is well in excess of nine months.
34. MS JONES: Yes, it is, the current - 290 days is just under 10 months.
35. HIS HONOUR: Just under 10, that is right, yes. Are you submitting that I should only declare nine months?
36. MS JONES: Well, if Your Honour would permit me time just to work out the exact calculation of nine months by reference to the calendar months in the two stints in custody.
37. MS JONES: We have a figure but I would just like to double check it.
38. HIS HONOUR: Yes, all right.
39. MS JONES: Then I would seek for that exact sum to be declared as the pre-sentence detention in this case.
40. HIS HONOUR: Yes.
41. MS JONES: Can I just confirm that Your Honour indicated that the s.6AAA declaration was two years and three months with a non-parole period of 16 months.
42. HIS HONOUR: Yes, within a minimum of 16. Yes.
43. MS JONES: Yes, all right. And earlier in the sentence Your Honour summarised the persistent breach of the intervention order charges ‑ ‑ ‑
44. HIS HONOUR: Yes.
45. MS JONES: ‑ ‑ ‑ and the connection, I apologise, Your Honour, was poor at this time ‑ ‑ ‑
46. HIS HONOUR: Yes.
47. MS JONES: ‑ ‑ ‑ but (indistinct words) Your Honour indicated that the - Mr Daniher and Ms Fisher had met, I have a note here of five to eight times.
48. HIS HONOUR: That was taken from the prosecution opening.
49. MS JONES: By the (indistinct) indictment there were three in person meetings in total.
50. HIS HONOUR: Do you accept that, Mr Barrington?
51. MR BARRINGTON: Yes, I believe that is what is ‑ ‑ ‑
52. MS JONES: Perhaps if Your Honour was willing, when the sentencing remarks are available to provide those to the parties just in light of the poor connection.
53. HIS HONOUR: Of course.
54. MS JONES: To review those and Your Honour I can advise the exact PSD calculation. My instructor has it at 273 days is the equivalent of nine months in this case ‑ ‑ ‑
55. MS JONES: ‑ ‑ ‑ and the two stints of remand being ‑ ‑ ‑
56. MS JONES: ‑ ‑ ‑ 6 August 2019 to 17 December 2019 and then the second stint on 22 January 2020 up to but not including today, 26 June 2020. On our calculation it is 273 days.
57. HIS HONOUR: Yes. Mr Barrington, what do you say, should I declare the lot or just that which equates to the sentence I have imposed?
58. MR BARRINGTON: I have no issue with it being declared (indistinct words) some Renzella time remaining for Mr Daniher if that ever (indistinct words).
59. HIS HONOUR: If I do not declare it? So, I should declare 273 days.
60. MR BARRINGTON: Yes, that is my understanding.
61. HIS HONOUR: All right. Well, that is what I will do.
62. MS JONES: And, Your Honour, if I can confirm that just because I am very hesitant to change the PSD calculation on my feet, I need to refer to the exact calendar months to double check that figure but if there is any change to 263 days, I will confirm that in writing to Your Honour's associate immediately following the hearing.
63. HIS HONOUR: Yes.
64. MS JONES: We just do not want any delays at the prison (indistinct words).
65. HIS HONOUR: No, no, well aren't I - isn't it just earlier to declare the 290?
66. MS JONES: I am sure different approaches would vary on this and I am also content (indistinct) 290.
67. HIS HONOUR: Look, I will stand down for 5 minutes, can you work it out exactly?
68. MS JONES: Thank you, Your Honour. I appreciate the time.
69. HIS HONOUR: All right, I will come back in 5 minutes.
    1. (Short adjournment.)
70. HIS HONOUR: All right, Ms Jones?
71. MS JONES: Thank you very much for that time, Your Honour. Upon reflection I would simply seek for the 290 days total pre-sentence detention to be declared, that would prevent ‑ ‑ ‑
72. HIS HONOUR: That is what I will do.
73. MS JONES: Thank you, Your Honour, I appreciate the time.
74. HIS HONOUR: All right, Mr Barrington, nothing further?
75. MR BARRINGTON: Nothing further, there are no ancillary orders sought from the Crown.
76. HIS HONOUR: All right, can I thank you both for your assistance in this matter. This document I think will be sent out to the prison for Mr Daniher to sign and then I will sign it. All right, thank you both, I will now adjourn.
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[4] The Queen v Doran [2005] VSCA 271