DPP v Natoli [2016] VSCA 35

Court of Appeal (Vic)|2016-03-11|Before: Mr J, Osborn JA, Whelan JA, Beach JA

CRIMINAL LAW - Sentence - DPP Appeal - Manifest Inadequacy - Convictions for using a listening device, assault, false imprisonment, threat to kill, damaging property and possession of unregistered firearm against domestic partner - Respondent on parole for violence offences - Respondent with traumatic background suffering from PTSD -Sentenced in County Court to total effective sentence of 5 months imprisonment combined with 18 month CCO - Gravity of offending mischaracterised - Offending too serious for CCO - Numerous past breaches of non-custodial dispositions - Sentence manifestly inadequate - Not a case for exercise of residual discretion to decline to intervene - Appeal allowed - Respondent re-sentenced to total effective sentence of 3 years 6 months with 2 years 3 months non-parole.

1 Over more than a nine hour period commencing at around 9:30pm on 2 November 2014 the respondent subjected his long term domestic partner, MB, to a terrifying ordeal. On 7 October 2015 he pleaded guilty to offences of using a listening device, common law assault, false imprisonment, making a threat to kill, intentionally damaging property, being a prohibited person in possession of a firearm, and possession of cartridge ammunition without a licence or permit. The plea hearing was held on 7 October and 6 November 2015.

2 On 13 November 2015 the respondent was sentenced by a judge in the County Court as follows:

4 months imprisonment and Community Correction Order ('CCO') for 18 months Aggregate sentence

S 124(1) of the Firearms Act 1996

5 months imprisonment combined with CCO for 18 months, with the following conditions:

50 hours community service
Drug treatment
Mental health assessment and treatment
Supervision
Re-offending prevention programs

6AAA Statement: 18 months imprisonment with a non-parole order of 12 months

Other relevant orders: Forfeiture and destruction orders

3 The offence under the Firearms Act 1996 (charge 6) did not exist at the relevant time. The respondent should have been charged under s 5(1) of the Firearms Act 1996. We will return to that.

4 Pursuant to s 287 of the Criminal Procedure Act 2009 ('CPA'), the Director of Public Prosecutions ('DPP') has appealed the sentences imposed on the ground that the aggregate sentence imposed on charges 2, 3 and 4 and the individual sentences imposed on charges 1, 5 and 6, and the total effective sentence, are manifestly inadequate.

Respondent's personal background and criminal history

5 It is useful to begin by setting out the respondent's personal background.

6 The respondent was aged 30 at the time of sentence. He is now 31. In his childhood he suffered significant tragedy and was exposed to disruption and trauma. His parents separated when he was very young and his mother was killed in a car accident when he was six years of age. As a very young child he saw his mother dead in the car. His mother's death resulted in a period of instability and disruption for him. He lived with his father who had problems with alcohol and spent time in prison. When he was 12 years old a further traumatic incident occurred. He was shot in the chest by a school friend. He was hospitalised and underwent surgery to remove the bullet.

7 The respondent had significant difficulties at school and left the education system at about the age of 16 or 17. He was initially employed as a builder's labourer but he began abusing various drugs and came into contact with the criminal justice system at an early age.

8 By 2011 the respondent had many prior convictions. He had appeared before courts on five occasions for offences of violence and on two occasions for criminal or wilful damage. He had many convictions for driving and dishonesty offences. He had been sentenced to short terms of imprisonment in November 2003 and in June 2004. In February 2007 he was sentenced to a term of imprisonment of 18 months with a non-parole period of nine months. This was an aggregate sentence imposed upon him for driving and dishonesty offences as well as for an offence of robbery. We were told on the appeal that he was paroled and that he successfully completed that parole. Prior to 2011 he had also received a number of non-custodial dispositions, most of which he had breached. He breached a community based order imposed on him in February 2003, an intensive correction order imposed on him in April 2003, and a suspended sentence imposed on him in December 2005. A further suspended sentence imposed on him in November 2007 and a further intensive correction order imposed in October 2010 were also breached, although those breaches were subsequently cancelled on appeal to the County Court and the intensive correction order and suspended sentence were reinstated.

9 By 2011 the respondent had become involved with an outlaw motorcycle gang. In June 2011, with other members of the motorcycle gang, he committed a number of serious offences against a person who the gang believed had given assistance to police. With the other gang members, he subjected that person to a serious assault, he threatened him, and he stole from him, after compelling him by threats to attend a meeting at a remote location.

10 On 16 February 2012 the respondent pleaded guilty to offences arising out of that June 2011 incident, being one count of attempting to pervert the course of justice, one count of making demands with threats to kill or inflict injury, one count of recklessly causing injury, and one count of armed robbery. He was sentenced by a judge in the County Court on 30 March 2012. He had agreed to assist police and to give evidence against his co-offenders. As a consequence, on 30 March 2012 he received a very significant discount in the sentence that would otherwise have been imposed upon him. He was sentenced to a total effective sentence of three years three months' imprisonment with a non-parole period of two years three months.

11 The respondent began his relationship with MB when he was approximately 20 years of age. She is a person who has no criminal associations and has no involvement with drug use. Both she and her mother have attempted to help the respondent over many years, notwithstanding the very significant problems he has experienced. Both of them gave evidence before the County Court judge on the respondent's behalf in March 2012. Material (including a psychological report) was tendered concerning the very significant problems the respondent had experienced as a result of his traumatic childhood and his drug use. The evidence called on that plea, which the sentencing judge accepted, was that the respondent had shown insight into his drug use and lifestyle and that he was highly motivated to change.

12 The respondent was released on parole in May 2014. He returned to live with MB.

13 According to a psychological report by Dr Aaron Cunningham, which was tendered on the plea hearing for the offences now under consideration, after he was released on parole the respondent began to experience death threats from the motorcycle gang. He reported to Dr Cunningham that he could not sleep and could not emotionally cope. He abused increasing amounts of methylamphetamine to stay awake and alert. He reported that he then 'became paranoid that MB was having an affair'.

14 Between 27 October and 1 November 2014 the respondent and MB were involved in a number of minor disputes. The respondent began accusing MB of 'cheating' on him. Unbeknownst to MB, on 2 November 2014 the respondent secreted an iPhone in their house for the purpose of recording her. This was the basis of charge 1.

15 The respondent harassed MB throughout the day on 2 November 2014 while she was at work, sending her abusive text messages.

16 What occurred that night was described in the Crown opening on the plea. Relevantly, it reads:

At about 9:30pm the accused burst through the front door, using his key. The victim was in her bedroom dozing off to sleep. The accused yelled abuse at her, then pulled out a hand made pen pistol, saying 'Do you think I'm joking?' He demanded the victim's phone, which she gave to him. The accused told her the pistol was loaded and pointed it towards the window saying 'Don't think I won't do it'. The victim said 'please don't do it the neighbours' and he responded 'I don't give a fuck about the neighbours'. The victim said aloud 'Oh my god he's going to use the gun'. (Charge 2 - common assault; Charge 6 - prohibited person possess unregistered firearm).

The accused walked out of the room as the victim said that people like her uncle should not have died, people like him should die. The accused turned saying 'What did you say?' then placed the gun in his mouth, threatening to neck himself.

The accused opened a vent in the hallway and took out the hidden iPhone. He went into the bedroom, took out his iPhone and told her he had been recording her for the past nine hours. He played his phone but all she could hear was fuzzy noise, then her talking to her father and the accused. He told her he had bugged the house and has just listened to the recordings and heard what she had been up to. He sat in the lounge room and listened to the recordings.

About an hour later the accused came back into the bedroom and said she had fucked up now as he had heard what she and Benny had said to one another. He was walking in and out saying he was going to fix it. The victim heard a loud bang, as the accused punched a hole in the bedroom door. (Charge 5 - damage property).

The victim tried to sleep in her bed but the accused kept walking in and out flicking the light on and off. He then came into the bedroom and laid on top of the victim in bed. He turned his phone up really loud and made the victim listen to the fuzzy noise. He yelled at her saying he could hear Benny, but all the victim heard was the fuzz. As he lay on top of her he kept going on about the recording. The victim said he was completely fucked up, meaning from drugs. The victim tried to move onto her back and the accused laid on top of her. She tried to put her knees up to push the accused off, but he squeezed her throat hard enough to hurt. He grabbed her jaw and face at the same time. The victim did not fight back as she did not want to make it worse. (Charge 2 - common assault; Charge 3 - false imprisonment).

The accused then grabbed her by the hair, pulled back so her neck was exposed and said 'I'm going to fucking kill you'. He called her a slut and a cunt. The victim was in fear for her life, thinking he would kill her. His eyes were red, his head was shaking, his teeth were clenched and grinding (Charge 4 - threat to kill).

The accused told the victim to stop lying and tell the truth, to stop saying Benny wasn't here. The victim said she wouldn't, as he wasn't there. The accused said 'don't think I won't suffocate you, you cunt' and placed a pillow over her face. The victim couldn't breathe. He took it off then did it again. The victim was crying, petrified thinking she might die. (Charge 2 - common assault).

After the accused let her go, he made the victim listen to the recordings on the phone several times. He also called Benny and accused him of cheating with the victim. At one point the victim was able to grab her phone back and text and leave a voicemail on her mother's phone to call the police. Her mother rang back several times and finally the victim was allowed to answer it on speakerphone. The accused told her the victim had cheated on him and had left a recording device in the vent. He broke down and cried. [The victim's mother] told the accused to let her go.

The victim tried to leave a few times but was blocked by the accused. He grabbed her car keys and tried to crush them. He made her sit on the floor. She begged the accused to leave, telling him she had work today. The accused stood by the front door blocking her way. (Charge 3 - false imprisonment).

The police arrived, having been called by [the victim's mother]. [The victim] ran to the front door, appearing distressed and crying. The accused pointed out the ducted heating vent where the phone had been. He handed over the iPhone to police. Two .22 cartridges of ammunition were located on the coffee table in the lounge and a shotgun cartridge on the floor. (Summary charge 12 - possess ammunition). The pen pistol was located down the arm of the couch. It was 20cm long with a pullback spring and screw top on one end. It was not loaded. There were also two cleaning rods for .22 and .38 calibre firearm barrels on the floor.

17 The respondent was arrested on 3 November 2014. He was remanded in custody. His parole was cancelled the same day. He then began serving the unexpired portion of the sentence which had been imposed upon him in the County Court in March 2012. The unexpired portion of that sentence was 350 days. He had completed that sentence by the time he pleaded guilty and was sentenced on these offences, and he had by then served an additional 25 days which was pre-sentence detention. As he had completed his earlier sentence, s 16(3B) of the Sentencing Act 1991 had no relevant operation.

18 The respondent pleaded guilty to the charges on which he was sentenced after a contested committal hearing at which MB was cross-examined. On the appeal counsel for the respondent said there had been other charges which were not pursued.

19 On the plea the circumstances of the respondent's childhood were set out, as were the circumstances of his prior offending, the fear of retribution he felt as a result of assisting police in relation to the June 2011 offending, and his relationship with MB. Evidence was called from community workers with the Prison Fellowship and from the Australian Community Support Organisation. Evidence was also led as to his attempts to arrange for admission for drug rehabilitation and participation in community support programmes upon his release. Dr Aaron Cunningham's report was tendered. Evidence was called, and letters were tendered, from family members setting out the sad circumstances of the respondent's childhood and making offers of support in terms of employment and accommodation upon the respondent's release. The respondent himself wrote two letter to the Court and made multiple interventions during the plea apologising for his offending and setting out his plans for the future.

20 The psychological report by Dr Cunningham set out the relevant circumstances of the offending and referred to the fact that the respondent had been abusing methylamphetamine in 'significant amounts'. Dr Cunningham diagnosed post-traumatic stress disorder as a result of exposure to the trauma of his mother's death and his own shooting as a child. Dr Cunningham expressed the following opinion:

In my opinion, Mr Natoli's post-traumatic stress disorder and methylamphetamine abuse would have impaired his judgment with respect to his offence behaviour and their consequences.

21 Dr Cunningham expressed the opinion that the respondent was suffering significant difficulty in gaol and that exposure to a prison environment would aggravate his post-traumatic stress disorder.

22 MB filed a victim impact statement. She referred to the incident as 'horrific and life changing'. It has affected every area of her life. She said that the physical bruising and pain from the incident had healed but the emotional scars remained. She concluded:

It has been almost nine months since the incident, yet not a day goes by that I don't suffer and think about what happened that night. Whether it be distressing flashbacks, post-traumatic stress disorder, horrific nightmares, vulnerability, trouble sleeping and general insecurity I feel I have been forced to suffer a lifelong sentence of pain and suffering. In this day and age, no-one should be forced to suffer at the hands of domestic violence and live what I have lived. I know I am very fortunate to have the love and support of my family who have helped me immensely and without them I truly don't know where I would be today.

23 The sentencing judge gave detailed and comprehensive reasons. She dealt with every relevant matter in a careful and comprehensive way. She referred to the respondent's record of interview, the victim impact statement, the plea of guilty, the material tendered on the plea, the circumstances of all of the offences, the respondent's personal circumstances and criminal history, and the effect of the offending on the respondent's parole. She observed that both general and specific deterrence were of significant importance. She made reference to the respondent's insight into his offending and the steps he had taken to rehabilitate himself but found his prospects of rehabilitation to be guarded.

24 Because of the respondent's post-traumatic stress disorder the sentencing judge moderated the respondent's moral culpability, notwithstanding the contribution made by his drug use. She also took into account the fact that the post-traumatic stress disorder was likely to be aggravated by his time in prison and that it would make his imprisonment more onerous. The sentencing judge was applying the principles in R v Verdins ('Verdins').[1]

25 As to the offences themselves the sentencing judge's conclusion was as follows:[2]

As an overall set of events, the duration and place created a protracted and frightening experience for [MB]. On the other hand, none of the individual offences was anywhere near even the medium, let alone a high end of seriousness for each offence. Your own role was as the sole instigator, and you were offending against the woman you say you loved and who had always been a great support for you, but I take into account that you were doing so in a context of self-focussed suspicions and a degree of paranoia and thoughts that obsessed you, rather than deliberately to harm her.

26 The sentencing judge was particularly concerned in relation to the effect of the offending upon the respondent's parole. In that respect she said:[3]

The further relevance of your last sentence is what has happened since your arrest on these charges on 3 November last year. You were remanded in custody, and soon afterwards the Parole Board required to you to serve the balance of the sentence that had been imposed by Judge Wood. That means that although you have been in prison for the last 12 months and ten days, most of that period does not qualify to be declared as reckoned served under s 18 of the Sentencing Act in respect of the sentences I impose. It is, however, a consequence of the offending for which I sentence you, and were it not already expired, I would have directed some considerable concurrency between it and the sentence I impose, even though the Sentencing Act makes it prima facie cumulative. I state that I would have made almost half of it concurrent. I have taken this into account as part of the totality of the time that you will serve in prison as a consequence of the offending for which I sentence you as well as the totality of time you will spend in prison for the overall offending for which the previous sentence and my sentences are imposed.

27 She returned to this topic later, almost at the conclusion of her sentence, when she said:[4]

Returning to something I mentioned earlier, I am to sentence you for six indictable offences and one summary offence. I have already explained that I take the view that they all arise out of the one overall set of events, although over a period of more than nine hours. In these circumstances the principle of totality requires, in my view, considerable, if not quite total, concurrency in the sentences, taking into account the totality of the overall offending. Further, as I have already explained, I regard the principles of totality as requiring me to significantly moderate the sentences I impose to take into account that you have spent almost an extra 12 months in prison while serving time called in parole, that cannot count strictly towards the sentences I impose.

I note that to start afresh without regard to that has the risk of imposing a sentence so great as to crush your motivation to start afresh and to address your underlying problems. I want to make clear that but for that time that you have been in prison, serving out what the Parole Board required, the sentence I am about to impose would have been more than double what it will be, so far as time in prison is concerned, and I would have made it concurrent with almost half of the time that the Parole Board required of you.

28 The sentencing judge referred to this Court's guideline judgment in Boulton v The Queen ('Boulton')[5] observing that 'some further time in prison' was required to adequately condemn the offending and to achieve the requirements of sentencing 'but that your rehabilitation should be encouraged despite your past'.

29 In its written case the DPP submitted that the learned sentencing judge had:

(a) failed to give sufficient weight to the following in relation to the individual sentences and orders for cumulation:

(i) the objective gravity of the offending,

(ii) the principles of specific deterrence, general deterrence and protection of the community,

(iii) the consequences of the offending, that is the impact on the victim, and

(iv) the fact that the Respondent was on parole at the date of the offending;

(b) failed to sufficiently punish the respondent to an extent which is just in all the circumstances;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to have sufficient regard to the maximum penalties prescribed for the offences;

(e) gave excessive weight to factors in mitigation, including the application of Verdins Case; and

(f) misapplied the principle of totality to result in what is a manifestly inadequate total effective sentence.

30 In oral submissions senior counsel for the DPP 'did not press' the submission concerning Verdins.

31 Senior counsel for the DPP submitted that the sentences imposed were outside the range which was open. He referred to the fact that the offences were committed in the victim's own home, where she was entitled to feel safe, and that the attack upon her was unprovoked and was preceded by the use of a phone as a hidden recording device. He relied particularly upon the fact that the respondent was armed with a firearm and the fact that, whilst it might have been unloaded when it was found, he had told MB that it was loaded and there was ammunition in the house. He relied upon the fact that the offences were committed on parole. He submitted that, whilst totality had a role to play, the sentencing judge had been too influenced by the effect of the cancellation of parole. He submitted that the offences of false imprisonment, common law assault, and threat to kill were serious examples of those offences and that the sentencing judge's description of them as not 'near even the medium' was unjustified.

32 Senior counsel for the DPP submitted that the sentences were clearly manifestly inadequate and that this Court should not refuse to intervene because of the respondent's imminent release date. It was submitted that the possibility that an offender might be released soon was a circumstance likely to arise whenever the DPP brought an appeal in relation to a short custodial sentence. It was submitted that the respondent was a person who had served previous terms of imprisonment and who had received a number of previous non-custodial dispositions which he had breached. It was submitted that the respondent had re-offended despite the many opportunities which he had been given in the past.

33 On behalf of the respondent it was submitted that the sentencing judge had engaged in a thorough consideration of all of the relevant factors and that her sentencing reasons were full and comprehensive. It was submitted that she had undertaken the very task which this Court had required sentencing judges to undertake in Boulton. In particular, the sentencing judge had asked herself whether a CCO could be imposed which would meet the requirements of just sentencing and which would be both punitive and rehabilitative. Consistently with the principles espoused in Boulton, the sentencing judge, whilst determining that a period of imprisonment was required, had imposed the shortest term of imprisonment which was consistent with the achievement of the requisite sentencing purposes. It was submitted that this was not a sentence of five months' imprisonment but was a sentence of five months' imprisonment with an 18 months' CCO afterwards.

34 It was submitted that the sentencing judge's approach to totality and to Verdins had been correct.

35 On behalf of the respondent a number of matters to which the sentencing judge had referred were particularly relied upon. They were:

The utilitarian value of the guilty plea and the remorse which that plea demonstrated.
The respondent's traumatic and difficult background.
The difficult situation in which the respondent had been placed as the result of his decision to give evidence against his co-offenders in 2012.
The post-traumatic stress disorder from which the respondent suffers, which was rightly treated by the sentencing judge as moderating moral culpability and as requiring mitigation of the sentence because imprisonment would be more onerous for the respondent and was likely to worsen his condition.
The significant efforts made by the respondent towards rehabilitation in terms of arranging for a residential drug programme upon his release, his engagement with community workers, and the support which he had from his extended family.
The fact that the respondent had already served a considerable period of time in custody at the time of sentence, notwithstanding that that period, other than 25 days, was the unexpired portion of his previous sentence.

36 Counsel for the respondent referred to the programs he had completed in prison and said that the arrangements which had been made for his release before his sentence in the County Court (in the expectation of the completion of his 2012 sentence) had been reinstated.

37 The respondent relied upon Mwamba v The Queen ('Mwamba')[6] in support of a submission that the respondent's imminent release was a circumstance which ought to mean that this Court should not interfere even if it concluded that the sentence imposed was manifestly inadequate.

38 The ground of manifest inadequacy is, like the ground of manifest excess, a stringent one which is difficult to make good. This Court will not intervene unless the sentence imposed is 'wholly outside the range of sentencing options available'.[7] Notwithstanding that a sentence might be found to be manifestly inadequate, this Court does also retain a residual discretion to decline to intervene. [8]

39 The sentencing judge in this case gave detailed reasons which are clear and comprehensive. She gave the matter thorough consideration. She dealt with every relevant matter. She did not have regard to any irrelevant matter. Notwithstanding all of this, our conclusion is that the sentences she imposed on counts 2, 3, 4 and 5, and the total effective sentence, are manifestly inadequate. Our reasons are as follows.

40 First, in our view, her Honour mischaracterised the gravity of the offending. It seems to us that her Honour must have had in mind cases of domestic violence like DPP v Barnes[9] when she said that these offences were not anywhere near the medium let alone a high end of seriousness of each offence. If that is so, her Honour was correct in that the courts do, unfortunately, see much worse cases of domestic violence. But these were serious examples of the offences charged.

41 The threat to kill was explicit ('I'm going to fucking kill you'), was accompanied by furious abuse and violence, and was made by the respondent after he had earlier brandished a firearm and told the victim it was loaded.

42 The false imprisonment was protracted and, in the context of the threats and violence, terrifying. It was not merely confined to the blocking of the front door when MB attempted to leave in the morning, as the Crown opening on the plea made clear.

43 The common law assault encompassed numerous acts of violence including the brandishing of the firearm, squeezing MB's throat and grabbing her jaw and face, placing a pillow over her face on repeated occasions, and placing his hand over her mouth and nose so she could not breathe while saying 'don't think I won't suffocate you, you cunt'.

44 The damaging property offence was an intimidating violent act. It warranted a sentence, not merely a compensation order.

45 These were all serious instances of the offences charged. They were committed upon the respondent's domestic partner, in her own home, where she was, as senior counsel for the DPP submitted, entitled to feel safe.

46 Secondly, in our view, the parole cancellation did not warrant significant mitigation of the sentences imposed. The respondent has a history of violent offending. He has had a number of non-custodial dispositions in the past which he has breached. He was on parole for violent offences when he committed these offences. He had relapsed into drug abuse. His parole could have been cancelled on that basis, had it been known, even if these offences had not occurred. Totality in this context was a relevant matter, but it should have been given less weight than the sentencing judge gave it.

47 Finally, in our view, her Honour gave too much weight to the importance of rehabilitation in the circumstances of this case. The offending was too serious for a combined prison sentence and a CCO, given the respondent's criminal history.

48 It was acknowledged by senior counsel for the DPP that the offence to which the respondent pleaded guilty under s 5(1A) of the Firearms Act 1996 did not exist at the relevant time. The respondent ought to have been charged under s 5(1) of the Firearms Act. The respondent has not pleaded guilty to an offence under s 5(1) and objects to an amendment of the indictment at this stage. The possession of the firearm is a relevant matter in relation to charges 2, 3 and 4 and senior counsel for the appellant conceded that an order for acquittal on that charge would not affect the substance of the DPP's appeal. In the circumstances, an acquittal should be ordered on charge 6.

49 It is unfortunate that this matter has not been resolved until close to the respondent's projected release date. To a significant extent that is almost inevitable where there is a short custodial sentence. This is not, in our view, a case relevantly similar to Mwamba. There has not been significant delay. The respondent has not been released. Any re-sentence must involve a significantly increased period of custody.

Charge 3 false imprisonment 2 years 6 months imprisonment

Charge 4 threat to kill 2 years 6 months imprisonment

51 We confirm the sentences on charge 1 and on the summary offence.

52 The sentence on the threat to kill (charge 4) will be the base sentence and we will order cumulation of six months of the sentence on false imprisonment (charge 3) and six months of the sentence on the assault (charge 2). We make no order for cumulation on charges 1 and 5.

53 Accordingly, leaving the fine on the summary charge to one side, the respondent will be re-sentenced to a total effective term of imprisonment of three years six months. We fix a non-parole period of two years three months.

54 Insofar as it is necessary to do so, it is declared that had the respondent not pleaded guilty he would have been sentenced to a total effective sentence of six years imprisonment with a non-parole period of four years.

[2] [2015] VCC 1629 ('Reasons') [36].

[7] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127].

[9] [2015] VSCA 293. Senior counsel for the DPP suggested that, of the appeals dealing with domestic violence, Evison v The Queen [2014] VSCA 132 was 'closest' to the circumstances here. Such comparisons are always difficult. The conduct in that case was not dissimilar to the conduct here, but there were also significant differences. In that case entry to the house constituted an aggravated burglary and was in breach of an intervention order. On the other hand, there was no firearm involved in Evison. In both cases the offender pleaded guilty, had significant prior convictions, and had mental health problems. In Evison no physical injury was inflicted. On appeal in Evison a total effective sentence of seven years three months with a non-parole period of five years three months was reduced to a sentence of five years and nine months with a non-parole period of three years nine months. We have also had regard to Marrah v The Queen [2014] VSCA 119, to DPP v Sullivan [2014] VSCA 222, and to Sentencing Snapshot No 174 in relation to the offence of making threat to kill.

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