DPP v Sutherland [2025] VCC 1974

Under Sentencing Act 1991 ('SA') s 48C, 200 hours of unpaid community work.

Under SA s 48CA, 100 hours of treatment and rehabilitation are to be counted as unpaid community work.

Under SA s 48D(3)(f), offending behaviour programs.

In accordance with s 6AAA of the SA, I declared that but for your plea of guilty, I would have sentenced you to six months' imprisonment.

1. At the time of sentencing you, I indicated I would provide my reasons for sentence at a later time. These are those reasons for sentence.

1. The prosecutor filed a summary of prosecution opening for plea dated 19 August 2025 which I am told by your counsel I can treat as a statement of agreed facts for the purpose of sentencing you.[4]
2. The offenders in this matter are you and Travis Poore. The victims are:

(a) Dion Torpy, who resided on Nepean Highway Frankston.

(b) Peter Criggie and his girlfriend, Stephanie Beaton, who were both staying temporarily with Mr Torpy.

(c) Robert Oliver, who was also present at the address at the time of the offending.

1. You and Poore are not known to the victims, nor did you reside in the unit complex where the offending occurred.
2. At approximately 12:15am on 10 August 2024, Criggie was at the rear of Torpy's unit complex in Frankston. He was moving fuel from a green plastic jerry can into his parked motorcycle. Your silver Toyota car was also parked at the rear of the unit complex and had sustained damage to several windows. The car looked abandoned and was strewn with rubbish and miscellaneous personal items.
3. After refuelling his motorcycle, Criggie walked to the rear carpark and checked on your car, believing it to be stolen. You thought he had previously stolen items from your car and was attempting to do so again. As he walked back towards Torpy's unit, you and Poore confronted him in the driveway. Poore attacked him by hitting him to the crown of the head with a rubber mallet, causing him to bleed heavily (Charge 1).
4. Beaton and Torpy heard yelling. Beaton left the unit to see what was happening and observed you chasing Criggie. She attempted to intervene, but you and Poore then confronted her. Beaton and Criggie both fled and Oliver opened the unit door to allow them to run inside.
5. Once inside, Criggie, Oliver and Beaton attempted to shut the front door to stop you from coming inside, however you were able to gain entry. It is not known whether you or Poore entered first or whether you entered together. Once inside the unit, you both continued to confront Criggie and Beaton (Charge 2).
6. Beaton and Oliver ran into the bathroom and barricaded the door. Oliver rang 000. You and Poore attempted to kick the bathroom door open. Oliver climbed out the bathroom window and fled, while Beaton hid in the toilet connected to the bathroom and held the door shut. Criggie managed to escape out the front door and ran to the front of the complex. While this was happening, Torpy lay in his bed in the lounge area and was not attacked.
7. You and Poore ransacked the unit. You threw Torpy's 55-inch Samsung television across the lounge room and stomped on it, smashing the screen.

1. In response to the 000 call, police officers attended the front of the unit complex, where they found Criggie with a bleeding head wound. They then attended unit just as you and Poore were leaving with items including three kitchen knives and Beaton's personal property. This activity was captured on body worn camera footage.
2. You and Poore told police you had been chasing a male who had fled from the unit. You told police the victims had stolen items belonging to you and your daughter from your car, which you had then located in the unit. You and Poore were arrested and taken to Frankston police station for interview.
3. Police examined the scene and made the following relevant observations:

(a) A broken television was found in the lounge room.

(b) A shoe impression was located on the outside of the bathroom door and on the broken television.

1. During your interview, you told police you had a heart condition and required medical attention. You were taken to Frankston hospital for assessment. Poore made a no comment record of interview.

1. The victims did not prepare victim impact statements. Nonetheless, where no victim impact statement is relied upon, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[5]
2. In my opinion, the victims would have suffered considerable distress and anxiety as a result of your conduct. Beaton, Criggie, Oliver and Torpy all had a right to feel safe in the unit and in the surrounds of the complex. It would have been frightening for them to have to barricade themselves in the unit while you tried to attack them. Although, I accept you are not to be punished in respect of the offending which occurred after the aggravated burglary offence was committed.

1. Aggravated burglary is a serious criminal offence, as indicated by the maximum penalty of 25 years' imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in.
2. In the Victorian Court of Appeal decision of Hogarth v The Queen ('Hogarth'),[6] a case involving a 'confrontational' aggravated burglary, the court said that: 'Home invasion is a particularly nasty form of criminal conduct'[7] and a particularly 'egregious form of aggravated burglary'.[8] This is especially so, it was said, where, as here, the offence is committed at night.[9]
3. In DPP v Meyers ('Meyers')[10] the Victorian Court of Appeal outlined a number of relevant considerations that apply in determining the assessment of the relative seriousness of the offence of aggravated burglary. Those considerations include:[11]

(a) the offender's intent at the point of entry;

(b) the mode of entry;

(c) whether the offender was carrying a weapon;

(d) whether the offender was alone or in company;

(e) the time of day at which the burglary took place;

(f) what the offender knew or believed about who would be inside; and

(g) whether the offender was someone of whom the victim was particularly frightened beforehand.

1. In the outline of prosecution plea submissions dated 15 October 2025, the prosecutor submitted the following factors are relevant to my assessment of the objective gravity of your offending conduct:[12]

(a) Criggie and Beaton were attempting to flee and hid in the unit. You both forced yourselves through the front door in circumstances where Criggie, Oliver and Beaton attempted to shut it to stop you from entering.

(b) You and Poore intended to assault upon entry.

(c) You committed the offence in company and although the prosecutor conceded it is not known who entered first or whether you entered together, ultimately you both went inside the unit and confronted the victims.

(d) The offending took place in the early hours of the morning.

(e) There were a number of occupants present in the premises at the time.

(f) Both you and Poore played an active role in the aggravated burglary.

1. Your counsel accepted your offending is inherently serious. Your offending is an example of confrontational aggravated burglary in the Hogarth sense. Your plea to the indictment and acceptance of the summary of prosecution opening acknowledges you intended, at the time of entry, both to trespass and assault the people in the unit.
2. However, I accept your counsel's submission that your offending was spontaneous and only occurred as a result of an altercation in which you genuinely believed Criggie was attempting to steal your car. Moreover, this matter resolved on the basis that you did not physically assault Criggie. You do not fall to be sentenced for the actions of your co-accused, nor is it alleged you were complicit in those actions. Overall, I consider your offending conduct, objectively viewed, as being in the low mid-range for offences of this kind.
3. Nonetheless, just punishment, denunciation and general deterrence need to be given some weight in sentencing for this crime. All these principles need to be sensibly modified on account of your person circumstances discussed later in these reasons.

1. You were assessed by Ms Gina Cidoni, a consultant psychologist engaged by your legal representatives, on 12 August 2025, 18 August 2025 and 9 September 2025. Ms Cidoni prepared a psychological assessment report dated 7 October 2025, which was tendered at the plea hearing by your counsel.[13]
2. I ordered two pre-sentence reports. An extended pre-sentence assessment - outcome report was prepared by Oliver Bott, community corrections officer, and dated 15 October 2025.[14] A mental health community corrections screening program report was prepared by Martin Markus, senior mental health clinician, and dated 15 October 2025.[15]
3. I have drawn upon the contents of the three reports and the oral and written submissions of your counsel[16] to summarise your personal circumstances.
4. You were born in Crib Point and raised in several towns across the Mornington Peninsula. You are currently 35 years old. To Ms Cidoni, you described your childhood as 'full on'. You and your mother often fought and you felt you could not get along with her. You had an 'inconsistent' relationship with your father because you believed he was forced to 'pick sides' between you and your mother. You have two sisters: one two years your senior, and the other five years younger.
5. When you were eight years old, you were placed in respite care through Oz Child, initially on weekends, which you described to Ms Cidoni as 'distressing'. You were intermittently placed in foster care from 14 years of age until you were 17. You maintained some contact with your family during this time, however, you were excluded from contacting your younger sister. This fractured your once close relationship with her. You have also intermittently experienced homelessness since your mid-teens, including periods of couch surfing and short-term accommodation. You remained connected to your foster family until 2020 when your foster mother, whom you described as 'the glue of the family', passed away.
6. Your parents remain together and own mechanical businesses on the Mornington Peninsula. Ms Cidoni writes your relationship with them has improved significantly in recent years. You also now have a better relationship with both your sisters.

1. You completed secondary school up to Year 9 at Bayside Christian College. You noted significant academic challenges throughout your schooling, including longstanding difficulties with comprehension, concentration and literacy skills. In adulthood, these issues were later identified as being consistent with dyslexia.
2. Although you did not receive any specialised learning support, you reported being diagnosed with attention-deficit hyperactivity disorder (ADHD) at five years old and medicated during your school years. Overall, your attendance at school was generally consistent, despite periods of suspension. You recalled being bullied by peers, particularly for taking ADHD medication, and acknowledged you would sometimes seek approval from schoolmates in ways that resulted in disciplinary action.
3. Your behavioural challenges escalated and included an incident in Year 7 where you were suspended after giving your prescribed medication to older students. You were ultimately expelled in Year 10 following difficulties at a school camp. Ms Cidoni reports you fell behind academically and lacked the concentration skills to pursue VCE.
4. You later completed a Certificate III and IV in Aged Care, as well as training in hospitality and food handling. You commenced a diploma in nursing but discontinued after ten months because the demands of night shift work in the context of raising a young child.
5. In relation to your employment history, you worked at a fish and chip shop for six months when you were 15, before undertaking casual farm work and trialling child care roles a few years later. During your late adolescence, you worked in hospitality. Between 2008 and 2010 you worked at various aged care facilities through an agency. You considered this work to be rewarding.
6. In October 2012, you commenced permanent work at Baxter Village and remained there until July 2022. During your time working in aged care you undertook various workshops and short courses, including in dementia care and occupational therapy. You enjoyed your role at Baxter Village and found it meaningful.
7. Following your time at Baxter Village, you experienced your longest period of unemployment, lasting until January 2025. During this time you accessed Centrelink benefits including parenting and JobSeeker payments. Since January 2025 you have been working casually for the family business, averaging about nine hours per week.

1. When aged 17 years, you commenced your first relationship with Daniel, which you described as short-lived and relatively uneventful. Your most significant relationship was with Aaron, beginning in 2008 and lasting until 2022. You and he share a daughter, born in 2009. You primarily lived together in Baxter, with a period living in Frankston while your daughter was an infant.
2. You reported significant complications at the time of your daughter's birth, which you attributed to your partner's depression and drug use. While Aaron was not physically violent during your relationship, he would become aggressive during disputes about his drug use, associates, firearms and a subsequent partner, who you say endangered your daughter.
3. You described yourself as a hands-on mother prior to a family violence intervention order (FVIVO) being taken out against you by Aaron. The FVIVO prevented you from residing near, or contacting, your daughter. This has caused you considerable distress. At age 15, your daughter became pregnant and gave birth. She later lost custody of the baby, who was placed in foster care. At the time of Ms Cidoni's report, your daughter remained in child protection care with a FVIVO in place affecting you.
4. Following the separation with Aaron, you entered into a relationship in 2023 with a physically abusive partner. You invested heavily in this relationship and were estranged from your family at the time. You were subjected to violence and ongoing harassment from your now ex-partner and his associates following the breakup. You sought limited support, including counselling and one night of accommodation from The Orange Door.
5. At the time of Ms Cidoni's report you were living with your parents and had recently been approved for a private rental studio apartment in Frankston. You told Ms Cidoni this was a significant step towards your independence after experiencing homelessness and instability. Your primary supports are your parents.

1. You disclosed a history of poor physical health dating back to childhood. You have been diagnosed with fibromuscular dysplasia (FMD), a rare vascular condition affecting arterial walls. You have experienced recurrent health complications, culminating in a significant deterioration in 2022, when you developed toxic shock syndrome, suffered numerous infections and were repeatedly hospitalised. You experienced multiorgan failure and were placed in an induced coma.
2. Under the care of a cariologist, you underwent cardiac surgery involving stent replacement. You subsequently experienced two heart attacks, including one episode where you were removed from surgery in a critical condition. You were unable to continue working and remained unfit for several months. In 2024, your stents failed and repeat admissions to intensive care were required, including a full cardiac bypass, treatment for a collapsed lung and dialysis for kidney failure. Your vascular and endovascular surgeon reported an antegrade superior mesenteric artery bypass is your last treatment option and if this failed this would likely be a 'terminal event'.[17]
3. In summary, your physical health remains compromised and requires ongoing medical intervention.
4. In relation to your mental health, you reported difficulties also beginning in childhood. You were diagnosed with ADHD at the age of 5 and treated with Ritalin until aged 14. You have experienced depression and anxiety throughout your life, intensifying as a result of the breakdown of your relationship with Aaron, your severe physical illness and estrangement from your daughter.
5. At 14 years of age, you were admitted to a psychiatric facility for two and a half weeks following suicidal ideation and self-harming behaviours. In 2022, you were admitted for one week after an attempted suicide, requiring resuscitation. For six months of that year you trialled Lexapro, but ceased its use. Historically, you have avoided counselling and preferred to supress painful experiences. In 2024, you engaged with the Frankston Mental Health and Wellbeing Service, although you told Mr Markus you have not attended a session in a while and found the service non-beneficial.
6. Ms Cidoni opines you meet the criteria for Major Depressive Disorder (MDD), recurrent episode, moderate, with anxious distress. You exhibit symptoms of persistent depressed mood, diminished interest, fatigue, sleep disturbance, impaired concentration, psychomotor changes, chronic worry, physiological tension, agitation, difficulty concentrating and recurrent feelings of worthlessness. Ms Cidoni also considers your documented exposure to traumatic experiences, including childhood abuse and violence in intimate relationships, gives rise to Post-traumatic Stress Disorder (PTSD).
7. Mr Markus echoes Ms Cidoni's observations and indicates you present with clinically significant symptoms of depression, trauma, neurodevelopmental problems and ongoing cannabis use issues.

1. Your alcohol consumption commenced at 16 years old, although you did not drink heavily or consistently. At 18 you began using cannabis, describing to Ms Cidoni daily use until you were aged 33. You have only used cannabis occasionally since then. Between the ages of 18 and 20 you experimented with MDMA. You also briefly trialled methamphetamine in 2003 and 2023 but discontinued its use because of the adverse effects. In 2023 you used GHB intermittently as a means of coping. At the time of your assessment with Ms Cidoni you denied ongoing use of prescription or illicit substances other than cannabis, which you only use sporadically.
2. When using stimulants, you experienced paranoia, anxiety, and sleep deprivation. Your longest period of abstinence from cannabis was approximately two months in late 2024. Relapse is typically triggered by feelings of despair and wanting to escape. You have not engaged with drug counselling or rehabilitation programs. Ms Cidoni evaluated you as having cannabis use disorder, intermittent.

1. Applying the Violence Risk Appraisal Guide (VRAG), Ms Cidoni assessed your risk of reoffending as low to moderate, with risk factors such as a background of developmental adversity, disrupted attachments, longstanding ADHD symptoms and limited prior criminal history. Your history of emotional dysregulation, depression, anxiety impulsivity and trauma-related hyperarousal increases your vulnerability to reactive offending under stress. Mr Bott, in his report, assessed you as being a medium risk of general reoffending.
2. Ms Cidoni opines you have significant protective factors. You have re-established a stable and positive relationship with your parents, you have secured housing after a period of homelessness and you are developing insight into the reasons for your offending. Your ongoing health fragility, in Ms Cidoni's view, is both a destabilising factor and a protective one. Ms Cidoni writes that targeted intervention should focus on consolidating these protective factors while addressing dynamic risk drivers.

1. You have a very limited criminal history. On 28 February 2024, you first appeared at Frankston Magistrates' Court in relation to theft, two charges of unlicensed driving, use unregistered motor vehicle and drive whilst disqualified. You received an aggregate fine of $500, without conviction. On 29 July 2024, you were again before the Frankston Magistrates' Court in relation to offences comprising: contravention of a family violence interim intervention order, contravention of a family violence final intervention order, fail to answer bail and possess cartridge ammunition without a licence or permit. On that occasion, you were received an aggregate of $650, without conviction.

1. You pleaded guilty to the present charges on 15 October 2025. I accept your pleas have been entered at an early stage in the proceedings. Your pleas of guilty have utilitarian benefit and have saved the victims the trauma of giving evidence in court. They also indicate your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.
2. I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
3. As Winneke P observed in R v Cooper:[18]

[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [herself].[19]

4. True remorse is a question of fact and is determined on the balance of probabilities.[20] An offender must satisfy the court there is 'genuine penitence and contrition and a desire to atone'.[21] In many cases the most compelling evidence of remorse comes from the offender's testimony.[22]
5. In CD v The Queen,[23] Harper JA, with whom Buchanan JA agreed, quoted his earlier observations in Phillips v The Queen,[24] where his Honour said:

[Genuine remorse] indicates realistic prospects of rehabilitation and a reduced need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy - in the form of a very substantial reduction in what would otherwise be an appropriate sentence - is very likely due.[25]

6. You instructed your counsel you were highly distressed on the day of the present offending. Your vehicle had been broken into previously and personal items had been stolen. You had a genuine belief that Criggie was stealing from your car. To Ms Cidoni, you maintained your actions were impulsive and driven by anger and frustration because you believed your own stolen property was in the house.
7. I have had regard to the character references of your mother and sister,[26] who were both present at the plea hearing. Their references and Ms Cidoni's report indicate that you have developed some insight into the reasons behind your offending and have made an effort to turn your life around. However, I am still of the view there is insufficient evidence to make a determination that you are genuinely remorseful.
8. I assess your prospects of rehabilitation as being fairly good. You have a very limited criminal history and a low to moderate risk of reoffending. You have also maintained stable employment and have reengaged with your family, who are willing to provide you support. Much will depend on your ability to manage your mental health and remain drug and alcohol free.

1. Your counsel submitted all Verdins principles are engaged in your case,[27] which the prosecutor fairly accepted. Your counsel primarily relied on your diagnoses of MDD, PTSD, cannabis use disorder (intermittent) and ADHD (combined presentation, provisional) as outlined by Ms Cidoni.
2. In her report, Ms Cidoni writes:

At the time of the offending Ms Sutherland was experiencing active symptoms of depression and anxiety, including pervasive dysphoria, physiological hyperarousal, and emotional numbing, as well as longstanding symptoms characterised by distractibility, impulsivity, and difficulties with inhibition. These conditions affected her capacity to remain calm and regulated during a high-stress situation. [These] symptoms impaired her ability to inhibit immediate behavioural responses and contributed to reduced capacity to make calm and considered choices in a rapidly evolving situation. Her mood and trauma-related symptoms compromised her ability to think clearly and rationally under pressure, increasing emotional reactivity and physiological arousal, and impairing her impulse control during the incident.

At the time of the offending Ms Sutherland was under significant situational stress. She was homeless or in highly unstable accommodation, had recently separated from her former partner amidst conflict regarding their daughter, and was managing serious health problems including cardiac and vascular conditions. Continued support from her medical team is essential to manage these conditions, as deterioration in her physical health has historically been liked to psychological destabilisation and functional decline, which was also evident during this period. These experiences occurred alongside inconsistent caregiving, with her father emotionally disengaging and her mother unable to manager her behaviour, resulting in repeated displacement from home.

1. As I foreshadowed at the plea hearing, I am prepared to give some weight to all Verdins principles in your case. So far as principle 1 is concerned, your cluster of mental health conditions does have the effect of reducing, to some extent, your moral culpability and therefore the weight I would otherwise have given to denunciation and just punishment. I will also moderate the weight I give to general and specific deterrence, so far as principles 3 and 4 are concerned. Verdins principle 2 is engaged as I consider your physical and mental health conditions, in particular, mean a community correction order (CCO) is open to me.
2. So far as Verdins principle 5 is concerned, I accept given your complex mental conditions it is likely the sentences I impose will weigh more heavily on you than they would on a prisoner in normal health.
3. Verdins principle 6 requires there be 'a serious risk of imprisonment having a significant adverse effect on the offender's mental health' for this consideration 'to mitigate punishment'.[28]
4. Ms Cidoni further opines:

Imprisonment would impose a disproportionately heavy burden on Ms Sutherland due to her complex mental health conditions, untreated ADHD, trauma-related symptoms, and significant cardiac and autoimmune illnesses. Her mental health profile, characterised by chronic anxiety, depressive symptoms, trauma-related hyperarousal, and impaired impulse control, increases her vulnerability to psychological deterioration in custodial settings where environmental stressors, lack of autonomy, and unpredictable routines are common. These vulnerabilities would make imprisonment more burdensome than for the general population, heightening distress, impairing emotional regulation, and increasing the risk of destabilisation.

... Custodial environments are not well equipped to provide the high level of medical oversight and responsiveness her condition requires... This physical vulnerability amplifies psychological stress, further increasing the risk of psychiatric decompensation in custody.

Her combination of medical and psychological impairments would also create significant barriers to rehabilitation within the prison system... Accessing and benefiting from rehabilitative opportunities would therefore be significantly more difficult for Ms Sutherland than for the general prisoner population.

1. Accordingly, I am satisfied Verdins principle 6 is engaged in your case and you will be sentenced on that basis.

1. I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[29] and DPP (Vic) v Dalgliesh (a Pseudonym)[30] and the Victorian Court of Appeal decisions in DPP v Zhuang[31] and DPP (Cth) v Thomas.[32] I have also had regard to the comparable cases I was referred to by your counsel.[33]
2. While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[34]
3. Moreover, it is difficult to gauge more than a general yardstick from so-called 'comparable cases', given the wide range of offending conduct that can constitute this offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
4. The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it, the effect of your offence on the victims and your personal circumstances.
5. In sentencing you for this crime I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.
6. Just punishment, denunciation and general deterrence are the primary sentencing considerations in this case. These consideration need to be sensibly modified on account of your personal circumstances. Moreover, I consider some weight, albeit also modified, needs to be given to specific deterrence and protection of the community. However, given your minor criminal history and low to medium risk of reoffending I will give these considerations very limited weight. As I observed earlier, I assess your prospects of rehabilitation as being fairly good.
7. The parsimony principle requires I not impose a sentence that involves your confinement unless I consider that the purpose or purposes for which this sentence is imposed cannot be achieved by a sentence that does not involve a term of imprisonment.[35]
8. As the Victorian Court of Appeal observed in Boulton v The Queen:[36]

It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[37]

1. As I earlier observed, I had you assessed for suitability for a CCO and received an extended pre-sentence assessment - outcome report dated 15 October 2025[38] and a mental health community corrections screening program report dated 15 October 2025.[39] You have been assessed as suitable for a CCO. Unpaid community work, supervision, drug treatment counselling, alcohol treatment counselling, mental health treatment, and offence specific programs were recommended as conditions to be included in the CCO, which I accept.[40] However, I also consider it necessary to impose a judicial monitoring condition.
2. Accordingly, I imposed the sentence and made the other orders set out at the start of these reasons.

[1] Contrary to s 77 of the Crimes Act 1958 ('CA').

[5] See R v Miller [1995] VicRp 60; [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Lomax [1998] 1 VR 551, 559-560 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O'Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).

[6] [2012] VSCA 302; (2012) 37 VR 658 ('Hogarth').

[7] Ibid 659 [1] (Maxwell P, Neave JA and Coghlan AJA).

[9] DPP v Brown [2004] VSCA 133; (2004) 10 VR 328, 336 [43] (Vincent JA) cited in Hogarth 667 [34].

[10] [2014] VSCA 314; (2014) 44 VR 486 ('Meyers').

[11] Ibid 498 [47]-[49] (Maxwell P, Redlich and Osborne JJA).

[18] [1998] VSCA 39; (1998) 103 A Crim R 51 ('Cooper').

[19] Cooper 55 (Tadgell JA agreeing). See also R v Raptis (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).

[20] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .

[21] Barbaro v The Queen [2010] VSCA 288; (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) ('Barbaro').

[22] Barbaro 365-66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).

[23] [2013] VSCA 95 [36].

[24] [2012] VSCA 140; (2012) 37 VR 594.

[27] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[28] Verdins 276 [32(6)] (emphasis added).

[29] [2016] HCA 48; (2016) 259 CLR 256, 266-268 [21]-[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[30] [2017] HCA 41; (2017) 262 CLR 428, 444-447 [47]-[58] (Kiefel CJ, Bell and Keane JJ), 452-455 [78]-[85] (Gageler and Gordon JJ).

[31] [2015] VSCA 96; (2015) 250 A Crim R 282, 292 [30]-[31] (Redlich, Priest and Beach JJA).

[32] [2016] VSCA 237; (2016) 53 VR 546, 606-609 [173]-[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]-[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]-[56] (Emerton JA, Priest JA agreeing).

[34] See DPP (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41; (2017) 262 CLR 428.

[35] See Sentencing Act 1991 (Vic) s 5(4) ('SA').

[36] [2014] VSCA 342; (2014) 46 VR 308.

[37] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).