DPP v Vaisey [2021] VSC 584

1 Brett Vaisey, on 2 March 2021 you pleaded guilty to the attempted murder of Annick Henenberg. It now falls to me to sentence you according to law.

2 The maximum penalty for attempted murder is 25 years in prison.[1]

3 You were born on 8 August 1964 and were 55 years of age at the time of the offending on 26 January 2020.

4 In January 2020 you were living in a unit in Elwood and had been a resident at this complex for the past 18 months. There are 24 units on the property and a communal laundry situated between units 14 and 15.

5 Ms Henenberg lived at unit 10 in the same complex.

6 Between December 2018 and July 2019 Ms Henenberg lodged eight separate formal complaints to the Prahran Housing Office in relation to you. She had complained of your abusive behaviour when occupying the laundry room and other incidents that occurred during your day-to-day encounters.

7 You had previously had a verbal dispute with Ms Henenberg in relation to the noise when she used the laundry.

8 On the day of the incident, Sunday 26 January 2020, Ms Henenberg had been walking to and from the laundry room. You and Ms Henenberg had argued in relation to the noise.

9 At approximately 6:21pm, Wade Miller, who lives with his mother, Diane Miller, at unit 21, reported to emergency services that you had been standing out the front of your unit with a large carving knife. Mr Miller detailed that you had pointed the knife towards him in a stabbing motion.

10 At approximately 6:34pm police attended the property in relation to Mr Miller's report.

11 When the police spoke to you, you denied the accusation of having a knife and said it was false, and admitted that you had been drinking. You told the police about some of the issues that you had been having with Ms Henenberg and Mr Miller. You said that Ms Henenberg had been going back and forth to the laundry in such a way as to provoke and intimidate you.

12 At approximately 6:57pm the police left and considered no further police action was required.

13 At approximately 7:12pm, you called emergency services reporting that police had attended earlier and that you were being harassed by Ms Henenberg. You said that Ms Henenberg was 'drunk' and 'carrying on' and that you were also drunk. You said to the call taker, 'I'm a guy, I don't want to go off here, but I need some help alright?' 'If I keep on getting harassed by them I might actually lose my temper'.

14 At approximately 7:25pm Ms Henenberg walked back from the laundry room into her unit. You were seen by CCTV rushing out towards Ms Henenberg's unit armed with a knife. Ms Henenberg was not aware of your movements and you did not attempt to engage with her. A short time later, Ms Henenberg exited her unit and walked towards the laundry room again. Prior to doing so, Ms Henenberg commenced an audio recording on her phone. You approached Ms Henenberg and without warning began stabbing her with a large kitchen knife. The knife's blade was approximately 20 centimetres in length.

15 Ms Henenberg immediately fell to the ground screaming. You stood over Ms Henenberg and continued stabbing her until the blade became detached from the handle. Ms Henenberg sustained multiple wounds to her neck, abdomen and back.

16 After the knife had broken, you resorted to punching and kicking Ms Henenberg to the face and head multiple times.

17 The audio recording which Ms Henenberg commenced just prior to the assault, records you berating her during and after the assault. Some of the comments you made include:

• 'Piece of shit. Die';
• 'If I'm going to jail. It's worth it. You know what I mean';
• 'Die you fucking cunt. C'mon, die you fucking cunt. You asked for this. Die, fucking die';
• 'You're always causing problems (inaudible)'; and
• 'Thanks Wendy..... (inaudible) you set me up so I'm gonna finish it'.

18 Wade Miller and Diane Miller witnessed the assault and called emergency services requesting police attendance.

19 John Bernard Seymour who resides at unit 8, went outside when he heard Ms Henenberg screaming. Mr Seymour saw you were standing over Ms Henenberg striking her with your right hand to her left torso area approximately three to five times. You then walked towards Mr Seymour who asked you 'what the fuck have you done Brett?' You replied 'I've killed her'. At this time, Ms Henenberg tried to sit up and you said to Mr Seymour 'no, she isn't. It looks like I'm going to have to finish her off'.

20 Mr Seymour told you 'no you're not' and grabbed you to prevent you from further assaulting Ms Henenberg. Mr Seymour walked you towards the front entrance until police arrived.

21 Upon arriving at the scene, police attended to Ms Henenberg and applied first aid. Ambulance officers attended and treated Ms Henenberg's life threatening injuries before she was transported to the Alfred Hospital.

22 You were arrested at the entrance of the property. I have extracted the following comments from the prosecution's opening and bodycam footage of your arrest.[2] When asked where the knife was, you told the police 'it's broke' and 'I did it'. You went on to say to the police 'she was out the front door, provoking me', 'I didn't want to do it, but she provoked me', 'she wouldn't leave me alone, calling me a red faced cunt', 'I didn't want to do it, but she kept pushing me', 'no offence, I hoped I killed her', and 'that punk Wade Miller who caused this is next'.

23 You also made the following more remorseful comments, 'throw me in jail, what I've done I'll wear it', 'I want to die', 'I'm sorry about it, but she pushed me', 'I didn't want to do it, I really didn't want to do this', 'this is bad mate, I know, I'm sorry', 'I didn't want to hurt her', 'what have I done?', 'I hope she's alive', 'fuck my health, I've just done something bad', and 'I didn't want this to happen. Sorry, I regret it, but she kept pushing me, every day'.

24 You provided a largely 'no comment' response to the allegations in the formal video interview following arrest, however, you did admit, amongst other things that:

• you understood the gravity of what you had found yourself in;
• you had spoken to a solicitor;
• you had been constantly harassed by Ms Henenberg and other people; and
• you were drunk when speaking with attending police at the scene.

25 In that interview you also made statements to the effect that:

• you were not making excuses for yourself but you had mental health issues;
• you again denied pulling a knife on Mr Miller prior to the attack and said it was a false claim; and
• when invited to say anything else by the police, you said 'can't remember half of what happened'.

26 Ms Henenberg sustained life threatening injuries as a result of your attack. On presentation to the Alfred Trauma Unit, Ms Henenberg was in cardiovascular shock. She suffered multiple injuries which were described by Dr Moller from the Victorian Institute of Forensic Medicine as follows:

Annick Henenberg sustained multiple applications of sharp force, such as may be sustained by a knife or similar object, notably penetrating her neck, abdomen and left arm. She also sustained sharp force injuries to the right side of her back causing incised wounds with surrounding bruising ... As a result of these injuries she sustained life-threatening injury to her liver and abdominal vessel, requiring blood transfusion and emergency surgery. Without this she would have certainly died from her injuries. As a result of her injuries the muscle in her left forearm was damaged and she had difficulty with some activities of daily living at the time of her discharge from hospital.[3]

27 Ms Henenberg is currently 66 years old. At the time of the incident, Ms Henenberg was a counsellor for Grief Line and an active member of her community. Ms Henenberg enjoyed physical exercise, volunteering, socialising and had a new puppy which she would walk daily to socialise and train him.

28 Ms Henenberg has provided a moving victim impact statement to the Court. She describes her injuries and the ongoing physical impact of her injuries on her everyday life. Ms Henenberg still receives fortnightly counselling and describes how she now has poor sleep, is hyper vigilant when she walks, and no longer trusts anyone. She describes her feelings of anxiety, grief, depression, loss of trust in others, and a loss of enjoyment in her social life and community activities. Ms Henenberg is unable to be a counsellor for Grief Line given her own trauma. Ms Henenberg is still living at the complex where the attack occurred and is seeking a transfer to somewhere she might feel safe.

29 Ms Henenberg's neighbour, Wendy Morrissey, also provided a victim impact statement to the Court. Ms Morrissey recalls feeling shocked and horrified on witnessing your attack, and waiting in fear in her unit for police to arrive. She finds it hard to concentrate and no longer socialises. Ms Morrissey moved to a new house following the offending, but continues to feel unsafe.

30 The sentence I am about to impose reflects a large number of factors which judges are required by law to take into account. One of those factors is the victim impact statements that I have received. I turn now to another factor: your personal circumstances.

31 The Court has received comprehensive reports by Dr Fiona Best, consultant psychiatrist, and Mr Luke Armstrong, consultant psychologist. Dr Best also gave evidence on 2 September 2021. Both Dr Best and Mr Armstrong's reports contain a very detailed account of your background which I have relied upon for the following summary.

32 It is necessary for me to set out with some detail your early formative years.

33 You are 57 years old now and you were born in Sydney and raised in the western suburbs. You have never married and have no children.

34 You were born with a rare genetic disorder, Sturge Weber syndrome (type 1) ('syndrome') which has caused you to have left-sided facial disfigurement which has progressively worsened with age.[4] You have epilepsy and glaucoma secondary to the syndrome, and a tracheostomy was fitted four years ago to treat the severe upper airway obstruction caused by the syndrome.

35 You previously worked in construction and administration, but had not found work since having the tracheostomy. You have been on a disability support pension for four years.

36 You have a significant childhood trauma history and were subjected to and witnessed family violence perpetrated on you and your mother by your father. Your father was a violent alcoholic and would regularly physically assault you, your mother and brother.

37 Your father sexually abused you from when you were seven years old to 12 years old. The sexual abuse was often accompanied with physical violence, described by Mr Armstrong as sadistic in nature. Your father's abuse continued despite you telling your mother. You encountered relentless bullying at school and described your school experience as one of isolation and taunting directed at your medical condition and associated disfigurement.

38 Your mother left your father when you were approximately 13 years old and moved to Queensland, leaving you with your paternal grandparents. From 13 years of age you had no stable living environment and you were sometimes sent to stay with your maternal uncle, who also sexually abused you until your late teens.

39 You attended at least five high schools due to your unstable living arrangements. The bullying continued at high school and included physical bullying.

40 You left school in Year 11 and eventually found work in heavy industry. You then obtained work with Parramatta City Council when you were 19 years old, and you recall this is when you learned to read and write and were well supported in this position. You eventually moved to Melbourne where you got to work at Carlton United Breweries. You did not drink alcohol until this time. You began using alcohol to self-medicate and your drinking quickly escalated such that you were intoxicated on a daily basis.

41 You returned to Sydney at 26 years of age and obtained full-time work as a storeman in addition to caring for your grandparents. You continued a pattern of daily drinking. Throughout this time you felt intermittent hostility and paranoid feelings with regard to your perception of others, in particular how other people viewed or judged you.

42 Your grandmother died in 1996 and this was particularly difficult for you. Your drinking escalated and your life deteriorated, leading to events such as driving your car into the Parramatta Courthouse when intoxicated. From 1996 you described your life becoming a blur and that alcohol abuse defined your life. You were admitted to Bloomfield Psychiatric Hospital in 1997 in the context of a psychiatric breakdown and alcohol abuse. You were subsequently diagnosed with bipolar disorder for the first time.

43 You had over 20 psychiatric admissions up until 2005 across various States and continued to be diagnosed with bipolar disorder and alcohol use disorder.

44 You were admitted in 2009 to hospital and the medical records reveal that you threatened to kill your neighbours in a boarding accommodation. You were detained involuntarily for 24 hours.

45 Your criminal record, which I will come back to, came about within a context of itinerate accommodation, social isolation, unemployment and periodic relapses as a consequence of your non-compliance with your medication. There is a history dating back to 1996 of suicidal ideation, accompanying periods of low mood, situational crises and homelessness. Your medical records cite a complex interplay of medical and psychosocial problems related to your syndrome, and epilepsy.

46 You began to display a level of stabilisation from 2010 onwards. You actively attempted to stop drinking but could never remain sober for long periods.

47 From 2016 to 2019 you lived in emergency boarding-style accommodation. You report how the advent of mobile phones led to significant and increasing harassment, that people would take photos of you without your consent, and in many situations your neighbours have harassed and taunted you. You admit to retaliating to the harassment and taunts and concede it is something you learnt from a young age.

48 During 2016 to 2019 you would consume three to four longnecks of beer per day. You were non-compliant with your medication for months at a time, especially in the context of binge drinking.

49 In the month prior to your offending, your drinking had escalated to five longnecks per day.

50 In the period prior to the incident you began abusing strangers within the context of perceived taunting. You attended your GP to get help for your behaviour but didn't disclose the full extent of your drinking problem and regrettably didn't receive the help you needed.

51 Your criminal record reflects a criminal history of malicious inflicting grievous bodily harm in 1993; malicious damage in 1997; obstructing police and vagrancy charges in 2000; and stalling and false representations to police in 2009. While the malicious inflicting grievous bodily harm is relevant, it occurred 28 years ago. None of the other priors are particularly relevant to the subject offending.

53 In summary, Mr Armstrong considers that you present with a 30 year or more history of heavy alcoholism and all of the necessary features consistent with alcohol use disorder.[5] He noted that your history documents mental illness including major depression, bipolar disorder, and features of psychosis and schizoaffective disorder.[6] The most frequent diagnosis in your history is bipolar disorder, which has been at a severity requiring involuntary treatment at times in your life.[7]

54 Mr Armstrong is of the opinion that you present with a long history of borderline personality disorder.[8] He explains that the personality disorder is of the kind which is chronic and pervasive and creates inflexible patterns of perceiving and responding to the environment.[9]

55 At the time Dr Best assessed you, she considered there was no evidence of any acute symptoms of a major mental illness and that you were not in need of immediate psychiatric treatment.[10] She noted that you are currently being treated with lithium for mood stabilisation and sodium valproate for epilepsy, and that you have benefited from those medications.[11]

56 Dr Best said that based on the account of childhood trauma, you had traits suggestive of post-traumatic stress disorder ('PTSD') with a differential diagnosis of complex post-traumatic disorder.[12] She noted that your symptoms of PTSD are likely to be exacerbated by stressful experiences, particularly interpersonal conflict.[13] She also noted that you had a history of alcohol abuse and, on clinical assessment, a diagnosis of alcohol use disorder, in early remission, in a controlled environment.[14]

57 Dr Best considered that you present as having a fragile personality structure irreparably damaged by trauma which included a lifelong physical disability, childhood trauma and a stigma of physical disability and the stigma of mental illness.[15] Dr Best agreed with Mr Armstrong that there are aspects of your history consistent with borderline personality organisation[16] and that you have traits that are strongly suggestive of a personality disorder.[17]

58 Dr Best notes that there is a relationship between Sturge Weber syndrome and psychiatric symptoms, and recommends further investigation.

59 Dr Best agreed that there is no evidence that you suffer from an intellectual impairment.[18] While there was evidence from Dr Best about the role that your epilepsy may have had during the offending, the medical evidence did not rise to the level of establishing that any seizure related to your epilepsy contributed to your offending. However, the evidence of your bipolar affective disorder, alcohol use disorder, traits of PTSD, and traits of borderline personality disorder was uncontested.

60 Dr Best confirmed that your diagnosis of bipolar affective disorder is an accepted mental impairment and an enduring mental illness.[19] You also have an enduring physical disability that is progressive and has worsened with age.[20] The physical consequences of your syndrome are severe and include facial disfigurement, epilepsy, glaucoma requiring a trabeculectomy, and severe upper airway obstruction requiring a tracheostomy.[21] The tissue that is associated with your syndrome has progressively infiltrated the entire left side of your face, eye and neck, and inside of your mouth.[22] The ongoing deterioration in your physical condition as the result of your syndrome, and natural decline due to your advanced years, are relevant factors in my assessment of your case.

61 Dr Best considered that at the time of the offending it is likely that your ability:

to understand wrongfulness, think clearly and make calm reasoned decisions and exercise appropriate judgment or control [your] emotions or faculties was impaired as a consequence of a mental illness, epilepsy, personality difficulties, a trauma history, and alcohol intoxication.[23]

62 Dr Best went on to say that your mental functioning as a consequence of your disability means that incarceration may weigh more heavily on you than it would on other individuals.[24] She considers you are likely to be vulnerable in prison and are at an increased risk of relapse of your mental illness while incarcerated because you are likely to have less adaptive coping strategies in stressful situations due to your disability.[25] Dr Best considers you should continue with regular psychological and psychiatric input as it has been beneficial for you.

63 In R v Verdins,[26] the Court of Appeal set out a series of principles which judges must have regard to when sentencing offenders who present with impaired mental functioning ('Verdins principles').

64 Your counsel, Mr Desmond, submitted that the Verdins principles should influence your sentence due to your diagnosis of mental illness. Specifically, he submitted that:

(a) your impaired mental functioning reduces your moral culpability;

(b) the weight given to general deterrence should be moderated;

(c) the weight given to specific deterrence should be moderated;

(d) any custodial sentence imposed on you will weigh more heavily than it would on a person of normal health; and

(e) your mental health will likely deteriorate or be exacerbated by reason of a lengthy term of imprisonment.

65 For the first three factors to apply, there must be a direct connection between your impaired mental functioning and your moral culpability. The degree to which your mental condition contributed to your offending will also be relevant to any moderation in general or specific deterrence.

66 The prosecution did not dispute Dr Best's conclusion that your pre-existing mental conditions had an effect on your ability to make calm, reasoned decisions, and exercise appropriate judgment within the ambit of the Verdins principles. However, the prosecution disputed the extent to which your mental conditions contributed to your offending and, in particular, submitted that the Court should be sceptical of Dr Best's opinion that your ability to understand wrongfulness was impaired by your afflictions.[27] The prosecution pointed out that, by your guilty plea, you admit to understanding the wrongfulness of your actions.

67 I am satisfied that sufficient evidence has been placed before the Court to enliven the Verdins principles. Specifically, I am satisfied that your bipolar affective disorder, traits of PTSD and traits of borderline personality disorder made you incoherent and disinhibited, and impaired your ability to make calm and rational choices and exercise appropriate judgment. As such, I accept Dr Best's conclusion that your mental impairment was directly connected to your offending, and note that Dr Best did not resile from that conclusion under robust cross-examination.

68 I am also satisfied that your mental health history and criminal history demonstrate that your propensity to offend is linked to a deterioration in your mental health. Your actions are in keeping with your behaviour when unwell in the past.

69 While you accepted the wrongfulness of your conduct at a level sufficient to establish criminality, I consider that the scope of your moral reasoning was impaired as a result of your confused state of mind, and this has factored in my assessment of your moral culpability.

70 The relevance of your intoxication depends on the extent to which your decision to begin to use alcohol is properly described as voluntary. As noted by Buchanan JA in R v McKee,[28] in the context of drug addiction:

The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question ... I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.[29]

71 I am satisfied that despair and low self-regard, social disadvantage, poor education and emotional and physical abuse all contributed to your decision to commence using alcohol as a young adult, and your subsequent development of alcohol use disorder. During her evidence, Dr Best considered that your misuse of alcohol serves in some ways to counteract the trauma you experienced in your childhood and later in adult life,[30] and that alcohol use is not uncommon as an avoidance behaviour in individuals suffering from post-traumatic stress.[31] She also noted that substance abuse and emotional dysregulation are features of borderline personality types.[32]

72 Accordingly, I do not accept the prosecution's submission, to the extent it was made, that it is necessary for me to attempt to isolate the effect of your intoxication from the other factors identified by Dr Best as contributing to your offending. While I do not consider that your intoxication lowers your moral culpability, I do not regard it as diminishing the application of the Verdins principles given its nexus with your traumatic history and the other conditions that caused you to have impaired mental functioning at the time of offending.

73 It is also clear from the evidence that your childhood deprivation and trauma have impacted on your ability to control your impulses, independently of your state of intoxication at the time of offending. The relationship between childhood trauma and impulse control may reduce an accused's moral culpability in accordance with the principles set out in Bugmy v The Queen,[33] in addition to informing the application of the Verdins principles, in an appropriate case.[34]

74 I consider that yours is such a case. I am satisfied that your traumatic history - beginning with physical and sexual abuse in childhood, and continuing with taunting, bullying and marginalisation throughout your adult life - has both directly impaired your impulse control, and contributed to your development of a mental impairment within the ambit of the Verdins principles. That is not to say that the Bugmy and Verdins principles operate cumulatively in your case, but reinforces the relevance of your traumatic history, and its effect on your mental functioning, to my assessment of your moral culpability.

75 Despite your reports to the police of having been provoked by Ms Henenberg, I am satisfied that she was not responsible for the confrontation. However, I accept Dr Best's evidence that your level of preoccupation with Ms Henenberg, feelings of being persecuted, and genuine belief that she posed a threat to you, were all manifestations of your ill health.[35] These manifestations were particularly pronounced on the day of your offending. Your confused statements to the police immediately after your arrest - which alternated between concern for Ms Henenberg, an attempt to justify your actions, threats to Mr Miller, and expressions of remorse - further demonstrate your impaired judgment and reasoning ability at the time of offending.

76 It follows from this analysis that, applying the Bugmy and Verdins principles, your moral culpability for the crime of attempted murder is reduced. I accept that five of the six limbs of Verdins are enlivened in your case and that, in particular, it would not be appropriate to use you as a vehicle for general or specific deterrence. I also accept that imprisonment will be more burdensome for you given your mental illness and facial disfigurement. While it does appear that you are receiving appropriate treatment in prison and that your mental health has stabilised, I accept that your vulnerability will be increased by your impaired adaptive coping strategies in stressful situations.

77 I turn now to the seriousness of your offending.

78 At the plea hearing there was disagreement between the prosecution and your counsel about the type of inquiry required to assess the gravity of your offending - specifically, whether your subjective circumstances can factor in that assessment.

79 The disagreement appears to have arisen as a result of confusion between the assessment of the gravity of offending, and the assessment of the gravity of an offence. Chapter 5 of the Victorian Sentencing Manual, to which I was taken by your counsel, notes that the Sentencing Act 1991 (Vic) ('the Act') prescribes a number of non-exclusive circumstances relevant to determining the gravity of offending, one of which is the 'nature and gravity of the offence' under s 5(2)(c). Relevantly, the Court of Appeal has noted that s 5(2)(c) is directed to:

... an assessment of the objective gravity of the offence in respect of which sentence is to be imposed.

In making that assessment, the Court must consider and take into account matters such as the nature and effect of the actions of the offender and the objective circumstances of the offence.[36]

80 My conclusions about the gravity of your offending are informed by the Court of Appeal's observations in addition to the other circumstances of your offending, including your personal circumstances.

81 Your attack on Ms Henenberg represents a serious example of the offence of attempted murder. Attempted murder is, by its nature, very serious offending as it involves the intention to kill. While some instances of this crime may not involve any actual physical injury to the victim, you inflicted a sustained attack on Ms Henenberg with a knife, causing lacerations and life threatening penetrating stab wounds to her body, head and limbs. You continued to punch and kick her even after the knife had broken. Your offending was a vicious assault on a woman who was a neighbour moving about her home and its surrounds. The attack was entirely unjustified and unprovoked.

82 I accept that the evidence does not suggest that there had been careful planning over days, weeks or even hours. However, there was at least some level of planning and premeditation in that you had armed yourself with a knife at approximately 7:25pm and waited for Ms Henenberg. A very short time later when Ms Henenberg exited her unit and walked towards the laundry room again, you approached her and without warning began stabbing her.

83 The attack was ferocious and Ms Henenberg was an unarmed woman of advanced years. The attack occurred at the place where she lived where she was entitled to feel safe. Even after the stabbings ceased, you continued to punch and kick Ms Henenberg. The attack, as I have said, was accompanied by degrading and demeaning language. Ms Henenberg's injuries were life threatening. Your attack on Ms Henenberg has resulted in a severe impact on her life and left her with physical and psychological impairments including, extensive scarring, financial impact and significant social and personal impairments in her daily life.

84 Unquestionably, this is a serious example of the offence of attempted murder but the degree of premeditation was limited and you believed at the time that you had been provoked. In my view, this is a mid-range example of the offence of attempted murder.

85 You pleaded guilty at an early opportunity. It is submitted that you accepted responsibility for your conduct by pleading guilty and it was an early one without the need for either committal or trial. A great deal of police and court resources have been saved and witnesses have been spared from giving evidence in a trial. I accept that your plea of guilty deserves significant weight as a factor in mitigation of sentence.

86 Your counsel drew attention to the fact that during the COVID pandemic the guilty plea is to be given the full sentencing discount. The Court of Appeal recently in Worboyes v The Queen said that all things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effect.[37] The Court of Appeal noted:

One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.[38]

87 This has factored in my determination of your sentence.

88 In sentencing you, I am required to have regard to the following matters: just punishment, deterrence, rehabilitation, denunciation, protection of the community, or a combination of the above.[39]

89 I have already considered deterrence in the context of the Verdins principles.

90 Your counsel acknowledged that just punishment and denunciation are important factors, due to the inherent seriousness of the offence of attempted murder. This is consistent with the prosecution's position and I respectfully agree. The community should have absolute confidence that the courts will severely punish and denounce those who attempt to murder another human being. I hardly need remind you that Ms Henenberg's life has been marred forever due to your actions.

91 It is submitted that you have reasonably good prospects for rehabilitation given your age and limited offending in the past and that with appropriate mental health treatment and alcohol abuse treatment your prospects should be seen as guarded to reasonable. Reference was made to the fact that prison is a greater hardship for prisoners in current times due to the COVID-19 pandemic, and in particular in your case it means a reduced ability to participate in programs and jailhouse recreation.

92 The prosecution submitted that your comments in the immediate aftermath of your attack on Ms Henenberg, including threats made towards Mr Miller, are evidence that you represent a danger to the community. You also have a prior conviction for a violent offence, and non-violent offences. Having said that the violence offence occurred approximately 28 years ago. You are also showing insight into your illness and are taking your medication, which is promising. In my view, your prospects of rehabilitation are not closed; they remain reasonably open.

93 In the circumstances, I do not consider that protection of the community is a sentencing objective that I should give much weight.

94 I turn to the issue of remorse. It was put to the Court that your guilty plea was reflective of genuine remorse. The plea was early and you have apologised to the victim, the community and the Court for your offending conduct through your counsel. You have written letters to this effect and have requested that your accumulated emergency days, to which you would otherwise likely be entitled to have deducted from your sentence due to the impact of COVID-19,[40] be struck out.[41] You said to Dr Best that you have since realised that Ms Henenberg just wanted attention and that you felt very guilty and bad about what you had done.[42] I accept that you are genuinely remorseful and accept responsibility for your actions.

95 I have had regard to the applicable current sentencing practices and the comparable cases referred to by the parties.

96 I have also taken into account your age, your mental health and physical health which is seriously affected by the syndrome. Your condition will regrettably continue to deteriorate.

97 Under the principle of parsimony set out in s 5(3) of the Act, I am required to impose a sentence that is no more than is necessary to achieve the purpose or purposes for which the sentence is imposed.

98 Brett Vaisey, I sentence you to 7 years' imprisonment with a minimum non-parole period of 4 years and 6 months.

99 Pursuant to s 18 of the Act, I declare that you have served 599 days of presentence detention, excluding today.

100 Pursuant to s 6AAA of the Act, I declare that were if not for your plea of guilty, I would have sentenced you to 9 years' imprisonment with a minimum non-parole period of 6 years.

[1] Crimes Act 1958 (Vic) s 321P(1A).

[2] Exhibit P4 (Body worn camera footage of Constable Woods of the accused's arrest).

[3] Summary of prosecution opening upon plea dated 16 April 2021, 9 [30].

[4] Supplementary psychiatric report of Dr Fiona Best dated 12 August 2021 ('Supplementary Best Report') 6.

[5] Psychological report of Mr Luke Armstrong dated 21 May 2021 ('Armstrong Report') 9.

[10] Psychiatric report of Dr Fiona Best dated 13 July 2021 ('Best Report') 12 [2].

[15] Supplementary Best Report 7 [4].

[17] Transcript of Proceedings, DPP v Vaisey (Supreme Court of Victoria, S ECR 2021 0036, Incerti J, 2 September 2021) (_'_T') 35.24-36.4.

[19] Supplementary Best Report 8 [6].

[22] Supplementary Best Report 6 [1].

[26] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[28] [2003] VSCA 16; (2003) 138 A Crim R 88.

[33] [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').

[34] Director of Public Prosecutions v Herrmann [2021] VSCA 160, [78]-[88].

[36] Director of Public Prosecutions v Herrmann [2021] VSCA 160, [9]-[10].

[37] [2021] VSCA 169, [39].

[39] Sentencing Act 1991 (Vic) s 5(1).

[40] See generally Corrections Act 1986 (Vic) s 58E(1); and Corrections Regulations 2019 (Vic) reg 100.