[PROSECUTOR]: [Applicant], what I want to suggest to you is that ... you don't have a clear insight as to why you offended on this night, do you?---No.

Even as you sit now and look back at your offending, do you understand why you did what you did?---Ah yes. Um what triggered it off is when I was asleep on the bed and I felt something touch the - the rear of my rectum and that's when I assaulted [SM].

1. Beyond what appears immediately above, however, the applicant was neither asked how the 'multiple sexual abuses' had affected him (if at all), nor whether the histories he had given to Dr Brewer and Dr Sakdalan were the truth.

1. In his reasons for sentence the judge described the offending as 'serious'. The judge said that general deterrence, public denunciation, just punishment and community protection 'are important sentencing considerations in cases involving unprovoked violence against vulnerable people, such as a transgender sex worker working alone at night'.
2. The judge noted that the offending underlying the three charges 'is related and to some degree overlapping', so much being relevant to totality.
3. With respect to the applicant's personal circumstances, the judge noted that the applicant was born in New Zealand in 1993. He was sexually abused by his maternal aunt's partner from around the age of seven to 13. The judge accepted that the abuse continues to affect the applicant, and, citing Bugmy, said he would 'give this weight in the sentencing process'.
4. The judge noted that the applicant's parents separated when he was 19. A couple of years later he began a relationship, which lasted three years. The applicant has a daughter from that relationship, now aged 11 years. At the end of the relationship, the judge noted, the applicant began using methamphetamine. When the applicant's father moved to South Australia, the applicant followed in 2018. The applicant initially abstained from drug use, but eventually relapsed. He moved to Geelong in 2022. At the time of sentencing, the applicant was living with friends in Geelong and had stable employment as a glazier.
5. Further, the judge noted that the applicant suffered a head injury about two years previously. The applicant appeared to meet the criteria for PTSD, attention deficit hyperactivity disorder ('ADHD') and an ABI, although the judge said it was 'unclear how much these issues (as distinct from [the applicant's] substance use) contributed to [his] offending'. We will return to the judge's findings as to the relevance of these conditions under cover of the first ground.
6. Significantly, the judge does not appear to have accepted the applicant's evidence that he assaulted SM after being 'triggered' by SM touching his rectum.[12] He noted the discrepancies between the Prosecution Summary, and what the applicant had said in his evidence and to the psychologist who prepared a pre-sentence report,[13] remarking:

You also testified that you only assaulted [SM] after she had triggered you by touching your rectum while you were sleeping. This is completely at odds with the summary. There were similar discrepancies between the summary and the way in which you described the events of 22 January 2023 to Dr Sakdalan for the purposes of the Forensicare report, and during the Pre-Sentence Assessment.

Your departures from the summary appear to be an attempt (whether conscious or unconscious) to minimise or excuse your actions. This suggests that you are yet to acknowledge how serious your actions were or to achieve proper insight into your offending.

1. Although, as the judge noted, the applicant's criminal record was 'not unduly lengthy', it included offending involving drugs, alcohol and driving (often in combination). The judge accepted that the applicant had made 'good progress towards rehabilitation, with ongoing work as a glazier with an employer who values [him], stable living arrangements, mental health treatment, and much reduced substance use. Further, the judge noted the applicant's father's evidence that 'he felt like he had got his son back' since the applicant had stopped using methamphetamine. And the judge said:

The prospects for your continued rehabilitation depend on you continuing to engage in treatment for your mental illness and to avoid alcohol and drug use. I accept that sending you back to prison could interrupt the process of rehabilitation. However, there is no reason to think that you would not be able to return to work as a glazier on your release. Whether or not you go back to prison, I agree that your rehabilitation would be supported by an appropriately conditioned CCO.

1. Finally, the judge noted that the prosecution accepted that the applicant's plea of guilty should be considered 'early' and he said he would 'treat it as such'. By pleading guilty, the applicant had 'taken responsibility' for his conduct, and had 'saved, witnesses, prosecuting agencies and the community as a whole, time, money, inconvenience and uncertainty'. But he said:

Nevertheless, in my view, the seriousness of your offending demands that your sentence of imprisonment be longer than the period you have already spent on remand. However, the fact that you have served that period on remand means that I can still impose a combination sentence, provided that the sentence to be served after deduction of your pre-sentence detention is less than one year.[14]

1. In announcing sentence, the judge declared that, had the applicant not pleaded guilty, he would have sentenced him to four years' imprisonment, with a non-parole period of three years.[15]

Ground 1: Contention that 'insufficient weight' given to Bugmy principles

1. Counsel for the applicant submitted that the applicant first disclosed that he had been sexually abused as a child to his parents in 2018. The prosecution accepted the applicability of Bugmy principles on the plea. Moreover, the sentencing judge accepted that the applicant had been sexually abused by his maternal aunt's partner from approximately age seven to 13 years, and that the abuse continued to affect the applicant. The judge said that this was to be given 'weight' in the sentencing process.
2. Notwithstanding these matters, counsel submitted, the judge did not 'particularise' the 'degree' to which the applicant's 'profound childhood deprivation ameliorated the relevant sentencing principles, particularly moral culpability'. Although the judge found the applicant's moral culpability to be 'somewhat reduced', it is clear that this was an allusion to Verdins[16] considerations. The judge made no further mention of Bugmy, either to the degree of its applicability and 'weight' given to it, or to the particular sentencing factors that had to be ameliorated.
3. Counsel submitted that sexual abuse such as that experienced by the applicant has a significant impact on the mental health, social, sexual and interpersonal relationships of a person. A common feature of the Bugmy and Verdins principles is that they permit the court to view the offender's moral culpability as reduced, where through no fault of the offender, his or her psychological functioning or personality structure has become impaired.[17] A sentencing judge is permitted to draw upon both sets of principles for reduction in moral culpability, but it is not clear how the sentencing judge has done so in the applicant's case. Counsel submitted that the judge erred by not finding that the applicant's 'childhood deprivation, through sustained sexual abuse from someone close to him for many years', was a significant factor to be taken into account in sentencing, particularly so in relation to ameliorating the applicant's moral culpability and further reducing the weight to be given to specific deterrence.

1. Counsel submitted that the judge expressly stated that he gave 'weight' to the sexual abuse suffered by the applicant. This can only be understood as a general, non-specific, application of Bugmy.[18] Given the expert evidence, it was open to the judge to reject the specific application of Bugmy. Any suggestion that the applicant was 'triggered' by SM's actions is contradicted by the Prosecution Summary. The judge appropriately arrived at a single assessment of moral culpability,[19] drawing all relevant factors together.
2. The respondent's counsel submitted that the applicant's complaint that the sentencing judge erred in failing to mitigate specific deterrence on account of Bugmy principles was also without substance. As to that, the judge's statement that specific deterrence was 'tempered to some extent by [the applicant's] mental health issues' was an implicit recognition of the effects of his deprived upbringing through their manifestation in the applicant's mental health issues.
3. Finally, the respondent's counsel submitted that the applicant's complaint about the judge's failure to give weight to Bugmy factors should at best be regarded as a particular of the complaint that the sentence is manifestly excessive.

1. We consider that only very limited weight could be attached to the evidence of the applicant's sexual abuse.
2. In his reasons for sentence, the judge observed:[20]

[20] About two years ago you suffered a head injury. You appear to meet the criteria for a number of mental health and other diagnoses, including PTSD, ADHD and an acquired brain injury. However, it is unclear how much these issues (as distinct from your substance use) contributed to your offending:

1. Dr Warrick Brewer says that the evidence suggests you were 'likely impacted by substance use at the time of the offending', and that your mental health 'vulnerabilities arguably contribute' to your offending, but 'they should not be viewed as causal'.
2. Dr Joseph Sakdalan states that 'A confluence of different factors, such as alcohol intoxication, in conjunction with undiagnosed ADHD and the compromised cognitive and behavioural functioning due to the acquired brain injury, have contributed to impaired decision-making, consequential thinking and increased impulsivity'.

[21] On the basis of this evidence, I am willing to find that your moral culpability is somewhat reduced. I also take your mental health and other issues into account in a number of other ways.

[22] Dr Brewer is equivocal as to whether your mental health issues mean that prison would weigh more heavily on you. However, he does accept that a term of imprisonment is likely to exacerbate your anxiety and untreated trauma. Dr Sakdalan says nothing on either issue. I also accept that your mental health issues make you a relatively poor vehicle for general deterrence. However, your mental health issues are also one of the reasons why you are at moderate risk of violent reoffending.

[23] Although your criminal record is not unduly lengthy, it includes offending involving drugs, alcohol and driving (often in combination). The current charges represent a significant escalation in violence. There is a need for specific deterrence, albeit this is tempered to some extent by your mental health issues.

1. In our view, the judge's willingness to find that the applicant's moral culpability was 'somewhat reduced' is somewhat generous, as are the findings that the applicant's mental health would make the applicant 'a relatively poor vehicle for general deterrence' and that the need for specific deterrence was 'tempered to some extent' by the applicant's mental health issues.
2. Despite the applicant's evidence, we would reject the suggestion that the applicant was 'triggered' when SM touched his 'rectum'. That claim does not sit happily with the Prosecution Opening or with his account to Dr Sakdalan. Nor does it sit comfortably with the unchallenged evidence that the applicant started a text conversation with SM after viewing SM's website which offered sexual services, and in which it was prominently and repeatedly stated that SM was a transgender person possessing a penis. So much makes the applicant's claim to Dr Sakdalan that he 'was surprised to find out that the victim was a transgender individual' completely unworthy of belief.
3. In those circumstances, we would accept Dr Brewer's opinion that while the 'emotional dysregulation, risk for violence, and various forms of assault' associated with the applicant's PTSD 'arguably contribute' to the applicant's offending, they should not be regarded as causal. Indeed, we consider it more likely that the most significant factor contributing to the applicant's offending was his ingestion of illicit drugs.
4. Assuming, without deciding, that a ground of appeal contending that 'insufficient weight' was given to a relevant matter can ever be a freestanding ground of appeal - something about which we enjoy substantial doubt[21] - the contention in ground 1 that the sentencing judge failed 'to give sufficient weight to the principles set out in Bugmy' is, in light of the foregoing, unsustainable.
5. The judge found - as we have said, somewhat generously - that the applicant's moral culpability was 'somewhat reduced', a clear allusion to Verdins. As we have also indicated, despite this finding counsel complained that the judge did not 'particularise' the 'degree' to which the applicant's 'profound childhood deprivation ameliorated the relevant sentencing principles, particularly moral culpability' attracted Bugmy principles. There is, however, nothing in this complaint.
6. In discussion on the plea, the judge indicated that Bugmy could only apply in the 'general' way, both the 'general' and 'specific' application of Bugmy principles having been explained in Herrmann.[22] In his reasons for sentence, the judge cited Bugmy in support of a finding that the abuse suffered by the applicant 'continues to affect [him]' and was to be given 'weight in the sentencing process'. This is a general application of Bugmy, since, once the judge rejected the applicant's evidence of being 'triggered', there was little scope for any 'specific' application. Herrmann makes clear that, when applied 'generally', Bugmy operates so as to moderate an offender's moral culpability.[23] There is no reason to think that the sentencing judge did not apply Bugmy to that effect.
7. Insofar as the applicant's mental state had an impact on his offending, that mental state was - at least to some extent - a product of his upbringing. As the Court observed in Herrmann, when discussing the influence of Verdins and Bugmy principles on the imposition of sentence:[24]

A common feature of those two sets of principles is that they permit the court to view an offender's moral culpability as reduced where, through no fault of the offender, his or her psychological functioning or personality structure has been impaired. The impairment may be the result of some endogenous condition (such as schizophrenia) or of damage occasioned by neglect or violence or abuse during the offender's developmental years.

Sentencing is in no meaningful sense a 'counting' exercise, in which matters of aggravation or (in this context) mitigation are somehow 'added up'. Once each such matter has been identified, the judge must draw them all together in order to arrive at a single assessment of the offending and the offender. That is an exercise of judgment, informed by experience.

So far as the offender is concerned, the judge makes a determination of the moral culpability of the offender, and of the weight which should, as a matter of justice, be given to the sentencing purposes of general deterrence and specific deterrence. That determination reflects the judge's assessment of the offender based on a distillation of all of the relevant information.

1. The judge reasoned in accordance with this approach.
2. Ground 1 must fail.

Ground 2: Contention that sentence is manifestly excessive

1. In contending that the aggregate term of imprisonment was manifestly excessive, the applicant's counsel relied on a number of matters, including:
   • while the totality of the offending was appropriately described by the sentencing judge as 'serious', the injury to the victim was conceded by the prosecution to be 'relatively minor';
   • the applicant has a number of mental health issues, such that Verdins limbs 1, 3, 4, 5 and 6 were all engaged;
   • the applicant's prior convictions were not 'unduly lengthy';
   • the applicant had spent five months in custody in South Australia on a charge of which he was ultimately acquitted;
   • the applicant was bailed on 15 February 2024, and spent 385 days on bail up to being sentenced on 6 March 2025, and had during that time made good progress towards rehabilitation;
   • the applicant had pleaded guilty at an early stage; and
   • the applicant had expressed 'regret' for the offending.
2. The applicant's counsel submitted that the applicant has been required to serve a further term of imprisonment of comparable length to the period he had already spent on remand, and subsequently spent on bail. While it may have been within the permissible sentencing range to impose a term of imprisonment above the 387 days spent on remand, a proper synthesis of the factors relied upon meant that a further term of imprisonment of the magnitude ordered by the sentencing judge was not open to the judge in the sound exercise of the sentencing discretion.

1. Counsel for the respondent submitted that the applicant's expressions of remorse were markedly qualified, in that he sought to minimise his responsibility for the offending. The applicant notably gave evidence on the plea that 'there's stuff [in the Prosecution Opening] that generally didn't happen'. Further, the applicant represented that the offending occurred because of his surprise at finding out that the victim was transgender, and that he was 'triggered' by the victim touching his rectum while he was sleeping, both of these statements reflecting the applicant's lack of proper insight into the seriousness of the offending, and thereby emphasising the continued need for specific deterrence.
2. Further, although the judge found that the applicant's moral culpability was 'somewhat reduced' as a result of the application of Verdins and Bugmy, the applicant's moral culpability was not rendered insignificant. The objective gravity of the offending was also significant.

1. SM suffered an undisplaced nasal fracture as a result of being punched in the head a number of times by the applicant. An additional humiliating aspect of the applicant's assault was that he struck SM in the face with a toilet brush. Moreover, the applicant imprisoned his vulnerable victim for a period in excess of one and a half hours through aggressive verbal threats, and robbed SM in a place in which SM was entitled to feel safe. It was serious offending for which it is difficult to detect much in the way of remorse.
2. In our view, it cannot be said that the aggregate sentence of imprisonment imposed fails to give appropriate weight to the matters going in mitigation. As we have said, the judge took into account that the applicant's criminal record was 'not unduly lengthy', and accepted that the applicant had made 'good progress' towards rehabilitation, with ongoing work as a glazier, stable living arrangements, mental health treatment, and much reduced substance use. Moreover, the judge was prepared to find that, as a result of his mental health issues, the applicant's moral culpability was 'somewhat reduced'; that he was 'a relatively poor vehicle' for general deterrence; and that the need for specific deterrence was 'tempered to some extent'. We cannot see reflected in the sentence imposed that these matters were given insufficient weight.
3. Section 44(1) of the Sentencing Act 1991 permits a sentencing judge to make a CCO in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served after deduction of any period of pre-sentence detention 'is one year or less'. In this case, the judge was able to impose an aggregate sentence of two years' imprisonment because the applicant had already served more than a year in custody - 387 days - which the judge declared under s 18(1) to be pre-sentence detention already served under the sentence.[26]
4. The approach that this Court must adopt to a complaint that a sentence is manifestly excessive was set out in Leimonitis:[27]

As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[28] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[29] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[30] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[31]

1. We consider that the applicant's contention that the sentence imposed is wholly outside the range of those open in the sound exercise of discretion cannot be accepted. Synthesising all relevant factors bearing on the imposition of sentence - the circumstances of the applicant and the offending, and all aggravating and mitigating features - we are far from persuaded that an aggregate sentence of two years' imprisonment, coupled to a conditioned CCO of two years' duration, is manifestly excessive.
2. Ground 2 cannot be upheld.

1. Leave to appeal against sentence should be refused.

[2] Crimes Act 1958, s 18. The maximum penalty is five years' imprisonment.

[3] A common law offence. By virtue of s 320 of the Crimes Act 1958, the maximum penalty is 10 years' imprisonment.

[4] Crimes Act 1958, s 75. The maximum penalty is 15 years' imprisonment.

[6] As to the relevance of that, see [47] below.

[7] Bugmy v The Queen (2013) 249 CLR 571 ('Bugmy').

[12] See [13] above.

[13] See [10] above.

[14] Sentencing Act 1991, ss 18(1) and 44(1); Younger v The Queen [2017] VSCA 199 at [64] (Redlich and McLeish JJA and Croucher AJA). I also take into account the Renzella time of 168 days in South Australia acknowledged by the prosecution in an email dated 13 February 2025. [See R v Renzella [1997] 2 VR 88 ('Renzella').]

[15] See Sentencing Act 1991, s 6AAA.

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

[17] Counsel cited DPP v Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 127 [78]-[79] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) ('Herrmann').

[21] See DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 459 [5] (Maxwell P, Redlich JA and Robson AJA); R v Singh [2011] VSCA 317, [16] (Neave and Hansen JJA and Beach AJA); Rooke v The Queen [2011] VSCA 49, [26] (Ashley JA, Harper JA agreeing at [40] and Hargrave AJA agreeing at [42]); Pesa v The Queen [2012] VSCA 109, [10], [13] (Maxwell ACJ and Hansen JA).

[26] See Younger v The Queen [2017] VSCA 199, [64] (Redlich and McLeish JJA and Croucher AJA). We note the possible tension between the course adopted by the judge and the provisions of s 11(1)(b) of the Sentencing Act 1991. Since neither party suggested that the judge was unable to adopt the course that he did, however, we need not linger to consider the application of Younger vis-à-vis s 11(1)(b).

[27] Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA) ('Leimonitis').

[28] R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12] (Priest JA); Allen v R [2013] VSCA 44; (2013) 36 VR 565, 573 [51]-[52] (Priest JA).

[29] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

1. [31] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-672 [15] [Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ].