Laa v The Queen [2020] VSCA 136

1 The applicant pleaded guilty to one charge of using a carriage service to menace, harass or cause offence (contrary to s 474.17(1) of the Criminal Code 1995 (Cth)), one charge of aggravated burglary, one charge of common assault and one charge of making a threat to kill. The judge who heard the plea imposed a total effective sentence of four years' imprisonment, with a non-parole period that was, in effect, two years and two months.

Use a carriage service to menace, harass or cause offence

(Sentence to commence four months before expiration of the non-parole period on the State offences)

3 The applicant originally sought leave to appeal on the single ground that the sentence was manifestly excessive. In the course of oral submissions, counsel sought, and was granted, leave to add a further second proposed ground of appeal, namely, that the findings by the judge concerning the applicant's level of remorse, and his prospects for rehabilitation, were not supported by the evidence.

4 In 2006, the applicant commenced a relationship with YM, who was the victim of the offences. The relationship temporarily came to an end in 2010, but subsequently the pair reconciled. In due course, Ms M gave birth to the couple's first child in February 2011, and subsequently to their second child in April 2013.

5 In June 2015, Ms M and the two children moved from the family's address in Skye to a residence in Carrum Downs, which was leased in her name. The applicant resided at that address for a short time, but Ms M requested him to leave, which he did. During the period that followed, the applicant would visit the Carrum Downs house to see the children. On those occasions, he would stay at the house, and sleep in the lounge room. In 2016, he moved back into the home with Ms M and the children. However, Ms M subsequently terminated the relationship in late 2016 or early 2017, and the applicant again moved out of the house.

6 In the period that followed, the applicant continued to visit the Carrum Downs property on Friday nights to see the children. In May 2017, a verbal argument took place between Ms M and the applicant, as a result of which the applicant no longer remained overnight at the premises when he visited the children there. In November 2017, a further argument occurred. As a result, his regular Friday night visits to the children ceased. Thereafter, he continued to see them by mutual arrangement with Ms M.

7 On 19 January 2018, between about 11.20 pm and 12.50 am on the next morning, the applicant sent Ms M fourteen successive SMS messages, which were the subject of charge 1 (using a carriage service to menace, harass or cause offence). The eighth to thirteenth such messages were as follows:

I'm after your

I'm coming to finish you you up

I'll finis u

See you in minutes

I'll k or killing

See you in a minute

8 Ms M responded to those messages by advising the applicant that she had contacted the police. She also sent a message to him stating 'enough is enough'. Unsurprisingly, she felt frightened and concerned about the content of the messages.

9 On the same morning, at about 8.30 am, Ms M heard a vehicle outside the Carrum Downs home. She saw the applicant walking up the driveway, looking angry. The applicant banged on the front door and told Ms M to open it. Ms M told him to leave and said that she had called the police. However, the applicant persisted in banging on the front door, and making threats that if he was not let into the premises, he would come in himself.

10 The applicant then went down the side of the house and tried to break open a sliding door with an outdoor chair. Ms M responded by gathering up the children, and retreating to her bedroom. She attempted to secure herself and the children there by placing a door wedge under the door. In the meantime, the applicant smashed two front windows. He then gained entry through the unlocked front door. The foregoing circumstances constituted the aggravated burglary, that was the subject of charge 2 (that the applicant entered the Carrum Downs property with the intention to commit an offence involving an assault to a person in the premises).

11 Having entered the premises, the applicant began yelling and swearing. He forced open the door to the bedroom. At the time, Ms M was in the middle of a telephone call to the triple 0 emergency services. The applicant took the telephone from her, terminated the call, and struck her repeatedly to the head, face and neck with the telephone. The two young children, who were in the same room, were crying, and the four year old boy begged the applicant 'Daddy, please stop, don't hit mummy'.

12 Ms M left the bedroom and went into the hallway. The applicant followed her and continued to assault her. She then fled the house by the front door, but the applicant followed her, dragged her back indoors, forced her to the ground, and choked her, saying 'I'm going to kill you and then I'm going to kill your family. You don't know who I am and what I'm capable of'. That threat constituted part of charge 4 (make threat to kill).

13 The applicant then took the two young children and placed them in his vehicle. Having done so, he returned to the house, and punched Ms M in the face, knocking her to the ground. He then drove off, telling the older child that he was sorry.

14 A neighbour, who had heard the incident, telephoned the triple 0 emergency number. Ms M also called triple 0 again and reported that the applicant had taken her children and assaulted her. While she was on the telephone, the applicant returned to the house, banged on the front door and told Ms M to open it. She complied with that demand because she was concerned that he would otherwise gain entry through the broken window, and she did not wish to antagonise him. Having entered the house, the applicant pushed Ms M inside, locked the door, and struck her a number of times to the face with his fist. As he was doing so, he kept asking her 'Whose car is that?'. He again told Ms M that he was going to kill her whole family, and that he knew where they lived. That threat constituted the second part of charge 4.

15 Each of the physical assaults by the applicant on Ms M, in the bedroom, in the hallway, after he returned to the house having put the children in the car, and subsequently when he returned again to the house while she was on the telephone, constituted charge 3 (common law assault).

16 On the last occasion on which the applicant attacked Ms M, the triple 0 call was still open. The operator could hear the applicant yelling abuse at Ms M and her begging him not to hurt her. The police arrived at the scene at about 9.00 am. When they approached the front door they could hear the applicant yelling and Ms M whimpering inside the property.

17 After his arrest, the applicant was transported to Frankston Police Station where he was interviewed. He told the police that he had gone to the house because he wanted to see the children, and after he had taken the children, he went back inside to get some clothes for them. He denied assaulting Ms M or making threats to kill her. He told the police that the allegations made by Ms M were false.

18 Ms M attended Casey Hospital Emergency Department later on the same day. The doctor who attended her diagnosed her to have sustained multiple soft tissue injuries consisting of swelling, bruising, scratches and abrasions.

19 After the applicant was arrested and interviewed, he was charged and bailed. At a committal mention hearing in April 2018, the matter was listed for a contested committal proceeding, and the applicant's counsel was granted leave to cross-examine Ms M. The contested committal proceeding took place in November 2018. Ms M was cross-examined, and the applicant was committed for trial. At an initial directions hearing in the County Court, the matter was listed for trial in November 2019. Ultimately, on the first day of the trial, on 11 November 2019, the matter resolved. The applicant was arraigned, and the case was adjourned for a plea hearing, which took place on 17 February 2020.

20 The applicant was born in South Sudan in 1986. He was the youngest of eleven children. In 1998, when he was twelve years of age, his family left Sudan in order to escape the civil war that was then raging. The family moved to Cairo, where they remained for the next five years. During that time, the applicant's father died of a heart attack in 2001. The applicant, together with his mother and siblings, then migrated to Australia in 2003 as refugees.

21 The applicant attended school in Sudan and Egypt, completing Year 12 at secondary school. Subsequently, he completed certificates in financial services, as well as a diploma in financial banking services. In addition, he gained a certificate in real estate and a diploma in mortgage broking management.

22 Since 2004, the applicant had been engaged in regular employment. He worked on and off at grocery stores for a number of years. Favourable character references, from his employers at those stores, were tendered on his plea. He also undertook an internship with the ANZ Bank, and in that capacity he progressed from a teller to working in the management area. He ceased that employment in 2013 when he made a brief visit to Sudan. He then commenced a business in exporting and importing, but that enterprise was unsuccessful. As a result, he returned to working in the supermarket.

23 At some point before the offending, the applicant commenced working as a mortgage broker. His role was entirely commission based. He was unsuccessful, earned little income and was financially struggling. As a result, he resorted to drinking excessive quantities of alcohol, and it was in that context that he committed the offences for which he was sentenced.

24 After the applicant was released on bail, he completed a twenty week Men's Behaviour Change Group Program conducted by Relationships Australia between July and December 2018. He also completed a six session Psycho-Educational Anger Management Program that was conducted through the Three Seas Psychology Group, and he attended at his local general practitioner for the preparation of a mental health care plan. In addition, the applicant spent a substantial amount of time undertaking voluntary work with underprivileged youth in the Sudanese community.

25 The applicant was examined by Mr Warren Simmons, a consulting psychologist, in December 2019. Mr Simmons expressed the view that the applicant is of average intelligence. He noted that the offending had occurred in the context of the applicant's increasing alcohol consumption, which had arisen from the failure of his mortgage broking business. Mr Simmons recommended that the applicant undergo a brief period of drug and alcohol counselling. He considered that the applicant's prospects of rehabilitation were extremely good.

26 On the plea, the applicant relied on a number of mitigating circumstances. In particular, he had pleaded guilty, and his guilty plea was attended by remorse. He had no previous convictions, he was otherwise of good character, and he had a stable work and educational background. It was put that his achievements went to his credit, particularly given his background as a refugee whose family was forced to flee the civil war in Sudan. Counsel noted the steps taken by the applicant to rehabilitate himself. She submitted that accordingly the applicant had good prospects of rehabilitation.

27 In addition, it was submitted, the applicant had suffered punishment for his offending. Since the commission of the offences, he had had no contact with his two young children. In November 2019, his brother had died overseas, and, because of the conditions of his bail, the applicant was precluded from attending his brother's funeral in Sudan. Further, a term of imprisonment would be more burdensome on the applicant because it was his first experience of custody. During the previous two years he had commenced a steady relationship, and at the time of the plea his current partner was five months pregnant with his child. The applicant would also experience anxiety and concern because he was the carer of his elderly mother who has been in ill-health.

28 In his reasons for sentence,[1] the judge noted that although the applicant's plea was not entered at an early stage, it facilitated the course of justice. The judge took into account, as mitigating factors, that the applicant had no previous convictions, that he had a history of stable and industrious employment, and that he had been held in high regard by his previous employers. In addition, since the offending, he had been involved in supporting members of the Sudanese community in their efforts to integrate in the Australian community. The judge also took into account the applicant's prospects of rehabilitation, noting that the applicant had undertaken offending behaviour programs that included intensive men's behavioural change and anger management. He also took into account that the applicant's time in custody would be more burdensome, because of his concern about his ageing mother, and the fact that his partner was expecting their child in July of this year. The judge accepted, with some reservation, that the applicant did have good prospects of rehabilitation.[2]

29 On the other hand, the judge noted that the offending was serious, causing fear and harm to the victim and their children. The episode of offending was prolonged, and represented 'an appalling example of family violence against a former domestic partner, carried out, for much of it, in the presence of [the applicant's] own young children'.[3] In those circumstances, the judge considered that general deterrence, specific deterrence and denunciation must be given appropriate weight.

30 In support of the first proposed ground of appeal (that the sentence is manifestly excessive), counsel submitted that the judge erred in concluding that the objectives of general and specific deterrence, and denunciation, could not be achieved by a combination sentence of a term of imprisonment together with an appropriately tailored community corrections order, particularly taking into account that the applicant did not have any previous or subsequent criminal history, and that he had taken significant steps towards rehabilitation. It was submitted that the judge should have concluded that there were exceptional circumstances in the case, including the increased burden of imprisonment resulting from the current Coronavirus pandemic.

31 In that respect counsel referred to the applicant's plea of guilty, his remorse, and the considerable steps that he had taken towards his rehabilitation. In that respect, counsel noted the evidence that the applicant had devoted more than 500 hours to working with the Sudanese community to assist underprivileged youth in that community. In the two years after the incident, the applicant had not re-offended. Counsel referred to the impressive character references, including those provided by two of his employers. Counsel submitted that in those circumstances, and applying the principles discussed in Boulton v The Queen,[4] the judge was required to consider whether a sentence of imprisonment was necessary in order to vindicate the purposes of general deterrence, specific deterrence and denunciation. Counsel contended that, in light of the strong mitigating circumstances on which the applicant was entitled to rely, the judge ought to have imposed a community corrections order in lieu of a sentence of imprisonment, or, alternatively, in addition to a term of imprisonment not exceeding twelve months.

32 In further support of the first proposed ground of appeal, and also in support of the additional second ground, counsel submitted that the judge gave inadequate weight to the applicant's positive prospects of rehabilitation. Before sentencing the applicant, the judge had directed that the applicant be assessed for suitability for a community corrections order. The applicant had been assessed as having a low risk of re-offending, and accordingly a supervision condition was not recommended. Counsel noted that that assessment of the applicant's prospects of rehabilitation mirrored that of Mr Simmons. Counsel noted that the judge expressed reservations about the applicant's remorse and his prospects of rehabilitation, because he had delayed two years in pleading guilty to the charges. It was contended that that assessment by the judge, of the applicant's plea and remorse, was 'at odds' with the evidence that demonstrated that the applicant had been in fact sincerely remorseful. Further, it was contended, the delay by the applicant in pleading guilty was not a valid basis for expressing reservations about the applicant's prospects of rehabilitation, in light of the sustained efforts that he had undertaken in that direction.

33 Finally, counsel noted that since the applicant's sentence, personal visits to prisoners have been suspended due to the current Coronavirus pandemic. It was submitted that the court should infer that the prisoners and their families were suffering a high degree of anxiety, which would entitle the applicant to a 'palpable and discernible' reduction in his sentence. In support of that proposition, counsel referred to the recent decisions of the Court, concerning the impact of the Coronavirus pandemic on sentencing, in Brown v The Queen[5] and Sazimanoska v The Queen.[6]

34 In response, counsel for the respondent contended that the objective gravity of the offending, and the applicant's moral culpability for it, were high. The offending had commenced with the threatening texts sent by the applicant to his victim. On the following day, he forced entry into the victim's home after smashing two external windows, and assaulted the victim in the presence of the children. That assault was followed by further acts of physical violence by the applicant to the victim. Counsel submitted that the burglary had the essential features of a 'confrontational' and 'intimate relationship' aggravated burglary which, this Court has observed, has become disturbingly prevalent and harmful. In such a case, he submitted, the sentencing purpose of general deterrence is of significance.

35 Counsel for the respondent further contended that, contrary to the submissions made on behalf of the applicant, the judge gave appropriate weight to the applicant's plea of guilty, the progress of his rehabilitation, his risk of re-offending, and his demonstrated remorse.

36 In response to the submission by counsel for the applicant in relation to the effect of the current Coronavirus pandemic, counsel for the respondent noted that that submission was predicated on the sentencing discretion being re-opened. However, no evidence had been proffered on behalf of the applicant in relation to the effect of the Coronavirus pandemic. Counsel for the respondent referred, in that respect, to an affidavit sworn by the Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria. As explained in that affidavit, the applicant has been located at Loddon Prison. During that time he has had access to contact with his family and others by the use of telephone calls and video connections. During the pandemic, Loddon Prison has not restricted out of cell hours. All mainstream prisoners, including the applicant, have been and continue to receive their standard 8.5 to 13.5 hours out of cell time during the day, depending on the day of the week.

37 The affidavit of the Assistant Commissioner also sets out in some detail the steps that have been taken in the prison system to prevent an outbreak of the Coronavirus among prisoners. As a result of those steps, there have been, and are, no confirmed cases of the virus within the Victorian prison system.

38 It is convenient to consider, first, the added proposed ground of appeal, namely, that the assessment by the judge of the applicant's remorse and prospects of rehabilitation was contrary to the evidence.

39 That ground was based on two paragraphs in the judge's reasons for sentence. First, in considering the applicant's plea of guilty, the judge noted that although it was not entered at an early stage, it had saved the community the cost and the witnesses the stress of a trial and it had facilitated the course of justice. His Honour then turned to the issue of the applicant's remorse, stating:

It was submitted also that I should regard it [the plea of guilty] also as an expression of your remorse, though the plea was not entered until nearly two years after the events at contested committal.[7]

40 Subsequently, his Honour turned to the applicant's prospects of rehabilitation. He noted that the applicant had no previous convictions, had extensive community support, and had a good education and work history. The judge also noted that the applicant had undertaken the offending behaviour programs to which we have already referred. His Honour further accepted that the fact that the applicant's partner was expecting their child in July would provide additional motivation for his continuing rehabilitation.[8] The judge then concluded:

On the basis of all the material, it was submitted that you have good prospects of rehabilitation, and whilst I accept that this is so in a degree, I do not do so without reservation, as it took the better part of two years for you to acknowledge your wrongdoing.[9]

41 In effect, counsel submitted that the judge erred in expressing reservations in relation to the applicant's level of remorse, and his prospects of rehabilitation, based on the period of delay before the applicant entered a plea of guilty to the charges. Counsel submitted that, on the evidence available to him, the judge should not have had such reservations about those two mitigating factors. In particular, the applicant had attended a number of courses directed to his rehabilitation, and had undertaken a substantial amount of voluntary community work, as evidence of his rehabilitation. The assessment for a community corrections order, and Mr Simmons, had each expressed the view that the applicant had good prospects of rehabilitation. In a number of references that were tendered on the plea, it was recorded that the applicant had expressed genuine remorse for his offending. Mr Simmons, the psychologist, also considered that the applicant was properly remorseful.

42 Notwithstanding those matters, there had been a significant period of delay of almost 22 months between the date of the offending (and the laying of the charges against the applicant) and the date on which the applicant entered a plea of guilty in the County Court to the charges in respect of which he was sentenced. That delay was, in our view, a sufficient basis for the judge to entertain genuine reservations about the applicant's level of remorse, and his prospects of rehabilitation. In the absence of an appropriate explanation, such a lengthy delay in the applicant accepting responsibility for his conduct could fairly be considered to be counter-indicative of genuine remorse and a sincere commitment to reform.

43 In the course of the application, counsel for the applicant informed the Court that during that period of delay, there had been ongoing negotiations between the parties with a view to resolving the charges against the applicant. However, the evidence, that was put before the judge to that effect, was quite limited. The summary of prosecution opening, that was tendered on the plea, set out a chronology of relevant events. It recorded the following steps in the proceeding. A contested committal hearing was held on 12 November 2018. Ms M was cross-examined and the applicant was committed for trial. On the following day, at an additional directions hearing in the County Court, the case was listed for trial. Ten months later, on 10 September 2019, there was a final directions hearing. That hearing was 'adjourned for discussions'. On 23 September, the matter was further adjourned for the prosecution to respond to a plea offer. On 10 October, at a further directions hearing, the matter was unable to resolve, and the trial date was confirmed. Ultimately, the matter resolved on 11 November 2019, on which date the applicant was arraigned and pleaded guilty.

44 On the plea, counsel for the applicant told the judge that after the committal hearing in July 2018, 'there were active and ongoing discussions between the parties'. However, the judge was not informed as to when those discussions first commenced. On the material before the judge on the plea, the first notation or information as to such discussions was in September 2019.

45 Ordinarily, a plea of guilty may be regarded as a prerequisite to, and often an indicator of, genuine remorse. It involves the public acknowledgement of the offending, and an acceptance by the offender of responsibility for it. In the present case, the judge was entitled to consider that the delay of some one year and ten months between the offending and the applicant's plea of guilty weighed against, and detracted from, the quality of his remorse and his prospects of rehabilitation. Based on the evidence that was put before the judge, his Honour was entitled to express some reservation concerning the degree of each of those two mitigating factors.

46 For those reasons, the additional ground of appeal must fail.

47 We turn, then, to the remaining ground, namely, that the sentences imposed by the judge were manifestly excessive.

48 In order to succeed on that ground, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, the sentences, that are the subject of the application for leave to appeal, must be so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour's reasons for sentence.[10]

49 As was correctly conceded by counsel for the applicant on the plea, the offences, for which the applicant was sentenced, were each serious, both individually and considered in combination. The SMS messages, that were the subject of charge 1, comprised an escalating series of threats sent to Ms M late at night and in the early hours of the morning. Plainly they were calculated to instil fear into her, and to undermine her right to feel safe and secure within her own home.

50 The aggravated burglary, that was the subject of charge 2, was particularly serious. From the outset, the applicant broke into the victim's home in an aggressive and intemperate manner, having broken two windows and attempted to break open a sliding door. On his own admission, he entered the victim's home with the intention of assaulting her. As this Court has stated in a number of cases, including Filiz v The Queen[11] and DPP v Meyers,[12] confrontational aggravated burglaries, in the setting of an underlying domestic dispute, are all too prevalent in our society. They are calculated to cause lasting and serious physical and emotional harm to the victim. By their nature, such offences have the potential to escalate into incidents that result in serious harm and, on occasion, human tragedy. For that reason, general deterrence is a sentencing purpose of particular significance in such cases. It is important that the courts, by sentences imposed in such cases, make it clear that those persons who contemplate indulging in such a form of conduct will, upon apprehension, lose their right to be at liberty in society for a substantial period of time.

51 In addition, it is important, in cases such as this, that the courts express their condemnation of the kind of conduct engaged in by the applicant. Ms M was entitled to feel safe and secure in her own home. The offending in this case constituted a serious violation by the applicant of that fundamental right.

52 Charge 3 was, in effect, a 'rolled-up' charge. From a very early point after the applicant had broken into Ms M's home, he perpetrated a series of gratuitous, vicious acts of violence to her person. The assaults, that comprised charge 3, were not the product of some dispute that flared between them after he entered the premises. Rather, he inflicted those repeated assaults on her having entered the house with the intention of doing so. It is clear that Ms M was helpless, and incapable of defending herself at all from the applicant. She was physically overpowered by him. The courts have made it clear that acts of violence in a domestic setting, and in particular by men towards women, are utterly abhorrent and unacceptable. In this case, the infliction by the applicant of the assaults on Ms M, in the presence of their frightened young children, was a serious aggravating factor to the offending. It was a serious breach of his duty as a parent towards his own children. In assaulting their mother before their eyes, he set an appalling example to each of them, and in particular to his son. The threats, that were the subject of charge 4, added to the terror of the physical attack launched by the applicant on his victim.

53 Considered as a whole, the offending, that was the subject of charges 1 to 4, was particularly serious. It is clear, from his demeanour from the outset, that the applicant attended at Ms M's home with aggressive and violent intention. He immediately resorted to acts of violence and threats. The offending was prolonged. Having assaulted Ms M, and removed the children, he again returned to the home to continue his attack on her. During the whole incident, the applicant had abundant opportunity to desist, and to recant from the conduct in which he was engaging. Individually, and collectively, the offending by the applicant was, as we have stated, serious. Equally, his moral culpability was high.

54 Certainly, as recognised by the sentencing judge, the applicant was able to rely on a number of important mitigating circumstances in his favour. Despite the difficult and underprivileged circumstances of his early years, the applicant had made the most of his abilities, gaining a number of qualifications, and engaging in gainful employment. He had no previous convictions and was otherwise of good character. He pleaded guilty, albeit at a late stage. There was evidence, on the plea, that he had expressed remorse for his offending. Importantly, since the offending, he had engaged in significant rehabilitative efforts in order to address his offending behaviour. Further, as the judge accepted, the applicant had already suffered some extra-curial punishment for his offending. He had lost the opportunity to be able to visit his two young children, and he had been unable to attend his brother's funeral overseas. In addition, the judge took into account that the applicant's time in custody would be burdensome for him, because it was his first time in custody, he would not be able to care for his mother, and his partner was expecting their baby in July 2020.

55 Thus, the mitigating factors, upon which the applicant was entitled to rely, were quite substantial. In determining the appropriate sentence to be imposed on the applicant, the judge was required to balance, on the one hand, the serious aspects of the offending, against those mitigating circumstances. The starting point, for that exercise, was the judge's correct assessment that the offending engaged in by the applicant was serious, and his moral culpability for it was high. As discussed, and correctly recognised by the judge, the sentencing purposes of general deterrence and denunciation were important considerations in the determination of the sentence in the present case. Further, notwithstanding the applicant's steps towards rehabilitation, the judge was also required to take into account the need to impose a sentence that would specifically deter the applicant from any further such offending. In light of the serious nature of the offending by the applicant, and his moral culpability for it, and notwithstanding the mitigating factors that were available to him, we are not persuaded that the sentences imposed on him were wholly outside the range of sentencing options available to the judge. In particular, in our view, it was open to the judge to consider that a sentence in the form of a community corrections order, or a combination sentence of one year or less imprisonment with a community corrections order, would not be sufficient to vindicate the relevant sentencing purposes, and to reflect the gravity of the offending engaged in by the applicant.

56 For those reasons, we are not persuaded that the sentences imposed by the applicant were manifestly excessive. Accordingly, that proposed ground of appeal must be rejected.

57 For the foregoing reasons, the applicant has failed to make out either of the proposed grounds of appeal relied on. It follows that the application for leave to appeal against sentence must be refused.

[1] DPP v Laa (County Court of Victoria, Judge Wischusen, 28 February 2020) ('Reasons').

[4] [2014] VSCA 342; (2014) 46 VR 308.

[5] [2020] VSCA 60.

[6] [2020] VSCA 66.

[10] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); Lieu v The Queen [2016] VSCA 277, [50] (Beach and Kaye JJA, with whom Redlich JA agreed).

[11] [2014] VSCA 212.

[12] [2014] VSCA 314; (2014) 44 VR 486.