1. For the reasons that follow, none of the grounds of appeal is made out. Leave to appeal will be granted but the appeal will be dismissed.

1. The circumstances of the offending are set out in the prosecution's summary of opening for plea.
2. At approximately 10:00 am on 23 July 2022, the applicant attended an address at 45 Lakeview Drive, Lakes Entrance, and demanded to be let into the house. The applicant knew the residents of the house, Mr Swetnam and Mr Hawkins. When Mr Swetnam denied him entry, the applicant threatened to kick in the door and kill Mr Swetnam (charge 4). The applicant ripped open the flyscreen door and kicked the front door until it opened, causing damage to the latch (charge 6).
3. The applicant then entered the house (charge 1) carrying a golf club, which he used to strike Mr Hawkins to the head, causing minor injuries to his face and hand (charge 2). The applicant said, 'I need money, give me money. I'm sick, I need money'.
4. Mr Hawkins told Mr Swetnam to go outside and call the police. Mr Swetnam went into the backyard and called triple zero.
5. Mr Hawkins ran to the kitchen with the applicant following him. The applicant took a 30 cm long kitchen knife from a drawer, raised it above his shoulders and plunged it towards Mr Hawkins' neck. He said, 'Get out of the way. I'm going to kill Nipper and I'm going to kill you' (charge 5). Mr Hawkins ran out of the kitchen into the backyard.
6. Mr Hawkins and Mr Swetnam remained in the backyard until the applicant left the house. When they went back inside, Mr Swetnam found that his wallet, containing $700 in cash, was missing (charge 3).
7. Ambulance officers attended and cleaned Mr Hawkins' injuries. He was cleared and advised to follow up with his local doctor.
8. After leaving the house, the applicant went to the home of a friend in Lakes Entrance. Both he and the friend then took a taxi to the Lakes Entrance Bowls Club, arriving at around 11:27 am. The applicant bought them both drinks and gave his friend cash to play the poker machines.
9. Police arrived at the Lakes Entrance Bowls Club and arrested the applicant shortly afterwards. When he was arrested, the applicant had a number of $50 notes in his hand, which he refused to hand over. He also had a number of cards in the name of Mr Swetnam in his pocket. Later, at the police station, the applicant was found to have more cash secreted on his person. He was carrying a total of $412.60 in cash.
10. During his record of interview, the applicant: (a) admitted to knowing both Mr Hawkins and Mr Swetnam; (b) denied being at their address, stating he was with a female friend at the time of the offending; and (c) stated that when he was at an associate's house in Lakes Entrance that morning, he noticed the associate to be in possession of Mr Swetnam's cards. He said that he took the cards intending to return them to Mr Swetnam.

1. The applicant was 27 years old at the time of the offending and 28 at the time of sentence. He identifies as Aboriginal. He has an intellectual disability, an acquired brain injury, and complex mental health issues. At the time of offending, he had ongoing substance abuse issues.
2. The applicant had a severely disadvantaged upbringing. When he was five years old, he was involved in a car accident and sustained a brain injury. When he was seven years old, his parents separated and he was placed in foster care. He reported experiencing physical and sexual abuse throughout his childhood and being moved frequently between foster homes. During his adolescence, he spent time in a boys' home and then later couch-surfed at various friends' homes. When not incarcerated, he was largely homeless.
3. The applicant has prior convictions for similar offending.
4. On 25 November 2021, the applicant was sentenced at the Bairnsdale Magistrates' Court to 6 months' imprisonment on charges of theft, burglary, aggravated burglary, assault of an emergency worker, tamper with motor vehicle, and commit indictable offence whilst on bail, and received a fine of $300 for a charge of act in a disruptive manner ('the 2021 offending'). Once time served was taken into account, he was released from custody in January 2022.
5. On 9 June 2022, the applicant was sentenced at the Latrobe Magistrates' Court, for offences committed in February and March 2022, to 97 days' imprisonment and a 2 year CCO for offending involving making a threat to kill, burglary, attempted aggravated burglary, theft, possessing a controlled weapon without excuse, possessing cannabis, shop steal, state false name when requested, attempting to escape from lawful custody, unlicensed driving, committing an indicatable offence whilst on bail, and contravening a conduct condition of bail ('the 2022 offending'). Once time served was taken into account, he was released from custody in June 2022.
6. Some years prior to that, in October 2013, when he was 18 years old, the applicant was sentenced in the District Court of New South Wales to a term of imprisonment (to be served as a juvenile offender until age 21), having been found guilty of break and enter (2 charges), aggravated burglary and entry, aggravated sexual assault (3 charges), and larceny.
7. When he committed the current offences, he had been released from custody for only 44 days. He had just commenced the CCO imposed for the 2022 offending. When he committed the 2022 offending he had been released from custody for the 2021 offending, at best, for a couple of months.

1. As a result of his complex personal history and repeated contact with the justice system, the sentencing judge had the benefit of a large number of reports about the applicant:

(a) a letter from neuropsychologist, Ms Caitlin Dawes, dated 17 February 2020;

(b) a psychological report by Ms Gina Cidoni, psychologist, dated 27 September 2021;

(c) a further psychological report by Ms Cidoni dated 22 September 2023;

(d) a Statement of Intellectual Disability made under the Disability Act 2006 dated 27 October 2011;

(e) a Disability Overview Report dated 18 April 2024, prepared by the Department of Families, Fairness and Housing pursuant to the Disability Justice Coordination Forensic Disability Program;

(f) a Justice Plan dated 18 April 2024, also prepared by the Department of Families, Fairness and Housing; and

(g) a report by the Mental Health Advice and Response Service ('MHARS'), undated, but based on an assessment carried out on 1 March 2024.

1. Although Ms Cidoni produced two reports, only the second report, dated 22 September 2023, related to the offences the subject of the plea. Ms Cidoni's earlier report concerned sentencing for the 2021 offending.
2. The Statement of Intellectual Disability dated 27 October 2011 confirms that the applicant has an intellectual disability within the meaning of the Disability Act 2006, in that he has significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before the age of 18 years.
3. Ms Dawes' letter was produced on 17 February 2020 for the New South Wales Department of Communities and Justice and addressed to the National Disability Insurance Agency ('NDIS'). It records a primary diagnosis of acquired brain injury and a secondary diagnosis of a psychosocial disability in the form of schizophrenia. At the time the applicant sustained the acquired brain injury (2001 or 2002), he was comprehensively assessed, and his full‑scale intelligence quotient was found to be in the 'extremely low' range. Testing indicated significant deficits in adaptive behaviour and a severe expressive and receptive language disorder. These results were consistent with a person functioning in the range of mild intellectual disability.
4. According to Ms Dawes, a further neuropsychological assessment at the age of 16 showed ongoing, significant cognitive impairments. The applicant's verbal abilities, attention span and working memory were found to be in the range of a person with a mild intellectual disability and his speed of thinking was in the borderline range. His reading skills were at lower primary level and his maths was very poor. His ability to learn new verbal information was impaired and he displayed executive dysfunction. While some language delay was evident prior to the applicant's brain injury, the results suggested worsening of previous impairments as well as new difficulties due to the brain injury. Given that these results were found nine years post‑injury, the impairments were considered to be permanent.
5. Ms Dawes' letter contains an addendum identifying specific features of the applicant's compromised ability to cope with every day challenges in a reasoned and rational way. Among other things, the addendum records that the applicant is unable to read and write, has difficulty understanding what other people are telling him and becomes confused easily, misinterprets information and is unable to effectively express his needs, wants and ideas, and becomes frustrated as a result. While he appears to understand more than he does, he does not always follow instructions. He finds it hard to read social cues and does not know when others are annoyed or frustrated with him. He does not understand appropriate relationship boundaries and will seek out friendships with individuals who have a negative impact on him. Due to his poor social skills, he finds it hard to make friends and is not connected to a social community. He has difficulty managing life stressors, difficulty managing emotions and anger, and displays poor coping skills. He tries to cope by using aggression towards others and by using drugs.
6. Ms Cidoni's second report, which was prepared for the plea in respect of the current offending, repeats much of the relevant history contained in her first report. Notably, it records as part of the applicant's personal history that his parents' relationship was strained by his mother's heavy drinking. After his parent's separation, the applicant did not have much contact with either parent, as he was in state care. He has 15 siblings, including eight brothers and seven sisters. While he used to have a close relationship with them, he has had limited contact with them in recent times, other than with a full brother living in Lake Tyers, who is a strong support.
7. Ms Cidoni records that the applicant's childhood was characterised by instability, as he was frequently moved between placements. He told her that he was sexually and physically abused in one of the foster care settings and was made to have sex with other children. He commenced a claim for compensation in later life but struggled with the process. He spent time in a boys' home in Parkville.
8. The applicant reported that he has been homeless for much of the time that he has been out of prison. When he was released from the last term of imprisonment, he stayed with his sister but was asked to leave. He has never been employed. He receives the disability support pension.
9. Ms Cidoni stated that when she assessed the applicant in 2021, he met the diagnostic criteria for a substance use disorder. Underlying this was a severe pathology, with evidence of borderline personality disorder, post-traumatic stress disorder, major depression, and anxiety. The applicant also reported active psychosis consistent with either schizophrenia or drug‑induced psychotic disorder. He said that he continued to hear faint voices and experienced severe paranoid ideation, including worrying that people were talking about him. His sleep was disturbed and he had nightmares occasionally. He sometimes experienced suicidal ideation but would not act upon it. He reported never seeing a psychologist or being admitted to a psychiatric hospital. He was receiving antipsychotic medication while in custody.
10. As to the applicant's alcohol and drug use, Ms Cidoni recorded that the applicant first tried cannabis at the age of eight, then methamphetamines at the age of 12 and heroin at the age of 16. At 18, he started using Xanax while in custody. When Ms Cidoni assessed him in 2021, he reported that he was using heroin and Xanax up until his incarceration and was experiencing bad withdrawals. During the more recent period of freedom, he was consuming alcohol and heroin every second day. In prison, he was on a methadone program, both in New South Wales and in Victoria.
11. Ms Cidoni carried out a range of psychometric tests, leading her to conclude that the applicant's reduced cognitive functioning significantly impacted his daily life in a variety of ways. The deficits included reduced verbal comprehension, reduced working memory and reduced memory recall. They affected his decision‑making skills and led to impulsive and poorly considered choices. Furthermore, these cognitive limitations hindered his actions and thoughts, impacting his ability to plan and solve problems effectively. His social connections and peer decisions were also affected, making it challenging for him to establish and maintain relationships. Additionally, his logical and abstract thinking abilities were compromised, particularly when generating solutions. Comparison between the test results from 2021 and the more recent ones in 2023 suggested persistent or worsening cognitive issues, potentially influenced by the applicant's ongoing substance abuse, mental health diagnoses, and potential acquired brain injury risk factors.
12. As to the applicant's mental state at the time of the instant offending, Ms Cidoni opined that the applicant's substance abuse significantly influenced the offending. It intensified the likelihood of impulsive reckless behaviour and exacerbated his underlying mental illness. However, his cognitive and clinical/personality issues also played a role. His limited intellectual functioning and mental health diagnoses had an impact on his judgment and ability to control impulses. These conditions may have made it difficult for him to regulate his emotions, consequently increasing the risks of outbursts and irrational actions. Ms Cidoni continued:

His adverse childhood experiences, including exposure to drug use, sexual and other violence, sexual abuse, and a significant history of mental health issues, have further had an enduring impact on his formation and behaviour. Mr Leslie's background of profound deprivation, abuse and mental health challenges contributes to his behavioural responses especially when frustrated.

1. Ms Cidoni opined that the applicant's moral culpability should be considered in the light of his mental illness. His mental health challenges likely impaired his capacity to fully comprehend the consequences of his actions and exercise rational judgment.
2. According to Ms Cidoni, the applicant's risk of reoffending was high based on his assessment score. Key risk factors included the applicant's childhood maladjustment, family instability, extensive prior criminal history, past failures on conditional release, and ongoing struggles with substance abuse. These factors collectively amplified the likelihood of further criminal behaviour. Ms Cidoni noted, however, that there were some protective elements, including the applicant's engagement with social services, particularly his expressed interest in rehabilitation, and his family support.[6]
3. Finally, Ms Cidoni opined that imprisonment was an onerous experience for the applicant, with potential risks to his mental health, substance abuse recovery, and overall rehabilitation.
4. In this context, we note that on 24 November 2023 the applicant obtained an NDIS plan providing funding for improved daily living, improved living arrangements, improved relationships, and increased social and community participation and support. He also now has the support of his cousin.

1. The applicant's plea to the six charges on the indictment was conducted in the Koori Division of the County Court sitting at Morwell on 26 February 2024. Apart from the judge, those present during the sentencing conversation included Uncle Lloyd Hood, a Koori Court officer, a Corrections liaison officer and three people from an organisation referred to as the Drug & Alcohol Initiative. The applicant's NDIS support worker was also present, along with his cousin.
2. An audiovisual recording of the sentencing conversation was made available to us and we have watched it. We observed that the applicant acknowledged his crimes and accepted responsibility for them. He told Uncle Lloyd that he wished to settle down, take up opportunities for an apprenticeship and have a family. He said that on the morning in question, he had been 'freaked out by his sister's reaction to his accommodation issues'. At the time, he was using heroin and that is what led him to commit these crimes.

1. Having outlined what occurred at the plea hearing and during the sentencing conversation, the judge stressed the inherent seriousness of the applicant's crimes, especially charge 1 (aggravated burglary), and confirmed that charges 4 and 5 (threats to kill) attracted the serious violent offender provisions in the Sentencing Act. His Honour foreshadowed that sentencing the applicant would be 'very complex and concerning'.[8]
2. After referring to the applicant's age, the judge observed that the applicant had only been released from custody in June 2022, which, he said, was 'some 20 days before these offences were committed'.[9] It will be recalled that this misstatement of the number of days between the applicant's release in June 2022 and his offending on 23 July 2022 forms part of ground 2 in the appeal.
3. In relation to the offence of aggravated burglary, the judge observed first, that aggravation was effected by the entrance with a golf club into premises where he well knew persons were present, and secondly, that the seriousness of this crime was recognised by the maximum penalty of 25 years' imprisonment.[10] Again, his Honour's alleged misstatement that aggravation was effected by entering the premises with a golf club forms part of ground 2 in the appeal.
4. As to the charge for the common assault, the judge observed that the applicant had hit Mr Hawkins with the golf club, but fortunately no serious injuries had resulted.[11] As to the charge of theft, his Honour stated that it was 'effected under physical pressure and by removal of $700 from Neville Swetnam's wallet'.[12] The judge referred to the maximum sentences for these offences.[13] The judge's statement about the theft being effected under physical pressure is also part of ground 2.
5. As to the two charges of making threats to kill, the judge observed that the applicant is to be sentenced as a serious violent offender pursuant to s 9(1A)(a) of the Sentencing Act in respect of these charges.[14] His Honour noted that in sentencing for these offences, public protection had to be 'a major consideration'.[15] Additionally, he was required to impose cumulative sentences and notification was to be given that the applicant was sentenced as a serious violent offender.[16]
6. The judge went on to consider the applicant's prior offending, stating that 'some 20 days before these offences', on 9 June 2022, the applicant had been before the La Trobe Magistrates' Court on charges of making a threat to kill, burglary, attempted aggravated burglary, two thefts, possessing a concealed weapon and possessing drugs.[17] His Honour also referred to the applicant's conviction in 2021 for similar offending, resulting in a 6-month gaol sentence, and the applicant's 2013 convictions in New South Wales.[18] His Honour summarised the position as follows:

Hence, he has a background of two aggravated burglaries, one attempted aggravated burglary and two burglaries.[19]

1. That, his Honour said, was 'not a great record'.[20] However, the sentences the applicant received in Victoria indicated that his offending had generally been at a lower level and the New South Wales offending essentially occurred when he was still under age. Given his background and the issues in his life, his prior offending, although it related to serious matters, was 'not all that bad, certainly not as bad as I have seen'.[21]
2. The judge stated that while the applicant was not to be sentenced again for his previous crimes, they were relevant to the sentencing exercise.[22] His Honour referred to authority to the effect that prior history was relevant as an indicator of moral culpability, prospects of rehabilitation, dangerous propensities and the community's need for protection, along with the increased importance of specific deterrence as an animating factor in the sentencing process.[23] The judge again observed that the 'primary function' of sentencing for the two threat to kill offences must be the protection of the community.[24]
3. Turning to the Crown's submissions, the judge recorded that while that protection of the community and general deterrence were important, the prosecutor accepted that the Verdins[25] principles were enlivened when assessing the applicant's moral culpability. Nonetheless, the Crown submitted, a term of imprisonment was warranted due to the serious nature of the offending, the applicant's prior convictions and the fact that the crimes were committed 'some 20 days after being sentenced for similar behaviour'.[26]
4. The judge referred to the defence submission that a combined CCO 'with days served' would suffice in all the circumstances. A Community Correction Order Assessment Outcome Report had been provided, along with the MHARS report. The applicant had been assessed as suitable for a CCO, but there was concern about his high risk of reoffending.[27]
5. The judge then moved to consider the Justice Plan and the Disability Overview Report, from which his Honour set out two significant passages. The first of these passages described the applicant's background and itinerant lifestyle; the second picked up Ms Cidoni's opinion that due to his cognitive deficits, the applicant's ability to assess risk and consequences and make appropriate decisions was impaired, and he was unable to use consequential thinking to assess situations. The judge set out Ms Cidoni's view that the applicant's overall wellbeing and day‑to‑day functioning were profoundly affected by the complex interaction between his mental health conditions and his adverse childhood experiences.[28]
6. The judge recorded that among the matters put in mitigation, counsel for the applicant relied on the High Court decision in Bugmy v The Queen.[29] In this context, the judge noted the 'comments' on the application of Bugmy made by this Court in DPP v L'Eveille[30] and set out a number of passages from that decision.[31] His Honour then made the findings that are the subject of ground 1:

I take Bugmy into account generally. In regard to this criminality, I do not find the necessary factual connection to these charges, which would reduce, as a result of Bugmy, Mr Leslie's culpability. As I say, I take into account generally the Bugmy factors set out as I have exposed them.[32]

1. The judge went on to consider the Verdins principles relied upon by counsel for the applicant and acknowledged by the prosecutor to be applicable. He observed that the applicant had had intellectual issues since he was involved in a car accident when he was five years old and that he had also been diagnosed with schizophrenia. He had an extremely low range IQ and significant cognitive impairments with executive dysfunction. Ms Cidoni's reports confirmed ongoing drug use, including a dependency on heroin and Xanax. They confirmed low intellectual functioning and expressed concern as to whether the applicant could effect change. The second report noted that the applicant's cognitive function limited his decision‑making abilities and that he was subject to impulsive and poorly considered choices. The judge observed that this seemed to be in play on the morning in question when the applicant decided to commit aggravated burglary in order to get money. The judge said '[t]he reality is that, unlike what he expressed to his victims, that he was wanting money because he was sick, what he really wanted money for ... was to get money in order to gamble'.[33]
2. The judge then said:

I accept that all of the principles in regard to Verdins are enlivened here. I find his moral culpability reduced due to his intellectual disability and mental condition, albeit such being exacerbated by personal drug‑use, such that he is not a vehicle for general deterrence and punishment. However, this finding also raises the predicament that the Courts are in, which is detailed in Brown v The Queen [2020] VSCA 212.[34]

1. The judge extracted two passages from Brown v The Queen in which this Court discussed the conflicting sentencing considerations raised by the existence of mental impairment, in that the condition might suggest both a need to moderate the sentence in light of reduced moral culpability and a heightened risk of reoffending that directs attention to the need for community protection.[35] His Honour also referred to the passages concerning the need for protection of the community in Veen (No 2).[36] He stated that in the applicant's case, the balance was 'very delicate'.[37]
2. However, the judge stated that the impact of the applicant's drug and alcohol intake did not cause him to disregard the submission made as to the application of Verdins.[38]
3. The judge then considered the effect of the Koori Court process and the factors of mitigation to be taken into account as a result of the decision in Honeysett v The Queen,[39] and stated that he took into account all three factors set out therein.[40]
4. As to the applicant's prospects of rehabilitation, the judge stated that he had to conclude, given the early breach of the CCO, that it was necessary to be particularly guarded as to the applicant's prospects of rehabilitation. Both Ms Cidoni and the author of the Community Correction Order Assessment Outcome Report were very concerned about his capacity to rehabilitate. However, there were positive matters, such as his withdrawal from heroin in prison and participation in courses, and the NDIS assistance he was now receiving, which carried with it the ability to get accommodation and undertake an apprenticeship.[41]
5. Finally, the judge referred to the requirement in DPP v Dalgliesh[42] that the applicant be given an individualised and just sentence based on the facts of these offences. However, he had concluded that he did not accept that the applicant should not serve any further gaol time, given the seriousness of the offences.[43]

1. The applicant submits that the judge erred in finding that his moral culpability was not reduced by reason of his disadvantaged background.
2. This ground focuses on paragraph [29] of the Reasons set out above at paragraph [54]. The judge stated that he took Bugmy into account 'generally', and again, that he took into account generally the Bugmy factors 'as [he had] exposed them'. However, paragraph [29] also contains the finding that in regard to the instant offending, there was no connection between the applicant's disadvantaged background and the offending which would reduce the applicant's culpability.

1. The applicant submits that the judge's finding regarding the absence of the necessary factual connection to reduce the applicant's culpability is deficient in three respects.
2. First, given that both the general and specific applications of Bugmy involve the reduction, to some extent, of moral culpability, his Honour was in error to take Bugmy into account generally, but then decline to reduce his assessment of the applicant's moral culpability.
3. Secondly, the judge erred in reasoning that a factual connection was necessary in order to apply the Bugmy principles. The authorities confirm that whether there is a factual connection between the circumstances of deprivation and the offending is a question of weight, not a threshold question.
4. Thirdly, it was not reasonably open to the judge to find, on the balance of probabilities, that there was no factual connection between the applicant's disadvantaged background and his offending. In this regard, the applicant points to the fact that his upbringing was marred by exposure to substance abuse, initially from his mother's heavy drinking, and his own increasing use of illicit substances from a very young age. The applicant relies on the passage from Ms Cidoni's second report that brings together his adverse childhood experiences and his mental health challenges set out at paragraph [36] above.
5. For its part, the Crown submits that in stating that he took Bugmy into account 'generally', the judge can only have been referring to reducing the applicant's moral culpability on account of his childhood disadvantage in the 'general way'. The Crown further submits that in stating that he did not find the necessary connection to reduce the applicant's moral culpability, the judge was saying that he did not reduce the applicant's moral culpability in the specific way as opposed to not reducing it at all. His Honour took Bugmy into account in the general way despite the absence of the factual connection.
6. The Crown submits that during the plea it was not clearly submitted that the applicant's moral culpability was reduced on account of his disadvantage in the 'specific way' based on the existence of a factual connection. That is, it was not submitted on the facts of this case why the applicant's childhood exposure to violence, alcohol or other abuse explained the applicant's recourse to violence because he was frustrated.

1. We accept that the paragraph in the judge's sentencing reasons explaining his application of the principles in Bugmy is prone to confuse. We make no criticism of the judge in this regard. The confusion arises, in large part, from the distinction between the general and specific applications of Bugmy described by this Court in DPP v Herrmann.[44] As this distinction is somewhat opaque on its face, it is of assistance to revisit what was said, first in Bugmy and then Herrmann, about the possible relevance of evidence of childhood deprivation when sentencing.
2. Mr Bugmy was an Aboriginal man who, like the applicant, grew up in a household in which alcohol abuse and violence were common place. He had little formal education and started drinking alcohol and taking prohibited drugs when he was 13 years old. He spent much of his young life in juvenile detention centres and nearly all of his adult life in prison. While he was a remand prisoner he became upset with a prison officer and threw pool balls at him, causing the prison officer to suffer facial and psychological injuries. Mr Bugmy was seen by a psychiatrist who diagnosed a conduct disorder arising in adolescence, alcohol and substance abuse, and probable episodes of depression most likely of an adjustment disorder or reactive type. The psychiatrist also thought that Mr Bugmy might be suffering from early alcohol-related or head-injury related brain damage.
3. The trial judge found that there was no link between Mr Bugmy's mental condition and the offence. However, he said he would allow some moderation in the weight to be given to general deterrence because of what he described as 'the totality of the psycho-social evidence'. The Crown appealed, arguing that the extent to which social deprivation in a person's youth and background could be taken into account had to diminish with time. The New South Wales Court of Criminal Appeal accepted the Crown's argument.
4. Mr Bugmy's appeal to the High Court was upheld on other grounds, but the majority took the opportunity to discuss, in broad terms, the relationship between the effects of profound childhood deprivation and the purposes of punishment. In this regard, the majority said:

The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.[45]

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision.[46]

1. The majority warned, however, that an offender's deprived background may not have the same mitigatory effect for all the purposes of punishment. While childhood exposure to extreme violence and alcohol abuse may explain an offender's recourse to violence when frustrated, such that their moral culpability for the inability to control that impulse may be substantially reduced, this might also increase the importance of protecting the community from the offender.[47]
2. The mitigatory factors discussed in Bugmy and Verdins, and their interaction, were then considered in Herrmann.[48]
3. Like Mr Bugmy and the applicant, Mr Herrmann was an Aboriginal man whose early childhood was blighted by drug and alcohol fuelled violence and neglect. He was 20 years old when he raped and murdered a 21 year old woman in a savage, sustained and random attack. On a plea of guilty, he was sentenced to 36 years' imprisonment with a non-parole period of 30 years. The trial judge concluded that his moral culpability for the offending was reduced by reason of two distinct but closely related factors: the profound childhood deprivation and trauma that he had suffered; and his severe personality disorder, which impaired his mental functioning. Each of those factors reduced his moral culpability to some degree.
4. The Crown appealed the sentence on the ground that it was manifestly inadequate, calling instead for a sentence of life imprisonment on the basis that that was the only sentence reasonably open if proper weight was given to the gravity of the offence and to the sentencing purpose of protecting the community. In dismissing the appeal, this Court discussed the interrelationship between the separate frames of reference that were engaged: childhood deprivation and impaired mental functioning.
5. Having carefully considered the majority judgment in Bugmy, the Court identified two different ways of expressing the role that childhood deprivation had to play in the assessment of moral culpability: what it described as a more general expression and what it described as a more specific expression.
6. The more general expression of the role of childhood deprivation recognises that the fact that an offender was raised in a community surrounded by alcohol abuse and violence may reduce the sentence, as the offender's moral culpability is likely to be lower than the moral culpability of an offender whose formative years have not been marred in that way. An example of the general expression, the Court said, was to be found in its earlier decision in DPP v Drake:

[T]he profound dysfunction, disadvantage and abuse experienced by the [offender] during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability for the offending in which he engaged could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years.[49]

1. The significance of this general expression, the Court said in Herrmann, is that the relevance of childhood deprivation to sentencing does not depend on proof of a nexus between the offending and the relevant background circumstances. The Court said:

It is the mark of a humane society that the moral judgment expressed through sentencing should take account of the lifelong damage that may result from exposure to violence or abuse or parental neglect in an offender's formative years. As the present case graphically illustrates, childhood trauma can permanently damage - and seriously distort - a person's view of the world around them and their understanding of social norms.[50]

1. Addressing the potential overlap between the applications of Bugmy and Verdins, the Court said that the common feature of the two sets of principles permitted 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 had been impaired. The Court was at pains to say that each frame of reference has its own explanatory work to do. However, the judge must draw them together in order to arrive at a single assessment of the offending and the offender.[51]
2. The applicant's background is similar to that of Mr Bugmy. It is clear that his adverse experiences in childhood and adolescence, compounded by his brain injury and cognitive impairments, have marked him profoundly. Through no fault of his own, his psychological functioning has been impaired, such that he is volatile, emotionally unstable, and struggles to exercise sound judgement.
3. It was necessary for the judge to take this into consideration when making the moral judgment about the degree of blameworthiness to be attached to applicant's offending. It was not necessary to identify a causal connection between the applicant's childhood deprivation and his offending in order for the deprivation to be taken into account in sentencing. But had it been necessary to find a connection, there is at least one passage in Ms Cidoni's second report - the passage relied upon by the applicant - that provides support for the existence of such a connection. Moreover, it is clear that 'the totality of the psycho-social evidence'[52] regarding the applicant provided strong support for the existence of a causal connection between the applicant's personal circumstances - his history and mental state - and his offending.
4. The judge did not expressly state that he would sentence on the basis that the applicant's moral culpability was reduced because of childhood deprivation. As he was required to do, his Honour had regard to the totality of the psycho-social evidence, which showed that as a result of childhood neglect and other factors, the applicant has significant intellectual deficits and a history of mental health issues affecting his judgment and ability to control his impulses. Accordingly, the judge accepted that all of the Verdins considerations were enlivened, including a reduction in the applicant's moral culpability.[53]
5. Having regard to the discussions of Bugmy in Herrmann and Drake, we are satisfied that the judge's statement that he took Bugmy considerations into account 'generally', means that his Honour also considered the effects of the applicant's deprived childhood when making a judgement about the extent of his blameworthiness. The judge did not specify the extent to which childhood deprivation reduced the applicant's blameworthiness over and above the reduction attributable to his cognitive deficits and mental health factors, but he did not need to. He was required to take into account the evidence of the applicant's deprived background and mental impairments to arrive at a single assessment of moral culpability, which he did.
6. In this context, however, the judge also made it clear that the applicant's criminal history, his pattern of reoffending, and his guarded prospects of rehabilitation, raised other sentencing considerations. His Honour 'exposed' the Bugmy principles by reference to passages in L'Eveille which, on examination, emphasise the point made by the High Court in Bugmy that while childhood exposure to extreme violence and alcohol abuse may explain an offender's recourse to violence when frustrated, such that their moral culpability for the inability to control that impulse may be substantially reduced, this might also increase the importance of community protection as a sentencing consideration.
7. Given the pattern of the applicant's offending over a number of years, the seriousness of the offending and the applicant's guarded prospects of rehabilitation, the judge clearly considered, and it was well open to him to do so, that the protection of the community was an important sentencing consideration and that community protection required a period of incarceration beyond the time already served. It needs to be remembered that the applicant was being sentenced as a serious violent offender and s 6D(a) of the Sentencing Act required the principal purpose of the sentence to be 'the protection of the community from the offender'.
8. Whilst, as we have mentioned, the judge's application of Bugmy was somewhat unclear, there can be no doubt that the judge was well aware of the nature of the applicant's background and its impact on his adult life. The applicant's personal history was canvassed in the many reports to which his Honour had regard and was discussed in the course of the sentencing conversation. It is referred to in the sentencing reasons.[54] The applicant's intellectual deficits and mental health issues - which the judge expressly recognised as reducing his moral culpability - were intertwined with this history.
9. We therefore reject the proposition that the judge erred in not finding that the applicant's moral culpability was not reduced by reason of his disadvantaged background. The judge assessed the applicant's moral culpability having regard to the totality of the psych-social evidence. The fact that the judge imposed a combined sentence rather than a longer custodial sentence is a clear indication that the applicant's personal circumstances had a significant bearing on the sentence imposed. This is particularly so given that the applicant was sentenced as a serious violent offender which required consideration of the factors set out in s 6D of the Sentencing Act and notably s 6D(b).
10. Ground 1 is not made out.

1. Ground 2 is that the judge made erroneous factual findings that collectively constitute a material error. We have identified these findings in the course of describing the judge's sentencing remarks. The three alleged factual errors are: first, that the circumstances of aggravation in charge 1 were the entry into the premises with a weapon; secondly, that the applicant was released from custody 20 days prior to the offending; and, thirdly, that the theft of the money was 'effected under physical pressure'.
2. It is plain that it was factually incorrect for the judge to state that the applicant had been released from custody 20 days prior to the offending.[55] However, whether the applicant was at liberty for 20 days prior to reoffending or whether he was at liberty for 44 days before reoffending is immaterial. The point is that the applicant reoffended very shortly after having been released from custody, having served a prison sentence for similar offending. In any event, the judge recorded both the date of the offending and the date of the applicant's release from custody in the judgment.
3. That the theft of the wallet containing $700 and the cards was 'effected under physical pressure' accurately reflects the events described in the prosecution opening, which were accepted by the applicant on the plea. Mr Swetnam and Mr Hawkins were forced out of the house by the applicant kicking in the front door, bursting into the house wielding a golf club, assaulting Mr Hawkins with the golf club, and then threatening him with a kitchen knife. Once Mr Swetnam and Mr Hawkins had been forced out of the house and into the backyard, the applicant carried out the theft of the wallet.
4. As to whether the judge treated presence of the weapon as the element that transformed the burglary into an aggravated burglary, the passage in the judge's reasons relied on for that ground expressly refers to the presence of persons in the premises. In describing the applicant entering the premises with a golf club knowing of the presence of persons he knew, the judge was pointing to an aggravating feature of the aggravated burglary.
5. There is nothing to this ground. It must fail.

1. The applicant was sentenced to a term of imprisonment of 12 months and 674 days' imprisonment (approximately 2 years and 10 months) along with a 2 year CCO with supervision, treatment and rehabilitation conditions, and Justice Plan conditions.
2. The base sentence of time served plus a further 6 months' imprisonment and the 2 year CCO was an aggregate sentence on charges 1, 2, 3 and 6. It reflected the total criminality of those separate offences. The judge fully cumulated the three months' imprisonment imposed for each of the two threat to kill charges, which was indicated by the serious offender provisions of the Sentencing Act.
3. The applicant submits that this sentence was manifestly excessive in that: (a) it was out of step with comparable current sentencing practices in circumstances where a plea of guilty was entered; (b) the entire offending was part of a short incident; (c) there was a single offender; (d) the offender had prior convictions and mental health issues; (e) the victims suffered no serious injury; and (f) while the victims were known to the offender, the offending did not occur in the context of intimate partner violence.
4. The comparable cases referred to by the applicant include Tufue v The King,[56] Potter v The King,[57] and Raoof v The Queen.[58]
5. The applicant submits that the severity of the sentence imposed demonstrates that the judge gave insufficient weight to the following matters in mitigation:

(a) his plea of guilty, which was entered as soon as possible after committal and had both utilitarian and subjective value in that it demonstrated remorse and was made at the time when the effects of COVID‑19 were still being felt;

(b) the application of Verdins. The judge properly found that each of the six limbs of Verdins was enlivened, that there was a direct link between the offending and the applicant's cognitive function, and that the applicant was not an appropriate vehicle for general deterrence and punishment;

(c) the application of Bugmy, as previously discussed;

(d) his participation in the Koori Court, which required the sentencing judge to consider in mitigation that he voluntarily participated in a process that could have been confronting, he experienced shame before his elders and he took responsibility for his actions; and

(e) the availability of support services to secure his rehabilitation, including the availability of accommodation and employment pursuant to his NDIS plan, along with the fact that he had been drug‑free while in custody.

1. The applicant further submits that the consideration of community protection was given disproportionate weight and insufficient weight was given to the consideration that the community would be best protected by the applicant's rehabilitation.
2. The applicant also submits that the orders for full cumulation on charges 4 and 5 were excessive. Although the presumption of concurrency was displaced by reason of the serious violent offender provisions of the Sentencing Act, the principle of totality continued to have force.

1. The ground of manifest excess is difficult to establish and will only succeed if it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.[59] It must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion that he or she did, had proper weight been given to all the relevant circumstances of the offending and the offender.[60] For intervention to be warranted by this Court, it is not enough that the Court regards the impugned sentence as stern, or that it would have imposed a different sentence.[61]
2. In our view, the judge gave adequate weight to all relevant mitigatory factors and the sentence on each charge and the orders for cumulation were not manifestly excessive. The offending was serious. The applicant engaged in highly aggressive, threatening behaviour. He broke into the house having been refused entry, assaulted one of the residents of the house with a golf club and then threatened him with a 30 cm long kitchen knife. He drove both of the residents out of the house and then helped himself to a wallet containing a not inconsiderable sum of money and cards.
3. Matters in mitigation were taken into account and accorded considerable weight, especially the applicant's cognitive limitations. He was given the full benefit of the Verdins factors, despite being drug affected at the time of offending.
4. Importantly, the applicant had a criminal history which was relevant to the assessment of his moral culpability, his prospects of rehabilitation, the need for specific deterrence and the community's need for protection from the applicant. The judge rightly took into account that the instant offending occurred very shortly after the applicant's release from prison for the 2022 offending and in breach of the CCO. The 2022 offending in turn occurred very shortly after the applicant's release from prison for the 2021 offending. The judge was acutely aware of the fine balance that needed to be struck between the applicant's reduced moral culpability on account of his intellectual disabilities, mental health and disadvantaged background, and the need to protect the community given the heightened risk of (violent) reoffending that he represented.
5. As to the periods of cumulation for the sentences for charges 4 and 5, it was well open to the judge to fully cumulate those sentences. As we have mentioned on several occasions, the applicant was to be sentenced on those charges as a serious violent offender under Part 2A of the Sentencing Act. Section 6E required these terms of imprisonment to be served cumulatively, unless directed by the court. The principle of totality did not require shorter periods of cumulation.
6. As to the submission that the sentence was out of step with current sentencing practice, this Court and the High Court have pointed out that there is limited utility in comparing and contrasting decisions of other judges involving different circumstances and antecedents.[62] In sentencing, the judge must instinctively synthesise the factors relevant to the offender and the offending, and dispense individualised justice.
7. In any event, we do not consider that the sentence imposed was out of step with current sentencing practice. In Tufue, the appellant had a limited criminal history and in Raoof, the applicant required involuntary psychiatric treatment immediately following the offending. He did not have prior convictions for aggravated burglary.
8. This ground must fail.

1. None of the proposed grounds of appeal is made out. Leave to appeal will be granted, but the appeal will be dismissed.
2. We note that the applicant is close to completing his term of imprisonment. He will shortly embark (once again) on the challenge of complying with the conditions of a CCO. A 2 year CCO is a challenge for any person, let alone for a person with the applicant's intellectual and social deficits. It is therefore significant that the Justice Plan records the applicant's interest in exploring the possibility of residing at Wulgunggo Ngalu Learning Place, where he can receive cultural and other structural support to help him to satisfy his obligations under the CCO and move on with his life in a constructive manner. That would serve to protect both the applicant and the community.

[1] Contrary to s 77 of the Crimes Act 1958.

[3] Contrary to s 74(1) of the Crimes Act 1958.

[4] Contrary to s 20 of the Crimes Act 1958.

[5] Contrary to s 197(1) of the Crimes Act 1958.

[6] Ms Cidoni reported that the applicant requires comprehensive substance abuse treatment, consistent mental health intervention, cognitive behavioural programmes addressing his impulsive behaviour, and help to strengthen social connections and family bonds, vocational support for reintegration, supervised release, and ongoing assessment to monitor progress and make necessary adjustments.

[7] DPP v Leslie (County Court of Victoria, Judge McInerney, 27 May 2024) ('Reasons').

[15] Reasons, [10]. In fact, protection of the community is the principal purpose for which the sentence is imposed in these circumstances: see Sentencing Act 1991, s 6D(a).

[16] Reasons, [51], [54]. See Sentencing Act 1991, ss 6E, 6F.

[23] Reasons, [15]-[16], citing Veen v The Queen (No 2) (1988) 164 CLR 465, 477 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14 ('Veen (No 2)'); Reasons, [17], citing Berichon v The Queen [2013] VSCA 319; (2013) 40 VR 490, 499-500 [44] (Priest JA); [2013] VSCA 319.

[25] R v Verdins (2007) 16 VR 269; [2007] VSCA 102 ('Verdins').

[29] Reasons, [24], citing [2013] HCA 37; (2013) 249 CLR 571, 592-3; [2013] HCA 37 ('Bugmy').

[30] [2018] VSCA 60, [26], [29], [30] (Weinberg, Priest and Hargrave JJA) ('L'Eveille').

[35] Reasons, [34]-[35], citing Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491, 509-10 [71] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA); [2020] VSCA 212.

[36] Reasons, [36], citing Veen (No 2) (1988) 164 CLR 465, 473 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14.

[39] [2018] VSCA 214; (2018) 56 VR 375, 389 [54] (Priest, Beach and Hargrave JJA); [2018] VSCA 214.

[42] DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 ('Dalgliesh').

[44] (2021) 290 A Crim R 110; [2021] VSCA 160 ('Herrmann').

[45] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 594 [40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[46] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 594-5 [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[47] Ibid 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[48] Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 127-9 [78]-[88] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.

[49] Ibid 120 [41] citing DPP v Drake [2019] VSCA 203, [32] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) (citations omitted).

[50] Herrmann [2021] VSCA 160; (2021) 290 A Crim R 110, 121 [46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA); [2021] VSCA 160.

[51] Ibid 128 [84] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[52] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 585 [16] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[55] In fact, the 20 days was also said to be the interval between the two instances of offending, which was also quite plainly not the case.

[56] [2024] VSCA 22 ('Tufue').

[57] [2023] VSCA 104.

[58] [2016] VSCA 180 ('Raoof').

[59] R v Boaza [1999] VSCA 126, [42] (Winneke P); R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306, [13]-[15] (Maxwell P, Eames JA agreeing at [22], Habersberger AJA agreeing at [23]); [2007] VSCA 32; DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.

[60] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

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

[62] See, eg, Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 591 [6] (Gleeson CJ); [2001] HCA 64; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, 534 [44], 535-6 [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2010] HCA 45; Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58, 74 [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ); [2014] HCA 2; R v Pham [2015] HCA 39; (2015) 256 CLR 550, 558-9 [26]-[28] (French CJ, Keane and Nettle JJ); [2015] HCA 39; Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 453-4 [82]-[83] (Gageler and Gordon JJ); [2017] HCA 41; Hudson v The Queen [2010] VSCA 332; (2010) 30 VR 610, 617-18 [28]-[33] (Ashley, Redlich and Harper JJA); [2010] VSCA 332; Nguyen v The Queen (2016) 261 A Crim R 1, [71]-[72] (Redlich JA); [2016] VSCA 198; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546, 606-11 [171]-[187] (Redlich, Santamaria and McLeish JJA); [2016] VSCA 237; Hasan v The Queen [2010] VSCA 352; (2010) 31 VR 28, 38 [44] (Maxwell P, Redlich and Harper JJA); [2010] VSCA 352; Fichtner v The Queen [2019] VSCA 297, [100] (Maxwell P and Kaye JA); Staples v The Queen [2021] VSCA 307, [88] (Maxwell P, Kaye and Emerton JJA); Lieu v The Queen (2016) 263 A Crim R 173, [46]-[47] (Redlich, Beach and Kaye JJA); [2016] VSCA 277; DPP (Cth) & DPP (Vic) v Edge [2012] VSCA 289, [60] (Priest JA, Osborn JA agreeing); R v Stratton [2008] VSCA 130; (2008) 20 VR 539, [93] (Ashley, Neave JJA and Lasry AJA), citing R v Arney [2007] VSCA 126, [14] (Nettle JA, Vincent JA agreeing at [20], Neave JA agreeing at [22]); [2008] VSCA 130.