Magee v The King [2023] VSCA 80

1. The second incident occurred 18 days later, on 20 November 2019. Approximately one week earlier, the applicant moved into the unit. At approximately 6:30 pm, Mr Hooper walked from the unit, downstairs to collect his washing from the clothesline at the rear of the complex. He collected his washing and walked back to the stairwell. He walked up a few stairs and fell forward as he was struck from behind by the applicant. He fell headfirst into the steps in front of him.
2. While Mr Hooper was face down on the steps, he heard the applicant say, 'you thought you would get away with calling my mum a slut'. Mr Hooper turned over and observed the applicant standing at his feet. The applicant was holding a hockey stick which had sharpened nails sticking out of the end. The applicant was swinging the hockey stick back and forth, hitting Mr Hooper with it. The applicant stuck the nails attached to the stick into Mr Hooper's left leg and then dragged the hockey stick down his leg on three occasions causing incisions (charge 2).
3. The applicant left the scene as Mr Hooper screamed out in pain. His screams were heard by a witness who called 000 requesting an ambulance. Mr Hooper was transported to the Royal Melbourne Hospital for treatment. His injuries included a laceration to the left side of his scalp; a laceration to his right eyebrow; bruising around his right eye; a ten centimetre laceration to his upper left thigh, with muscle visible; a 20 centimetre laceration to the back of his left thigh, into the muscle; and a laceration to his outer left calf. On 23 November 2019, he underwent surgery to repair his injuries.

1. On 28 February 2020 at approximately 2:30 am, Police attended an address in Bell Park where they executed a search warrant and arrested the applicant. He was taken to Heidelberg Police Station, charged, and gave a 'no comment' record of interview. He was subsequently remanded in custody. At the time of his offending, the applicant was on bail (related summary offence 12). At the time of his arrest, he was in contravention of a curfew condition of his bail (related summary offence 11).

1. On the plea, the applicant's counsel accepted that a term of imprisonment was the only sentencing option available to the judge. It was submitted, however, that the sentence imposed should allow for the applicant's release, 'if not immediately then very shortly, having regard to the two years that he's spent on remand in respect to this matter'.
2. The applicant's counsel submitted that the principles in Bugmy applied 'in a general way' referred to in that decision.[5] The matters relied upon by the applicant in support of his Bugmy submissions were his exposure to family violence and sexual abuse as a child; and his teenage years being 'very difficult', where he was 'really without supervision, living a very transient, chaotic-type existence'.
3. On the plea, the applicant tendered a report from a clinical psychologist, Carla Lechner; a letter from Shae White, an AOD worker employed by the Gippsland & East Gippsland Aboriginal Cooperative Limited; and a bundle of completion certificates for various programs in which the applicant had participated.
4. Ms Lechner's report recorded the applicant's history as including:
   • the applicant's parents separating when he was aged about 4-5 years, and his mother re-partnering with Mr Hooper when the applicant was aged about seven;
   • Mr Hooper having been violent towards the applicant and his mother;
   • the applicant having struggled at school and having required the assistance of an integration aid at both primary and secondary schools;
   • the applicant's diagnosis of ADHD;
   • the applicant having been sexually abused by a neighbour when he was a teenager;
   • the applicant having commenced smoking cannabis at the age of 13-14 years, and his later use of ice, heroin, GHB, LSD, cocaine, ecstasy and prescription medications;
   • the applicant's abuse of alcohol; and
   • the applicant having left home, not long after the sexual abuse, and thereby subsequently having no family support as a teenager.
5. On the plea, the prosecutor submitted that the evidence relied upon in support of the applicant's submission that the principles in Bugmy applied was 'relatively scarce'. Alternatively, he submitted that if there was a sufficient evidentiary basis for the applicant's Bugmy submissions, 'It doesn't reach the level ... of being profound childhood deprivation'.
6. The prosecutor referred the judge to the 2013 reasons for sentence of her Honour Judge Sexton in DPP v Magee.[6] This was the occasion on which the applicant was sentenced in respect of two charges of negligently causing serious injury. Of some note, Judge Sexton's reasons make no reference to Bugmy.

1. After summarising the circumstances of the applicant's offending and its impact on Ms Armstrong and Mr Hooper,[7] the judge referred to the submissions made on the plea.[8] The judge noted that the applicant's plea counsel relied upon the following matters in mitigation:
   • The applicant's plea in the midst of a global pandemic (a plea which it was submitted should be treated as an early one, given that it was made in conformity with earlier plea offers made by the applicant, but which had earlier been rejected by the prosecution);
   • the presence of 'some remorse';
   • the impact of COVID-19 upon the applicant's custodial experience; and
   • the applicant's disadvantaged background.[9]
2. The judge summarised the applicant's background.[10] Specifically, her Honour said:
   • The applicant was born in November 1988, and was 34 at the time of sentencing. His parents separated when he was a child, and was subsequently brought up by his mother - who later re-partnered with Mr Hooper. Much of the applicant's background was set out in Ms Lechner's report, which was based on the applicant's 'self-report'.
   • The applicant was raised in West Heidelberg, but when he reached secondary school, he 'relocated as a family up to Lakes Entrance'. He reported that he was the victim of some sexual offending at that stage. He disengaged from school, started using drugs and engaged in criminal behaviour. He was educated to Year 9 level. He had a number of issues at school, and had had 'quite limited employment since'. Housing had been an issue, and the applicant's employment consisted mainly of short-term, casual jobs.
   • The applicant has a criminal history, described by the judge as 'not the longest of criminal histories'.[11] The applicant's criminal history included six prior convictions for assault, one for affray, and a range of other offending, including offences of dishonestly offending.[12]
   • The applicant was on bail for minor drug offences at the time he committed the present offending. He had also committed some subsequent offences in July 2021 and January 2022.
3. The judge referred to parts of the applicant's criminal history as having some relevance to his Honour's task because he had to make judgments about the applicant's risk of re-offending and his prospects of rehabilitation.[13]
4. The judge referred to the applicant's parole history following his sentencing by Judge Sexton. He also referred to the many courses and programs that the applicant had engaged in while in custody.[14]
5. The judge then referred to the applicant's plea of guilty, saying that he would treat the plea as an early one.[15] The judge noted that the cost and effort of a trial had been avoided; witnesses had not been required to give evidence at trial; and the applicant had spared his victims that experience altogether.[16] The judge said that the applicant's guilty plea was worth extra weight for the reasons set out in this Court's decision of Worboyes v The Queen.[17]
6. The judge took into account the delay between the applicant's arrest and sentencing. He also took into account the material which showed that the applicant had been doing his best to enhance his rehabilitative prospects while in custody awaiting sentencing.[18]
7. The judge dealt at some length with the issue of remorse,[19] before saying that he was not satisfied on the balance of probabilities that there was 'much remorse in this case'. However, his Honour said that he was prepared to treat the applicant's guilty plea, and some of the applicant's statements to Ms Lechner, as 'indicative of some limited remorse'.[20]
8. Under the heading, 'Bugmy', the judge said:

I have mentioned your personal background and gone into some level of detail. It was not the best background but by no means was it the worst. Your counsel argued that the case of Bugmy are engaged here. You heard some discussion about that the other day. The Crown challenged that submission.

That Bugmy line of authority seems to have had something of a resurgence in recent times and what seems to be forgotten is the extent of the disadvantage actually required, how rarely the Bugmy principles are actually engaged and the need for adequate evidence in support of them. Here, I pretty much have your account. It is not substantiated by medical or Department of Health and Human Services records or contemporaneous reports from doctors or counsellors or schools, or by way of evidence before me.

The fact is there is some consistency as to what has been said before either to another court or to Ms White, that is not the critical issue. I need no convincing that you did not have an ideal background. Few prisoners do. There was the separation of your parents. That is not uncommon at all. Then there was very little connection between you and your father. I am prepared to accept some level of domestic disharmony in your mother's new relationship with Mr Hooper. Well, that is not too uncommon either regrettably. Your description of being struck on the backside harder than necessary at paragraph 2 of page 3 is hardly a matter of any great weight.

I am prepared to accept that home life was not the best. But that is not an uncommon thing for a person who sits in the dock of this Court. There were serious issues at school for you and movement from Melbourne to Lakes Entrance and that heralded in the sexual abuse that occurred a good deal later. Now, of course, that is not something that I ignore. It was a serious matter and I accept that it took place and I accept that it had deep impact upon you. The fact is I would not ignore any of your personal circumstances or any aspect of your background, whether I have regard to these Bugmy principles or not. I think it was an unenviable background you had which really, by only the barest of margins, enlivens these principles. I apply them to my task in the way contemplated by the case law in this area as described in Bugmy and the decision of Marrah.

An offender's circumstances and their experience during their childhood and formative years must be considered in sentencing. That is not just out of some historical curiosity but because, of course, the effect of social disadvantage does not diminish with time. They are likely to have profound and lasting consequences, and, in some cases, they can explain but not excuse the offending. They don't do that here in this case. It is always a matter of the weight to attribute to the evidence of a significantly disadvantaged background. Disadvantage does not attract the same weight in every case or in the same way. Sometimes it might lead to a very substantial reduction in moral culpability and also a sizeable reduction in the weight to be given to general and specific deterrence. That is not the position in this case at all.

Sometimes it might be enough to take into account in a general way without any of these sizeable reductions and that is what your counsel is asking me to do and I will. I do take into account your background in a mitigatory fashion in the way urged upon me. In that sense, I am giving full weight to your background in the way that phrase is employed in these cases.[21]

1. The judge analysed the applicant's prospects of rehabilitation in some detail.[22] Ultimately, he accepted that the applicant had 'quite reasonable or realistic prospects' if the applicant could abstain from drugs. His Honour said that if the applicant could not abstain from illegal drug use, then his prospects of rehabilitation would 'plummet'.[23]
2. Under the heading 'COVID-19', the judge dealt with the issue of COVID-19 and its impact on the applicant as a prisoner.[24] The judge accepted, and took into account, the increased burden posed by COVID-19 in the way urged upon him by the applicant's plea counsel.
3. The judge returned to Ms Lechner's report, saying that he had read it and taken it into account. His Honour said that Ms Lechner's report 'sets out much useful background, which, to an extent, founds my Bugmy finding that I have pronounced upon'.[25]
4. The judge noted the applicant's plea counsel's concession that the offending was serious, saying that the offending on charge 2 was 'the most serious ... by a mile'.[26] The judge described the circumstances of charge 2 in further detail, as follows:

As I mentioned earlier, this could not in any way be described as a fight. It was not a fight. It was an ambush. It was unprovoked and it involved, as ambushes do, a surprise attack and this one from behind. Your victim, Mr Hooper, was completely exposed and vulnerable. He was not expecting any force. He had no idea you were even there. That was the setting for the first blow to the back of the head. He was felled from behind and he was rendered incapable. Whether by hand or by weapon matters not one jot. I cannot determine what he was struck with. It does not matter. That first blow was serious enough, delivered as it was, to the back of the head of someone who was not expecting any impact and a blow that sent him face-first to the ground.

That first blow caused a sizeable laceration to the back of his head. Whilst he was face down on the steps you then mentioned this notion of him thinking he had got away with calling your mother a slut. You then set about a pretty dreadful attack upon him as he lay in that exposed and vulnerable state. You used an improvised weapon repeatedly. He was defenceless. There is no other reason for you to have had that weapon in the stairwell other than to use it in this attack. This attack was plainly motivated by thoughts of revenge for an actual or perceived slight from decades before.

You clearly had planned this attack to some extent and regrettably caused him injuries that are removed from low-level injuries which can be embraced by this offence. 'Injury', as it is defined in the Crimes Act 1958 (Vic), need not even require medical attention. Well, he needed medical attention. He had gaping wounds which bled profusely. There were these multiple blows. He was hospitalised and he was operated upon. He spent four days in hospital. He has had ongoing impact including the scarring. He was in the vicinity of his own home and you were a guest at the time. The manner in which you inflicted the leg injuries to a man who lay helpless before you really was quite calculated and quite chilling. Your culpability was high.[27]

1. The judge then referred to the offending against Ms Armstrong, saying it was obviously far less serious in terms of both 'mechanism and outcome' - but it was 'still serious enough'.[28]
2. The judge identified the various matters he was required to consider in sentencing the applicant.[29] In the course of this discussion, his Honour referred to the applicant's prospects of rehabilitation; punishing the applicant justly and proportionately; denunciation; specific deterrence; general deterrence; the relevance of maximum penalties and sentencing statistics.
3. Finally, his Honour referred to the principle of totality, noting that there were 'two quite separate crimes of violence committed on different dates upon different victims'.[30] The judge said that, 'there obviously must be meaningful cumulation in this case'.[31]

1. Under proposed ground 1, the applicant made two complaints: first, he submitted that the judge made an error of principle when considering Bugmy; and secondly, he submitted that the judge's 'modest conclusions' about the extent of the applicant's disadvantage were not open on the material tendered on the plea.
2. The error of principle relied upon by the applicant was said to be the judge's comparison between the applicant's background and the background of other offenders who have fallen to be sentenced in the County Court. The applicant submitted that the proper comparison was between the applicant's disadvantage and the disadvantage of ordinary members of the community. Put another way, the applicant submitted that it was no answer to his reliance on Bugmy for the judge to note that the applicant's disadvantage was not uncommon when compared to other prisoners.[32]
3. In relation to his second complaint under proposed ground 1, the applicant submitted that statements in the Reasons to the effect that the applicant's 'home life was not the best'[33] erroneously understated (in a way which was not open to the judge) the true level of the applicant's childhood disadvantage. The same submission was made in respect of the judge's acceptance that there was 'some level of domestic disharmony in [the applicant's] mother's new relationship with Mr Hooper'.[34]
4. Under proposed ground 2, the applicant contended that the sentences imposed upon him were manifestly excessive. The sentences on charges 1 and 2 were submitted to be too high, as was the order for cumulation. The total effective sentence that was produced by the individual sentences and the order for cumulation was thus submitted to be manifestly excessive, as was the non-parole period.
5. In support of these contentions, the applicant submitted:
   • the assault on Ms Armstrong was 'brief and spontaneous', did not involve the use of any weapon, and had resulted in injuries which 'were at the lower end and did not require ongoing treatment';
   • the offence against Mr Hooper 'was linked - albeit not rationally - to the applicant's experience of trauma when living with Mr Hooper as a child';
   • the sentence on charge 2 was substantially higher than the average for an offence of intentionally causing injury imposed in the higher courts in the period 2020-2021 (indeed, it was higher than the average imposed for recklessly causing serious injury in the higher courts during that period); and
   • the various matters in mitigation (Bugmy; pleas of guilty; remorse; delay; increased burden of imprisonment; and prospects for rehabilitation) mandated lower sentences than those imposed by the judge.
6. The applicant also submitted that the considerations of deterrence and denunciation were reduced in circumstances where the applicant's last violent offending occurred 'nearly a decade prior', and the principles in Bugmy applied.

1. In Newton v The King,[35] this Court recently summarised the principles in Bugmy as follows:

In Bugmy, the High Court explained the two different ways in which childhood deprivation may potentially be relevant to the assessment of moral culpability. The first, and more general way, was expressed as follows:

• 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.

And the second, more specific way, was expressed in these terms:

• An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

The High Court then observed that 'the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending'. Nothing in this part of the Court's judgment, however, imposed any requirement that childhood deprivation must be 'profound' before a sentencing judge is able to consider whether that deprivation might be relevant to the assessment of moral culpability. As was subsequently said in Sabbatucci:

• Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[36]

1. In the present case, the applicant sought to rely upon his childhood deprivation in the more general way referred to in Bugmy. He did not seek to establish the causal link which would have permitted reliance in the more specific way referred to in that case.
2. Accepting submissions made by the applicant's plea counsel, the judge took into account the applicant's background in the general way referred to in Bugmy. In doing so, his Honour was required to consider the individual circumstances of the applicant's childhood and teenage years.
3. In a case where an offender's childhood was a relevantly deprived one, it would be no answer to a Bugmy submission to say that the deprivation was no different from other offenders who have fallen to be sentenced for other offending. That is not to say, however, that a judge cannot make an observation, in the course of sentencing an offender, that the childhood deprivation established is not uncommon in that judge's experience. Such a conclusion may inform the extent or level of the deprivation which falls to be taken into account when determining the sentence to be imposed. The application of the principles in Bugmy is not binary. Particularly where an offender cannot establish a causal connection between past disadvantage and the particular offence, and the deprivation forms part of the background in which to assess the person's culpability, it will be necessary for the judge to gauge the extent to which past disadvantage has featured in the person's upbringing and impacted the course of their life. It is an evaluative exercise aimed at informing moral culpability. There is no single point of reference in undertaking that task: a comparison with the general community and with other offenders may each inform the assessment.
4. From the Reasons, it is plain that the judge gave careful and detailed consideration to the extent of the applicant's childhood deprivation and the application of Bugmy. We see no error of principle in the observations and conclusions expressed in the Reasons on these issues.
5. Similarly, we are not persuaded that his Honour understated the true level of the applicant's childhood disadvantage. In our view, the judge's description and references to the level and extent of the applicant's childhood disadvantage were well open to him on the material tendered on the plea.
6. It follows that proposed ground 1 must be rejected.

1. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[37] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[38]
2. The judge was correct to use the word 'dreadful' in relation to the applicant's attack on Mr Hooper which constituted charge 2. Mr Hooper was attacked from behind, with an improvised weapon (a hockey stick which had sharpened nails sticking out from it). The attack was continued while Mr Hooper lay in an exposed and vulnerable state. Charge 2 was a very serious example of a serious offence. Notwithstanding the matters the applicant was able to call in aid in mitigation, the sentence imposed on charge 2 can only be described as moderate in all the circumstances. Far from being wholly outside the permissible range available to the judge, the sentence on charge 2 was a mid-range one.
3. While the judge correctly observed that the offending on charge 1 was less serious than the offending on charge 2, that is not to downplay the seriousness of the applicant's attack on Ms Armstrong. Ms Armstrong had been punched to her head, bloodied and bruised by the applicant in her own home, a place where she was entitled to feel safe. In our view, the sentence on charge 1 was modest in all the circumstances.
4. Similarly, there is no substance in the applicant's complaint about the judge's order for cumulation. When one looks at the total criminality involved in the commission of charges 1 and 2, a total effective sentence of four years and three months is well within range, having regard to the circumstances of the offending and the applicant's personal circumstances.
5. Finally, there could be no argument about the non-parole period fixed by the judge. At less than 60 per cent of the head sentence, it too was moderate, if not modest.

1. The application for leave to appeal must be refused.

[1] Contrary to s 18 of the Crimes Act 1958.

[2] Contrary to s 30A of the Bail Act 1977.

[3] Contrary to s 30B of the Bail Act 1977.

[4] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').

[5] Bugmy [2013] HCA 37; (2013) 249 CLR 571, 594 [40]. See further DPP v Herrmann [2021] VSCA 160, [36]-[46] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).

[6] Unreported, County Court of Victoria, Judge Sexton, 23 October 2013 ('Judge Sexton's reasons').

[7] DPP v Magee [2022] VCC 2108, [5]-[16] ('Reasons').

[17] [2021] VSCA 169. Reasons, [40]-[41].

[21] Ibid [47]-[52] (citation omitted).

[35] [2023] VSCA 22.

[36] Ibid [36]-[37] (citations omitted).

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