Mitchell v The Queen [2018] VSCA 158

1 On 8 November 2014, the applicant, Timothy Bennison and Co-offender A[1] committed a violent and protracted assault on Mr Jason Stone. Mr Stone, who was bound with tape and a sock in his mouth, was then placed in the boot of Co-offender A's car. Mr Stone was then taken by Bennison and Co-offender A to Rickett's Point where he was further assaulted. His dead body was discovered some days later hidden in bushes on the foreshore.

2 Co-offender A pleaded guilty to the manslaughter of Mr Stone. He subsequently gave a statement to police, and an undertaking to give evidence against both the applicant and Bennison. On 11 April 2016, Co-offender A was sentenced to a term of imprisonment of five years, with a non-parole period of three years and nine months.[2]

3 On 9 November 2016, following a Basha hearing[3] in which Co-offender A gave evidence and was cross-examined, the applicant pleaded guilty to the manslaughter of Mr Stone. On 27 July 2017, the applicant was sentenced to a term of imprisonment of 10 years, with a non-parole period of seven years and six months.[4]

4 Bennison pleaded guilty to murder and was sentenced to a term of imprisonment of 21 years with a non-parole period of 18 years.

5 The applicant now seeks leave to appeal against his sentence. His proposed grounds of appeal are:

1. The sentencing judge erred in his application of the parity principle in that he imposed a sentence upon the applicant so disparate from the sentence imposed upon [Co-offender A] as to give rise to a justifiable sense of grievance in the applicant.

Particulars

(a) [Co-offender A] was dealt with for the same offence, however his criminality extended over a greater period and he was present at the time of death - whereas the applicant was not.

(b) [Co-offender A] had available to him a significant mitigatory matter - informer's discount - that the applicant did not.

(c) In applying the principle of parity the sentencing judge gave insufficient weight to the mitigatory effect of the applicant's ill health.

(d) The disparity in the timing of the pleas was overstated by the sentencing judge.

(e) Too much weight was placed upon the disparity in their criminal histories.

2. The sentencing judge erred by:

(a) imposing a head sentence; and

(b) imposing a non-parole period

which were, in all the circumstances manifestly excessive.

Particulars

(i) Insufficient weight was given to the effect of the applicant's ill health and cognitive functioning.

(ii) The sentencing judge's characterisation of the offence paid insufficient regard to the fact that the applicant's complicity in the assault at the Excelsior Drive premises was not the only significant or substantial contributor to death.

(iii) The sentencing judge's characterisation of the offence paid insufficient regard to the fact that the assault was not one involving weapons.

6 Mr Stone was 27 years old at the time of his death. He was addicted to the drug 'ice' and sold and used drugs daily. The applicant supplied him with 'ice' in the months leading up to his death, and, on occasion, did so on credit. Over time, this resulted in money being owed by Mr Stone to the applicant.

7 In the weeks leading up to Mr Stone's death, the applicant was pursuing money owed to him by Mr Stone, and had previously assaulted Mr Stone in relation to the debt.

8 On the evening of 7 November 2014, Bennison and Co-offender A were at the applicant's house smoking 'ice', which the applicant supplied. Co-offender A was a mutual associate of the applicant and Bennison. The applicant had not met Bennison prior to this evening.

9 At around 1:00 am, the applicant, Co-offender A and Bennison went to the address of Mr Stone's girlfriend, Sherri Ferrari, in Excelsior Drive, Frankston North. Upon arrival at the address, Co-offender A and the applicant spoke to neighbours in the street about an unrelated matter. The applicant told Co-offender A that Mr Stone had been going around saying that he did not owe the applicant money. The applicant told Co-offender A that Mr Stone did owe him money. They discussed getting Mr Stone to Ms Ferrari's unit to have a talk to him and 'touch him up'. Co-offender A told Bennison what was happening and Bennison agreed to assist. The applicant told them that Mr Stone would be at the unit in about half an hour. The three of them then entered the unit. Inside the unit were Ms Ferrari and Trevor Sagor, also known as 'TJ'.

10 At 1:30 am, TJ received a phone call from Mr Stone. Mr Stone said he would be arriving at the unit but did not say how long he would be.

11 At about 2:30 am, Mr Stone was dropped off a few doors down from the unit. He entered the unit through the front door and walked down the hall to the kitchen. Ms Ferrari went to her bedroom, while TJ stayed in the kitchen.

12 Bennison blocked the way and punched Mr Stone in the face. The applicant, Co-offender A and Bennison further assaulted Mr Stone in the kitchen. Mr Stone tried to resist, but they managed to get him into the laundry. They closed the laundry door behind them and continued the assault by punching and kicking Mr Stone, including punches to the head. TJ remained in the kitchen, in fear that if he interfered he would be in danger.

13 During the assault, Mr Stone's wrists and feet were bound with adhesive tape. A sock was put in Mr Stone's mouth and tape was wrapped around his head, neck and throat to keep the sock in place.

14 Mr Stone was then carried through the lounge room and outside to Co-offender A's car. TJ could hear Mr Stone calling out. Mr Stone was placed in the boot of Co-offender A's car and locked inside. Neighbours could hear moaning and what sounded like kicking from inside of the boot.

15 Co-offender A and Bennison got into the car. The applicant told them to take Mr Stone for a drive 'and get him out of here'.

16 Co-offender A drove his car to Rickett's Point, arriving at 3:12 am. Bennison and Co-offender A removed Mr Stone from the boot and dragged or carried him down onto the foreshore area.

17 The sentencing judge said there was 'some uncertainty' surrounding what happened at Rickett's Point and how Mr Stone ultimately died, but it was clear that Co-offender A and Bennison participated in further acts in relation to Mr Stone's death.[5] The account given by Co-offender A was that Mr Stone was dragged into the water, and was held under the water by Bennison after Co-offender A urged him to stop.[6] As indicated earlier, Bennison pleaded guilty to murder.

18 At 10:34 am, Co-offender A sent the applicant a text message which read, 'See you in a few sort it then'. Later that day, Co-offender A returned to Ferrari's unit and spoke with the applicant. The applicant had remained at the unit to clean the scene.

19 On 11 November 2014, Mr Stone's body was discovered by a person out walking her dog. Mr Stone's body was in a stage of decomposition. Adhesive tape was tightly secured around his left wrist, lower legs, neck and throat with a pair of socks rolled into a ball.

20 An autopsy was conducted. There was evidence of multiple episodes of blunt force trauma and a ligature around the neck, with findings of possible neck compression and traumatic brain injury. There were many possible causes of death. Although the precise cause of death is unknown, Mr Stone did not die of natural causes.

21 The applicant and Co-offender A arranged for the disposal of Co-offender A's car. It was sold for $100 in the week following Mr Stone's body being found.

22 On 28 November 2014, the applicant was interviewed by police and denied any involvement in the assault or death of Mr Stone. The applicant denied having seen or spoken to Bennison or Co-offender A after they left the unit in the car. He admitted to having previously assaulted Mr Stone a few weeks before 8 November 2014 because Mr Stone owed him money. The applicant denied that the debt related to drugs, and denied selling drugs.

23 The applicant was born in the United Kingdom, migrating to Australia when he was four years of age. At the time of sentencing, he was 51 years of age.

24 The applicant had a difficult upbringing, leaving home at the age of 15. As a child, he was molested by a teacher. He attended a technical school, but left in Year 10. After leaving home, he commenced to use cannabis and then heroin. He became addicted to heroin, but has also used other illicit substances including amphetamine, methylamphetamine ('ice') and GHB.

25 The applicant has an extensive criminal history involving numerous court appearances dating back to 1984. He was convicted of assault in 1989 and 1990; recklessly causing injury in 2002; and offences relating to possessing or being armed with a weapon in 1984, 2005, 2011 and 2013. He has numerous other prior convictions involving drug trafficking, possession and use offences, driving-related offences, theft and assorted dishonesty offences. Additionally, he has prior convictions for breaching intervention orders, breaching a suspended sentence order, failing to comply with a community based order and failing to answer bail. On 23 July 2013, he was sentenced to 12 months' imprisonment with a non-parole period of four months for drug trafficking, possessing a controlled weapon without excuse and dealing with property suspected of being the proceeds of crime.

26 Medical evidence tendered on the plea disclosed that the applicant was then suffering from a number of medical conditions, some of which were described as serious or significant. These included cirrhosis, hepatitis C (in remission), portal hypertension, opiate addiction, asthma, reflux, chronic obstructive pulmonary/airways disease, acquired brain injury, depression (which was being treated and was expected to resolve), allergic rhinitis, methicillin-resistant staphylococcus aureus relating to a chronic ulcer of the right ankle, and a 'prostate issue' (probably benign prostatic hyperplasia).

27 The medical evidence tendered on the plea included a report from Associate Professor John Gall. In that report, Associate Professor Gall expressed the opinion that it was likely that the applicant will develop further complications as a result of his liver disease and he may ultimately require a liver transplant.

28 At the commencement of his reasons for sentence, the judge observed that the unlawful and dangerous acts that resulted in the death of Mr Stone involved a 'violent and protracted assault'. Those acts were done by the applicant in concert with Bennison and Co-offender A, both of whom acted at the applicant's behest.[7]

29 Next, the judge observed that Co-offender A had pleaded guilty to manslaughter, was sentenced as we have already described, and received a 'substantial discount on his sentence by reason that he entered an early plea of guilty, and because he gave a statement to police and gave an undertaking to give evidence against [the applicant] and Bennison'.[8] The judge observed that Bennison pleaded guilty to murder and was sentenced to 21 years in prison with a non-parole period of 18 years.[9]

30 The judge then described the circumstances of the applicant's offending,[10] before referring to the victim impact statements tendered on the plea.[11] The judge said that the victim impact statements showed the profound effect on, and suffering caused to, Mr Stone's family as a result of Mr Stone's death.

31 Next, the judge set out in some detail the applicant's background circumstances,[12] before turning to the applicant's plea of guilty and remorse.[13] The judge noted that the applicant pleaded guilty on 9 November 2016 when his trial was due to commence.[14] The judge said that this could not be described as an early plea of guilty.[15] The judge said that he accepted that the applicant's plea had saved the community the expense of a trial and that he had taken into account the utilitarian value of the plea.[16] As to remorse, the judge said:

I accept that your guilty plea may indicate that you show some remorse for your involvement in the killing of Jason Stone. However, in circumstances where your counsel did not direct me to any other material which is indicative of your remorse, I cannot be satisfied that any limited remorse warrants any discount over and above the discount you are entitled to for the utility of your guilty plea.[17]

32 The judge then dealt with the applicant's moral culpability.[18] He referred to reports prepared by a neuropsychologist and by the forensic mental health service and a submission made by the applicant's counsel that these reports provided a basis, perhaps only to a 'slight degree', of assessing the applicant's moral culpability more favourably.[19] As to these reports and the applicant's counsel's submission, the judge said:

Having read both reports, it is clear your counsel's tentative approach to the weight to attach to these reports was entirely appropriate. On the evidence, I do not accept that your mild to moderate intellectual impairment was 'causally linked' to your involvement in the killing of Jason Stone. I am also not satisfied that it significantly affected your ability to appreciate the wrongfulness of your actions at the time you committed the offence. As such, this evidence does not provide a basis for a reduction with respect to your moral culpability.[20]

Although far from the worst example of manslaughter, the killing by you of Jason Stone is a very serious example of that crime. I reject your counsel's submission that this could be described as 'mid-range manslaughter offence'. It was you who was motivated by a debt owed to you by Jason Stone. It was you who was involved in the suggestion that Jason Stone should be 'touched up'. And you recruited Co-offender A to assist you with your plan (who in turn got Bennison to assist). Further, you actively participated in the protracted and brutal assault of Jason Stone, leaving him with serious injuries that substantially or significantly contributed to his death. Although you did not accompany your co-offenders to Ricketts Point, you stayed at the scene to remove evidence of the crime, and later were involved in disposing of Co-offender A's car.

Such an attack, in all the circumstances, carries with it a high level of moral culpability.[21]

34 As to prospects of rehabilitation, the judge referred to a letter in support of the applicant written by a chaplain, Steven Beeby. In the letter Mr Beeby stated that he had observed 'a true genuine change' in the applicant's life over the preceding 18 months, and that he had come to know the applicant as a 'man of good character', with a 'sincere heart for true change'.[22] The judge then referred to the applicant's extensive criminal history, noting that the prison sentence imposed on the applicant in July 2013, and the applicant's long history of interaction with the criminal justice system, had not deterred the applicant from further offending.[23] The judge then said:

Accordingly, whilst I have taken into account the letter of support written by Mr Beeby, I do not consider your prospects of rehabilitation to be strong. Further, given your history, I consider that specific deterrence is a factor to be considered, in addition to general deterrence, denunciation, just punishment and protection of the community.[24]

35 Next, the judge referred to the applicant's medical conditions.[25] The judge accepted that the applicant was suffering from a range of medical conditions which were likely to cause him to experience greater hardship in custody than a healthy person would experience. The judge took this matter into account in sentencing, and also took into account difficulties suffered by the applicant as a result of being placed in 'lockdown' for a lengthy period of his time on remand.[26] The judge then observed that the applicant's prospect of deportation had already weighed heavily on the applicant, and this had to be taken into account.[27]

36 The judge then turned to the question of parity with Co-offender A.[28] The judge referred to the sentence imposed on Co-offender A and the s 6AAA declaration made by Emerton J at the time she sentenced Co-offender A. In her 6AAA declaration, Emerton J said that but for Co-offender A's plea of guilty and undertaking to give evidence, she would have sentenced him to 10 years' imprisonment with a non-parole period of seven years and six months.

37 After describing the parity principle, the judge said that although he had taken into account the sentence that Co-offender A received, there were a number of reasons why the parity principle was of limited relevance in this case.[29] The judge identified these reasons as follows:

First, the circumstances of your offending are notably different from the circumstances of Co-offender A's offending. Jason Stone was still alive at the time he was placed in the boot of Co-offender A's car and driven away. It was at this point that your involvement in the brutal attack on Jason Stone ended. Although there is some uncertainty surrounding the circumstances in which Jason Stone ultimately died, it is clear that Co-offender A and Bennison participated in further acts in relation to Jason Stone's death after leaving you behind at the unit. Obviously, this is a factor in your favour.

Secondly, Co-offender A entered a guilty plea shortly after his committal hearing. As already noted, you did not enter your guilty plea until the day your trial was due to commence.

Thirdly, although I accept that it does not expose a 'history of violent offending', your criminal record is extensive, with prior offences dating from 1984 to 2013. In contrast, Co-offender A's criminal antecedents did not involve an extensive history of criminal activity.

Finally, as is apparent, Co-offender A received a substantial discount on his sentence. The discount received was not only by reason of his early plea of guilty, but also because of his statement given to police, which contained various admissions and was 'of considerable value to the prosecution', and his undertaking to give evidence against both you and Bennison. Your plea of guilty carries with it considerations of a different nature, as you did not make any comparable statements to police, or give any undertaking to give evidence. Further, Co-offender A's sentencing judge did not state what proportion of the discount was attributable to each of those factors, other than to say that the discount for providing a statement and undertaking to give evidence was 'significant'.[30]

38 The judge then sentenced the applicant to a term of imprisonment of 10 years with a non-parole period of seven years and six months. In his 6AAA declaration, the judge said that, but for the applicant's plea of guilty, he would have imposed a sentence of 12 years with a non-parole period of 10 years.[31]

39 Under proposed ground 1, the applicant submitted that the disparity in the sentences imposed upon him and Co-offender A were not justifiable in all of the circumstances. In support of that submission, the applicant made the following points:

(1) The applicant's offending was more limited than Co-offender A's offending. The applicant's offending was confined to his actions at Excelsior Drive; whereas Co-offender A's offending continued on to Rickett's Point. Co-offender A was sentenced on the basis of continuing conduct which included:

• driving with the deceased in the boot of the car, bound and gagged, for a considerable period of time;
• assaulting the deceased at Rickett's Point, including submerging him in water;
• being in the vicinity while Bennison drowned the deceased; and
• concealing the body of the deceased.

(2) The applicant has suffered (and continues to suffer) from a range of serious or significant medical conditions.[32] Because of his health issues, the applicant would experience greater hardship in custody than a healthy person.

(3) Mitigation was also warranted due to the applicant's experience in custody, while on remand, due to the 'lockdown', and also because of the fact that the applicant's prospect of deportation had weighed (and would continue to weigh) heavily on him.

(4) The applicant's cognitive limitations required consideration in the sentencing synthesis, 'to some mitigatory effect'.

(5) The judge erred when he stated that Co-offender A entered a guilty plea shortly after his committal hearing.

(6) While the judge distinguished between the respective criminal histories of the applicant and Co-offender A, it was noteworthy that Co-offender A had prior convictions for recklessly causing injury in 2006, and recklessly causing injury and reckless conduct endangering serious injury in 2007.[33]

40 Under proposed ground 2, the applicant contended that the sentence was manifestly excessive when one had regard to the fact that the judge accepted that the offence was 'far from the worst example of manslaughter'. The sentence was submitted to be demonstrably outside the permissible range when due regard was had to:

• the circumstances of the present offence when compared to examples of manslaughter involving the use of weapons;
• the assessment of criminality when one considers that the initial intention was to give Mr Stone a 'touch up', Mr Stone was alive and conscious when the applicant's assault ceased, and further assaults took place in the absence of the applicant;
• the applicant's plea of guilty;
• the mitigation available to the applicant due to his ill health;
• the applicant's cognitive functioning; and
• the applicant's experience in custody on remand.

41 In respect of proposed ground 1, the respondent submitted that the sentence imposed by the judge was reasonably open, and that the sentence did not infringe parity principles. The judge's sentencing reasons show that his Honour carefully considered the matters relevant to the sentencing of the applicant. Specifically, the judge gave detailed consideration to the principal factors relied upon by the applicant: namely, the applicant's ill health, and the fact that Co-offender A's offending occurred over a greater period on the day of the deceased's death.

42 In its written case, the respondent accepted that proposed ground 1 was, however, reasonably arguable because the judge erred when he said that Co-offender A entered his plea shortly after his committal. In fact, like the applicant, Co-offender A entered a plea of guilty at a late stage (in Co-offender A's case, one day after the trial was due to commence).[34]

43 Under proposed ground 2, the respondent submitted that the sentence imposed was not wholly outside the range of sentences that were open to the sentencing judge. In support of that submission, the respondent submitted that the killing of Mr Stone was 'a bad killing that evidenced a high degree of moral culpability on the applicant's part'. The respondent submitted that this was a 'very serious example of the crime of manslaughter'. As the respondent put it in its written case:

It was - to a degree - premeditated. The applicant took a leading role. It was he who suggested that the deceased be 'touched up'. The offence was committed in company. He [the applicant] had a motive to punish the deceased. He had assaulted the deceased once in the weeks prior for the same reasons. The applicant cleaned up the crime scene and aided in the disposal of the car used to transport the deceased down to Rickett's Point.

44 The respondent also observed that the applicant has extensive prior convictions, including offences for violence; and that the applicant's plea was late and was not made in circumstances that entitled the applicant to any discount for remorse above and beyond the utilitarian value of the plea.

45 For the reasons that follow, we have concluded that there is no substance in either of the applicant's proposed grounds of appeal.

46 The principles governing parity are well established.[35] As was said in Collins v The Queen:

Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[36]

47 In Hilder v The Queen,[37] Maxwell ACJ identified 'the true nature of the question which must be addressed when the ground of parity is advanced' as being 'whether it was reasonably open to the judge in the circumstances of the case to differentiate - or fail to differentiate - between the co-offenders in the way that he or she did'.[38] His Honour went on to say that there was a 'close analogy with the stringency of the test of manifest excess', and then said that, for a parity ground to succeed, 'it must be shown that the conclusion as to sentence differentials was not reasonably open'.[39]

48 In Ryan v The Queen,[40] Weinberg, Whelan and Priest JJA said:

As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be 'marked' or 'manifest'. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[41]

49 On the plea hearing, counsel for the applicant conceded before the judge that it was open to the judge who sentenced Co-offender A to reduce the sentence that otherwise might have been imposed on Co-offender A by as much as 50 per cent because of Co-offender A's co-operation with authorities. On the authorities concerning sentencing discounts for offenders who co-operate, that was a reasonable submission to make to the sentencing judge. While the extent of any sentencing discount given to an offender who co-operates and undertakes to give evidence against a co-accused will vary from case to case, discounts of up to two-thirds have been given for the highest level of co-operation, and discounts of 50 per cent have been given to offenders who make statements implicating their co-offenders, and who undertake to give evidence against them.[42]

50 The applicant received a sentence that was double the length of Co-offender A's sentence (both head sentence and non-parole period). As the applicant accepted, however, Co-offender A was able to call in aid the very significant mitigating factor that he agreed to co-operate and give evidence against the applicant. To the extent that the applicant submitted that his offending was less serious than Co-offender A's offending because the applicant stayed at Excelsior Drive and did not go to Rickett's Point, we reject that submission. In our view, the applicant's involvement in the unlawful killing of Mr Stone was more serious than that of Co-offender A. The applicant had assaulted Mr Stone on an earlier occasion. It was at the applicant's instigation that Mr Stone was assaulted on the day of his death. The offending was motivated by a drug debt alleged to be owed by Mr Stone to the applicant. Notwithstanding that the applicant did not travel to Rickett's Point with his co-offenders and the deceased, the applicant's involvement in the offending continued in his attempt to clean up the evidence of the assault at Excelsior Drive.

51 The applicant submitted that the single most important mitigatory circumstance that applied to him, and not Co-offender A, was the applicant's significant number of serious health issues that would make imprisonment more burdensome for him. It was submitted that the judge gave insufficient weight to this matter as part of the parity analysis and in sentencing the applicant. We reject this submission. The judge's reasons go into some detail about the applicant's health issues.[43] It is not suggested that the judge failed to appreciate the extent or significance of these issues. Moreover, we see nothing in the sentence imposed that suggests his Honour failed to take these matters into appropriate account.

52 Similarly, we see nothing in the complaint that the judge placed too much weight upon the disparity in the criminal histories of the applicant and Co-offender A. Like the applicant, Co-offender A had a not insignificant history that involved violence. The judge was correct to note, however, that Co-offender A's overall criminal history was not nearly as extensive as the applicant's criminal history.[44]

53 As we have already observed, the respondent conceded that the judge erred when he said that Co-offender A's plea was an early plea of guilty.[45] That misstatement is, however, not material in our view. When one synthesises all of the differences and similarities in the circumstances of the applicant and Co-offender A, we have concluded that it was open to the judge to impose the different sentence he imposed on the applicant from the sentence Emerton J imposed on Co-offender A. The telling issue is Co-offender A's co-operation and undertaking to give evidence against the applicant - which undertaking was fulfilled. The judge's error in relation to the timing of Co-offender A's plea, while notable, does not lead to the conclusion that there was a parity error or that the existence of such an error is reasonably arguable.

54 What we have said so far is also sufficient to dispose of proposed ground 2, the complaint of manifest excess. This was a serious example of manslaughter. The deceased was subjected to a violent and protracted assault, committed by the applicant, in company, and at the applicant's behest.

55 The complaints made by the applicant in the particulars to proposed ground 2 are not reasonably arguable. The judge's reasons disclose that he gave careful consideration to the applicant's ill health and cognitive functioning, the extent of the applicant's involvement in the offending and the circumstances of the offending. Similarly, the proposition that the sentence imposed upon the applicant was wholly outside the permissible range is not reasonably arguable. Indeed, in our view, the sentence imposed by the judge was entirely appropriate.

56 The application for leave to appeal must be refused.

[1] The non-disclosure of the identity of Co-offender A is the subject of an order made in the Trial Division on 12 April 2016.

[2] R v [Co-offender A] [2016] VSC 168R (Emerton J) ('Emerton J's Reasons').

[3] See R v Basha (1989) 39 A Crim R 337.

[4] DPP v Mitchell [2017] VSC 423 (Elliott J) ('Reasons').

[9] Ibid [4]. See also DPP v Bennison [2016] VSC 686.

[14] After having earlier been adjourned in April 2016.

[21] Ibid [46]-[47] (citations omitted).

[30] Ibid [63]-[66] (citations omitted).

[31] See s 6AAA of the Sentencing Act 1991.

[33] While Co-offender A's criminal history records these three convictions as we have referred to them, in her reasons for sentence of Co-offender A, Emerton J referred to these offences at [48] of her reasons as convictions for recklessly causing serious injury in 2006, and recklessly causing injury and reckless conduct causing serious injury in 2007.

[35] See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]-[25]; Collins v The Queen [2015] VSCA 106 ('Collins'); Ryan v The Queen [2016] VSCA 255 ('Ryan').

[36] Collins [2015] VSCA 106 [23] (citations omitted).

[37] [2011] VSCA 192 ('Hilder').

[39] Ibid [38]; Collins [2015] VSCA 106 [23].

[40] [2016] VSCA 255.

[42] See R v Perrier [No 2] [1991] VicRp 38; [1991] 1 VR 717; R v Nagy [1992] VicRp 45; [1992] 1 VR 637; R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345; Cottee v The Queen [2010] VSCA 285; DPP v Cooper [2018] VSCA 21 [43]-[45].