1 This is an application for leave to appeal against a sentence of six years' imprisonment with a non-parole period of four years imposed on the applicant on pleading guilty to one charge of intentionally causing serious injury.

2 The applicant lived in a boarding house in St Kilda. In October 2010, he engaged the services of a sex worker (the complainant) who was then working on the streets in St Kilda. In the week which followed the encounter, they spent considerable time in each other's company. The applicant was aware that the complainant was a user of heroin and other illicit drugs.

3 On one occasion when the complainant was in the applicant's room, she stole approximately $2,000 from his wallet. He later confronted her and she admitted to stealing the money and spending it on drugs. She promised not to steal from him again and apparently he accepted her apology and forgave her. Thereafter, they continued to see each other.

4 On the morning of 10 October 2010, the complainant went to the applicant's room after working the previous night in St Kilda. Then she went to her own home in Footscray and subsequently, by arrangement, he went there to see her. He was aware that she planned to see her three children, who were in her mother's care, later that day. While at the complainant's flat, the applicant accused her of having stolen another $1,000 from his wallet. She denied it. She had the $1,000 on her, but she maintained that it was her earnings from the previous night's street work.

5 The applicant took the $1,000 from her and in response she produced a small box cutter which was attached to her key ring. Then, in what the Crown accepted was an attempt to disarm her, the applicant assaulted her, punching her to the face with such force that she fell to the floor. While she was on the floor, he also repeatedly kicked and stomped on her face and then her hands as she tried to cover and protect her face. She begged him to stop but he continued to kick her, landing further kicks on her face and the side of her body. He said to her, 'You're not seeing your kids today'.

6 When he eventually stopped kicking her, her face and clothing was bloodied and there was blood on the floor. He told her to clean herself up and took her to the bathroom. While she was washing the blood off herself, he attempted to clean the blood from the floor and rinsed her bloodied clothing.

7 She was unable to see out of one eye, her face was badly swollen and bruised and she was extremely distressed. He told her to lie down on the bed. She said that she wanted to go to hospital and that she would say she had injured herself falling down the stairs. The two of them left her flat together. He drove away and she went to a neighbour's home and, after obtaining some heroin, went on to hospital.

8 Upon examination, it was found that her facial injuries were severe. She had extensive bruising and swelling over the right side of her face involving her right eye, right cheek and right lip, including the inside of her upper right lip. Blue bruising was evident on her right ear and from behind her ear extending in an irregular pattern down the right side of her neck. There was also bruising on her forehead which was patterned, forming an S shape. There was further blue bruising behind her left ear. After the examination, she was unable to open her right eye at all. Scans were taken. They showed that she had suffered a blowout fracture of the right orbital floor and a fractured nose and a complex depressed fracture of the left maxilla, which is the area between the cheek bone and the nose. She also had abrasions and lacerations and an inverted Y shaped abrasion over her left cheek bone and nose. There was a 1.5 centimetre laceration in the middle of her forehead which extended in a vertical orientation and she had bruising to her back. Needless to say, there were also significant psychological sequelae.

9 After leaving the flat, the applicant went into hiding and got rid of his car. A little over a month later, on 15 November 2010, he surrendered himself to the police and submitted to interview. When interviewed, he asserted that the complainant had stolen the money from him when he was at her flat. He said that he had confronted her and, consistently with her account, that she had denied stealing from him and had maintained that the money was hers. He said that he took the money because it was his and that she then threatened him with the box cutter. In response, he gave her what he described as a 'backhander' and, later in the interview, he described what he had done to her as punching her in self-defence. He was asked on a number of occasions to give more detailed account of what he had done. But each time he refused. He said that he was not going to go into detail about what he had done. When asked if he had kicked her or stomped on her face, he said that he did not recall doing so.

10 Originally there were three grounds of appeal. The first was that the judge was said to have made a number of errors of fact. That was abandoned at the outset of oral argument. Secondly, it is contended the judge failed to give sufficient weight to delay. Thirdly, it is contended that the sentence is in any event manifestly excessive.

11 At the outset of the case, the applicant was accused of raping the complainant and stealing her money. The indictment as first filed alleged four charges of rape, one charge of intentionally causing injury, one charge of recklessly causing injury and one charge of theft. The delay which is complained about arose in part because a committal hearing which was listed for July 2011 aborted, in part due to the complainant's drug affected state and consequent inability to give evidence, and in part because two other witnesses, Excell and Buburovski (who the Crown proposed to call to give evidence as to the complainant's complaint of rape) failed to attend for examination at either the committal hearing in July 2011 or at a rescheduled committal hearing in December 2011.

12 On 27 August 2012 and 28 August 2012, the judge conducted a voir dire inquiry into a number of pre-trial issues. It included a Basha inquiry into the proposed evidence of Excell and Buburovski. At that point, Buburovski gave evidence confirming the applicant's version of events that the complainant and the applicant had a confrontation over stolen money and that the complainant produced a box cutter and threatened the applicant with it. Thereafter, it was conceded by the Crown that the assault originated with the applicant hitting the complainant in order to disarm her of the weapon.

13 On 30 August 2021, the Crown filed over a fresh indictment alleging one charge of intentionally causing serious injury, to which the applicant pleaded guilty. Counsel for the applicant then sought an adjournment in order to obtain a neuropsychological assessment of the applicant and the adjournment was granted. When the matter came on again, on 2 November 2012, defence counsel announced that it had not been possible to obtain funding for a neuropsychological assessment. The plea thus proceeded without one. At the conclusion of the plea, the judge acceded to an application to have the applicant assessed for suitability for Community Corrections Order and continued the applicant's bail.

14 The matter next came back before the judge on 15 November 2012. At that point, counsel for the applicant sought a further adjournment for the purpose of obtaining a neuropsychological assessment of the applicant. The adjournment was granted. On 17 December 2012, a neuropsychological report of Dr Nathaniel Popp dated 12 December 2012 was provided to both the Crown and the judge, together with brief written submissions. Finally, on 18 December 2012, the matter came before the judge again, at which time the judge heard some further brief oral submissions and then sentenced the applicant.

15 The nub of the complaint made under Ground 2 is that, if Burbarovski had given evidence at the committal hearing in July 2011, as he ought to have done, the matter would in all likelihood have resolved at that point. In the events which occurred, however, there was a delay of more than 18 months until the applicant was finally sentenced and, in the interim, the applicant was subject to what were said to be specially restrictive or onerous bail conditions.

16 I am not persuaded by that contention. As it appears to me, it is clear enough from the following passage of the judge's sentencing remarks that her Honour did take into account the fact that it was not until the voir dire that it was practicable for the applicant to enter a plea which the Crown was prepared to accept as clearing the indictment and that her Honour allowed for the effects of that delay:

You are entitled to a reduction in the sentence otherwise appropriate, by reason of your guilty plea. Although it was entered at the start of the trial, I accept it should not be treated just as a court door plea. You had initially been charged with the rape of [the complainant] as well as intentionally causing serious injury to her. I accept that neither you nor the prosecution, was able to make a realistic assessment of your prospects of conviction on both charges until the commencement of the trial before me. That was due in part to a matter beyond your control, the failure of two prosecution witnesses required to attend at committal who did not attend. It was also in part, due to a matter entirely within your control. That is, the production by you of some evidence supportive of your account in interview which you had adverted to when interviewed but had at that time refused to produce. That evidence was produced also at the commencement of the trial.

In assessing the weight to be given to your guilty plea I take into account in your favour that your plea and the resolution of the other charge, was delayed by the inability to cross-examine those witnesses at committal and therefore it should be treated as a plea that gets more weight than a court door plea normally would...

17 The applicant complains that, although the judge may have allowed for delay, her Honour was in error as saying that, by reason of the applicant's failure to produce evidence which was in his possession or at least within his power (of two photographs taken at the Village Belle Hotel on the night before the offending) the applicant had been partially responsible for the delay. Counsel for the applicant contended that, because the photographs were not alibi evidence and merely offered some support for one aspect of the applicant's version of events, earlier production of them would not have resulted in the resolution of the matter.

18 In my view, that submission over-emphasises the significance of the judge's observations concerning the photographs. I do not consider that they are indicative of failure to make sufficient allowance for the delay caused by Buburovski. If her Honour had failed to make an appropriate allowance for the effects of Buburoski's recalcitrance, it is to be expected that it would have resulted in an excessive sentence. Subject to one matter which I shall mention, I do not consider that the sentence was excessive.

19 Under cover of Ground 3, it was alleged that the sentence is manifestly excessive having regard to all the circumstances of the case. By way of particulars, it was contended that the judge erred in not accepting that the behaviour of the applicant immediately after the offending was the result of true remorse; erred in finding that it was the complainant and not the victim who urged that she should go to hospital after the offending; erred in characterising the applicant's description of the offending as tantamount to minimising its significance; and erred in finding that the applicant's stated remorse was directed towards the applicant's predicament rather than the complainant. It was also said that the judge gave insufficient weight to the events which precipitated the offending, including the recent suicide of the applicant's partner and the unresolved grief of which it was productive; gave insufficient weight to the applicant's diagnosed cognitive deficits; undervalued the applicant's prospects of rehabilitation; and finally gave insufficient weight to character evidence of the applicant's positive attributes.

20 In my view, it suffices to say about most of those criticisms that, one way or another in the course of the judge's comprehensive and detailed sentencing remarks, her Honour referred to each of the considerations identified and expressed conclusions about them which were not only open on the evidence but with which, by and large, I respectfully agree. For example, one need only bear in mind that the applicant left the complainant to fend for herself and absented himself for a significant period of time to be persuaded that such remorse as he may have experienced in the immediate aftermath of the attack was largely directed to his own position. Given that the applicant left the complainant and fled before she took herself to hospital, there was good reason to conclude that the idea of going to hospital was hers and not his. And, upon any reasonable view of the matter, it is something of an understatement to characterise the applicant's descriptions of his offending as minimising its gravity. As the judge pointed out:

I note also that the account that you gave to Dr Popp of the offending, in particular the number and nature of the blows you delivered to [the complainant] was much more detailed than the account you gave in interview and what was put to me in the course of the plea hearing based on your instructions. To Dr Popp you admitted a number of blows to the face and the head but you did not include any account of stomping on [the complainant's] face; of kicking her or of continuing to assault her once she had fallen to the floor. Again, I consider this to be further evidence of your minimising your behaviour.

21 Equally, the judge did not overlook the recent death of the applicant's partner. Her Honour referred specifically to its significance, as follows:

It was put that this offending occurred at the lowest ebb in your life. By the time of the offence you were living in a boarding house in St Kilda. You were drinking heavily and abusing cannabis. You were grieving the death, by suicide of your long term partner Debbie. Like [the complainant], she had had a long history of drug abuse. Her death and your grief compounded the cycle of alcohol abuse and aimlessness of your existence. You told Ms Riddell and also Dr Zaks, the psychologist who you saw after your release on remand having been charged with this offence, that in forming the relationship that you did with [the complainant], you were chasing a ghost and that you saw a lot of Debbie in her.

22 Nor, in my view, can it reasonably be said that the judge undervalued the applicant's prospects of rehabilitation. As her Honour pointed out:

Testimonials and oral evidence from family and friends attested to your good character. That this offending was out of character was a common theme. I find it a little difficult to know how much weight to give to these opinions, given that on the material before me you have been largely isolated from your family and the old friends who provided the testimonials from the early 2000s until the time you were charged and returned to family care.

Having expressed that reservation, I accept that your circumstances are markedly better now than when you committed this offence and that your prospects of rehabilitation if you continue to be offered and accept family support and to refrain from alcohol and cannabis and to address your grief, are reasonable. They would be further enhanced if you were motivated to obtain employment and to improve your employment prospects by undertaking some training or education. I note that Dr Zaks in both of her reports, recommends that you receive assistance also with anger management.

23 Indeed, in view of the applicant's antecedents, that assessment might be seen as optimistic. For as the judge also noted:

... You committed your first offences, dishonesty offences, at the age of 18. As you drifted from study to work and your drug and alcohol use escalated, you began getting into more trouble. You lost your licence for drink driving, further undermining your employment prospects. Eventually your parents asked you to leave home and your life became more aimless, your bouts of employment less frequent and your substance abuse more marked.

You have amassed 23 convictions from eight court appearances between 1989 when you were 18 and 2005 when you were 34. None are for offences of this gravity. The only other time you have been before this court is on an appeal against a sentence for charges of assault police, escape from custody and trafficking in and possession of cannabis. However, your offending history demonstrates a pattern of alcohol and drug abuse, of drug dealing or possession of a trafficable quantity of drugs, dishonesty and property damage offences and most significantly for these purposes, other offences of violence.

You have two prior convictions for violent offences. Assault police in 1999 and assault with an instrument in 2004. You also have two prior convictions for escape from custody, on each occasion running away from police after you had been arrested. You have not received a sentence of imprisonment to be immediately served before.

24 There is more force, however, in the applicant's criticism of the way in which the judge dealt with the application of the principles adumbrated in R v Verdins.[1] After referring to the expert evidence relevant to that question, the judge concluded:

I am not satisfied that the reports of Dr's Popp and Zaks establish a causal connection between any psychological condition or neuropsychological deficits and the offending which bring the first Verdins' principle into play. It follows I am not satisfied the weight to be given to moral culpability should be reduced. Nor am I satisfied that they provide any support, that is the opinions of Dr's Popp and Zaks, provide any support for applying Verdins so as to moderate the weight to be given to general and specific deterrence.

The highest Dr Popp puts it is that you were in a poor psychological state given your recent loss and trauma associated with it. That is consistent with Dr Zaks' opinion. It is clear from the reports that you had a pre-existing tendency recognised by you, to snap and to fail to control your anger. Dr Popp concluded your poor psychological state impacted negatively upon your capacity to regulate your behaviour. He said, 'It was impossible to determine the extent to which this was occurring from a neuro-biological perspective'. These are matters proper to take into account as contextualising the offending and explaining it, but they are not of a nature or quality to enliven the Verdins' principles which depend upon a causal connection between a psychological condition and the offending, which affects the assessment of moral culpability and the weight to be given to general and specific deterrence. As I understand it, as a result of a discussion I had with Ms Riddell this morning, she did not press for the application of Verdins but rather pressed for these matters to be taken into account generally.

I note also that the account that you gave to Dr Popp of the offending, in particular the number and nature of the blows you delivered to [the complainant] was much more detailed than the account you gave in interview and what was put to me in the course of the plea hearing based on your instructions. To Dr Popp you admitted a number of blows to the face and the head but you did not include any account of stomping on [the complainant's] face; of kicking her or of continuing to assault her once she had fallen to the floor. Again, I consider this to be further evidence of your minimising your behaviour.

Dr Popp in expressing the opinions he did, expressly accepted your account as the factual foundation for his opinion. He accepted your account also that the assault was precipitated by your response to the discovery that [the complainant] had stolen money from you again. A matter I have already found, I do not accept. The factual foundation therefore for his conclusion that your response was likely occurring in the context of a significant level of emotional anger related to the previous trauma, is not accepted by me and therefore diminishes the weight to be given to that part of his opinion.

25 On one possible view of Dr Popp's report, there was a causal connection between the applicant's mental condition and the offending. But that point was not taken below and it is too late to raise it now. The judge, however, was wrong to say that it was necessary for the applicant to establish a causal connection between his mental condition and the offending. As was held in Tran v R[2] and recently reiterated in Latif v R,[3] nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability is to show a causal connection. Rather, as was explained in Tran:[4]

The cases in Victoria which have applied proposition 1 of Verdins have, on the whole, taken the view that a causal connection needs to be established between the impairment of mental functioning and the offending for which sentence is to be imposed. As Maxwell P said in Carroll v R:

Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes - on the balance of probabilities - that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?

But nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability was to show a causal connection. The case law shows that - for what, in our view, are quite understandable reasons - sentencing judges look for some kind of causal link in order to reduce the moral responsibility which is otherwise to be properly to be laid at the feet of the offender.

The court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:11

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(c) making the offender disinhibited;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(e) obscuring the intent to commit the offence; or

(f) contributing (causally) to the commission of the offence.

As the court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list - item (f) - referred to causal connection. In short, counsel making submissions on the basis of Verdins has always been in a position to contend that it is not necessary to establish a causal connection.

26 Dr Popp's and Dr Zak's opinions were not challenged. It follows that it was open to the judge to consider the possibility that, despite the absence of causal connection, the applicant's depleted psychological condition and cognitive deficits resulted in a reduction in his moral culpability and therefore some moderation of the need for denunciation and general deterrence. As I see it, her Honour's failure to consider that possibility was an error.

27 Specific error having been demonstrated, the sentencing discretion is reopened and the applicant falls to be resentenced afresh.

28 Balancing as best I can the serious nature and gravity of the offending, the applicant's criminal antecedents and the several mitigatory considerations which were urged on the judge in the course of the plea, including in particular the effects of the recent death of the applicant's long time partner, and giving full weight to what I perceive to be the applicant's psychological and neurological shortcomings, consequent reduction in moral culpability and hence reduced need for denunciation and general deterrence, I would resentence the applicant to a reduced sentence of five years' imprisonment and set a nonparole period of three years.

29 I agree that leave to appeal should be granted for the reasons stated by the learned presiding judge and I agree with the orders proposed by him.

1. The application for leave to appeal is allowed.

2. The appeal is instituted and heard instanter and is allowed.

1. The sentence passed below is quashed and in lieu thereof the applicant is re-sentenced to five years' imprisonment.
2. A non-parole period of three years is set.
3. Pursuant to s 18 of the Sentencing Act 1991, it is declared that the number of days already served under the sentence is 312 days (not including this day) and it is directed that the fact of the

declaration and its details be entered into the records of the Court.

1. Pursuant to s 6AAA of the Sentencing Act 1991 it is declared that but for the applicant's plea of guilty he would have been re-sentenced to seven years' imprisonment with a non-parole period of five years and it is directed that the fact and details of that declaration be entered into the records of the Court.

[1] [2007] VSCA 102; (2007) 16 VR 269, 276,[32]

[2] [2012] VSCA 110.

[3] [2013] VSCA 51, [80]-[86].

[4] [2012] VSCA 110, [17]-[19] (citations omitted).