Prosecution v Prosecution

1. Jamefil Wal, you pleaded guilty on 15 March 2024 to the murder of Garang Chock ("Garang") at Endeavour Hills in Victoria on 26 February 2023.[1]

B. The offending and the surrounding circumstances

1. You and Garang lived in neighbouring rooms at the end of a short corridor in an accommodation home in Endeavour Hills. You were friends and used to drink and smoke together.
2. The accommodation home had surveillance cameras covering the inside and outside communal areas. These cameras captured the events leading up to and including Garang's murder.
3. During the late afternoon of Saturday, 25 February 2023, you entered Garang's room on 2 occasions. You appeared to assault him, striking him with your right hand or fist.
4. At approximately 5.54pm, you walked to the local shopping centre, where you purchased 3 bottles of red wine. You then returned home and drank the wine throughout the night, either by yourself or with other residents.
5. At around 10.00pm, a resident heard a male voice, believed to be you, yelling words to the effect of "I gonna get you".
6. At 10.24pm, you returned to your room holding a timber fence picket. A second resident attended your room for a short period. You then left your room, appearing unsteady on your feet.
7. A third resident heard crashing noises and you yelling and screaming for a few hours just before midnight, including "Come on, let's get it on". You were heard complaining about money being stolen.
8. At 12.10am on Sunday, 26 February 2023, you left your room and walked outside with the fence picket. Approximately 20 seconds later, you returned to your room with the fence picket held over your right shoulder.
9. About 45 minutes later, you stood in your doorway, knocking on Garang's door and walking unsteadily on your feet through the corridors several times before returning to your room. Shortly after, you again stood in the doorway holding a hammer and struck at Garang's door 9 times before walking back inside your room.
10. It is at around this time that a fourth resident heard you and Garang yelling at each other. He heard 1 of you say "I'll kill you", and then heard 5 loud bangs.
11. At approximately 1.20am, you stood in front of Garang's door with the fence picket in hand. You struck the bottom of his door before returning to your room. At 1.38am, you returned and struck at Garang's door with the hammer.
12. Approximately 2 minutes later, you walked to the caretaker's room and knocked on the door. As you walked back towards your room, Garang opened and inspected his door. He then closed it as you were around the corner.
13. You then entered the small corridor adjacent to the rooms and shared bathroom. You pulled the hammer out from the front of the waist of your pants, and then proceeded to strike at Garang's door lock 36 times before walking back inside your room.
14. At 1.46am, you walked out of your room with the hammer. You struck Garang's door a further 25 times.
15. At around this time, a fifth resident heard banging on a door and yelling coming from the corridor. He recognised your voice. You said "Where's my money? Give me my money, I kill you". Garang was heard to say something, but what was said was unclear. The banging on the door had continued over about an hour.

1. At 1.49am, Garang walked out of his room and outside the glass door toward the main entrance.
2. Two minutes later, you finished a bottle of wine and walked into the corridor. Twice you threw the empty bottle at Garang's door. You tried to open his door, then walked outside.
3. You then entered through the glass door at the bottom of the main corridor and walked toward the laundry. At the same time, Garang was walking through the main entrance toward you.
4. You turned around and walked back toward Garang at a faster pace. As you walked, you pulled the hammer out of the front of the waist of your pants with your right hand and continued towards him.
5. You approached Garang and struck him with the hammer to the right side of his body. You then pushed him back against the glass windows and continued to swing the hammer at his stomach and head. He grabbed your left arm and the hammer. A struggle ensued. You then grabbed Garang's jumper and pushed him backwards.
6. You pushed Garang against the wall and into a small potted plant. Garang fell backwards on the floor with you on top of him as you both continued to struggle, seemingly for the hammer, rolling side to side. You moved to your knees. While holding the hammer in your left hand, you produced a knife and stabbed Garang 4 times to the chest area, effectively incapacitating him. You then raised the knife above your head and stabbed Garang to the head, right arm, right side of his lower chest and knee.
7. Garang lay motionless on the ground. You appeared to say something to him. When he attempted to get up, you pushed him back down. As Garang lay there for a few seconds without movement, you struck him 5 times with the hammer to the head, chest or right arm while appearing to talk at him.
8. You then stood up. You picked up the knife in your right hand and had the hammer in your left hand. You then turned back and appeared to say something else to Garang and pointed at him. You stood over Garang and continued to talk at him. You stepped back, turned around, seemed to point to a surveillance camera with the hammer, before walking back to your room.

1. You returned to Garang's door and struck it 4 times with the hammer. You then opened your door and entered your room and did not leave until arrested by police.
2. A number of residents moved throughout the corridor whilst Garang remained lying where you had killed him. Some of them noticed him, but did not attend to him until the caretaker checked for signs of life. The caretaker called emergency services at 9.39am. Shortly after paramedics arrived, Garang was pronounced dead.
3. Police viewed closed circuit television footage. Police then went to your room and unlocked the door, but were initially unable to enter as you had placed a set of drawers against the inside of the door. When police eventually opened the door, you complied with a demand to leave and were arrested.
4. Police transported you to Narre Warren police station and commenced a recorded interview with you. You largely responded "No comment" to questions, but did state that you and Garang had been neighbours since October 2022. You also said that he was like a friend for you, that you had known him for a long time, and that you used to drink gin and smoke together. When asked if you and Garang ever fought, you responded by saying that "we going (sic) back together, fight, like friends, you know... we don't have any problems now".
5. An autopsy identified that multiple stab injuries caused Garang's death. Some stab injuries caused substantial blood loss, loss of cardiac and pulmonary function, rapid deterioration and death. Other stab or incision wounds were found to have possibly contributed to the mechanism of death by the resultant blood loss.
6. Several blunt force injuries were identified that were not associated with injury to vital organs or structures and did not contribute significantly to the cause of death.

1. You are 40 years old, having been born on 1 January 1985 in South Sudan to a large family.
2. As a child you survived the atrocities of a brutal civil war and the consequent trauma and poverty through which you lived. You directly witnessed a fatal shooting, rapes, pillaging and other forms of violence.
3. As a result, your education was extremely limited, if not almost non-existent. Your childhood has been described as one of extreme adversity. Your profound disadvantage was ongoing.
4. After leaving South Sudan, you spent approximately 7 years in a refugee camp in Egypt. The conditions to which you were subjected were extremely difficult, including because resources were meagre and often you were surrounded by conflict and violence.
5. In your early 20s, you arrived in Australia as a refugee. You lacked proper social or family support. Your mental illness made things even more difficult.
6. You worked as a butcher for approximately 6 months and in construction for approximately 1 year. However, you never held down long-term employment.
7. You developed substance abuse issues, particularly with respect to alcohol, cannabis and methamphetamine, which further impacted on your ability to gain and maintain stability in your life.
8. You were the victim of a serious assault in March 2012 that resulted in a traumatic brain injury.[2] In 2019, you were hospitalised after you fell from a second storey balcony. Further, you report that you were knocked out as a child.
9. Your criminal history between 2009 and 2022 includes prior convictions for recklessly causing injury, possession of methamphetamine, possession of controlled weapons without excuse, unlawful assault, theft, drunk and disorderly in a public place, failing to answer bail and contraventions of a community correction order.
10. You moved into the accommodation home in October 2022. You were unemployed and, according to a fellow resident, mostly kept to yourself. You were known to be loud when drinking, often when with Garang. You and Garang were known to have arguments about you and him stealing from each other.

1. Psychiatric reports of Associate Professor Andrew Carroll, consultant forensic psychiatrist dated 11 November 2023[3] and 16 November 2024 and a neuropsychological report of Dr Rachel O'Meara, clinical neuropsychologist dated 23 October 2024 were tendered on your behalf.
2. In Dr O'Meara's opinion, while she found that you did not have an intellectual disability, you do suffer from a severe cognitive impairment;[4] your processing speed for executive function falls within the bottom 0.1 percentile. She considered that your cognitive difficulties, specifically, your difficulty with language-based skills, abstract reasoning, planning and organisation, and idea generation, would have made it more difficult for you to resolve conflict by using communication and verbal persuasion. This would have impeded your ability to determine, consider, and enact a range of alternative means for managing a stressful and unfamiliar scenario; for example, fearing that you were going to be attacked.
3. Dr O'Meara found it was possible that your poor reasoning skills contributed to your perception of the situation as threatening. Dr O'Meara also found that your cognitive functions would have been acutely affected by alcohol use at the time of the offending, as well as your active psychotic symptoms, and that these in combination with your cognitive deficits are likely to have contributed causally to the offending.
4. However, during your assessment you demonstrated adequate cognitive skills to learn and understand that your actions were wrongful and that you had committed a crime by stabbing Garang.
5. In Associate Professor Carroll's opinion, at the time of the alleged offending, you were suffering from:

(1) Schizophrenia, which by that time had been untreated for approximately 5 months, with active auditory hallucinations, pathological suspiciousness and persecutory delusions regarding people in your environment.

(2) A mixed substance use disorder with ongoing usage of alcohol, cannabis and methamphetamine; and related to this, at the actual time of offending you were severely intoxicated with alcohol.

(3) The longstanding cognitive effects of a major neurocognitive disorder.

1. Associate Professor Carroll found that you appeared to have held the belief that Garang was deliberately not paying back a debt of money to you, but there was no clear evidence that this belief was delusional or that it related to your cognitive deficits. Associate Professor Carroll was not persuaded that your retrospective self-reported belief that Garang had a knife and intended to harm you with it was attributable to symptoms of mental illness at the time.
2. That said, it was Associate Professor Carroll's opinion that your various mental disorders did significantly contribute causally to your offending, and that the impacts of all 3 conditions appear to have combined synergistically to severely impact upon your conduct at the relevant time.
3. Regarding your diagnosis of schizophrenia, Associate Professor Carroll found that it was clear that you were in an actively psychotic state at the relevant time. You described longstanding persecutory delusions (and associated hallucinations) regarding people in your environment. These were similar to those that you showed in prison earlier in 2022, when you believed that others were talking in a derogatory way about you and harming you in other ways; including by recording you, poisoning you and assaulting you in your sleep.
4. Your active psychosis at the time of your offending only came under reasonable control after months of treatment with antipsychotic medication in prison. Associate Professor Carroll concluded it was likely that such symptoms had been present, to a greater or lesser degree, for several years and that your treatment for schizophrenia was only partially effective in custody in 2022.
5. Associate Professor Carroll found that it is likely that such symptoms, although stemming from a primary schizophrenic illness, would have been temporarily exacerbated by the usage of both cannabis and methamphetamine in the period leading up to the offending.
6. In relation to Garang specifically, you said that you believed he was trying to use sedative tablets on you and may have in some way been involved in attacking you in your sleep. For completeness, there was no evidence that you referred to this when you spoke to police and assessing clinicians in the period after you were arrested.
7. In Associate Professor Carroll's opinion, your untreated schizophrenia left you in a persistently hypervigilant, over-aroused, suspicious and irritable state, and that your pervasive suspiciousness and persecutory delusions adversely affected your judgment globally regarding the intentions of other people in your environment, including Garang, which impaired your capacity for rational, calm judgment.
8. Consequently, he concluded that your untreated schizophrenia was a significant causal contributory factor to the offending, though he could not confidently conclude that it was a necessary causal factor when seeking to explain the offence.
9. Regarding your mixed substance use disorder, Associate Professor Carroll noted that such disorders are common in survivors of complex childhood trauma, and that episodic severe alcohol intoxication has long been a feature of your condition. In his opinion, your severe alcohol intoxication likely impaired your judgment, temporarily aggravating your pre-existing cognitive deficits. Associate Professor Carroll concluded that, but for your alcohol intoxication, it was unlikely that the offence would have occurred, and that the intoxication was a necessary causal factor when seeking to explain the offence.
10. Regarding your major neurocognitive disorder, Associate Professor Carroll agreed with Dr O'Meara's findings and concluded that the effects of this disorder were a significant causal contributory factor to your offending.

1. Garang was born on 1 October 1982 in South Sudan and was 40 years old at the time of his death. He had a younger brother and seven half-siblings. His father was killed in the war in Sudan before his mother married his stepfather.
2. The family moved to Egypt in 1997. Garang remained in Egypt with his grandmother, whilst the rest of his family moved to Australia as refugees in 1999. In Egypt, he left school aged 15 and worked as a mechanic to support his grandmother.
3. He then moved to Australia aged between 21 and 23, lived with his family in Dandenong, and attended English language school in 2008. He secured employment with a tyre manufacturer in the same year, but his work-history became sporadic over the ensuing years.
4. In 2017, after having spent some time in Western Australia, Garang moved into the accommodation home.

1. The only purposes for which a sentence may be imposed are prescribed in the Sentencing Act 1991 (Vic).[5]
2. Those purposes include to punish the offender to an extent and in a manner which is just in all of the circumstances; deter the offender or other persons from committing offences of the same or a similar character; establish conditions which may facilitate rehabilitation; manifest the denunciation of the offending conduct; and protect the community from the offender.[6]
3. In sentencing you, I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.[7]
4. I must also have regard to a number of other considerations, including but not limited to the maximum penalty prescribed for the offence; any current sentencing practices; the nature and gravity of the offence; your culpability and degree of responsibility for the offence; the impact of the offence on victims; and the presence of any aggravating or mitigating factors.[8]
5. Through a process of instinctive synthesis, I must balance these factors, which may point in different and conflicting directions, in order to arrive at a sentence that is just in all the circumstances.[9]

1. The court must ensure just punishment. What is just in part depends upon the nature and gravity of the offending.
2. Murder is a gravely serious offence. You brutally murdered Garang in his home where he was entitled to feel safe.[10] As for the nature of your offending, the circumstances of this case are shocking. By your vicious assault on Garang through multiple acts of aggression, you have brutally taken the life of a friend with the use of weapons.
3. After the murder, you remained at the premises. While you initially barricaded the door to your room, you were ultimately cooperative with police throughout their dealings with you. There is nothing in your post‑offence conduct that aggravates your offending.

1. Victim impact statements of Adut Anyar You, Garang's mother, and Tong Akon Mabuoc, Garang's brother, were provided to the court. Each of the victim impact statements clearly demonstrate the devastating and lasting impact that Garang's death has had on his family and friends.
2. The victim impact statements are relevant as a pointed and salutary indication of the grief and suffering you have caused. While your sentence is based on an objective assessment of the facts and the relevant sentencing principles, the serious effects of Garang's murder must be kept in mind.
3. I have taken each of these statements into account in determining the appropriate sentence to impose on you.[11]

1. Murder is a standard sentence offence. The standard sentence is 25 years' imprisonment.[12] When fixing a non‑parole period, I must fix a period of at least 70 percent of the head sentence, unless it is in the interests of justice not to do so.[13]
2. The standard sentence is intended to represent the sentence for an offence "in the middle range of seriousness", taking into account "only the objective factors affecting the relative seriousness of that offence".[14] The standard sentence, like the maximum penalty of life imprisonment, is a factor I must take into account.[15]

1. Current sentencing practices are a factor, albeit not a controlling factor,[16] to be taken into account as part of the instinctive synthesis.
2. The court was referred to a number of standard sentence murder cases.[17] It was submitted by your counsel that the most factually similar of those sentences is Director of Public Prosecutions v Whyte.[18] In that case, the accused pleaded not guilty following a brutal attack on his friend and fellow resident of a housing unit. While not to serve as a form of precedent, it was submitted that it is a relevant comparative case; albeit that there are a number of features in mitigation in your favour that were absent from that case.

1. Your plea of guilty was entered at a relatively early stage, and has considerable utilitarian value. You entered a guilty plea before any witness was required to be cross-examined.

E.7 Moral culpability and general and specific deterrence

1. The unchallenged expert psychological evidence was that there was a significant causal connection between your schizophrenia and major neurocognitive disorder and your offending, and that there was a necessary causal connection between your mixed use substance disorder and your offending.
2. Both parties acknowledged that it was difficult to assess the precise extent to which each of these disorders independently contributed to your offending. The prosecution referred to Associate Professor Carroll's evidence that at the time of your offending, you believed Garang was not paying back a debt of money, and that there was no evidence that this belief was delusional or that it related to cognitive deficits.
3. While the parties disagreed as to the precise manner and extent to which these disorders ought to be factored into your sentence, they agreed that, consistent with the principles in R v Verdins,[19] your moral culpability must be sensibly reduced and that this impacts the assessment of what is just punishment and the extent to which denunciation informs the appropriate sentence to impose on you.
4. Both general and specific deterrence remain relevant in this case, however I accept that these sentencing factors ought to be sensibly moderated in light of your mental health disorders and their causal connection with your offending. You are not an appropriate vehicle for the full application of either deterrence.
5. Further, I accept that your current personal, subjective experience is such that prison is more burdensome for you than it would be for an average prisoner. I have had regard to Dr O'Meara's opinion that you may be slow to learn the rules and routines of prison and to adjust to any changes in these. Accordingly, you are likely to struggle to comprehend and follow more complex verbal instructions, and to complete tasks quickly or through to completion as a result of your language difficulties, poor verbal intellectual skills, slowed processing speed and severe difficulty with sustained attention. In Dr O'Meara's opinion, these deficits are also likely to result in limited interaction with other prisoners and will place you at risk of responding physically to any perceived provocation, the likelihood of which would be increased by the presence of any active psychosis, resulting in more frequent disciplinary actions.
6. Your incarceration initially left you completely isolated. By the time of your sentence indication, you were working in the prison system Monday to Friday, morning and afternoon. This alleviated your isolation somewhat, but it was solitary work and your interaction with others remains limited. Further, no one visits you in prison. Your mother died in August 2023 and you have virtually no social supports from family or friends. Although the prosecution fairly described you as a "loner" before you were imprisoned, it is still a mitigating factor in this regard because serving your term of imprisonment will present particular challenges.

1. It was uncontroversial that your exposure to violence and various traumas are relevant to the assessment of your moral culpability.[20]

1. While your mental disorders and their connection with your offending necessitate a sensible reduction in your moral culpability and a moderation of the application of general and specific deterrence, I accept the prosecution's submission that they are also relevant to the assessment of certain countervailing factors, including the need for community protection. In circumstances where Associate Professor Carroll found that you had a lack of insight into your disorders and how they manifest themselves, particularly in the context of alcohol misuse, I am satisfied that significant weight ought to be afforded to community protection.

1. I have had regard to your prospects of rehabilitation. Associate Professor Carroll's evidence was that you had shown a significant positive response to antipsychotic medication, which you now receive consistently. He more recently assessed you as not demonstrating any clear positive symptoms of psychosis, though some residual suspiciousness remained. That said, it was acknowledged by your counsel on your behalf that your level of insight and understanding of your disorders remains "very limited", including how those disorders manifest themselves in the context of alcohol misuse. It is of further concern that you have expressed an intention at this stage not to moderate or eliminate alcohol use in the future. While there will be a significant period in which you may change this intention and also noting your positive response to medication, I remain guarded in respect of your prospects of rehabilitation more broadly.

1. You face the prospect of deportation. As you are not an Australian citizen, there is a strong likelihood that, upon the completion of your sentence, your visa will be cancelled and you will be deported.[21] The potential for an offender to be deported at the completion of a sentence is relevant to sentencing in 2 ways:[22]

First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation. This, in turn, may render the incarceration more difficult. Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.

2. You have a longstanding connection to Australia. You have no supports in South Sudan and the prospect of deportation will undoubtedly weigh heavily upon you. While this is a relevant mitigating factor, especially in light of your difficult upbringing in South Sudan and likely considerable healthcare needs in future, the weight to be given to it needs to be tempered given the nature and gravity of your offending.[23]

1. Taking each of the matters referred to above into account, and balancing the factors set out in the Sentencing Act as best as I am able, for the murder of Garang Chock, I sentence you to 22 years' imprisonment. I fix a period of 16 years' imprisonment as the period you must serve before you become eligible for parole.[24]
2. I declare that, but for your plea of guilty, if you had been found guilty of murder after pleading not guilty, I would have imposed a total effective sentence of 26 years' imprisonment with a non-parole period of 19 years.[25]
3. Pursuant to section 18 of the Sentencing Act, I declare that 751 days of imprisonment, not including today, have been served by way of pre-sentence detention. This period is to be reckoned as a period of imprisonment already served.[26]

1. Disposal orders, which were not opposed, will be made substantially in the terms sought by the prosecution.

[1] On 5 March 2024, I indicated that if you were to plead guilty at the earliest opportunity to the charge of murder, contrary to common law the subject of the indictment filed 1 March 2024, the court would be likely to impose a sentence of 23 years' imprisonment with a non-parole period of 16 and a half years. There was a significant delay between your guilty plea and the plea hearing to enable you to obtain further evidence on matters relevant to your sentence.

[2] When initially hospitalised, you had a Glasgow coma scale of 3. Upon being re-hospitalised in the following month, you had a Glasgow coma scale of 11.

[3] A further report was tendered addressing the question of whether you are fit to stand trial. Associate Professor Carroll considered you were fit to do so as your mental illness did not render you incapable of providing adequate instructions and there was no evidence your instructions were influenced by psychotic symptoms.

[4] Your intelligence quotient has been assessed at 57, reflecting your severe cognitive impairment.

[5] Section 5(1).

[6] See also Veen v The Queen (No 2) (1988) 164 CLR 465, 476.8 (Mason CJ, Brennan, Dawson and Toohey JJ).

[7] Sentencing Act, s 5(3).

[8] Ibid, s 5(2). See also R v AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405 [45]-[46] (Warren CJ, Maxwell P and Redlich JA). The weight and emphasis to be given to various factors is a discretionary exercise which depends on the facts and circumstances of each case: Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [7] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ); Markarian v The Queen (2005) 228 CLR 357, 371 [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[9] Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 434 [5] (Kiefel CJ, Bell and Keane JJ), 452 [79] (Gageler and Gordon JJ), citing Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 611 [75] (Gaudron, Gummow and Hayne JJ). See also Markarian v The Queen (2005) 228 CLR 357, 373-375 [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

[10] Director of Public Prosecutions v Ristevski [2019] VSCA 287, [10] (Ferguson CJ and Whelan JA); Director of Public Prosecutions v Zhuang [2015] VSCA 96; (2015) 250 A Crim R 282, 301 [53] (Redlich, Priest and Beach JJA).

[11] It was accepted that a number of the victim impact statements contained inadmissible material. Consequently, the victim impact statements have been taken into account in accordance with s 8L(6) of the Sentencing Act, which states that:

If the court receives a victim impact statement that contains inadmissible material, the court, in sentencing the offender -

(a) is not to rely on the material that the court considers to be inadmissible; and

(b) need not specify which of the material is not being relied on.

[12] Crimes Act 1958 (Vic), s 3(2)(b).

[13] Sentencing Act, s 11A(4)(b).

[14] Ibid, s 5A(1)(b). Pursuant to s 5A(3) of the Sentencing Act, the "objective factors" are to be determined (a) without reference to matters personal to a particular offender or class of offenders; and (b) wholly by reference to the nature of the offending.

[15] Ibid, s 5B(2)(a); Director of Public Prosecutions v Whyte [2023] VSC 645, [35] (Fox J), citing Clarke (a pseudonym) v The Queen [2022] VSCA 89, [27] (Priest and Walker JJA) and McPherson v The Queen [2021] VSCA 53, [31] (Priest and T Forrest JJA).

[16] Director of Public Prosecutions (Victoria) v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428, 445 [50]-[52], 447 [56], 448-449 [63], 450 [68] (Kiefel CJ, Bell and Keane JJ), 453-454 [82] (Gageler and Gordon JJ). This is so whether or not an accused pleads guilty; ibid, 449-450 [64]-[68], 454-455 [85].

[17] Pursuant to s 5B(2)(b) of the Sentencing Act, I am obliged to disregard sentencing practices for murder cases that pre-date the introduction of standard sentencing. That said, the principles found in those cases remain of relevance: Director of Public Prosecutions v Whyte [2023] VSC 645, [35], citing Brown v The Queen [2019] VSCA 286; (2019) 59 VR 462, 464 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA).

[18] [2023] VSC 645.

[19] [2007] VSCA 102; (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).

[20] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

[21] For the law as it presently stands, see Migration Act 1958 (Cth), s 501(3A).

[22] Loftus v The Queen [2019] VSCA 24, [79] (Whelan AP and Niall JA). See also Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294-295 [25]-[28] (Maxwell P, Bongiorno JA and Beach AJA).

[23] Fichtner v The Queen [2019] VSCA 297, [96] (Maxwell P and Kaye JA).

[24] Sentencing Act, ss 11(1)(b) and 11A.

[25] Ibid, s 6AAA.

[26] Ibid, ss 18(1) and (4).