R v Davidson; R v Konestabo [2008] VSCA 188

1. On 27 March 2007, each of the applicants Michael Hugh Davidson (Davidson) and Eric Steven Konestabo (Konestabo) was arraigned before the County Court at Melbourne on one count of aggravated burglary (offensive weapon) (Count 1), an alternative count of aggravated burglary (person present) (Count 2), one count of intentionally causing serious injury (Count 3) and an alternative count of recklessly causing serious injury (Count 4), to each of which they pleaded not guilty.

2. The Crown case was that at approximately 11.30pm on 19 January 2006 Davidson and Konestabo attended at the home of Denny Ziogas at 17 Bent Street, Caulfield South with the intention of collecting a debt thought to be due to Konestabo. Davidson was armed with a knife and Konestabo was wearing a balaclava and the Crown contended that Konestabo was also armed with a steering lock. They knocked on the front door and, when Ziogas answered, Davidson barged into the premises (Count 1) and accused Ziogas of stealing money from him. Ziogas responded by pulling off Konestabo's balaclava and calling out to one of his housemates, Liam Keenan, for help. When Keenan appeared, Konestabo commenced fighting with Keenan inside the house while Ziogas fought with Davidson outside. During the fight, Ziogas ripped Davidson's jumper and Davidson stabbed Ziogas three times, once in the back and once in the chest, puncturing his lung, and once in the elbow (Counts 3 and 4). Ziogas, however, fought on bravely and, picking up the steering lock which had fallen to the floor, struck Konestabo to the head. Both Davidson and Konestabo then left the premises with Konestabo apologising for having picked the wrong house. Ziogas collapsed on the front verandah and remained there until ambulance officers arrived and took him to the Alfred Hospital for emergency surgery.

3. A short time later, police arrested Davidson at the Glenhuntly station wearing a ripped jumper and in possession of a knife which was found to have Ziogas's blood on it, and police later found Davidson's fingerprints at the crime scene. When Davidson was interviewed on 20 January 2007, however, he denied involvement in the invasion of Ziogas' home. He claimed that on the day he had drunk a large amount of beer, at least 30 cans of VB he said, and that as a result his memory of the day was poor. He admitted having the knife with him when arrested, but he claimed that he had found it on the rails shortly before he was arrested, and he admitted having a ripped jumper but claimed that it had been ripped for years. He denied knowing Konestabo.

4. Konestabo was arrested at Ormond station and found to have a recently inflicted injury to his head which required stitching. He exercised his right to remain silent but police found a balaclava containing his DNA profile at Mr Ziogas' premises.

5. At the conclusion of the trial, on 4 April 2007 the jury returned verdicts in respect of each applicant of not guilty of Counts 1 and 3 but guilty of Counts 2 and 4.

6. On 13 April 2007 the applicants appeared before the judge for pleas in mitigation of penalty and then again on 20 April 2007, at which time Davidson was also directly presented and pleaded guilty to further counts of theft (Count 1 on the second presentment) and obtaining property by deception (Count 2 on the second presentment). Following further submissions, the judge sentenced the applicants as follows:

1. Davidson: On Count 2 (aggravated burglary), to four years' imprisonment.

On Count 4 (recklessly causing serious injury), to six years' imprisonment.

On Count 1 (second presentment) (theft), to three months' imprisonment.

On Count 2 (second presentment) (obtain property by deception) to one month's imprisonment.

His Honour ordered that 18 months' of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 4, making for a total effective sentence of seven years and six months' imprisonment and fixed a non-parole period of five years.

1. Konestabo: On Count 2 (aggravated burglary), to four years' imprisonment

On Count 4 (recklessly causing serious injury), to six years' imprisonment.

His Honour ordered that 18 months' of the sentence imposed on Count 2 be served cumulatively on the sentence imposed on Count 4, making for a total effective sentence of seven years and six months' imprisonment and fixed a non-parole period of five years.

7. Konestabo now seeks leave to appeal against conviction on the ground that the verdict on Count 2 is inconsistent with the verdict on Count 1, and on the further ground that the judge erred when directing the jury on Count 2 by failing to remind them that there was an issue as to whether Konestabo had an offensive weapon with him at the time of entering Ziogas' premises and whether he had an intention to assault someone therein.

8. Under cover of Ground 1, counsel for Konestabo argued that the Crown had gone to the jury on Count 1 (and thus the judge had left that count to the jury) on the basis that the element of aggravation for the purposes of the alleged aggravated burglary was that Konestabo had a steering lock with him at the time of the burglary; and that the element of intent for the purposes of the alleged aggravated burglary was that Konestabo intended to use the steering lock to hit a person in the house in a hostile manner without consent or lawful justification or excuse.[1] Similarly, in the case of Count 2, although the alleged element of aggravation was different (namely, that Konestabo knew or was recklessly indifferent as to whether someone was home at the time of the burglary) in counsel's submission the Crown went to the jury on Count 2 as it had on Count 1 (and thus the judge left Count 2 to the jury) on the basis that the element of intent was an intention to use the steering lock to hit a person in the house in a hostile manner without consent or lawful justification or excuse. Further in counsel's submission, given that the jury acquitted Konestabo on Count 1, they must be taken not to have been satisfied that Konestabo had the steering lock with him when he entered the premises. If so, as counsel put it, they could not have been satisfied of that fact for the purposes of Count 2. Thus, as counsel contended, the verdict of guilty of Count 2 was inconsistent with the verdict of not guilty of Count 1.[2]

9. Counsel developed that argument further by referring to a number of passages in the judge's charge which, in his submission, left no doubt that the jury were only ever asked to consider a case of aggravated burglary based on allegations that Konestabo had possession of the clublock at the time of entry and intended to use that weapon to assault a person therein. Counsel referred in particular to the following passages of the charge:

1. Now, the allegation here is that they entered with an intention to assault, and I direct you that, if they intended to physically assault inside it is an offence...But, in order to establish this element of the offence, the Crown must prove that the accused had the forbidden intention at the time he entered the building.

Now, obviously it is inconceivable, depending on what view of the facts you take here, that Mr Ziogas did not consent to someone coming in to scone him with the wheel brace [sic, clublock] or trying to come in and hit him with the [clublock]. It is a question of whether or not - what happened at that front door is very much a factual issue that you understand that the Crown must establish that Mr Konestabo entered as a trespasser with intent to assault somebody in that building. There had to be an entry as a trespasser, with the requisite intent.

1. Burglary is obviously a serious offence, but aggravated burglary is a burglary that is aggravated by an additional factor, which also must be established beyond reasonable doubt. If the person who commits the burglary has with them an offensive weapon it is an aggravating feature and the Crown in this case allege and seek to establish that Konestabo had with him an offensive weapon, namely, a steering lock.
2. [The prosecutor] addressed you yesterday. I do not propose to spend much time on the addresses...but [the prosecutor] essentially said: look, you have got three compelling witnesses in the Crown witnesses who observed all this...essentially they tell the same story. They are at home minding their own business when through the door comes Mr - according to Denny - comes Mr Konestabo with a Balaclava, wheel brace, and the versions given, although there are differences, have that dovetailing effect that you would expect from people who observe traumatic incidents in the way they did.

10. As counsel would have it, those passages showed that the only particulars ever given of the alleged aggravated burglary were of entry with intent to assault with the clublock; that there was no explicit recognition that Konestabo may have intended to assault otherwise than with the clublock; and in effect, therefore, that the only instruction given to the jury on the point was that, regardless of whether the intended assault was constituted of an intention to hit or simply to put in fear, it involved possession of the clublock at the time of entry.

11. In my view that is not so. Although the Crown contended that Konestabo had the clublock with him at the time of entry, it is apparent that the case was also put on the alternative basis that Konestabo had an intention to assault otherwise than with a clublock. Thus as the judge put it when instructing the jury as to the elements of the offence of aggravated burglary:

Now there is an additional way upon which a person can be guilty of an aggravated burglary, and if we turn to Count 2 at this point in time you will see that the allegation there in Count 2 is that Davidson and Konestabo entered as trespassers...with intent to commit an offence involving assault...

...the law says that if you commit a burglary of any sort, whether it be the burglary involving intent to assault or burglary involving an intent to steal, and you enter the premises and at the time you enter you know that there is somebody home, or you realise that there is probably someone home but go ahead anyway and come in, you are guilty of aggravated burglary by virtue of your knowledge that there was somebody present, or were reckless in relation to whether they were present.[3]

12. Similarly, when redirecting the jury on the elements of common purpose and extended common purpose, the judge said this:

In dealing first with Count 1 and 2, they are the counts of aggravated burglary. As you know, that involves entering as a trespasser with intent to assault, both of them do. Whether one had a weapon or whether people were home, the other form of aggravation. But, both counts had with it the essential element that there must have been an intention to assault as a burglary.

The Crown says that both accused are guilty, Davidson is guilty because Konestabo entered the house with intention to assault and that Davidson is guilty because he is acting in concert.

The Crown, as I have said, have to establish the existence of an arrangement or understanding between the parties that a crime will be committed and each will be jointly liable. In order to prove Count 1 and 2, the Crown only have to establish that there was an intention to assault. There was an agreement to enter the premises with an intention to assault and in this sense, assault does not mean injure. Assault just means it could go as far as threaten, intimidate or put in fear of an unlawful - a fear of an unlawful application of course is in fact an assault.

The Crown would succeed if they satisfied you beyond reasonable doubt in relation to Count 1 that Davidson and Konestabo had an agreement to assault in the way I just defined it which includes put in fear down to actually physically hit somebody.[4]

13. Given those directions, I consider that the jury would have understood that, in order to convict on Count 1, they had to be satisfied beyond reasonable doubt that Konestabo had the clublock with him at the time of entry; but that, whether or not Konestabo had a weapon with him at the time of entry, it was open to convict on Count 2 if satisfied beyond reasonable doubt that Konestabo entered the house with an intention to assault by threat, intimidation, putting in fear or the application of physical force.

14. It follows in my view that there is no inconsistency between the verdicts on Counts 1 and 2. The logical and probable explanation is that the jury acquitted on Count 1 because they were not satisfied beyond reasonable doubt that Konestabo had the clublock with him at the time of entry - although none of the occupants of the house had seen the clublock before the night of the offence, none was able to say that he or she saw Konestabo come through the door with it - but the jury convicted on Count 2 because they were satisfied beyond reasonable doubt that Konestabo entered the premises clothed and in the fashion that he was and did with an intention to assault a person or persons therein.

Ground 2: Failing to identify where the dispute lay

15. The contention originally advanced in support of Ground 2 was in substance no different to Ground 1. The thrust of it was that the only way in which the Crown had put the count of assault was on the basis of an intention physically to harm, and it was said that the judge had been in error in failing to make that clear.

16. I reject that contention for the same reason as Ground 1. Evidently, assault comprised of physical harm was not the only way in which the Crown went to the jury on the issue of assault. It was left to the jury on the basis both of intention physically to harm and an intention to put in fear. And as can be seen in the passages of the judge's directions to which I have referred, his Honour made that plain.

17. In oral argument, counsel for the applicant advanced a further submission that the judge misdirected the jury to the effect that it was not necessary for the purposes of Count 2 for the Crown to establish that the applicant entered with intent to commit an assault. According to counsel, that could be seen in the following passage of the charge:

You only consider Count 2 if you return verdicts of not guilty in relation to Count 1. Because the Crown say, 'Well, if you're not satisfied beyond reasonable doubt that they entered as trespassers with intent to assault, that is an aggravated burglary with a weapon, you should be satisfied that they entered as aggravated burglars because they knew someone was home or reckless as to whether someone was home'. That is a different basis upon which you can be guilty of aggravated burglary which I will come to later.

18. I reject that submission. In my view it amounts to taking the cited passage of the charge out of context without proper regard to the development which the judge told the jury he would come to later, and it ignores that later part of the charge in which his Honour specifically directed the jury that they could not convict on Count 2 unless satisfied that Konestabo had an intent to assault.

19. As his Honour said at the outset, he was simply:

...seeking to stress at the moment...that we are here dealing with straight alternatives. The Crown seek you only to consider Count 2 if you were to find one or both of them not guilty in relation to Count 1.

Then later, when his Honour turned to the elements of each offence, he specifically directed the jury that they could not convict on Count 2 unless satisfied of the three elements of burglary as he had previously outlined them, (namely entry, as a trespasser and with intent to assault) as follows:

You would only be considering Count 2 if you were not satisfied beyond reasonable doubt in relation to Count 1, but for the Crown to prove Count 2 they would have to establish the same three elements of burglary that I indicated before, that there was an entry as a trespasser of the premises with intent to commit an assault, and if they miss out on any one of those three of course[s] they have not proved the count. There is not burglary and there is no aggravated burglary and you would have to find the accused not guilty. The same in relation to Count 1, but in addition, in order to be guilty of Count 2, the Crown would have to establish that at the time they entered the premises, or one of them entered the premises in the circumstances that exist in this case, they were aware that there were people present or were reckless as to whether there were people present in the way in which I have just defined it...

20. Davidson and Konestabo also seek leave to appeal against sentence: Konestabo simply on the ground of manifest excessiveness; and Davidson on the ground that the judge erred in finding that he had opened his knife prior to knocking on Ziogas' door and on further grounds of hardship, fresh evidence and manifest excessiveness. I shall deal first with Konestabo.

21. Counsel for Konestabo submitted that the judge had overvalued the seriousness of Konestabo's offending and that, inasmuch as Konestabo's involvement was limited to foreseeing that Davidson might recklessly cause serious injury, his culpability was significantly less than Davidson's in actually causing injury.

22. I do not accept that submission. As the Crown contended, there was no evidence that Konestabo was intoxicated at the time of offending. Apparently he was sober and encouraged Davidson to go armed with a knife as part of an arrangement which involved the potential for serious injury. In effect, Konestabo was the moving force of the criminal enterprise and in that sense his culpability was certainly no less than Davidson's.[5]

23. Counsel for the Konestabo also argued that the judge had undervalued matters personal to Konestabo such as that he was 38 years old without any prior convictions for violence, albeit that he had a range of other convictions, was a well qualified and skilled plasterer with a position to go to, was of stable domestic circumstances and was well regarded by his partner and family and others.

24. But the difficulty with that is that the judge took all of those matters into account. His Honour specifically referred to Konestabo's age and the details of his social and criminal history and made express reference to Konestabo's relationship with his de facto wife, his skills as a plasterer, the position which would be available to him upon his release, and an array of good character evidence which was given on his behalf. As against all that, however, as the judge said, there was no evidence of remorse and Konestabo had adopted the lies told by Davidson through his counsel in argument on his behalf. Further, as his Honour rightly said, deterrence must loom large in sentencing for offences of this kind because those minded to commit them must be made aware that substantial periods of prison await them upon conviction.

25. Like the judge, I consider that these offences called for substantial punishment in order to reflect the court's denunciation and to provide adequate deterrence against the commission of similar offences by others so inclined. Allowing for everything which has been and could be said in favour of Konestabo, I do not think that a different sentence should have been imposed.

(i) Davidson Ground 2 - Error in finding of fact

26. I turn then to Davidson's sentencing appeal. In the course of his sentencing remarks, the judge held that he was satisfied beyond reasonable doubt that Davidson opened his knife before he entered the premises. As his Honour explained:

I am satisfied beyond reasonable doubt that[Konestabo] knew that Davidson had the knife and on the evidence I am satisfied that Davidson had the knife open in his hand at the time you forced your way into the premises. The whole incident took only a short period of time and given the evidence as to the difficulty in opening the knife, I am satisfied that Davidson had opened the knife prior to the knock on the door at 17 Ben[t] Street, Caulfield South. Such a finding is, in my view, in accord with the direction I gave the jury as to the need to be satisfied beyond reasonable doubt that [Konestabo] foresaw the possibility that Davidson may recklessly cause serious injury.

27. Counsel for Davidson submitted that the judge could not properly have come to that view beyond reasonable doubt because, according to counsel, it was inconsistent with the direction that the jury needed to be satisfied beyond reasonable doubt that Konestabo foresaw the possibility that Davidson might recklessly cause serious injury.

28. As I see it, there is no inconsistency. On the contrary, one very good reason to conclude that Konestabo foresaw the possibility of the reckless infliction of injury would be that he saw Davidson with the knife open before knocking on the door.

29. Counsel for Davidson argued further that the judge's finding was inconsistent with the verdict of recklessly (as opposed to intentionally) causing serious injury because, in counsel's submission, the verdict bespoke the conclusion that the jury were not satisfied that Davidson had an intention to stab.

30. In my view, that takes the matter no further. While having the knife open would have been consistent with an intention to stab, it was equally consistent with an intention for example to brandish the knife as a threat, knowing that the probable (in the sense of a real chance as distinct from a mere possibility) result of so doing would be to cause injury to a person within the house, and yet still going ahead regardless.[6]

31. Counsel for Davidson argued too that, given that the jury must have been satisfied that Davidson had possession of the knife, it was not open to exclude as a reasonable possibility that Davidson opened the knife during the period that Konestabo was being punched in the hallway of the house.

32. The answer to that, however, as the Crown submitted, is that there was only a very short time between the knock on the door and the use of the knife to stab Ziogas; there was no dispute that Davidson was significantly intoxicated; and there was evidence that the knife blade was very difficult to open. In those circumstances, it is not difficult to exclude as a reasonable possibility that Davidson managed to open the knife after the door was opened.

33. Counsel contended that the total effective sentence of seven years and six months' imprisonment was outside the range. He pointed to the fact that Davidson had no prior convictions for offences of violence; was still relatively young (he was 26) at the time of offending; and had a very disadvantaged background, in that his parents were drug addicts, his father died when he was only eight, he was placed in foster care at the age of nine and sexually abused in foster care, and at around the age of 16 had gone from childhood into a cycle of drug addiction which underpinned the subject offences. Additionally, although recognising that the offences were serious, counsel stressed that the applicant was intoxicated at the time of offending and submitted that it was significant that the binge drinking which resulted in the commission of the offences arose against a backdrop of his traumatic life style.

34. Despite the strength of those submissions, I am not persuaded that the sentence was excessive. These were serious offences involving a house invasion at night with violence and the infliction of serious injury with a knife, apparently in an attempt to enforce a debt wrongly believed to be due. Davidson showed no remorse. He denied any wrongdoing and he lied to the police when interviewed about what he had done. It is true that he was intoxicated. But in the circumstances of this case, I do not consider that to have been a mitigating circumstance. To the extent that the sentencing judge may have thought it was, Davidson should count himself lucky. It is unnecessary to repeat what was said in R v Martin[7] about when intoxication may and may not be regarded as a mitigatory circumstance. The sentence of four years' imprisonment on the count of aggravated burglary was anything but excessive and while the sentence of six years' imposed on the count of recklessly causing serious injury was not lenient, I repeat that this was a serious example of the offence which warranted rigorous punishment in order to express the court's denunciation of the offending and to provide adequate general and specific deterrence.

35. Under cover of Ground 3 counsel for Davidson argued that the judge gave no or insufficient weight to the hardship which would be suffered by Davidson and his three children by reason of his separation from them, including the likelihood that they would be required to return to foster care.

36. In my view that submission faces difficulties at a number of levels. Hardship to third parties is ordinarily regarded as being of minimal importance for the purposes of sentencing, especially where, as here, the offences are serious.[8] Unless circumstances are truly exceptional, it is the sort of hardship which should be ignored. As Chernov JA put it in R v Nagul:[9]

...in almost every case the imprisonment of the offender imposes some hardship on others and, as Charles JA notes in Bulfin,[10] typically wreaks havoc on family members. Thus, the courts have effectively said that, other than in exceptional circumstances, hardship to family members of the imprisoned offender by reason of the incarceration is not a factor relevant to the sentencing disposition.[11] As Gleeson CJ explained,[12]

[t]here is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person.

It has been said that exceptional circumstances might exist where, in effect, it would be 'inhumane' to refuse to take the relevant hardship into account.[13]

37. It is true that imprisonment which results in children being left to fend for themselves as best they can without parental supervision or support has been held to amount to exceptional circumstances.[14] But as Chernov JA also observed in Nagul:

Even in such cases, however, special circumstances will not readily be found, as is apparent from R v Carmody and R v Thai in which both parents had been imprisoned and where the offenders' children showed a marked adverse reaction to that situation. Similarly, in Holland this Court considered that the hardship to the applicant's seven and a half year old daughter arising from her being left in the care of the grandparents while the applicant and the father served a sentence of imprisonment, did not require the sentencing judge to find that the circumstances were exceptional for sentencing purposes.[15]

38. In this case the circumstances as presented to his Honour could hardly be regarded as exceptional. The highest counsel could put the matter at the plea was that the applicant's three children (aged 6, 5 and 3) had been removed from the care of the children's mother for a time while the applicant was in custody awaiting trial. Since then, the children's mother had received support designed to keep the children with her. The possibility that she might let them down again could not be excluded. But, as the matter stood at the time of sentencing, that seemed less than likely.

39. Finally, counsel for Davidson sought leave to read an affidavit sworn by his instructing solicitor on 10 September 2008, to the effect that the children were in fact removed to foster care on or about 12 July 2007, and he submitted that it should be received as fresh evidence of a matter which was in issue before the sentencing judge.

40. The circumstances in which this court may receive fresh evidence on a sentencing appeal were restated by Redlich, JA in R v Nguyen[16] as follows:

this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[17]

41. I accept that the evidence of the children's return to foster care is new evidence which relates to events that have occurred since the sentence was imposed and which better demonstrates the true significance of facts in existence at the time of the sentence as to the potential for the children's mother to let them down again. I am not persuaded, however, that the new evidence makes a significant difference.

42. Included among the exhibits to the affidavit of 10 September 2008 is a Department of Human Services Report dated 19 August 2008 and a Department of Justice - Children's Court Clinic - Court Report in which the present plight of the children and the plans for their welfare are set out. As appears from those reports, the children's mother is for the time being lost to the effects of alcohol and drug abuse and quite unable to care for them now or for the foreseeable future. The children were placed in foster care together on 25 June 2007 and, after the initial placement broke down due to their 'challenging behaviours', they were placed separately in care. The Department of Human Services has since formulated a 'Non-reunification case plan' which looks at placing the children into permanent care of an appropriately assessed family, to ensure long-term stability for the children. If implemented, it will result in Davidson and the children's mother losing custody and guardianship of the children. A final contest before the Children's Court is scheduled for 24 November 2008 and the length of Davidson's sentence could prove significant to the outcome.

43. According to the Children's Court Crime Report, Davidson's eldest son misses his father and wishes to be reunited with him but the other two children have now formed stronger attachments to their foster parents and wish to remain with them. Each of the children requires ongoing therapeutic support and it is thought the sooner they shift to more permanent care the better for their welfare. Davidson's eldest son remains in temporary foster care and his foster parents are willing to continue to care for him on a temporary basis for up to another 12 months. But it is said that they would not be happy with a time frame of two years or more. There is a prospect of Davidson's eldest son being placed in the care of Davidson's sister in New Zealand and to remain there until Davidson is released from gaol. But it is said that a risk of her caring for the boy is the stability of the placement and that it may break down. According to the report, the boy has aggressive tendencies and sexualised behaviour and his aunt, although motivated, may not be able to cope.

44. Counsel submitted that this fresh evidence established exceptional circumstances sufficient to warrant a substantial reduction in sentence. I do not agree. According to the authorities to which I have referred, the events described in the reports are not a significant sentencing consideration. They are a tragic but unexceptional manifestation of the kinds of hardship to which families of offenders are subjected when offenders are imprisoned.

45. Counsel submitted in the alternative that, even if the circumstances were not exceptional, there was sufficient to warrant the exercise of mercy. I find that submission more appealing but, I regret, no more compelling. No doubt Davidson wishes to be reunited with his eldest son as soon as may be. I allow that in the meantime he is likely to be concerned about the child's welfare. I also allow that Davidson's time in gaol will be made that much harder as a consequence of his concerns. But of itself I would not regard that as a sufficient basis for mercy and, although the possibility of reunification with his eldest child is something which, in other circumstances, might have carried the day, in the state of affairs disclosed in the Department of Human Services and Department of Justice Reports, in my view it does not. In order to make a difference to what is now planned for the children, it appears that Davidson would have to be free to care for his son within the next 12 months or so. To achieve that result would necessitate reducing the non-parole period to no more than four years. Given the nature and gravity of the offences in issue, and Davidsons's apparent lack of remorse, I do not consider that such a reduction can be justified as a matter of mercy in the circumstances of this case.

46. In the result, I would dismiss each of the applications.

47. I agree, for the reasons given by Nettle JA that each application should be dismissed.

48. I also agree that each application should be dismissed.

[1] R v Holzer [1968] VicRp 61; [1968] VR 481, 484; R v Patton [1998] 1 VR 7, 21.

[2] MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606; Mackenzie v The Queen (1996) 190 CLR 348; R v Miller [2007] VSCA 249; R v Allen [2006] VSCA 3.

[5] R v KCF [2006] 165 A Crim R 475, [10]-[11].

[6] R v Campbell [1997] 2 VR 585, applying The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464; see also Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378; R v Faure [1999] VSCA 166; [1999] 2 VR 537, 546 [29].

[7] [2007] VSCA 291,[22]-[28].

[8] R v Mitchell [1974] VicRp 75; [1974] VR 625, 631, Fox & Frieberg_, Sentencing_ [3.904].

[9] [2007] VSCA 8 [43].

[10] [1998] 4 VR 114, 131.

[11] See R v Boyle (1987) 34 A Crim R 202; R v Yates (1997) 99 A Crim R 483, 486-7 (Charles JA), R v Carmody (1998) 100 A Crim R 41, 45 (Tadgell JA), R v Maslen (1995) 79 A Crim R 199, 209 (Hunt CJ at CL) and R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451, 452 (Batt JA) 454 (Eames JA) and 457 (O' Bryan AJA).

[12] R v Edwards (1996) 90 A Crim R 510, 515.

[13] R v Wirth (1976) 14 SASR 291, 295-6 (Wells J), approved in Boyle (1987) 34 A Crim R 202; R v T (1990) 47 A Crim R 29 and R v Adami (1989) 51 SASR 229 as cited in Holland.

[14] R v Close [2004] VSCA 188 [18], citing Boyle (1987) 34 A Crim R 202, 205 and Yates (1998) 99 A Crim R 483, 486.

[15] [2007] VSCA 8 [43] citations omitted.

[16] [2006] VSCA 184.