1 I agree for the reasons given by Lasry AJA, with the order he proposes and otherwise that the appeal be dismissed.

2 I agree with Lasry AJA that the second order for cumulation should be amended as he proposes. I also agree for the reasons he gives that the appeal should be dismissed.

3 On 2 April 2008 the appellant pleaded guilty to three counts of reckless conduct endangering life, two counts of threat to kill, one count of possessing a registered general category handgun not being a collector or licensed, one count of possession of a firearm on which a serial number had been altered, and one count of possession of a drug of dependence.

4 On 19 August 2008 the appellant was sentenced in the County Court as follows. On Count 1, a count of reckless conduct endangering life, he was sentenced to 18 months' imprisonment. On Count 2, also a count of reckless conduct endangering life, he was sentenced to 28 months' imprisonment. On Count 3, a count of threat to kill, he was sentenced to 18 months' imprisonment. On Count 4, a count of reckless conduct endangering life, he was sentenced to 28 months' imprisonment. On Count 5, a count of threatening to kill, he was sentenced to 18 months' imprisonment. On Count 6, being a count of possession of a registered handgun without a licence, he was sentenced to 12 months' imprisonment. On Count 7, being a count of possession of a firearm on which the serial number had been defaced, he was sentenced to three months' imprisonment. On Count 8, being a count of possession of a drug of dependence, namely methylamphetamine, he was convicted and fined $300.

5 The sentence on Count 2, being a sentence of 28 months' imprisonment, was the base sentence. Six months of each of the sentences on Counts 1, 3 and 6 were to be served cumulatively on each other and on the sentence on Count 2. It is here that an error has arisen. Ten months of the sentence on Count 4 was to be served cumulatively on the sentence on Count 2 and on the other sentences imposed. Four months of the sentence on Count 6 was to be served cumulatively on the sentence on Count 2 and the other sentence. The sentence on Count 7 was concurrent with the sentence on Count 6. The result was a total effective sentence of five years' imprisonment and her Honour directed that a period of three years be served before the appellant became eligible for release on parole. Ancillary orders were also made.

6 Of the six grounds of appeal originally filed, five were to be pursued in argument before us. They were as follows.

Ground 1: The learned sentencing judge erred at law in making conflicting orders for cumulation.

Ground 2: The learned sentencing judge erred in failing to give sufficient weight to the appellant's impaired mental functioning at the time of the commission of the offences.

Ground 4: The learned sentencing judge erred in failing to give sufficient weight to the appellant's plea of guilty and his prospects of rehabilitation.

Ground 5: The learned sentencing judge erred in failing properly to apply the principle of totality.

Ground 6: The sentence was said to be manifestly excessive.

7 As to the first ground, it is conceded by counsel for the Director that the sentencing judge made an error by making conflicting orders for cumulation in relation to Count 6. Both parties appear to agree that her Honour intended to cumulate six months of the sentence on Count 5 rather than the sentence on Count 6 but whether that be so or not, the orders of the Court fail to give effect to her intention. The Crown therefore concedes that the sentence as pronounced is 'at best unclear and at worst invalid'. The sentencing discretion is re-opened and this Court must now proceed to re-sentence the appellant.

8 These offences were divided into two separate occasions some three weeks apart. In the early hours of the morning of 19 February 2007 the appellant telephoned Rita Magiris demanding payment of a sum of $20 she owed the appellant for her purchase of cannabis from him. She informed the appellant that he would have to wait until her pension cheque arrived. Several hours after this phone call, at about 5.00 am, the appellant drove to Magiris' premises in Glenroy. When he drove to those premises he had with him two witnesses in his vehicle. On arrival the appellant produced a Beretta handgun and moved as though to shoot at the window of Magiris' flat. One of the witnesses, Peter Georges, attempted to prevent the appellant from discharging the weapon. There was a struggle and during the struggle the hand gun discharged. That conduct is the basis of Count 1, being the count of reckless conduct endangering life.

9 The appellant then fired a shot at Magiris' flat with the bullet passing through the loungeroom window. Ms Magiris was in fact sleeping on the couch in that room at the time. That conduct represents Count 2.

10 On the following day the appellant telephoned Magiris and said to her, 'You see the bullet last night, the next bullet I'm going to stick in your head'. This threat is the basis of Count 3.

11 The second episode commenced in the early hours of 8 March 2007 when, at about 1.30 am, the appellant went to premises at Hilda Street, Glenroy where Mark Ross was living. There had been a dispute between the appellant and Ross over Ross' refusal to provide the appellant with cannabis on credit. In the vehicle with the appellant were Alex Makin, the son of the de facto partner of the appellant, and Troy Taylor. On arrival at Ross' premises the appellant fired two shots at the block of flats. One shot missed the building altogether but the second passed through the glass door of Flat No 5, occupied by a Mr Kormez. That conduct is at the basis of Count 4, being a count of reckless conduct endangering life.

12 Mark Ross had heard the shots fired and communicated with the appellant by text message, as a result of believing that the shots were intended for him.

13 Later that day the appellant telephoned Ross and made a threat to kill him by saying that he would be dead by morning and that he was going to shoot him in the head. That threat is the basis of Count 5 of making a threat to kill.

14 On the following day, 9 March 2007, the police were called to attend a domestic dispute at the home of Yvonne Makin, the appellant's de facto partner, at 1 Keith Crescent, Broadmeadows. When the police attended, the appellant was arrested and taken to the Fawkner Police Station. He was agitated and not interviewed in relation to these matters as a result. A search warrant was executed and various items were located relevant to each of these activities.

15 The sentencing judge highlighted the seriousness of this offending and in my view she was right to do so.

16 The evidence suggests that the appellant is now 42 years of age. His family background is Egyptian and the family appears to have strong bonds. His education resulted in qualifications and employment as a specialist motor mechanic. He worked in various positions until 2006 when, due to an industrial accident, he injured his back and went onto unemployment benefits. During that period, he had been married but he and his wife separated in 1998. That event contributed to his growing psychological instability. The appellant began using of methylamphetamine eights months or so before the events which were the subject of the charges and as his use continued, his life began to deteriorate significantly. He began living with Yvonne Makin, also a drug user, and her young son was one of those present in the vehicle during the commission of the offence which was Count 4 - reckless conduct endangering life.

17 Not long before these events (which occurred in February and March 2007) in an effort to deal with his depression, the appellant consulted a medical practitioner who devised a mental health plan for him. That mental health plan identified not only psychological factors, but addiction to both marijuana and amphetamine. Substance abuse was identified as the reason for presentation. By the time the mental health plan was completed, however, the appellant was in custody for these offences.

18 The appellant has 10 previous convictions from three courts appearances between 2000 and 2002. The offences which are most significant in this matter are those of which he was convicted at the Preston Magistrates' Court in June 2001, being intentionally causing injury, unlawful assault, resisting police and damaging property. In 2000 he was convicted of breaching the terms and conditions of an intervention order. The sentence imposed on the appellant in the court below represented his first imprisonment.

The impaired mental functioning of the appellant and its effect

19 By reference both to the circumstances of these offences and the appellant's later disclosed history, it was clear that he was suffering from quite severe psychological, or even psychiatric, difficulties at relevant times. In addition to other material demonstrating family support, the sentencing judge had received a report prepared by Mr Patrick Newton who is a clinical forensic psychologist. Mr Newton examined and consulted with the appellant in January 2008, approximately one year after the commission of these offences. Mr Newton's report recites that the appellant had suffered a range of psychological difficulties since late adolescence including anxiety and depression, followed by more significant psychological difficulties in 1999 when his marriage ended. In the following year he apparently lost contact with his children and consulted a psychiatrist who prescribed the anti-psychotic 'Seroquel' and anti-depressant medication.

20 The appellant reported to Mr Newton that in 2006 he had become intensely depressed after suffering a work injury and that his depression had reached a point where he was contemplating suicide. It was apparently at this time that the appellant commenced a prolonged period of drug use. Earlier at the age of 20, and almost certainly in the cause of self-medicating his depressive symptoms at that time, the appellant began using cannabis and would appear to have developed an addiction to that drug over a considerable period of time.

21 Mr Newton's opinion included the conclusion that the appellant was a person with a history of significant psychological disturbance including major affective disturbance and drug-induced psychosis. Mr Newton emphasised the need for continuing treatment and expressed a preference that it be administered in the community rather than in custody.

22 On behalf of the appellant in this Court it was submitted that the principles identified in R v Verdins[1] applied to the appellant so as to reduce his moral culpability for the offending conduct as well as having a bearing on the kind of sentence which would be imposed on him. It followed that the submission was that both general and specific deterrence should be moderated as a sentencing consideration. In particular, it was argued that his use of drugs in the four to six months prior to his offending could not be realistically separated from his underlying psychological condition and that although his drug use prior to the offending was a significant contributing factor to the offences, the underlying mental condition meant that the appellant's moral culpability was reduced.

23 Counsel submitted that the contribution made by the underlying psychological condition to the offending was that it caused the appellant to self medicate by ingesting methyl amphetamine. The mental condition, it was submitted, was the primary cause of the drug taking and hence the offending conduct. Alternatively, counsel for the appellant submitted that it was an operative cause of the offending conduct.

24 Counsel for the respondent submitted that the appellant had not been able to establish on the balance of probabilities that his impaired mental functioning as opposed to his drug use contributed to the commission of the offences. As the appellant could not show that he would have committed these crimes had he not been affected by drugs, his mental condition was not a mitigating circumstance that enlivened the principles in Verdins.

25 In dealing with the issue of the appellant's mental condition, the sentencing judge observed that Mr Newton's assessment of the appellant and the appellant's prior criminal history led to the conclusion that the pre-existing psychological state would not on its own have contributed to the commission of these offences. These offences were committed, so the sentencing judge concluded, because the 'additional ingredient' of significant drug abuse had occurred. The effect was held by the sentencing judge to be that the reduction in moral culpability and the significance of general deterrence is only 'very minor'.

26 There was a link between the underlying psychological condition and the consumption of the drugs, which apparently created a significant disturbance of the clarity of his thought process at the time of offending. Whilst the evidentiary material before the sentencing judge made it appropriate to describe the drug use in which the appellant had engaged over the period leading to these offences as inextricably connected with psychological difficulties which Mr Newton has diagnosed and referred to in his report, that did not establish that without the consumption of the drug 'ice', the offending would still have occurred on either occasion.

27 In my opinion it was appropriate to limit the effect of the principles identified in Verdins as the sentencing judge did. It could not be said that the appellant's psychological condition was directly responsible for the offending. For Verdins principles to apply, the appellant had to show that the mental condition had directly contributed to the commission of the offences. The fact that the appellant's drug taking was a consequence of his mental condition did not establish that nexus.

28 The appellant further submitted that as he did not have foreknowledge that he would become dangerously violent after consuming methyl amphetamine and cannabis as he had been continuously under its influence for a period of time prior to and during the course of his offending. As in R v Arvanatidis,[2] counsel for the appellant submitted that the consequence of the drug taking was a mitigating circumstance. To support that conclusion, counsel pointed to the aberrant nature of his conduct - the use of a loaded firearm to recover a drug debt of $20.00. Counsel also accepted that there was less in the way of mitigation in relation to the second episode than in the first episode, given the lapse of time between the two incidents.

29 Since the judgment of this Court in Martin[3] it is clear that aberrant thinking which is drug induced can be a mitigating factor but the 'critical factor.... is the degree of foreknowledge on the part of the offender'. The Court went on:[4]

Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.

30 However, to bring the appellant within the contemplation of the analyses in Martin and Arvanatidis it would have required him to establish on the balance of probabilities, that there was a lack of foresight by him as to the consequences of consuming the drugs he did on both occasions. In my opinion that was not established.

31 I should deal with a separate argument which arose and which the Director advanced to uphold the sentences that were imposed. As to the counts which represent the second episode of offending some three weeks later, including potentially Counts 4, 5, 6 and 7, counsel for the Director submitted the appellant's self-induced drug-related psychotic state was an aggravating circumstance. It was, he submitted, proved beyond reasonable doubt because the appellant, having already offended in the first episode, must have known that under the influence of methylamphetamine he could become psychotic and commit offences of this nature. This contention had not been put by the prosecutor below but it was submitted before us that since the sentencing discretion had been re-opened, it was a submission that could now be pursued.

32 Questioned by this Court as to whether such an approach was appropriate in a criminal appeal in circumstances where, had the proposition contended for been put at first instance it might have been sought to be refuted by the calling of evidence, we were later referred to authority and, in particular to Sari v R.[5] In the course of his judgment in that case, Ashley JA said:

The fact that the appellant and others attended the scene of the confrontation on 18 November clad as they were, together with the appellant's violent conduct the day before and his violent conduct on 18 November, gives rise to a strong inference that he went looking for violence on 18 November; that he did not attend, as his counsel put it, merely looking for 'trouble'. But the Crown's failure to articulate that position on the plea raises the prospect, I think, that the entirety of the factual material which might go in support or rejection of that inference was not placed before the learned sentencing judge; and is not before this Court. For that reason, and because I think it is generally undesirable that the Crown should be permitted to rely upon an aggravating circumstance which was there to be pressed but which was not pressed below, I decline to draw the inference contended for.

33 The issue with which we are presently concerned was not the subject of full argument in Sari but to the extent that Ashley JA dealt with the issue specifically, I would respectfully agree that his Honour's approach is correct and disposes of the argument in this case. The principle that a new issue may not be raised during a civil appeal where, had it been raised in the court below, evidence could have been called which would have prevented it from succeeding, is clearly established and described by the High Court in Coulton v Holcombe.[6] In Cornwell v R,[7] by reference to Coulton v Holcombe, among others cases, Kirby J identified the procedural unfairness to an accused in a criminal appeal if issues not argued below and which raise factual considerations that were not explored were permitted to be pressed by the Crown.

34 Were there to be a re-sentencing of the appellant in this case, it would not be open to this court to now find that the appellant's conduct was an aggravating factor in the manner that senior counsel for the Director contends.

35 It is to be noted that the principles in Verdins also accommodate a consideration of the fact that the impact of prison may impose a greater burden on the mentally ill offender and, as the Court observed:

This proposition requires neither explanation nor qualification. Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health. In our view, the second possibility identified in R v Smith also has potential relevance to the mentally ill offender. Imprisonment might well cause an existing mental condition to deteriorate. In the recent case of R v Vardouniotis, for example, there was evidence that a previous period of imprisonment had aggravated the offender's depression and precipitated psychosis.

36 To the extent that the sentencing judge applied the principles from that case, although not stated, it may be that her greater emphasis was on this aspect. It is true that the appellant is credited with having made good use of his time in custody although that does not necessarily mean that his custody is not burdensome given his condition. On the evidence the period of imprisonment so far coupled with the attitudes expressed by the appellant prior to sentence being imposed tend in favour of him being a good prospect for rehabilitation.

Plea of guilty and prospects of rehabilitation

37 It was submitted on behalf of the appellant that more credit should have been given to him for his plea of guilty, particularly in relation to Count 1. That, it was said, was because given the circumstances it would have been more difficult for the Crown to prove the necessary mental element. Thus it was argued the sentence should have been less than 18 months imprisonment or that, given the composite of the circumstances amounting to Counts 1 and 2, the effective sentence on those two counts should have been less than 34 months plus the 4 month sentence for the firearm.

38 Also during the course of the plea before the sentencing judge, counsel then representing the appellant submitted that the plea of guilty in all the circumstances demonstrated remorse and an acceptance of responsibility for the conduct where it was submitted a guilty verdict was not inevitable had the matter proceeded to trial. Whatever might have been the outcome if the matter had proceeded as a trial, in the context of other material, the pleas of guilty are consistent with attitudes of remorse and the assumption of responsibility by the appellant. In addition, the material before the sentencing judge, as she observed, indicated that since being in custody the appellant's behaviour has stabilised and he has been in a harm-reduction programme.

39 Her Honour rightly identified the seriousness and danger of the conduct the appellant engaged in. She appears to have formed a favourable view on his prospect of rehabilitation reflected in the fixing of the non-parole period. She also agreed that the appellant had accepted responsibility for his actions. In my opinion, the prospects for the rehabilitation of the appellant are favourable and a reasonably long period of release on parole may serve to enhance them. Overall, I would agree with the submission on behalf of the respondent that the sentencing judge's discount for the plea of guilty of 18 months was appropriate.

40 Having carefully considered the matter I have come to the view that I would not impose any different sentence from that imposed by her Honour. These were very serious offences. The maximum penalties for recklessly endangering life and threatening to kill are 10 years imprisonment in each case.

41 The combined actions of the appellant must have been very frightening for the two victims at whom he directed his anger. As senior counsel for the Director submitted, the threats to kill were serious because they followed what appeared to be actions designed to achieve that purpose by the appellant shooting at them. The shooting, of course, also endangered members of the public. Considering all of the circumstances I am unable to accept the submission that either the total effective sentence or the individual sentences were out of proportion to the appellant's offending.

42 I would correct the second order for cumulation so that it read, '...Six months of each of the sentences on Counts 1, 3 and 5 are to be served cumulatively on each other and on the sentence on Count 2.'

[1] [2007] VSCA 102; (2007) 16 VR 269.

[2] [2008] VSCA 189.

[3] [2007] VSCA 291.

[5] [2008] VSCA 137, [14] (Ashley JA), [72] (Lasry AJA).

[6] [1986] HCA 33; (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

[7] [2007] HCA 12; (2007) 231 CLR 260, 332.