Russo v The Queen [2021] VSCA 244

1 I agree with the reasons of Emerton JA and with the orders her Honour proposes.

2 On 27 October 2020, the appellant pleaded guilty to one charge of carjacking, one charge of conduct endangering life and one charge of fail to stop vehicle on police request. The appellant was sentenced on 26 November 2020 as follows:

Carjacking (contrary to s 79 of the Crimes Act 1958)

Conduct endangering life (contrary to s 22 of the Crimes Act 1958)

Fail to stop vehicle on police request (contrary to s 64A(1) of the Road Safety Act 1986)

Pre-sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991

6 years' imprisonment, with a non-parole period of 4 years

3 The appellant has been granted leave to appeal against both the sentence on charge 1 and the non-parole period on the ground that each of them is manifestly excessive.

4 At approximately 10:55 pm on 11 May 2020, Mr Malinga De Silva drove home from the car wash in his 1998 Nissan Skyline and turned into his driveway. He turned off the ignition and removed the steering wheel, which was a safety feature of the Skyline. As he turned to get out of the car, two men approached him, the appellant and a co-offender. They were both wearing black hoodies zipped up and pulled up over their faces. The appellant demanded Mr De Silva's keys. Mr De Silva tried to get out of his car and, at the same time, remove his house key from the keyring, hoping the offenders would become impatient and leave. The unidentified co-offender did become impatient and assaulted Mr De Silva, hitting him in the left eye with an object.

5 Mr De Silva handed over the keys to the offenders. The appellant got into the Skyline and reattached the steering wheel, reversed out of the driveway and drove away. The co-offender ran back to another car which was parked on the street and drove off.

6 At approximately 11:25 pm, a police vehicle on patrol identified the stolen Skyline being driven by the appellant travelling at high speed west along Mountain Highway, Boronia. The police air wing attended and assisted in conducting surveillance of the stolen car. Over the next 10 minutes, the air wing and a number of police vehicles pursued the appellant. During the pursuit, the appellant drove erratically and at speeds in excess of 100 kph in areas with a speed limit of 60 kph.

7 The Skyline was later identified by a police patrol vehicle which attempted to intercept the appellant by activating its lights and sirens, but the appellant sped away. The appellant was observed by police travelling through a red traffic light at the Canterbury Road and Bayswater Road intersection, while travelling west at high speed along Canterbury Road. The patrol vehicle was unable to maintain contact with the appellant because of the excessive speeds at which he was driving. The appellant was recorded as travelling at 127 kph and 146 kph on stretches of road with a 60 kph speed limit and at 152 kph and 164 kph on stretches of road with an 80 kph speed limit.

8 At 11:34 pm, the appellant drove to a street in Heathmont and dumped the car in the middle of the road. He ran up the driveway of a house and attempted to open up a Holden Commodore, but was unsuccessful. He then entered the rear garden of the house and began to jump fences. He moved through a number of properties in an attempt to evade police. He was ultimately found hiding in bushes at the front of a house in Canterbury Road and was arrested.

9 Upon his arrest, the appellant was searched and a brown wallet containing various personal documents in the name of Malinga De Silva was found in his possession. The key to the Skyline was found to be still in the ignition of that car, which also contained the appellant's mobile phone.

10 The appellant was taken to Ringwood police station where he participated in a record of interview in which, among other things, he admitted that he had been hiding in the bushes and that he had come from the Skyline. He said that he had been seated in the passenger seat while the Skyline was being driven by another person named 'Grady'. Grady and another man called 'Joel' told the appellant to come for a drive with them. They followed the Skyline for about 10 minutes before they stopped. The other two men got out of the car and went down a driveway while he waited in the car.

11 The appellant told police that he was told (ordered) to get into the Skyline so he did. He agreed that police had followed them with lights and sirens and that he noticed the police helicopter above them. Grady stopped the car and ran in one direction while he ran away in the other. He grabbed for his phone but ended up grabbing the other guy's wallet. He said he did not know what the other two were doing and he did not want to be there but they had threatened him with a hammer.

12 The appellant was arraigned on 27 October 2020 and pleaded guilty to one charge of carjacking, one charge of reckless conduct endangering life and failure to stop a vehicle on police request.

13 The appellant was 30 years of age at the time of the offending.

14 The appellant's personal circumstances are set out in the report of Mr Patrick Newton, clinical and forensic psychologist, dated 14 October 2020. Mr Newton conducted two extended consultations with the appellant via video and had access to the Summary of Prosecution Opening, along with a copy of the appellant's prior criminal record.

15 Mr Newton recorded that the appellant was the third of four children in his family. The appellant's father operated a concrete pumping business and his brother subsequently took over the operation of that company. His mother worked in the office and the appellant also worked for the company at various times. The appellant told Mr Newton that his father was a heavy drinker and would become aggressive when intoxicated and physically abusive to his mother as well as other members of the family including the appellant.

16 The appellant reported that he was slow to meet developmental milestones and suffered attentional difficulties as a child. He was diagnosed as suffering from attention deficit/hyperactivity disorder when he was about eight years old and prescribed Ritalin, but took it only for a brief period.

17 At school the appellant struggled to acquire literacy skills and has limited literacy as an adult. He told Mr Newton that he was subject to pervasive teasing and harassment throughout his primary schooling and often responded with aggression, leading to disciplinary problems. He discontinued his schooling at the end of primary school and commenced working in his father's concrete pumping business. He worked for his father from the age of 13 until the age of 20 and then later for his brother from the age of 20 until his arrest.

18 The appellant reported only one significant relationship which commenced in 2012 when the appellant was aged 22 and lasted until the appellant's arrest. He has a child from that relationship, a daughter, aged five, who lives with the appellant's former partner. According to the appellant, the relationship was marred by drug use and by his former partner's significant psychological problems. There was conflict and upheaval, and conflict with his family and others became an endemic part of the relationship. However, since he had been in custody, he had received several letters from his former partner indicating a desire to reconcile.

19 The appellant reported that he had experienced longstanding depression dating from his childhood and that he had continued to experience depressive symptoms in his adult years. He also experienced an episode of significant anxiety in 2018 after he was involved in a fatal car accident in which his friend (who was driving) was killed. The appellant reported a range of symptoms consistent with post-traumatic stress disorder in the aftermath of the collision. He did not participate in treatment but increased his drug use dramatically.

20 The appellant reported an extensive history of substance abuse commencing when he was as young as 10 with the use of inhalants. At about the age of 16, he began to use cannabis, ecstasy and amphetamines. At about the age of 23, he moved on to use methamphetamine, from which time his drug use came to dominate his life, destroying his relationships and compromising his work performance, even in the supported environment of his family's business. The more he used drugs, the more chaotic his life became and the more immersed he became in the drug-using and criminal subcultures.

21 According to Mr Newton, the appellant's symptoms combined reactive elements with more chronic features that reflected his general deficits in the areas of coping and adaptive functioning. While the appellant's symptoms would not meet the criteria of a major depressive disorder or anxiety related disorder, they were more intense than is typical for a person in his circumstances, being sufficiently severe to meet DSM-5 criteria for an adjustment disorder with mixed disturbance of emotions and conduct. Further, his use of illicit stimulants was sufficient to meet the DSM-5 diagnostic criteria for a severe methamphetamine use disorder, which was in early remission in the controlled environment of the prison.

22 Mr Newton opined that the appellant's experience of a combination of anxiety and depression was due to a variety of causes. He had a history of severe drug addiction which severely compromised his ability to maintain adaptive functioning and caused his emotional instability to grow significantly worse. However, he had developed insight into issues associated with his drug use and there was a compelling need for him to receive structured drug education and counselling.

23 Mr Newton concluded that the appellant's thought processes were free from disorder. He was not psychotic, and both his reality testing and his moral reasoning were intact. He was estimated to be of below average intelligence, but was unlikely to be suffering from an intellectual disability. Mr Newton stressed the appellant's rehabilitative needs and opined that he would have the potential to benefit from a disposition allowing for the provision of ongoing mandated treatment and support in the context of supervision and clear consequences to encourage continued compliance.

24 After setting out the details of the offending based on the Summary of Prosecution Opening, the sentencing judge turned to the appellant's personal circumstances, commencing with his criminal record.

25 The sentencing judge noted that following some early offending, the appellant stayed away from the courts for over four years until September 2018, when he was fined and put on a good behaviour bond for 12 months for theft and using threatening words in a public place. Less than a year later, in May 2019, the appellant appeared in the Frankston Magistrates' Court for contravening both a family violence interim intervention order and a conduct condition of bail. Four months after that appearance, in September 2019, he appeared at the Ringwood Magistrates' Court on a drug charge for which he was fined. In December 2019, he appeared in the Dandenong Magistrates' Court for breaching the good behaviour bond entered into in September 2018 and, on 20 January 2020, he appeared in the Ringwood Magistrates' Court for unlawful assault and making a threat to kill. He was put on a Community Correction Order ('CCO') for 18 months. The current offending breached the conditions of that CCO.

26 The sentencing judge then set out the principal events in the appellant's life and summarised Mr Newton's report, noting, in particular, that the appellant would benefit from a disposition which allowed for the provision of ongoing compulsory treatment and support.

27 The sentencing judge found that the offending in charge 1 was inherently serious, attracting a maximum penalty of 15 years and being nominated as a Category 2 offence, mandating a sentence of immediate imprisonment. The sentencing judge stated that he was conscious that the appellant's involvement did not amount to the more aggravated form of carjacking reflected in the conduct of his co-offender. However, being physically confronted by an offender late at night, in company, with the demand for the car was itself likely to be terrifying to an isolated and defenceless victim and a cause of great distress, fear and anxiety.

28 The sentencing judge expressed himself to be sceptical of and unconvinced by the appellant's instructions to counsel that he only participated in the carjacking under threat by his co-accused of being hit with a hammer. His Honour said:

Whilst I accept that other features such as a direct threat by you, detailed planning or risks to other road users are not present in the circumstances of the carjacking, the offending did involve some considered premeditation and is aggravated by the fact that it was committed in breach of a recently imposed community correction order.[2]

29 The sentencing judge stated that the appellant's driving, which gave rise to the offence of conduct endangering life, was also a serious form of criminal conduct as it exposed members of the public to the danger of death. Proceeding in this manner in the context of ignoring attempted police interception added significantly to the appellant's culpability, noting that he had a conviction in 2014 for a similar offence of reckless conduct endangering serious injury.

30 The sentencing judge concluded that the principles of specific and general deterrence and the protection of the public loomed large in the sentencing synthesis in light of the appellant's previous history of offending and the fact that he was the subject of a Community Correction Order made less than four months earlier, along with a previous conviction for failing to stop on police request.[3]

31 The sentencing judge stated that he took into account the following matters in mitigation:

(a) the appellant's plea of guilty, which the sentencing judge recognised to be an early plea;

(b) the appellant's strong family support, his desire to re-establish contact with his daughter, his continuous history of employment, the availability of employment upon release from prison, the development of insight by the appellant into his drug addiction and his engagement in drug counselling while in custody, which were all matters assisting his rehabilitation on his release from prison;

(c) the appellant's chronic history of drug addiction and the disadvantage in his early life, which made him more vulnerable to the seductive qualities of drugs and resulted in a lower capacity to address more appropriate measures of support, against which had to be weighed the need for community protection;

(d) the more onerous conditions in prison because of COVID-19; and

(e) the appellant's remorse as expressed through his counsel and to Mr Newton.

32 The judge concluded that in all of the circumstances, the purpose for which sentences were imposed precluded a sentence other than one with a head sentence and a minimum term before eligibility for parole. The gravity of the totality of offending required a sentence beyond that which would permit a component to be served in the community.[4]

33 The appellant has been granted leave to appeal his sentence on the following grounds:

Ground 2: The individual sentence imposed on charge 1 is manifestly excessive.

Ground 3: The non-parole period is manifestly excessive.

34 The appellant abandoned ground 1 before his application for leave to appeal was determined.

Ground 2: Sentence for charge 1 manifestly excessive

35 The appellant accepts that the sentencing judge was required to impose a term of imprisonment for charge 1 but submits that the judge did not give appropriate weight to the mitigating factors relevant to him and ultimately imposed a manifestly excessive sentence.

36 In his written submission, the appellant points to the range of factors in mitigation raised on the plea: his early plea of guilty, his remorse, the support available to him in the community (evidenced in part by the character reference from his mother), his strong history of employment over a period of approximately seven years and the availability of employment for him upon his release from custody.

37 He also points to the fact that he had been abstinent from drugs for close to six months at the time of sentencing and had engaged in drug counselling while on remand. Further, he relied on his desire to re-establish contact with his five-year-old daughter and to be there to care for her.

38 On the basis of these factors, the appellant submits that he has favourable prospects of rehabilitation.

39 The appellant also relies on the onerous custody conditions that he was subjected to on remand - which was his first time in custody - and the ongoing effects of the COVID-19 pandemic on his incarceration.

40 Finally, while he now has family support, the appellant submits that he experienced a disadvantaged upbringing which made him more vulnerable to mental health and substance abuse issues.

41 The appellant accepts that the offences of which he was convicted are inherently serious offences. However, he submits that his offending was at the lower end of seriousness for carjacking. While the appellant placed the victim in fear, he did not use violence and there were no explicit threats of force.

42 The appellant relies on a number of comparable cases concerning carjacking. The appellant referred the Court, in particular, to the authority of Leishman v The Queen,[5] where a sentence of four years' imprisonment for the offence of carjacking was described by this Court as 'moderate', and DPP v Kilpatrick[6] where the offender was sentenced to 17 months' imprisonment with a non-parole period of 11 months for one charge of carjacking.

43 According to the appellant, Leishman must be viewed in the context of the serious nature of the offending in that case and the criminal history of the offender, which included a prior conviction for armed robbery for which the offender had previously served a sentence of five years' imprisonment with a non-parole period of two years and six months.

44 The appellant has included in his written outline of argument a table of six sentencing decisions for carjacking from the County Court, including Kilpatrick. In each case, carjacking forms part of a package of offending. Generally, the sentences imposed for the carjacking offence are less than three years. In three cases, a term of imprisonment of 12 months was imposed; in another, the sentence for carjacking of two years served as the base sentence.

45 The Crown points to the factors that made the offending serious and to the appellant's previous criminal history. At the time of the offence, he was subject to a Community Correction Order for three charges of unlawful assault and one charge of make a threat to kill. That order was imposed on 20 January 2020 and this offending occurred on 11 May 2020. The Crown submits that the appellant's criminal history made specific and general deterrence important sentencing considerations.

46 The Crown submits further that the sentencing judge took into account the mitigating factors raised by the appellant and that the cases referred to are only a guide and not determinative.

47 In order to make good the ground of manifest excess, the appellant must establish that the sentence imposed on charge 1 was wholly outside the permissible range of sentences. It must be shown that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[7]

48 In this case, the objective gravity of the offending in charge 1 is to be assessed having regard to the fact that it occurred at night while the victim was alone and vulnerable. The victim was in the process of getting out of his car when he was unexpectedly confronted by the appellant and his co-offender. Both the appellant and co-offender were wearing black hoodies pulled up over their faces. The victim was subjected to immediate demands and was overborne by the appellant and the co-offender such that he feared for his life. The appellant, knowing that the victim had been assaulted by his co-offender, continued to carry out the carjacking and departed in the victim's car.

49 The offending is, on any view, serious offending. Carjacking is a serious offence and, relatively, the appellant's offending is at least in the mid-range of seriousness.

50 The offending has had a profound impact on the victim. In his Victim Impact Statement, the victim described the Skyline as a treasured possession to which he was emotionally attached. Although it was returned to him, it was damaged and the damage it sustained caused him financial loss. The victim described the long term effect of the offending upon him, stating that he has continued to feel scared, particularly when returning home at night, and has withdrawn from socialising with people.

51 As to mitigating factors, the sentencing judge gave weight to the appellant's plea of guilty, his family support and work history. I observe that, although these were matters that weighed in the appellant's favour, the appellant's family support and work history had failed to serve as protective factors throughout much of his adult life. The sentencing judge accepted that the appellant had expressed 'some remorse' for his conduct and that he had had a somewhat deprived childhood.

52 The sentencing judge did not make an express finding regarding the appellant's prospects of rehabilitation, but it is clear from Mr Newton's report that they are dependent upon him engaging in suitable treatment and receiving considerable support. No link was established between the appellant's childhood deprivation and the offending, so as to reduce his moral culpability for the offending.

53 As to the comparable cases contained in the table, they provide guidance only and are of limited utility given the variety of circumstances and considerations in each case. For example, in Leishman, while the offending was more serious, the offender was able to rely upon a number of significant matters in mitigation, including the application of the Bugmy[8] principles, and totality. As for Kilpatrick, the parties were known to each other and the offender was sentenced as a youthful offender, being only 23 years of age.

54 In DPP v Zhuang, the Court (Redlich, Priest and Beach JJA) described the proper role of comparable cases in sentencing as follows:

Sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. Every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. A general overview of sentences imposed for offences of a similar character may, however, play a part in informing the instinctive synthesis, particularly insofar such an overview may provide a general guide to current sentencing practices.

The selection of a sentence involves the exercise of a judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender. ...[9]

55 Similarly, in DPP v Dalgliesh, Gageler and Gordon JJ observed:

Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v The Queen, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[10]

56 In the same vein, in DPP (Cth) v Thomas, the Court (Redlich, Santamaria and McLeish JJA) reviewed relevant High Court authority on comparable cases and said:

Every sentence is of course the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. For that reason it is sometimes emphasised that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished. But that said, past sentences do provide guidance to sentencing judges, and to appellate courts. As the joint judgment stated in Hili, Barbaro v R and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed.[11]

57 The maximum penalty for the offence of carjacking is 15 years' imprisonment. As discussed, this offending is in the medium range. Notwithstanding the mitigating factors, having regard to the nature of the offending and the appellant's relevant criminal history, a sentence of 3 years' imprisonment was well open to the sentencing judge.

Ground 3: Non-parole period manifestly excessive

59 The appellant submits that the non-parole period of 75 per cent of the head sentence is manifestly excessive. He submits that while there is no usual non-parole period, in the majority of cases the ratio between the head sentence and the non-parole period is fixed at between 60 to 75 per cent. Declaring a non-parole period of 75 per cent of the head sentence has been recognised to be reserved for 'the worst category of case'.[12] Moreover, a non-parole period of 75 per cent or more 'may invite scrutiny'.[13]

60 The appellant argues that the sentencing judge accepted such matters as his early plea of guilty and the strong family support available to him, along with his insight into drug addiction and absence from drugs for a period of six months, as matters which would assist his rehabilitation prospects upon his release from prison. He also pointed to the fact that it was his first time in custody and that he had not previously been afforded the opportunity of parole. Further, Mr Newton had said that he would benefit from a disposition which involved him being released into a context of ongoing supervision and support to allow his abstinence to be monitored more closely and for him to be mandated to receive appropriate treatment as required. This would serve to protect the community from further harm and maximise his prospects of successfully returning to productive engagement with mainstream society.

61 The appellant points out that following his counsel submitting that the appropriate disposition was for imprisonment as mandated on charge 1 in combination with a CCO on charge 2, the sentencing judge made arrangements for the appellant's suitability for a CCO to be assessed. The assessment took place and the appellant was found to be suitable. However, when imposing sentence, the sentencing judge stated that the purposes for sentencing precluded a sentence other than a sentence with a head sentence and a non-parole period. The appellant therefore submits that the sentencing judge failed to take into account the mitigating matters that weighed in favour of his prospects for rehabilitation when determining the non-parole period. The sentencing judge failed to take into account the community's interest in him having available to him the opportunity of an extended period of supervision on conditional release, as was suggested by Mr Newton.

62 Finally, the appellant submits, the sentencing judge did not provide any reasons for imposing a non-parole period that was 75 per cent of the head sentence and given the high ratio between the head sentence and the non-parole period, the absence of explanation invites appellate scrutiny of the non-parole period.

63 The respondent submits that there is no 'usual' non-parole period and that a court will only interfere with a non-parole period if it can be shown that it was not reasonably open to the sentencing judge to fix that period had proper weight been given to all the relevant factors. In this case, there is no basis for intervention. The conduct the subject of charge 2 involved driving erratically and at speeds of 127 kph and 146 kph in a 60 kph zone and 152 kph and 164 kph in an 80 kph zone. These roads were built up residential areas. The conduct lasted for approximately ten minutes and involved the police air wing and patrol vehicles. The objective gravity of the offending overall, the need for general and specific deterrence, denunciation, just punishment, protection of the community and the prospects of rehabilitation being conditional upon abstinence and treatment were required to be given greater prominence than the matters relied upon in mitigation.

64 In Grantley (a pseudonym) v The Queen,[14] this Court confirmed that there is no 'usual' non-parole period. Although experience shows that non-parole periods are generally in the range of 60 to 75 per cent of the head sentence, the fact that the non-parole period fixed in a particular case falls outside that range is not indicative of error. Moreover, although in circumstances where a sentencing judge has fixed a very long non-parole period, an appeal court will be assisted by reasons given by the sentencing judge for fixing the period in question, failure to give such reasons does not bespeak error. The question to be determined is whether in all of the circumstances it was reasonably open to the sentencing judge to fix such a non-parole period.[15]

65 Notwithstanding that a non-parole period falling outside the range does not necessarily bespeak error, in my view, the non-parole period in this case, being 75 per cent of the head sentence, invites scrutiny. The sentencing judge declared that had the appellant not pleaded guilty, he would have imposed a head sentence of six years' imprisonment with a non-parole period of four years, being 66 per cent of the head sentence.

66 According to the High Court of Australia, the purpose of fixing a non-parole period is 'to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'.[16] In fixing the non-parole period, the sentencing judge is required to consider the factors put before the Court that are relevant in determining the question of when the prisoner should be eligible to be released and rehabilitated through conditional supervision. Any steps already taken towards rehabilitation are a relevant consideration.[17]

67 In this case, there was no reason to impose what is unquestionably a long non-parole period. To the contrary, there was good reason to give the appellant the opportunity of a significant period for rehabilitation under strict supervision in the community. While the appellant is not a young offender and has a relevant criminal record, this is the first time he has been incarcerated. He has available to him guaranteed work, which he has proven himself to be well capable of performing, and strong family support, and he has evinced a strong desire to remain drug free in the future.

68 In my view, the non-parole period imposed in these circumstances was outside the range and a shorter non-parole period should have been imposed in the interest of the appellant's rehabilitation and in order to facilitate his reintegration into the community following his time in prison.

70 The appeal will be allowed on ground 3. The sentences on charges 1 and 2 and on the summary offence of failing to stop on police request, along with the total effective sentence of four years' imprisonment, are affirmed.

71 However, the non-parole period fixed by the sentencing judge will be set aside and in lieu thereof it will be ordered that the non-parole period be fixed at two years and six months.

[1] This penalty applies pursuant to s 64A(1) of the Road Safety Act 1986 as it was a subsequent offence, as opposed to a maximum of 6 months' imprisonment with respect to a first offence.

[2] DPP v Russo [2020] VCC 1894, [43] ('Sentencing remarks').

[5] [2019] VSCA 270 ('Leishman').

[6] [2020] VCC 379 ('Kilpatrick').

[7] Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[8] Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

[9] [2015] VSCA 96; (2015) 250 A Crim R 282, 292-3 [30]-[31]; [2015] VSCA 96 (Redlich, Priest and Beach JJA) (citations omitted).

[10] [2017] HCA 41; (2017) 262 CLR 428, 454 [83]; [2017] HCA 41 (Gageler and Gordon JJ) (citations omitted).

[11] [2016] VSCA 237; (2016) 53 VR 546, 607-8 [176]; [2016] VSCA 237 (Redlich, Santamaria and McLeish JJA) (citations omitted) (emphasis added).

[12] Gray v The Queen [2010] VSCA 312, [21] (Nettle JA, Tate JA agreeing at [26]) citing R v Tran [2006] VSCA 222, [27]-[28] (Redlich JA, Warren CJ and Nettle JA agreeing at [1]-[2]).

[13] Al Wahame v The Queen [2018] VSCA 4, [92] (Whelan and Kyrou JJA) citing Diver v The Queen [2010] VSCA 254, [32] (Ashley JA).

[14] (2018) 272 A Crim R 340; [2018] VSCA 112.

[15] Ibid [37]-[38] (Maxwell P and Kyrou JA).

[16] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 629; [1974] HCA 26 (Barwick CJ, Menzies, Stephen and Mason JJ).

[17] R v VZ [1998] VSCA 32; (1998) 7 VR 693, 698-9 [18]; [1998] VSCA 32 (Callaway JA).