Salmi v The Queen [2020] VSCA 250

CRIMINAL LAW - Appeal - Sentence - Multi-sentence case - Where leave to appeal only granted in respect of one sentence - Whether sentencing discretion re-opened in respect of other sentences - Sentencing discretion re‑opened only in respect of the sentence the subject of the grant of leave - Ludeman v The Queen [2010] VSCA 333; (2010) 31 VR 606, Hawke v The Queen [2019] VSCA 276 applied, R v Lomax (1998) 1 VR 551, R v Harkness [2001] VSCA 87, R v Coukoulis [2003] VSCA 22 distinguished - Criminal Procedure Act 2009 ss 280-2.

1 In September 2018, Anthony Grima lived in a converted shipping container located in a tip in Sunshine North. It was his home and contained all of his possessions.

2 Grima was at his house on 30 September 2018 with an acquaintance, Belinda Showler. At about 7:45 pm, the appellant and a second male, Christopher Binder, forced entry into the house, stole property (including money and tools), and destroyed the house and its contents by fire.

3 On 22 May 2019, the appellant pleaded guilty in the County Court to home invasion (charge 1),[1] theft (charge 2)[2] and arson (charge 3).[3]

4 Following a plea, on 9 July 2019 the judge sentenced the appellant to be imprisoned for six years, with a non-parole period of four years, according to the following table:

5 The appellant sought leave to appeal on a single ground - that the sentence on charge 3 (arson) is manifestly excessive. On 7 May 2020, Priest JA granted the appellant leave to appeal.

6 It is first necessary to set out the circumstances of the appellant's offending in more detail.

7 The context for the offending was the belief by the appellant and his wider family that the appellant's niece, who was a regular drug user, was obtaining drugs from Grima in return for sexual favours. At the time, Grima was 46 years old and the appellant's niece was aged 23 years. The appellant's offending was motivated by a misguided attempt to prevent Grima from continuing to supply drugs to his niece or to punish him for having done so.

8 In these circumstances, the appellant and Binder approached Grima's house. Grima saw them approaching through the front gate on his CCTV monitor. When he slightly opened the front door, he saw the appellant and Binder. Binder was holding a knife in his right hand. Grima recognised the appellant, who he had previously met through mutual friends. Grima tried to shut the door, but was unable to do so before Binder barged through it. During this time, the appellant and Binder were acting aggressively towards Grima and yelling at him 'we are going to hurt you'. The appellant picked up a knife from Grima's bench and started waving it about.

9 The appellant then told Grima to sit down on the couch next to Showler. The appellant then asked Showler: 'what the fuck are you doing with this creep?' Showler responded that she had chosen to be there.

10 While seated on the couch, Grima noticed that Binder was going through his belongings and appeared to be putting things into his pockets. Binder demanded that Grima get his wallet. Grima responded that he did not have a wallet and that his money was in a cigarette packet on the fridge. Binder told Grima to get the money. Grima went to the fridge, picked up the empty cigarette packet containing $40 and handed it to the appellant. At this time, the appellant said 'you're full of shit, where is the rest of the cash?' Grima responded 'that's it'. The appellant started waving the knife around and, in the course of doing this, the knife was thrown upwards and became stuck in the ceiling. The appellant then took a few steps back from Grima, who saw an opportunity and ran out of the house leaving Showler behind. The appellant followed Grima out, yelling at him 'you can't hide, you're going to have to come back' or words to that effect. The appellant returned to the house approximately three or four minutes later. Showler then asked the appellant if she could ring her boyfriend to come and pick her up. The appellant agreed. During this phone call, the appellant yelled out 'look mate, she's OK, but you need to come get her now'.

11 All of this happened over the space of less than 10 minutes. At 7:52 pm Grima called triple zero and requested police assistance. In the meantime, back at the house, Binder had taken Grima's tool case - containing his hammer drill - and put a grinder, a drill, batteries and an extension lead, Grima's phone, some cans of drink and the $40 cash into it. Binder then asked Showler to pick up an under-car trolley belonging to Grima and carry it to a waiting car outside. He and Showler then went outside and placed the stolen items into the open boot of the waiting car.

12 As Binder and Showler were leaving the house, the appellant asked Binder 'where's the lighter?' Binder threw him a lighter.

13 Showler then saw Binder get into the driver's seat of the car and, soon after, the appellant joining him in the car. The two men then drove off, leaving Showler. As Showler was walking away, she heard explosions. She turned around and saw flames which appeared to be coming from Grima's house; as was the fact. The appellant had used the lighter to ignite available materials in the house. The house and its contents were destroyed.

14 On arrest, the appellant gave a 'no comment' interview. However, when he was charged, he entered an early guilty plea.

15 In his sentencing remarks the judge noted that the appellant completed an apprenticeship as a motor mechanic after he left school. It was during this period that the appellant began using drugs and drinking to excess. Various references described the appellant as a hard-working and devoted family man, and the judge accepted that he had been a good worker. The judge also accepted that the appellant was remorseful; had good family support and employment prospects; and 'reasonably good' prospects of rehabilitation.

16 The judge noted that the appellant had prior convictions from New South Wales, having been first convicted in 1999, aged 23 years, on charges of breaking and entering, theft, obtaining money by deception and receiving (for which the appellant was sentenced to periodic detention). In 2000, the appellant was again convicted of breaking and entering; and, in 2002, he was convicted of drug offences (related to bringing drugs into detention). Those prior convictions occurred in a context where the appellant and his former partner were both abusing illicit drugs. The appellant had not, however, re-offended for 16 years leading up to the present offending, which was to his credit. At the time of the current offending, the judge noted, the appellant had managed to rid himself of drug use but had continued to have a problem with alcohol.

17 As to the appellant's mental state, the judge noted a psychological report from Dr Mathew Barth and a report from a forensic counsellor, who saw the appellant over five sessions for anger management counselling, Geoffrey Burrows. The judge concluded that, although Dr Barth said that the appellant displayed some features of an anti-social personality disorder, Dr Barth had evaluated the appellant's mental status as 'normal' but requiring ongoing counselling for persistent issues with alcohol abuse.

18 As to the offending, the judge noted that the appellant had been concerned about his niece's ongoing use of drugs. This concern was shared by his family. The appellant believed that Grima was supplying drugs to his niece - a much younger person - in return for sexual favours. That was what motivated the appellant in a misguided way to offend. The appellant's sister, the mother of his niece, described the appellant's actions as a desperate act to try to help her daughter which got out of hand.

19 Notwithstanding the context in which the offending occurred, the judge described the appellant's offending as 'clearly serious', in the following terms:

This is clearly serious offending. You may have thought you had a duty to take direct action in a vigilante fashion upon a person that you perceived to be a drug dealer. In that sense you were misguided. It explains to some extent why you acted as you did but it in no way excuses it. Society would be lawless if it tolerated this kind of behaviour. The community simply will not tolerate people such as you invading another person's home in the company of others, using weapons to scare the occupants into complying with their demands, then stealing some of their property and then burning the house and contents before leaving.[4]

Your offending was serious. You had no right to enter the complainant's home as you did in company and to destroy it and its entire contents by fire. If you had concerns about the complainant you should have called the police. The sentence I impose must send a strong message to those who would seek to offend as you have that should they do so they can expect stern punishment. The sentence imposed must also appropriately denounce your offending.[5]

21 Finally, the judge noted that he was required to impose a sentence of immediate imprisonment on the charge of home invasion. The judge rejected a submission by the appellant's counsel that he should impose a term of imprisonment up to 12 months in combination with a Community Corrections Order.[6]

22 In the appellant's written case, counsel relied on the appellant's early plea of guilty, which had both utilitarian benefits and demonstrated the appellant's remorse; his limited criminal history and lack of any recent criminal history; and his 'reasonably good' prospects of rehabilitation (including his good work history and family support).

23 Acknowledging that sentences for arson 'vary widely', counsel for the appellant submitted that '[c]ross-checked against aggregate sentencing statistics for the offence of arson, the sentence on charge 3 was an exceptionally long one'. Sentences imposed in other cases involving extensive damage to, or destruction of, a residence,[7] indicate that the sentence on charge 3 is 'too severe'. Cases involving sentences of comparable length to that imposed on the appellant, so counsel submitted, were all far more serious examples of the offence of arson - and involved more serious features of aggravation.[8] We will refer to the cases relied on by the appellant in our analysis of the rival contentions.

24 Counsel for the respondent submitted in writing that the arson had a 'devastating effect' on Grima, who lost his home and belongings. Insofar as the appellant 'heavily relies' on sentencing statistics and comparable sentencing cases to demonstrate that the sentence imposed on the charge of arson is manifestly excessive, counsel for the respondent submitted that a comparison of figures between a selective sample of cases cannot assist this Court 'to accurately determine the range of sentencing options open to a sentencing judge when considering a charge of arson'. When all the relevant factors are considered, it cannot be said that the learned sentencing judge imposed a sentence on the charge of arson that was wholly outside the range of sentencing options open.

25 A finding of manifest excess requires the Court to determine that the sentences were wholly outside the range of sentences reasonably available for the relevant offending.[9] Such a finding does not depend upon identification of specific error. As the High Court stated in Dinsdale v The Queen:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. [10]

26 In contending that the sentence for arson was manifestly excessive, counsel for the appellant referred to Beevers v The Queen - a case in which the appellant had been convicted after a trial - where the Court made the observation that 'sentences of imprisonment of two, three or four years' imprisonment for arson perpetrated against houses (depending, of course, upon the individual circumstances of each case) seem to accord with current sentencing practices'.[11] In written submissions, the appellant's counsel relied on the following cases as representing relevant current sentencing practices against which to judge the sentence imposed in this case.

27 First, the appellant relies on cases where the sentences imposed were less than that given to the appellant, or confirmed on appeal, involving damage to more valuable houses or property than in this case, and which the appellant contends involved more serious aggravating features than here.

28 The first case relied upon was Beevers,[12] where the offending involved destruction of a historic homestead which had been purchased for $1,285,000. The homestead was valued at $650,000 for insurance purposes. The insurance policy also covered $200,000 for chattels and a car valued at $41,000. The case involved significant prior planning of the arson, in connection with an insurance fraud, and deception of police investigators. The trial and sentencing judge described the offender's role as a 'knowing and able assistant, who actively and enthusiastically participated in the arson and fraudulent insurance claims and expected to benefit personally.'[13] The offender pleaded not guilty. An aggregate sentence of imprisonment for both the arson and attempting to obtain property by deception of four years and four months was confirmed. In the course of their reasons, Priest and Santamaria JJA made the above-quoted statement.

29 In Luciano v The Queen,[14] the offender destroyed a house owned by the parents of his estranged wife in the context of ongoing threats against her. The house required demolition and the insurer paid out $929,696. The offender had attended the house with the intent to commit arson, being equipped with petrol purchased for that purpose. A sentence of four years and two months' imprisonment on a charge of arson was confirmed on appeal.

30 In Cotter v The Queen,[15] a four year sentence for arson was upheld on appeal. The offender pleaded not guilty. The case involved destruction of property owned by the Ministry of Housing in the context of grievance-driven violence towards the offender's partner and threats to 'trash' the house.

31 Second, the appellant relies upon cases involving equivalent, or slightly greater, sentences for offending which he contends was far more serious than that in this case, and involved greater aggravating features.

32 In Davies v The Queen,[16] the offender pleaded not guilty to five arson charges. He was found guilty of all five charges. The appellant drew particular attention to charges 4 and 5. Charge 4 involved destruction of a bakery business with risk to adjacent properties and financial loss in excess of $400,000. Upon appeal, the offender was resentenced to six years. Charge 5 involved destruction of a child care centre located in a suburban street and caused significant loss and substantial damage. The offender was resentenced to seven years. The offender demonstrated no remorse, his moral culpability for the offending was found to be high, there was a very high likelihood of re-offending, and the offender had a previous conviction for arson.

33 In McPadden v The Queen,[17] the applicant procured his co-offender to commit arson of commercial premises for the purposes of insurance fraud, of which the applicant was to be the primary beneficiary. The premises were located in a two storey building among shops and residential units. The lives of eight residents, who were sleeping at the time, were put at risk - this aspect of the offending was the subject of a separate charge for reckless conduct endangering serious injury. The applicant pleaded not guilty and showed no remorse, but had no prior convictions. The sentence of five years on the arson charge was upheld on appeal. The Court commented, however, that the five year sentence was 'lenient' in the circumstances of the case.[18]

34 BBA v The Queen[19] involved an arson of a house in the context of a rape of the offender's estranged wife. While living under the same roof in separate bedrooms, the offender rendered the estranged wife unconscious by administration of sleeping tablets on three occasions and raped her in her bedroom. On the third occasion, he left her in the bed while he doused the bedroom with petrol and set fire to it with the intention of endangering the victim's life. The victim escaped with significant burns and other injuries, which was the subject of a charge of recklessly causing serious injury. The offender pleaded guilty, had no prior convictions and had reasonable prospects of rehabilitation. The sentence of five years' imprisonment on the arson charge, which was the base sentence, was upheld on appeal. The Court noted that this sentence 'might well be regarded as moderate'.[20]

35 Another relevant case is the recent decision of this Court in Maddocks v The Queen.[21] The case concerned the arson of a large shed on a property about 100 metres from a residential premises. The offender had a sense of grievance against the property owner arising from a perceived wrong done by the property owner to the offender's sister some five years before in connection with a horse agistment arrangement. The offender and an accomplice poured petrol in and around the shed and destroyed it and its contents. The shed and the contents were valued at approximately $80,000_._ The offender brazenly boasted about his actions to family and friends. He was sentenced to six years' imprisonment on a single charge of arson. Any similarity between Maddocks and this case ends there.

36 Maddocks had an extremely deprived background, bringing Bugmy principles into play.[22] This called for some reduction of moral culpability. On the other hand, Maddocks had 138 prior convictions for a large range of offences and two prior convictions for arson while he was a teenager. At the time of the offending he was on a Community Correction Order. The arson was premeditated, community protection and specific deterrence loomed large and Maddocks had only 'guarded' prospects of rehabilitation at best - and no prospect of rehabilitation if he returned to the drug use which had bedevilled his life.

37 The Court stated that, when compared with other cases involving the offence of arson, the six year sentence 'was undoubtedly a high one'[23] After noting that current sentencing practices are only one of the matters which a court must have regard to in sentencing an offender,[24] the Court said that while the case lacked some of the aggravating features found in other cases '...such as the burning down of a home with a person or persons inside... and [was] not one where the property lost ran into the hundreds of thousands or millions of dollars',[25] the offending had its own particular aggravating features. The Court concluded that the offending was 'a serious example of a serious offence'[26] and that, although the sentence was 'towards the upper end of the appropriate range'[27] there was no reasonable basis to contend that it was wholly outside that range.[28]

38 The appellant contends that this review of relatively comparable cases demonstrates that the sentence imposed on him is irreconcilable with current sentencing practices to such an extent that, while current sentencing practices are only one factor in the sentencing synthesis, it is clear that a sentence of five years for the arson in this case was wholly outside the range of sentences reasonably available.

39 Even if it is accepted that, on the basis of current sentencing practices as revealed by these cases, the sentence imposed in this case for arson was appreciably more lengthy than most of the sentences imposed in other relatively recent arson cases, that is not the end of the matter. As the High Court has emphasised, each case must depend upon its own facts and sentences in comparable cases are not precedents which must be applied unless capable of being distinguished.

40 As Gageler and Gordon JJ made clear in Dalgliesh,[29] current sentencing practices do not set boundaries on what a court may reasonably impose as a sentence.[30] We must apply these principles in considering whether the sentence imposed in this case was wholly outside the range of sentences reasonably available for this offending. But, we note also that the High Court said in Kilic v The Queen[31] that the examination of comparable cases may provide a relevant 'yardstick' by which Victorian courts can attempt to achieve consistency in sentencing, by obtaining 'a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle'.[32] Moreover, consideration of relatively comparable cases may assist the Court in determining where the case at issue stands 'on the spectrum of seriousness'.[33] Making due allowance for the differences between the comparable cases and the offending at issue, and the circumstances of the offenders, we consider that the cases relied upon by the applicant are of assistance in our consideration of where this case lies on that spectrum.[34]

41 In all the circumstances, we consider that a significant disconformity with current sentencing practices has been established in this case. When considered together with the range of mitigating factors that the appellant can call in aid, we conclude that the arson sentence is manifestly excessive in the sense discussed.

42 In reaching this conclusion, it is important to note that the judge accepted, and the Crown accepted on the hearing of this appeal, that the arson in this case was not premeditated in the sense that it was the subject of planning and preparation by the obtaining of accelerants and the like. This is in contrast to the clearly pre-planned home invasion. It is also in stark contrast to the other arson cases referred to above. The judge accepted the submission of the appellant's counsel on the plea, that the arson was 'completely unplanned', and characterised the arson as an 'add-on' to the home invasion offending.

43 Further, this case involved no fraud or intent to benefit financially from the arson and, unlike in McPadden[35] and BBA,[36] the appellant knew there was no one inside the container when he burnt it - and thus there was no risk of injury or death to any person.

44 Notwithstanding these matters, we agree with the judge that this was very serious offending. As the judge remarked in argument on the plea, even if Grima's home was a converted shipping container, 'it was his home', and in his sentencing reasons, the judge noted that he had taken into account Grima's victim impact statement, which expressed that he had 'lost everything he possessed [and his] financial future is uncertain'.[37] Moreover, we agree with the sentencing judge that this was serious offending in a misguided vigilante context, raising questions of general and specific deterrence, and denunciation.[38]

45 Finally, it is also important to note that the sentencing judge did not have the advantage of the detailed argument that this Court has had referring to the sentencing dispositions in other arson cases. In our view, the sentencing judge was not given the assistance to which he was entitled. Nevertheless, the argument on appeal has persuaded us that the manifest excess ground should succeed.

46 The appeal will be allowed and the appellant will be resentenced to three years and six months' imprisonment on the arson charge.

47 The question then arises as to whether the sentencing discretion is also re-opened in respect of the other charges to which the appellant pleaded guilty - particularly the home invasion charge. In that regard, counsel for the appellant submitted that, in circumstances where leave to appeal has only been sought and obtained on the single sentence imposed for arson, and in the absence of any appeal by the Director of Public Prosecutions challenging the home invasion sentence as manifestly inadequate, this Court cannot interfere with the home invasion sentence; including the cumulation ordered in respect of that sentence. Thus, the appellant contends that the Court is restricted to resentencing in respect of the arson charge and any cumulation attending to it - which is not relevant here as the arson sentence is the base sentence - and adjusting the non-parole period.

48 The appellant contends that this result follows from the provisions of ss 280‑2 of the Criminal Procedure Act 2009, as relevantly interpreted by this Court in Ludeman v The Queen,[39] and, following amendments to s 280 consequent on Ludeman, in Hawke v The Queen.[40] In Hawke, this Court (Maxwell P and Beach JA) considered a case like the present, where leave to appeal was granted by a single judge in respect of one sentence in a multi-sentence case, and relevantly stated:[41]

In Ludeman, this Court determined that the word 'sentence' in ss 280 and 281 of the Criminal Procedure Act was intended to refer to sentences for individual offences and not to include the 'total effective sentence' in a multi-sentence case.[42] Following this Court's decision in Ludeman, s 280 of the Criminal Procedure Act was amended so as to permit the Court of Appeal to refuse an application for leave if there was no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed. A definition of 'total effective sentence' was inserted in s 3 of the Act as follows:

Total effective sentence means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion.

No corresponding amendment was made to the Court's powers under ss 281 and 282 in relation to the determination of an appeal. Once leave has been granted, therefore, the Court must allow an appeal if it considers that an individual sentence is erroneous, even if the total effective sentence will be unaffected by the correction of that sentence.

...

The effect of our conclusion that the sentence imposed on charge 2 was manifestly excessive is that there is an error in that sentence and that a different sentence should be imposed. In such circumstances, ss 281 and 282 of the Criminal Procedure Act require this Court to allow the appeal, set aside the sentence imposed on charge 2 and (unless we were to remit the matter to the County Court) now impose the sentence which we consider appropriate.

The setting aside of the sentence and order for cumulation on charge 2 then raises the question of what other sentences or orders this Court might have power to alter. Questions of this kind arise from time to time and the answer in each case depends on the nature and extent of the error in the sentence(s) under appeal.[43] The answer in the present case is provided by Ludeman. The Court there held that, where a sentence for an individual offence is erroneous, ss 281 and 282 of the Criminal Procedure Act permit this Court to alter not only that sentence but also any non-parole period which has been fixed and any orders for cumulation attached to that sentence.[44]

49 The respondent contends that, notwithstanding the decisions in Ludeman and Hawke, the Court has the power to resentence with respect to other non-impugned sentences to ensure a just and appropriate total effective sentence that reflects the total criminality involved. The respondent relies on three cases to support that proposition: R v Lomax,[45] R v Harkness,[46] and R v Coukoulis.[47] We do not accept that these cases stand for the proposition advanced by the respondent. First, each of the cases pre-dates the decision in Ludeman and concerned earlier legislation. Second, each of the three cases was considered in Ludeman, where it was explained why the whole of the sentencing disposition was reopened in those cases;[48] and thus why they were distinguishable from Ludeman and, we would add, from this case. Relevantly, this was because the grant of leave in each of those cases was expressly or impliedly general and not limited to a single sentence, as in Hawke and this case. In Lomax, the grant of leave was general and not limited to one or more individual sentences.[49] In Ludeman, Ashley and Redlich JJA considered that the Court in Harkness should be understood as having granted leave in respect of all the sentences represented by the orders appealed from.[50] In Coukoulis, a general grant of leave was made.[51]

50 It follows that the appellant's submissions must be accepted, and the Court must allow the appeal and adjust only the arson sentence and, as that sentence is and will remain the base sentence, the non-parole period. Although that result is mandated by the provisions of ss 281 and 282 of the Criminal Procedure Act 2009, it is an unfortunate one. The home invasion in this case was clearly very serious offending in the context of an offence carrying a 25 year maximum. Had it been open for us to do so, we would have imposed a much higher sentence than the two year sentence imposed by the judge.

51 Before concluding, we note that it was open to the judge who granted leave to appeal on the arson sentence, as to manifest excess, to have refused the application for leave to appeal on the basis that 'there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed'.[52] It can be inferred that the judge either declined to refuse leave on this basis, or was not asked to do so.

52 In the result, the appellant will be resentenced to a total effective sentence of four years and six months' imprisonment with a non-parole period of three years and three months. Pursuant to s 6AAA of the Sentencing Act 1991, we state that if the appellant had not pleaded guilty to all charges we would have imposed a total effective sentence of six years and six months' imprisonment with a non-parole period of four years and six months.

53 A table summarising the resentencing appears below:

Section 6AAA Statement

6 years, 6 months' imprisonment with 4 years, 6 months' non-parole

[1] Crimes Act 1958 s 77A. The maximum sentence is 25 years' imprisonment.

[2] Crimes Act 1958 s 74(1). The maximum sentence is 10 years' imprisonment.

[3] Crimes Act 1958 ss 197(1), (6). The maximum sentence is 15 years' imprisonment.

[4] DPP v Salmi [2019] VCC 1026, [10] (emphasis added) ('Reasons')

[6] See Sentencing Act 1991 s 5(2H).

[7] Counsel referred to Beevers v The Queen [2016] VSCA 271; Luciano v The Queen [2015] VSCA 173; Dosen v The Queen [2012] VSCA 307; and Cotter v The Queen [2011] VSCA 240. Other cases referred to related to plant and equipment, including Anderson v The Queen [2019] VSCA 42; Wilson v The Queen [2018] VSCA 219; and Hach v The Queen [2018] VSCA 196.

[8] Counsel referred to Davies v The Queen [2019] VSCA 66; McPadden v The Queen [2018] VSCA 57; and BBA v The Queen [2010] VSCA 174.

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

[10] [2000] HCA 54; (2000) 202 CLR 321, 325-6 [6] (Gleeson CJ and Hayne J).

[11] Beevers v The Queen [2016] VSCA 271, [41] (emphasis added) (citations omitted) ('Beevers').

[12] [2016] VSCA 271.

[13] Ibid [22]. See also, ibid [43].

[14] [2015] VSCA 173.

[15] [2011] VSCA 240.

[16] [2019] VSCA 66.

[17] [2018] VSCA 57 ('McPadden').

[18] Ibid [76] (Priest and Hargrave JJA and Kidd AJA).

[19] [2010] VSCA 174 ('BBA').

[20] Ibid [26] (Maxwell P and Weinberg JA).

[21] [2020] VSCA 47 ('Maddocks').

[22] See Bugmy v The Queen (2013) 249 CLR 571.

[23] Maddocks [2020] VSCA 47, [45] (Beach and Weinberg JJA).

[24] See Sentencing Act 1991 s 5(2).

[25] Maddocks [2020] VSCA 47, [45] (Beach and Weinberg JJA).

[29] DPP v Dalgliesh (a pseudonym) [2017] HCA 41; (2017) 262 CLR 428.

[31] [2016] HCA 48; (2016) 259 CLR 256.

[32] Ibid 267 [22] (Bell, Gageler, Nettle and Gordon JJ).

[34] Cf. DPP v Trueman [2017] VSCA 24, [42] (Weinberg, Whelan and Ferguson JJA); Carter (a pseudonym) v The Queen [2018] VSCA 88, [79] (Weinberg, Beach and Hargrave JJA).

[35] [2018] VSCA 57.

[36] [2010] VSCA 174.

[38] DPP v Whiteside [2000] VSCA 142; (2000) 1 VR 331, 339 [24] (Brooking JA); Hamid v The Queen [2019] VSCA 5, [48]-[49] (Whelan and Kyrou JJA).

[39] [2010] VSCA 333; (2010) 31 VR 606 ('Ludeman').

[40] [2019] VSCA 276 ('Hawke').

[41] Ibid [23]-[24], [33]-[34] (citations in original).

[42] Ludeman [2010] VSCA 333; (2010) 31 VR 606, 616 [62] (Ashley and Redlich JJA).

[43] See, eg, Smith v The Queen [2012] VSCA 5. Cf DHC v The Queen [2012] VSCA 52.

[44] Ludeman [2010] VSCA 333; (2010) 31 VR 606, 616 [63]-[64] (Ashley and Redlich JJA); DPP v Jones (a pseudonym) [2013] VSCA 330; (2013) 40 VR 267, 274-5 [18] (Redlich and Priest JJA).

[45] (1998) 1 VR 551 ('Lomax').

[46] [2001] VSCA 87 ('Harkness').

[47] [2003] VSCA 22 ('Coukoulis').

[48] Ludeman [2010] VSCA 333; (2010) 31 VR 606, 621-3 [88]-[99] (Ashley and Redlich JJA).

[49] Lomax (1998) 1 VR 551, 555, 568 (Ormiston JA); Ludeman [2010] VSCA 333; (2010) 31 VR 606, 622 [90] (Ashley and Redlich JJA).

[50] Ludeman [2010] VSCA 333; (2010) 31 VR 606, 622-3 [94].

[51] Ibid 623 [99] (Ashley and Redlich JJA).

[52] Criminal Procedure Act 2009 s 280.