Singh v The Queen [2021] VSCA 161

CRIMINAL LAW - Appeal - Sentence - Whether judge erred in not considering imposition of court secure treatment order - No error shown - Less restrictive means of treatment reasonably available - Appellant's condition, albeit severe, could be managed by treatment available in prison - Sentencing Act 1991 s 94B(1).

1 On 19 May 2020, the appellant pleaded guilty to one charge of dangerous driving causing death.[1] That charge carried a maximum penalty of 10 years' imprisonment.

2 On 26 May 2020, a judge of the County Court sentenced the appellant to a total effective term of 4 years' imprisonment, with a non-parole period of 2 years and 4 months.[2] The appellant sought leave to appeal on the following grounds:

1. The sentence ... was manifestly excessive in light of:

(a) the appellant's plea of guilty;

(b) the principles in R v Verdins (2007) 16 VR 268;

(c) the assessment of the appellant's culpability; and

(d) sentencing practices for the offence.

1. The sentencing discretion miscarried because the sentencing judge erred by not ordering a report that was required before a Court Secure Treatment Order could be made, in circumstances where a Court Secure Treatment Order was the appropriate sentencing disposition if a sentence involving a community correction order was not to be imposed.

3 Leave to appeal was granted by Priest JA on 3 December 2020. For the reasons that follow, the appeal will be allowed.

4 The offence took place on 12 January 2017 in Boronia Road, Watsonia. The appellant, an Indian citizen and Australian temporary resident, was 26 years old. He had been employed as a truck driver for a transport company since October 2016. He obtained a licence to drive heavy rigid vehicles earlier that year.

5 The appellant reported to work on the morning of 12 January 2017. He inspected, then drove an unladen 14-tonne Isuzu tray truck to a warehouse in Bayswater. He had driven that truck 13 times previously, starting on 6 December 2016.

6 At the warehouse, the truck was loaded with pallets of soap. The load was incorrectly distributed. There was excessive weight over the front axle, which overloaded and ultimately overheated the front tyres and impacted on the efficiency of the braking system. The effect on the brakes was exacerbated because, as a result of poor maintenance on the part of the transport company, the truck was not roadworthy. In particular, although the appellant did not know it, the 'slack adjusters' governing the availability of the truck's brakes were improperly adjusted, rendering the emergency brakes ineffective. The truck effectively only had front brakes and the front axle was under excessive weight from the load.

7 The fact that the truck's braking systems were compromised became apparent to the appellant some time after he left the warehouse, as the brakes began to deteriorate. The appellant drove west along Mountain Highway. He attempted to slow the vehicle as he approached the intersection with Stud Road, about 4 kilometres into his journey, by applying the exhaust brakes in an unusual rapid 'on and off' manner which caused the truck to 'stop and start' without coming to a complete stop.

8 The same thing happened at the intersection where Mountain Highway joins with Boronia Road about 2 kilometres later.

9 The appellant then crested a hill leading down to a third intersection about one kilometre away, between what had now become Boronia Road and Eastlink. As the truck descended, the traffic lights at the upcoming intersection were red. The appellant attempted to stop, unsuccessfully applying the exhaust, foot and park brakes. He sounded the truck's horn repeatedly. Unable to stop, and travelling at no less than 33 kilometres per hour, the truck collided with a stationary motorcycle at the intersection. The rider, Ms Darne De Leo, was instantly killed.

10 At the scene, the appellant said that he started trying to brake about a kilometre away but that the truck was not slowing down fast enough and he knew that the brakes were 'not right'. He was arrested and charged.

11 The appellant entered his guilty plea more than two years later. Part of the delay was attributable to issues arising as to his fitness to plead.

12 The plea was conducted on the basis that the appellant could and should have stopped driving as soon as he became aware that the brakes were not functioning properly, and should have done so before the descent towards Eastlink.

13 In the meantime, the appellant had suffered a precipitous decline in his mental health. He had experienced intense grief, guilt and remorse as a result of the collision. He attempted to take his life on eight occasions, and repeatedly self-harmed including by cutting words into his skin. He was often hospitalised, and was admitted to acute psychiatric inpatient units 24 times. He experienced flashbacks of the collision, and tried to keep himself from sleeping in an attempt to avoid nightmares. His long-term relationship broke down. He was diagnosed with post-traumatic stress disorder and major depression. He was treated with antipsychotic and antidepressant medications, and electroconvulsive therapy. The enormity of Ms De Leo's death weighed heavily on him and he tattooed much of his upper body with references to her and to the collision. In custody, the appellant was remanded in a psychiatric inpatient unit. He heard voices of a 'demon' telling him to harm and kill himself, until an increase in medication helped stop the voices. In prison, he isolated himself voluntarily.

14 A report was prepared for the sentencing judge by Dr Fiona Best, a consultant psychiatrist, while the appellant was receiving treatment in the inpatient psychiatric unit. The report diagnosed a 'major mental illness' consistent with a moderate 'major depressive episode', with 'melancholic features' including lowered mood, diminished interest or pleasure in activities, weight loss, insomnia, psychomotor retardation and feelings of guilt and thoughts of death. Dr Best also diagnosed post-traumatic stress disorder. She recommended continued supervised medication and appropriate psychological interventions including 'a talking therapy'.

15 After describing the circumstances of the offending, the judge set out, at some length, the contents of the victim impact statements tendered by friends and relatives of Ms De Leo. These statements described the immense impact of her death on those close to her. While taking account of that impact, the judge properly noted that he should guard against it 'swamping' other sentencing considerations.[3]

16 After describing the personal circumstances of the appellant, the judge turned to matters in mitigation. He took into account the guilty plea as something of 'real value'. While not especially early, the timing was at least partially referable to the appellant's mental health decline. The judge considered that the plea of guilty entitled the appellant to a 'sizeable discount' in sentence.[4]

17 The judge acknowledged that the appellant felt a genuine and unusually acute sense of remorse, reflected in his guilty plea and the psychological impact of his offending on him. The judge accepted that the appellant's mental health conditions engaged the second, fifth and sixth Verdins principles, and was also to be taken into account as a form of extra-curial punishment.[5]

18 The judge also took into account, in the appellant's favour, the increased burden of imprisonment during the COVID-19 pandemic and, to a 'very modest' degree, the uncertainty that would exist as to the timing of his deportation (which was something the appellant would welcome).[6]

19 Next, the judge evaluated the appellant's prospects of rehabilitation, assuming successful mental health treatment, as excellent. He considered the appellant to be at low risk of reoffending and that protection of the community and specific deterrence dropped away very significantly in the sentencing exercise.[7] On the other hand, he considered general deterrence to be 'of real importance'.[8]

20 The judge then turned to the gravity of the offending, and the appellant's moral culpability. He said that the absence of aggravating features often present in culpable driving cases did not detract from the serious features of the case:

[Y]ou well knew that you were driving a truck which had inadequate brakes. You had driven a number of kilometres along the Mountain Highway and were obviously seeking to tease out some braking capacity in that journey. You knew you were driving a sizeable truck with a 13 tonne load. You knew the brakes were not working effectively. Objectively viewed the consequences of any inability to stop would of course be dire.[9]

21 The judge characterised the offending as a mid-range example of the offence, stating:

This is certainly not a low level example of the offence. ... I believe it is not in the highest category but it is well removed from a low level example and falls somewhere in the middle of the range.[10]

22 Finally, the judge considered that neither a community correction order nor a court secure treatment order would be appropriate. He said that a community correction order would give inadequate weight to the sentencing principles of punishment, denunciation and general deterrence.[11]

23 A court secure treatment order would be inappropriate, the judge said, because the appellant's mental health issues were highly unlikely to meet the criteria for such an order.[12] He described those criteria as broadly consistent with the 'high bar' set for involuntary admissions or detention under the Mental Health Act 2014. The judge did not consider that the appellant's condition, although he was plainly impaired, approached that level. On that basis, he declined to order the psychiatric report that is a precondition to making such an order.

24 Further, the judge considered that there were 'less restrictive means' of obtaining treatment than in a secure mental health facility pursuant to a court secure treatment order. So much, it was said, was conceded by the appellant's submission in favour of a community correction order, a premise of which was the availability of appropriate treatment in a community setting. The judge concluded:

So there is clear recognition in [the appellant's submissions and medical reports] of a less restrictive means of obtaining treatment. ... I well recognise the increase in your burden presented by your mental health issues, I have made allowances for them, but they are being treated and you are being held presently in, at least relatively speaking, an appropriate setting, being the Erskine psychiatric unit at Ravenhall.[13]

First ground - was the sentence manifestly excessive?

25 The appellant submitted in his written case that the sentence was manifestly excessive because it inadequately reflected the matters in mitigation, in particular:

(a) the unusual, severe and punishing decline in the appellant's mental health as a result of the offending - a 'breakdown' involving multiple suicide attempts, incidents of self-harm and the appellant taking the extreme step of 'branding' himself with references to the victim and the offending - which engaged the second, fifth and sixth Verdins principles;

(b) the appellant's guilty plea;

(c) the appellant's assistance with the police investigation;

(d) the appellant's lack of relevant prior offending;

(e) the judge's acknowledgement that principles of specific deterrence and community protection had little to no application to the appellant; and

(f) factors that diminished the appellant's moral culpability, including:

_(i) his unsuccessful attempts to stop the truck, avoid the collision, and alert motorists in his path;

(ii) his inexperience, and lack of knowledge as to the danger posed by the load distribution;

(iii) that the actions of the appellant's employer, in failing to provide a roadworthy vehicle, both endangered the appellant and contributed to the accident; and

(iv) that the appellant became aware of the defectiveness of the brakes only after leaving the warehouse, as their operation deteriorated._

26 The appellant accepted that his offending had serious features - in particular, his awareness of the defectiveness of the brakes before the collision and his failure to then immediately stop the vehicle. Nonetheless, it was submitted that, once the appellant's unusual combination of circumstances was properly accounted for, the sentence imposed lay wholly outside the available range.

27 In oral argument, counsel for the appellant emphasised the dramatic extent of the mental health decline suffered by the appellant as a result of the death of Ms De Leo and his acceptance that he was responsible for her death. The fifth and sixth principles of Verdins were said to be engaged in a profound way. It was also submitted that the adverse mental health consequences the appellant suffered by virtue of the collision, which were exemplified by his tattooing of his upper body, were properly treated as extra-curial punishment in much the same way as physical injuries sustained in a collision might be in cases of this kind.

28 Counsel accepted that the offending constituted serious criminal misconduct and did not challenge the sentencing judge's characterisation of it as 'somewhere in the middle of the range'. He also properly accepted that general deterrence and denunciation were significant sentencing considerations. On the other hand, given the appellant's evident remorse, the case did not call for specific deterrence or protection of the community.

29 The appellant submitted that the second Verdins principle and facilitation of the appellant's rehabilitation were also relevant sentencing considerations. It was said that prison would provide limited opportunities for the appellant's psychological treatment and that, as a result, imprisonment was likely to be seriously detrimental to his rehabilitation, even if he was held in a psychiatric unit.

30 Finally, reference was made to cases described as 'relevant comparators'. It was submitted that community correction orders are sometimes appropriate in cases of dangerous driving causing death and that this was such a case.

31 The respondent contended that the sentence was within range, characterising the judge's reasons as careful, considered, and alive to the relevant matters in mitigation. According to the respondent, it was significant that the appellant's offending was a mid-range example of an offence for which the sentencing considerations of general deterrence and denunciation loom large. The appellant's moral culpability was said to be high, and undiminished by the absence of aggravating factors that may have further increased his culpability and merited a higher sentence.

32 The respondent submitted that, while the appellant's circumstances were unusual, the judge adequately accounted for them, without eclipsing the predominant sentencing considerations of general deterrence and denunciation.

33 The respondent submitted that the appellant's moral culpability was heightened by the fact that he had driven for 7 kilometres with noticeably deteriorating brakes and had multiple opportunities to stop before the crest of the hill leading down to the intersection where Ms De Leo was killed. It was said that the appellant's awareness of the danger made his actions more blameworthy. He had placed all road users in the vicinity at risk and the fact that he was driving a loaded truck made his conduct all the more dangerous.

34 Senior counsel for the respondent did not seek to challenge the sentencing judge's assessment of the seriousness of the offence, or the appellant's moral culpability, as 'mid-range'. It was submitted that, if it were not for the impact on the appellant's mental health, a higher sentence would have been appropriate, and the lateness of the plea and the appellant's belated acceptance of responsibility would have diminished his claims of remorse.

35 The ground of manifest excess requires an appellant to show that the sentence was wholly outside the range of sentencing options available; that is, that it was not reasonably open to the sentencing judge.[14]

36 In our view, the sentencing remarks show that the judge was keenly alive to the matters relevant to the instinctive synthesis he was required to undertake in order to determine a just sentence. Indeed, except for a matter raised in the second ground of appeal, no real issue was taken by either party with the content of his remarks. However, we are driven to the conclusion that the sentence imposed was not reasonably open. Our reasons are as follows.

37 First, the starting point in any case of dangerous driving causing death is that a person has lost their life as a result of the criminal conduct of the offender. Every such case is its own tragedy. The cases make it clear that general deterrence and denunciation are important sentencing considerations. It was not in doubt that this was so in the present case.

38 Secondly, however, while all cases of dangerous driving causing death are serious by nature, the degree of seriousness will inevitably vary according to the facts of each case. Here, it is accepted that the case fell somewhere in the middle of the range.

39 Thirdly, the maximum sentence is 10 years' imprisonment.

40 Fourthly, the appellant pleaded guilty and was entitled to recognition of the benefit to the community of avoiding the need for a trial, with the attendant burden on those called as witnesses and the loved ones of Ms De Leo. That is so notwithstanding that the plea was entered on the Friday before the Monday upon which the trial was due to commence.

41 Fifthly, this was not a case where specific deterrence, or protection of the community, had any role to play in sentencing.

42 Sixthly, and critically, the extent of the appellant's psychiatric response to the offence bespeaks remorse of the most profound kind. It also reflects psychiatric injury of a seriously debilitating character which demands recognition in two further ways:

(a) as recognised by the fifth principle in Verdins, the appellant's mental health conditions mean that a sentence of imprisonment will weigh more heavily upon him than it would on a person in normal health; and

(b) consistently with the sixth principle in Verdins, there is a serious risk that imprisonment will have a significant adverse effect on the appellant's mental health.

43 Taking each of these considerations together, in our view, the extreme psychiatric response which the offending has produced in the appellant, manifested most vividly (but not only) in the tattooing of his body with references to Ms De Leo and the collision, demands a significant moderation in the sentence that might otherwise have been imposed.

44 In all these circumstances, with great respect to the sentencing judge, we do not consider that a sentence of four years' imprisonment was reasonably open. For mid-range offending carrying a 10-year maximum penalty, and having regard especially to the guilty plea, deep-seated remorse and the Verdins considerations, the sentence imposed was outside the range of available sentences.

45 We have taken into account, in this analysis, the appellant's claim that a proper sentence needed to take full account of how his rehabilitation could be facilitated.[15] However, it should be observed that, when s 5(1)(c) of the Sentencing Act 1991 refers to this consideration, it is addressing the offender's rehabilitation to the status of a law-abiding citizen, not the present appellant's restoration to mental health. The latter consideration is relevant, as we have said, by virtue of the sixth Verdins principle. (It may also arise as an aspect of the second principle, which recognises that the kind of sentencing disposition chosen may be influenced by the offender's mental state.)

46 Both at the plea hearing and at the hearing of the appeal, the parties also accepted that the psychiatric condition which the appellant developed after the offence constituted a form of additional punishment which was to be taken into account as a mitigating factor separately and distinctly from the Verdins considerations mentioned above. The sentencing judge, understandably, acted on this basis.

47 At the hearing of the appeal, the Court raised the question whether a psychiatric condition had previously been accepted as constituting additional punishment in mitigation of sentence, and the parties were given the opportunity to file written submissions. In the respondent's submissions, it adopted a position different to that the prosecutor had advanced at the plea hearing, namely that there was no scope for treating a mental disorder as past or additional punishment, that being something not contemplated by Verdins. While the Crown is not normally permitted to resile from the basis upon which it put argument at a plea hearing, we have found that the first ground of appeal is made out in any event, and it now falls to this Court to resentence the appellant. In our view, we should do so based on the correct legal position now that the point has been argued. We therefore turn to that issue.

48 It is well-established that, if an offender suffers a physical injury in the course of the offence, that injury may constitute a form of punishment for the offending which mitigates the sentence to be imposed by the court.[16] This is sometimes referred to as 'extra-curial punishment'. Examples include an armed robber who was shot by police,[17] and a driver injured in a collision which resulted from his culpable driving.[18] Brain injuries suffered in driving offences have been treated in this way.[19] It is also accepted that nothing turns in this context on the distinction between mental illness and physical injury.[20]

49 However, the cases show that the circumstances in which a mental illness will count as past or additional punishment are strictly limited. In RLP, the offender developed severe depression and a conversion disorder after committing incest and other sexual offences over many years. The conditions were not caused by the offending, but were precipitated by the discovery of his crimes and the prospect that he was likely to be imprisoned for most of the rest, or all, of his life.[21] The Court held that, in those circumstances, the conditions did not constitute some form of punishment entitling the offender to a reduced sentence.[22] On the other hand, the supervening conditions still enlivened the fifth Verdins principle because they were likely to make prison more onerous for the offender.[23] (However, in such a case, where the condition arises from the discovery of offending or the prospect of incarceration, the third and fourth Verdins principles might have diminished or no operation, meaning that general and specific deterrence may be moderated little, if at all.[24])

50 In RLP, it was the discovery of the offender's crimes and prospect of lengthy incarceration that brought about his mental illnesses. Khoja was a case more like the present. The offender caused the death of a friend through his culpable driving. As a result, he developed a stress disorder and associated depression. There was expert evidence that the disorder reflected his appreciation of the wrongfulness of his actions and was 'more than just sorrow' or the realisation that he would be imprisoned. The sentencing judge characterised the response as a 'combination of shame and fear'.

51 On appeal, this Court declined to distinguish these facts from those in RLP. It found that the supervening disorder was irrelevant to general and specific deterrence (in other words, Verdins principles three and four were not attracted), and that an extreme psychological response was neither unusual nor surprising given the sheer horror of the consequences of culpable driving.[25] The Court also rejected the argument that the supervening condition constituted past or additional punishment. After referring to RLP and counsel's submission that, in contrast, the offender's 'mental infirmity was to be seen as having resulted, at least in part, from the commission of the offence itself', the Court said:

We are not persuaded by that submission. Reactive mental illness of the kind in issue here is hardly ever likely to qualify as an injury of the relevant kind. There is no real difference between this case and RLP. The trigger for Mr Khoja's illness - as it was for the offender in RLP - was his own reaction to the enormity of his crime, namely, a combination of shame, guilt, embarrassment and remorse.[26]

52 Despite this passage, there is some difficulty in equating the circumstances in RLP and Khoja. The offender in RLP does not appear to have exhibited shame, guilt or embarrassment (or remorse beyond his guilty plea). But Khoja establishes the broader proposition which it extracts from RLP, namely that, while a mental illness caused by the offending is capable of constituting past or additional punishment for sentencing purposes,[27] where such an illness is caused by the offender's reaction to the consequences of the offending, that will not be the case.[28]

53 The appellant submitted that his condition was not a reactive mental illness of the kind considered in Khoja. It is true that the appellant's condition is more severe than that in Khoja. It is also true that his psychological response has been unusual; it can rightly be called extreme. It is also true that there is no suggestion that the appellant's condition reflects a fear of punishment or imprisonment.

54 However, Khoja directs attention not to the severity or characteristics of an offender's psychological response, but to the cause. The distinction between a mental condition caused by the offending and one caused by the offender's reaction to the offending may be elusive, but Khoja requires that it be drawn. Where the cause of a mental illness or other condition, however severe, is the offender's reaction to the consequences of his or her offending, that illness or condition will not constitute past or additional punishment.

55 In our opinion, this case is of the kind described in Khoja. The appellant's psychiatric state, grave as it is, resulted from his own reaction to the consequences of his dangerous driving: in particular, Ms De Leo's death. Of course, that consequence was part of the offence itself and, in that sense, the appellant's offending has contributed to his current mental condition. But it was the appellant's reaction to the consequences of the offending - a particularly acute and debilitating combination of shame, guilt and remorse - which precipitated his condition. While having full force as evidence of remorse, and through the application of Verdins principles five and six, which are all powerful mitigating features given the extreme nature of the appellant's condition, Khoja requires the conclusion that his condition does not constitute past or additional punishment for sentencing purposes.

56 Before turning from ground 1, we would add that, in common with the sentencing judge, we have not found resort to sentences in other cases of dangerous driving causing death helpful in this case. The facts of the present case - both as to the offending and the offender - set it apart from the cases to which we were referred.

57 Notwithstanding our conclusion relating to past or additional punishment, for the reasons set out earlier, the appeal must be allowed.

Second ground - court secure treatment order

58 This conclusion makes it unnecessary to decide ground two. However, we will address it briefly.

59 The appellant submitted that the judge erred by not properly considering a court secure treatment order. Primarily, this was said to be because the judge misapplied the condition contained in s 94B(1)(c)(iv) of the Sentencing Act that there be 'no less restrictive means reasonably available to enable the person to receive ... treatment'. As mentioned, the judge regarded the defence submission in favour of a community correction order as a concession that community treatment was a reasonably available 'less restrictive means' of treatment. This was said to be an error because, under a sentence of imprisonment, community treatment was no longer 'reasonably available'.

60 It was also said that the judge misapplied the criteria for the making of a court secure treatment order, by transposing criteria applicable to involuntary treatment under the Mental Health Act. It was submitted that, if the criteria for making an order contained in s 94B(1)(c)(ii) of the Sentencing Act were applied, the expert evidence as to the appellant's mental health would have provided an ample basis for ordering the required psychiatric assessment of the appellant's suitability for a court secure treatment order.

61 We would not uphold this ground. The evidence showed that the appellant's condition was appropriately managed by the use of prescription medicines, provided to him in prison, together with personal therapy. Even leaving aside the impossibility of community treatment under a community correction order, there was simply no basis for thinking that there were 'no less restrictive means' than a court secure treatment order reasonably available to enable him to receive treatment to prevent a serious deterioration in his health or serious harm to him or others, as the legislation requires.

62 The judge's suggestion that the appellant's submission in support of community treatment amounted to a concession that 'less restrictive means' were available for the purposes of s 94B(1)(c)(iv) was not easy to follow. Such treatment could not be described as 'reasonably available' if a custodial sentence were to be imposed. Nonetheless, on a fair reading of his remarks, it is apparent that the judge also considered the appellant's placement in a prison psychiatric unit would constitute 'means' that were 'less restrictive' than a court secure treatment order and 'reasonably available' to enable the appellant to obtain the necessary treatment.[29] In light of that conclusion, there was therefore no occasion to obtain a psychiatric assessment of the appellant's suitability for a court secure treatment order.

63 We would add that we do not interpret the judge as having misapplied the criteria under s 94B(1)(c) in any other respect. In particular, we do not read his statement that the criteria are 'broadly consistent' with the 'high bar' for involuntary treatment under the Mental Health Act as suggesting that the latter statute applies in the context of deciding whether to make a court secure treatment order.

64 We turn then to the question of resentencing. Consistent with the seriousness of the offence, we consider a term of imprisonment was inevitable in this case. It was very dangerous for the appellant to continue driving a fully-laden truck after he realised its brakes were failing, and to continue doing so for some distance rather than to stop. A community correction order, even with a term of imprisonment, would be insufficient to denounce and punish that conduct and to help deter other drivers from acting in the same way.[30]

65 However, in light of the powerful and unusual mitigating features to which we have referred, the appropriate term of imprisonment in this particular case is to be moderated for the reasons we have set out. We will impose a sentence of 3 years' imprisonment, with a non-parole period of 1 year and 9 months.

66 It is necessary to declare pursuant to s 6AAA of the Sentencing Act what sentence the Court would have imposed, but for the plea of guilty. That involves a highly artificial exercise, in circumstances where the plea of guilty was closely bound up with the essential facts upon which the sentence depended, including the appellant's very high level of remorse and the mental health conditions that have been brought about in conjunction with that remorse. However, doing the best we can, if the appellant had not pleaded guilty, the Court would have sentenced him to a total effective sentence of 4 years and 6 months' imprisonment and would have fixed a non-parole period of 3 years.

[1] Crimes Act 1958 s 319(1).

[2] DPP v Singh [2020] VCC 719 ('Sentencing Remarks').

[5] Ibid [56], [57]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[6] Sentencing Remarks [54], [64]. It was not submitted, at the plea or in this Court, that there was any particular policy of the Adult Parole Board in cases of prospective deportation that would make prison more onerous for the appellant: cf Zhao v The Queen [2018] VSCA 267, [62]-[73] (McLeish, Niall and Weinberg JJA); Wan v The Queen [2019] VSCA 81, [32]-[34] (McLeish and T Forrest JJA).

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

[15] See [29] above.

[16] The requirement that the relevant injury arises in the course of the offence excludes any injury deliberately self-inflicted following the offence: see, eg, Quinn v The Queen [2018] NSWCCA 297, [261]-[269] (Hoeben CJ at CL, White JA and Fagan J agreeing at [296] and [297]); Christodoulou v The Queen [2008] NSWCCA 102, [41]-[42] (Grove J, Johnson J agreeing at [45]). As a result, on any view, the appellant's self-inflicted injuries, including the 'branding' and cutting of his body, do not fall to be considered as extra-curial punishment.

[17] Barci v The Queen (1994) 76 A Crim R 103, 110-11 (Southwell, Hampel and Hansen JJ).

[18] DPP v King [2008] VSCA 151; (2008) 187 A Crim R 219, 230 [35] (Redlich JA, Warren CJ agreeing at 222 [4]-[6], Forrest AJA agreeing at 230 [38]); [2008] VSCA 151.

[19] Ibid. See also, eg, Fuller (a pseudonym) v The Queen [2013] VSCA 186, [40] (Ashley JA, Hansen JA agreeing at [95]).

[20] RLP v The Queen [2009] VSCA 271; (2009) 213 A Crim R 461, 471 [21] (Neave and Redlich JJA and Hollingworth AJA) ('RLP'); [2009] VSCA 271; Khoja v The Queen (2013) 66 MVR 116, 123 [32] (Maxwell, Nettle and Priest JJA) ('Khoja'); [2014] VSCA 9. See also Yalim v The Queen [2000] VSCA 64; (2000) 31 MVR 377, 382 [21] (Hedigan AJA, Tadgell JA and Chernov JA agreeing at 382 [24] and [25]); [2000] VSCA 64; Jiang v The Queen [2019] VSCA 126, [34] (Priest and Kaye JJA); R v Dhanhoa [2000] NSWCCA 257, [34], [40]-[42] (Priestley JA, Foster JA agreeing at [48]); Ashley v Western Australia [2017] WASCA 131, [52]-[55] (Buss P and Beech JA, Mazza JA agreeing at [62]).

[21] See, similarly, Kearsley v The Queen [2017] NSWCCA 28; (2017) 265 A Crim R 233, 243 [57], 246 [76]-[77] (Harrison J, Macfarlan JA relevantly agreeing at 235 [1], Schmidt J agreeing at 250 [96]); [2017] NSWCCA 28. There, it was said that 'extra-curial punishment' cannot arise from what might be thought to be the 'ordinary or natural consequences of' conviction and sentence.

[22] RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 472 [23] (Neave and Redlich JJA and Hollingworth AJA).

[25] Khoja (2013) 66 MVR 116, 123 [29]-[30] (Maxwell, Nettle and Priest JJA); see also DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 417 [83] (Warren CJ, Redlich and Kaye JJA). See, similarly, R v Elkassir (2013) A Crim R 411, 424 [74] (RA Hulme J, Emmett JA relevantly agreeing at 413 [5], RS Hulme AJ agreeing at 425 [87]); [2013] NSWCCA 181 ('Elkassir'); Duncan v The Queen [2012] NSWCCA 78, [25] (Basten JA, Blanch J and Hall J agreeing at [46] and [47]).

[26] Khoja (2013) 66 MVR 116, 123 [34] (Maxwell, Nettle and Priest JJA).

[27] Acceptance of the possibility that a mental illness caused by the offending (as distinct from the offender's reaction to the consequences of offending) can constitute past or additional punishment means that we reject the respondent's argument, made in written submissions, that the principles in Verdins are exhaustive as to the ways that a mental illness can impact on sentencing. That appears also from Verdins itself: [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[28] The position in New South Wales is somewhat different: see, eg, Wright v The Queen [2013] NSWCCA 82; (2013) 63 MVR 250, 260 [61]-[62] (Price J, Macfarlan J agreeing at 252 [1], Hulme AJ agreeing at 264 [90]); [2013] NSWCCA 82; Elkassir (2013) A Crim R 411, 415-6 [23]-[25], 422 [62]-[64], 424 [74] (RA Hulme J, Emmett JA relevantly agreeing at 413 [5], RS Hulme AJ agreeing at 425 [87]); Hughes v The Queen [2008] NSWCCA 48; (2008) 185 A Crim R 155, 160 [21]-[25] (Grove J, McClellan CJ at CL agreeing at 156 [1], Simpson J agreeing at 163 [44]); [2008] NSWCCA 48; Koosmen v The Queen [2004] NSWCCA 359; (2004) 42 MVR 123, 126-7 [25]-[26], [32]-[34] (Smart AJ, Wood CJ at CL and Hislop J agreeing at 129 [55] and [56]); [2004] NSWCCA 359; Howcher v The Queen [2004] NSWCCA 179; (2004) 146 A Crim R 371, 375 [18] (Hulme J, Grove J agreeing at 372 [1]), 381 [57] (Smart AJ); [2004] NSWCCA 179; R v Clampitt-Wotton [2002] NSWCCA 383; (2002) 37 MVR 340, 344 [21], 345 [26] (Hidden J, Levine J agreeing at 240 [1], Howie J agreeing at 346 [30]); [2002] NSWCCA 383.

[29] See [24] above; Sentencing Remarks [89].

[30] In any event, we were told that the appellant's visa has been cancelled since the sentence was imposed, so that a community correction order is no longer open as a possible disposition.