1 After pleading guilty to one charge of criminal damage, one charge of aggravated burglary and one charge of making a threat to inflict serious injury, the applicant, Kristy Shortis,[1] was sentenced as follows:

2 The learned sentencing judge ordered that the sentence of imprisonment imposed on charge 3 should be served concurrently with the sentence imposed on charge 1. This amounted to a total effective sentence of three years and three months imprisonment. The judge ordered that the applicant serve a nonparole period of 15 months. The applicant now seeks leave to appeal against the individual sentences and the total effective sentence.

The circumstances of the offending and the offender

3 About two years before the offences occurred the applicant's daughter, C, then aged about three, told her mother that Mr Y, the uncle of the applicant's former partner, had sexually assaulted her and her younger brother. The applicant reported the matter to the police the next morning and they recorded an interview with the child.

4 Over the next two years the applicant contacted the police regularly to find out what was happening. About a month before she committed the offences she was informed that Mr Y would not be charged. Mr Y lived relatively close to the applicant's state provided accommodation. After her daughter told her about the assaults, the applicant was concerned that they would see Mr Y around the neighbourhood and asked the housing authority to move the family to different accommodation. The family was not provided with alternative housing. Before the applicant's offending occurred the applicant had also asked for help from the Child and Family Services section of the Department of Human Services because C was behaving in a sexually explicit way and the applicant believed this was because she had been sexually abused by Mr Y. As a consequence the daughter went to live with her father. The applicant also sought assistance from a Centre Against Sexual Assault (CASA) to help her with the psychological distress and anxiety she was suffering because she believed her daughter had been sexually abused. She was placed on a waiting list by CASA.

5 On the night of the offending the applicant discovered that Mr Y was moving to Queensland and became deeply upset because she believed that he would not be held to account for his offending. She had previously been prescribed Alprazolam as a tranquillizer and on the evening of the offences she drank about 6 cans of beer.

6 Between 1.30 and 2.00 am the applicant armed herself with a hammer and a 30 centimetre knife and walked to Mr Y's house. She stood outside and yelled that she was going to 'kill him' or 'get him' (charge 3 - threat to inflict serious injury). She then used the hammer to smash the front windows and crawled into the house (charge 1 - part of the criminal damage charge and charge 2 aggravated burglary). The victim heard her threats and the window being smashed and telephoned the police.

7 The applicant went into the kitchen and smashed the victim's phone and a dinner plate which was on the table (included as part of charge 1). She waved the hammer and knife in a threatening way and asked Mr Y why he had assaulted her children. She told Mr Y he was to blame for her daughter's sexualised behaviour and the fact that the child had to live with her father as a result of that behaviour. She then fell to the ground crying, handed the weapons to the victim and told him to put her out of her misery and kill her. She remained there until the police arrived in response to Mr Y's call.

8 In her 'full and frank' record of interview the applicant described the background to the offences.[2] She told the police that although she had initially wanted to kill the applicant for 'taking her daughter's innocence' once she was inside Mr Y's house she realised that she could not harm him. She said that she was aware that the police had been called while she was breaking in and that as she was going through the process of getting in 'reality was hitting' and she had waited for the police to come. She said that there had been previous opportunities to confront Mr Y but had not done so and her emotional distress had been building up over time. She acknowledged that she had 'done the wrong thing' by breaking into the victim's house and threatening him, but said she had been overwhelmed by emotion.

9 In his sentencing reasons the sentencing judge set out passages from a psychiatric report from Dr Cidoni dated 3 May 2013 and a report of forensic psychologist Ms Papageorgiou, which was prepared in 2009 for another matter. He also referred to a handwritten personal history which Ms Shortis had written at the suggestion of Mr Bruce Guest, a case worker at Child and Family Services, who gave evidence at the hearing.

10 His Honour acknowledged that Ms Shortis had come from an appallingly dysfunctional and violent background. Her mother was drug addicted, and was incapable of caring properly for her children. In her personal history, Ms Shortis related being left in the park by her mother for a whole day with her possessions and being exposed to violence by her mother's partners. She also said that she had witnessed a murder while she was a child.

11 As well as referring to Ms Shortis' 'very difficult background', Dr Cidoni said that she had made two suicide attempts and had been admitted to the adolescent unit at Monash Medical Centre when she was 14. She was then diagnosed with panic disorder and treated with various drugs. He said that Ms Shortis:

describes a long-standing history of anger, disassociation, impulsivity, mood instability, relationship instability, emptiness and unstable self-image, all recognised as features of borderline personality disorder.

He said that Ms Shortis experienced daily panic attacks and that following the loss of the custody of her children as a consequence of being charged with these offences she had 'depressed mood with tearfulness, insomnia, fluctuating appetite, reduced energy and reduced concentration'. Dr Cidoni reported that she had previously been treated with various anti-depressants and anxiety medications but that the prison health service had taken her off those medications by the time that he saw her.

12 Dr Cidoni said that Ms Shortis had described daily cannabis use from the age of 12, but had reduced her use in recent years. She had also used alcohol heavily for a period but in recent years was drinking three or four cans three times a week. He concluded that:

Ms Shortis has had an extremely traumatic background that has resulted in an array of mental health difficulties. She has suffered from borderline personality disorder. She also suffers from panic disorder. She has suffered from cannabis, alcohol and benzodiazepam abuse. In the context of loss of her children, she has suffered from a major depressive episode and the offending appears to be related to anger and impulsivity, which are part of the personality [disorder], but also a reaction to allegations of the sexual abuse of her children and, in particular, the police not pursuing the matter. The use of alcohol and alprazolam at the time are likely to have had a disinhibiting effect and an impairment on her judgment.[3]

13 Ms Papageorgiou also reported on Ms Shortis' chronic history of psychological disturbance as a result of her dysfunctional family environment. She said that:

Ms Shortis presents with a chronic history of psychological disturbance as a result of significant trauma and abuse she experienced in her family environment and subsequent lack of appropriate attachments. Ms Shortis also presents with chronic conditions relating to major depressive disorder, anxiety and associated symptoms of poor affect, regulation, distress tolerance, feelings of worthlessness and poor self image. Ms Shortis acknowledged a typical pattern when negative mood states appear to be exacerbated at times of increased stress. At such instances, she finds herself feeling overwhelmed and, in turn, lacking the appropriate internal coping resources to adequately deal with the stress or crisis at hand.[4]

14 During the plea hearing the prosecutor drew the judge's attention to the decisions of the Court of Appeal in DPP v El Hajje[5] and in Hogarth v The Queen[6] ('Hogarth'). In the former case the Court referred to a table of sentences imposed for aggravated burglary in the 20 then most recent cases in the County Court and said that those sentences did not adequately reflect the maximum sentence of 25 years applicable to the offence. In Hogarth the Court referred to the seriousness of confrontational aggravated burglary, and the fact that the maximum sentence for that offence was increased in 1997 from 20 to 25 years imprisonment. The Court observed that:

It cannot have been parliament's intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six, or at the most seven years imprisonment.

15 This submission was taken into account by his Honour as follows:

You heard the prosecutor, Mr Stougiannos, refer to some cases where the Court of Appeal that happens to be sitting in this very building right now, have made comments on offences such as those with which you have been charged. In the case of Hogarth v R (2012) VSCA 302, handed down on 18 December last year, I read from three paragraphs, they are actually speaking of the individual involved there and I will come back to that in a moment. They are not speaking of you; they are speaking of that individual, Mr Hogarth:

At the time of sentencing, AH was diagnosed as suffering from clinical depression. According to the forensic psychologist, AH had suffered depression for many years, with his drug problem only aggravating this underlying problem. AH had begun to use heroin at the age of 13. This habit continued for more than a decade. AH was also a long-term marijuana user.

...

Counsel for AH submitted that those with few choices make bad choices. Moreover, counsel submitted, repeated lengthy terms of imprisonment were unlikely to assist AH in overcoming any of these serious disabilities. Public money spent on imprisoning people like AH would be much better used, he contended ... if it were directed to attacking the cause of disadvantage.

...

Sadly, the profile and life history of AH is all too familiar in the criminal courts. The submissions made by counsel raise issues of fundamental importance concerning the social context of criminal behaviour and the inefficacy of imprisonment as a response. The orthodox approach to criminal responsibility, however, requires that a person like AH be viewed as morally as well as legally responsible for the choices he makes.

You are different to him; he had a lengthy criminal history and had been in prison on certainly more than one occasion for a large number of offences. But they were speaking of AH and not you. But I say this, these observations about AH are parallel in many ways to that of you and your life, Ms Shortis. His life as a young person was very troubled. Yours, to say the least, was extremely difficult and troubled.

...the Court of Appeal in another case similar to that of Hogarth, DPP v El Hajje, (2009) VSCA 160...said...

Senior counsel for the Director drew attention to what was said to be said by the Attorney General when, in April 1997, she introduced amending legislation, the effect of which was to increase the maximum penalty for aggravated burglary from 20 to 25 years imprisonment. The Attorney General said, 'The prevalence of burglary and home invasion style offences has caused great disquiet in the community. These crimes underline the sense of security that people feel in their homes and workplaces. The Government wishes to send a message to offenders that these crimes will not be tolerated. Under the bill, where a burglary is committed on premises when someone is inside, and the offender knows or is reckless about the presence of a person on the premises, the offender will be guilty of aggravated burglary. Aggravated burglary will carry a new maximum term of 25 years imprisonment. The high penalty recognises that burglary offences are particularly heinous where the safety and liberty of individuals is threatened.

...

Paragraph 35 in El Hajje, this statement reinforces that the fixing of such high maximums would itself convey to the community view that offending of this kind is extremely serious and expects the courts to impose sentences accordingly. The victim impact statement demonstrates just how frightening offending of this kind is to ordinary members of the community. It requires little imagination to appreciate the acute sense of vulnerability of the victim in that instance who woke to find that an intruder had been by her be[d] (sic) during the night. Those facts do not relate to you. There is no victim impact statement filed in this matter. I have no doubt, however, that [Mr Y] was frightened and disturbed by your activity.

In the case of Hogarth v R, the Court of Appeal, among other things, said this...

It cannot have been Parliament's intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six, or at the most, seven, years imprisonment. As the court said in Director of Public Prosecutions v CVD, 'The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice, but sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty'.

The Justices are talking there about that case, they are talking about six or seven years. You heard your counsel very vigorously say that that is most inappropriate in your instance.

16 His Honour referred to the very frightening nature of the offending, but went on to say that Verdins principles[7] applied to reduce the applicant's moral culpability and to moderate the emphasis on general deterrence. His Honour also accepted that Ms Shortis' incarceration would weigh heavily upon her because of her mental health problems and the fact that she was deprived of her children. He noted that Dr Cidoni's opinion was that imprisonment would have an adverse effect on her mental health. His Honour said that he took account of Ms Shortis' early plea of guilty and her guarded prospects for rehabilitation. He accepted that Ms Shortis' plea of guilty was an indication of her remorse, but noted that Ms Shortis had five prior convictions, three of which were for offences of violence.

1. The Learned Sentencing Judge erred:

PARTICULARS

• erroneously treated Hogarth as a 'benchmark';
• undertook a comparative analysis antithetical to the 'instinctive synthesis';
• did not sufficiently distinguish the present case;
• he did not in fact reduce the factor of moral culpability when sentencing.

2. The Learned Sentencing Judge erred by:

PARTICULARS

• omitting crucial circumstances in mitigation;
• omitting to properly classify the class of criminality;
• not distinguishing this offending from all other Aggravated Burglaries..

3. The sentence imposed is manifestly excessive in all the circumstances;

PARTICULARS

The Learned Sentencing Judge:

• Placed inordinate weight on the case of Hogarth without adequately distinguishing the most unusual circumstances of this case;
• Placed impermissible weight on the factors personal of the offender in Hogarth without distinguishing this case sufficiently;
• Placed too much weight on the maximum penalty and the new CSP;
• Gave insufficient weight to appropriate Verdins principles and did not adequately reflect them in the sentence;
• Acknowledged the Applicant's early plea of guilty, her full cooperation with the police, and her extensive admissions, but failed to give them sufficient weight and did not adequately reflect them in the sentence.

Imposed excessively high individual sentences, as well as an excessive maximum and minimum sentence without adequately considering the principles of cumulation/totality.

18 At the hearing of the application leave was sought to add two additional grounds of appeals, as follows:

1. The sentencing discretion ought to be re-exercised on the basis of fresh evidence of events which have occurred subsequent to sentence that are relevant to an appreciation of the true significance of the facts which were in existence at the time of the sentence.

• The burden of the knowledge of hardship to her children, Violet-Rose in particular, is greater on the Applicant than was apparent at the time of sentence;
• Incarceration has weighed more heavily on the Applicant, than it would on another person, due to fresh evidence relating to mental and physical health issues;
• The conditions from which Violet-Rose is suffering while in the care of DHS, together with the complete lack of any form of contact between the Applicant and two of her children, since sentence, is so significant as to meet the test of "exceptional circumstances" required for mercy to be exercised in accordance with family hardship.

1. A proportion of the sentence on the charge of criminal damage is double punishment.

• the broken windows were part of the aggravated burglary.

19 I will deal first with the application to add a fourth ground of appeal.

20 The requirements for the admission of fresh evidence were set out by Redlich JA in R v Duy Duc Nguyen[8] as follows.

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

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

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

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

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

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

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice [citations omitted].[9]

21 Proposed ground 4 seeks admission of new evidence about the psychological distress which Ms Shortis is suffering because of her separation from her children and about the hardship that the children will suffer because of her imprisonment. In my opinion the evidence which she claims should be taken into account does not satisfy the requirements for admission of new evidence.

22 It is clear that the judge took account of the effect on Ms Shortis of her separation from her children. His Honour referred to the passage in Dr Cidoni's report which indicated that Ms Shortis was the mother of six children and said that 'relative to your children being taken from you, you suffer a major depressive disorder'.[10] He also acknowledged that incarceration would weigh heavily on Ms Shortis because of her 'mental health problems and [her] deprivation of [her] beloved children'.[11]

23 In my opinion the evidence that Ms Shortis is particularly psychologically distressed because she has not seen two of her children since she was imprisoned, and because of her discovery that her youngest child has health problems, does not demonstrate the true significance of facts in existence at the time of the sentence. The circumstances are not comparable to the situation where a prisoner known to have some health problems at the time of sentencing subsequently develops a serious chronic illness or a terminal illness which cannot be properly treated in jail.[12] The fact that Ms Shortis has not seen her children as frequently as she had hoped during her incarceration does not amount to 'rare and exceptional circumstances' justifying an alteration of the original sentence. Unfortunately prisoners are dependent on those caring for their children to bring them for visits and this does not always occur.

24 Hardship to a prisoner's family will only be taken into account for sentencing purposes if the hardship is exceptional.[13] Contrary to the oral submission made by counsel for Ms Shortis, there is no 'residual discretion' to exercise mercy if that requirement is not satisfied.[14] Though one feels sympathy for both Ms Shortis and her children, the fact that she cannot care for the children herself, and has limited access to them while she is imprisoned, does not amount to exceptional hardship to the family. Sadly such separations are commonly experienced by prisoners who commit serious offences. Five of the children are being cared for by their fathers. The sixth child, Violet Rose, is in the care of DHS.

25 No evidence was presented to the Court about the nature of Violet Rose's care. An affidavit sworn by Ms Shortis deposes to the fact that she has been told that the Violet Rose is not walking, although she is now 18 months old, is underweight and may have a genetic disorder. No other evidence was before us as to the nature of Violet Rose's health problems and it is speculative to suggest that the problems would be alleviated if Ms Shortis were released and the child was returned to her mother.

26 Since the proposed ground 4 has no chance of success I would not grant leave to add that ground.

27 Because grounds 1 and 2 overlap I will consider them together.

28 Counsel for Ms Shortis submitted that the judge's sentencing remarks show that he wrongly regarded himself as bound by Hogarth and El Hajje to sentence the applicant on the basis that the aggravated burglary was a 'confrontational' aggravated burglary of the kind which occurred in Hogarth. The fact that the judge had done so was said to be reflected in the judge's statement that 'these observations about [Hogarth] are parallel in many ways to that of you and your life, in that each was a troubled life'.

29 Counsel also submitted that his Honour had incorrectly sentenced Ms Shortis as if she had acted as a vigilante, when she had in fact reported the offences to the police immediately and sought help from other organisations and it was only when she was unable to get help that she committed these offences. Counsel argued that although his Honour had acknowledged the relevance of Verdins' factors in his reasons, the sentence imposed showed that his Honour could not in fact have taken account of the extent to which Ms Shortis' moral culpability was reduced by her acute psychological distress and anxiety at the time of the offending.

30 Counsel for the Crown submitted that his Honour's detailed reference to the psychological reports and the fact that the total effective sentence was considerably lower than that imposed in cases such as Hogarth and El Hajje showed that his Honour had given considerable weight to Verdins' factors.

31 In Hogarth two men invaded the home of the victims, tied the female victim's ankles together with electrical tape, asked her for the location of her safe and stole items worth $25,000. The appellant remained in the car while the aggravated burglary was occurring, but the offending was initiated by him because he was angry that the victims son had not repaid a debt to him. The appellant drove his cooffenders to the victims' house and agreed that they would gain entry for the purpose of stealing, knowing that the victims were likely to be present.

32 In dismissing the appellant's appeal against sentence, the Court examined the adequacy of current sentencing practices for 'confrontational aggravated burglaries' where the home invasion occurred in the context of a dispute or grievance with the occupant. Their Honours said the following:[15]

We do not consider that current sentencing for confrontational aggravated burglary reflects the objective seriousness of this form of the offence. The clustering of sentences around a median of two years shows how far current sentencing has departed from the parameters set by the maximum penalty of 25 years.

It cannot have been Parliament's intention that, with a few isolated exceptions, sentencing for the full range of such offences should be bounded by an upper limit of six (or at most seven) years' imprisonment. As the Court said in Director of Public Prosecutions v CPD:[16]

The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty.[17]

While the maximum itself is reserved for 'the worst example of an offence likely to be encountered in practice',[18] it is to be expected that there would be a spread of cases across the statistical range. As Vincent J said in Mallinder:

[I]n circumstances where a maximum penalty is fixed by statute, and accordingly the relative seriousness with which proscribed behaviour may be viewed by the courts has been determined by the legislature, the sentence which is imposed in any given case must bear some relationship to the seriousness with which the class of offences is to be viewed generally, and to the relative seriousness of the actual conduct engaged in by the offender within the context of the kinds of behaviour encompassed by that class.[19]

To insist upon appropriate relativities between individual sentences and the maximum is to recognise that the maximum is to be treated as a sentencing yardstick, as explained by the High Court majority in Markarian v The Queen.[20] For the reasons we have given, current sentencing practices for confrontational aggravated burglary do not adequately reflect that yardstick. As this Court has said previously, where there is a conflict between the guidance afforded by the maximum penalty and that afforded by current sentencing practices, it is the maximum which must prevail.[21]

It follows, in our view, that current sentencing for this form of aggravated burglary can no longer be treated as a reliable guide, and sentencing judges should no longer regard themselves as constrained by existing practice. The necessary change in sentencing practice for confrontational aggravated burglary will evolve over the course of decisions in individual cases. The Director will play an important role in this process, by assisting judges through the making of submissions on sentencing range.[22]

33 While the aggravated burglary in this case was motivated by Ms Shortis' emotional upset and anger with Mr Y, the circumstances of her offending differ substantially from those in Hogarth. The offences were not planned but occurred spontaneously because the applicant was unable to control the build-up of distress, when she discovered that Mr Y was not going to be held accountable for his actions. She was not accompanied by a co-offender when she broke into the victim's house. Although the victim must have been frightened by the invasion of his home, the applicant did not follow through with her intended assault on him, but simply waited for the police to come.

34 Stern sentences will usually be imposed on those who take the law into their own hands, but Ms Shortis was not acting as a vigilante when she offended. Rather she was overwhelmed by her emotions. Ms Shortis did not break into the victim's house or attack him when her daughter alleged that he had sexually assaulted her and her little brother. Instead she reported the matter to the police in the expectation that Mr Y would be prosecuted and sought help for her daughter and herself from various agencies. Although his Honour did refer to the reduction in the applicant's moral culpability caused by her mental health problems and extreme psychological distress, I consider that his Honour erred by regarding himself as bound by Hogarth to impose a relatively high sentence for the aggravated burglary and then discounting it to some extent to take account of mitigating factors.

35 I would therefore grant leave to appeal in relation to proposed grounds 1 and 2, allow the appeal and re-sentence the applicant. Since specific error has been made out, I will deal only briefly with ground 3.

36 For similar reasons to those given in relation to grounds 1 and 2, I consider that the sentence imposed for aggravated burglary fell outside the range of the judge's sentencing discretion, having regard to the objective seriousness of the offence and Ms Shortis' personal circumstances.

37 In fixing the sentence imposed for that offence and the total effective sentence the judge had to give some weight to the applicant's convictions in 2010 for armed robbery, and attempted robbery, for which she received non-custodial dispositions. We were informed by her counsel that these offences occurred shortly after the death of her mother, when both the applicant and her sister were in emotional turmoil. In order to assist her sister, who is addicted to drugs, the applicant drove the car used in the armed robbery and attempted robbery. Because the applicant was hospitalised during her pregnancy she breached the unpaid community work conditions of her community based order imposed for the offences. As a consequence of the breach, the order was varied to require 40 hours unpaid community work and to undergo assessment and treatment for alcohol and drug addiction or to submit to mental health assessment as required. The applicant was also convicted for unlawful assault in 2009, as a consequence of hitting her sister's de facto partner with a dog chain to stop him assaulting her sister. She received a suspended sentence for that offence.[23]

38 Ms Shortis' earlier convictions for armed robbery, attempted robbery and unlawful assault made it necessary for his Honour to place some emphasis on specific deterrence, when sentencing the applicant for the current offences. It is apparent that the applicant's offending usually occurs when she is under emotional stress. The sentence imposed for this offence must provide her with an incentive to learn how to avoid offending when she becomes emotionally distraught. General deterrence was also a relevant sentencing consideration, although it required some moderation because of the applicant's mental health problems.

39 On the other hand, the judge also had to take account of the fact that her moral culpability was reduced by her depression, anxiety and other mental health problems and of the fact that the applicant will find prison particularly burdensome because of her psychological state and her separation from her six children, all of whom are under the age of 11.

40 Prior to her offending the applicant had custody of three of the children, and regular contact with to the two children who were living with their father. She was caring for her youngest child, Violet Rose, who was 15 months old when the applicant was sentenced. The applicant showed some ability to put the interests of her children first, since on the advice of DHS she had arranged for her 3 year old daughter C, to live with her father, who already had custody of his son. Because of her dysfunctional childhood, the applicant's relationship with her children is particularly important to her. There is no doubt that the separation from her children has caused her considerable anguish.

41 Although the ground of manifest excess is very difficult to sustain I consider that the sentence of 3 years' imprisonment imposed for aggravated burglary was manifestly excessive, having regard to the very unusual nature of the offending, the applicant's personal circumstances and the significant reduction in her moral culpability arising from her mental condition.

42 I would also accept that there may have been some element of double punishment in the sentence imposed for aggravated burglary, since the breaking of the windows was relied upon as part of the criminal damage charge, although it was also the means by which the applicant entered the victim's premises. The criminal damage charge was relatively minor in that it involved the smashing of the victim's phone and the breaking of a dinner plate.

43 Because proposed grounds 1 and 3 are made out I would grant leave to appeal and re-sentence the applicant as follows:

Charge 1: a sentence of six months imprisonment is imposed.

Charge 2: a sentence of 15 months' imprisonment is imposed.

Charge 3: a sentence of 3 months' imprisonment is imposed.

44 A total effective sentence of 15 months' imprisonment with a non parole period of 9 months' is imposed.

45 Pursuant to s 6AAA of the Sentencing Act 1991, the Court declares that if the applicant had not pleaded guilty, it would have sentenced her to two years imprisonment with a non parole period of 16 months.

46 In the course of the hearing, Ms Shortis' counsel referred to the fact that Ms Shortis is suffering pain because she has glass, or some other foreign object, lodged in her foot which, as far as the Court is aware, has not been removed.[24] If this is the case we are greatly concerned that the relatively simple process of removing the object has not yet occurred, despite the fact that the applicant reports pain in her foot and has now been in prison for four months.

47 I have had the advantage of reading the draft reasons of Neave JA and agree for the reasons expressed by her Honour that leave to appeal should be granted, the appeal allowed and the applicant re-sentenced as proposed by her Honour.

[2] DPP v Suckling (Unreported, County Court of Victoria, Judge Pilgrim, 31 May 2013), ('Reasons') [4].

[5] [2009] VSCA 160.

[6] [2012] VSCA 302.

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[8] [2006] VSCA 184.

[12] DPP v Orbach [2007] VSCA 166; R v Eliasen (1991) 53 A Crim R 391, 395 (Crockett J).

[13] Markovic v R ; Pantelic v R [2010] VSCA 105.

[14] Ibid [5], [15]-[19]. Paragraph [19] is particularly apposite to the circumstances of this case.

[15] Hogarth v R [2012] VSCA 302, [58]-[62].

[16] [2009] VSCA 114; (2009) 22 VR 533 ('CPD').

[18] Mallinder (1986) 23 A Crim R 179, 180 (Murray J), 187 (Vincent J).

[20] [2005] HCA 25; (2005) 228 CLR 357, 372 [31].

[21] CPD [2009] VSCA 114; (2009) 22 VR 533, 550-1 [74]; DPP v DDJ [2009] VSCA 115; (2009) 22 VR 444, 461 [70]; AB (No 2) [2008] VSCA 39; (2008) 18 VR 391, 405-6 [47]-[49].

[22] MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677.

[23] She also had convictions in 2001 for cultivating and using cannabis, for which she was fined $300 without conviction

[24] Medical reports provided to the Court note that the applicant raised the issue of the glass in her foot as early as 30 July 2013. Records made by nursing staff note that she was given dressings to assist with the pain associated with the glass on 3 September 2013.