Ground 1: The learned sentencing judge erred in his application of the Bugmy principles.

Ground 2: The learned sentencing judge erred in failing to apply Verdins principles 3 and 4.

Ground 3: The sentences imposed on charges 2 and 3 give rise to a justifiable sense of grievance, when compared with the sentence imposed on the applicant's co-accused Mr Haddara.

Ground 4: The individual sentences on charges 1-4, orders for cumulation and non-parole are manifestly excessive having regard to all relevant matters, including the applicant's guilty pleas and disadvantaged background.

1. For the reasons that follow, we would refuse leave to appeal.

1. At around 10 pm on 29 October 2022, the applicant drove to a restaurant and bar at Southbank with Mr Haddara. They met up with another male at the restaurant, whose identity is unknown. Mr Vidovic, Mr Rahmani and Mr Senvardar, who had been friends for many years, were also at the restaurant that evening. The applicant was 26 years old. The victims were each 25 years old.
2. At approximately 12:30 am on 30 October 2022, the restaurant closed and the patrons exited the venue to Southbank Promenade. Much of what happened next is captured on CCTV and mobile phone footage. As Mr Rahmani walked out of the restaurant, he brushed shoulders with the unidentified male who was with the applicant and Mr Haddara. Mr Rahmani apologised and continued to walk outside. The unidentified male shouted at him, and Mr Rahmani asked him to calm down and offered to shake his hand. A verbal argument ensued between Mr Rahmani, the applicant, Mr Haddara and the unidentified male. Mr Senvardar attempted to diffuse the situation, while Mr Vidovic and a female tried to separate the parties.
3. The applicant and Mr Rahmani then tussled, while the others followed closely behind. The applicant struck Mr Rahmani and a physical fight broke out. The recorded footage depicts Mr Rahmani being set upon by the applicant and Mr Haddara. Mr Rahmani can be seen covering his head in an attempt to protect himself. Mr Haddara pulled Mr Rahmani's denim jacket, causing Mr Rahmani to lean forward. The applicant then threw an uppercut punch to Mr Rahmani's head with a significant degree of force. The applicant aimed another uppercut punch at Mr Rahmani but missed. Mr Haddara then pulled Mr Rahmani's jacket over his head and kicked in Mr Rahmani's direction, but missed him. At this time, the applicant can be seen in the recorded footage pulling his hoodie over his head. Mr Senvardar can be seen trying to pull Mr Rahmani away from the attack. Another male can also be seen attempting to pull Mr Haddara away from Mr Rahmani, but Mr Haddara would not let go.
4. A female patron tried to diffuse the situation and separate Mr Haddara and Mr Rahmani. She tried to dodge punches and kicks but was hit to the mouth and knocked to the ground. She said that this was when Mr Vidovic intervened. Mr Vidovic rushed towards Mr Rahmani. He grabbed Mr Haddara around the waist from behind and successfully swung him away from Mr Rahmani. As this was happening, the applicant punched Mr Senvardar.
5. Having separated Mr Haddara from Mr Rahmani, Mr Vidovic then kicked Mr Haddara, striking his right thigh and causing him to stumble backwards into an outdoor restaurant umbrella. As Mr Haddara regained his balance, Mr Vidovic kicked at him again. Mr Haddara attempted to punch Mr Vidovic but missed. Mr Haddara continued to move towards Mr Vidovic, who was walking backwards with both arms extended and pushed Mr Haddara. While Mr Vidovic was moving backwards, the applicant positioned himself behind Mr Vidovic. The applicant then punched Mr Vidovic, striking him with force to the back of his head, which caused Mr Vidovic to stumble. Mr Haddara then advanced from the front to swing another punch at Mr Vidovic, but missed. As Mr Vidovic continued to back away, the applicant, who was by then to the side of Mr Vidovic, leant forward and punched Mr Vidovic's face. The punch had such force that it caused Mr Vidovic to fall backwards with his arms in mid-air. Mr Vidovic was unable to brace his fall, and the back of his head hit the concrete pavement so hard that it bounced and hit the pavement again. Witnesses described hearing the loud sound of Mr Vidovic's head hitting the concrete. One witness said that Mr Vidovic was probably unconscious from the punch before he hit the ground. Following the punch, Mr Vidovic was motionless on the pavement. He was unresponsive and bleeding from his ear and mouth.
6. The applicant left Mr Vidovic and moved towards Mr Senvardar, who raised his arms to create some distance between them. On the recorded footage, the applicant can be seen squaring off against Mr Rahmani, before fleeing the scene with Mr Haddara and the unidentified male. The three men drove away in the applicant's car.
7. Bystanders made multiple calls to 000. Police and paramedics arrived a short time later. Mr Vidovic was taken to the Alfred Hospital with life threatening injuries. He underwent emergency neurosurgery on the same day, following which he was in a critical condition, and assessed as having a questionable prognosis. Mr Vidovic sustained an extremely severe traumatic brain injury. In November 2022, Mr Vidovic's treating physician assessed him as having 'a significant chance of non-survival'. In January 2023, Alfred Health provided an update from Mr Vidovic's acquired brain injury consultant as to his condition:

He is gradually progressing to consciousness. He is currently severely impaired requiring full nursing care to fulfil his basic needs. He is currently unable to communicate in any meaningful fashion. It is likely he will remain severely impaired and be unable to live without a high level of physical and cognitive support however his condition continues to change. He will require prolonged rehabilitation.

1. In a report provided in March 2023, the Victorian Institute of Forensic Medicine stated that Mr Vidovic's 'injuries were so severe that [he] required long-term total care due to being unable to perform the most trivial body movements as late as January 2023'. He was assessed as 'likely to have a short life expectancy or a slow, incomplete recovery taking many years without ever being fully functional again'.
2. Mr Rahmani was also treated at the Alfred Hospital. He suffered multiple jaw fractures, a severely displaced left lower jawbone, and fractures on both sides of his nose that required specialist surgery. He also lost a tooth from the assault.
3. Mr Senvardar sustained a broken nose and was also treated at the Alfred Hospital.
4. After identifying the applicant and Mr Haddara from information provided by Mr Senvardar and witnesses to the altercation, police arrested the applicant on 4 November 2022 and Mr Haddara on 10 November 2022 respectively. Both gave 'no comment' interviews to police.

1. After dealing with the circumstances of the offending, the sentencing judge addressed the impact of the offending on the victims. The judge referred to a victim impact statement written by Mr Vidovic's brother, who spoke of the irreversible effects of the offending not only on Mr Vidovic, but also on his family, whose existence had been redefined by Mr Vidovic's profound disabilities. Mr Vidovic's brother said that his family were completely drained, financially, emotionally and physically. They found it increasingly difficult to connect with each other or with others, with their main goal being to remain sane amidst the immense emotional and physical strain involved in Mr Vidovic's daily care. The judge referred to photographs and a video of Mr Vidovic, which showed his 'parlous' state. He described Mr Vidovic's injuries as catastrophic, observing that he requires full time nursing care and has lost the ability to speak and feed himself. The judge characterised the impact on Mr Vidovic's family as ongoing and profound.[6]
2. The judge also referred to victim impact statements from Mr Senvardar and Mr Rahmani, in which they each referred to the significant consequences of the applicant's actions, and to their grief at the condition of Mr Vidovic.[7]
3. The judge then turned to matters that were relevant to the nature and gravity of the offending. He referred to the degree of factual overlap between the charges and observed that in order to avoid doubly punishing the applicant, he would moderate the sentence imposed on the charge of affray.[8]
4. The judge described the affray as encompassing all the fighting that the applicant engaged in during the incident. He said that the sentence he would impose on this charge was directed towards the applicant's contribution to the seriousness of the attack on the three victims and the terror caused to those in the vicinity. As to the assaults on Mr Rahmani and Mr Senvardar, the judge observed that these charges encompassed the applicant's application of force to each of them. He said that the applicant had been aggressive and was heavily involved in the fighting concerning Mr Rahmani, initially striking him and then delivering a forceful uppercut while Mr Rahmani was being held by Mr Haddara. The judge described the offending as conduct that had evolved, rather than being premeditated and planned. It had not involved a weapon and the offences did not involve any intent to cause serious injury to Mr Vidovic or injury to Mr Rahmani or Mr Senvardar. Nonetheless, the offending was self-evidently serious.[9]
5. As to the charge of recklessly causing serious injury to Mr Vidovic, the judge described the offending as involving the delivery of two blows to Mr Vidovic with a clenched fist. The first blow was delivered to the back of Mr Vidovic's head and the second was delivered to his face as he was walking backwards, and brought Mr Vidovic to the ground. The judge referred to the CCTV footage, which depicted Mr Vidovic backing away when the applicant was to the side of him. He inferred to the requisite standard that Mr Vidovic did not see the punch coming, given where the applicant was positioned and the manner in which the applicant delivered the blow, together with the fact that Mr Vidovic did not take any defensive steps. The judge described Mr Vidovic as essentially defenceless. Mr Vidovic had not braced his fall in any manner and had simply hit the concrete footpath. At the time the applicant struck the blows, Mr Vidovic did not present a threat to the applicant. At the time of the first blow, Mr Vidovic was interacting with another person who was engaged in unlawful fighting. At the time of the second blow, he was backing away from the applicant.[10]
6. The judge observed that the applicant's guilty plea to the charge of recklessly causing serious injury involved an admission that he was aware of the probability that serious injury would result and notwithstanding this, engaged in the relevant conduct. The offence did not require foresight of the serious injury sustained by Mr Vidovic, nor any intent to cause serious injury. However, the harm caused to Mr Vidovic, which included serious physical injuries, was a matter that the judge said he was required to take into account.[11] While the applicant had not used a weapon, a clenched fist could be a lethal weapon when used to deliver a hard punch to a person's head.[12] The applicant had struck Mr Vidovic while he was vulnerable on two occasions, once from behind and once while he was backing away. The second blow was a forceful blow to Mr Vidovic's face.[13]
7. The judge went on:

[41] ... Notwithstanding the application of the principles in Bugmy's case and Verdins' case which I will shortly deal with, [the applicant's] moral culpability is nonetheless high. Such an attack must carry with it a high degree of probability that a serious injury will result. The serious injury in this case is catastrophic.

[42] It follows that general deterrence and the court's denunciation of [the applicant's] conduct must be appropriately emphasised in my sentencing of [him].

1. The judge then turned to the applicant's 'personal mitigatory matters'. He observed that the applicant was 28 years old, and had been 26 at the time of the offending. His prior criminal history included a charge of reckless conduct endangering serious injury, concerning driving a motor vehicle, and a charge of driving whilst suspended.[14]
2. The judge observed that the applicant was born in Sudan and was the third of five siblings. His parents came from two tribes who were at war with one another. The extended family did not approve of his parents' relationship and the applicant experienced severe mistreatment and violence at their hands, including being hit, spat on and burnt with a cigarette lighter, being partially drowned and being the victim of an attempted kidnapping.[15]
3. When the applicant was about 7 years old, his family moved to Egypt to escape the conflict in Sudan, during which the applicant had been exposed to distressing scenes and the deaths of multiple relatives and friends. In Egypt, the applicant lived in rudimentary conditions. Although his family were safer from the abuse from their extended family, they were poorer and were subjected to racism, leading the applicant's mother to describe their treatment as being 'worse than animals'.[16]
4. The judge observed that when the applicant was about 10 years old, his family moved to Australia. They lived briefly in Brisbane before moving into public housing in Melbourne. The applicant found the move to Australia difficult. He initially spoke no English and struggled to fit in. He attended a number of primary schools as his family moved around, causing disruption to his academic development. The applicant's parents separated when the applicant was about 12 years old and reunited when he was about 15. The applicant left school during Year 10. He reported being bullied and socially isolated, and he was involved in a number of fights. He reported that the bullying, as well as his desire to provide for his family, were the primary drivers for his decision to leave school. Upon leaving school, the applicant commenced an apprenticeship, which he did not complete. He completed certificates in real estate, civil construction, mechanical and automotive engineering and plastering. He worked in a cleaning business and in the construction industry.[17]
5. The judge recorded that prior to his arrest, the applicant lived with his parents. He was in a relationship and was close to his siblings. His father worked at a wrecking yard and his mother performed home duties. The applicant was running his own business as a subcontractor in the construction industry, operating excavation equipment.[18]
6. The judge referred to the applicant's history of significant drug and alcohol abuse, which had commenced in his teenage years. The applicant's use of alcohol increased in social contexts from about the age of 18. The applicant reported that up until the time of the offending, he was drinking about half a bottle of spirits every second day. The applicant also commenced using cannabis around the age of 16, as well as various other substances in his late teens. He had not received any professional help in relation to his substance use. On the night of the offending, he had consumed 'a fair bit' of alcohol and about a gram of cocaine. After being released on bail following his initial period of remand, the applicant ceased drinking alcohol. He had relapsed in relation to his drug use on a number of occasions, which he attributed to his elevated stress. His relationship had ended due to the stress of the prosecution, but the applicant was now in the early stages of a new relationship.[19]
7. The judge indicated that he had considered a number of personal references filed on the applicant's behalf, many of which were from family members. He had also taken into account a report from Mr Patrick Newton, a psychologist, dated 26 April 2024. The judge observed that the applicant had given Mr Newton an account of the offending, based on his 'unclear' memory of the incident, which bore little resemblance to what had actually happened. Mr Newton described the applicant's early experiences with conflict and instability as leaving him wary and insecure with others and reactive in the face of conflict. The applicant had a limited level of insight into his emotions in general and his anger in particular. He had ongoing difficulty identifying when he was becoming angry, with his anger coming upon him without warning only after it had reached extreme levels. This meant it was difficult for him to exercise appropriate control of his anger.[20]
8. The judge referred to Mr Newton's diagnosis of post-traumatic stress disorder in partial remission. Mr Newton said that the applicant's post-traumatic stress disorder was connected to the offending because it increased the applicant's social anxiety and the reactivity the applicant experienced in unfamiliar social situations. His heightened anxiety left him prone to experience stronger than typical reactions and his issues with emotional self-awareness limited his capacity to recognise his anger before it had escalated to a significant extent. Mr Newton said that each of these factors had contributed to the applicant's reaction on the evening of the offending. The applicant's post-traumatic stress disorder and substance use disorder combined to make it more likely that he would engage in impulsive, aggressive acting out towards others he perceived as threatening. Each condition would have contributed to the breakdown in behavioural controls, with the specific proportion contributed by each being impossible to delineate at this distance in time.[21]
9. The judge stated that in light of Mr Newton's observations, the applicant's insight into the factors lying behind his offending conduct appeared somewhat limited. He referred to the applicant's account of being under the influence of alcohol and cocaine at the time of the offending. The judge regarded this as a matter that contextualised the offending, but said that it did little to mitigate it, with its primary relevance lying in the assessment of the applicant's prospects of rehabilitation.[22]
10. The judge went on:

[68] Both parties, prosecution and defence agree that [the applicant's] PTSD ought operate to modestly reduce [his] moral culpability, and the operation of punitive sentencing measures on [him], independently of their joint position, in accord with Verdins' case. I agree.

[69] In addition, I agree with both parties that as a result of this condition [the applicant's] imprisonment will be more burdensome than for another and I allow for some modest reduction of sentence as a result of this.

1. The judge then dealt with a number of other matters in mitigation. The applicant had entered a guilty plea at a relatively early time and had exhibited a degree of remorse for his conduct. It was now more than two years since the offending and the applicant had experienced the anxiety and uncertainty of having the prospect of a sentence throughout this period, as well as being subject to bail conditions. The applicant had also commenced a process of rehabilitation. He had remained employed, had not re-offended and had attended a Men's program, although Mr Newton had observed that the applicant was unable to articulate the content or benefit of the program. The applicant had vowed to leave drug abuse behind him, although he had only had mixed success and had not undertaken any treatment for drug abuse. The judge assessed the applicant's prospects of rehabilitation as reasonable, but stated that further work on the applicant's part was required.[23]
2. The judge indicated that he had considered various authorities placed before the Court regarding current sentencing practices and sentencing principles for this type of offending. After considering material concerning the applicant's emotional, psychological and financial support of his parents and other family members, the judge stated that he was not satisfied that there were exceptional circumstances of family hardship,[24] noting that the applicant's counsel had not suggested that to be the case.[25] However, the judge accepted that the applicant's time in custody would be more burdensome given the applicant's concerns about his family's wellbeing, including the wellbeing of his parents, given their health and related conditions.[26]
3. The judge observed that the applicant's co-offender, Mr Haddara, had pleaded guilty in the Magistrates' Court to one charge of affray and one charge of common law assault concerning Mr Rahmani. Mr Haddara had received a community corrections order of 18 months' duration. He had a prior history that included appearances in 2017 for robbery and conduct endangering serious injury. The judge said that he had had regard to the important sentencing principle of parity, and noted that there were a variety of matters that could justify disparity in sentence. He said that in sentencing the applicant, he had had regard to: the roles of each of Mr Haddara and the applicant in the altercation; the different charges they faced; and the personal matters that had been made known to him. The applicant's charges were more serious, his role was more aggressive and his culpability was significantly greater. The applicant had commenced the fighting by striking Mr Rahmani, he had caused serious injury to Mr Vidovic, including by striking him while he was backing away, and he had also engaged with Mr Senvardar. The applicant's contribution to the affray was greater than Mr Haddara's given his more active and violent role in the fighting. In these circumstances, the applicant fell to be sentenced in a very different factual context to Mr Haddara.[27]
4. The judge described his role in sentencing as requiring him to address the fundamental sentencing aims of punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. He observed that he must balance matters such as the seriousness of the relevant offence, the applicant's culpability, his personal circumstances, the community's interest in deterring and denouncing the applicant's conduct, and the community's interest in ensuring so far as possible that the applicant is rehabilitated. He said that in all the circumstances, nothing other than a substantial term of imprisonment was appropriate, particularly given the gravity of the applicant's conduct as an example of recklessly causing serious injury to Mr Vidovic.[28]

Proposed grounds one and two: Application of Bugmy and Verdins principles

1. It is convenient to deal with proposed grounds one and two together, given the overlap between the matters and submissions relevant to these grounds.

1. The applicant commenced by emphasising the following aspects of the evidence concerning his childhood. He was born in Wad Madani, the capital of Al Jazirah state in war-torn east-central Sudan. As a young child, he was exposed to the deaths of multiple relatives and friends. The applicant saw corpses with multiple bullet wounds and bullets hitting his house. He also recalls being abused by his extended family, including by being beaten, tortured, partially drowned in a large water barrel and burnt with cigarettes. At a young age, he was kidnapped by relatives, but his family managed to get him back before he was taken too far away. After the applicant's family fled Sudan when he was 6 or 7 years old, seeking refuge in Egypt, they lived with a relative in a single room and were provided with insufficient food for two to three years. The applicant did not attend school, was unwelcome because of his race, and described his family's time in Egypt as the worst time in his life. When he was 10 years old, the applicant's family sought asylum in Australia. On arrival, the applicant and his family spoke no English. The applicant changed school countless times. The applicant recalls his parents bickering frequently as they attempted to navigate their new life in Australia. He started using alcohol and cannabis in his mid-teens, which progressed to the use of other drugs, including cocaine. He did not receive any mental health treatment or any drug or alcohol treatment prior to the offending.
2. The applicant submitted that the judge's treatment of the unchallenged evidence concerning his childhood involved two specific errors.
3. First, the judge failed to significantly moderate the applicant's moral culpability as a result of his childhood deprivation and the effects of that deprivation. The applicant submitted that while a causal link is not required for childhood deprivation to be a mitigatory consideration, it is an important consideration in reducing moral culpability.[29]
4. Here, the applicant submitted, his traumatic background had a clear causal connection to his offending, warranting a significant reduction in his moral culpability. The applicant referred to Mr Newton's unchallenged opinion that:

(a) the applicant's early experiences of conflict and instability had left him wary and insecure in his interactions with others and reactive in the face of conflict;

(b) the applicant has ongoing difficulty identifying the physical cues that signal he is becoming angry, and experiences anger as coming upon him without warning only after it has reached extreme levels, making it difficult for him to exercise appropriate control of his anger;

(c) the applicant continues to be affected by the impacts of traumatisation, isolation and other adverse early experiences that dominated his childhood and have left him feeling insecure and unsafe;

(d) the applicant's anxiety is particularly intense in social settings and especially so in contexts where he is with others whom he does not know - in such situations, he is prone to being particularly on edge and sensitive to indications of danger or threat; and

(e) at the time of the offending, the applicant was experiencing particular emotional stress because his father had disappeared while visiting Sudan six weeks prior, and his brother had recently been killed in Sudan.

1. The applicant submitted that on the plea, his senior counsel had relied generally on the principles in Bugmy v The Queen.[30] Although his counsel had not explicitly submitted that there should be a significant moderation of moral culpability on account of his childhood deprivation and its consequences, this was said to be implicit in counsel's submissions. Counsel had referred to the paragraph of the High Court's decision in Bugmy in which the Court speaks of the potential for an offender's childhood experiences to explain their conduct, such that their moral culpability may be substantially reduced.[31]
2. The applicant submitted that the judge had wrongly allowed only for 'some sensible reduction' of the applicant's moral culpability, which remained 'high'. He submitted that his moral culpability could not logically remain 'high' if Bugmy principles were properly taken into account, particularly in circumstances where his moral culpability was also to be reduced on account of the first limb in R v Verdins.[32] The applicant sought to reinforce this submission by pointing to the fact that, in the part of his reasons dealing with the gravity of the offending, the judge did not acknowledge that as a result of his significant childhood deprivation, the applicant's perception of risk had been altered, particularly in social situations involving people he does not know.
3. As to whether the effects of his childhood deprivation gave rise to a need to prioritise protection of the community in the sentencing exercise, the applicant referred to Mr Newton's evidence that his conditions were treatable. He had commenced mental health treatment by the time he was sentenced, and he had ceased drinking and drug taking, albeit that there had been some relapses with his drug taking. Further, the applicant submitted that the prosecution had not contended on the plea that protecting the community from the applicant was a matter of particular importance, and the judge had made no such finding.
4. Second, the judge failed to moderate general deterrence on account of the applicant's childhood deprivation and resulting post-traumatic stress disorder, as required by both Bugmy and Verdins principles. In relation to Bugmy principles, the applicant submitted that where violence lacking premeditation has resulted in serious injury or death, childhood deprivation can reduce the need for general deterrence.[33] As to Verdins, the applicant had submitted to the judge that Verdins limbs 1 to 5 applied, and the prosecution agreed that limbs 1 to 4 applied. While the judge applied Verdins limb 1 (reduction of moral culpability) and limb 5 (burden of sentence),[34] he had failed to acknowledge, let alone give effect to, Verdins limb 3 (moderation of general deterrence) or limb 4 (moderation of specific deterrence). To the contrary, the judge stated that general deterrence must be 'appropriately emphasised',[35] which was said to suggest that he regarded general deterrence as a factor that was to be emphasised rather than moderated.
5. The applicant submitted that the judge's reference to the operation of 'punitive sentencing measures', which he said the parties had agreed should be 'modestly' reduced as a result of the applicant's post-traumatic stress disorder,[36] should not be interpreted to include general or specific deterrence. General and specific deterrence were not 'punitive sentencing measures'. The judge's reference to 'punitive sentencing measures' should instead be understood as a reference to just deserts or proportionate sentencing.
6. In response, the respondent submitted that the applicant's senior counsel had not submitted on the plea that the application of Bugmy principles required a significant reduction in moral culpability. The position of both parties was that there should be 'some' reduction in the applicant's moral culpability. The respondent pointed to the submission of the applicant's counsel at the plea hearing that if the judge was satisfied of the evidentiary foundation for the Bugmy submission, recognition would need to be given to it 'in the sense that there would be a reduction in moral culpability'. It was not, the respondent submitted, implicit in such a submission that the applicant sought a significant or a substantial reduction in moral culpability. The applicant is bound by the way his counsel put his case below. The judge had reduced the applicant's moral culpability in accordance with the agreed position of the parties. Further, there was nothing wrong with the applicant's moral culpability remaining 'high', because moral culpability can be reduced from 'very high' to 'high'. Here, it was appropriate that the applicant's moral culpability, even after a reduction to reflect the effects of his childhood deprivation, remained 'high'.
7. The respondent submitted that when looking at Bugmy principles, it was necessary to balance the potential mitigating effect of the effects of childhood deprivation on the offender's moral culpability against a potential need to protect the community from the offender in light of the effects of their childhood deprivation.[37] Here, the evidence of Mr Newton was that the applicant's heightened anxiety left him prone to experience stronger than typical reactions and that his issues with emotional self-awareness limited his capacity to recognise his anger before it had escalated. This 'excessive' reactivity meant that protection of the community was very important in the sentencing exercise.
8. The respondent submitted that when speaking of the need to 'appropriately emphasise' general deterrence, the judge was indicating that the principle of general deterrence was to be applied in a reasonable and measured fashion and in accordance with the law. And when the judge spoke of allowing for a 'sensible' reduction in the applicant's moral culpability,[38] the judge was indicating that he was allowing for an appropriate and reasonable reduction in the applicant's moral culpability, in circumstances where an issue concerning protection of the community squarely arose from Mr Newton's report. The respondent acknowledged that the judge had not expressly referred to the need for community protection when dealing with Bugmy principles. However, the respondent submitted that reading the sentencing reasons as a whole, it was clear that the judge had dealt with Bugmy principles carefully and given full weight to the applicant's deprived background. This formed part of the overall sentencing synthesis, in a case where there were very strong considerations pointing in opposite directions.
9. Finally, in relation to Verdins, the respondent submitted that the judge had applied and given proper weight to the four enlivened limbs of Verdins.[39] Senior counsel for the applicant at the plea hearing had indicated his agreement with the prosecution's position that Verdins limbs 1 to 4 were enlivened to a 'moderate degree'. The judge had also appropriately noted the factors that reduced the mitigatory effect of the Verdins principles.[40] As for the judge's reference to 'punitive sentencing measures', the respondent acknowledged that the purely punitive sentencing purposes of the Sentencing Act 1991 were just punishment and denunciation, but submitted that it was not possible to be certain that this was what the judge was referring to when he spoke of modestly reducing the operation of those measures. The respondent accepted that the judge did not explicitly state that he had moderated general deterrence, but emphasised the need to look at the overall sentencing exercise and view the judge's reasons in the context of the discussions at the plea hearing, which evinced the agreed position of the parties as to the application of Verdins.

1. We reject the applicant's submission that the judge erred in his application of Bugmy and Verdins principles.
2. Our consideration of proposed grounds one and two is informed by the position taken by the parties below. As this Court said in Romero v The Queen, a sentencing appeal is not the occasion for the revision and reformulation of the case presented below.[41] This Court does not lightly entertain arguments that could have been, but which were not, advanced on the plea.
3. In relation to Bugmy principles, the applicant's senior counsel referred on the plea to the prosecution's concession that, in the event the judge was satisfied of the evidentiary foundation for the applicant's Bugmy submission, 'there would be recognition given to it in the sense that there would be a reduction in moral culpability'. The applicant's counsel did not contend for a 'significant' or 'substantial' reduction in the applicant's moral culpability. This may be thought unsurprising in circumstances where, by his plea of guilty to the offence of recklessly causing serious injury to Mr Vidovic, the applicant had acknowledged that he was aware of the probability that his conduct would cause serious injury to Mr Vidovic and that he had engaged in that conduct regardless.
4. Further, in conceding the application of Bugmy principles in the event of an evidentiary foundation, the prosecution emphasised that protection of the community was a relevant matter, given the serious nature of the offending and Mr Newton's assessment that the applicant presented a moderate risk of further violent offending in circumstances where he was yet to address his substance use issues.
5. In relation to Verdins principles, senior counsel for the applicant referred on the plea to the prosecution's acceptance that Verdins limbs 1 to 4 arose 'to a moderate degree'. Senior counsel went on:

I can only by way of submission I agree with that, Your Honour. I'm not saying this is, you know, someone who's in the grip of schizophrenia or something of that nature so we're not talking about severe curtailments of moral culpability, specific deterrence, general deterrence but we would join with the submission that there should be moderation, moderation, in respects to findings as to moral culpability. You've already got the Bugmy consideration but this is additional to that, in turn then reduced emphasis on specific deterrence and general deterrence, not savagely reduced but moderate reduction.[42]

1. We pause to observe that it is clear from the submissions on the plea that the prosecution's position that Verdins limbs 1 to 4 warranted only 'modest' moderation of general and specific deterrence was driven by the evidence about the applicant's consumption of alcohol and cocaine on the night of the offending. The prosecution submitted that this had significantly contributed to the offending, and was not a matter in mitigation. The prosecutor referred to the applicant's acknowledgement to Mr Newton that his substance use had led to problems in his life, including by disinhibiting him and contributing to a wide range of behavioural difficulties. In this Court, the applicant conceded that his senior counsel had not contested these propositions.
2. The judge's application of Bugmy and Verdins principles must be viewed in the light of these submissions.
3. Consistently with these submissions, the judge allowed for a 'sensible' reduction in the applicant's moral culpability based on his 'background of disadvantage and dysfunction'. Contrary to the applicant's submission, it was not illogical for his moral culpability to have remained 'high' after the judge allowed for this 'sensible reduction'. In circumstances where the offending involved a vicious attack on a vulnerable person who posed no threat to the applicant, and where the applicant was aware of the probability that his actions would result in serious injury, there is nothing illogical about the judge's finding that the applicant's moral culpability remained 'high'.
4. As to the judge's approach to limbs 3 and 4 of Verdins, we reject the applicant's submission that, by speaking of the need to 'appropriately emphasise' general deterrence, the judge was indicating that he regarded general deterrence as something to be emphasised, not moderated. Just as the applicant's senior counsel had done when he spoke of the need for a 'reduced' emphasis on general deterrence, the judge was qualifying the emphasis to be given to this sentencing factor, by indicating that it was only to be emphasised to an extent that was appropriate in the circumstances of the applicant's case. While the judge did not specifically state that he was moderating the role of specific deterrence, this may reflect the fact that specific deterrence was a matter that received little attention in the prosecution's submissions on the plea. The prosecution submitted that in the circumstances of the case, specific deterrence was a matter of only 'some' relevance.
5. Further, reading the reasons as a whole, the judge's reference to a modest reduction in the operation of 'punitive sentencing measures ... in accord with Verdins' case' may well have been intended to capture general and specific deterrence. We accept that principles of deterrence may not commonly be described as 'punitive sentencing measures'. However, it is telling that the judge's reference to a reduction in the operation of 'punitive sentencing measures' was accompanied by a reference to Verdins, as well as a reference to the agreed position of the parties, which encompassed the operation of limbs 3 and 4 of Verdins.

1. By proposed ground three, the applicant submitted that there was an unjustified disparity between his sentence and the sentence imposed on Mr Haddara, giving rise to a 'justifiable sense of grievance'.[43] Mr Haddara pleaded guilty in the Magistrates' Court to one charge of affray and one charge of common law assault of Mr Rahmani. The applicant submitted that the charges against Mr Haddara were equivalent to charges 2 and 3 on his indictment. Although he accepted that his role was greater, in that he had initiated the violence and was a more active participant in the violence, the applicant submitted that he and Mr Haddara were acting in concert and were sentenced on the same factual basis. While Mr Haddara received an 18 month community corrections order, the applicant was sentenced to 12 months' imprisonment for the affray and 22 months' imprisonment for the common law assault of Mr Rahmani.
2. The applicant submitted that the fact that Mr Haddara was sentenced in the Magistrates' Court was irrelevant to the application of the parity principle. It is the maximum penalty for an offence that indicates the gravity of the offence as directed by Parliament. The jurisdictional limit that applies in the Magistrates' Court does not alter that legislative indicia of the gravity of the offence; it simply puts a ceiling on the penalty that is capable of being imposed and does not form part of the instinctive synthesis whereby an appropriate sentence is arrived at.[44] The applicant submitted that, because the sentence imposed on Mr Haddara did not reach the jurisdictional ceiling of 2 years' imprisonment, the principle of parity applied to the sentences imposed on the applicant in the County Court and the sentence imposed on Mr Haddara for the equivalent offences in the Magistrates' Court.[45]
3. The judge, the applicant submitted, approached the question of parity in a global way, and thereby failed to engage with the need to compare the sentence imposed on Mr Haddara with the sentences imposed on the applicant in respect of charges 2 and 3. The significant difference in the sentences imposed on the two men was not justified. Both men were the same age and both pleaded guilty. Mr Haddara had a more serious and relevant criminal history, which included prior convictions for: robbery, for which Mr Haddara had received a term of imprisonment; reckless conduct endangering serious injury; and drug possession. In contrast, the applicant had never received a sentencing disposition greater than a fine. He had been fined without conviction for offences that included the charge of reckless conduct endangering serious injury, and fined with conviction for driving whilst suspended. The delay in the applicant's case was one year longer than the delay experienced by Mr Haddara, which prolonged the applicant's experience of the additional punishment of having the matter hanging over his head and being the subject of restrictive bail conditions. In that time, the applicant had also progressed his rehabilitation by not reoffending. Bugmy and Verdins principles had no application to Mr Haddara, and there was no evidence of any burden that his imprisonment would have on any family members. Further, in sentencing the applicant, the judge had indicated that he was moderating the sentence imposed for the affray because of the factual overlap with the other offending, a factor that did not apply to Mr Haddara.
4. The applicant submitted that the fact that he was charged with a more serious charge of recklessly causing serious injury, which Mr Haddara did not face, was not relevant to the question of parity, because parity must be applied between individual charges and is not a matter of looking at the total effective sentence.[46] However, he accepted that it may be appropriate to take the existence of a more serious charge into account as part of the backdrop in certain circumstances. For example, the existence of such a charge may make a community corrections order an inappropriate disposition, in which case the question will become whether the length of the sentence of imprisonment to be imposed is appropriate, given the application of parity.
5. Finally, the applicant submitted that the demands of the parity principle, and the principle of totality, may require the imposition of a particularly lenient sentence to properly accommodate the imperative of equal justice.[47]
6. The respondent submitted that the judge properly addressed the issue of parity.[48] The differences in the roles of the applicant and Mr Haddara, which were acknowledged by the judge, justified the different sentences imposed. It was the involvement of the applicant that had taken the fight from a low level altercation 'up several notches'. Had the applicant not been involved in the altercation, the outcome would have been very different.
7. The respondent submitted that the disparity in sentence was further justified by the different context created by the applicant's principal charge of recklessly causing serious injury. Further, the sentence imposed for charge 1 rendered the applicant ineligible for a combination sentence, and without more, therefore prevented the imposition of a community corrections order for the other charged offences.
8. The respondent also pointed to the substantial concurrency ordered by the judge, resulting in the applicant only needing to serve 11 months' imprisonment for charges 2 and 3, a period that might be regarded as further moderated by eligibility for parole. In circumstances where a community corrections order is regarded as a serious punishment,[49] carrying the risks of resentencing and of substitution of imprisonment, the sentence imposed on Mr Haddara is not so clearly disparate as to justify or mandate intervention, particularly as Mr Haddara was a less culpable offender.

1. For an appellate court to intervene with a sentence on the basis of disparity, the disparity between the sentences imposed on co‑offenders must be such that the difference is 'marked' or 'manifest'. In other words, the disparity must engender an objectively justifiable sense of grievance on the part of the offender on whom the heavier sentence is imposed - on the basis that it gives the appearance that justice has not been done.[50]
2. We are not persuaded that the sentences imposed on the applicant in respect of the affray and the common law assault on Mr Rahmani engender an objectively justifiable sense of grievance when compared with the sentence imposed on Mr Haddara for the same offences. The factual context for the two sentencing exercises was different.
3. In relation to the common law assault of Mr Rahmani, it was the applicant who caused Mr Rahmani to sustain his injuries, by striking him twice to the head. Although Mr Haddara was involved in the altercation with Mr Rahmani, he had a much lesser role, which consisted of: pulling at Mr Rahmani's denim jacket, causing him to lean into a position where the applicant could punch him; pulling Mr Rahmani's jacket over his head; and kicking in Mr Rahmani's direction.
4. In relation to the affray, it was the applicant who commenced the fighting, by striking Mr Rahmani. It was the applicant who struck Mr Vidovic and Mr Senvardar during the course of the fighting. Recognising the need to moderate his sentence for the affray to reflect the degree of factual overlap between the affray and his other offending, the applicant still fell to be sentenced as the more aggressive and culpable contributor to the affray.
5. As the judge recognised, not only did the applicant and Mr Haddara have different roles in relation to the affray and the common law assault of Mr Rahmani, but the applicant fell to be sentenced in circumstances where he had also pleaded guilty to other charges arising from the altercation, namely recklessly causing serious injury to Mr Vidovic, and common law assault of Mr Senvardar. This context changed the balance of the sentencing purposes with respect to his offending, elevating the weight to be given to deterrence, denunciation and community protection, and reducing the weight to be given to matters in mitigation.
6. As to the matters in mitigation, we accept that there were some matters in the applicant's favour when compared with Mr Haddara. We accept that Mr Haddara had more significant and relevant prior convictions, that he experienced less delay than the applicant before the resolution of his charges, that neither Bugmy nor Verdins considerations were enlivened in sentencing Mr Haddara, and that there appears to have been no evidence of family hardship in the event Mr Haddara was incarcerated. However, we consider that none of these matters, considered alone or in combination, render the difference between the sentences imposed on the applicant in respect of charges 2 and 3 and the sentence imposed on Mr Haddara to be unjustifiable. To the contrary, the disparity in the sentences was justified.

1. By proposed ground four, the applicant submitted that, having regard to all relevant matters, the individual sentences on charges 1 to 4, the orders for cumulation, and the non-parole period, were each manifestly excessive.
2. In support of this submission, the applicant relied on the following matters:

(a) the offending was spontaneous, no weapons were used and there was no material age difference between the applicant and the victims;

(b) his deprived background;

(c) his impaired mental functioning;

(d) his early plea of guilty, his genuine remorse and his acceptance of responsibility for the offending;

(e) his prospects of rehabilitation, which were assessed by the judge as reasonable;

(f) the delay of two years in his case, during which time he did not reoffend, progressed his rehabilitation and suffered the additional punishment of the matter hanging over his head,[51] as well as being subject to strict bail conditions; and

(g) the fact that the judge found that custody would be more onerous for him due to his anguish at not being able to care for his mother and father, both of whom have serious medical conditions.[52]

1. The applicant accepted that the objective gravity of his offending was high and that Mr Vidovic's life-changing injuries were an important matter to be taken into account. However, the applicant submitted that the seriousness of the injuries sustained by Mr Vidovic could not be permitted to 'swamp' all other sentencing considerations.[53] Further, the applicant pointed to the prosecution's concession on the plea that he was not to be sentenced on the common law assault charges on the basis that he intended to or was reckless as to causing injury to Mr Rahmani or Mr Senvardar.
2. The applicant also emphasised the principles of parity and totality. He submitted that although the principle of totality was important in his case, there was no mention of the principle in the judge's reasons. The judge's reference to the need to avoid double punishment[54] was different from an application of the principle of totality, which requires the sentencing court to stand back and consider whether the overall sentence is just and appropriate, and for the judge to be mindful that the severity of a term of imprisonment increases exponentially with the length of time to be served.
3. The applicant also pointed to the maximum penalties for the offences. He submitted that despite his significant matters in mitigation, including his lack of any relevant criminal history, his sentences comprised a significant portion of the maximum penalty for each of the offences, including 37 per cent of the maximum penalty for the assault on Mr Rahmani.
4. Finally, the applicant submitted that each of the four comparable cases that the prosecution had relied on at the plea hearing, in which sentences of multiple years had been imposed for the offence of recklessly causing serious injury, could be distinguished on the basis of different aggravating and mitigating factors.[55]
5. In response, the respondent submitted that the individual sentences, the total effective sentence and the non-parole period appropriately balanced the gravity of the offending, the applicant's moral culpability, his matters in mitigation and other relevant sentencing considerations. While accepting that the applicant's sentence might be seen to be 'slightly at the sterner end', the respondent submitted that it was well within range for offending of this kind, being random street violence involving catastrophic injuries to a stranger outside a bar at night.
6. The respondent submitted that the objective gravity of the offending and the applicant's moral culpability were appropriately found to be high, having regard to the fact that: the applicant initiated the violence; he assaulted three victims in public; while he did not use a weapon, he used a clenched fist to forcefully strike his victims; he punched Mr Vidovic when Mr Vidovic was vulnerable and defenceless; he left the scene and provided no assistance to Mr Vidovic, who was laying gravely injured on the ground, or to his two other victims; and each of his victims suffered physical injuries, including the catastrophic injuries sustained by Mr Vidovic. The respondent also emphasised the profound consequences of the offending for Mr Vidovic's family, as well its impact on Mr Rahmani and Mr Senvardar. The respondent relied on the fact that the applicant was under the influence of alcohol and cocaine at the time of the offending, and that general deterrence and denunciation loom large in offending that involves alcohol fuelled violence.
7. The respondent acknowledged the judge's findings and observations as to the applicant's guilty plea and remorse; the delay in the proceedings; the applicant's prospects of and efforts at rehabilitation; and the burden on the applicant of his time in custody. The respondent submitted that the judge was careful to avoid double punishment as between charges 1, 3 and 4, and charge 2, and moderated the sentence on charge 2 accordingly.
8. As for cumulation, the respondent submitted that each of the orders for cumulation on the base sentence imposed for the principal charge of recklessly causing injury were necessary. The charge of affray was a different matter to the principal charge, and the two assaults involved different victims to the principal charge. The respondent emphasised that any cumulation must be real and not tokenistic, and must reflect the relevant wrongdoing. While the orders cumulating 7 months and 4 months of the sentences imposed for the two assaults might be thought to be 'a bit stern', the amount of cumulation was certainly not excessive. The order cumulating 4 months of the sentence imposed for the affray was 'quite moderate'.

1. A sentence will only be manifestly excessive if it is 'wholly outside the range of sentencing options available'.[56] As this Court has often observed, this is a 'stringent' test, which is difficult to satisfy.[57] The applicant must show that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[58] The Court must be 'driven to conclude that there must have been some misapplication of principle'.[59]
2. Having considered each of the matters upon which the applicant and the respondent rely, we are not persuaded that the applicant's individual sentences, the orders for cumulation or the non-parole period are manifestly excessive.
3. All four offences constituted serious instances of each crime, with the charge of recklessly causing serious injury being a particularly serious example of that offence. Mr Vidovic was vulnerable and defenceless when he was attacked by the applicant. By his plea of guilty to this charge, the applicant accepted that he had attacked Mr Vidovic in circumstances where he was aware of the probability that his actions would cause serious injury to Mr Vidovic. The sentence imposed on this charge is the largest component of the applicant's total effective sentence, comprising 5 years and 3 months' imprisonment. The maximum penalty for this offence is 15 years' imprisonment.
4. Each of the offences was committed in company in a public place, in the presence of a number of bystanders. Each involved unprovoked violence that was fuelled by the applicant's use of alcohol and drugs. This Court has described such conduct as a scourge from which the community requires protection.[60] The applicant's moral culpability was high and the consequences of his offending were grave, particularly for Mr Vidovic and his family. The applicant's brief, spontaneous outburst of violence has had enduring and devastating consequences for a number of innocent people.
5. While the applicant could point to a number of matters in mitigation, including his plea of guilty, his profound childhood deprivation, his impaired mental functioning, his expression of remorse, his limited prior convictions, his prospects of rehabilitation, the delay in the resolution of his charges and the burden on him of his time in custody, a significant period of imprisonment was nonetheless necessary. The individual sentences of imprisonment were not outside the available range of sentencing options. Nor was the non-parole period, to which the applicant did not direct any specific submissions.
6. Orders for cumulation in respect of the sentences for affray and the common law assaults were also necessary, given the distinct nature of the wrongdoing underpinning each charge. As this Court has stated, the essence of the offence of affray is unlawful violence that creates terror in bystanders, which makes it distinct from offences against individual victims.[61] Both Mr Rahmani and Mr Senvardar sustained significant injuries as a result of their assaults. Orders cumulating a total of 15 months' imprisonment in respect of the affray and the two assaults were not outside the available range.

1. The application for leave to appeal will be refused.

[1] Contrary to s 17 of the Crimes Act 1958.

[2] Contrary to s 195H of the Crimes Act 1958.

[3] This charge related to the victim Mr Vidovic.

[4] This charge related to the victim Mr Rahmani.

[5] This charge related to the victim Mr Senvardar.

[6] DPP v Suliman [2025] VCC 38, [29]-[30], [37] ('Reasons').

[11] Citing Sentencing Act 1991, ss 5(2)(daa)-(db); Eade v The Queen [2012] VSCA 142; (2012) 35 VR 526, 533 [34] (Maxwell P, Neave JA and Lasry AJA); [2012] VSCA 142 ('Eade'); Best v The Queen [2015] VSCA 151; (2015) 46 VR 196, 210 [70]-[71] (Ashley, Redlich and Priest JJA); [2015] VSCA 151.

[12] Citing Ashdown v The Queen [2011] VSCA 408; (2011) 37 VR 341, 349 [23] (Maxwell P); [2011] VSCA 408.

[14] Reasons, [43], [45]. The applicant had also been convicted of possessing a dangerous article, which appears to have been a tyre iron. This offence took place in May 2022, prior to the present offending. The applicant was convicted and fined in August 2023, after the present offending.

[17] Reasons, [49]-[51], [54]-[55].

[23] Reasons, [70]-[71], [81]-[84].

[24] Referring to Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105 ('Markovic').

[25] Reasons, [86]-[88], [91]-[101].

[26] Reasons, [102]-[104], referring to Markovic [2010] VSCA 105; (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.

[29] Citing DPP v Terrick [2009] VSCA 220; (2009) 24 VR 457, 468 [46] (Maxwell P, Redlich JA and Robson AJA); [2009] VSCA 220.

[30] (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy').

[31] Referring to Bugmy (2013) 249 CLR 571, 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[32] (2007) 16 VR 269; [2007] VSCA 102.

[33] Citing Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600, 620 [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); [2013] HCA 38; DPP v Atkinson [2024] VSC 286, [87] (Hollingworth J).

[34] Referring to Reasons, [41], [68].

[37] Citing Bugmy (2013) 249 CLR 571, 595 [44]-[45] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37.

[39] Referring to Reasons, [68]-[69].

[40] Referring to Reasons, [41]-[43].

[41] Romero v The Queen [2011] VSCA 45; (2011) 32 VR 486, 489 [11] (Redlich JA, Buchanan JA agreeing at 494 [28], Mandie JA agreeing at 494 [29]); [2011] VSCA 45.

[43] Citing Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 610 (Gibbs CJ, Wilson J agreeing at 616), 613 (Mason J); [1984] HCA 46; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gummow JJ), 314 (McHugh J), 323 (Gummow J), 327 (Kirby J); [1997] HCA 26 ('Postiglione').

[44] Citing Hansford v His Honour Judge Neesham [1995] VICSC 58; [1995] 2 VR 233, 236-7 (Brooking J, Hampel J agreeing at 241, Smith J agreeing at 241); R v Duncan [2007] VSCA 137; (2007) 172 A Crim R 111, 116‑-17 [17] (Nettle JA, Chernov JA agreeing at 120 [36], Vincent JA agreeing at 120 [37]); [2007] VSCA 137.

[45] Citing Greaves v The Queen [2020] NSWCCA 140, [66] (Cavanagh J, Hoeben CJ at CL agreeing at [1], Hamill J agreeing at [2]); Biba v The King [2023] VSCA 122; Taleb v The Queen [2020] VSCA 329.

[46] Citing Postiglione [1997] HCA 26; (1997) 189 CLR 295, 301-2 (Dawson and Gummow JJ); [1997] HCA 26.

[47] Citing, eg, Ross v The Queen [2011] VSCA 238, [19]-[24] (Hansen JA, Harper JA agreeing at [1]).

[49] Citing Boulton v The Queen (2014) 46 VR 308; [2014] VSCA 342.

[50] See Kellway (a pseudonym) v The King [2023] VSCA 109, [126] (Emerton P, Niall and Kaye JJA); Hafner v The Queen [2012] VSCA 190, [17] (Buchanan JA, Bongiorno JA agreeing at [26], Osborn JA agreeing at [27]); Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, 474-5 [31] (French CJ, Crennan and Kiefel JJ); [2011] HCA 49.

[51] Citing R v Todd [1982] 2 NSWLR 517, 519 (Street CJ, Moffitt P agreeing at 522, Nagle CJ at CL agreeing at 522); Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ); [1988] HCA 70.

[52] Citing Markovic [2010] VSCA 105; (2010) 30 VR 589, 595 [20] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA); [2010] VSCA 105.

[53] Citing Pang v The Queen [2018] VSCA 5, [43] (Priest and Santamaria JJA); Eade [2012] VSCA 142; (2012) 35 VR 526, 532 [30] (Maxwell P, Neave JA and Lasry AJA); [2012] VSCA 142.

[55] The four cases were: Al Wahame v The Queen [2018] VSCA 4; Mazzonetto v The Queen [2022] VSCA 153; Apineru v The Queen [2018] VSCA 206; DPP v Betrayhani (2019) 278 A Crim R 341; [2019] VSCA 150.

[56] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 ('Clarkson'). See also Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 671-2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.

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

[58] Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).

[59] R v Pham [2015] HCA 39; (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.

[60] Armstrong v The King [2024] VSCA 316, [59] (McLeish, Boyce and Orr JJA). See also DPP v Russell [2014] VSCA 308; (2014) 44 VR 471, 472 [1] (Maxwell P, Weinberg and Santamaria JJA); [2014] VSCA 308.

[61] Buddle v The Queen [2014] VSCA 232, [21] (Priest and Neave JJA).