1. As we have already said, the applicant was 36 years old at the time of the offending. He was 38 at the time of sentencing. His parents separated when he was 12 months old. When he was 12 years old, his then 21 year old brother was shot by police after a siege at the family home - an event which undoubtedly caused the applicant and his family considerable trauma.
2. The applicant was educated to Year 11. Subsequently, he worked for approximately 10 years with a relative of his stepfather in a caravan manufacturing business. Later, he ran his own company installing aluminium cladding for caravans. In 2011, when he spent some 3 months in gaol, the applicant lost a number of contracts and his business failed. In 2012 and early 2013, he worked casually, manufacturing caravans, but the work dried up a short time before the applicant offended again.
3. The applicant has a significant criminal history involving offending occurring between 2002 and 2014. His prior offending includes unlawful assault, intentionally causing injury, assault in company, assault by kicking, resisting police, recklessly causing injury, intentionally damaging property, criminal damage, theft, possessing a prohibited weapon, contravening various court orders, false imprisonment, threatening to inflict serious harm, stalking, being a prohibited person in possession of a firearm, making threats to kill, aggravated burglary, possessing cartridge ammunition without a licence and acting in a manner prejudicial to the good order and security of a gaol. In June 2014, the applicant was sentenced to a term of imprisonment of 5 years, with a non-parole period of 3 years. By reason of that sentence and other sentences imposed upon him, he was in custody continuously between September 2013 and October 2018.

1. On the plea, the applicant's counsel accepted that a custodial sentence had to be imposed.[7] He submitted that a head sentence with a disproportionately lower non-parole period was the appropriate disposition. In support of that submission, the applicant relied upon his plea of guilty (made as it was during the pandemic) and his remorse (demonstrated by his plea of guilty and the proffering of an apology). Relying upon the report of Mr Mackinnon (referred to in proposed ground 1(a)), the applicant submitted that Verdins principles 1, 3, 4 and 5 'to some degree' were enlivened. In Verdins, this court relevantly said:

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

...

1. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
2. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
3. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

... [8]

1. On the plea, the prosecutor accepted that the applicant's plea of guilty was made at an early stage and that the applicant was 'entitled to a discount for his plea'. However, on the issue of Verdins, the prosecutor submitted that careful consideration needed to be given to the evidence and that, properly analysed, the evidence did not establish that any of the Verdins principles were enlivened.

1. Having regard to the competing submissions made on the plea and the terms of proposed ground 1, it is necessary to describe the Mackinnon report in a little more detail.
2. Mr Mackinnon is a consultant psychologist. He was retained by the applicant's lawyers to perform a psychological assessment of the applicant. He performed the assessment 'via video-link' on 9 September 2021. In his report, he noted that he had been provided with copies of the indictment and notice of related summary offences, together with the applicant's criminal history.
3. Mr Mackinnon took a history from the applicant as to his early life, education and employment. The history included the shooting of the applicant's brother, and a denial by prison authorities (in 2017) of the applicant's request that he be permitted to attend his father's funeral. Mr Mackinnon also took a history of the applicant's use of cannabis and alcohol (commencing when he was about 13) as well as a history of his use of ecstasy, amphetamine, methylamphetamine, cocaine, GHB, benzodiazepines, ketamine and buprenorphine. As to the applicant's use of drugs at the time of the offending, Mr Mackinnon said:

Mr Tewaka reported that, by the time of the offences in 2019, he tended to use GHB (typically 75 to 150 mg a day, 5 mg 'a squirt'), cocaine ('heaps') and ice (1.7 to 2 grams), daily, for extended periods, without proper sleep. Mr Tewaka noted: 'Once I start, I don't stop until I blow out for an hour, then I'm up and going again.'

1. Under the heading 'Psychological Assessment/Opinion', Mr Mackinnon said:

In my opinion, at the time I assessed Mr Tewaka, he was suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorders:

POST-TRAUMATIC STRESS DISORDER (PTSD)

POLY-SUBSTANCE DEPENDENCE DISORDER (PSDD)

1. Under the heading 'Current Clinical Summary', Mr Mackinnon said:

In my opinion, at the time I assessed Mr Tewaka, he was suffering with Post-Traumatic Stress Disorder (PTSD) - currently manifested at a mild/residual level.

In my opinion, at the time I assessed Mr Tewaka, he was also suffering with a Poly-Substance Dependence Disorder (PSDD) - most recently entailing abuse of GHB, cocaine and ice, currently in remission as a consequence of him being held in a contained environment for an extended period.

1. In his report, Mr Mackinnon said that at the time he assessed the applicant, the applicant 'appeared to genuinely want to make rehabilitative progress and re-establish the law-abiding and productive lifestyle he followed throughout most of his twenties'.
2. Under the heading 'Psychological State at Time of Offences (14/09/19 & 01/10/19)', Mr Mackinnon said:

In my opinion, at the time of the offences, Mr Tewaka was suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorders:

POST-TRAUMATIC STRESS DISORDER (CPTSD)

POLY-SUBSTANCE DEPENDENCE DISORDER (PSDD)

In my opinion, Mr Tewaka's chronic PTSD and PSDD made a highly significant contribution to his offending by degrading his ability to reason and make sound judgement, eroding his sense of personal responsibility and making him more impulsive and prone to angry, unrestrained, destructive and self-destructive behaviour.

1. Under the heading 'Summary and Opinion' Mr Mackinnon said:

Mr Tehira Tewaka is a 38 year-old man who apparently enjoyed a mostly satisfactory childhood, free of significant abuse or conflict. Mr Tewaka reported that he had grown up in a large, blended family that usually functioned well enough.

However, the tragic death of Mr Tewaka's brother (when Mr Tewaka was 12 years old) appears to have been the primary antecedent to his development of a long standing PTSD and an associated Poly-Substance Dependence Disorder (PSDD) - most recently entailing abuse of GHB, cocaine and ice.

Additionally, the intense distress, rage and sense of injustice that Mr Tewaka experienced in response to his brother's death encouraged his drift to other disaffected, rebellious and delinquent youth and a history of criminal offending eventually followed.

At the time I assessed Mr Tewaka, his PTSD appeared to be manifested at a mild level and his PSDD was in partial remission.

...

In my opinion, should Mr Tewaka be imprisoned for a further significant period for the current matters, he appears likely to cope well enough with imprisonment. However, ... Mr Tewaka appears to be finding imprisonment harder to endure than he has in the past, very much a reflection of maturity, aging, greater insight into the poor choices he has made in the past and a renewed desire to again lead a productive and legitimate lifestyle that revolves around family, friends, employment and sporting/recreational activities.

1. After summarising the applicant's offending, the judge noted that no victim impact statements had been tendered. He said, however, that it was to be inferred, and he found beyond reasonable doubt, that 'the whole experience ... must have been terrifying' for Mr and Mrs Brickell.[9] The judge said that the carjacking offending was aggravated by the applicant's actual violence towards Mr Brickell. While his Honour accepted that there was no evidence of preplanning, he said that the offending was 'a callous and opportunistic carjacking committed upon relatively elderly and defenceless victims who [the applicant] must have assessed to be soft targets for [his] cowardly acts of thuggery'.[10] The judge said that he regarded the offending that occurred on 14 September 2019 as involving serious examples of the two offences to which the applicant had pleaded guilty.[11]
2. The judge summarised the applicant's personal circumstances, including the circumstances surrounding the death of the applicant's brother.[12] The judge described the applicant's prior offending as 'mostly involving violence, threats of violence, possession of weapons, resisting police, offensive behaviour, damaging property and dishonesty'.[13] He said that the applicant appeared to have been treated leniently on a number of previous occasions, having been given repeated opportunities for rehabilitation through community-based orders and an intensive correction order.[14] He noted that it was not until the applicant was sentenced in June 2014 that he received a substantial term of imprisonment.[15]
3. The judge analysed Mr Mackinnon's report in some detail.[16] He said that it was unfortunate that the prosecution had not required Mr Mackinnon to attend for cross-examination in view of the fact that the prosecution took issue with the opinions expressed in Mr Mackinnon's report. The judge noted that the prosecutor explained that the prosecution 'relied on the lack of consistency, logic and persuasive quality of the report itself to support its argument that no causal link had been established between the mental illness and the offending such as to enliven Verdins principles 1, 3 and 4'.[17] Similarly, the prosecution 'disputed the claimed foundation for the application of principle 5'.[18] The judge concluded that the prosecution was justified in taking the course it took in relation to Mr Mackinnon's report.[19]
4. As to Mr Mackinnon's conclusion that the applicant's PTSD and PSDD had made a 'highly significant contribution to [the applicant's] offending', the judge said that he was 'bewildered' that a forensic psychologist was able to reach an opinion, as strongly expressed as that set out in Mr Mackinnon's report, after a single interview via video-link.[20] His Honour said that his 'unease [was] heightened by the fact that there [was] no evidence that in preparation for his interview with [the applicant] Mr Mackinnon was given any relevant background information other than the indictment, the notice of related summary offence and the Victoria Police criminal history report'.[21] His Honour also noted that there was no evidence that Mr Mackinnon sought or obtained any details of the applicant's offending beyond that disclosed in the particulars of the charges in the indictment and in the notice of related summary offence.[22]
5. The judge observed that there were 'other problems with the quality of Mr Mackinnon's report'.[23] The judge noted, as an example of such a problem, the lack of consistency between Mr Mackinnon recording the applicant's apparent wish to 're-establish the law-abiding and productive lifestyle he followed through most of his twenties' with the applicant's criminal history which showed that the applicant was far from law-abiding during most of his twenties.[24]
6. The judge then said:

However, the fundamental flaw in Mr McKinnon's reasoning is the total absence of any qualitative exploration of the possibility of a genuine causal link between the diagnosed mental illnesses and your actual state of mind at the time of the carjacking.

There is no evidence that Mr McKinnon discussed the details of, or motivations for, the offending on 14 September 2019 with you at all. In the absence of such investigation and analysis, I am unable to find that the opportunism inherent in your carjacking offence supports the asserted causal link Mr McKinnon claimed to exist between the offending and your mental illnesses.

And that is particularly in circumstances where you were so obviously the aggressor against vulnerable soft targets, where you initiated the offence of carjacking under no threat from your victims or anyone in the vicinity and where the symptoms of your PTSD as described at p7 of Mr McKinnon's report were:

'Flashbacks, rumination, intrusive thoughts, anxiety, depression, anger and frustration problems, sensitivity to environment cues and triggers, nightmares, chronic interpersonal relationship difficulties, paranoia and mistrust - particularly of authorities, general adult adjustment difficulties and substance abuse.'[25]

1. In relation to Verdins principle 5, the judge noted that Mr Mackinnon assessed the applicant's PTSD as, 'currently manifested at a mild/residual level', and the applicant's PSDD as 'currently in remission'. His Honour said that, in the light of these conclusions, Mr Mackinnon's report provided 'no support for the enlivenment of principle 5'.[26] While the judge rejected the applicant's submission that Verdins principles should be applied in mitigation of sentence, he said that this was not to say that the evidence of the applicant's mental conditions was irrelevant. His Honour said that he would take this evidence 'into account as part of the overall circumstances'.[27]
2. The judge said that, in light of the applicant's criminal record, the applicant's prospects of rehabilitation were guarded.[28] In relation to the applicant's plea of guilty, the judge said:

Your criminal record is substantial; however you have pleaded guilty to each offence and you have indicated those pleas at an early opportunity. In these COVID times you are entitled to receive a substantial and perceptible reduction in sentence for that reason and for the more stringent conditions of your incarceration.[29]

1. The judge said that while it was possible to imagine worse cases of carjacking, he regarded the applicant's carjacking as a serious example of that crime. He said that there was little mitigation in the fact that the offence was opportunistic rather than pre-planned.[30] He described the applicant's conduct as being that of a 'bully, determined to use [his] relative youth, size and greater strength to gratify [his] selfish desires with callous disregard for the effect on [his] victims'.[31]
2. The judge concluded his reasons for sentence as follows:

As well as denunciation, the offence of carjacking requires the sentencing principle of general deterrence to be given considerable weight. The maximum penalty for the offence is imprisonment for 15 years. Your criminal record and your apparent inability to learn from your past experiences and control your impulses also requires proper weight to be given to individual deterrence and protection of the community.

The offence of driving in a manner dangerous was brief but serious, and could have resulted in personal injury.

The offence of possessing a drug of dependence is consistent with your personal use and I treat it as such.[32]

1. Under proposed ground 1, the applicant took issue with the judge's failure to accept Mr Mackinnon's evidence and his Honour's consequential failure to give any weight to Verdins principles. In relation to the judge's conclusion that the fundamental flaw in Mr Mackinnon's reasoning was 'the total absence of any qualitative exploration of the possibility of a genuine causal link between the diagnosed mental illness and [the applicant's] actual state of mind at the time of the carjacking',[33] the applicant submitted:

This is respectfully put to be a conclusion reached in error, as whilst there may be an absence of evidence to establish what exactly was obtained by the psychologist before preparing his report, the conclusion he has drawn about the functioning of the illness is entirely within his field of expertise.

For the learned judge to have reached a finding in contradiction of the expert's opinion, there would have to be some evidentiary basis for him to have done so. There was none in this case.

Alternatively the judge would have had to have found that the expert was not entitled to give his opinion, particularly as it relates to the functioning of the specified mental illness.

To have made this finding, the judge has entered the fray as a contradictor rather than simply rejecting the evidence given.

Any judge is entitled to not accept evidence that is given, however the salient part of this evidence was not that the facts of the offending were relevant to the conclusion drawn but that the mental illness itself gave rise to issues which enlivened the Verdins principles.

The rationale given is not simply that the judge did not accept the evidence, but that he was 'unable to find that the opportunism inherent in your carjacking offence supports the asserted causal link Mr Mackinnon claimed to exist' in the absence of evidence to establish the discussion of the details of the offending.

This simply cannot follow, the causal link between the diagnosed mental illness and the spontaneity, irrationality, lack of forward thinking or self-destructiveness focused on in Mr Mackinnon's report is one that [is] squarely within the expert's realm of expertise.

For the learned judge to have rejected this finding absent of contradictory expert opinion, would mean that as a matter of fact, his Honour would have had to have found that the offending lacked spontaneity, which he clearly has not by way of his reasons for sentence.

1. The applicant also submitted that critical parts of the reasoning of Mr Mackinnon could not be rejected by the judge without contradictory evidence having been tendered, 'as it would require the judge to either weigh competing evidence to make a finding, or to reject the expertise of the expert entirely'.
2. Under proposed ground 2, the applicant submitted that in all the circumstances (including his history of poor mental health) the sentence was manifestly excessive and could be 'viewed as particularly onerous'.

1. There is no substance in proposed ground 1. First, the judge was correct to conclude that nothing in Mr Mackinnon's report enlivened Verdins principle 5. Secondly, the judge was entitled, for the reasons he gave, to reject Mr Mackinnon's opinion that there was any relevant causal connexion between the applicant's PTSD and PSDD and the offending.
2. As this Court has repeatedly emphasised, the question of whether or not Verdins principles are engaged is one that needs to be approached with rigour. Cogent evidence is necessary to establish the existence of an alleged mental impairment, the nature, extent and effect of that mental impairment experienced by the offender at the relevant time, and any alleged causal link between the alleged impairment and the offending.[34]
3. In the present case, the judge engaged in an entirely appropriate examination and analysis of Mr Mackinnon's report. In the course of doing so, his Honour identified the self-evident difficulties with accepting Mr Mackinnon's opinion that there was a causal link between the conditions diagnosed by Mr Mackinnon and the applicant's offending. We see no error in his Honour's approach. Indeed, we would have been surprised if his Honour had come to any different conclusion. The complaints made by the applicant about his Honour's analysis are entirely without substance.
4. In addition to the defects in Mr Mackinnon's report noted by the judge, we would also observe that the report does not comply with the County Court's Practice Note PNCR 1-2017 in a number of respects (notwithstanding a statement at the commencement of the report that Mr Mackinnon has read and complied with a Supreme Court Practice Note in the preparation of the report[35]). Specifically, on the opinion most critically relied upon by the applicant, Mr Mackinnon does not identify the factual foundation for his opinion or the reasons for that opinion.[36] As best as we can determine Mr Mackinnon's reasoning process, it appears to be as follows:

(1) As a result of one video conference with the applicant, Mr Mackinnon diagnosed the applicant as then suffering from mild PTSD, and PSDD which was then in remission.

(2) From a history given by the applicant during the video conference, Mr Mackinnon concluded that the applicant's PTSD and PSDD were more severe at the time of his offending (apparently inferring that the applicant suffered from some relevant symptoms, about which he had given no history).

(3) The PTSD and PSDD the applicant was suffering from at the time of the offending degraded the applicant's ability to reason and make sound judgments, eroding his sense of personal responsibility and making him more impulsive and prone to angry, unrestrained, destructive and self-destructive behaviour.

(4) Without reference to the actual circumstances of the applicant's offending, his actual state of mind at the time of the offending or his motivations for the offending, this degradation in the applicant's ability to reason played an unspecified, but 'highly significant' role in the offending.

1. This form of reasoning, without more, could not provide a satisfactory basis for finding that any of the principles in Verdins were engaged. As we have said, the judge was correct to reject the largely unreasoned, high-level conclusionary opinion expressed by Mr Mackinnon on the issue of causation.
2. Turning to the applicant's complaint that the sentence imposed upon him was manifestly excessive, it is sufficient for us to say that this submission is likewise without substance. The judge was entirely correct to say that the offending that occurred on 14 September 2019 involved serious examples of the two offences to which the applicant had pleaded guilty. The sentences imposed by the judge in respect of those two charges was, if anything, moderate in all the circumstances. Far from being manifestly excessive, it is difficult to see how the judge could have imposed any lesser sentences, any lesser total effective sentence or any shorter non-parole period in this case.[37]

1. The applicant's proposed grounds of appeal are not reasonably arguable. It would thus be futile to grant him the extension of time he seeks. Accordingly, we will refuse the applicant's application for an extension of time within which to file his application for leave to appeal against sentence.

[1] Contrary to s 79 of the Crimes Act 1958.

[2] Contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981.

[3] Contrary to s 64(1) of the Road Safety Act 1986.

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

[5] See Kentwell v The Queen (2014) 252 CLR 601, 613-4 [29]-[33] (French CJ, Hayne, Bell and Keane JJ); Derwish v The Queen [2016] VSCA 72, [55]-[57] (Weinberg AP, Redlich and Kyrou JJA); Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA); Chen v The Queen [2017] VSCA 335, [22]-[23] (Osborn, Whelan and Ashley JJA).

[6] DPP v Tewaka [2021] VCC 1477, [14] ('Reasons').

[7] Carjacking is a Category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991 ('Sentencing Act'). Being a Category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment without a community correction order unless one of the exceptions in s 5(2H)(a) to (e) was established. On the plea, the applicant did not attempt to establish any of these exceptions.

[8] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).

[9] DPP v Tewaka [2021] VCC 1477, [15].

[34] See, eg, DPP v O'Neill [2015] VSCA 325; (2015) 47 VR 395, 412 [68], 415-6 [77]-[81] (Warren CJ, Redlich and Kaye JJA) and Brown v The Queen [2020] VSCA 212; (2020) 62 VR 491, 508 [62] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).

[35] The reference was to the Supreme Court of Victoria Practice Note SC CR 7, which is in identical terms to the County Court's Practice Note PNCR 1-2017.

[36] See specifically cls 4.5 and 6.1(e) of each Practice Note.

[37] See further, s 280(1) of the Criminal Procedure Act 2009 which permits this Court to refuse an application for leave to appeal in relation to any ground of appeal if there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.