The Queen v Hughes [2015] VSC 312

1 On 9 May 2014, Brok Hughes, in a fit of anger, grabbed Zane Bradbury by the back of the neck and threw him towards his bed. As he landed, Zane's head struck the corner of the bed frame and the wall, and possibly the window sill - it is not clear which. Either way, the force was such that Zane suffered a catastrophic sheering injury to his brain from which he later died.

2 The gravity of the incident is increased substantially when regard is had to the fact that Mr Hughes was a 25-year-old man entrusted with the care of Zane, who was just a little boy about to turn four years of age. Zane's sin was to have angered Mr Hughes by ripping a curtain rod from the lounge curtains. Mr Hughes overreacted grossly and criminally. And now Zane is dead.

3 Only a short while earlier, Zane's brother Chase, who was about to turn three, also suffered at the hands of Mr Hughes. As a means of discipline - but just out of anger and cruelty, really - Mr Hughes struck Chase across the buttocks three times with the wooden part of a coat-hanger. He struck him so hard that lineal bruises can be seen on Chase's buttocks in photographs taken by police shortly afterwards.

4 The day before, Zane had suffered a similar fate, albeit not by use of a coat-hanger. Again, as a means of what was said to be discipline, Mr Hughes struck Zane to the buttocks, with his bare hand, but so hard as to cause bruising. The bruising is difficult to discern in the police photographs because of the lividity in the deceased child's body, but it was seen by doctors and Mr Hughes accepts it was there.

5 Mr Hughes was arrested by police and charged with the murder of Zane and with intentionally causing injury to each of Zane and Chase. The Director of Public Prosecutions ("the Director"), however, did not persist with the murder charge. Instead, on 3 June 2015, having earlier filed an indictment charging manslaughter and the injury offences, the Director ultimately filed a fresh indictment charging child homicide and the same two injury offences. Mr Hughes pleaded guilty.

6 It now falls to this Court to sentence him for those crimes.

Procedural history to the charging of child homicide

7 Before turning to the detail of the case, and to sentence, it is necessary to say something more about the circumstances in which the charge of child homicide comes before the Court. While the offence of child homicide has existed in this State since 19 March 2008,[1] this is the first time a person will be sentenced for that offence.

8 As I just said, Mr Hughes was originally charged with murder and injury offences. Prior to the committal hearing, he offered to plead guilty to manslaughter but that offer was rejected.

9 At the conclusion of the committal, which was conducted on 20 November 2014, Mr Hughes pleaded not guilty to murder but guilty to the injury offences. He also repeated his offer to plead guilty to manslaughter. Three months later, on 26 February 2015, the Director accepted that plea offer.

10 The next day, on 27 February, an indictment charging the injury offences and manslaughter was filed in this Court.

11 At a mention on 4 March 2015, upon arraignment before another judge, Mr Hughes pleaded guilty to all charges. The matter was adjourned for a plea in mitigation.

The issue raised by s 5A of the Crimes Act

12 When the matter came on for plea on 1 June 2015, I raised the question whether, in law, Mr Hughes could be found guilty of and sentenced for manslaughter, instead of child homicide, given Zane's age, the parties' acceptance of the elements of manslaughter and the terms of s 5A of the Crimes Act 1958 (Vic).

13 Section 5A, which created the offence of child homicide, provides as follows:

A person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter is guilty of child homicide, and not of manslaughter, and liable to level 3 imprisonment (20 years imprisonment).

14 On 6 December 2007, in his second reading speech on the bill which included the clause that became s 5A, the Attorney-General Mr Hulls explained that the new offence of child homicide was proposed in response to a series of cases over the previous decade involving the manslaughter of young children by those charged with their care. Those cases, it was said, were the subject of public criticism concerning to the sentences imposed, which were thought to be too low when regard was had to the maximum penalty of 20 years' imprisonment.[2] The Attorney said that the new offence would have the same fault elements and maximum penalty as manslaughter, would highlight that the deceased was a young child and would apply in cases where the deceased is under six years of age. He said that "[e]mphasizing the vulnerability of the victim aims to encourage courts to impose sentences that are closer to the maximum term".[3]

15 The Attorney also referred to DPP v Arney.[4] He said that the Court of Appeal had there indicated that sentencing practices in manslaughter cases "appear to ill accord with the requirements of just punishment" and have resulted in sentences that fail to represent the seriousness of the cases. He went on to say that, "[b]y introducing the new offence [of child homicide], the government will give scope to courts to establish a new sentencing practice"; although, "[a]s the offence will be closely related to manslaughter, the sentencing practices for manslaughter will continue to be relevant, but may be less constraining than they have been in the past".[5]

16 In response to my query, the Director, who appeared with Ms Coombes, requested further time to consider his position on the matter. The possibility of filing a fresh indictment charging child homicide instead of manslaughter was raised. With the concurrence of both the Director and Ms Sleeth, who appeared for the accused, and for the convenience of the deceased's family and other witnesses, I heard the prosecution opening, the victim impact statements and some viva voce evidence before adjourning the matter to 3 June to allow the parties time to consider their positions on the issue raised. The understanding was that, if the Director ended up filing a fresh indictment charging child homicide, to which it was expected the accused on arraignment would plead guilty, the evidence received would be treated as if received following that arraignment.

Submissions of the parties on the issue raised by s 5A

17 When the matter returned to Court on 3 June, the Director advised that, in the exercise of his discretion, he had determined to persist with the charge of manslaughter. He submitted that, while it was open to charge child homicide in this case, s 5A does not prohibit him from indicting on a charge of manslaughter in cases where the deceased is a child under six. In his submission, some of those cases would not be embraced by the intent expressed by Parliament in s 5A and in the Attorney's second reading speech. He gave the example of a serious car accident in which, say, an adult and a child under six were both killed. He submitted that child homicide might not be, but manslaughter might be, the appropriate charge concerning the child in such a case. In his submission, there is nothing in the language of s 5A or in the extrinsic materials which suggests that Parliament, by the enactment of s 5A, intended to cover the field and oust the well-entrenched offence of manslaughter as an available option in cases where the deceased is a child under six. Finally, the Director submitted that, since it was open at law, it was in the interests of justice to proceed with the indictment charging manslaughter given the case resolved at an early stage as a plea of guilty to that charge.

18 Ms Sleeth submitted that the words "but for this section" and "and not of manslaughter" in s 5A do not oust manslaughter in cases such as the present, where the deceased is under six. In her submission, the words "is guilty of child homicide, and not of manslaughter" simply point to the fact that child homicide may be charged instead of manslaughter, but do not preclude manslaughter when the deceased is under six. It was submitted that, if the legislature had intended to oust the possibility of manslaughter in circumstances where the deceased is under six, clearer words - such as a specific provision saying so - would be required.

Construction of s 5A

19 As I indicated at the time, the words of s 5A appear to be plain. They seem to me to mean that, if a child is under six and is killed by another person in circumstances that, but for the provision, would amount to manslaughter, that person will be guilty of child homicide, and not of manslaughter - that is to say, the person cannot be guilty of manslaughter in such circumstances.

20 I do not accept that the provision is to be construed as allowing an accused to be guilty of either child homicide or manslaughter when the deceased is under six. While I understand the Director's concern that it may be preferable if he retained the discretion to charge manslaughter, and not child homicide, in some cases where the deceased is under six, there is nothing in the text of the provision that allows such a construction. Indeed, to construe the provision in the way contended for would require me to read into s 5A words that are simply not there.

21 And while I would be more comfortable with my own construction if there were another provision expressly providing that manslaughter is not available when child homicide is made out, I cannot escape the conclusion that the words of s 5A have precisely that effect.[6]

22 It might have been - but was not - argued that, since it is sometimes said that a jury has a constitutional right to return a verdict of guilty of manslaughter on a charge of murder, manslaughter must still be available as an alternative verdict in cases where murder is charged in respect of the killing of a child under six, which in turn suggests that s 5A should not be read as ousting manslaughter in all cases where children under six are killed in circumstances that otherwise would amount to manslaughter.

23 Section 421(1) of the Crimes Act provides that, on an indictment for murder, a person found not guilty of murder may be found guilty of manslaughter, child homicide or other specified offences, but not of any other offence. Thus, the legislature, by s 421(1), has ensured that child homicide is an available alternative verdict on a murder charge but has not expressly answered the question whether manslaughter is an available alternative verdict on a murder charge when the deceased is under six.

24 In my judgment, however, the better view is that s 421(1) is to be read in light of s 5A, so that child homicide would be - but manslaughter would not be - available as an alternative verdict on a murder charge when the deceased is under six. Of course, if a case arose in which there was some dispute about whether the child was under six at the relevant time, both alternatives would have to be left and the alternative verdict chosen, if it became necessary to do so, would be determined by the jury's finding as to the deceased's age at the relevant time.

25 It might also have been - but was not - submitted that basic principles of statutory construction would require that, to be guilty of child homicide, mens rea - perhaps in the form of knowledge or belief by the accused - would have to be established with respect to the child being under the age of six. If that were so, then, in cases where such proof was lacking, manslaughter would still be available even though the child was under six. That outcome might address the concern the Director had about his car accident example and like examples, at least where the deceased is unknown to the accused.

26 On the other hand, if s 5A were thought to cover the field in cases where the deceased is under six but only where the accused knew or believed that to be so, that would not have alleviated my concern in the present case, because there can be no doubt but that Mr Hughes knew that Zane was under six.[7]

27 In any event, in my opinion, the better view is that child homicide does not require proof that the accused knew or believed that the deceased was a child under six. The opening words of s 5A - "[a] person who, by his or her conduct, kills a child who is under the age of 6 years in circumstances that, but for this section, would constitute manslaughter" - suggest that is correct, for manslaughter does not, as a matter of law, require proof of any belief in the age of the deceased and, as the Attorney said, the new offence will have the same fault elements as manslaughter.

28 To be sure, in some cases of manslaughter, including those concerning the killing of children, and therefore in cases of child homicide, an accused's knowledge of the age of the deceased may be relevant to determining whether the relevant test for manslaughter by an unlawful and dangerous act or manslaughter by criminal negligence is made out or whether defences such as self-defence and lawful correction are excluded. But that does not mean an element of mens rea with respect to the age of the deceased is imported into the offences of manslaughter and child homicide.

Potential consequences if manslaughter persisted with

29 I return now to the course taken in the present case.

30 My concern was that, if the words in s 5A mean what I think they mean, then this Court had no jurisdiction to accept Mr Hughes's plea of guilty to manslaughter and would have had no power to sentence him for such an offence. If I wrongly accepted the Director's and Ms Sleeth's submissions and the accused were sentenced for manslaughter, he could appeal against his conviction to the Court of Appeal, the appeal would succeed and the conviction and sentence would be set aside. Further, it is likely that that Court would have no power to remedy the situation by substituting a conviction and sentence for child homicide.[8] While the Director then might be able to file an indictment with this Court charging child homicide, it might be said against him that he should not be allowed to take such a course when this very issue was raised at a time when it could have been corrected. In my view, any one of those outcomes would not have been conducive to the proper administration of criminal justice, to say the least.

31 Equally, if the Director persisted with the manslaughter charge, given my construction of s 5A, I would have been compelled to order a permanent stay of that part of the indictment. If the Director disagreed with that construction and that order, he could appeal to the Court of Appeal. While that would be a proper course, it would have the disadvantage of delaying the conclusion of this matter. Again, that would be in nobody's interests.

32 Another way of remedying the latter impasse, and, equally, of avoiding the legal fiasco that would result if I wrongly acceded to the parties' submissions and sentenced Mr Hughes for manslaughter, would be for the Director to file a fresh indictment charging child homicide instead of manslaughter, particularly if the accused were prepared to plead guilty to that charge.

33 That, to my way of thinking, would be all the more appropriate a course to take in circumstances where I took the view that the sentence for child homicide in this case should be no different from the sentence for manslaughter, if that offence were available. While the Attorney's remarks in the second reading speech make clear that he considered that the new offence of child homicide might give rise to higher sentences for child killings than those that had been imposed for similar cases of manslaughter, a close reading of the authorities to which he referred - DPP v Arney[9] and also DPP v McMaster[10] - already signalled an increase in the order of sentences that had been imposed hitherto for manslaughter of children in circumstances such as the present. More of that later. Further, the maximum penalties for the two offences are the same. Further still, as the Attorney recognized, sentencing practices for the manslaughter of children would continue to be relevant to child homicide, since the latter offence is comprised of the elements of manslaughter (other than the age requirement) and both offences carry the same maximum penalty.

34 Finally, whatever the appropriate sentencing range might be for offences of child homicide in other cases, in the present case, it would be unfair to both parties to impose a sentence that was any different from that which might have been imposed for manslaughter, had that charge been available, in circumstances where both parties already had settled the case as one of manslaughter and were urging me to proceed with and sentence the accused for that offence, despite my views about the construction of s 5A.

35 After I raised these views with the parties, the Director sought to have the matter stood down to allow discussion with Ms Sleeth.

36 Upon the resumption, the Director announced that he would seek to file a fresh indictment charging child homicide (as well as the same two injury offences). The fresh indictment was filed, which had the effect of discontinuing the proceedings in relation to the charges on the previous indictment.[11] Mr Hughes was arraigned and pleaded guilty to all three charges on the fresh indictment.

The legislature might examine the issues that arise

37 Before leaving this issue, I shall make five further observations. First, since the course taken by the parties meant that I did not have to make a formal ruling on the matter, it also means that most of the foregoing remarks on the construction of s 5A are strictly obiter.

38 Secondly, however, whether or not my preferred construction is correct, there is at least enough in the arguments I have considered to doubt whether manslaughter, when the deceased child is under six, is still an offence known to the law in this State.

39 Thirdly, the Director advised that his researches thus far had revealed one case in which, since the introduction of s 5A, a person had been sentenced for the manslaughter of a child under six.[12] There may be others. If my construction of s 5A is correct, any such conviction and sentence would be open to challenge.

40 Fourthly, while it is, of course, a matter for the legislature, it seems to me that the Director's point - namely, that there might be cases in which he should have the freedom to indict on manslaughter instead of child homicide when the deceased child is under six - is one that might be considered carefully.

41 Finally, in my view, these and related questions are matters that the legislature might consider at the first reasonable opportunity.

43 The Director outlined a summary of the facts surrounding the offending from a document entitled Prosecution Opening on Plea Hearing.[13]

44 In the summary that follows, I will draw on that document, the depositions, the photographs and other information I was given by the parties on the plea.

45 Charo Cunning and Coen Bradbury commenced a relationship in 2010. Initially, they had two children: Zane Bradbury, born on 15 June 2010; and Chase Bradbury, born on 27 June 2011. They all lived with Ms Cunning's mother Charito Cunning in Bayswater. Charito supported her daughter in raising and caring for the children.

46 By Valentine's Day 2012, the relationship between Mr Bradbury and Ms Cunning had broken down to the point of separation. Their third child Vivica Cunning was born on 24 November 2012, well after Ms Cunning and Mr Bradbury had separated.

47 Thereafter, Ms Cunning and the children moved from place to place. They moved to Perth in February 2013; then back to Charito's home in Bayswater for a month in June 2013; then to a house in Hoppers Crossing with Ms Cunning's friend; and then back to Charito's home in November after a falling out between Ms Cunning and her friend.

48 Zane Bradbury was a very bright boy. He liked television and his Pikachu. His grandmother described him as a chatterbox who made friends easily and looked after his brother and sister.

49 In late-2013, Mr Hughes commenced a relationship with Ms Cunning. They had known each other previously. Mr Hughes was born on 28 September 1988. He was aged 25 at the time of the offending and is now 26.

50 In early-2014, Mr Hughes moved into Charito's home with Ms Cunning and the children. Also living at the house was Charito's partner Anthony Harrison. One evening in late-March, Charito saw Mr Hughes smacking Chase after he came out of his room asking for a bottle of milk. When challenged about this, Mr Hughes said, "I can discipline the children; Charo told me I could." Charito confronted her daughter about this incident, and about leaving the children unattended. Ms Cunning defended Mr Hughes, after which Charito told them to leave the house.

51 About a week later, Mr Hughes, Ms Cunning and the children moved to 135 Widford Street in Glenroy. Each of the three offences occurred at this address. While they lived there, the children had limited contact with others. Their grandmother and Mr Harrison visited on only a few occasions, as they felt unwelcome. The children were largely neglected by Mr Hughes and Ms Cunning. Mr Hughes would smack and yell abuse at them. Their disposition changed from happy and spontaneous children to unduly subdued.

Charge 1: Intentionally causing injury to Zane Bradbury

52 I turn now to the circumstances giving rise to Charge 1, that of intentionally causing injury to Zane Bradbury.[14]

53 At the time of the offending, Zane was aged three years and 11 months.

54 In his written statement to police, which was signed at 4:07 p.m. on 9 May 2014, Mr Hughes said that "Zane would have a bruise on his [buttocks]" as a result of smacking by him and Ms Cunning at home earlier that morning. He said that "Zane got the smack because he had refused to go to the toilet and ended up wetting himself". Zane was "made to sit in the 'naughty corner' ... for about half an hour".[15] Subsequently, in a recorded interview conducted the same day, police referred Mr Hughes back to what he had said in the written statement and then asked how many times Zane was smacked. Mr Hughes responded, "Not many."[16]

55 Earlier in the same interview, when asked how the bruising on Zane's buttocks came about, Mr Hughes said it was from being smacked, but before 9 May.[17] It is this earlier smacking - which occurred on or around 8 May - that is relied on as causing bruising to the buttocks and as giving rise to the charge of intentionally causing injury to Zane.

56 The Director conceded that the bruising is difficult to discern in the police photographs because of the lividity in Zane's body. Nevertheless, it was accepted by Ms Sleeth that there was bruising on Zane's buttocks attributable to Mr Hughes's smacking.[18]

57 In this context, "injury" means "physical injury" whether temporary or permanent; and "physical injury" includes unconsciousness, disfigurement, substantial pain, infection with a disease and an impairment of bodily function.[19]

58 Ms Sleeth accepted that it would be open to me to find that the smacking caused, and that Mr Hughes intended to cause, bruising and substantial pain. I am satisfied, beyond reasonable doubt, that the smacking of Zane on the buttocks on or about 8 May caused, and that Mr Hughes intended to cause, bruising and substantial pain.

Charge 2: Intentionally causing injury to Chase Bradbury

59 I turn now to the circumstances giving rise to Charge 2, that of intentionally causing injury to Chase Bradbury.

60 At the time of the offending, Chase was aged two years and 11 months.

61 On 9 May 2014, Mr Hughes, when angry, apparently because Chase had pulled down a curtain rod in the lounge room, picked up the wooden part of a coat-hanger from the kitchen floor and used it to smack Chase three times across the buttocks.[20] Mr Hughes said Chase was not doing what he was told and that he "got carried away".[21] While Mr Hughes said "it wasn't that hard",[22] the force used was such as to have left two sets of parallel linear petechial bruises on Chase's buttocks.[23]

62 Ms Sleeth accepted that it would be open to me to find that the hitting of Chase on the buttocks with the coat-hanger caused, and that Mr Hughes intended to cause, bruising and substantial pain. I am satisfied, beyond reasonable doubt, that the hitting of Chase on the buttocks with the coat-hanger on 9 May 2014 caused, and that Mr Hughes intended to cause, bruising and substantial pain.

63 I turn now to the circumstances giving rise to Charge 3, that of child homicide of Zane Bradbury.

64 According to Mr Hughes's account ultimately given towards the end of his interview with police in the early hours of 10 May 2014, both Zane and Chase had been involved in the curtain rod incident, and both "were in trouble together".[24] He said that Zane "was just being a terror", had "ripped a curtain rod off the curtains and was jumping all about and just doing the wrong thing in general".[25] Mr Hughes and Ms Cunning "both yelled at him and 'told him off'".[26] It was decided that Mr Hughes would take Zane to his bedroom for 'time out'. On the way to the bedroom, he smacked Zane, who was crying hysterically, on the buttocks.[27]

65 Mr Hughes then grabbed Zane by the back of the neck and threw him onto his bed. As he landed, Zane's head struck the corner of the bed frame and the wall, and possibly the window sill.[28]

66 Zane's bed was positioned in the corner of the room. The bed-head was flush against one wall. Above the right-hand side of the bed, which was flush against the other wall, was a window.[29]

67 Mr Hughes said that Zane was facing him when he was thrown. He said that Zane "would have landed on his back on [the] bed" had he not "throw[n] him as hard", but that, "because of how I threw him, his head went into the corner" and he hit "[t]he back and top of his head" in the corner, and possibly the right side of his head on the window sill.[30]

68 Mr Hughes said that the throwing of Zane against the wall occurred about 15 minutes after he struck Chase with the coat-hanger.[31]

69 He realized quickly that Zane was hurt. He was unresponsive and unconscious.[32] Mr Hughes called out to Ms Cunning "pretty much straightaway", but did not tell her the truth about how Zane had been hurt.[33] It seems he told her Zane must have fallen off the bed when jumping. After Ms Cunning took Zane into her arms, he vomited, so Mr Hughes carried him to the shower.[34] He used the shower both to clean Zane and to help him regain consciousness. While there, he had to hold Zane up but he appeared to be "coming around".[35]

70 Mr Hughes then dried and dressed Zane, returned him to his bedroom and placed him on the bed. Zane was groaning at this stage. Mr Hughes and Ms Cunning then left him for 10 or 15 minutes.[36]

71 Upon their return, Zane was still in the same position and "still wasn't getting any better".[37] His "eyes were drooping and he was moaning".[38] There was a little bit of blood in the corner of his mouth.[39] They used a torch to shine into his eyes but there was no response.[40] They talked to Zane for about half an hour in order to get a response from him.[41] But his breathing started to slow down, so Ms Cunning called an ambulance.[42] This occurred at 1:28 p.m.[43]

72 Ms Cunning told the Triple 0 operator that her son had been jumping on the bed with his brother and he fell and hit his head.[44] During that call, Zane stopped breathing. Mr Hughes then administered CPR under the direction of the Triple 0 operator.[45]

73 At 1:35 p.m., paramedics arrived. Zane was unconscious, not breathing and without a palpable pulse. The paramedics commenced CPR and other resuscitative efforts. They transferred Zane to the Royal Children's Hospital at 2:18 p.m. He arrived at 2:41 p.m. in a state of cardio-respiratory arrest. Efforts to revive Zane continued at the hospital but he died at 3:50 p.m.

Initial medical examination of Zane Bradbury's head injury

74 The clinical examination of Zane by Dr Beverley Thompson at the hospital earlier, at 2:46 p.m., recorded bruising and two areas of boggy swelling to Zane's scalp - one over the occipital region, the other over the right parietal region. There was also a closed head injury.[46]

75 The next day, on 10 May, an autopsy was conducted by forensic pathologist Dr Michael Burke. He found bruising to the right parietal scalp, the back part of the head (occiput) in the midline and the left lateral scalp. There were no skull fractures. The brain was markedly swollen with patchy subarachnoid blood seen over the right cerebral hemispheres. There was a thin film of subdural haemorrhage over the right cerebral hemisphere. The neuropathological examination of the brain showed diffuse axonal injury. Diffuse axonal injury is the result of traumatic shearing forces that occur when the head is rapidly accelerated or decelerated, usually as a result of rotational force or severe deceleration. Dr Burke opined that the cause of death was blunt force head injury.[47]

76 Prior to the autopsy, Dr Burke conducted an external examination of other parts of Zane's body. He found extensive bruising over the buttocks covering an area measuring 22 centimetres by 16 centimetres.[48] In her examination of Zane at the hospital, Dr Thompson also noted bruising to his buttocks.[49]

77 Both Dr Burke and Dr Thompson also noted other bruising, including to Zane's face, chest, back and knees.[50] These bruises, however, do not form part of the injuries giving rise to the charges concerning Zane to which Mr Hughes has pleaded guilty and on which he is to be sentenced.

78 On 9 May 2014 at 6:30 p.m., Chase was examined by Dr Zoe Asher, Fellow in Forensic Paediatric Medicine, at the Royal Children's Hospital. She found bruising over his buttocks. These included two sets of parallel linear petechial bruises.[51]

79 Dr Asher concluded that these bruises were evidence of forceful blows delivered at high velocity with a linear implement.[52]

80 Dr Asher also found other bruising, including to Chase's buttocks, face, forehead, ears, neck and back.[53] Again, however, these bruises do not form part of the injuries giving rise to the charge concerning Chase to which Mr Hughes has pleaded guilty and on which he is to be sentenced.

81 Paramedics attending the scene called police. Mr Hughes was taken by police to Fawkner Police Station at 2:44 p.m. the day of the incident. As indicated earlier, he made a written statement at the station at about 4:07 p.m. Later, he was formally interviewed by police.

82 Initially, in both his written statement and in his recorded interviews with police, Mr Hughes gave a false account of how Zane came to be so seriously injured as to require an ambulance.

83 In his written statement, he said that he was in the lounge watching television with Ms Cunning when he heard a loud bang and Zane crying in the bedroom. He said he then rushed into the bedroom to find Zane lying down and that he had vomited.[54] Apart from the fact that Zane had vomited, this was untrue.

84 The first recorded interview by police, which was conducted by Detective Leading Senior Constable Erol Ali and Detective Senior Constable Paul Kelso, commenced at 5:27 p.m. It was during this interview that Mr Hughes first made the admissions referred to earlier about smacking Chase on the buttocks three times with the wooden part of a coat-hanger.[55] He said he did not know how Chase had sustained his other bruises.[56] Also during this interview, Mr Hughes first made the admission that Zane too would have bruises on his bottom as a result of being smacked, but not with a coat-hanger or the like.[57] This interview was ultimately suspended at about 6:34 p.m.

85 At about 8:30 p.m., Detective Ali and Detective Sergeant Troy Papworth informed Mr Hughes that Zane had died. They then commenced a second interview, this time in respect of Zane's death. That interview was suspended at 8:42 p.m.

86 At 12:17 a.m., a third interview was commenced, this time by Homicide Squad officers Detective Senior Constable Victor Anastasiadis and Detective Senior Constable Tony Hupfeld. Initially, Mr Hughes repeated in essence the false account he had given in his written statement of how Zane had come to be seriously injured, and he expressly adopted that statement.[58] He then made further admissions, which were referred to earlier, about causing bruising to Zane and Chase's buttocks by smacking, including with the coat-hanger in Chase's case. Police then suspended the interview at 1:19 a.m.

87 This third interview was recommenced at 2:05 a.m. Upon the resumption, Detective Anastasiadis referred to Mr Hughes's having confessed to, or told, Detective Hupfeld about "an incident" during the break in the interview. Mr Hughes then made the admissions referred to earlier about grabbing Zane by the back of the neck, throwing him onto the bed, causing him to hit his head and how he dealt with the aftermath of that incident.

88 When asked whether there was anything he wanted to say about his decision to throw Zane and his decision not to call an ambulance straightaway, Mr Hughes said this:[59]

I really wish this had never happened. I wish I hadn't ... thrown him, and I wish I had known that it was serious enough to call an ambulance straightaway. ... I've never dealt with anything like that before; I just panicked. ... If I'd known it was his life on the line I definitely would have called, like, the first second of me throwing him. I had no idea.

89 Mr Hughes admitted that his earlier account in the written statement and in the record of interview - about Zane jumping on the bed, and then hearing a fall - was untrue.[60]

90 I received three victim impact statements[61] on the plea - one each from Ms Cunning, Charito Cunning and Andrew Perry, who is Zane's paternal grandfather. Mr Perry read his statement to the Court and Charito Cunning had hers read by Ms Coombes. I have read the statements again when preparing these reasons.

91 They are profoundly moving documents. All authors speak of the terrible grief and loss they have suffered as a result of Zane's untimely death.

92 Ms Cunning said that her life, and the lives of her children and family, will never be the same. She fears none of them will recover. She feels numb, but so numb that it hurts.

93 Charito Cunning said that Zane, a beautiful little boy with his whole life ahead of him, will only ever be three years old. She does not think her grief will ever pass.

94 Mr Perry said that Zane was an intelligent, observant and perceptive little boy. He wishes he could have been there to protect him. His grief is beyond painful.

95 I have had regard to the contents of those victim impact statements in sentencing Mr Hughes for the child homicide of Zane Bradbury.

96 I turn now to an assessment of the nature and gravity of the offences and Mr Hughes's culpability and degree of responsibility.

97 Before turning to other aspects of each particular offence, I should point out a few things about the defence of lawful correction.

98 In this State, the common law defence of lawful correction still exists. In some circumstances, that defence potentially excuses what otherwise would be an assault of a child - and even more serious offences, such as intentionally causing injury, manslaughter and therefore child homicide[62] - by a parent, or a person authorized by the parent.

99 In 1954, in R v Terry,[63] a murder/manslaughter trial concerning the death of a nineteen-month-old child occasioned by a man living with the child's mother,[64] Sholl J directed the jury that a parent has "a lawful right to inflict reasonable and moderate corporal punishment on a child for the purpose of correcting the child in wrong behaviour".[65] His Honour pointed out, however, that there are "exceedingly strict limits on that right".[66] In particular, he went on to explain the following to the jury in that case:[67]

In the first place, the punishment must be moderate and reasonable. In the second place, it must have been proper in relation to the age, physique and mentality of the child, and, in the third place, it must be carried out with a reasonable means or instrument. For example, in the case of a healthy boy of fourteen, a father might lawfully cane him with a reasonable cane and, if he was persistently disobedient, might be justified in caning him quite severely, that is to say, with the object of causing some pain. So also a person duly authorized by a parent may act in his or her place, and there is uncontradicted evidence from the child's mother that she expected that the accused, after something that she had said to him, might smack [the child] if she did not do as she was told. But that merely means that the accused might, by lawful delegation from the mother, have administered such a smack as the mother might lawfully administer if she herself might lawfully administer one.

Now, I tell you, as a matter of law, that a parent is not lawfully entitled to administer to an infant girl of nineteen months any physical punishment except of the very lightest description, for example, a slight slap at the very most. And no person delegated or authorized by the parent is entitled in law to do any more. Indeed, the Courts have held that even in the case of ... a child of two-and-a-half years old, that is the most that a mother can lawfully administer. But when one sees, as one sometimes does in this community, parents administering a much harder punishment to children of such ages, it is worth remembering that they are acting unlawfully. A really hard blow anywhere, even with an open hand, would be quite beyond what the law allows even to a parent in the case of a child of nineteen months of age, still more so if administered with the closed fist or some other instrument. Correction in law applies only to a child capable of appreciating correction, and violent physical force cannot be lawfully applied at all to a baby of nineteen months just able, as this baby apparently was, to say little words like "Mummy" or "ta". You may think, gentlemen, that in laying down the law in the way in which I have just been outlining it to you, the lawgivers of the past have proceeded on a basis which appeals both to your humanity and to your common sense.

If in the course of administering strictly lawful correction to a child - and I have told you how narrow the limits of it are in the case of a baby of nineteen months of age - a parent or person authorized by the parent accidentally occasions death, it is not murder or manslaughter, but death by misadventure. For example, if on a mother attempting lawfully to smack an older child, it tried to evade her and fell and was killed, that would be death by misadventure, because the mother would merely have been attempting to administer lawful punishment within proper limits and the rest would be accident. ... If, however, a parent or a person authorized by the parent to chastise a child for the purpose of correction, strikes the child not with any genuine purpose of chastisement and correction at all, but out of spite, rage, fury, anger or ill-will, then the doctrine of chastisement and correction has nothing to do with the case and, if the person concerned hits the child with the [state of mind required for murder], and death results, that person is guilty of murder. That is the case of a person who, though a parent or a person authorized by a parent, acts by way of anger or fury or violence without any genuine intention to correct or pretence of correction. But if a parent or person authorized by a parent, with the purpose of chastisement or correction, with that genuine purpose, or at all events initially with that purpose, strikes a child but goes beyond what the law allows in relation to the degree of force or the nature of the blows or the nature of the instrument used, and the child dies, then that is either murder or manslaughter, according to the circumstances. If the excess of the punishment, intended as such, though gross and brutal, was such that [the elements of manslaughter were established], as, for example, where a father strapped a two-and-a-half-year-old child on its legs and buttocks and it died from shock, then that is manslaughter; but if, though intended as punishment, the acts of the accused were [accompanied by the state of mind required for murder], and death results, that is murder. ...[68]

100 It might be thought at least anomalous that what would not be a defence to an allegation of assaulting or killing an adult could be a defence to an allegation of assaulting or killing a child who, after all, usually will be more vulnerable than an adult. Presumably, thoughts of this kind are among the reasons why several countries have removed lawful correction as a defence to assaults and related offences against children.[69] Mine is not to reason why the same should or should not be so in this State. Again, that is a matter for the legislature to determine.

101 That said, I suspect that the contours of the defence of lawful correction might not be regarded the same today as they were over 60 years ago, when Sholl J's directions were given. For example, I doubt whether many, if any, 14-year-old boys today would tolerate a caning from their parents. Further, my guess is that many in the community would regard that as the wrong thing to do.

102 But, whatever may be the contours of the defence of lawful correction today, it is clear that, by his pleas of guilty, Mr Hughes accepts that no such defence was applicable to his behaviour in injuring Zane and Chase and in engaging in the behaviour that led to the death of Zane.

103 That is not to say that it is irrelevant to an assessment of his culpability that he was authorized by the children's mother to smack them. It is. In my view, these would be worse examples of intentionally causing injury and of child homicide if Mr Hughes had no right, and believed he had no right, to administer corporal punishment of some description. But it is plain that, in each case, he went far too far, and acted criminally in doing so, and gravely so and with tragic consequences when he threw Zane towards the bed in the manner in which he did.

104 The offence of intentionally causing injury involves intentionally causing injury to another person and carries a maximum penalty of ten years' imprisonment.[70]

105 It is an offence that can vary a great deal in seriousness. A charge alleging such an offence can be, and usually is, heard summarily in the Magistrates' Court. In this case, the charges were, of necessity, heard in this Court given their connection to the homicide. Had these offences been committed in isolation, they could have been dealt with in Magistrates' Court quite comfortably.

106 In the present case, the injuries sustained - namely, bruising and substantial pain - are, objectively speaking, at the lower end of the spectrum of injuries that can constitute this offence. Further, these were not planned offences. Rather, Mr Hughes simply reacted spontaneously to the children's perceived naughtiness.

107 On the other hand, that the offences were committed against young, vulnerable and defenceless children in Mr Hughes's care in their own home, in breach of the trust reposed in him to look after them, makes them all the more serious.

108 While I suspect that many parents, and many in loco parentis, reach the end of their tether at some point in response to perceived misbehaviour of children in their care and react in ways that are hardly models of good and sensible parenting, in my view, there is an element of cruelty and nastiness, not discipline, in intentionally smacking so hard as to mean to cause bruising and substantial pain in any children, let alone children of only nearly three and four.

109 While both offences are so serious as to warrant imprisonment, the offence against Chase is the more serious of the two, given that he is younger and presumably more vulnerable and that an implement was used to hurt him. To my way of thinking, the use of the wooden part of a coat-hanger to strike a two-year-old child three times in anger involves an additional element of nastiness and cruelty.

110 As I have explained, child homicide is a new statutory offence the maximum penalty for which is 20 years' imprisonment.[71]

111 The offence is serious, by definition. The life of a three-year-old boy has been lost as a result of behaviour that otherwise would amount to manslaughter. When a child pre-deceases his parents, and his grandparents, it reverses the natural order of things. Such a death must be all the more unbearable when the child is so young, as Zane Bradbury was, and is taken as a result of criminal behaviour by a person entrusted with his care.

112 The form of manslaughter relied on in the present case to found the charge of child homicide is manslaughter by an unlawful and dangerous act. This means that, while Mr Hughes did not have an intention to kill or to cause really serious injury (or recklessness thereto) when he grabbed and threw Zane, for otherwise it would be murder, his plea of guilty means that he accepts that his conduct did involve an unlawful act in the form of an intentional assault and that a reasonable person in his position would have realized that, in throwing a three-year-old boy in that manner and in those circumstances, he was exposing the child to an appreciable risk of serious injury.

113 While manslaughter is one of the more serious crimes known to the law, the circumstances of its commission, and the resulting sentences, vary widely. The same is likely to be so for child homicide, although the variation might be narrower, for two reasons. First, by definition, every deceased will be a child under six. Secondly, while voluntary manslaughter was the category of manslaughter usually regarded as the most serious, that category could never form a basis for a child homicide charge, because provocation was abolished as a defence to murder from 23 November 2005, i.e. before the creation of child homicide.[72]

114 Manslaughter by unlawful and dangerous act was usually regarded as a rung lower in the scale of seriousness than voluntary manslaughter; and then manslaughter by criminal negligence was another rung down. Often, there will be a lower level of moral culpability in the offender who killed by criminal negligence than the one who killed by an unlawful and dangerous act. This is because, in most cases of criminal negligence, there will be no intent on the part of the offender to cause any harm whatever to the victim whereas such an intention usually will be present in cases of manslaughter by an unlawful and dangerous act. But there is no inflexible rule. Some instances of manslaughter by criminal negligence will be more serious, and result in heavier sentences, than instances of manslaughter by an unlawful and dangerous act. Each case must turn upon its own particular facts. Nevertheless, a survey of the authorities shows that sentences for manslaughter by criminal negligence, in Victoria, have generally been more lenient than those imposed for other forms of manslaughter.[73] A similar pattern is likely to emerge in sentences for child homicide.

115 In the present case, the unlawful and dangerous act committed by Mr Hughes involved a high degree of culpability. The act of grabbing and throwing the child was committed in anger, and involved a substantial level of dangerousness. The sheering injury to Zane's brain demonstrates that he must have hit the wall, bed-head and/or window sill quite hard, which in turn means he must have been thrown with a good deal of force. This was a very aggressive and culpable thing to do.

116 Ms Sleeth pointed out that Mr Hughes had been smacked with a wooden spoon as a child; that he and Ms Cunning were both of the view that smacking was allowed; that they were young, had no professional assistance, were unemployed and were struggling with three children under the age of four; that they were using drugs regularly; and that Mr Hughes had used marijuana on the day Zane was killed. While those matters place Mr Hughes's behaviour in context, and perhaps give a clue as to how things got out of hand, they do not, to my way of thinking, mitigate his crimes in any meaningful way. The fact is that Mr Hughes accepts he was angry and frustrated at the time of throwing the child. While anger and frustration may be understandable, neither emotion meaningfully mitigates behaviour of this kind in relation to one so young and so vulnerable. In my judgment, there is very little to be said for his behaviour but that it was gravely criminal, albeit spontaneous.

117 As in the case of the injury offences, so too in the case of the offence of child homicide, that Mr Hughes violently and dangerously threw a young, vulnerable and defenceless child in his care, in breach of the trust reposed in him to look after the child, makes it all the more serious.

118 Further, in my view, the substantial delay in calling an ambulance aggravates the offending. While Mr Hughes told police that he panicked, that he did not realize it was serious enough to call an ambulance immediately and that he would have done so "if [he had] known it was his life on the line", the simple fact is that, when a three-year-old child has hit his head so hard as to be unconsciousness, vomiting, unable to stand and unresponsive, any reasonable parent or adult entrusted with the child's care would seek medical attention immediately. I accept that the child's mother did not see fit to ring the ambulance earlier either, but she did not know how hard or the circumstances in which the child had hit his head, because Mr Hughes had not told her the truth about how he came to be in that state. I accept that Mr Hughes was relatively young and inexperienced with parenting, and that he was in a state of panic, but I am also satisfied that there was an element of self-protection in his failure to seek medical attention immediately. Mr Hughes's first duty was to the child, not to himself. I should add that there is no evidence that Zane would have survived had he received medical treatment sooner. Nevertheless, it was morally wrong to fail to seek such treatment immediately.

119 On the other hand, I am not satisfied that Mr Hughes intended or foresaw that Zane would hit his head against anything solid when he threw him. I am satisfied that he was angry and intended perhaps to frighten the child, and even to bruise him again, but not that he intended to cause him any serious harm. Rather, I cannot exclude the reasonable possibility that he expected, albeit unreasonably given the force that must have been employed, the child to land on the bed without serious harm. In this respect, the case is somewhat less serious than some of the cases of manslaughter of children which have come before this Court in the last 15 years or so.

120 Nevertheless, a child's life has been lost in criminally culpable circumstances. In the course of his sentencing remarks in R v Dempsey,[74] a case which involved the manslaughter by a father of his infant son, Vincent J said this:[75]

I have on many occasions when handing down sentences upon persons who have through unlawful actions brought about the death of another, referred to the inviolability of human life as a fundamental precept of our society and our law. When the life lost is that of a child for whose welfare the perpetrator was as parent, guardian and simply as an adult human being personally responsible, the situation must be viewed very gravely. After all, the true value of any community must be assessed in terms of the degree of genuine recognition that it gives to the rights and dignity of its most vulnerable and disadvantaged members. The courts, in my opinion, have an obligation through the sentences that they impose upon persons who act as [Mr Dempsey has] done, to endeavour to protect those who are so exposed, be they young or old, against the violent abuse of physical power. Perpetrators who criminally beat or otherwise hurt children as a means of relieving their own sense of frustration or anger must anticipate the possibility that the law will respond in a fashion designed to vindicate the victim's rights and demonstrate the commitment of the society, which they represent, to its stated values.

121 In my view, while that particular case involved a more serious example of the killing of a child, those remarks nevertheless apply equally to the present case.

122 Overall, I regard this as a serious example of child homicide. Sadly, however, there are many substantially more serious cases of manslaughter of children which, had they been capable of being prosecuted as cases of child homicide, would have been substantially more serious examples of that offence.

124 First, Mr Hughes made admissions to causing bruising to Zane and Chase. Similarly, while he lied initially, ultimately he made admissions to the actions which caused Zane's death. Absent those admissions, the prosecution would have had difficulty in proving these offences.

125 The second factor in mitigation is that Mr Hughes pleaded guilty to all charges. Earlier, I set out the history of the plea offers and pleas of guilty. Those pleas were offered and made at the earliest practical stage. The pleas of guilty have not only avoided what would have been a very difficult trial for all concerned but, in my view, those pleas also indicate Mr Hughes's acceptance of responsibility from an early stage and a willingness to facilitate the course of justice.

126 Ms Sleeth submitted that two other factors gave the pleas of guilty added weight. First, she submitted that it was not inevitable that the throwing of the child onto a bed would have been found by a jury to amount to an unlawful and dangerous act. Secondly, she submitted that, given the events that occurred during the suspension of the third interview, there were doubts about the admissibility of that interview, without which there would be no case of homicide against Mr Hughes.

127 As to the first of those submissions, while I should have thought that there would be a high chance that a jury would find the act of throwing to be an unlawful and dangerous act, I cannot say that such a finding would be inevitable. As to the second submission, I accept that there may have been viable arguments that the "off-tape" discussions led to a breach of s 464H(1)(d)[76] of the Crimes Act and/or s 138 of the Evidence Act and thereby potentially rendered the third interview, or critical parts of it, inadmissible, which in turn would have made the case of child homicide exceedingly difficult to prove. I also accept that to plead guilty without pursuing such arguments adds more weight to that plea of guilty.

128 Overall, I accept that the admissions and pleas of guilty in this case are of substantial weight in mitigation.

129 The third mitigating factor is that I am satisfied that Mr Hughes is genuinely contrite for his offending. There are several reasons:

130 First, while he was not forthcoming initially as to the cause of Zane's death, Mr Hughes ultimately made admissions to throwing the child and causing him to strike his head. He also made admissions to causing the bruising to the children's buttocks.

131 Secondly, he pleaded guilty to all charges at the first reasonable opportunity and despite the possible arguments I have just mentioned.

132 Thirdly, Patrick Newton, a forensic psychologist who examined Mr Hughes and whose report and addendum reports were tendered without objection on the plea, said this:[77]

Mr Hughes expresses regret for his behaviour, understands that he has adversely affected the lives of many people, accepts that he has behaved in a culpable and blameworthy fashion, feels considerable opprobrium and is deeply self-critical. As best I can tell his expressions are sincere.

133 Fourthly, Mr Hughes's former partner, and the mother of his six-year-old child, gave sworn evidence on the plea. She visited Mr Hughes in gaol, and noticed that "there is a weight on him now" and that he is "shattered by this terrible incident".[78]

134 Fifthly, Mr Hughes's mother Tracey Hughes also gave sworn evidence on the plea. Mrs Hughes "believe[s] with all [her] heart that [he] is extremely remorseful for what he has done". She said that was apparent through his tears and his demeanour.[79]

135 Finally, Ms Sleeth tendered and read, without objection, a letter of apology from Mr Hughes, dated 26 February 2015.[80] In that letter, he accepted he had "taken from [Zane's] mother, his father, his grandparents and his siblings something that can never be replaced"; and said that "for that I will never forgive myself". He wrote of the suffering he has caused many people and for which he is "extremely regretful".[81]

136 All of that said, I think Mr Hughes's contrition is not as strong in respect of the injury offences as it is in respect of the child homicide, since it is plain that he considered very severe smacking to be acceptable.

137 Nevertheless, in my view, the early pleas of guilty in this case, preceded as they were by Mr Hughes's admissions, are deserving of even greater weight in mitigation because they are accompanied by genuine contrition.

Prior good character and absence of prior convictions

138 The fourth matter in mitigation is this: Brok Hughes, at the age of 25, had no prior criminal history at the time of these offences. He also had a history of showing some very positive character traits, when drug-free.

139 He has a subsequent appearance in the Magistrates' Court, on 21 August 2014, for possessing and using cannabis and amphetamines. On those charges, he was placed, without conviction, on an adjourned undertaking to be of good behaviour.[82]

140 Mr Hughes's former partner gave evidence that, within the first two weeks of their relationship and from the time she became pregnant with his child in 2008, Mr Hughes ceased using drugs and, in solidarity with her, gave up smoking cigarettes. They were both very young. He obtained a job welding and travelled to work on his BMX bike over a distance of six to eight kilometres. He later obtained an apprenticeship as a baker. He was of real assistance to his partner throughout the pregnancy and after the birth of their child. After working long stints at the bakery, he would play with his son while his partner caught up on sleep, and then take them both out on walks in the afternoons. The relationship, however, ultimately broke down. When they separated, he voluntarily paid substantially more to his former partner in child support than he was required to pay. He also spent every second weekend on access visits with his son. Eventually, however, Mr Hughes fell back into drug use, started missing access visits and became argumentative and irrational. Eighteen months later, he moved to Perth to live with his grandparents. Upon his return to Victoria, Mr Hughes contacted his former partner again. She and their son were happy to see him. But things did not go to plan. They argued; he left; and his former partner did not hear of him again until she received news of the matters that bring him to Court now.[83]

141 Mr Hughes's mother gave evidence confirming that, after his former partner became pregnant, he ceased using drugs, found a nice unit and went out to work. Mrs Hughes said he adored his son and former partner, doted on both of them and did all he could for his young family. After the break-up, however, he lost his home and went back to drug use. He came to Perth for a short period and went from job to job. After he returned to Melbourne, she did not hear of him until she learned of the current charges.[84]

142 Mrs Hughes could not believe her son had offended in the way alleged. In her experience, "for all his faults, [he] loved children"; and "[n]ever had she seen him harm a child in any way ... [or use] any physical violence whatsoever".[85]

143 While the bruising observed by the doctors, and evident in the photographs, on other parts of Zane and Chase's bodies gives rise to a concern that they had been assaulted on earlier occasions, Mr Hughes is not charged with any offences arising out of that bruising. Nor can whatever behaviour caused such injuries be used to lessen the weight to be accorded in mitigation on account of Mr Hughes's relative youth, lack of prior convictions and prospects of rehabilitation, as I am in no position to find that he is responsible for those bruises (other than perhaps such additional bruising as there may have been on Zane's buttocks as a result of the smacking to which Mr Hughes admitted on the day of the killing).

144 Mr Hughes told the psychologist Mr Newton that he had used cannabis and methamphetamines from his teenage years and also during his relationship with Ms Cunning. His only significant period of abstinence was during his relationship with his former partner. He accepted that others had commented that he was unpleasant to be around when using drugs. On 9 May 2014, the day Zane was killed and Chase was struck with the coat-hanger, he had used cannabis.[86]

145 In those circumstances, I am satisfied that, apart from his drug use and the negative effects it appears to have had on him, Mr Hughes is a person of previously good character. He has shown he can work and contribute in a positive way to a family and the community, when he is drug-free. He has no prior history of violence at all, whether against adults or children.

146 The fifth matter in mitigation is that Mr Hughes was only 25 at the time of the offending and is only 26 now. In some ways, he has lived the life of an older person. He left school in Year 10 and had a child by the age of 20. But 25 is still relatively young. All else being equal, a younger person is less likely to appreciate risk or consider consequences. In my view, Mr Hughes, at 26, is at an age where his values and attitudes are still being formed. It is of course a pity that he will be developing those values and attitudes for a substantial part of his life while in gaol, but that, of course, is an unavoidable consequence of the nature and gravity of his criminality. He must go to gaol, and for a substantial period. However, one of the great aims of the criminal law is to rehabilitate younger offenders. And Mr Hughes is still young enough to persuade me that rehabilitation is an important consideration in his case.

147 The sixth matter in mitigation is that I am satisfied that Mr Hughes has good prospects of rehabilitation. I do not say those prospects are excellent, but good.

148 There are several reasons: First, his admissions, early pleas of guilty, acceptance of responsibility, remorse and lack of prior convictions all point in that direction and suggest he is very unlikely to reoffend in the same manner.

149 Secondly, as indicated earlier, the evidence is that Mr Hughes has shown he can work and contribute to the community, when drug-free.

150 Thirdly, however, he has been a substantial user of illicit drugs from an early age. It is positive that he has completed a 12-hour drug education programme while on remand and that he is keen to do further drug rehabilitation,[87] but, in my view, he has a long way to go before he can be said to be rehabilitated in that regard.

151 Mr Newton summarized the matter in this way, which I accept as accurate:[88]

Mr Hughes's rehabilitative prospects will depend upon several factors. These include: his capacity to access appropriate treatment and other programmes whilst in custody; the availability of support and supervision when he is ultimately released into the community; and the extent to which he is able to improve his general living skills (such as employment, problem-solving and general coping skills) and so facilitate better engagement with the community.

Positively, Mr Hughes has good general work skills and does not suffer any major mental illness. Negatively, he has a strong history of substance abuse and only equivocal social connections. Overall, as matters stand, I consider his prognosis to fall in the guardedly positive range, but much will depend on his passage through the system and his attitude upon release.

152 In my view, Mr Newton's "guardedly positive" prognosis combined with the other factors to which I have referred dictate the conclusion that Mr Hughes has good - but not excellent - prospects of rehabilitation. Given his age, however, and the fact that he will be returning to the community ultimately, it is important for both him and the community that such prospects of rehabilitation as there are be maximized.

153 The seventh matter in mitigation is that I am satisfied that Mr Hughes will find gaol substantially more onerous than most other prisoners because of the opprobrium he is likely to receive in gaol and his related concern that such opprobrium may lead to his being harmed by others.

154 On an application for suppression of publication of these proceedings, I heard sworn evidence from Mr Hughes about the way in which he has been treated by some others in the prison.[89] He accused (unnamed) others of ridiculing, threatening and assaulting him because of their perception of his crimes.[90]

155 Even without such evidence, I would have been inclined to accept that Mr Hughes's most serious crime - the killing of a three-year-old child - is likely to be considered disgraceful and cowardly even by those prisoners who themselves have committed very serious crimes. I also accept that Mr Hughes is concerned that some prisoners may try to act violently towards him because of those views.

156 As I indicated when refusing the application for suppression, it is of course a matter for the prison authorities to ensure Mr Hughes's safety. But, no matter how effective the authorities are in protecting Mr Hughes, I accept he will fear that he is at risk of harm throughout his sentence.

157 Further, I expect that Mr Hughes's time in custody will be relatively lonely. His mother lives in Western Australia and will not be able to see him regularly. I gather that he may have some contact from his former partner, but he will not see his son. Overall, it seems unlikely that he will have much face-to-face contact with family during his sentence.

158 For those reasons, but principally because of his fear of the risk of harm, I accept that Mr Hughes's time in custody will be substantially more onerous than for most other prisoners.

160 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

General deterrence, denunciation and just punishment

161 In my view, general deterrence, just punishment and denunciation are important considerations in this case of child homicide. The community should understand that behaviour of the type engaged in by Mr Hughes is denounced by the courts and will result in a substantial term of imprisonment that reflects that a very young and vulnerable child's life has been taken by the unlawful and dangerous act of a person entrusted with his care, and that the lives of the deceased child's loved ones have been marred forever.

162 The same principles are also important considerations in the present cases of causing injury intentionally. The Court will not tolerate the intentional injuring of young and vulnerable children, by those entrusted with their care, in anger and with cruelty but in the name of discipline. The community should understand that such offending can result in a gaol sentence, even if the injuries are towards the lower end of the scale of gravity.

Specific deterrence and protection of the community

163 Given Mr Hughes's admissions, early pleas of guilty, acceptance of responsibility, remorse, previous good character and prospects of rehabilitation, the particular hardship imprisonment will bring through opprobrium and fear of the risk of harm and my conclusion that he is unlikely to reoffend in these ways, I consider that specific deterrence is a sentencing purpose of only very modest significance in the present case.

164 The same considerations satisfy me that protection of the community is also only of modest significance and does not warrant weight as a separate and additional sentencing purpose in this case. The other sentencing purposes, including rehabilitation, will produce a sentence that has the effect of protecting the community in any event.

165 In my view, rehabilitation remains an important consideration. This is particularly so because Mr Hughes is relatively young and his prospects of rehabilitation are good.

166 It is important to recognize the interplay between rehabilitation and protection of the community. Mr Hughes will be returning to the community ultimately. It is therefore in the community's interests that such prospects of rehabilitation as there are be maximized, so that, when he does return to the community, his risk of reoffending is as low as it reasonably can be and his chances of successful reintegration into the community are good.

167 Sections 5(3) and (4) of the Sentencing Act 1991 (Vic) reflect the common law principle of parsimony. I have applied these provisions and this principle when considering the appropriate sentences in this case.

168 One of the matters to which a court must have regard in imposing sentence is current sentencing practices. Since this is the first time a person has been sentenced for child homicide, there are no current sentencing practices for this offence. That said, and as the Attorney recognized when introducing s 5A, since the offence is closely related to manslaughter, the sentencing practices for that offence will continue to be of relevance in sentencing for child homicide. Further, both the Director and Ms Sleeth accepted that, given the unusual history of this matter, Mr Hughes should be sentenced no differently from the way in which he would have been sentenced for manslaughter, had that offence been available.

169 Obviously enough, of most relevance for comparative purposes will be the manslaughter cases involving children killed by those charged with their care. Counsel referred me to a number of decisions of this Court and the Court of Appeal concerning cases in that category.[91] While I have considered these and other cases falling into the same category, I shall refer to just a few of them in these reasons.

170 First, I shall return to DPP v Arney,[92] which I mentioned earlier when discussing the Attorney's second reading speech. Mr Arney pleaded guilty to manslaughter in circumstances where he had killed his five-month-old daughter by punching her in the stomach so hard as to split her small bowel, thereby causing peritonitis and death. He had done this on about ten separate occasions. He said he did so out of frustration when she was crying. He aimed for her stomach, rather than her face where bruising would be obvious, to avoid detection. Mr Arney had also fractured the baby's skull and ribs and damaged her liver on earlier occasions, which gave rise to a separate charge of recklessly causing serious injury. He was 24 years old, six-foot-four and 100 kilograms. The trial judge imposed sentences of imprisonment for seven years on the manslaughter, for four years on the recklessly causing serious injury and for nine years in total, with a non-parole period of five years. On an appeal against that sentence by the Director to the Court of Appeal, Nettle JA, who wrote the leading judgment, said this:[93]

[12] ... Other things being equal, and despite the respondent's psychological condition, I consider that one might have concluded that a head sentence on the count of manslaughter of nine or ten years was within the bounds set by previous cases.

[13] While recognizing that comparison between cases of manslaughter is an exercise of limited utility, the comparison which seems to me to be closest is to the sentence of ten years, with a non-parole period of seven years, which was imposed in R v Kesic, and in that case it should be noted that the offending was on one view of the matter not as morally culpable, inasmuch as it involved the accused in shaking the child after reaching a stage of desperation in the course of caring for three small children and did not involve the out and out sort of violence apparent in this case in the repeated abdominal punching of an infant.

[14] But there is more to it than that. Sentencing judges are bound by law to have regard to current sentencing practices as one of the considerations relevant to the sentence to be imposed. But they are not necessarily bound to impose a sentence which is within the bounds set by previous cases. In truth, each case is unique, and accordingly it is always possible that a sentence may properly rise above, or fall below, the greatest or lowest sentences for that sort of crime hitherto imposed. The measures of manifest excessiveness and manifest inadequacy are informed by previous experience. They are not circumscribed by it. The requirement to have regard to current sentencing practices does not forever foreclose the possibility of an increase or decrease in the level of sentences for particular kinds of offences. Rather, in the scheme of things, it is likely that over time views will change about what is necessary in particular classes of case, and when that occurs, that the notions of manifest excessiveness and manifest inadequacy will pro tanto be revised.

[15] In sentencing offenders in cases of the kind with which we are concerned, it has been common for courts to refer to the gross breach of trust which is involved in the offence and to speak in terms of the need for a sentence which is adequate to express society's abhorrence and denunciation of homicidal offences against defenceless children, and which will provide a level of just punishment and specific and general deterrence sufficient to guard against re-offending and similar offending by others. Those sentiments accord with the recognition by Parliament of the seriousness of the offence of manslaughter generally as manifested in the increase in 1997 in the maximum penalty for manslaughter from 15 years' to 20 years' imprisonment. Nevertheless, for a long time it has remained common for courts to impose sentences in cases of this kind in the order of something less than half the statutory maximum and thereby to create a situation in which current sentencing practices appear to ill accord with the requirements of just punishment and specific and general deterrence. It has resulted in sentences which fail to represent the seriousness of the individual circumstances of the cases that come before the Court.

171 The Court allowed the appeal and increased the manslaughter sentence to imprisonment for nine years, the total effective sentence to imprisonment for 11 years and the non-parole period to eight years.

172 Nettle JA also said that, but for the requirements of double jeopardy, he would have imposed significantly more than nine years' imprisonment for the manslaughter.[94] Given his Honour's view that Mr Arney's offence was worse than the offence in R v Kesic,[95] which attracted a sentence of ten years' imprisonment, it can be assumed that he would have considered a sentence in excess of ten years' imprisonment was necessary, or at least open, if unconstrained by double jeopardy.

173 The second case to which I shall refer is DPP v McMaster,[96] which was also mentioned by the Attorney in his second reading speech. Mr McMaster pleaded guilty to manslaughter in circumstances where he had killed the five-year-old son of his partner by either thrusting his foot into or standing on the child's abdomen with quite severe force, which caused a sheering tear of and bleeding from the mesenteric structure, which in turn led to septicaemia and peritonitis and then death. This assault was committed in the context of a series of systematic, serious and cruel assaults to the child's head, trunk and limbs over a period of months, some of which caused two skull fractures. On the day of the death, Mr McMaster thrust his foot into the child's abdomen again, knowing he had hurt him by doing so previously and knowing that the child was sore in that region as a result of a bicycle accident. Harper J imposed a sentence of 12-and-a-half years' imprisonment on manslaughter plus six months' imprisonment for an assault committed on the child's mother the same day, making a total effective sentence of 13 years' imprisonment in respect of which he fixed a non-parole period of ten years.

174 The Director's appeal against that sentence was dismissed by the Court of Appeal. Ashley JA, who delivered the leading judgment, said that the sentence "was, by conventional standards, an extremely heavy sentence for manslaughter by unlawful and dangerous act to which the offender had pleaded guilty"; and that the Court was not pointed to any case in which a sentence of that order had been imposed for that category of manslaughter, "even [for] an offence involving the killing of a child".[97] His Honour also said that Mr McMaster's plea of guilty was "of very considerable significance", coming as it did after there had been a hung jury in a murder trial in which the jury had asked questions about causation which cast doubt on the Director's case of both murder and manslaughter.[98] Mr McMaster had also offered to plead guilty to manslaughter before the trial.

175 Ashley JA went on to describe the decision in DPP v Arney as "an instance of the Court breaking free from old [sentencing] practice in a way which AB (No. 2)[99] endorsed".[100] The same could be said of Harper J's sentence on Mr McMaster. In those circumstances, it is difficult to see why the legislature thought it necessary to create the offence of child homicide, and less still to illustrate the perceived need for such an offence by reference to those two cases. So much is apparent when regard is had to the fact that, had Mr McMaster pleaded not guilty and been convicted of manslaughter following a trial and had he had a bad criminal record for violence, one might have expected a sentence well into the high teens or very close to the maximum penalty.

176 The Director conceded that R v Kesic, DPP v Arney and DPP v McMaster are worse examples of child killings than Mr Hughes's case. In my view, that was a sound concession. As serious as this case is, and as serious as every child homicide involving an unlawful and dangerous act committed by a person charged with the child's care will be, Mr Hughes's offence is not as grave as the offences committed in those three cases. On the other hand, this is not a case warranting a sentence towards the low or middle range of sentences to be gleaned from the decisions to which I was referred by counsel and to which I have had regard.

177 I could go on with comparisons. But, in the end, it is almost always difficult usefully to compare sentences imposed in other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. There does seem to be a large variation in the sentences imposed for like offending, although that variation might not be seen as much in the future in light of decisions such as DPP v Arney and DPP v McMaster. Nevertheless, I have found these sentences, and the reasons given for imposing them, instructive in gauging the order of sentence imposed for offences of manslaughter of young children, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

178 In the end, however, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence for Mr Hughes's offence of child homicide.

179 Counsel did not refer me to any comparative cases on intentionally causing injury. I have not found any case like the present. Accordingly, I am driven to rely principally on the particular circumstances of this case and sentencing principles, as well as my understanding of the types of sentences often imposed for that offence, to arrive at the appropriate sentence for the two instances of that offence committed by Mr Hughes.

180 Ms Coombes submitted, and Ms Sleeth conceded, that, since the three offences arose out of three incidents and involved two separate victims, it was open to direct some cumulation of the sentences on the injury offences upon the sentence for the child homicide, but that any such cumulation must accommodate the principle of totality. I accept those submissions.

183 I have found this a difficult sentencing exercise. Mr Hughes intentionally injured two very young and defenceless children entrusted to his care. Far worse than that, of course, is the fact that he killed one of those children by an unlawful and dangerous act committed in anger. The law must protect the rights of all people, but there is a special duty to those so young and so vulnerable. General deterrence, just punishment and denunciation are important considerations. On the other hand, Mr Hughes was, and still is, relatively young, had no prior convictions, admitted his behaviour to police, pleaded guilty at an early stage, is remorseful, has good prospects of rehabilitation and has done, and will continue to do, his time in gaol harder than most. Rehabilitation remains an important consideration in his case.

184 Balancing all matters as best I can, I sentence Mr Hughes as follows:

185 On Charge 1, the offence of intentionally causing injury to Zane Bradbury, Mr Hughes is convicted and sentenced to eight months' imprisonment.

186 On Charge 2, the offence of intentionally causing injury to Chase Bradbury, Mr Hughes is convicted and sentenced to 12 months' imprisonment.

187 On Charge 3, the offence of child homicide of Zane Bradbury, Mr Hughes is convicted and sentenced to nine years' imprisonment.

188 I direct that two months of the sentence on Charge 1 and four months of the sentence on Charge 2 are to be served cumulatively upon each other and upon the sentence on Charge 3. That makes a total effective sentence of nine years and six months' imprisonment.

189 I fix a non-parole period of six years and three months.

190 The non-parole period might be regarded as relatively short when compared with the total effective sentence. While all mitigating factors affect the individual sentences, the amount of cumulation, the resulting total effective sentence and the non-parole period, some can have especial weight in fixing the non-parole period. Mr Hughes's relatively young age, previous good character, admissions, pleas of guilty, remorse, prospects of rehabilitation and the particular hardship his time in prison will involve have moved me to fix this particular non-parole period.

191 Pursuant to s 18 of the Sentencing Act, I declare that 413 days of pre-sentence detention are to be reckoned as already served under this sentence.

Section 6AAA of the Sentencing Act 1991 (Vic)

192 Section 6AAA of the Sentencing Act requires that I must declare the total effective sentence and the non-parole period, and may declare the individual sentences, I would have imposed but for Mr Hughes's pleas of guilty.

193 This is necessarily an imprecise exercise. That is because pleas of guilty tend to impact on other mitigating factors. For example, in this case, the pleas of guilty add to Mr Hughes's claims to remorse and his prospects of rehabilitation, but it is difficult to say precisely how I would have viewed those considerations had he not pleaded guilty. Nevertheless, I can estimate that, had he pleaded not guilty to these charges and been found guilty by a jury following a trial, I would have sentenced as follows:

a) on Charge 1, intentionally causing injury to Zane Bradbury, a sentence in the order of 12 months' imprisonment;

b) on Charge 2, intentionally causing injury to Chase Bradbury, a sentence in the order of 18 months' imprisonment;

c) on Charge 3, child homicide of Zane Bradbury, a sentence in the order of 13 years' imprisonment;

d) a total effective sentence in the order of 13-and-a-half years' imprisonment; and

e) a non-parole period in the order of ten-and-a-half years.

194 For the avoidance of doubt, I repeat: the actual total effective sentence imposed on Brok Hughes is nine years and six months' imprisonment with a non-parole period of six years and three months. And I have declared 413 days of pre-sentence detention.

[1] See ss 2 and 3 of the Crimes Amendment (Child Homicide) Act 2008 (Vic) and s 5A of the Crimes Act 1958 (Vic).

[2] In Victoria, manslaughter is a common law offence the maximum penalty for which is fixed by s 5 of the Crimes Act 1958 (Vic) at 20 years' imprisonment.

[3] Hansard, Legislative Assembly, 6 December 2007, pp 4412-4413.

[4] DPP v Arney [2007] VSCA 126.

[5] Hansard, Legislative Assembly, 6 December 2007, p 4414.

[6] The words "guilty of infanticide, and not of murder", which are employed in the very next (and pre-existing) provision in the Crimes Act, s 6, mean that a woman who kills her child in the circumstances described in the provision will be guilty of infanticide and cannot be guilty of murder. The equivalent turn of phrase in s 5A must mean the same thing, mutatis mutandis.

[7] In a statement he made to police on 9 May 2014, and in his police interview later that day, Mr Hughes said, accurately, that Zane was three years old (Depositions, pp 1084[100] & 1176[1]).

[8] While s 277(1)(c) of the Criminal Procedure Act 2009 (Vic) allows the Court of Appeal to set aside a conviction for one offence and substitute a conviction and sentence for some other offence of which the appellant could have been found guilty, this power appears to be conditional on the appeal being instituted against a conviction following a jury verdict, not against a conviction following a plea of guilty.

[9] DPP v Arney [2007] VSCA 126.

[10] DPP v McMaster [2008] VSCA 102.

[11] See s 164(4) of the Criminal Procedure Act 2009 (Vic), which provides that, "[o]n the filing of a fresh indictment against an accused, proceedings in relation to a charge for the same offence or a related offence in an indictment previously filed in court against that accused are discontinued". I inquired of the parties whether it was necessary to set aside Mr Hughes's plea of guilty to manslaughter before taking this course. Neither party considered that to be necessary.

[12] R v Dhillon [2011] VSC 6. The child, who was aged three years, was killed on 4 March 2010, which was about two years after s 5A came into operation.

[13] The Prosecution Opening on Plea Hearing became Exhibit 1.

[14] Contrary to s 18 of the Crimes Act 1958 (Vic).

[15] Depositions, p 1177[7]-[8]. See also Depositions, p 1127, where the written statement is read to Mr Hughes, which he confirms to be true (Depositions, p 1130[190]).

[16] Depositions, p 1134[229]-[230].

[17] Depositions, p 1088[132]-[136].

[18] See photographs 15-18 of Exhibit 2. See also Depositions, pp 33 & 134-135, as to the bruising observed on Zane's buttocks by Dr Burke and Dr Thompson respectively.

[19] See s 15 of the Crimes Act 1958 (Vic).

[20] Depositions, pp 1075[19]-1077[33], 1079[51]-57], 1082[82]-[88], 1083[98]-1084[99], 1135[237]-1136[247] & 1148[351].

[23] See photographs 42-44 of Exhibit 3; and Depositions, pp 116-117.

[24] Depositions, pp 1154[388]-[389], 1166[489] & 1168[503].

[28] Depositions, pp 1155[390] & 1156[401].

[29] See Depositions, pp 971-972 (plan drawn by Mr Hughes during police interview); and photograph 108 of Exhibit 4.

[30] Depositions, pp 1158[418]-1159[423].

[31] Depositions, p 1166[490]-[491].

[32] Depositions, pp 1159[428]-1160[436], 1162[457] & 1164[474]-[475].

[33] Depositions, pp 1160[437]-1161[442].

[34] Depositions, pp 1161[444]-1162[458].

[35] Depositions, pp 1162[457]-1164[475].

[36] Depositions, pp 1164[476]-1165[484].

[37] Depositions, pp 1165[484] & 1166[486].

[40] Depositions, pp 1165[484]-[486] & 1178[12]-[13].

[42] Depositions, pp 1165[484] & 1178[13].

[45] Depositions, pp 993-1001 & 1178[13]-[14].

[51] Depositions, pp 116-117; and photographs 42-44 of Exhibit 3.

[55] Depositions, pp 1075[19]-1077[33], 1079[51]-57], 1082[82]-[88], 1083[98]-1084[99], 1135[237]-1136[247] & 1148[351].

[57] Depositions, p 1088[130]-[136].

[58] Depositions, pp 1112[54]-1130[190]; see also 1152[375].

[59] Depositions, pp 1172[537]-1173[540].

[60] Depositions, pp 1171[531]-1172[535].

[61] The victim impact statements became Exhibits 6, 7 and 8.

[62] Given the terms of s 5A, any defence to manslaughter potentially also would be a defence to child homicide. In this regard, see also the Explanatory Memorandum to the Crimes Amendment (Child Homicide) Bill 2007, at p 1, which provides, inter alia, as follows: "The new offence [of child homicide] incorporates the elements of the common law offence of manslaughter but has an additional element that the victim is a child under 6 years of age. 'Conduct' is intended to include any acts or omissions to act that would constitute manslaughter. The new offence applies to conduct in circumstances that, but for the new section 5A, would constitute manslaughter. This means that, if the conduct and circumstances would not constitute manslaughter for any other reason (for example, because of sudden or extraordinary emergency under section 9AI of the Crimes Act 1958) the person will not be guilty of child homicide".

[63] R v Terry [1955] VicLawRp 22; [1955] VLR 114.

[64] Mr Terry was found not guilty of murder but guilty of manslaughter.

[65] R v Terry [1955] VicLawRp 22; [1955] VLR 114 at 116.

[66] R v Terry [1955] VicLawRp 22; [1955] VLR 114 at 116.

[67] R v Terry [1955] VicLawRp 22; [1955] VLR 114 at 116-118.

[68] In the italicized passages, I have substituted the words "state of mind required for murder", "the elements of manslaughter were established" and "accompanied by the state of mind required for murder" for the words used by Sholl J because those elements of murder and manslaughter today are described differently from the way in which they were described by his Honour in 1954.

[69] See, e.g., Dr Renata Alexander (Faculty of Law, Monash University), Dr Bronwyn Naylor (Faculty of Law, Monash University) and Dr Bernadette Saunders (Social Work, Faculty of Medicine, Nursing & Health Sciences, Monash University), "Lawful Correction or Child Abuse: Clarifying the boundaries, sanctions and decision-making surrounding the physical discipline of children", October 2011 (a paper funded by the Legal Services Board, Victoria), at p 11, where it is said that "[t]he 'reasonable chastisement' [or lawful correction] defence was first abolished in Sweden in 1957 and is now abolished in 30 countries, including New Zealand since 2007".

[70] See s 18 of the Crimes Act 1958 (Vic).

[71] Section 5A of the Crimes Act 1958 (Vic).

[72] In any event, it is difficult to imagine a viable case of manslaughter by provocation involving a deceased child under six years of age.

[73] See R v Jagroop [2009] VSCA 46; (2009) 22 VR 80 at 90[63]-91[69] per Weinberg JA (Williams AJA agreeing at [75]).

[74] R v Dempsey [2001] VSC 123.

[75] R v Dempsey [2001] VSC 123 at [7].

[76] On the question whether, for the purposes of s 464H(1)(d) of the Crimes Act 1958 (Vic), "off-tape" questioning and a resulting confession and subsequent recorded questioning and a resulting confession can be said to be the one period of questioning, such that the recorded confession is, subject to s 464(H)(2), rendered inadmissible, see Heatherington v The Queen [1994] HCA 19; (1994) 179 CLR 370. See also Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177.

[77] Addendum report of Mr Newton, 2 June 2015, at paragraph [4] (part of Exhibit 10). See also Mr Newton's report of 25 May 2015, at paragraphs [14] & [23]-[24] (also part of Exhibit 10).

[80] The letter became Exhibit 9 (see T 83-84).

[82] A summary of these matters became Exhibit 11; see also T 89.

[86] See Mr Newton's report of 25 May 2015, at paragraphs [15]-[18] & [29]-[31] (part of Exhibit 10); see also Mr Newton's addendum report of 31 May 2015, at paragraphs [1]-[7] (also part of Exhibit 10).

[87] See Mr Newton's report of 25 May 2015, at paragraph [19] (part of Exhibit 10).

[88] See Mr Newton's addendum report of 2 June 2015, at paragraphs [2]-[3] (part of Exhibit 10).

[89] The application was refused (see T 19-20).

[91] Those cases included R v Horsey [1999] VSC 224; R v Kesic [2001] VSCA 171; R v Dempsey [2001] VSC 123; R v Lefau [2004] VSC 481; R v Klamo [2007] VSC 120; DPP v Quach [2007] VSCA 504; DPP v Arney [2007] VSCA 126; DPP v McMaster [2008] VSCA 102; and R v Dhillon [2011] VSC 6.

[92] DPP v Arney [2007] VSCA 126.

[93] DPP v Arney [2007] VSCA 126 at [12]- [15] (footnotes omitted). Vincent JA (at [20]) and Neave JA (at [21]-[22]) agreed with Nettle JA.

[94] DPP v Arney [2007] VSCA 126 at [17].

[95] R v Kesic [2001] VSCA 171.

[96] DPP v McMaster [2008] VSCA 102.

[97] DPP v McMaster [2008] VSCA 102 at [5] (tenth bullet-point).

[98] DPP v McMaster [2008] VSCA 102 at [5] (seventh bullet-point), [15]-[24] & [88].

[99] R v AB (No. 2) [2008] VSCA 39; (2008) 18 VR 391.

[100] DPP v McMaster [2008] VSCA 102 at [85].