Tufue v The King [2024] VSCA 22

1. At the time of the offending, the applicant was 25 years old and had no fixed address.
2. At approximately 2:15 pm on 12 October 2020, the applicant arrived at a house at 6 Protea Crescent, St Albans, in a black Mitsubishi sedan.
3. The property was occupied at the time. One of the residents, Nishan Singh Joshan, was present inside with several friends, including Gangandeep Singh. Mr Singh saw the applicant arrive and observed that he had a black Nike bum bag with him.
4. The applicant knocked on the front door of the house. When the occupants did not open it the applicant began kicking the door. The occupants pushed their weight against it to prevent his entry. The applicant then went to the back door of the property. Again, the occupants pushed their weight against the door to stop him entering the house.
5. The applicant approached a window at the rear of the house. At this point, Mr Singh observed that the applicant was holding a large knife. The applicant struck the window, breaking it (Charge 2).
6. The applicant then returned to the front door of the property and resumed kicking it. Mr Singh observed the applicant through a clear glass portion of the front door, and saw him withdraw a firearm from the black Nike bum bag. Mr Singh formed the view that the applicant would continue to attempt to force entry into the house (Charge 1).
7. At this point all occupants fled toward the rear of the house, left via the broken window and climbed over a fence to escape. Mr Singh and another occupant emerged at the front of 8 Protea Crescent. The applicant and Mr Joshan were out the front of 6 Protea Crescent. The applicant struck Mr Joshan several times, leaving him bleeding from the head (Charge 3).
8. The applicant ran from the property. Mr Singh and some of the other occupants pursued him briefly, before hiding at various nearby addresses. A few minutes later, the applicant returned to 6 Protea Crescent, entered his vehicle and drove away. Victoria Police officers later recovered the knife and part of an imitation firearm from outside the front of the property.
9. Later that day, Victoria Police officers observed the applicant's vehicle travelling at speeds exceeding 100 kilometres per hour, and overtaking other road users by driving on the wrong side of the road (Charge 4). Police airwing officers observed the applicant's vehicle mount a footpath and drive along it, narrowly missing two pedestrians. Police made several efforts to impede the applicant's vehicle movements. The applicant avoided the first effort by reversing his vehicle into a police car. After the applicant avoided tyre deflation devices, the driver of another police vehicle forced the applicant's vehicle onto a footpath by colliding with the rear driver's side. The applicant attempted to flee on foot but was quickly apprehended and arrested.
10. The applicant initially provided a false name and date of birth to police. Searches of his vehicle located an imitation firearm and cartridge ammunition. At the time of the offending, the applicant was on bail for driving and bail offences, and his driver's licence was cancelled and disqualified. The applicant was granted bail on 19 August 2021, but failed to appear in accordance with the conditions of his bail on 24 November 2021 (Related summary charges).

1. The applicant's plea hearing took place over two days, on 28 June 2023 and 19 October 2023. Although conceding that the applicant's attempted aggravated burglary fell toward the 'lower end' of the scale for that offence, the prosecutor submitted that the very nature of the offence was nonetheless objectively serious. The prosecutor emphasised the dangerous features of the driving conduct which gave rise to charge 4, submitting that it was a serious form of that offending. The prosecutor's position was that, overall, the offending called for the imposition of a term of imprisonment with a non-parole period.
2. The applicant's counsel highlighted the total period of time which the applicant had spent in custody, both on remand for the charges for which he was then being sentenced ('pre-sentence detention') and also in respect of other charges for which he was either acquitted or received a sentence shorter in duration than the period he spent on remand for them ('Renzella time'). It was agreed on the plea and in subsequent communications between the parties that the applicant's pre-sentence detention period was 392 days and that Renzella time was 450 days.
3. Having regard to the total period of time spent in detention, much of which was spent during the COVID-19 pandemic when conditions were particularly arduous for prisoners, together with the applicant's plea of guilty and his limited criminal history, the applicant submitted that the judge should impose a combination sentence as permitted by s 44 of the Sentencing Act. Hence, the applicant urged the judge to impose a period of imprisonment, not longer than the period of pre-sentence detention, and a community correction order ('CCO').
4. It was acknowledged that the applicant is not an Australian citizen, but a holder of a visa. Under the Migration Act 1958 (Cth), the Minister must cancel a person's visa if that person is sentenced to a term of imprisonment of 12 months or more.[13] No doubt cognisant of that fact, the judge raised the question of how he may 'adapt the Renzella time', in the context of considering a combined term of imprisonment and CCO, so that the imprisonment component would be less than 12 months and not impact the applicant's visa.[14]
5. Accurately summarising the law as stated by this Court in Guden v The Queen ('Guden'),[15] the prosecutor submitted that the prospect of deportation as a mitigating factor could only be taken into account in one of two ways (as described below at [29]). The prosecutor further submitted that it would subvert the Migration Act for a court to fix a sentence in order to avoid the operation of the mandatory cancellation provisions of that act.
6. On the plea, the judge received evidence of the opinion of a psychologist, Daniella Kocic, concerning the applicant, in the form of a report dated 28 August 2023. In her detailed report, Ms Kocic recounted the applicant's family and personal history, educational and occupational history, relationship history, mental health and medical history, and alcohol and substance abuse. That history included the applicant's state of health while incarcerated. Amongst other things, she made an assessment of the risk of the applicant reoffending. She expressed her opinion as to the applicant's psychological condition, and made recommendations for his treatment and conditions to be attached to various sentencing dispositions that the court may consider.
7. The judge requested and received a report from the Department of Justice and Community Safety as to the applicant's suitability for a CCO and recommendations for appropriate conditions. The report received from the Department made a recommendation, amongst others, that any CCO be subject to a mental health assistance condition. In that respect, the writer of the report attached a further report from the Senior Mental Health Clinician at Forensicare Mental Health Advice & Response Service, Ian Berrisford, dated 24 October 2023.

1. The judge rehearsed the circumstances of the offending. In doing so, he described attempted aggravated burglary as a 'very serious charge'.[16] Nevertheless, he noted that it was accepted by the prosecutor that the applicant's offending in this case 'was to be seen at the lower end' of the scale of such offences.[17]
2. The judge took account of the applicant's 'very limited criminal history', noting in particular his lack of previous violent offending.[18] The judge also noted the applicant's mental health and substance abuse issues canvassed in Ms Kocic's report, on the basis of which it was submitted that the mitigatory factors described in the fifth and sixth limbs of R v Verdins were applicable.[19] The judge noted Ms Kocic's concern as to the applicant's 'base mental condition' and her opinion that the applicant has difficulties with insight into his own life and offending behaviour.[20] The judge referred to Ms Kocic's opinion that the applicant posed a 'moderate to high risk of future physical violence' although that risk would be partly ameliorated by abstinence from drugs.[21]
3. The judge identified several factors in mitigation, including that the time the applicant had already spent in custody had been 'subject to restrictions from COVID' and that he had taken several steps to try and better himself while imprisoned.[22] Noting the applicant's age, the judge described that period spent in custody as 'a very important factor in this matter'.[23] He stated that the Renzella time of 450 days was 'taken into account totally in the sentence' imposed.[24]
4. Also relevant to this application, the judge took note of the risk of deportation faced by the applicant depending on the sentence to be imposed. The judge said:

It would be a great shame to see you placed in a position where you were subject to a more serious penalty than this, which would clearly lead to you being deported from this country. Mr Backwell also pointed to the issues that may come into account if I passed a sentence in excess of twelve months, over what you have already served.[25]

1. The judge added that the prosecutor had referred to the principles relating to 'those issues of being deported'.[26]
2. Against this background, the judge stated that he would sentence the applicant to a combination sentence consisting of an aggregate period of imprisonment 'for six months and 392 days' and a community correction order for two years.[27] Declaring that 392 days had been served by way of pre-sentence detention, the judge stated on several occasions that the applicant was to serve an 'additional period' of imprisonment of six months.[28]
3. With this summary of the judge's sentencing reasons, it is convenient to deal first with the applicant's second proposed ground of appeal.

Did the judge err by imposing a sentence that would lead to a cancellation of the applicant's visa?

1. Sections 501(3A)(a)(i), (6)(a) and (7)(c) of the Migration Act together provide that the Minister must cancel a visa that has been granted to a person if that person does not pass the character test on the basis that they had been sentenced to a term of imprisonment of 12 months or more. Upon representations made to the Minister by the person whose visa has been cancelled, the Minister may revoke the cancellation.[29] If the Minister does not revoke the cancellation, the affected person may apply to the Administrative Appeals Tribunal for a review of that decision.[30]
2. When sentencing an offender who is not an Australian citizen but the holder of a visa issued under the Migration Act, the court may take into account the prospect of deportation following the sentence as a relevant sentencing factor in two ways: first, that the expectation of being deported following release may mean the burden of imprisonment will be greater for that person than for someone who faces no such risk; and secondly, in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.[31] A sentencing court should not speculate as to the risk of deportation or its impact; evidence is required to permit a sensible quantification of the risk.[32]
3. Further, it has been held on a number of occasions that it is erroneous for a sentencing court to artificially lower a sentence to avoid the consequences of the Migration Act.[33]
4. In addition, and regardless of any consideration of the risk of deportation, the calculation of pre-sentence detention has no bearing on the determination of the appropriate sentence. As this Court explained in DPP v Ty (No 2):[34]

The appropriate sentence is arrived at by the application of conventional sentencing principles to the circumstances of the case. It is only after the sentence has been determined - and pronounced - that the question of PSD arises.[35]

1. The applicant submitted that it was the judge's stated intention to impose a sentence that would not lead to the cancellation of the applicant's visa, referring to the passage of the sentencing remarks extracted above at [24]. However, submitted the applicant, the judge failed to carry out his intention because he erroneously believed that by only passing a sentence of six months 'over what you have already served' he would, for the purpose of the Migration Act, be passing a sentence of less than 12 months. In fact, a sentence of 592 days - six months plus pre-sentence detention of 392 days - was, plainly, in excess of 12 months. Thus, the applicant submitted, the judge made an error in failing to carry out his intention not to effect the mandatory deportation of the applicant.
2. Failing to carry out an intention which, if implemented, would amount to sentencing error cannot itself be an error. However, we agree that the sentencing judge erred in the way in which he sought to take into account the risk of deportation.
3. The judge's error could be characterised in a number of ways. First, the judge impermissibly sought to construct the overall sentence in an attempt to avoid deportation. Secondly, the judge allowed the calculation of pre-sentence detention to bear upon the determination of the appropriate sentence. That is, rather than determine an appropriate sentence without regard to the period of pre-sentence detention, the judge fixed a period of imprisonment that he considered the applicant should serve from the sentencing date (six months), and then added the pre-sentence detention period to get the overall aggregate sentence. Thirdly, having determined a sentence that would, in fact, attract a mandatory visa cancellation under the Migration Act, the judge failed to take account of the impact of the risk of deportation in either of the two permissible ways as outlined in Guden.
4. Because we agree that the judge erred in the manner in which he dealt with the risk of deportation and, viewed broadly, proposed ground 2 raises that very question, the ground should succeed and the appeal allowed. It follows that the applicant must be resentenced.
5. Reaching that conclusion makes it less important to consider the applicant's first proposed ground of appeal. Nevertheless, we will state our views on it as succinctly as possible.

1. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[36] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[37]
2. On this proposed ground the applicant focused on what was said to be insufficient weight given to Renzella time spent in custody and to his pleas of guilty.
3. Pursuant to principles recognised in R v Renzella,[38] time spent in custody which cannot be declared as pre-sentence detention within the meaning of s 18 of the Sentencing Act - sometimes referred to as 'dead time' or 'Renzella time' - may be treated as time served, in a general sense, while awaiting trial on the charge for which the offender is about to be sentenced. Renzella time may be taken into account 'in a broad way' in the exercise of the sentencing discretion.[39] In sentencing the applicant, the judge indicated that he would take the 450 days into account, 'totally', when fixing an appropriate sentence.[40]
4. The applicant submitted that the combined sentence comprising an aggregate term of imprisonment of approximately 19 months with a two-year CCO does not reflect sufficient allowance for this Renzella time.
5. Next, the applicant submitted that the judge's statement made pursuant to s 6AAA of the Sentencing Act - namely that, but for the applicant's plea of guilty, the sentence imposed would have been two years' imprisonment without a CCO - implied that a discount of approximately 20 per cent was allowed for the guilty plea. He submitted that that allowance was insufficient.
6. There is no substance to the applicant's contentions on this proposed ground.
7. First, the judge plainly took into account the dead time the applicant spent in custody pursuant to Renzella principles. Such time is to be taken into account in a broad way and not as some sort of 'mathematical exercise'.[41] Secondly, beyond utilitarian value, the applicant's plea of guilty did not attract any significant credit. This Court has held that a statement made pursuant to s 6AAA of the Sentencing Act is, by its nature, an artificial exercise. It is not part of the sentence actually imposed, and it is of little to no use in assessing the sentence actually imposed.[42] The judge adverted to that very artificiality by commenting on the difficulty he found in nominating a 'but for the plea of guilty' sentence in the particular circumstances of the case.
8. In this case, the allowance for the Renzella time and the guilty plea, amongst other considerations, explain why a sentence of only 19 months, together with a two-year CCO, fell within the range of available sentences appropriate for this particular offending. As submitted by the respondent, the sentencing judge properly characterised the attempted aggravated burglary as a 'very serious charge' and correctly identified the following factors as relevant to the assessment of the objective gravity of the overall offending:
   • the applicant was willing to violently breach the sanctity of a private home for a mere $500, with his motive being to recover a debt;
   • he was armed with either a large knife or imitation firearm;
   • the driving was a 'serious form of offending', in which the applicant placed the general public and police at risk with his speed and by mounting the footpath (narrowly missing two pedestrians) in a residential area; and
   • the applicant was on bail at the time of offending.
9. In all the circumstances, the sentence imposed cannot be said to be 'wholly outside the range of sentencing options available'. Leave to appeal on ground 1 is refused.

1. In resentencing the applicant, we accept and reiterate the characterisation of the objective seriousness of the applicant's offending, and the reasons for that characterisation, which we have just summarised. We are also mindful that the applicant has been assessed as a moderate to high risk of reoffending with physical violence, and that in fact he has been involved in some aggressive or violent physical incidents whilst in prison (although not beyond October 2022).
2. We take note of the careful and considered report of Ms Kocic. Ms Kocic found that the applicant's clinical presentation at the time of interview was characterised by paranoia, grandiose delusions, hallucinations (auditory, visual and tactile) and depressive moods, and thus captured a provisional diagnosis of Schizoaffective Disorder. She reported that, while in custody, the applicant says that he remains in his cell, consumes a large amount of food and cries; his weight increased from 120 kg to 205 kg through 'stress eating'; he attempted suicide by hanging in the context of experiencing psychotic symptoms which may be anxiety-based due to being in the prison environment; and he is prescribed anti-psychotic medication.
3. Ms Kocic was of the view that the applicant required support and management by a community mental health service for monitoring and pharmacological management of his psychosis. Mr Berrisford, the Senior Mental Health Clinician for Forensicare who interviewed the applicant on 24 October 2023, thought that the applicant suffered a moderate mental health condition and that without intensive ongoing treatment and regular monitoring it would deteriorate to the extent that he would need compulsory inpatient treatment and potentially present a significant risk to others. On these bases recommendations were made that any CCO should include conditions for mental health assessment and treatment.
4. In our view, this evidence firmly supports the application of the mitigatory considerations described in the fifth and sixth limbs of R v Verdins.
5. The applicant has limited prior criminal history. Furthermore, as noted, the applicant spent a considerable period of time - 15 months - on remand for other matters, that should be taken into account in a broad way in fixing the sentence to be imposed for these offences.
6. In the circumstances, we consider that a combined period of imprisonment and a two‑year CCO, with the conditions as recommended, appropriately meets the sentencing purposes, particularly general and specific deterrence, community protection and the therapeutic purpose of rehabilitation.
7. Because any custodial component must, in our view, exceed 12 months, the sentence we impose would necessarily have the effect of causing the Minister to cancel the applicant's visa. That is no longer the subject of any doubt; we were informed at the oral hearing that the Minister cancelled the applicant's visa just over 3 weeks ago. Although there are legal avenues available to the applicant to challenge that cancellation, there is no evidence as to whether he intends to do so. Further, there is sparse evidence of the extent to which actual deportation to New Zealand, should that occur, would constitute a punishment to him. At least it can be said that he has made Australia his home since 2011.
8. Having regard to all the circumstances, we consider that it is appropriate to sentence the applicant to a combined term of 16 months' imprisonment (in the aggregate) with a two‑year CCO to commence immediately upon release from prison or detention, upon the same conditions as previously directed.

1. For the reasons given, at the conclusion of the oral hearing of the application for leave to appeal we granted leave to appeal, allowed the appeal and resentenced the applicant as set out in [3] above.

[1] DPP v Tufue [2023] VCC 2080 (Judge McInerney) ('Reasons').

[2] Contrary to ss 77 and 321M of the Crimes Act 1958.

[3] Contrary to s 197 of the Crimes Act 1958.

[4] Contrary to s 18 of the Crimes Act 1958.

[5] Contrary to s 23 of the Crimes Act 1958.

[6] Contrary to s 5AB(1) of the Control of Weapons Act 1990.

[7] Contrary to s 124(1) of the Firearms Act 1996.

[8] Contrary to s 30B of the Bail Act 1977.

[9] Contrary to s 59(2) of the Road Safety Act 1986.

[10] Contrary to s 30(1) of the Road Safety Act 1986.

[11] Contrary to s 30(1) of the Bail Act 1977.

[12] See [39] below for an explanation of this expression.

[13] Migration Act 1958 (Cth), s 501(3A)(a)(i), (6)(a), (7)(c).

[14] It appears that, in asking this question, the judge may have confused (a) the method of calculating a maximum 12‑month term of imprisonment under s 44 of the Sentencing Act with the 12‑month term referred to in the Migration Act and/or (b) pre-sentence detention time under s 18 of the Sentencing Act with Renzella time.

[15] [2010] VSCA 196; (2010) 28 VR 288 (Maxwell P, Bongiorno JA, Beach AJA); [2010] VSCA 196 ('Guden').

[19] R v Verdins (2007) 16 VR 269; [2007] VSCA 102. Limb 5 is that imprisonment could weigh more heavily on a person with impaired mental functioning than it would on a person in normal health. Limb 6 applies if there is a serious risk that imprisonment could have an adverse effect on the offender's mental health.

[29] Migration Act 1958 (Cth), s 501CA(4).

[30] Ibid s 500(1)(ba).

[31] Guden [2010] VSCA 196; (2010) 28 VR 288, 295 [27] (Maxwell P, Bongiorno JA, Beach AJA); [2010] VSCA 196.

[32] Guden [2010] VSCA 196; (2010) 28 VR 288, 295 [29] (Maxwell P, Bongiorno JA, Beach AJA); [2010] VSCA 196.

[33] Loftus v The Queen [2019] VSCA 24, [81] (Whelan AP and Niall JA); Matamata v The Queen [2021] VSCA 253, [75] (Kyrou and McLeish JJA); Tuare v The King [2023] VSCA 303, [79] (Kennedy JA and Kidd AJA).

[34] [2009] VSCA 226; (2009) 24 VR 705 (Maxwell P, Ashley and Neave JJA); [2009] VSCA 226.

[35] Ibid 718 [53] (Maxwell P, Ashley and Neave JJA). See also WCB v The Queen [2010] VSCA 230, [58]-[59] (Warren CJ, Redlich JA).

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

[38] (1997) 2 VR 88 (Winneke ACJ, Charles and Callaway JJA) ('Renzella').

[39] Ibid 96 (Winneke ACJ, Charles and Callaway JJA). See also R v Berry [2007] VSCA 202; (2007) 17 VR 153, 187 [115]-[116] (Buchanan, Redlich and Kellam JJA); [2007] VSCA 202 ('Berry').

[41] Berry [2007] VSCA 202; (2007) 17 VR 153, [115] (Buchanan, Redlich and Kellam JJA); [2007] VSCA 202.

[42] Staples v The Queen [2021] VSCA 307, [86] (Maxwell P, Kaye and Emerton JJA); Dunford v The Queen [2021] VSCA 304, [40]-[42] (Beach JA); Duale v The Queen [2022] VSCA 80, [34] (Kennedy JA).