Barbaro v The King
[2024] VSCA 54
•28 March 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0182 |
| MICHAEL BARBARO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 March 2024 |
| DATE OF JUDGMENT: | 28 March 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 54 |
| JUDGMENT APPEALED FROM: | [2023] VCC 1546 (Judge O’Connell) |
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CRIMINAL LAW – Appeal – Sentence – One charge of trafficking drug of dependence in commercial quantity – Base sentence 7 years and 6 months – Other drug and firearm offences – Total effective sentence 8 years and 1 month – Non-parole period 5 years – Whether sentencing judge erred in approach to delay – Over five years between charge and sentencing – Sentencing judge did not refer in terms to two limbs of delay – Sentencing judge considered both punitive effect of delay and applicant’s rehabilitative efforts – Leave to appeal refused.
R v Merrett (2007) 14 VR 392; R v Cockerell (2001) 126 A Crim R 444; [2001] VSCA 239; Rodriguez v Director of Public Prosecutions (Cth) (2013) 40 VR 436, referred to.
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| Counsel | |||
| Applicant: | Ms C Boston SC with Mr D Zajd | ||
| Respondents: | Mr R Gibson KC | ||
Solicitors | |||
| Applicant: | Sarah Tricarico Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
MCLEISH JA:
The applicant seeks leave to appeal against a sentence of 8 years and 1 month’s imprisonment imposed upon him in the County Court for drug and firearm offences. The base sentence of 7 years and 6 months’ imprisonment was imposed for trafficking in a commercial quantity of a drug of dependence contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981. Six months’ cumulation was ordered on a charge of being a prohibited person in possession of a firearm, contrary to s 5(1) of the Firearms Act 1996.[1] A non-parole period of 5 years was fixed.
[1]The remaining month of the total effective sentence was attributable to two drug possession charges (methylamphetamine and cannabis) and two offences against the Bail Act 1977.
The applicant pleaded guilty to the charges. The judge indicated under s 6AAA of the Sentencing Act 1991 that, had it not been for the plea of guilty, he would have sentenced the applicant to a total effective sentence of 11 years and 6 months’ imprisonment, with a non-parole period of 8 years.
The trafficking took place in the nine months between 15 September 2017 and 13 June 2018, involving up to 1 kilogram of a mixed substance containing methylamphetamine. The applicant supplied 476 grams of the substance to covert operatives in eight sales that took place between 15 September 2017 and 27 December 2017. In addition, he sold a further 371 grams to persons who attended his home at various times in the day and night for that purpose.
On 13 June 2018, search warrants were executed at the applicant’s property. A total of 152 grams of the mixed substance containing methylamphetamine was found either in his bedroom or on his person. In addition, items were seized from his property including a Beretta model 12 gauge sawn-off shotgun, eight cartridges for use with that shotgun, assorted ammunition and a flick knife. These seizures gave rise to a number of charges under the Firearms Act 1996 and the Control of Weapons Act 1990, including the offence already mentioned.
The applicant was arrested and remanded in custody on 13 June 2018. On 18 September 2018, he was released on bail, initially to a residential rehabilitation facility. He spent a total of approximately 90 days in two residential rehabilitation facilities, before moving to a domestic address. The terms of bail required him to report to police daily, to reside at a nominated address, not to leave the State of Victoria and not to change his address without notifying police. As described further below, he continued to progress in his rehabilitation after he moved out of the second residential facility.
Late in 2021, however, the applicant relapsed into drug use. On 22 April 2022, he was arrested in Queensland for breaching his bail conditions. After that point, he was on remand until sentence was imposed. By that time it had been more than five years since he was charged. While on remand, the applicant continued to advance his rehabilitation.
The issue which the applicant seeks to raise by way of appeal concerns the manner in which the sentencing judge treated the issue of delay, focussing on the sentence for the trafficking charge, the total effective sentence and the non-parole period. No complaint is made as to the sentences on the other charges, or the cumulation ordered in respect of those sentences. The proposed ground of appeal is that ‘the sentencing judge erred in the application of the principles of delay’.
Sentencing remarks
The judge noted that, at the relevant time, a commercial quantity of a mixed substance containing methylamphetamine was 500 grams. The applicant therefore trafficked in an amount just under twice the commercial quantity.[2]
[2]DPP v Barbaro [2023] VCC 1546 [3]–[4] (Judge O’Connell) (‘Sentencing Remarks’).
About a year after he was released on bail, a three-day contested committal took place in October 2019. The applicant was committed to stand trial in the County Court on 11 October 2019. At that stage he pleaded not guilty to the more serious charge of trafficking in a large commercial quantity of methylamphetamine. A large commercial quantity of a mixed substance containing methylamphetamine was, at the time of the offending, defined as an amount exceeding 1 kilogram.[3]
[3]Drugs, Poisons and Controlled Substances Act 1981, sch 11, pt 3, as at 15 September 2017, later amended by Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017, s 20, decreasing a large commercial quantity to 750 grams.
The sentencing judge referred to the interlocutory hearings that had taken place before the applicant’s ultimate guilty plea. In particular, the applicant and a co-accused sought to exclude evidence that it was submitted had been obtained as a result of an illegal delegation by the Chief Commissioner of Victoria Police under the Crimes (Controlled Operations) Act 2004. The legality of variations made to the controlled operations authority issued under that legislation was also challenged. This resulted in some of the variations being determined to be invalid.[4]
[4]Sentencing Remarks [42]–[43].
A trial date was set for July 2022, with an estimate of eight to ten weeks.[5]
[5]Ibid [44].
Although his co-accused pleaded guilty, the applicant challenged the admissibility of the evidence that had been obtained as a result of the invalid controlled operation authorities. That challenge failed on 4 July 2022. On 13 July 2022, the respondent accepted the applicant’s offer to plead guilty to trafficking in a commercial quantity of a drug of dependence, and decided not to proceed with the original charge of trafficking in a large commercial quantity.[6]
[6]Ibid [45]–[49].
The firearms charges were resolved on 31 January 2023, and the applicant pleaded guilty to those charges on 17 February 2023.[7]
[7]Ibid [50].
In his sentencing remarks, the judge referred at some length to the personal circumstances of the applicant. The applicant grew up in a small village in Calabria in Italy. He migrated to Australia when he was 20 years old. He married shortly afterwards and his four children were born in the 1980s.[8] At the time of sentencing, he was 63 years of age.
[8]Ibid [54]–[55].
While he had not offended in any particularly serious way until he was about 46 years old, the judge said that over the last 15 years he had been ‘heavily involved in the drug world’, both by using drugs and trafficking them.[9]
[9]Ibid [52].
When the applicant was 30 years old he was placed on a good behaviour bond for possession of cannabis. When he was 36, he was convicted and fined $20,000 for possession of amphetamines. He was first imprisoned in December 2006 on a charge of cultivating a narcotic plant in a commercial quantity. He was sentenced to two years’ imprisonment with a non-parole period of 18 months. Two months later, he was convicted of three charges of trafficking in a drug of dependence, cultivating a narcotic plant and being in possession of a category E handgun without a licence. These convictions resulted in a small enlargement of the sentence he was serving by that stage.[10]
[10]Ibid [57]–[58].
On 8 September 2015, the applicant was convicted of trafficking in a drug of dependence and possession of an unregistered category A longarm firearm. He was sentenced to 53 days’ imprisonment, together with a two-year community correction order (‘CCO’).
The sentencing judge considered the trafficking to be a ‘serious example’ of the offence. The quantity was at the upper end of the range for commercial trafficking, the drugs were of high purity and the applicant was the principal of the enterprise, which he carried on over a period of more than eight months.[11]
[11]Ibid [89].
The judge reviewed the applicant’s progress towards rehabilitation, both while on bail and on remand. The judge said the following when addressing the question of rehabilitation:
As a young man you led a productive life raising a large family. You did not commence offending until you were well into your thirties when you began abusing drugs. It seems reasonable to suppose that if you were to overcome your drug problem you would be much less likely to reoffend.
Although you relapsed back into drug use in late 2021 into early 2022, until that time I accept that you had made genuine and substantial efforts to address your addiction over a period of more than three years after you were released on bail in September 2018. Experience suggests that relapses frequently occur before rehabilitation is ultimately achieved and I note that you are now 63 years of age.
You have continued to make progress in custody. I was impressed with the evidence of your daughter. I was all the more impressed by the level of family support that you enjoy. Given your history, any assessment of your prospects needs to be cautious, even so I have formed the view that your prospects for rehabilitation seem reasonable enough. Nevertheless, it should be understood that those personal considerations tend to attract less weight where the offending is as serious as is the case here.[12]
[12]Ibid [96]–[98]. The judge also found that the applicant had made ‘significant genuine efforts’ to overcome his drug problem and that those efforts were ongoing: at [77].
The only express reference to the matter of delay in the sentencing remarks appeared at [100], as follows:
As the prosecution acknowledged you pleaded guilty once the more serious charge was withdrawn and that plea has saved three trials and the considerable resources that would have been required. Moreover, the utilitarian value of the plea made as it has been in the context of this court having to manage a large number of cases delayed by the pandemic is significant. No doubt also the delay in having these matters finally resolved has been punitive. Those considerations mean that the sentence to be imposed will be substantially reduced than would otherwise be the case.[13]
[13]Ibid [100] (emphasis added).
One reason why the sentencing judge said little about delay is no doubt that it was not raised by the parties at the plea hearing. Plainly, however, the judge was aware of the facts of the delay. The question is whether the way in which he took it into account revealed an error of law.
In conclusion, the judge noted that the case called for general and specific deterrence. The applicant was sentenced as a serious drug offender, so the principal purpose for which the sentence was to be imposed was to protect the community.[14] The judge noted that he had taken into account the ‘quasi custody’ of 90 days spent in residential rehabilitation facilities.[15]
[14]Sentencing Act 1991, s 6D(a).
[15]Sentencing Remarks [106]–[108].
Arguments in respect of proposed ground of appeal
The applicant relied on the two ways in which delay is normally relevant to sentencing. He referred to Rodriguez v Director of Public Prosecutions (Cth),[16] where Warren CJ and Redlich JA said:
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[17]
[16](2013) 40 VR 436.
[17]Ibid 445– 6 [36] (citation omitted). See also Weatherburn v The King [2023] VSCA 283 [42] (McLeish, Taylor and Kaye JJA).
The applicant also referred to R v Cockerell,[18] where Chernov JA said:
The courts have … recognised that such delay which, as here, cannot be attributed to the offender, constitutes a powerful mitigating factor at a number of levels … First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger,[19] there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender. As Wood CJ at CL said in Blanco:[20]
... it remains the fact that it is highly desirable that the prosecuting authorities act promptly where they have evidence of serious criminality. If they fail to do so, then they must expect that circumstance to be taken into account in sentencing. It is in the public interest that those who are suspected of serious criminality be brought to justice and be brought to justice quickly, particularly where there is a strong case available against them.
All the above factors to which I have referred operated in this case and, therefore, the delay in this case was a powerful mitigating factor that had to be given due recognition in the sentencing disposition.[21]
[18](2001) 126 A Crim R 444 (Winneke P agreeing at 448 [14], Buchanan JA agreeing at 448 [15]); [2001] VSCA 239 (‘Cockerell’).
[19][1998] 4 VR 649, 659.
[20](1999) 106 A Crim R 303, 306 [17] (Bell J agreeing at [28], Smart AJ agreeing at [29]); [1999] NSWCCA 121.
[21]Cockerell (2001) 126 A Crim R 444, 447 [10] (Chernov JA, Winneke P agreeing at 448 [14], Buchanan JA agreeing at 448 [15]) (emphasis added); [2001] VSCA 239.
In addition, the applicant noted observations made by Maxwell P in R v Merrett:[22]
[22](2007) 14 VR 392.
The relevance of delay lies rather in the effect which the lapse of time — however caused — has on the accused. Delay constitutes ‘a powerful mitigating factor’. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v The Queen:
... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.
... The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf.
As Vincent AJA pointed out in R v Schwabegger, a legitimate sense of unfairness can develop when the criminal justice process moves in what can be perceived as too leisurely a fashion. His Honour cited the well-known passage from R v Todd where Street CJ explained what fairness required in these circumstances:
… Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach — passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner.
These principles as to the relevance of delay were restated and applied by Chernov JA in R v Cockerell, and were applied again, recently, by this Court in R v Tiburcy.[23]
[23]Ibid 400 [35]–[36] (Chernov JA agreeing at [50], Habersberger AJA agreeing at [51]) (citations omitted) (emphasis added).
In oral submissions, counsel for the applicant suggested that the quoted passage from the judgment of Street CJ in R v Todd pointed to a third way in which delay was relevant, namely in calling for a considerable measure of understanding and flexibility, such as would often lead to considerations of fairness playing a dominant role, resulting at times in what might otherwise be a quite undue degree of lenience being extended to the prisoner. Counsel accepted, however, that this might also be understood as an observation about how the first two aspects of delay may be treated.
Counsel identified four alleged errors in the way in which the sentencing judge approached the question of delay.
First alleged error
First, it was submitted that the judge had gone no further than to make a general observation about the extent of the delay being punitive without taking account of the additional punishment which had been incurred in this particular case. It was submitted that the effect of delay had been particularly onerous in this instance. Counsel referred to the report of Laura Fleming, forensic psychologist, which stated that the applicant faced ‘continuous stress and worries about his court outcome’. Ms Fleming said that, ‘due to the ongoing triggering nature of custody’, the applicant’s trauma symptoms could not be addressed in any detail. He had previously been diagnosed with post-traumatic stress disorder, major depressive disorder, generalised anxiety disorder and stimulant disorder. Ms Fleming said that the applicant:
continues to struggle with low mood and anxiety due to his upcoming court [hearing], distress at his relapse into substance use and return to custody as well as triggering events such as knowing that the person who had previously made threats against his life has also been in custody, causing negative feelings to re-emerge.
The last matter just noted is a reference to an alleged conspiracy to murder the applicant, of which he became aware in about 2008. It was around this time that the applicant began to use alcohol and methylamphetamine, coinciding also with the breakdown of his marriage in 2010. It was submitted that the applicant was in a particularly low state of mind during the time he was on bail, by reason of a number of factors, including the cancer diagnoses of two of his daughters, the imprisonment of his son and his inability to assist them as a result of his mental state and his relapse into drug use. These matters were said to have heightened the applicant’s anxiety and distress.
The applicant’s relapse in 2021 was said to have coincided with the resurfacing of rumours about his planned murder; about a year later, a person was arrested for that alleged conspiracy. In addition, the applicant commenced a relationship with a woman who had a serious drug addiction.
The applicant submitted that the judge’s reference to delay was a ‘throwaway line’, in the nature of a passing remark, which failed to recognise the significantly punitive nature of the delay in this case. I do not accept that submission. The judge made reference to the various disorders suffered by the applicant.[24] He was plainly aware of the period of time that had passed since the applicant was first charged. He said that the delay had ‘no doubt’ been punitive.[25] As the respondent submitted, that amounted to a clear acceptance that the judge was taking account of the punitive effect of delay. He confirmed, moreover, that this consideration, together with the guilty plea, meant that the sentence to be imposed would be ‘substantially reduced’.[26]
[24]Sentencing Remarks [74]–[75].
[25]Ibid [100].
[26]Ibid.
The first alleged error is not reasonably arguable.
Second alleged error
The second alleged error identified by the applicant was that the judge had not taken account of the additional punishment constituted by the restrictions on his liberty imposed by the bail conditions.[27]
[27]The applicant referred to R v Rajapaski [2001] NSWCCA 126 [29]–[31] (Priestley JA, Kirby J agreeing at [27], Howie J agreeing at [38]).
The applicant relied in particular on the requirement of daily reporting which had been in place from 18 September 2018 until 10 October 2019.
The respondent submitted that the judge was not required to identify the individual burdens attributable to delay and address each of them specifically.
The judge had earlier noted the lengthy period of time during which the applicant was on bail.[28] The judge was well aware that this required the applicant to comply with conditions limiting his liberty. In particular, he noted that the applicant’s bail conditions, when first imposed, required him to report daily to the Kyneton police station, which was changed from 7 December 2018 to the Ascot Vale police station.[29]
[28]Sentencing Remarks [35].
[29]Ibid.
No error can be identified in the fact that the judge did not expressly refer to these matters in connection with the issue of delay. The burden imposed by the bail conditions was inevitably an aspect of the delay which the judge accepted had been punitive.
Third alleged error
The third alleged error was said to be that the judge had not acknowledged the additional delay caused by the time it took for sentence to be passed after the plea hearing. The matter was reserved for approximately three and a half months. Again, however, there was no error in the judge dealing with delay on a global basis without identifying the individual components of the delay or the specific features that gave that delay its punitive character.
Fourth alleged error
The fourth error which the applicant sought to establish was that the judge had not acknowledged the ‘powerful’ nature of delay as a mitigating factor. Counsel placed emphasis on the progress which the applicant had made towards rehabilitation during the period of delay. That progress included his attendance at the two residential rehabilitation facilities. There was evidence that he had responded extremely well to the programs provided in those facilities and ‘made enormous strides towards his recovery’. Neil Sanderson, clinical counsellor at the second facility, gave the following very positive assessment:
I can report that Mr Barbaro has attended all program activities and has engaged in the therapeutic process of addiction treatment. In addition, he has responded extremely well to treatment and has made enormous strides towards his recovery. Mr Barbaro has gained valuable insight into the nature of his addiction and addictive behaviour. Mr Barbaro has expressed genuine remorse for past actions, and importantly, accepts responsibility for the actions he has taken, and now accepts responsibility for his on-going recovery. … I have seen a remarkable change in Mr Barbaro’s attitude and outlook towards life.
Counsel drew attention to the fact that the applicant had continued treatment after leaving the second residential rehabilitation facility, including by attending Narcotics Anonymous meetings in the community for several years and engaging a psychologist in accordance with a mental health plan prepared by his general practitioner. The applicant attended 20 sessions with Karly Doyle, a forensic alcohol and other drug specialist, between September 2020 and May 2023 (the later sessions being conducted while he was on remand). Ms Doyle said that the applicant had ‘engaged incredibly well’ and ‘presented with a positive demeanour, [while] demonstrating insight, honesty and self-reflection’. She said that the applicant had expressed a commitment to treatment in order to continue to make personal gains. It was submitted that the applicant’s relapse was the result of a combination of personal difficulties and his embarkation on a destructive personal relationship.
The applicant submitted that the fact that the sentencing judge did not acknowledge how ‘powerful’ delay was as a factor was a basis for inferring that he had not given it the significance the authorities require. It was said that the judge had not acknowledged that the applicant’s rehabilitation during the period of delay was a significant factor in mitigation. Counsel emphasised that the applicant had been drug-free for about three and a half years before his relapse, and that he had stayed free of drugs after his bail was revoked.
It is necessary at the outset to note that delay will not always be a ‘powerful mitigating factor’, such that it must be seen to have substantially reduced the sentence imposed. All sentencing considerations, whether aggravating or mitigating the offending, and however powerful, fall to be taken into account in the sentencing synthesis. The role played by any single factor cannot be identified in the sentence imposed, if only because the factors operate in combination and some factors will outweigh others in the overall result. The significance of delay as a factor will vary from case to case, and delay will be more ‘powerful’ in some cases than others.[30] In short, delay will often be a matter of real importance to the overall sentence, but each case will depend on its facts.
[30]The designation of delay as a ‘powerful mitigating factor’ in Cockerell expressly applied only to the facts of that case: (2001) 126 A Crim R 444, 447 [10]; [2001] VSCA 239. Similarly, in Dragojlovic v The Queen, the Court said that delay ‘will generally be a mitigating circumstance’ and that undue delay may lead to unfairness which requires ‘some degree of compensation in the sentencing process’: (2013) 40 VR 71, 131 [292], [294] (Redlich and Weinberg JJA and Bell AJA).
The applicant submitted, however, that the sentencing judge was required to treat delay as a ‘powerful’ mitigating factor in this case, given the length of the delay and the significant progress in the applicant’s rehabilitation during that time, and had failed to do so. That submission cannot be accepted. The judge took account of delay in both its aspects. He acknowledged the significance of the punitive nature of the delay[31] and he directly addressed the rehabilitative efforts which the applicant had made.[32] The punitive effect of delay has already been addressed. The judge expressly attached significance to that matter.[33]
[31]Sentencing Remarks [100].
[32]Ibid [68]–[77].
[33]Ibid [100].
The judge also referred expressly to the ‘genuine and substantial efforts’ the applicant had made to address his addiction ‘over a period of more than three years’ after he was released on bail.[34] Moreover, the judge took a benign view of the relapse which the applicant suffered in 2021, stating: ‘Experience suggests that relapses frequently occur before rehabilitation is ultimately achieved and I note that you are now 63 years of age’.[35] The judge also noted the continued progress the applicant had made in custody and stated that he was impressed by the level of family support that the applicant enjoyed.[36]
[34]Ibid [97].
[35]Ibid.
[36]Ibid [98].
Overall, the judge formed the view that the applicant’s prospects of rehabilitation seemed ‘reasonable enough’. It is true that he went on to say that such personal considerations ‘tended to attract less weight when the offending is as serious as is the case here’,[37] but there was nothing objectionable in that observation. The judge was not saying that the applicant’s rehabilitative progress while the matter was pending did not attract a significant discount, only that this factor had less weight where the offending in question was more serious. Put differently, the significance of the mitigating effect of the applicant’s rehabilitative progress was to be balanced against countervailing considerations.
[37]Ibid.
The applicant submitted that, even if it is accepted that the judge addressed both aspects of delay, the sentence imposed showed that he had not treated delay as a sufficiently powerful factor, given the strength of the applicant’s claim to mitigation on this basis. In my view, that inference should not be drawn. In all the circumstances, the sentence is not so high that it can be inferred that the judge failed to give these matters appropriate weight. It must be recalled, as the respondent submitted, that this was a serious case in which the offender had significant prior convictions for trafficking and commercial cultivation. The applicant had been in the business of making money by trafficking methylamphetamine over an extended period, including while on a CCO. He was sentenced as a serious drug offender, meaning that protection of the community was the principal purpose of sentencing. In the circumstances, there is nothing about a sentence of 7 years and 6 months’ imprisonment, on a charge for which the maximum sentence is 25 years, which suggests that the judge failed to take proper account of delay.
For these reasons, the fourth error alleged by the applicant is not reasonably arguable.
Conclusion
It follows that it is not reasonably arguable that the judge erred in his approach to the question of delay. Leave to appeal must therefore be refused.
It is unnecessary, in the circumstances, to address a further argument raised by the respondent, namely that leave to appeal should be refused because there is no reasonable prospect that this Court would reduce the total effective sentence even if there were an error in the sentence.[38]
[38]Criminal Procedure Act 2009, s 280(1)(b).
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