Breuer v The Queen
[2011] VSCA 244
•23 August 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2011 0063 | |
| DANIELLE BREUER | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | HANSEN JA, WHELAN and ROSS AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2011 | |
DATE OF JUDGMENT: | 23 August 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 244 | |
JUDGMENT APPEALED FROM: | DPP v Breuer (Unreported, County Court of Victoria, Judge Tinney, 3 March 2011) | |
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CRIMINAL LAW – Sentence – Attempted armed robbery, recklessly cause injury, theft –Applicant received total effective sentence of two years and three months’ imprisonment with non-parole period of seven months – Co-offender later sentenced by same judge to total effective sentence of three years and nine months’ imprisonment with non-parole period of two years and three months – Parity principle not offended – Judge entitled to find no exceptional circumstances existed to justify suspension of applicant’s sentence – Judge appropriately moderated sentence on account of R v Verdins (2007) 16 VR 269 - Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis with Ms M Tittensor | Lethbridges |
| For the Respondent | Mr B Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
HANSEN JA:
The applicant pleaded guilty in the County Court to one count of attempted armed robbery, one count of recklessly causing injury and one count of theft. Following a plea in mitigation, the applicant, then 26 years old, was sentenced on 3 March 2011 as follows:
Count on Presentment Offence Maximum Sentence Cumulation 1. Attempted Armed Robbery 20 years 2 years Base Sentence 2. Recklessly Cause Injury 5 years 9 months 3 months 3. Theft 10 years 6 months Concurrent Total Effective Sentence: 2 years 3 months’ imprisonment Non-Parole Period: 7 months Pre-sentence Detention Declared: 1 day Section 6AAA Statement: 4 years 3 months’ imprisonment with a non-parole period of 2 years 6 months
The applicant now seeks leave to appeal against sentence. In view of the short non-parole period, the hearing was expedited.
Overview of facts and proceedings
On 16 April 2009, the victim, a lone male driver, was returning home after having dinner in St Kilda. Whilst his car was stationary in Dalgety Lane, the applicant got into the car through the passenger door and sat down. She started a conversation with the victim, asking whether he wanted to have a good time and explaining that she charged $120 to $180. The victim understood this to mean for the provision of sexual services. The applicant then telephoned her co-accused, Ryan McHenry, and told him that she was around the corner. The victim told the applicant to get out of the car, but she produced a small silver pocket-knife, held it close to the victim’s throat, and demanded his money (count 1). The victim tried to push the knife away and received a cut to his neck (count 2). A struggle ensued, and McHenry, who had by this time approached the driver’s side of the car, smashed the window with a torch, shattering glass over the victim. McHenry was armed with a knife and a syringe. During the struggle with the victim, the applicant reached across and took the car keys from the ignition before exiting on the passenger side (count 3). The victim attempted to stop her but was thwarted by McHenry who came around to the passenger side and began hitting the victim with the torch. By this stage both the applicant and the victim were outside of the vehicle, and the applicant told the victim she would give him back his car keys when he gave her his money. The victim fled to a nearby street whilst dialling 000. The applicant and McHenry momentarily gave chase before returning to the parked car and rummaging through it. Before leaving the scene, McHenry smashed the driver’s side mirror and front windscreen with the torch.
McHenry was arrested a short distance away, and the applicant was apprehended a short time later. An ambulance attended upon the victim at the scene. He attended the Alfred Hospital and waited for some time before being told to return the following day. Upon returning to the hospital the victim’s injuries were found to include a wound to the forehead, a scratch to the neck, bruises to the left eye and lower chest, puncture marks near the abdomen, and grazes to the elbow and thigh.
The applicant was interviewed on 16 April 2009 and made a no comment interview. She pleaded not guilty following a contested committal hearing on 4 December 2009. On 3 February 2011 the Crown accepted the applicant’s offer to plead to the charges the subject of the presentment on the proviso that she provide a written statement and give evidence against McHenry.
On 8 February 2011 the applicant signed a statement in which she confirmed the arrangements made with McHenry to rob the victim with a knife, and agreed to give evidence against McHenry. McHenry subsequently pleaded guilty to charges of attempted armed robbery, intentionally causing injury, theft and criminal damage. On 29 April 2011, McHenry was sentenced (by the same judge) to a total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 3 months. This matter is discussed below under ground 3.
Submissions on the plea
The following matters were put by the prosecutor on the plea:
(a)There were a number of features of gravity including the nature of the event, the pre-planning involved including the luring of the intended victim, the pre-planned use by the applicant of a knife, and the use by McHenry of weapons upon a victim who was in a vulnerable position in such a confined space. Further, the victim sustained actual injuries, albeit not serious.
(b)As against this, the applicant’s cooperation in her preparedness to make a statement and to give evidence against McHenry required a substantial discount in sentence.
(c) The applicant was suffering from ‘mental problems’[1] at the time of the offending, and ‘no doubt it affected her in her reasoning process’ with the result that ‘all those relevant principles [a reference to defence counsel’s reliance on R v Verdins[2]] would come into play and they would moderate any sentence’. However, he submitted, the evidence was not strong enough to indicate a direct causal link between the applicant’s mental condition and her actual offending. In that context, the prosecutor referred to R v Vardouniotis[3] where the Court of Appeal held that the medical reports in that case revealed a direct link between the offender’s mental illness (severe depression and schizophreniform disorder) and his cultivation of cannabis, which reduced his moral culpability significantly and also the weight to be given to general and specific deterrence. Further, in that case there was direct evidence that incarceration would worsen his mental illness. In the present case, in contrast, the prosecutor submitted that there was no real evidence that imprisonment was going to have an adverse effect on the mental condition of the applicant. Nevertheless, he said that the applicant’s mental condition meant that any sentence ought be moderated having regard to the burden imprisonment places on a person with that condition. Further, he submitted that there ought be moderation of the sentence on account of the applicant’s reduced moral culpability, and moderation of general and specific deterrence. He stated that ‘if there had been that direct causal link [as in Vardouniotis] there would have been more substantial reduction in terms of moral culpability’.
(d)The applicant had no significant criminal history, and no prior convictions for robbery or assault. As to this, his Honour concluded that the applicant’s priors were virtually irrelevant given they comprised one appearance in the Children’s Court and two Magistrates’ Court appearances when the applicant was 17 years old.
(e)Having regard to all the mitigating factors, including the guilty plea, the level of cooperation, and the applicant’s mental condition, a term of imprisonment of three years or less was within the range, and it was open to the court to find exceptional circumstances to justify the suspension of the entirety of any term imposed.
[1]The precise nature of those problems is referred to below.
[2](2007) 16 VR 269.
[3](2007) 171 A Crim R 227 (Maxwell P, Eames and Neave JJA).
Defence counsel submitted that:
(a)Exceptional circumstances existed to justify a wholly suspended sentence pursuant to s 27 of the Sentencing Act 1991.
(b)The applicant’s mental functioning was significantly impaired at the time of the offending. She suffered from an impaired ability to make calm and rational choices given that she was off her medication at the time of the offending, had left a stable relationship, and was making bad decisions including associating with McHenry (who had introduced her to heroin when she was 16) and relapsing into heroin use. As a result of the applicant’s mental state, both at the time of the offending and at the time of sentencing, all of the six factors in R v Verdins[4] were relevant.
[4](2007) 16 VR 269.
(c)The co-operation of the applicant with the police, her plea of guilty, and her writing to the victim expressing remorse and apologising for what she had done, evidenced the applicant’s remorse, and ought result in a discount in sentence. I note that his Honour accepted that submission.
(d)The applicant did not intend to harm the victim, and the injuries he sustained were in the course of a physical struggle.
(e)There had been significant dysfunction in the life of the applicant culminating in mental illness. From the age of 16 she was treated for depression, anxiety and panic attacks.
(f)As a product of her dysfunctional childhood the applicant did not receive much of an education – failing year 7 before being put up into year 8 and dropping out after failing to cope.
(g)The applicant has significant prospects for rehabilitation, relying on a Psychiatric Report of Dr Sanjeewanie Karunaratne dated 14 February 2011. The report suggests that the applicant’s situation is likely to improve with medication and further treatment. As to this submission, his Honour concluded that the applicant had ‘reasonable prospects’ for rehabilitation.
(h)A South Eastern Alcohol and Drug Services Report dated 1 June 2009 (within one month of the date of the offending) detailed a number of the applicant’s psychological issues, including the following:
· Levels of distress consistent with severe depression and anxiety;
· Mood changes consistent with her previous diagnosis of bipolar disorder.
(i)The report of Dr Karunaratne detailed a number of the applicant’s psychiatric issues, including:
· Symptoms consistent with a previous diagnosis of schizophrenia;
· That the applicant has developed trust and rapport with Dr Karunaratne and the applicant’s caseworker, Emma Best; and
· That there has been regular attendance by the applicant on both Dr Karunaratne and Emma Best, which was an improvement on the applicant’s ability to engage with mental health professionals in the past.
(j)Character references from Michelle Floyd, and Jenny and David Norman indicated that these people treat the applicant as an adopted family member, consider her trustworthy, and provide support to her.
The judge’s findings
The judge gave comprehensive sentencing remarks. For present purposes, it is sufficient to set out the passages concerning Verdins and whether exceptional circumstances existed to justify suspending the sentence.
As to Verdins, the judge first referred to the South Eastern Alcohol and Drug Services report which:
43… disclosed a nine year history of heroin use and substitution therapy really for most of the time since you were 17 years of age. You were disclosing a resistance to any admission to residential withdrawal service or long term in-patient rehabilitation. Your counsel pointed to a score on the depression/anxiety scale which may be indicating severe levels of distress consistent with depression or anxiety. There was reference to your diagnosis with bipolar disorder and your resistance to medication from February of 2009, together with reference to threatened and attempted suicides in your earlier years. There is a depressing history in that report dealing with your alcohol, heroin, cannabis, amphetamine and benzodiazepine use over the years.
44Exhibit 2 was a report from the Court Integrated Services Program. It was the final progress report. It was dated 13 August 2009 and is, at least, at that stage of the proceedings a depressing account of your continued failure then to deal with some of these significant issues in your life. You missed a variety of appointments that were set up for you. To quote from the report:
“For reasons unknown it appears Ms Breuer’s motivation has lapsed and her attendance at appointments can only be described as sporadic at best.”
The report concludes:
“It is respectfully requested that CISP be removed from Ms Breuer’s bail conditions.”
45It is very hard to see how these first two exhibits attract the principles referred to in R v Verdins. Of course, they do not exist though in a vacuum and there is other material to add to add to that material.
46Exhibit 3, for instance, does so add. It is a report from Dr Karunaratne, a more current report, and that of a current treating psychiatrist. It refers to some of your history, both in terms of mental health, hospital admissions and heroin use.
47There is a description in that report of your diagnosis having been changed from the earlier diagnoses of bipolar disorder to one of schizophrenia with opiate dependency, cannabis dependency and benzodiazepine dependency. You have regularly attended appointments at the clinic from November of 2010 and when observed on 31 January of 2011, you were well presented but were experiencing some delusional persecutory themes, as commented on in the report. You were described as insightful to some extent about your illness and the need to take medication, though at times suspicious whether the medication was poisonous to you, or not. It is said that your mental state is likely to improve with regular medication and treatment. However, this report deals with events in 2010 and 2011, not 2009. There is no suggestion of any delusional themes being present as at the date of the offending itself.
48Ultimately, I have concluded despite the submissions made by your counsel that there is no basis to find any significant reduction in your moral culpability for these crimes by virtue of any impairment, or the effect of impairment in accordance with the authority to which I have cited. I can simply find no connection whatsoever between any such condition, howsoever it be labelled, and this offending. Nor can I find any connection between your condition and the drug use which obviously was so central to this offending.
49The offending itself is rational. It is entirely explicable by the desire to obtain money, money for drugs. It was planned and it was entirely unimpulsive. I am not persuaded that you had any impairment to exercise appropriate judgment, any impairment of your ability to make calm and/or rational choices, or to think clearly. I am not satisfied that you were disinhibited by virtue of these conditions, or had any impairment in your ability to appreciate the wrongfulness of your conduct. Indeed, I am satisfied, indeed, beyond reasonable doubt that you clearly appreciated how serious this conduct was at the time that you committed it. I am not satisfied that any of your mental conditions obscured the intent to commit the offence, or contributed causally to the commission of the offending. Ultimately, in those circumstances I am not satisfied that there is any significant lessening of your moral culpability by virtue of these conditions.
50Whilst the prosecution attitude of allowing for some reduction in culpability may be overly charitable to you, I will act in that way despite the lack of nexus that I have commented on in these reasons to date. I have already indicated that I have also made an allowance for a reduction of your moral culpability by virtue of your, as I find it, extremely disadvantaged and unfortunate background.
51That, of course, is not the end of the matter. I am also entitled to have regard to your condition as at the time of sentence. The exhibit that I have referred to most recently, Exhibit 3, the report of Dr Karunaratne, discloses to me that some weight should be attached to principles 3, 4 and 5 from R v Verdins, namely, a reduction in the weight to be given to general and specific deterrence and a finding that the existence of the condition now commented on by Dr Karunaratne at the time of sentence and into the future will mean that a given sentence will likely weigh more heavily on you than it would upon a person without these conditions. In that sense, the condition also has a bearing on the kind of sentence to be imposed and the conditions in which it will be served, and so to that extent Proposition 2 from the case to which I have referred is likewise enlivened.
52However, I speak only of moderation of the principles of general and specific deterrence. General deterrence is still a significant principle of sentence in this case, notwithstanding the findings that I have made. Such disorder as you have does not strike me on the materials as being severe and in no way renders you an inappropriate vehicle for these important principles of sentencing. You knew then; you know now that what you did was entirely wrong, dangerous and seriously unlawful. You are a long way removed from the rare class of offender for whom it can be said that these important principles are to be eliminated by virtue of a relevant condition. So it is then that in your case, there is a sensible moderation of these principles. The fifth proposition to which I have referred from the case R v Verdins is self-evident. A person in your current predicament will likely find prison more burdensome than would a person in normal health and I have regard to that by way of mitigation. There is no material before me enlivening the sixth proposition in the case, to which I have referred, that is, a serious risk of imprisonment having a significant adverse effect on your mental health. [emphasis added]
As to exceptional circumstances, the judge said:
72… I am not satisfied that exceptional circumstances have been demonstrated. Even had this offence not required proof of exceptional circumstances, I would not have been persuaded that a wholly suspended term was desirable as such a disposition would not in my assessment adequately manifest the denunciation of this conduct or adequately deter you or others, or reflect the gravity of the offending.
73Nor in the circumstances am I satisfied ultimately that a partially suspended term is appropriate in this particular setting. I intend to impose an immediate term of imprisonment upon you in relation to each of these counts, with substantial concurrency as between the counts. I intend to reflect the positive and mitigatory matters that have been placed before me both in a very significantly reduced head sentence and a much, much shorter than usual non-parole period to encourage the stance that you have taken to date and to hopefully foster your rehabilitation with a possibility of supervised release back into the community in the not too distance future.
The appeal
At the outset of the hearing, counsel sought leave to add a ground of appeal (ground 3) concerning parity. The Crown did not oppose the application, and the Court granted leave. Accordingly, the applicant relied on the following grounds:
1A.The sentencing judge erred by failing, in circumstances where:
(a)he imposed a total effective sentence of 2 years and 3 months imprisonment; and
(b)ordered that all but seven months of the total effective sentence not be served by way of immediate gaol;
to find that the features informing the appellant’s disposition did amount to exceptional circumstances.
1B. The sentencing judge erred by failing properly to synthesize - for the purposes of determining whether there existed exceptional circumstances such as to justify the imposition of a suspended sentence:
(a) the prosecutor’s submissions as to exceptional circumstances;
(b)the applicant’s longstanding and relatively active psychiatric illness; and
(c)the matters personal to the applicant’s sentence.
2A.The sentencing judge erred by failing properly or adequately to synthesize, and reflect in the sentences imposed, the applicant’s impaired mental functioning.[5]
[5]A list of ‘particulars’ followed, alleging in essence a failure to properly moderate the sentence on account of principles 1, 3, 4 and 5 in Verdins.
2B.The sentencing judge erred by finding, in the context of determining whether, and to what extent, the sentencing discretion should be informed by the applicant’s impaired mental functioning, that:
(a)despite the Prosecutor’s concession, it was difficult to see how the applicant’s psychiatric history attracted the principles set out in R v Verdins;
(b)the condition did not seem to the judge to have been severe;
(c)there was no nexus between her psychiatric condition and her offending;
(d)he was not persuaded that her impairment disinhibited or affected whether and to what extent she appreciated the wrongfulness of her actions;
(e)he was not persuaded that her impaired mental functioning contributed causally to her offending; and
(f)the Prosecutor’s submission on her impaired mental functioning may be ‘overly charitable’.
3.The sentencing judge erred by imposing terms of imprisonment on the applicant and her co-offender McHenry that:
(a)disclosed insufficient disparity between them; and
(b)engendered in the applicant a justifiable sense of grievance.
Grounds 1A and 1B
Counsel did not develop these grounds in oral submissions, save to submit that having regard to all the material and all the mitigating factors, including the fact that the applicant had remained drug free during her four and a half months in custody and had ongoing family support, the Court ought conclude that there were exceptional circumstances that justified a suspended sentence.
There is no substance in these grounds. Defence counsel on the plea sought a suspended sentence, relying on a wide range of matters, and in particular the prosecutor’s statement that a wholly suspended sentence was within range. The judge stated correctly that while he could not disregard the prosecutor’s submission, ultimately he had to reach his own decision on that aspect. It is clear from his sentencing remarks that the judge gave serious consideration to the issue and took account of all relevant matters, but in the end concluded that in all the circumstances, only an immediate custodial sentence was sufficient to reflect the seriousness of the offending and the need for denunciation and general and specific deterrence. In my view, there was nothing in the material that compelled the contrary conclusion. Grounds 1A and 1B are not made out.
Grounds 2A and 2B
The essence of the complaint under these grounds is that the judge ought to have found that Verdins applied to moderate the applicant’s sentence, having regard to all the evidence and particularly in light of the prosecutor’s statements on the plea. Counsel placed much emphasis on the plea transcript as revealing what he described as the prosecutor’s concession that there was a relevant connection between the applicant’s impaired mental functioning and the offending. Counsel submitted that the prosecutor’s argument that there was no direct causal link did not alter the fact that the prosecutor accepted that the applicant’s mental impairment materially contributed to the offending so as to attract the principles in Verdins.
Counsel conceded that there was no express evidence that the applicant’s mental illness caused the offending. However, he noted that the applicant had not committed violent offences previously, and she did so on this occasion barely one month after ceasing to take medication, in the context of relapse into a heroin addiction. In these circumstances, he submitted, the only reasonable inference was that her mental illness contributed to the offending so as to reduce her moral culpability. The prosecutor so recognised the situation and the judge erred by not making such a finding.
In my view, the judge did not err. It is convenient to recall the statement in R v Vuadreu[6] that:
It must be emphasised that Verdins has no application in respect of a condition postulated to have existed at the time of offending unless the condition relied upon can be seen to have some realistic connection with the offending. The Verdins principles are, and should be regarded, as exceptional.
[6][2009] VSCA 262, [37] (Ashley and Weinberg JJA).
The prosecutor seemed to assume that the applicant’s mental condition had a sufficient connection with the offending to reduce the applicant’s moral culpability and the relevance of specific and general deterrence, notwithstanding his submission that there was no direct causative link. However, as the judge’s sentencing remarks demonstrate, there was no evidence that the applicant was delusional at the time of the offending, as opposed to the later diagnosis. And while the offending was readily explained by the applicant’s need for money to buy drugs, the evidence did not establish any realistic connection between her mental health and her drug addiction, save for the most generalised statements that she was ‘self-medicating’. It must not be overlooked that the question of any reduction of moral culpability is inherently a question of fact to be determined in each case on the materials presented. In my view, the judge approached the question in the correct way. That is, by carefully scrutinising the evidence to determine whether it established a sufficient connection between the applicant’s impaired mental functioning and the offending. The judge was correct to describe the prosecutor’s submission as to reduced moral culpability as overly generous. Further, the judge was entitled to conclude, as he did, that there was no causal connection, and hence no reduced moral culpability.
In any event, however, the judge gave the applicant the benefit of the prosecutor’s concession and allowed some moderation of sentence on account of reduced moral culpability. In effect, this was an exercise of mercy by the judge.
As to the other principles in Verdins, it is plain from the sentencing remarks that the judge applied principles 3, 4 and 5.
As to principle 6, the material went no higher than suggesting that as the applicant had distrusted mental health professionals in the past but had now found mental health professionals whom she could trust, her going to prison would sever those links and jeopardise her ability to access appropriate mental health services. This material was speculative, and the judge was entitled to conclude that it did not establish a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental health such as would mitigate the sentence.
In the end result, the judge did moderate the sentence on account of all the principles in Verdins except principle 6. That his Honour did so is particularly apparent in the non-parole period which was most merciful and could hardly have been less. Grounds 2A and 2B are not made out.
Ground 3
Counsel submitted that McHenry’s role in the offending was more serious than the applicant’s and he had less mitigating factors in his favour, yet those differences were not sufficiently reflected in their sentences.
It is to be noted that McHenry was sentenced to three and a half years’ imprisonment for attempted armed robbery (count 1), 12 months for intentionally causing injury (count 2), six months for theft of tobacco (count 3) and six months for criminal damage (count 4). The judge made count 1 the base sentence and ordered that three months of the sentence on count 2 be served cumulatively, while the sentences on counts 3 and 4 were concurrent, thus producing a total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 3 months.
In developing this submission, counsel referred to numerous matters, including:
(a)McHenry pleaded to intentionally causing injury, whereas the applicant pleaded to recklessly causing injury;
(b)McHenry also committed criminal damage;
(c)their age difference - McHenry was 29 while the applicant was 26;
(d)McHenry lied in his record of interview whereas the applicant gave a statement which led to McHenry pleading guilty;
(e)the judge’s finding that McHenry’s rehabilitation prospects were ‘a good deal lower’ than the applicant’s;
(f)while both had disadvantaged upbringings and problems with drug addiction, McHenry did not rely on Verdins whereas the applicant did;
(g)McHenry had a longer criminal history, albeit not for crimes of violence; and
(h)the applicant had greater family support.
Counsel also referred to the judge’s s 6AAA declaration that had they not pleaded guilty, McHenry’s total effective sentence would have been 5 years while the applicant’s total effective sentence would have been 4 years and 3 months. He submitted that these figures bespoke error, because they disclosed such a small disparity which could only have been justified on the objective gravity of the respective offending. If proper weight were given to the offenders’ personal circumstances, the applicant ought to have received a significantly lower sentence than McHenry.
In my view, there is no substance in this ground.
The judge found that the applicant’s activity with McHenry was ‘joint and premeditated’, the applicant was a willing and active participant in the crime, and she was not ‘ensnared’ by McHenry in the way suggested by defence counsel on the plea. In my view, these findings were open on the evidence. In essence, the plan was that the applicant would do the robbery, with McHenry to assist if required. In this sense, it might be said that if things had gone according to plan and the victim had handed over his money to the applicant, McHenry might never have become involved. In those circumstances, it might have been said, as counsel argued on the appeal, that McHenry had the applicant ‘doing the dirty work’, without risking his own involvement. But the fact is that as events unfolded, both offenders became involved and, as the judge found, were willing and active participants.
In the end result, McHenry was sentenced to three and a half years for the attempted armed robbery while the applicant received two years. As to the injury counts, McHenry received 12 months for intentionally causing injury, while the applicant received nine months for recklessly causing injury. Each was involved but their roles were different. They each received six months for theft (of different items) and McHenry received six months for the criminal damage, with these last sentences to be served concurrently. McHenry’s total effective sentence was 18 months longer than the applicant’s, while his non-parole period was 20 months longer. This was a significant disparity between co-offenders which, in my view, appropriately reflected the offenders’ respective degrees of culpability, the different mental element as to the injury counts, and their differing personal circumstances and matters in mitigation. Further, I do not accept that the s 6AAA declaration bespeaks error. As the judge made plain, he gave the applicant a significant discount for her cooperation in terms of the statement against McHenry, and further reflected her
mitigating factors and reasonable rehabilitation prospects in a ‘significantly reduced head sentence and a much, much shorter than usual non-parole period’. Indeed, when the relative parity of the respective s 6AAA declarations is contrasted with the significant disparity between the ultimate dispositions in respect of each offender, particularly in respect of the non-parole period, the conclusion is inescapable that the judge moderated the applicant’s sentence significantly on account of her personal matters. Far from receiving a sentence that would justify a sense of grievance, the applicant was dealt with mercifully. Ground 3 is not made out.
For these reasons, I would refuse the application for leave to appeal against sentence.
WHELAN AJA:
I agree with Hansen JA.
ROSS AJA:
I also agree with Hansen JA.
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