Christopher Dean Binse and v The Queen and
[2014] VSCA 329
•15 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0121
| CHRISTOPHER DEAN BINSE |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES: | WEINBERG JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 December 2014 |
| DATE OF JUDGMENT: | 15 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 329 |
| JUDGMENT APPEALED FROM: | R v Binse [2014] VSC 253 (T Forrest J) |
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CRIMINAL LAW – Sentence – Multiple charges – Applicant sentenced to 14 years and 2 months’ imprisonment in respect of one charge of armed robbery as component of total effective sentence of 18 years and 2 months – Whether sentence on charge of armed robbery manifestly excessive – Sentence not manifestly excessive – No reasonable prospect of total effective sentence being reduced – Leave to appeal refused – Criminal Procedure Act 2009 ss 278, 280.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Holt SC | Victoria Legal Aid |
| For the Crown | Mr R A Elston QC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
The applicant seeks leave to appeal against a sentence of imprisonment imposed on 23 May 2014. The sentence related to two indictments, hereafter referred to as ‘Indictment No 1’ and ‘Indictment No 2’.
The applicant pleaded guilty to two charges on Indictment No 1, being one count of theft, and one count of being a prohibited person in possession of a firearm (charges 7 and 8 respectively). Following a trial in the Supreme Court, he was acquitted of six further charges on that indictment.
In respect of Indictment No 2, the applicant pleaded guilty to four charges, being armed robbery (charge 1), use of a firearm whilst a prohibited person (charge 2), reckless conduct endangering persons (charge 3) and being a prohibited person in possession of a firearm (charge 4).
On 23 May 2014, the applicant was sentenced in respect of the offences referred to above as follows:
Charge Offence Maximum Sentence Cumulation Indictment No 1 7 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 2 years
6 months8 Theft [Crimes Act 1958 s 74] 10 years 1 month - Indictment No 2 1 Armed robbery [Crimes Act 1958 s 75A] 25 years 14 years, 2 months Base 2 Prohibited person use a firearm [Firearms Act 1996 s 5(1)] 10 years 6 years 2 years 3 Reckless conduct endangering persons [Crimes Act 1958 s 23] 5 years 2 years 6 months 4 Prohibited person possess a firearm [Firearms Act 1996 s 5(1)] 10 years 4 years 1 year Total Effective Sentence: 18 years, 2 months’ imprisonment Non-Parole Period: 14 years, 2 months Pre-sentence Detention Declared: 715 days 6AAA Statement: 22 years’ imprisonment with a non-parole period of 18 years
Something further should be said regarding the base sentence of 14 years and 2 months’ imprisonment imposed in relation to charge 1.
On 8 May 2014, the applicant commenced serving a 5-month term of imprisonment in respect of an unrelated offence. The sentencing judge in the present case determined that 2 months of that 5 month sentence ought to be served cumulatively upon the sentence he imposed in respect of the charges referred to above. His Honour decided not to make formal orders for cumulation in that regard, but stated that he had taken the applicant’s previous sentence into account in setting the base sentence in relation to charge 1.[1] Both parties had accepted that it was open for his Honour to take that course.
[1]R v Binse [2014] VSC 253 (22 May 2014) [53] (‘Sentencing Remarks’).
Grounds of appeal
The applicant seeks leave to appeal against sentence on the following grounds:
1.The sentence of 14 years, 2 months imposed on charge 1 (Armed Robbery) was manifestly excessive:
(a)The sentence reflects an over weighting of the seriousness of the armed robbery.
(b)The sentence places excessive weight on the need for deterrence and community protection.
(c)The sentence places insufficient weight on the circumstances in which the Applicant will serve his sentence, the Applicant’s guilty plea and his remorse.
2.In consequence of the error particularised in Ground 1, the total effective sentence and minimum non-parole period imposed are inconsistent with the principle of totality.
Circumstances surrounding the offending
The offences which are the subject of this application occurred during the period between January 2012 and May 2013. Before turning to those offences, however, it is necessary to say something of the applicant’s background and the events leading up to the offending.
The applicant was born on 7 October 1968, making him 45 years of age at the time of sentence. He has a long criminal history, and has spent 28 of the last 32 years in some form of custody. His prior offending includes:
·1986 - convictions for burglary, escaping from a youth training centre, handling stolen goods, unlawful possession, failing to answer bail, and wilfully damaging property, for which he received a total effective sentence of 12 months’ imprisonment;
·1987 – two convictions for intentionally causing injury, for which he was sentenced to 2 months’ and 4 months’ imprisonment, respectively;
·1988 – convictions for theft of a motor vehicle, assaulting police, attempted escape, unlawful possession, possessing a drug of dependence, handling stolen goods, and unlicensed driving, for which he received a total effective sentence of 2 years and 8 months’ imprisonment (minimum 18 months);
·1990 –convictions for four counts of conduct endangering life, for which he received a total effective sentence of 12 months’ imprisonment;
·1993 - convictions for four counts of armed robbery, for which he received a total effective sentence of 7 years and 6 months’ imprisonment (minimum 5 years). The sentencing judge at the time apparently described these offences as ‘about as bad as bank robberies can be’;[2]
·1998 – convictions in New South Wales for armed robbery, possessing a prohibited weapon, stealing a motor vehicle, kidnapping, and discharging a firearm, for which he received a total effective sentence of 6 years and 6 months’ imprisonment (minimum term of 3 years, 6 months);
·2006 – convictions for being a prohibited person in possession of an unregistered firearm, common law assault, and possession of a drug of dependence, for which he received a total effective sentence of 4 years’ imprisonment (minimum 2 years); and
·2010 – convictions for possessing cocaine, carrying a prohibited weapon, dealing in property suspected to be the proceeds of crime, and having custody of various false identity documents, for which he received an aggregate sentence of 12 months imprisonment. [3]
[2]See Sentencing Remarks [3].
[3]The offences for which the applicant was convicted in 2006 and 2010 are discussed further at [11]-[13] below.
In addition to the offences referred to above, the applicant had numerous convictions for other assault-related offences, various drug convictions, and several convictions for escape, attempted escape or similar such conduct.
Whilst on remand for the 2006 offences, as set out in [9] of these reasons, the applicant was the victim of a serious assault. The applicant believed that his attackers were procured by a particular prisoner (‘Prisoner X’) to carry out that attack.
The applicant was released on parole in relation to those offences in April 2008. In September 2008, the applicant’s parole was revoked.
In December 2008, the applicant was apprehended by police. At that time, the applicant was found to be in possession of cocaine, four prohibited weapons, an unregistered handgun, and various false identity documents. As previously indicated, he was sentenced in October 2010 to a further term of 12-months’ imprisonment in respect of these additional offences.
On 28 September 2011, the applicant was released from custody, having served his full sentence in relation to the January 2006 and December 2008 offences. Upon his release, the applicant temporarily lived with his former partner and his daughter.
During his period of imprisonment, further threats had passed between the applicant and Prisoner X. Accordingly, the applicant claimed, and the sentencing judge accepted, that upon his release from custody, the applicant harboured concerns that Prisoner X (who by this time was at large) represented a threat to his safety, and that of his family. These concerns were apparently realised when the applicant was assaulted by a number of men, and an associate of his was shot, in October and November 2011 respectively.
I turn now to the offending which is the subject of this appeal.
Seaford offences
In an interview with police in May 2012, the applicant stated that, following the attack upon his associate, he had determined to confront Prisoner X.
On 9 January 2012, in pursuance of that purpose, the applicant drove to an address in Seaford in a black Land Rover. The applicant parked his car, and attempted to steal a nearby vehicle. The attempt failed, and the applicant fled the area, leaving the Land Rover behind.
Police were called and the Land Rover was searched. They found a loaded .22 calibre semi-automatic handgun, fitted with a silencer, located beneath the driver’s seat (charge 4 – prohibited person possessing a firearm).[4]
Westside Hotel offences
[4]Charge 4 is a rolled up count involving the Seaford offence, and four other instances of this offence, occurring on 22 May 2012, which are referred to at [27] below.
On 19 March 2012, at about 10.15am, the applicant drove to the Laverton Market. The applicant entered via the rear gate and prepared to commit an armed robbery on the Westside Hotel.
The applicant unloaded an off-road motorcycle from his van, and strapped a sawn-off shotgun to the side of the motorcycle. The applicant had previously done a number of things in preparation for the armed robbery. He had cut a hole in the cyclone wire fence at the perimeter of the hotel grounds in order to gain access to a small walkway that ran between the hotel and an adjacent factory; drilled 14 small holes into a wooden fence that separated the factory from the hotel car park; and positioned a ladder against the wooden fence so that he could climb over it if necessary. As a result, the applicant was able to position himself such that he had a view of the rear car park of the hotel from behind the fence, but was not visible to those in the car park unless he climbed the ladder.
At about 10.37am, the applicant rode his motorcycle to the small hole in the cyclone wire fence. He took the shotgun and moved to his prepared site behind the wooden fence.
At about 11am, an Armaguard van entered the rear car park. Two guards left the van and entered the hotel. They collected $235,090, which was placed in a large blue Armaguard bag. As they left the hotel and returned to their van, the applicant, who was wearing a hood, mask and sunglasses, ascended the ladder so that his head and shoulders were above the fence. He pointed his shotgun at one of the guards, pumped it, and demanded that the guard throw the bag containing the money over the fence. The guard endeavoured to do so. However, the bag failed to clear the fence, and instead fell to the ground in the car park. The applicant demanded that the two guards lie face down on the ground, before jumping the fence to recover the bag. The applicant pointed his shotgun at one of the guards, approached him, and took his service revolver from its holster. The applicant demanded that the other guard also surrender his revolver, which he did. The applicant then retrieved the blue bag, climbed back over the fence, and departed the scene on his motorcycle (charge 1 – armed robbery).
The applicant rode to the rear of the Laverton Market, dumped his motorcycle and shotgun in a nearby dam, changed clothes, and drove away in the white van.
Very little of the proceeds of the armed robbery have been recovered.
Atak storage facility offences
During the period after the armed robbery, the applicant was identified as a suspect, and his movements were surveilled. He was observed to regularly attend the Atak storage facility in Ballarat Road, Albion.
On 22 May 2012, the Atak facility was searched by police. The following weapons were located and seized from a container controlled by the applicant (charge 4 – prohibited person possessing a firearm):
·a .357 calibre Sturm Ruger revolver identified as stolen from one of the two Armaguard personnel during the Westside Hotel armed robbery;
·a .22 Long Rifle calibre Sturm Ruger rifle. This rifle was cut down, loaded, had a silencer attached, and had been modified to fire in full automatic mode;
·a 12 gauge Sportco brand Model 81 bolt action repeating shotgun. Both butt stock and barrel were cut down, and the shotgun was loaded; and
·a .45 calibre Auto Ordinance Corporation brand Thompson model 1928-A1 sub-machine gun.
Ammunition for each of these firearms was also located.
La Porchetta offences
On 20 May 2012, two police officers in an unmarked vehicle observed the applicant riding a Honda motorcycle. After a minor traffic incident, the police pursued a motorcycle that had been travelling in company with the applicant. Approximately 90 minutes later, two other police officers saw the applicant’s motorcycle parked outside the La Porchetta Pizza Restaurant in Niddrie. The two officers, along with the two original officers who had observed the applicant riding his motorcycle, assembled on the footpath outside the restaurant. At about this time, the applicant emerged from the restaurant, and saw the four men as he was walking towards his motorcycle.[5] The applicant turned around and walked briskly back into the restaurant.
[5]The sentencing judge accepted that the only sensible interpretation of the jury verdicts was that the jury must have concluded that the applicant did not, at this time, realise that the four men were police officers.
The police officers followed the applicant into the restaurant. One officer put his arm on the applicant’s shoulder, whereupon the applicant produced a loaded revolver (charge 7 – prohibited person possessing a firearm). The revolver was one of the guns which had been taken from the Armaguard personnel during the Westside Hotel armed robbery. The police officer backed away, dropping his police radio in the process. The applicant took possession of the police radio (charge 8 – theft), before hurriedly leaving the scene.
Sometime later, the applicant retreated to his home in Sterling Drive, Keilor East.
The siege at the applicant’s Keilor East home
At 6.40am on 21 May 2012, members of the Victoria Police Special Operations Group (‘SOG’) attended outside the applicant’s Sterling Drive home. The applicant was inside his home, with his partner, and was armed with the revolver which he had taken during the Westside Hotel armed robbery. The applicant was asked to exit the property, and to surrender peacefully. He did not respond, but instead attempted to barricade himself inside the house. The applicant remained inside the house for the next 44 hours. Throughout this period, numerous unsuccessful attempts were made to persuade the applicant to surrender.
During the course of the siege, the applicant discharged his firearm on a number of occasions. The following occasions form part of charge 2 (prohibited person using a firearm):
(a) 21 May 2012 at 7.38am – one shot was fired at an SOG armoured vehicle positioned in the driveway adjacent to the house. Two SOG operators were seated in the vehicle at the time. The shot ricocheted off the front of the vehicle.
(b) 21 May 2012 at 7.48am – two shots were fired at the SOG vehicle, both of which missed the vehicle, passed through a wooden fence, and fell into the neighbouring front yard.
(c) 21 May 2012 at 3.38pm – one shot was fired at the SOG vehicle, which was occupied by two SOG operators at the time. The shot ricocheted off the front of the vehicle.
(d) 21 May 2012 at 3.48pm – one shot was fired at the SOG vehicle. The bullet struck the driver’s door window. Two SOG operators were in the vehicle at the time.
(e) 22 May 2012 at 12.51am – one shot was fired at a police robot positioned in the driveway.
The applicant also discharged his firearm on a further occasion on 22 May 2012 at 10.10am. This is the subject of charge 3 (reckless conduct endangering persons). On that occasion, he fired three shots from the back door of his house towards the rear fence of the property. That fence is adjacent to Keilor Park Drive, a road on which there was heavy traffic at the time the shots were fired. However, although one of the shots penetrated the fence, none of the shots made it onto Keilor Park Drive.
At approximately 7.27pm on 22 May 2012, the applicant’s partner left the house. The sentencing judge accepted that the applicant did not intentionally hold her at the house against her will. However, his Honour noted that her departure was impeded by the makeshift barricades that the applicant had erected, as well as her concern that her departure might trigger a negative response from the applicant.
At approximately 2.00am on 23 May 2012, the SOG took action to end the stand-off. They fired tear gas into the house, causing the applicant to emerge from the property. The applicant was carrying the revolver. He initially complied with a request to drop the gun, but subsequently sought to pick it up. At that point, several non-lethal bean bag rounds were fired at him. The applicant managed to pick up the revolver, but was immediately struck with further bean bag rounds, at which point he fell to the ground and was arrested.
Sentencing judge’s remarks
The sentencing judge accepted that, from the time the applicant was released from custody in September 2011, he was genuinely fearful for his life, and the lives of his loved ones, due to the threat he perceived from Prisoner X. The sentencing judge also accepted that this fear was a likely explanation for the applicant’s possession of ‘three of the four impugned firearms’.[6] However, his Honour came to the view that this ‘did little’ to reduce the applicant’s moral culpability.[7]
[6]Sentencing Remarks [30].
[7]Ibid.
His Honour noted that each of charge 1 (armed robbery), charge 2 (prohibited person using a firearm), and charge 3 (reckless conduct endangering persons) involved ‘very serious’ criminal conduct.[8] In relation to charge 2, his Honour considered that, although the applicant was not charged with an offence against any police officer during the siege, the fact that the applicant had fired shots at an occupied SOG vehicle was an aggravating feature of the offence.[9]
[8]Ibid [31], [33].
[9]Ibid [33].
The sentencing judge had regard to several mitigating factors. These included that the applicant had pleaded guilty (though at a late stage) to all four charges on Indictment No 2,[10] and that there was ‘some evidence of remorse’.[11] The sentencing judge also had regard to the fact that imprisonment was likely to be particularly onerous for the applicant. His Honour accepted that the applicant had been classified as a long term management prisoner with a high security risk, and that there was a real prospect he would be required to serve all, or a large portion, of his sentence in isolation cell confinement for up to 23 hours a day.[12]
[10]Ibid [46].
[11]Ibid [47].
[12]Ibid [38].
The sentencing judge also referred to a psychological report from Dr Danny Sullivan tendered on the applicant’s behalf, and evidence from a forensic psychologist, Ms Pamela Matthews, given on behalf of the applicant at the plea hearing. His Honour noted that both Mr Sullivan and Ms Matthews diagnosed the applicant as suffering from a form of mixed personality disorder with antisocial and narcissistic traits, and commented on the impact that future incarceration would have upon him. His Honour accepted, on the basis of that evidence, that future imprisonment in a restricted custodial environment would have a significant adverse effect on the applicant’s mental health. He considered that this, in combination with the onerous conditions the applicant would be subject to in prison, were factors which ought mitigate the applicant’s sentence. His Honour was not persuaded, however, that there was any other basis upon which the applicant’s mental state ought influence his sentence.[13]
[13]Ibid [41]-[45].
As against these mitigating factors, the sentencing judge had regard to the applicant’s prior convictions, to which I have already referred. In light of the applicant’s extensive criminal history, his Honour considered that there was a ‘powerful need’ for both specific and general deterrence in this case, and that these factors should be given ‘significant weight’.[14] His Honour also noted that the applicant’s prospects for rehabilitation were ‘poor’. [15]
[14]Ibid [48]. His Honour also considered that there was a need to protect the community from the applicant but, given the significant weight his Honour had given to specific and general deterrence, it was not necessary to extend the overall sentence any further to give effect to this purpose: [59].
[15]Ibid [51].
Finally, in relation to the principle of totality, his Honour stated that he had sought to avoid imposing a ‘crushing’ aggregate sentence on the applicant and, to that end, had moderated both the individual sentences, and the impact of cumulation.[16]
[16]Ibid [52].
Ground 1 – sentence imposed on charge 1 was manifestly excessive
The applicant conceded that no specific error could be discerned from the sentencing judge’s findings, nor his Honour’s identification and application of the relevant sentencing principles. The applicant also conceded, on his plea, that little assistance was to be gained from comparable cases.[17]
[17]R v Johnson and Morgan [2011] VSCA 348 was cited as authority for the proposition that, particularly for serious cases of armed robbery, prior sentences are of limited assistance.
The applicant nevertheless contended that the sentence imposed by his Honour on charge 1 (armed robbery) was ‘plainly too long’. Specifically, the applicant submitted that, although the sentencing judge had correctly identified the key mitigating factors applicable in this case, the sentence imposed did not adequately reflect those mitigating features.
In support of that submission, the applicant relied heavily on sentencing statistics from the Sentencing Advisory Council. He contended that, in respect of charge 1 , the sentence was at the ‘very top end’ of those previously imposed in this State. Indeed, his counsel submitted, during the course of oral argument, that the sentence was ‘an outlier’, a term that he used repeatedly throughout his argument. He submitted that a sentence of this duration could not be justified, even having regard to the gravity of the offending. He pointed to several factors that, in his submission, served to lessen the applicant’s moral culpability. These included the relatively short duration of the armed robbery, the fact that there was no physical violence beyond that required to commit the offence, and the fact that neither of the victims was, in any relevant sense, to be characterised as having any special or particular vulnerability.
The applicant’s counsel also submitted that this offending lacked some of the aggravating features that were typically to be found in other cases of armed robbery of this kind. For example, the applicant acted alone, rather than in company with others. His offence was also committed at a place where innocent members of the public were unlikely to be present, though of course that did not diminish the gravity of the offending as regards the two security guards whom the applicant had threatened to shoot.
Finally, in the course of his oral submissions, counsel for the applicant posed what might be described as the usual rhetorical question: if 14 years was an appropriate sentence for an armed robbery of this nature, in circumstances where there had been a plea of guilty, there was some evidence of remorse, and there were other mitigating factors, what sentence could the applicant conceivably have received had he not been able to call these factors in aid?
Counsel for the respondent submitted that his Honour’s sentence on the charge of armed robbery, though certainly stern, was nonetheless within range. He pointed, in particular, to the applicant’s extraordinarily extensive criminal history, including his various convictions for armed robbery upon banks, the considerable amount of pre-planning and preparation that went into this offending, and the fact that the sentence imposed was well below the 25-year maximum for armed robbery. He submitted that the answer to the applicant’s counsel’s rhetorical question had been provided, in part, by the s 6AAA declaration whereby the sentencing judge had said that but for the plea of guilty, the applicant would have received a total effective sentence of 22 years. By implication, that meant that he would have received a sentence of something like 18 years on the charge of armed robbery.
Counsel for the respondent also relied upon what the High Court had said in Hilli v The Queen[18] regarding the limited utility of sentencing statistics.
[18](2010) 242 CLR 520.
In my opinion, the sentence imposed on charge 1, though certainly at the very top of the range for that offence, given the plea of guilty and other mitigating factors, could not be said to be manifestly excessive It was not ‘wholly’ outside the range of sentences reasonably available to the sentencing judge.
The applicant has shown himself, over his entire adult life, to be a violent criminal, willing to commit even the most serious of offences in order to achieve his aims. It is hard to imagine a worse criminal record, from the point of view of sentencing an offender for an armed robbery of this type, than that which the applicant has accumulated.
My own answer to the rhetorical question posed by the applicant’s counsel as to what sentence could have been imposed had he not pleaded guilty, and been able to call in aid some mitigating circumstances, is that a sentence considerably greater than 14 years might well have been warranted. In such a case, this particular armed robbery could easily have been characterised as falling within the worst category of its type. That might have justified a sentence closer to 18 years than the 14 years that the applicant actually received.
Even if I am wrong about the gravity of this offending, and what sentence that should have resulted in, I would still refuse leave. I would do so on the basis of s 280 of the Criminal Procedure Act 2009, which relevantly provides as follows:
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
The powers conferred upon the Court of Appeal under s 280(1) to refuse an application for leave to appeal under s 278 may be exercised by a single Judge of Appeal.[19]
[19]See the note at the end of s 280, as well as s 315(1)(a), which makes it plain that the Court of Appeal, constituted by a single Judge of Appeal, may exercise the power to give leave to appeal.
I consider that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the 14 years and 2 months presently imposed on charge 1.
Alternatively, I consider that there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence of 18 years and 2 months’ imprisonment (with a non-parole period of 14 years and 2 months) presently imposed, even if it came to the conclusion that the sentence on charge 1 was excessive.
Thus, even if I am wrong, and it can be said that the sentence imposed on charge 1 was manifestly excessive, I consider that the orders for cumulation that were made in respect of the other offences to which the applicant pleaded guilty were so generous that nothing less than a total effective sentence of something of the order of 18 years could reasonably be regarded as adequate.
This was a case that cried out for a particularly heavy sentence. Nothing less than a sentence of this order could possibly have met the requirements of general and specific deterrence, as well as public denunciation, adequate punishment, and protection of the community.
The degree of cumulation associated with the lengthy siege at the applicant’s home in Keilor East was particularly moderate. The sentencing judge could easily have tailored his total effective sentence differently by imposing a somewhat lower figure for the armed robbery, but cumulating a greater amount for the subsequent offending. That would have resulted in a total effective sentence of about the same length as that which was fixed, thought the result would have been structured differently.
For these reasons I would refuse leave to appeal on ground 1.
Ground 2 — total effective sentence and non-parole period inconsistent with totality principle
I have already indicated that I think that the degree of cumulation ordered in this case was modest. The sentencing judge’s careful assessment of the gravity of the applicant’s offending, and of his prospects of rehabilitation, cannot be impugned.
His Honour, in sentencing the applicant, had to tailor his sentence to meet the requirements of specific and general deterrence, as well as ensure that the applicant was adequately punished.
At the same time, his Honour was at pains to avoid imposing a ‘crushing’ sentence. The balance that he struck seems to me to have been about right. In those circumstances, I can discern no error in the sentencing remarks, and I see no reasonable prospect of ground 2 succeeding. Accordingly, I would also refuse leave to appeal on that ground.
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