Comer v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0138

JASON WAYNE COMER	Applicant
v
THE KING	Respondent

---

JUDGES:	ORR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 8
JUDGMENT APPEALED FROM:	[2024] VCC 1006 (Judge Tinney)

---

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

---

CRIMINAL LAW – Application for leave to appeal – Sentence – Armed robbery – Applicant threatened customer service officers at bank with sawn-off rifle – Applicant had committed 20 armed robberies in the past – Applicant showed no remorse – Applicant sentenced to 13 years’ imprisonment – Whether sentence manifestly excessive in light of current sentencing practices and more lenient sentences imposed on applicant in the past – Sentence not manifestly excessive – Leave to appeal refused.

Crimes Act 1958 s 75A.

DPP v Currie [2021] VSCA 272; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Gardner & Coates [2004] VSCA 119; DPP v Lanciana [2021] VCC 1252; DPP v Stevens [2013] VSCA 187; Hudson v The Queen (2010) 30 VR 610; Lord v The Queen [2018] VSCA 52; Mansfield v The Queen [2011] VSCA 290; Surtees v The King [2023] VSCA 42.

---

Counsel for written submissions
Applicant:		Mr NA Hutton SC
Respondent:		Mr J Kaye
Solicitors
Applicant:	Adrian Paull Criminal Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

ORR JA:

The applicant seeks leave to appeal his sentence for a single count of armed robbery,[1] committed at the Bendigo Bank branch in Geelong West on 30 April 2021.
[1]Contrary to s 75A of the Crimes Act 1958.
On 3 July 2024, following a trial by jury in the County Court at Geelong, the applicant was sentenced to 13 years’ imprisonment, with a non-parole period of 10 years.[2] The maximum penalty for armed robbery is 25 years’ imprisonment.
[2]The applicant was also sentenced on this date for three related summary offences, to which he had pleaded guilty. Two were for driving as a learner driver without an experienced driver alongside, contrary to reg 47(2) of the Road Safety (Drivers) Regulations 2019 (as at 26 April 2021), and the third was for travelling on a flight using an air passenger ticket obtained using false identification information, contrary to s 376.4(2) of the Criminal Code (Cth). The sentences for these offences do not form part of this application.
The sole proposed ground of appeal is that the sentence imposed is manifestly excessive, having regard to certain matters. Those matters are: the case of Mansfield v The Queen,[3] in which an armed robber was sentenced to 14 years’ imprisonment, can be distinguished from the applicant’s case; current sentencing practices demonstrate that the applicant’s sentence is an outlier; although the applicant had multiple prior convictions for armed robbery, including in similar circumstances, he had never received a sentence for armed robbery greater than 6 years; the sentence is not proportionate; and the sentence is manifestly too long.
[3][2011] VSCA 290 (‘Mansfield’).
For the reasons that follow, I would refuse leave to appeal.

Circumstances of offending

At 3:29 pm on 30 April 2021, the applicant entered the Bendigo Bank branch in Geelong West armed with a sawn-off rifle, concealed inside a plastic shopping bag. The applicant was 47 years old at the time. He was wearing black sunglasses, a surgical mask and an orange fluorescent shirt with a dark collar.
Antoinette Ramia was being served by Lisa Jess, a Bendigo Bank customer service officer. Ms Jess had just handed Ms Ramia three bags containing $2,500 in $2 and 50 cent coins. Dylan Walsh, another customer service officer, had offered to assist Ms Ramia to carry the bags out to her car.
The applicant walked toward the customer service desk, removed the sawn-off rifle from the shopping bag, and pointed it in the direction of Ms Jess. He yelled ‘Give me your fuckin’ money’, followed by ‘C’mon, hurry up’.
The applicant then turned to Mr Walsh, who was by this time holding the three money bags containing Ms Ramia’s coins. He raised the sawn-off rifle towards Mr Walsh and yelled ‘Hurry up’ to him.
The applicant then grabbed the money bags from Mr Walsh, turned and left the branch. The robbery was captured by CCTV cameras within the bank.
CCTV cameras outside the bank recorded the applicant walking from the bank to a black Holden Commodore utility, which he had purchased some months earlier and used to drive from the scene.
That night, the applicant drove to New South Wales in his partner’s vehicle. He returned to Victoria in the following days. Approximately ten days later, he drove to Queensland in the black Holden Commodore utility, where he sold the vehicle to a friend. He purchased a ticket for a flight from Brisbane to Avalon Airport, using the friend’s identity.
The applicant was arrested upon arrival at Avalon Airport. He was carrying two mobile phones and $1,892.50 in cash. One of the phones had been used to conduct multiple Google searches using the keywords ‘Armed Robbery in Geelong’ and to view an item about the robbery on the 3AW website.
Search warrants were subsequently executed at the applicant’s home. The items seized included two further mobile phones and an orange fluorescent shirt with a dark collar. Call charge records for an additional mobile phone service registered in the applicant’s name showed it had activated a cell tower located near the bank at 2:59 pm on the day of the robbery.
When interviewed by police, the applicant denied the offending, or that he was in the vicinity of the bank at the time of the offending. The weapon used in the offending was not located.

Sentencing reasons

The sentencing judge commenced his reasons by observing that the only issue at trial was the identity of the armed robber. There were ‘very many pieces of evidence which implicated [the applicant] in the crime’, resulting in an overwhelming case against him.[4]
[4]DPP v Comer [2024] VCC 1006, [13] (‘Reasons’).
The judge then turned to the impact of the crime. He described the applicant’s conduct as ‘designed to strike fear into the tellers and so to facilitate the completed offence’. The applicant’s use of the gun ‘was to bring about compliance with your demands and to drive home the seriousness of their predicament. It worked. It was terrifying’.[5]
[5]Reasons, [17].
The judge had regard to the contents of three victim impact statements: from Ms Jess; from Chris Barker, the bank manager; and from Jeanine Richards, another customer service officer.
The judge recounted Ms Jess’s description of looking down the barrel of the gun pointed at her head and hearing the applicant demand the money. She said she had frozen, and that all her training ‘went out the window’. She escaped to the back room of the bank, where she locked herself in. She thought she was going to die. When she was ultimately in a position to let another staff member into the room, she collapsed to the floor, crying and struggling to talk or breathe. The subsequent emotional impacts upon her were profound. Her life had changed forever. She had developed depression, post-traumatic stress disorder, anxiety, panic attacks and agoraphobia. Her symptoms were described by her doctor as ‘relentless over the last three years’.[6]
[6]Reasons, [11], [24].
Ms Richards spoke of constantly looking over her shoulder in public. She could no longer work at the bank and took on a lower paying role. She subsequently became unemployed. Her social circle had lessened and she felt angry about what she had lost by way of personal confidence.[7]
[7]Reasons, [22].
Mr Barker saw anxiety and distress in the immediate aftermath of the offending. The bank staff, who included mothers of young children, a new father and a trainee who had just started, were in shock. The branch could not open the following week. One staff member was away for several weeks and another was never able to return. Mr Barker himself left the bank, in part because he no longer wanted to be in an area open to public access. He ruminates about what might have happened, particularly if the bags of coins had not happened to be where they were, because the staff otherwise would not have had access to cash.[8]
[8]Reasons, [23].
The judge set out a summary of the applicant’s background, much of which was drawn from an account that the applicant had given to Mr Jeffrey Cummins, psychologist, which was recorded in a report dated 5 June 2024. The applicant was 50 years old and had been raised in Sydney. He had one brother, as well as a number of half-siblings. His parents had separated when he was around five or six years old, while his father was serving a term of imprisonment for armed robbery. The applicant’s mother had re-partnered while the applicant was young. She and her new partner abused alcohol. The applicant had ‘suffered some violence’ at the hands of his stepfather. The family had moved around a lot and the applicant left school before his 15^th birthday. He had a patchy work history. He claimed to have been sexually abused while in youth detention. Drugs and alcohol had been a problem for him for many years. He had no history of mental health issues. He had three grown up children, one from an earlier relationship and two with his current partner, with whom he also had a five year old daughter. His partner supported him. At the time of the offending, the applicant was working as a self-employed residential fencer.[9]
[9]Reasons, [45]–[50].
The judge referred to the applicant’s criminal history, which was ‘sizable and relevant’. There were a range of offences over the years, including 20 armed robberies, as well as instances of driving offences, dishonesty offences, drug offences, assaults, escape and bail offences. The applicant had been sentenced for eight armed robberies (and one attempted armed robbery) in Victoria and 12 armed robberies (and two attempted armed robberies) in New South Wales. He had pleaded guilty to each of the armed robberies committed in Victoria, having made full admissions to the police. In many of those armed robberies, he had made no real attempt to disguise himself and he had told those present that no one would get hurt. The targets of the robberies were retail outlets, post offices and a bank. The armed robbery of the bank occurred in Warrnambool in May 2005, when the applicant left a day at the beach with his family to get them lunch, and committed a serious armed robbery of the Bendigo Bank while away. The judge noted that the applicant had been imprisoned on a number of occasions and had continued to offend following his release. He had last been released from custody approximately 16 months prior to this offending.[10]
[10]Reasons, [52]–[53].
The judge then turned to Mr Cummins’s opinions about the applicant. Mr Cummins said the applicant had an anti-social personality disorder and an alcohol use disorder. He said that the applicant displayed no embarrassment or shame about his prior criminal history. He displayed a very casual manner and suggested to Mr Cummins that he was used to prison and would readily adjust to whatever sentence was imposed. Mr Cummins assessed the applicant’s risk of reoffending as moderate to high and described his long-term rehabilitative prospects as ‘very guarded’. Of Mr Cummins’s report, the judge said ‘I am not sure I have seen one of his reports with such a pessimistic view’.[11]
[11]Reasons, [59].
The judge observed that ‘in truth, there was little in mitigation’. The applicant’s counsel had conceded the objective seriousness of the offence, that the applicant had demonstrated no remorse, that none of the principles in R vVerdins[12] were enlivened, that the applicant’s prospects of rehabilitation were poor, and the importance of punishment, deterrence and community protection. The focus of the applicant’s submissions on the plea was on whether the court could be satisfied to the requisite degree that the firearm used in the offending was a real firearm and on the applicant’s disadvantaged early background, including his claim to have Aboriginal heritage.[13]
[12](2007) 16 VR 269; [2007] VSCA 10.
[13]Reasons, [33]–[37], [58], [71], [73]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
As to the applicant’s claim that the firearm was not a real firearm, the judge observed that although imitation firearms were ‘common enough’ and had been used by the applicant in the past, a sawn down imitation was ‘a most unlikely imitation item’. Ultimately, the judge did not find on balance that the weapon was an imitation, but nor did he find beyond reasonable doubt that the weapon was real, let alone loaded. These matters were, the judge said, not matters in mitigation, but a finding as to the absence of a feature of aggravation.[14]
[14]Reasons, [83]–[84].
As to the applicant’s disadvantaged early background and claim to have Aboriginal heritage, the judge observed that although the applicant had told Mr Cummins of his Aboriginal heritage, he had denied being of Aboriginal or Torres Strait Islander heritage in his police interview. In these circumstances, the judge had ‘reservations’ about the applicant’s account of his background. However, he was prepared to find that the applicant’s background was ‘to a degree, unenviable’ and that there ‘probably was a level of dysfunction and instability’ in the applicant’s early life, including likely exposure to some violence. This finding was not dependent on any positive finding that he was Aboriginal or identified as being Aboriginal. Although the judge was prepared to give the applicant’s background ‘full weight in the way in which that term is employed in the case law’, he said that there were limits to the application of the Bugmy principles in circumstances where ‘[c]ommunity protection, punishment and general and specific deterrence necessarily must have a large role to play’.[15]
[15]Reasons, [43], [65], [67]–[70].
The judge described the applicant’s prospects of rehabilitation as poor or bleak. He described him as a ‘career armed robber’, with his other career ‘over the journey’ being that of ‘career prisoner’.[16]
[16]Reasons, [72]–[73].
The judge took into account current sentencing practices. He recorded that he had looked at the Sentencing Advisory Council online resource relating to armed robbery, as well as some examples of other sentences collected in the Judicial College of Victoria online sentencing manual case collection. The judge observed that statistical material is ‘inherently limited’ and that every case, crime and offender is different. He noted that many of the cases represented in the statistics would have involved guilty pleas and a range of mitigatory features that were absent in this case.[17]
[17]Reasons, [74]–[77].
The judge said he had had occasion to look at the case of Mansfield, a sentencing decision made in December 2009, which was the subject of an appeal in this Court in 2011. Of that case, the judge said the following:
I am not suggesting your armed robbery falls at the same level given the way Mansfield and Sinclair’s armed robbery was researched, planned and carried out in company with a loaded firearm. However, I do note that Mansfield was of a similar age, and he pleaded guilty and was remorseful. He had five prior convictions for armed robbery. The Court of Appeal dismissed his appeal. Past sentencing decisions are not precedents. Rather, it is merely an example of the high sentences that are sometimes required for this offence. The s 6AAA declaration made in that case was one of 18 years.[18]
[18]Reasons, [77].
Later, when dealing with the gravity of the offence, the judge contrasted the level of planning involved in the offending with the ‘intricate and detailed planning we sometimes see, very rarely, in group armed robberies’, and with the level of planning described in Mansfield. He said that armed robbery was an inherently serious crime. The applicant had no cognitive deficits and there was no suggestion of financial need or stress. He did not reassure the victims that no one would be hurt. His moral culpability was high. He was a mature and seasoned offender.[19]
[19]Reasons, [78], [87], [89].
The judge observed that he had to pass a proportionate sentence. Community protection loomed large, and the applicant’s conduct needed to be denounced. Both general and specific deterrence needed to be given real weight.[20]
[20]Reasons, [31], [73], [92], [94]–[101].

Submissions

Mansfield, current sentencing practices

The applicant seeks to distinguish the case of Mansfield, to which the judge referred. Mansfield was sentenced to 14 years’ imprisonment for armed robbery, with a non-parole period of 11 years. The applicant submits that although the offender in that case was of a similar age and also had prior convictions for armed robbery, there were significant aggravating features that are not present here: Mansfield had committed the index crime in company with a second person as a getaway driver; used a loaded sawn-off shotgun that he had test-fired in the bush and observed to be loud; admitted that he had no qualms about firing inside the bank if need be; and obtained over $14,000 in the armed robbery.
The applicant submits that when his sentence is compared with those imposed for other armed robberies that are either more serious or of a similar level of seriousness, it is clear that his is a ‘very long’ sentence.
He points to the sentence of 12 years’ imprisonment imposed in DPP v Lanciana,[21] on an offender who was part of a team of highly organised armed robbers that hijacked an armoured vehicle and stole over $2 million. He describes the level of planning in that case as ‘extraordinary’, involving fake roadworks to divert the armoured vehicle. Lanciana had relevant prior convictions (albeit fewer than the applicant) and pleaded not guilty.
[21][2021] VCC 1252 (‘Lanciana’). An appeal against conviction was unsuccessful: Lanciana v The King [2023] VSCA 78.
The applicant also points to the sentences imposed in DPP v Gardner & Coates[22] on two offenders who committed an armed robbery on Armaguard officers who were restocking an automatic teller machine. There was significant planning, involving several stolen cars and staking out the location. About $150,000 was stolen. The sentencing judge described the offending as ‘towards the more serious end of the scale’ in terms of objective gravity. The two offenders were sentenced to 8 years’ and 7 years’ imprisonment (respectively) for the armed robbery, although following a Director’s appeal the sentences were each increased to 10 years’ imprisonment.
[22][2004] VSCA 119 (‘Gardner & Coates’).
Further, the applicant relies on three Sentencing Snapshots issued by the Sentencing Advisory Council, which describe sentencing outcomes for the offence of armed robbery in the County and Supreme Courts of Victoria during various periods.[23] These documents are said to demonstrate that during the period from 2016 to 2021, only one offender was sentenced to a term of imprisonment of greater than 9 years (being a term of less than 11 years), and that in previous periods extending back to 2012, no offender had been sentenced to a term of imprisonment of more than 9 years.
[23]Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2018–19 to 2022–23 (Snapshot No 261, December 2021); Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2014–15 to 2018–19 (Snapshot No 236, April 2020); Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2012–13 to 2016–17 (Snapshot No 212, June 2018).

Whilst accepting that raw sentencing statistics are a ‘blunt instrument’,[24] the applicant submits that the statistics demonstrate that a sentence of 13 years’ imprisonment ‘is an outlier by a long way’.
[24]Citing DPP v Maynard [2009] VSCA 129, [35] (Ashley, Redlich and Kellam JJA).
In response, the respondent submits that the judge noted the limitations of case comparisons. He engaged in a nuanced analysis of Mansfield and gave appropriate weight to the fact that the offending in that case featured significant aggravating features that were not present in the applicant’s case. The applicant’s submission that he received a disproportionately long sentence compared to the offender in that case is misconceived, given the range of mitigating factors available in that case.
As to Lanciana and Gardner & Coates, the respondent submits that the applicant has again focused unduly on the gravity of the offending, while disregarding other pertinent sentencing factors. When those factors are considered in totality, neither case is truly comparable. Further, both cases pre-date the decision in Lord v The Queen, in which this Court said the following about the offence of armed robbery:
Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed. As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of first importance to public confidence in the criminal justice system.[25]
[25][2018] VSCA 52, [11] (Maxwell P and Beach JA) (‘Lord’).
As to the applicant’s reliance on sentencing statistics, the respondent refers to the well-known shortcomings of reliance on such statistics, and points to two sentences for armed robbery not captured by the statistics. In Binse v The Queen, this Court upheld a sentence of 14 years and 2 months’ imprisonment.[26] In Rich v The Queen, a sentence of 20 years’ imprisonment was upheld.[27] While neither case is said to be comparable to the applicant’s, the two cases are said to demonstrate that the upper limits of sentencing for armed robbery are higher than suggested by the applicant.

Applicant’s prior convictions

[26][2016] VSCA 145.

[27](2014) 43 VR 558; [2014] VSCA 126.

The applicant submits that his sentence is manifestly excessive because he has never before received a sentence for armed robbery of more than 6 years’ imprisonment, despite having committed similar armed robberies in the past.
In 2006, the applicant received a total effective sentence of 7 years and 4 months’ imprisonment for the eight armed robberies and one attempted robbery committed in Victoria. The individual sentence imposed for one of the armed robberies was 4 years’ imprisonment and for each of the remaining counts was 3 years’ imprisonment.
In 2012, the applicant received a total effective sentence of approximately 8 years’ imprisonment for 12 armed robberies, two attempted armed robberies and one robbery (all committed in New South Wales). The individual sentences for the armed robberies ranged from 2 years and 6 months’ to 6 years’ imprisonment.
The respondent submits that prior sentences cannot constrain subsequent sentences for identical or similar offences. The respondent refers to DPP v Stevens, in which this Court held that a sentence imposed on a ‘serial’ armed robber that exceeded the sentences previously imposed upon him for any individual armed robbery offence was manifestly inadequate.[28] Further, the respondent notes that the applicant’s counsel acknowledged during the plea hearing that it was necessary to impose a comparably longer sentence than those previously imposed on the applicant.

Other matters

[28][2013] VSCA 187, [29]–[31] (Osborn JA, Coghlan JA agreeing at [37]) (‘Stevens’).

The final matters on which the applicant relies are the statement of this Court in Azzopardi v The Queen that ‘[t]he severity of the sentence increases exponentially as it increases in length’[29] and a characterisation of the sentence imposed as being unreasonable, plainly unjust, and manifestly too long.
[29](2011) 35 VR 43, 61 [62] (Redlich JA, Coghlan AJA agreeing at 70 [92], Macaulay AJA agreeing at 70 [93]); [2011] VSCA 372 (‘Azzopardi’).
The respondent notes that Azzopardi concerned the principle of totality, a principle which does not apply in the circumstances of this case, given that the judge was sentencing for a single offence. Nonetheless, the respondent treats the applicant’s submission as raising a proportionality argument. The respondent submits that the applicant’s sentence was proportionate to his offending, given the importance of specific deterrence, denunciation and community protection. Proportionality is said to have been ‘clearly front of mind’ for the sentencing judge, who referred in the plea hearing to the need to not ‘head in a disproportionate direction’.
As to the applicant’s characterisation of his sentence as unreasonable, unjust and manifestly too long, the respondent points to the serious nature of the offending, the maximum penalty, the absence of mitigating factors and the need for community protection. In light of these matters, the sentence is said to be within the available range of sentences, and the high threshold for establishing manifest excess is said not to have been met.

Consideration

I consider that the sentence imposed on the applicant is not manifestly excessive when regard is had to the matters on which the applicant relies, either in isolation or in combination.
To succeed on a ground of manifest excess, the applicant must show that the sentence imposed by the judge in the exercise of his discretion was ‘wholly outside the range of sentencing options available’.[30] As this Court has often observed, this is a ‘stringent requirement’, which is difficult to satisfy.[31] The applicant must show that something has gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[32] An appellate court must be ‘driven to conclude that there must have been some misapplication of principle’.[33]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’). See also Lowndes v The Queen (1999) 195 CLR 665, 671–2 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ); [1999] HCA 29.
[31]Clarkson (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[32]Young v The Queen [2016] VSCA 149, [128] (Ashley, Whelan and Kaye JJA).
[33]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39.
I will deal with each of the matters said to demonstrate manifest excess in turn, commencing with the judge’s treatment of Mansfield.
The judge’s reference to Mansfield was uncontroversial. The judge highlighted some of the ways in which the circumstances of that case differed from the applicant’s case (there were differing levels of research and planning, Mansfield carried out his armed robbery in company and with a loaded firearm, Mansfield pleaded guilty and was remorseful) and some of the ways in which the circumstances were similar (both offenders were of a similar age and had prior convictions for armed robbery). The judge went on to note that past sentencing decisions are not precedents and described Mansfield as ‘merely an example of the high sentences that are sometimes required for this offence’.
I accept the applicant’s submission that significant aggravating features of the offending in Mansfield are not present in his case. These included that Mansfield had test-fired his firearm prior to the offending, admitted that he would have fired the firearm inside the bank if need be and had obtained over $14,000 in the armed robbery. But it is also the case that a number of the mitigating features in Mansfield were not present in this case, including Mansfield’s plea of guilty. Upon his arrest, Mansfield was immediately cooperative, confessing to planning and committing the armed robbery, and providing the investigating police with information concerning his activities of which they were unaware. He was an Aboriginal man with a low IQ who suffered from depression in the lead-up the offending. He had become a ward of the state when his mother was unable to care for him as a child, leading to many years in an institutional setting. Although he had multiple prior convictions for armed robbery, he had stayed out of trouble for eight years immediately prior to the offending.[34]
[34]Mansfield [2011] VSCA 290, [14], [18]–[19], [22] (Bongiorno JA, Whelan AJA agreeing at [29]).
The applicant’s case is also not assisted by a comparison with the sentences imposed in Lanciana and Gardner & Coates. To the extent that the applicant seeks to derive from those cases a current sentencing practice with which his sentence is out of step, the submission is unpersuasive. Again, it may be accepted that the armed robberies in each of these cases had a number of features that were objectively more serious than the present case. However, in each case, the offenders were able to call in aid a series of matters in mitigation. Each had superior prospects of rehabilitation to the applicant and none had a criminal history as extensive as that of the applicant.
Lanciana received a sentence of 12 years’ imprisonment in respect of an armed robbery committed in 1994, when the maximum penalty for the offence was 20 years’ imprisonment. Lanciana was part of a group of offenders who stole in excess of $2 million from an Armaguard van. He was sentenced some 27 years after the offending, following a trial. Although the armed robbery was described by the sentencing judge as sophisticated and audacious, involving ‘meticulous planning, preparation and military style precision’, there was uncertainty as to the precise role Lanciana had played. At the time of the offending, Lanciana was suffering from post-traumatic stress disorder and a recurrent major depressive order. Significantly, at the time of sentencing, Lanciana was of ‘advancing age’, had limited prior convictions and had engaged in ‘negligible’ subsequent offending. The judge found that he had reasonable prospects of rehabilitation.[35]
[35]Lanciana [2021] VCC 1252, [3], [60], [66], [87], [93], [96], [105], [111]–[112] (Judge O’Connell).
Gardner and Coates were sentenced in 2003 to 10 years’ imprisonment for an armed robbery committed on two Armaguard officers while they were restocking an automatic teller machine with cash. Each had prior criminal convictions but neither was a ‘serial criminal’ — the armed robbery was a marked escalation in their criminal activity. Gardner discharged his weapon in a gunfight with the Armaguard officers, Coates did not. The two fled with a case containing $150,000. Gardner pleaded guilty, had an early dysfunctional family life and had good prospects of rehabilitation. Coates had ‘fair’ prospects of rehabilitation, played a significantly lesser role in the robbery than Gardner, and had been unable to work on a full time basis since being injured in a car accident in the years prior to the offending.[36]
[36]Gardner & Coates [2004] VSCA 119, [2]–[3], [6], [13]–[14] (Winneke P, Callaway JA agreeing at [30], Buchanan JA agreeing at [31]).
In any event, current sentencing practices are only one of a number of considerations which must be taken into account in the exercise of the sentencing discretion. They are not a controlling factor. The question is not whether the applicant’s sentence is more or less severe than another sentence within range, but whether it falls within the range of sentences that are appropriate to the objective gravity of the offence and to the matters personal to the offender.[37]
[37]Hudson v The Queen (2010) 30 VR 610, 617–8 [28]–[35] (Ashley, Redlich and Harper JJA); [2010] VSCA 332. See also DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 434 [9] (Kiefel CJ, Bell and Keane JJ); [2017] HCA 41; Surtees v The King [2023] VSCA 42, [14]–[15] (Kyrou and Kaye JJA).
The sentencing statistics on which the applicant relies do not demonstrate that his sentence is manifestly excessive. Global statistics operate only as the most general kind of guide, and considerable care must be taken in relying on statistics that do not differentiate between specific features of either offending or offenders, such as those to which the applicant’s submissions are directed.[38] In any event, I observe that a further Sentencing Snapshot for the offence of armed robbery, published in October 2024, records that during the period from 2018–19 to 2022–23, three offenders (including Mr Lanciana) were sentenced to a term of imprisonment of between 9 and 13 years.[39]
[38]DPP v Currie [2021] VSCA 272, [130] (Beach, McLeish and Walker JJA).
[39]Sentencing Advisory Council, Sentencing Trends for Armed Robbery in the Higher Courts of Victoria 2018–19 to 2022–23 (Snapshot No 285, October 2024).
I reject the applicant’s attempt to demonstrate manifest excess by reference to the sentences he has received for previous armed robberies. The applicant’s submission is that because he has previously been convicted of committing 20 other armed robberies, and he has not been sentenced to a term of imprisonment of more than 6 years for any individual armed robbery, a sentence of 13 years’ imprisonment for this armed robbery was outside the range.
This submission overlooks the significance of the fact that the applicant had committed 20 other armed robberies, as well as the applicant’s conduct after serving the lesser terms of imprisonment he received for each of those armed robberies. Those lesser terms of imprisonment did not deter the applicant from continuing to commit armed robberies. Only 16 months passed after the applicant was most recently released from custody before he committed the armed robbery that is the subject of this application. As the applicant acknowledged to Mr Cummins, by the time of this offending, he had served nearly eight and a half years in prison for committing armed robberies in Victoria, and he had lost count of how many years he had served in custody in both New South Wales and Victoria.
In these circumstances, and in light of the limited matters available to the applicant in mitigation, a stern sentence was necessary. Such a sentence was necessary to give effect to the principles of specific and general deterrence, to protect the community from the applicant, to denounce the applicant’s conduct and to punish him for that conduct. While the amount of money the applicant obtained as a result of this particular armed robbery was not large, the same cannot be said of the effects of his actions on those who happened to be in the bank that day. The applicant’s conduct has had profound consequences for a number of those people, including Ms Jess, who describes that day as a horrible nightmare, and the following years as an extension of that nightmare.
As this Court has made clear, armed robbery is a very serious offence. It is fundamentally destructive of both the security and the confidence in the law which members of the public, including those who work within and attend banks, are entitled to enjoy.[40] The very high maximum penalty demonstrates how seriously the offence is to be viewed, in light of both the harm it causes to those who are directly affected by armed robberies and the great disquiet such events cause in the wider community.[41]
[40]Stevens [2013] VSCA 187, [31] (Osborn JA, Coghlan JA agreeing at [37]).
[41]Lord [2018] VSCA 52, [11] (Maxwell P, Beach JA).
Finally, I am not persuaded that the sentence imposed on the applicant was disproportionate to his offending or is otherwise unreasonable or unjust. The applicant is a serial armed robber who has shown blatant disregard for the law over many decades. He has been assessed by Mr Cummins as presenting a moderate to high risk of committing further violent offences. He has demonstrated no remorse for his actions and presented no basis for leniency in the exercise of the sentencing discretion.

Conclusion

The proposed ground of appeal is without merit. I would refuse leave to appeal.
---

[2025] VSCA 8

14 February 2025