Damon Donnelly v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0004

DAMON DONNELLY	Applicant
v
THE KING	Respondent

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2023
DATE OF JUDGMENT:	19 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 120
JUDGMENT APPEALED FROM:	[2022] VCC 2215 (Judge Riddell)

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CRIMINAL LAW – Appeal – Sentence – One charge of obtaining property by deception – Sentenced to 3 years – Whether judge took into account irrelevant consideration – Whether judge failed to properly take into account availability of a suspended sentence – Whether judge failed to place appropriate weight on delay and prospects of rehabilitation – Leave to appeal refused.

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Counsel
Applicants:		Mr DN McGlone
Respondent:		Ms J Warren
Solicitors
Applicants:	McNally & Gleeson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA:

Introduction and summary

On 15 August 2022, the applicant was found guilty by a County Court jury of one count of obtaining property by deception.[1] The offending took place in 2012 and involved the applicant falsely representing that a vehicle was a rare Holden prototype, and selling it to the victim, Trevor Nelson, for $246,000. In fact, the vehicle was a fake (‘Fake Vehicle’) and was worth approximately $8,000 in 2012.
[1]Contrary to s 81 of the Crimes Act 1958. The maximum penalty is 10 years’ imprisonment.
On 13 December 2022, the applicant was sentenced by a County Court judge to 3 years’ imprisonment with a non-parole period of 18 months.[2] A compensation order was also made requiring him to pay $246,000 to the trustee for the Nelson Family Trust.
[2]DPP v Donnelly [2022] VCC 2215 (‘Sentencing remarks’).
The applicant was acquitted by judicial direction of one charge of making a false document to prejudice another,[3] and one charge of using a false document to prejudice another.[4]
[3]Contrary to s 83A(1) of the Crimes Act.
[4]Contrary to s 83A(2) of the Crimes Act.
The applicant now seeks leave to appeal on the following grounds:[5]
[5]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
1.The learned judge erred in imposing sentence.
Particulars
(1)The learned judge erred in sentencing by taking into account an irrelevant consideration, namely, that an intensive corrections order was an available sentencing disposition.
(2)The learned judge erred in sentencing by omitting to properly take into [ac]count the availability of a suspended sentence.
2.The learned judge erred in sentencing by failing to place appropriate weight as to delay and the applicant’s demonstrated prospects for rehabilitation.
For the reasons that follow, the application for leave to appeal will be refused.

Circumstances of the offending

In 1946, General Motors Holden (‘GMH’) sent three Holden prototype vehicles from the United States to Australia. These vehicles became the foundation for the production of FX Holden vehicles in Australia. The three cars were registered JP 480 (‘Holden Prototype 1’), JP 481 (‘Holden Prototype 2’) and JP 482 (‘Holden Prototype 3’). These vehicles are of significant value to anybody who is interested in the history and development of Holden cars in Australia.
Holden Prototype 2 arrived in Victoria in February 1947 and was assigned registration number JP 481. It was originally called a Chevrolet but the name was changed to Holden in 1948. Between 1947 and 1969, ownership of the Holden Prototype 2 was transferred between various individuals and companies. In 1951, the original engine was removed and installed in another car. In 1953, the Holden Prototype 2’s registration was changed from JP 481. After 1969, no known records exist to determine where or to whom Holden Prototype 2 was sold. The current whereabouts of Holden Prototype 3 are similarly unknown. Holden Prototype 1 is held by the National Museum of Australia.
In August 2009, the applicant and his stepfather purchased a collection of old Holden parts, tools and paperwork from the son-in-law of a mechanic who had previously worked with Holden dealerships.
On 22 August 2009, the applicant purchased the rights to the number plate ‘JP 481’ and in October 2009, he assigned that number plate to a BMW vehicle that was registered in his mother’s name.
In September 2009, the applicant acquired a rolling chassis of a production model FX Holden sedan, which was effectively an empty shell of a vehicle.
In November 2009, the applicant arranged for insurance in the amount of $100,000 for a vehicle with registration number JP 481 which he stated was the Holden Prototype 2.
Some time between 2009 and 2011, the applicant assembled the Fake Vehicle in a manner that made it look like a Holden prototype. He did so by using the rolling chassis he had obtained in September 2009 and adding or adjusting features or hallmarks in order to resemble a Holden prototype. He also removed marks or features of later production model FX vehicles, which would show that the Fake Vehicle was not an original.
Evidence at the trial was given that the following alterations were made:
(a)Numbers had been added on the engine number pad to appear as if the Fake Vehicle contained the original engine of the Holden Prototype 2. In fact, the engine installed in the Fake Vehicle was manufactured in 1949 and had originally been installed in a later production Holden sedan.
(b)The shape of the number plates reading JP 481 had been altered to resemble an early style Victorian number plate. The font of the number 1 had been flattened and sprayed to remove the hat on the 1, and make it appear like an earlier font style.
(c)Screw holes which were spaced inconsistently for prototype vehicles had been filled and smoothed over.
(d)Weld markings had been added to the floor panel to make it appear as if it comprised two panels which had been connected together. The reason for this alteration was that, in the Holden Prototype 2, the floor panel comprised two separate parts which were welded together, rather than a single panel as in the Fake Vehicle.
(e)On the engine, an ‘X’ casting was added. An X usually denotes a prototype engine.
In February 2010, the applicant obtained a roadworthy certificate for the Fake Vehicle, which he described as a 1946 Chevrolet Model 320. He then presented the vehicle for registration at VicRoads in Bendigo.
After his stepfather’s death in October 2010, the applicant began selling items which had belonged to his stepfather.
In May 2011, the applicant was interviewed by Barry Park, a motoring journalist for The Age. The applicant told Mr Park that he had purchased the vehicle from a deceased estate in around 2009 and was looking to sell it for $1.2m. These details subsequently appeared in Mr Park’s article, ‘Discovery of Missing Link in Holden History’, in The Age.[6] The article contained details of the history of Holden prototypes.
[6]It is not clear whether the article was published in The Age or The Sunday Age. Nothing turns on this.
Around the time that Mr Park’s article was published, the applicant began advertising the Fake Vehicle for sale. It was then housed at his stepfather’s factory in New Gisborne, and had a sign in front of it identifying it as the Holden Prototype 2. The sign was apparently from the National Holden Motor Museum in Echuca.
The applicant met Mr Nelson in the process of selling items from his stepfather’s deceased estate. Mr Nelson attended the factory in New Gisborne and noticed the Fake Vehicle. Mr Nelson was a car enthusiast and expressed interest in it. The applicant and Mr Nelson developed a friendship, and for a time the applicant was employed by Mr Nelson’s company.
The applicant told Mr Nelson the ‘history’ of the Fake Vehicle and represented that it was a genuine Holden prototype. The applicant said that it was ‘the real deal’. The applicant showed Mr Nelson all of the features which were said to demonstrate that it was genuine. He also provided to Mr Nelson a folder of documents which included Mr Park’s article in The Age and early registration papers which purportedly showed the authenticity of the Fake Vehicle.
In early 2012, Mr Nelson purchased the vehicle through his self-managed superannuation fund. Mr Nelson transferred to the applicant $246,000 over three occasions in February and March 2012.
The applicant was arrested and interviewed by police in March 2017. In his record of interview, he claimed that the vehicle had come to him together with its parts, and that he and his stepfather merely reconstructed it. He said that he always believed that the vehicle was the Holden Prototype 2.

Applicant’s personal circumstances

The applicant was 37 years old at the time of the sale of the Fake Vehicle to Mr Nelson and 48 at the time of sentence.
The applicant was born in Fitzroy and grew up in Fawkner. His parents separated when he was around the age of 4, and he has had very little contact with his father over the course of his life. His mother remarried and he moved to Gisborne with her and his stepfather when he was 10. His mother and stepfather have a daughter, the applicant’s younger half-sister.
The applicant’s stepfather was physically, mentally and emotionally abusive. He drank alcohol daily and directed abuse toward the applicant and his mother. The applicant stated that he reconciled with his stepfather in around 2009 and that they became friends, until his stepfather’s death. The applicant also reported having been sexually abused at the age of 8 by a 16 year old cousin.
The applicant completed Year 12 in Gisborne. He reported that he did not always attend school due to the violence at home, and not being able to sleep. He left home in his early 20s.
The applicant worked as a chef before obtaining a position working on the docks, which he held until he sustained an injury to his neck. He has since undertaken labouring work, and experienced short periods of unemployment.
From the age of 20, the applicant drank large amounts of alcohol almost every night of the week. He ceased regularly consuming alcohol about 10 years prior to sentencing. He has experimented with amphetamines and cannabis and used them intermittently for about 10 years.
The applicant married in 2012 and has a nine year old daughter with his wife. In 2022, he and his wife separated and he became the sole carer of their daughter. The separation was acrimonious and the applicant has no ongoing direct contact with his wife.
On 17 October 2008, the applicant pleaded guilty to seven charges of obtaining property by deception. The offences occurred in 2004 and 2005 and related to dealings in vintage cars and car parts with a total value of $130,000. He was sentenced to 2 years’ imprisonment, suspended for 3 years.
On 24 October 2008, the applicant was placed on a 3 month intensive correction order (‘ICO’) for driving offences, including stating a false name or address. He breached the ICO and, on 13 August 2009, a further ICO was imposed.
On 4 November 2008, the applicant pleaded guilty to a charge of obtaining financial advantage by deception, which related to the sale of a car and being unable to provide a roadworthy certificate. He was sentenced to 1 months’ imprisonment, which was suspended and ordered to operate concurrently with the 17 October 2008 suspended sentence. He was also ordered to pay compensation of $9,400.
On 15 September 2009, the applicant was convicted of one charge of recklessly causing injury and two charges of unlawful assault, and was sentenced to an aggregate sentence of 6 months’ imprisonment to be served by way of an ICO.

Relevant statutory provisions

As at the time of the offending in March 2012, suspended sentences were available as a sentencing option. Despite the removal of that sentencing option with effect from 1 September 2013 by s 11 of the Sentencing Amendment (Abolition of Suspended Sentences and Other Matters) Act 2013, a suspended sentence remained available for the applicant by virtue of applicable transitional provisions.[7] In March 2012, s 27 of the Sentencing Act 1991 relevantly provided as follows in relation to suspended sentences:
[7]Sentencing Act 1991, s 149D(5).
27 Suspended sentence of imprisonment
(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.
(1A) In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to—
(a)the need, considering the nature of the offence, its impact on any victim of the offence and any injury, loss or damage resulting directly from the offence, to ensure that the sentence—
(i) adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and
(ii) adequately deters the offender or other persons from committing offences of the same or a similar character; and
(iii)reflects the gravity of the offence; and
(b)any previous suspended sentence of imprisonment imposed on the offender and whether the offender breached the order suspending that sentence; and
(c)without limiting paragraph (b), whether the offence was committed during the operational period of a suspended sentence of imprisonment; and
(d)the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.
…
(3) A court must not impose a suspended sentence of imprisonment unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of this Act
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(5)A wholly suspended sentence of imprisonment must be taken to be a sentence of imprisonment for the purposes of all enactments except any enactment providing for disqualification for, or loss of, office or the forfeiture or suspension of pensions or other benefits.
The Sentencing Amendment (Community Correction Reform Act) 2011 introduced community correction orders (‘CCOs’) as a sentencing option, with effect from 16 January 2012. ICOs, community-based orders and combined custody and treatment orders ceased being available as from that date.[8] In Boulton v The Queen, this Court stated that a CCO has both punitive and rehabilitative features.[9]
[8]Sentencing Amendment (Community Correction Reform Act) 2011 ss 12, 15, 21.
[9](2014) 46 VR 308, 311 [2], 349 [186].

Plea hearing

At the plea hearing, defence counsel tendered two reports prepared by psychologists, namely, a report by Warren Simmons dated 15 September 2022 and a report by Bernard Healey dated 24 October 2022.
Mr Simmons opined that the applicant did not present with any significant mental health problems, other than some anxiety and decreasing mood. Mr Simmons considered that the applicant did not meet the criteria for any substance use disorder or Post-Traumatic Stress Disorder (‘PTSD’).
Mr Healey’s report annexed and updated an earlier report dated 17 July 2008, which was prepared in relation to earlier offending by the applicant. Mr Healey stated that the applicant’s personality testing was indicative of generalised anxiety and PTSD as a result of a legacy of trauma in childhood and adolescence. Mr Healey stated that ‘Personality Trait Patterns were not really indicative of any major concern’.
The applicant tendered many references, including the following:
(a)Personal references from family and friends, including the applicant’s half-sister, which described him as a trustworthy person and a loving and caring father. His half-sister stated that the applicant means the world to his daughter and that it would be devastating and traumatic for his daughter to be separated from him after the abrupt separation from her mother.
(b)A reference from the director of an excavation company for which the applicant had worked. The reference stated that the applicant has been offered a full time job for which he would be paid $1,500 per week.
(c)References from the principal of the school that the applicant’s daughter attended, the local scout leader and parents of friends of the applicant’s daughter, which described the applicant as a loving and caring father.
Defence counsel relied upon, as a matter in mitigation, the delay between the commission of the offence, the time the applicant was interviewed in 2017 and the finalisation of the proceeding. It was said that in the period between offending and sentence, the applicant became a ‘very different man’ and had effectively rehabilitated himself. Counsel submitted that the birth of the applicant’s daughter and his responsibilities as a parent had a positive influence upon his rehabilitation. Counsel noted that the applicant had not offended in the past 10 years.
Counsel submitted that a CCO or a suspended sentence were appropriate sentencing dispositions. Counsel contended that a CCO would facilitate the applicant continuing to be a positive influence for his daughter as well as complying with an undertaking he had given to make restitution. Counsel argued that a CCO ‘would galvanise the efforts [the applicant has] made’.
Defence counsel did not refer to family hardship as a discrete mitigatory factor.
The prosecutor tendered a victim impact statement by Mr Nelson’s widow. She referred to the emotional and financial stress that was caused by the applicant’s offending. She stated that she and Mr Nelson had embarked upon retirement, that the funds paid to the applicant formed part of their superannuation, that Mr Nelson had been diagnosed with cancer and that the applicant’s offending necessitated that she resume work to meet Mr Nelson’s medical needs and support herself.
The prosecutor referred to correspondence from the solicitors who were acting for the applicant’s wife in family law proceedings, which stated that she was prepared to care for their daughter in the event that the applicant was incarcerated.
The prosecutor submitted that a term of immediate imprisonment with a non-parole period was appropriate.

Sentencing remarks

In assessing the objective seriousness of the applicant’s offending, the judge took into account that, although Mr Nelson first approached the applicant, he ‘then entreated him over a long period’ and that, whilst the amount of $246,000 was reasonably substantial, it was much lower than in many other deception cases.[10]
[10]Sentencing remarks, [119]–[120].
The judge found that the applicant’s offending was a moderately serious example of the offence of obtaining property by deception, and that his moral culpability was very high. She stated that the offending had the following features which are often present in deception offences: it involved planning and a calculated course of conduct which is directed at covering up the dishonesty; and it involved the breach of trust of an unsuspecting person, who is taken advantage of and who suffers a significant financial loss. She determined that the applicant sold the Fake Vehicle to an unsuspecting buyer, who trusted him, knowing full well that it was not a genuine prototype. She said that the applicant’s offending was ‘sophisticated, detailed and purposeful’.[11]
[11]Sentencing remarks, [121].
The judge stated that, by running a trial, the applicant was not entitled to the leniency which attaches to a plea of guilty, an acknowledgement of wrongdoing and acceptance of responsibility, or an expression of genuine remorse. The judge said that the applicant continued to obfuscate in his description of what the offending involved, which showed either a lack of insight or ongoing denial of the offending.

The judge found that applicant had ‘somewhat guarded’ prospects of rehabilitation.[12] The judge noted that the applicant had a history of employment and had expressed a willingness to make restitution (although he had not yet repaid any of the money). The judge also noted that the applicant had a prior history of similar dishonesty. However, she took into account that he had not offended for approximately 10 years.
[12]Sentencing remarks, [104], [110].
The judge accepted that the applicant’s early years were marked by emotional and, at times, physical trauma, and that he was a man ‘marked by anxiety as a result’.[13] The judge also took into account the applicant’s history of anxiety and depression.
[13]Sentencing remarks, [79].
The judge referred to the victim impact statement of Mr Nelson’s widow and stated that he had taken into account the impact of the applicant’s offending upon her and Mr Nelson.
The judge stated that family hardship is a matter which is relevant to sentencing, but could only be taken into account as a discrete mitigating factor when there are exceptional circumstances, which were absent in the present case. However, she did take into account, as a matter in mitigation, that the applicant was the sole carer for his young daughter. She said that ‘there are other adults in the form of mother, grandmother and aunt who are available to [the applicant’s] daughter’.[14]
[14]Sentencing remarks, [98].
The judge stated the following regarding delay as a mitigating factor:
You were interviewed in 2017. Since that time there has been significant delay in finalising the matter. There were ongoing issues with obtaining of or disclosure of material. There were numerous mentions and Prosecution delays in compliance with a number of Court orders. At one stage the trial prosecutor was unavailable due to a circuit trial over-running. Given the size and complexity of the brief that necessitated an adjournment.
There were also delays brought about by the COVID-19 pandemic. Given the nature of your case and the fact you were on bail yours was not a high priority trial. Then, when it was listed for trial in early 2022 you contracted COVID-19 and the trial had to be aborted.
I take into account the delays since the time of your record of interview, and the fact that this matter has been hanging over you for a period of over five years. In that time you have not reoffended but have continued on your path to rehabilitation from your earlier lifestyle.[15]
[15]Sentencing remarks, [112]–[114].
The judge determined that the principles of general deterrence, denunciation and community protection loomed large in sentencing the applicant. She also held that specific deterrence played a role given the applicant’s prior convictions for dishonesty offences.
The judge referred to the prosecutor’s submission that the appropriate sentencing disposition was an immediate term of imprisonment with a non-parole period, and to defence counsel’s submission that a term of immediate imprisonment was not the only available sentencing option and that a CCO would be appropriate.
In paras 104, 116 and 128 of her sentencing remarks, the judge said the following about ICOs, CCOs, suspended sentences and the appropriate sentencing disposition in the present case:
You are a person with a prior history of similar dishonesty. You were dealt with in this court not long before committing the offence before me. The warning of a suspended term of imprisonment along with your involvement on an ICO and CCO should have deterred you from further offending. And yet, your offending in fact escalated in terms of the scale and quantum of dishonesty here.
…
The offending in question occurred prior to 1 September 2013, and the sentencing option therefore of a wholly or partially suspended sentence of up to three years is available to me.
…
You have had the opportunity of suspended sentences, an [ICO] and [a CCO]. Having undertaken the sentencing synthesis, I am not satisfied that it would be appropriate to impose any of those orders in the circumstances of your offending, even taking account of the mitigating features. In my view a term of imprisonment is the only appropriate disposition here. Further, in my view it must be a term which includes a term which is immediately served and, in light of my conclusions about your prospects of rehabilitation, sees you supervised on release.[16]
[16]Sentencing remarks, [104], [116], [128].
Immediately prior to pronouncing the sentence, the judge said the following:
The mitigating features such as your reform, the delay, your role as carer for your daughter, and your willingness to repay the monies obtained, work to mitigate the term I will impose and to reduce both the head sentence and the term to be served prior to becoming eligible for parole.
I also have taken into account that you will enter custody at a time when the COVID-19 pandemic is still at play.[17]
[17]Sentencing remarks, [129]–[130].

Ground 1: Intensive correction order and suspended sentence

In relation to the first particular of ground 1, the applicant submitted that, in para 128 of her sentencing remarks,[18] the judge had improperly considered an ICO as an available sentencing disposition when that sentencing disposition was not available for offences committed in March 2012.
[18]See [55] above.
The applicant contended that a suspended sentence could have been imposed in this case and that the judge erred by omitting to properly take into account the availability of that sentencing option. This was said to be because the judge did not refer to s 27 of the Sentencing Act as in force at the time of the offending and did not take into account the matters set out in s 27(1A).[19]
[19]See [33] above.
At the hearing of the application for leave to appeal, counsel for the applicant emphasised that the applicant was not seeking to impugn the duration of 3 years of the sentence imposed by the judge, but only the form in which the sentence is to be served. Counsel submitted that, in the all the circumstances of the applicant’s case – particularly the desirability of furthering the applicant’s rehabilitation – the appropriate sentence was one that enabled the applicant to serve it in the community rather than in prison.
The Crown submitted that the judge’s sentencing remarks did not show that the judge was under any misapprehension that an ICO was an available sentencing disposition. The Crown contended that, even if the judge was under such a misapprehension, it could not be said to have had any material impact on the sentence imposed.
The Crown argued that the judge had taken into account the fact that a suspended sentence could have been imposed, but decided that, having considered and weighed the relevant matters and sentencing purposes, the only appropriate disposition was a term of imprisonment to be served immediately.
In my opinion, ground 1 is not reasonably arguable and, accordingly, leave to appeal will be refused in relation to it.
There is no substance to the applicant’s submissions in support of the first particular of ground 1. When read in context, the judge’s statement in para 128 of her sentencing remarks[20] was intended to convey that the applicant had not been deterred by previous sentencing dispositions which did not involve immediate imprisonment – namely, suspended sentences and ICOs – and that she was not satisfied that it would be appropriate to impose a sentence which did not involve immediate imprisonment for the current offending. Read in this way, there is no error in para 128 of the judge’s sentencing remarks.
[20]See [55] above.
Even if it is assumed that para 128 of the judge’s sentencing remarks indicates that the judge erroneously considered that an ICO was an available sentencing option, as the judge rejected it as an appropriate option, any such error could not be regarded as material.
I also reject the second particular of ground 1. It is true that the judge did not refer to s 27 of the Sentencing Act as in force at the time of the offending and did not refer to the statutory language in s 27(1A) to describe the sentencing considerations set out in that provision. However, when the judge’s sentencing remarks are read as a whole, it is clear that she took into account all of those sentencing considerations in arriving at her ultimate conclusion that only a sentence of immediate imprisonment was appropriate in the circumstances. This can be demonstrated as follows:
(a)The judge considered the nature of the applicant’s offence, its impact upon the victim of the offence and any injury, loss or damage resulting directly from the offence, as required by s 27(1A)(a).[21]
(b)The judge considered denunciation, specific deterrence, general deterrence and the gravity of the offending, as required by sub-paras (i) (ii) and (iii) of s 27(1A)(a).[22]
(c)The judge referred to the applicant’s criminal history. She took into account the previous suspended sentences imposed upon him, whether he had breached them and whether the offending was committed during the operational period of the suspended sentences, as required by s 27(1A)(b) and (c).[23]
(d)Although the judge did not expressly refer to the degree of risk of the applicant committing another offence during the operational period of a suspended sentence, her observations in relation to the applicant’s prospects of rehabilitation and her assessment that they were ‘somewhat guarded’ indicate that she considered that there was some risk of such offending.[24]
[21]See [50] above.
[22]See [46], [53] above.
[23]See [55] above.
[24]See [48] above.
Having regard to these matters, it could not be said that the judge erred in concluding that only a sentence of a term of immediate imprisonment was appropriate. On the contrary, the sentence imposed by the judge was entirely appropriate in the light of:
(a)The judge’s findings about the gravity of the applicant’s offending and his very high moral culpability.
(b)The importance of general deterrence in relation to offences of dishonesty which are difficult to detect.
(c)The need for specific deterrence, having regard to the applicant’s relevant prior offending.
(d)The judge’s assessment of the applicant’s prospects of rehabilitation as ‘somewhat guarded’.
(e)The judge’s finding that, by running a trial, the applicant was not entitled to the leniency which attaches to a plea of guilty, an acknowledgement of wrongdoing and acceptance of responsibility, or an expression of genuine remorse.[25]
[25]See [47] above.
I accept that the applicant had made good progress towards his rehabilitation and that, since the birth of his daughter, he has focused on caring for her and being a responsible and law abiding member of the community. However, this factor, and the other mitigating factors which he called in aid, must be considered in the context of all of the other sentencing considerations which strongly support the sentence imposed by the judge.
It follows from the above discussion that none of the errors set out in ground 1 are made out. Further, even if any such errors had been made out, for the reasons I have given, I am not satisfied that there is any reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[26]
[26]See Criminal Procedure Act2009 (‘CPA’) s 280(1)(a).

Ground 2: Delay and prospects of rehabilitation

The applicant submitted that the judge had mischaracterised his submissions on the plea about delay as being directed to family hardship, which could only be taken into consideration if exceptional circumstances exist.[27] He contended that, on the plea, significant reliance was placed upon the steps he had taken towards rehabilitation in the context of submissions regarding delay, and no reference was made to family hardship as a mitigatory factor. He argued that, because the judge considered his submissions about rehabilitation and delay in the context of family hardship and found that family hardship was not engaged as a sentencing consideration due to the absence of special circumstances, she did not give appropriate weight to delay and his demonstrated prospects of rehabilitation.
[27]See Markovic v The Queen (2010) 30 VR 589.
The Crown submitted that the judge correctly considered the question of delay in addition to the question of hardship. The Crown contended that the applicant could not receive a sentencing benefit for the delay from the time of the offending up until his interview with police, as this delay was caused by the difficulty in detecting his dishonesty. The Crown argued that, in sentencing the applicant, the judge did afford him the benefit of the delay of over five years between the record of interview and sentencing.
In my opinion, ground 2 is not reasonably arguable and, accordingly, leave to appeal will be refused in relation to it.
Although the applicant did not rely upon family hardship as a discrete mitigatory factor, because of the emphasis he had placed upon his relationship with his daughter and the impact upon both of them that his incarceration would have, the judge was entitled to consider whether family hardship had been established. I agree with the Crown’s submission that the judge considered family hardship in addition to delay and the steps towards rehabilitation the applicant had undertaken during the period of delay, rather than treating those matters as being subsumed within family hardship and being subject to the requirement to establish exceptional circumstances.
It follows that the fact that the judge found that exceptional circumstances had not been established in relation to family hardship does not mean that she failed to give appropriate weight to the steps that the applicant had taken – including in relation to caring for his daughter – during the period of delay. This conclusion is supported by the fact that, in her sentencing remarks, the judge used separate headings for her discussion of family hardship (paras 91 to 99), prospects of rehabilitation (paras 104 to 110) and delay (paras 111 to 114). In discussing delay, the judge referred to both limbs of that sentencing consideration, namely, any anxiety the applicant suffered as a result of the matter hanging over his head, and the progress in his rehabilitation during the period of delay.[28] The judge also described delay, the applicant’s reform and his role as carer for his daughter as ‘mitigating features’ which resulted in moderation of the head sentence and non-parole period.[29]
[28]See, eg, Sergei v DPP (Cth) [2015] VSCA 181, [42]–[44]. See also [52] above.
[29]See [56] above.
For the above reasons, the judge did not err in the manner contended for by the applicant in support of ground 2. Even if the judge had erred in this manner, I am not satisfied that there is any reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[30]
[30]See CPA s 280(1)(a).

Conclusion

For the above reasons, the application for leave to appeal will be refused.
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[2023] VSCA 120

19 May 2023