Garipoli v The King
[2022] VSCA 260
•24 November 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
S EAPCR 2022 0099
| JUSTIN GARIPOLI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | NIALL JA and KIDD AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 October 2022 |
| DATE OF JUDGMENT: | 24 November 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 260 |
| JUDGMENT APPEALED FROM: | DPP v Garipoli [2021] VCC 2086 (Todd J) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery – Parity – Manifest excess – Application for extension of time in which to bring an application for leave to appeal against sentence – Application for extension of time refused.
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| Counsel | |||
| Applicant: | Mr M Turner | ||
| Respondent: | Mr C Boyce KC | ||
Solicitors | |||
| Applicant: | Rolfe Criminal Law | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
NIALL JA
KIDD AJA:
Introduction
On 9 December 2021, the applicant pleaded guilty to a single charge of armed robbery. He was sentenced on 13 December 2021 as follows:
Charge Offence Maximum Sentence Cumulation 1 Armed Robbery 25 years 3 years 6 months Not applicable Total Effective Sentence: 3 years and 6 months Non-Parole Period: 2 years and 2 months Section 6AAA Statement: 4 years and 11 months (NPP – 3 years and 6 months)
The applicant seeks leave to appeal against sentence on two grounds. The proposed grounds are as follows:
(a)Proposed Ground 1: The sentencing judge failed to correctly apply the principles relating to parity in relation to Rebecca Sawka (‘Sawka’).
(b)Proposed Ground 2: The sentencing judge erred by imposing a sentence that was in all the circumstances manifestly excessive having regard to the mental health issues suffered by the applicant.
Extension of time
The applicant applies for an extension of time in which to bring an application for leave to appeal against sentence. The applicant filed his application on 27 July 2022, more than 6 months after the statutory time limit expired.
The application for an extension of time is supported by an affidavit of the applicant’s solicitor, Nicholas Rolfe, sworn on 27 July 2022.
The relevant principles as to when an application for extension of time will be entertained were summarised in Madafferi v The Queen.[1]
[1][2017] VSCA 302, [11].
The applicant instructed his solicitors to act for him in bringing an appeal within a week of being sentenced. While the delay that followed is not fully explained, it seems that much of it is attributable to briefing and logistical problems encountered by the solicitors rather than to the inaction of the applicant.
We indicated at the oral hearing of this application that ultimately the outcome of the application for an extension of time largely depends upon an assessment of the merits of the application for leave to appeal against sentence itself. For the reasons outlined below, we have concluded the grounds of appeal are without merit. Granting leave for an extension of time in which to bring an application for leave to appeal against sentence would therefore be futile.
Circumstances of the offending
At about 12:20am on 5 July 2020, Luke Beers (‘Beers’) and his partner Kelly-Anne Maerz (‘Maerz’) drove to a footbridge in Castlemaine to meet an associate, Wade Warnock (‘Warnock’).
When they arrived, Beers was sitting in the front passenger seat and Maerz was in the driver’s seat of her car.
Beers and Maerz noticed a black Suzuki Swift pull up behind Maerz’s car and saw two people exit the Suzuki. Beers thought that this was his associate and his partner, however it was in fact the applicant and Sawka.
Maerz unlocked her car and Sawka got into the back of the car through the rear of the driver’s side. The applicant walked up to the front passenger side door and banged on the window, telling Beers to open the door. The applicant then reached through the open passenger window and unlocked the door.
The applicant then demanded money from Beers, threatening to give him a scar if he did not comply. Beers saw that the applicant had a box cutter in his hand.
As the applicant was making his demands, Maerz was demanding that Sawka get out of her car and began to start the car and sound the car horn. Sawka proceeded to punch Maerz in the back of her head and on her nose.
The applicant proceeded to demand that Beers hand over his gold chain that he was wearing around his neck. Beers gave it to the applicant who subsequently made a further demand for Beers’ watch.
Once Beers had removed his watch, Maerz grabbed if off him and offered to transfer money electronically to the applicant instead of giving him the watch. Maerz first transferred the applicant $1, using the PayID feature on her mobile banking app. After the applicant threatened to take her car, Maerz then transferred a further $490 to the applicant.
Afterwards, the applicant told Maerz she had 30 seconds to hand over the watch, otherwise he would take the car. The applicant then agreed to return the watch to Maerz if she paid him $1,500 by the end of the month.
When asked whether they could be certain the applicant would return the watch upon receipt of the money, the applicant answered that he had already done this to another and their property was returned.
The applicant told Sawka ‘if you see anything you like, just take it’ before she got out of the car. The applicant then punched Beers in the face before both assailants went back to their car.[2]
[2]This was an uncharged act.
Maerz and Beers drove back to their address. Maerz then attended Castlemaine Police Station with Beers’ mother where Maerz identified her assailants.
Applicant’s personal circumstances
The applicant was 28 at the time of the offending, and 29 years old at the time of sentence.
The applicant had experienced disadvantage in his childhood. He grew up in physically abusive household. His brother (who he looked up to and tried to emulate) was in and out of prison all of his life. The applicant left home at 17 years of age due to the volatile nature of his parents’ relationship. The applicant left school in Year 10 and commenced work, later completing a qualification in warehousing and distribution.
In 2012 the applicant entered a relationship, and had a child from this relationship, who is now eight years old.
He met his current partner in 2018. The applicant subsequently assumed responsibility for her children (some of whom have significant needs) as their stepfather. Their first child together was born on 15 July 2021. At the time of sentence the applicant had not yet held her.
The applicant’s drug use started with cannabis at 14 after being introduced to drugs by his brother. His use escalated to amphetamines, GHB and methylamphetamine.
The applicant described ‘going off the rails’ between 2015 and 2019 and using methylamphetamine heavily. The applicant’s criminal history reflects this. The applicant had been sentenced for contravening family violence intervention orders, reckless conduct endangering serious injury, unlawful assault, recklessly causing injury, false imprisonment, threatening to inflict serious injury, among other charges. He had served terms of imprisonment including a 14-month term immediately prior to the instant offending.
After the applicant was remanded on these matters, he secured CISP bail. The applicant relapsed into methylamphetamine use and was apprehended for further drugs related offending (due to be dealt with in the Magistrates’ Court.)
Sentence
The offending was described by the judge as ‘unsophisticated’, and as ‘approaching, but falling short of, the midpoint’ of seriousness.
After outlining the difficulties faced throughout the applicant’s life, she described the applicant’s prior criminal history as one that was ‘worrying’ and ‘deeply connected to [his] drug use’.
Psychologist reports of Ms Cidoni and Mr Healey were tendered at the plea on the applicant’s behalf. While the moral culpability limb of Verdins[3] and the Bugmy[4] principle were not enlivened, the judge accepted that the applicant suffered a very difficult upbringing and suffered from PTSD and persistent depression. The judge addressed the relationship between these conditions, the applicant’s drug addiction, and the offending, taking them into account in ‘a general mitigatory sense’.
[3] R v Verdins (2007) 16 VR 269 (‘Verdins’).
[4]Bugmy v The Queen (2013) 249 CLR 571.
The guilty plea was acknowledged by the judge as requiring a discounted sentence, increased by reason of the COVID-19 pandemic.
The judge accepted the plea was entered with elements of remorse.
The judge addressed at length the protective factors of the support of his new partner and family.
While no precise determination was made as to prospects of rehabilitation, the judge found the applicant’s prospects were dependent upon him addressing his drug addiction once back in the community.
The judge accepted that the applicant had a clear understanding of the connection between his offending and his drug dependence.
The sentencing judge addressed considerations of parity with respect to the sentence imposed upon Sawka, acknowledging the difficulties in making this comparison because they each fell to be sentenced on a different legal and factual basis.
The judge addressed the conditions of custody in a COVID-19 environment, current sentencing practices at the time and the relevant statutory sentencing considerations.
She noted the importance which general and specific deterrence played in the sentence as well as denunciation and protection of community.
Proposed Ground 1: Parity
The applicant’s ‘co-offender’ in this episode Sawka was sentenced on 24 August 2021 by the same judge to a total effective sentence of 10 months as follows:
(a)For the offence of robbery she was sentenced to 8 months’ imprisonment.
(b)Sawka also pleaded guilty to one charge of common law assault (punching Ms Maerz to the back of the head and on her nose) for which she was sentenced to 4 months’ imprisonment.
(c)The judge directed that 2 months of the common law assault sentence be served cumulatively upon the robbery sentence, thus resulting in total effective sentence of 10 months.
(d)Sawka was also sentenced for some unrelated matters.[5]
[5]Possession of a drug of dependence x 2 (1 month each); Possess counterfeit money (Convicted and fined $400); Deal with property suspected being proceed of crime (1 month). These terms of imprisonment were directed to be served concurrently on the other sentences imposed.
It follows that the applicant fell to be sentenced for armed robbery whereas Sawka fell to be sentenced for robbery.
Sawka was charged with, and pleaded guilty to, a charge of robbery on the basis that she did not possess a weapon at the time of this incident and did not know that the applicant had a weapon at the time of the robbery.
The cornerstone of the applicant’s parity argument was that applicant and Sawka were effectively co-offenders in a joint or common criminal enterprise. That is so, the applicant contended, notwithstanding that the applicant fell to be sentenced for armed robbery and Sawka robbery. When viewed through this prism, the applicant contends that the disparity in the sentences imposed is incapable of rational explanation.
The parity principle recognises that equal justice requires that there should not be a marked disparity between co-offenders giving rise to a ‘justifiable sense of grievance’.[6] Parity is to be assessed objectively.[7] Any significant disparity should be capable of a rational explanation. The disparity must be marked, or clearly unjustifiable.[8]
[6]Postiglione v The Queen (1997) 189 CLR 295, 301.
[7]DPP (Cth) v KMD (2015) 254 A Crim R 244, [109].
[8]Wood v R [2019] VSCA 39, [77]–[78].
In Hilder v The Queen[9] Maxwell ACJ said:
Where a judge has carefully considered all of the relevant sentencing considerations applicable to the respective co-offenders, a ground of parity will rarely succeed. In those circumstances it will be necessary for an applicant to show that, despite the sentencing task having been carefully and conscientiously carried out, nevertheless, the conclusion as to differentiation is so obviously wrong that this Court is constrained to conclude that the sentencing discretion miscarried as a matter of law.[10]
[9]Hilder v The Queen [2011] VSCA 192.
[10]Ibid [79].
The principle of parity is not confined to a consideration of the sentences imposed upon persons charged with the very same crime. It includes those who were engaged in the ‘same criminal enterprise’, even where the offenders are charged with different offences.[11]
[11]Farrugia v The Queen (2011) 32 VR 140, 143-5, [10]–[19]; Green (2011) 244 CLR 462, 473 [30].
But the differences in the nature and seriousness of the crimes charged (including the differences in maximum penalties applicable) will be relevant to the question of parity. Such differences may legitimately explain a discernible disparity in the sentences imposed. As much was acknowledged by this Court in Gregory[12]:
The greater the differences in the nature and seriousness between the crimes charged, the more difficult the application of the principle will become, to the point where the differences are so great that the principle can no longer be applied.[13]
[12]DPP (C'th) v Gregory (2011) 34 VR 1.
[13]Ibid 9, [27].
For the offence of armed robbery it must be proved that the accused:
(a)committed robbery; and
(b)at that time, the accused had with him/her a firearm, imitation firearm, offensive weapon, explosive or imitation explosive with them.
Self-evidently, the offence of armed robbery necessarily includes the elements of the offence of robbery.
The additional element of being armed with a weapon converts an offence of robbery into an offence of armed robbery.
While the applicant and Sawka were charged with different offences, it may be accepted that their offending involved a common element, the offence of robbery, with its accompanying elements. They were, up to a point, involved in a common criminal venture directed at robbing the targeted victims.
Their criminal involvement in the one incident, and the common features of their offending (robbery), required the sentencing judge to achieve some appropriate relativity between their respective sentences.
This comparison was not, however, ‘like for like’. Far from it. The crime of armed robbery is a significantly more serious offence than the crime of robbery. As a matter of principle, the additional element which elevates robbery into an offence of armed robbery (i.e. the use of a weapon) very significantly increases the criminal responsibility of the offender.
As much is reflected in the different maximum penalties which the legislature ascribes to the respective offences. The offence of armed robbery carries a maximum penalty of 25 years, compared to 15 years for robbery. Armed robbery is also a category 2 offence under the Sentencing Act 1991 which has certain consequences. Very different sentencing practices apply to the two offences.
In this case, the offence of armed robbery involved the applicant having with him an offensive weapon (a box cutter) at the time the robbery was committed. He threatened the victim Beers with severe injury (disfigurement) if he did not comply. He was the offender who utilised the weapon in a most threatening manner. His use of the box cutter greatly increased the danger to the victims and the level of intimidation involved in the offending. It sheds light upon the applicant’s premeditation and state of mind. On the facts of this case, the applicant was the dominant or main offender. He initiated the confrontation and made the demands for money and property. He was the offender who received the funds and property. He directed Sawka throughout the offending.
As we have said, Sawka was sentenced for robbery upon the basis that she did not know that the applicant had the box cutter at the time of the robbery. She bore no legal or moral responsibility for the applicant’s use of the box cutter, or for the facts which related to its use (including the menacing language employed by the applicant). While her role could hardly be described as passive, it was a plainly and significantly lesser role, resulting in the different offences charged.
Her Honour was keenly alive to the issue of parity:[14]
It was put on your plea that I should consider the parity of your sentence with that of your co-accused Ms Sawka. However, Ms Sawka’s plea was to the much less serious offence of robbery, the prosecution having accepted that she had no knowledge of the weapon that you help prior to the events unfolding. Her case was resolved on a different legal and factual basis. I do bear in mind her sentence but yours must be different.
[14]DPP v Garipoli [2021] VCC 2086, [52] (‘Reasons’).
We reject the applicant’s contention that the judge was dismissive of the parity issue.
As her Honour said, given the different level of offences involved, ‘it’s a difficult comparison to make.’ We would endorse that observation. The fact that they faced different charges, with different positions along the criminal calendar, raised practical difficulties in the application of the principle of parity.
Nevertheless, as the passage extracted above shows, the judge explicitly stated that she did ‘bear in mind’ the sentence she had imposed upon Sawka.
While the judge was required to give some weight to the sentences imposed on Sawka, the applicant and Sawka ultimately fell to be sentenced on a different legal and factual basis. The judge was entitled to treat those matters as justifying a significant sentencing difference. Put another way, the comparison of the ‘unlike’ offences leads to (and explains) the disparity in the sentences.
The applicant complains that the difference in the overall sentences imposed upon the two offenders does not adequately reflect the fact that Sawka was also sentenced for one charge of common law assault, arising from this incident.
We do not agree.
This submission overstates the degree of criminal responsibility which attaches to this offence. The common law assault did not significantly aggravate Sawka’s overall offending. As much is reflected by the fact that it only contributed an additional two months towards Sawka’s overall sentence of imprisonment. The victim reported having a sore nose but was otherwise uninjured by the assault.
Certainly, the common law assault committed by Sawka was in no material way a counterweight for the applicant’s use of a box cutter as part of the offence of armed robbery. Any such comparison is a false one.
We are also unpersuaded that the judge overlooked the common law assault sentence imposed on Sawka when giving consideration to parity. She was the trial judge who sentenced both offenders. The prosecutor at the applicant’s plea hearing also reminded her Honour of the fact that Sawka was sentenced for robbery and for common law assault.
The sentencing remarks show that the focus in her Honour’s sentence was, correctly, upon the essential difference between the two offenders, namely that the applicant fell to be sentenced for the serious offence of armed robbery (i.e. for the use of the box cutter when committing the robbery) whereas Sawka did not.
For completeness, both the applicant and Sawka were of a similar age, and it seems it was common ground that they both had relevant criminal backgrounds. Both had a history of drug problems relating to their criminal histories. This was reflected in her Honour’s guarded assessment of the prospects of rehabilitation of the two offenders.
That all said, if anything, their respective criminal histories offered, to a degree, some further explanation for the disparity in sentences. While the applicant and Sawka both had reasonably significant criminal histories, the applicant had only just completed a term of 14 months’ imprisonment a little over two months before committing the instant offending. He also had a more significant history of offending against persons. No doubt this informed her Honour’s assessment that the applicant’s history is ‘compact but worrying.’ There was no equivalent sentiment of concern expressed in her Honour’s sentencing remarks of Sawka.
In our view, the applicant cannot have a justified sense of grievance arising out of the disparity between his sentence and that of Sawka. Whether the point of comparison is the individual sentences of armed robbery and robbery respectively or the overall sentences (factoring in Sawka’s common law assault conduct and sentence), the disparity in the sentences imposed is, in our view, proportionate.
We agree with the submission of the respondent that it is evident that her Honour when sentencing the applicant carefully and conscientiously considered all the relevant sentencing issues including the relativities between the applicant’s offending and that of Sawka.
The parity ground must be rejected.
Proposed Ground 2: Manifest excess
Ground 2 contends that the sentencing judge erred by imposing a sentence that was, in all the circumstances, manifestly excessive.
This ground alleges that the sentence was manifestly excessive ‘having regard to the mental health issues suffered by the applicant’.
The argument in the applicant’s written case indicated that this was not the only particular relied upon. The applicant says that the judge failed to give sufficient weight to a number of mitigatory matters. No specific error is, however, pleaded.
The complaint was principally directed at the head sentence.
The principles which apply when dealing with a ground of manifest excess were summarised in Leimonitis, where it was said that:
manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long. A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate. But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[15]
[15]Leimonitis v The Queen [2018] VSCA 198, [32] (citations omitted).
The applicant asserts that insufficient weight was given to the role his mental health disorders had played in relation to the offending under Verdins.
At the oral hearing in this application, counsel for the applicant correctly accepted that counsel, at the plea hearing, had explicitly conceded that the evidence did not establish a sufficient connection between the offending and the ‘mental health disorders’ operating at the time of the offending, such as to enliven the Verdins moral culpability limb. Counsel for the applicant on the plea explicitly disavowed reliance upon the moral culpability limb of Verdins.
The sentencing judge accepted the evidence contained within the psychologist reports that:
(a)the applicant had experienced a ‘bruising and unpredictable childhood which has to some degree set [the applicant] on the path [he] is now on’;
(b)the applicant had untreated PTSD and persistent depression at the time of the offending;
(c)his mental health disorders and vulnerabilities provided the psychological background to the applicant’s illicit drug abuse, rendering him more susceptible to drug use; and
(d)his drug addiction in turn was connected to his past and present offending.
Importantly, her Honour nevertheless gave weight to ‘the applicant’s mental conditions’ in ‘a general mitigatory sense’.
The applicant’s counsel on this application did not point to any evidence which showed that the judge’s approach to the consideration of the applicant’s mental health conditions was inappropriate.
There was no cogent evidence before the judge that the applicant suffered an impairment which had a realistic connection to the offending.[16] The high point of the evidence in the psychologist reports is that the applicant suffered from these conditions at the time of the offending, which provided the contextual setting to his drug addiction. The judge acted upon this, and upon the explanation which his drug use provided for his offending. The evidence did not establish that the applicant’s mental conditions contributed to the offending in such a way as to render him less blameworthy for the offending than would otherwise have been the case.[17]
[16] Verdins (2007) 16 VR 269 275, [26].
[17] Langton (a pseudonym) v The Queen [2022] VSCA 79, [33].
The complaint about giving insufficient weight to the applicant’s mental health conditions is without merit.
The applicant in his written case also asserted that the judge erred in not taking into account, or not properly reflecting in the sentence, that the accused would find incarceration more difficult than most prisoners.
We agree with the respondent that the judge expressly took the mental health matters into account in this context. In relation to the applicant’s untreated PTSD and persistent depression the judge said:[18]
I take into account that your imprisonment will be made more burdensome on you as a result of these persistent conditions.
[18]Reasons, [40].
In his written case, the applicant’s counsel emphasised the applicant’s anguish at being separated from his family members, namely his new partner, her children (his stepchildren) and their own young daughter, who was born while he was in custody.
This family separation argument represented a shift from what was advanced on the applicant’s behalf at the plea hearing. Indeed, the family separation argument was never advanced at the plea hearing.
The argument advanced at the plea hearing which touched upon his family was solely focused upon the positive influence which his partner, his stepchildren and the birth of their daughter would have upon him. As her Honour said:[19]
A significant portion of your plea was directed to submissions on your prospects of rehabilitation by reference to the support you now have in place from your partner, her family, and a future employer.
[19]Ibid, [42].
The judge also accepted the submissions advanced by the applicant’s counsel at the plea hearing that his conditions in a COVID-19 custodial environment would make it more difficult for him because this limited visits from his loved ones, and also caused him not to meet his new baby daughter.
As well as not having been advanced at the plea hearing, the family separation argument now made is not supported by the evidence. The applicant relies upon the following extracts from the report of Psychologist Bernard Healey tendered at the plea hearing:
In regard to his current relationship with Stacey Taylor, now aged 30, they met in 2018. She is not involved in the abuse of drug substances and issued ultimatums which made it clear that she wasn't prepared to tolerate any drug use in the relationship or in the home, certainly she had been very grateful for the help he has provided for two of her disabled children, one with Cerebral Palsy and the other with ADHD, Epilepsy, and PTSD, as well as encouraging her daughter to return to netball, his access to his own daughter and of course the involvement which must come in the care of their mutual daughter aged 12 weeks.
He was hopeful in view of all of his circumstances that he would be able to return to the family situation with his partner, their mutual daughter, the ongoing care on an access basis for an older daughter, and the needs of stepchildren some of whom are disabled, with attention also to drug abuse addiction and perhaps being involved in the assistance of youth who have problems with abuse addiction which would have a maintenance effect upon his own approach to remaining drug free.
We think her Honour’s treatment of the applicant’s family-related issues in her sentencing remarks accorded precisely with this evidence. They bore upon the support and protective influence which the presence of the family would offer the applicant, and upon the assessment of his prospects of rehabilitation.
We agree with the submissions made by the respondent’s counsel that while separation for the applicant will be difficult, there is no evidential basis on which it can be said that imprisonment will be materially more burdensome for the applicant than for other prisoners. We also agree that there is no basis to suggest that the judge failed to give the family related issues appropriate weight.
There is also no merit to the applicant’s further complaint that the judge gave insufficient weight to the implications of imprisonment during the COVID-19 pandemic.
Her Honour dedicated a section in her sentencing remarks to the issue:[20]
I take into account that you will serve your term of imprisonment, and have served imprisonment to date, under conditions in custody that are much harsher because of the measures taken in the context of the COVIC-19 pandemic. This has made custody more difficult for all prisoners, but for you in particular, this has meant a limitation on visits and access to courses, and has caused you not to meet your baby daughter. I take into account the more onerous conditions, both that you have served and that you will serve, in the remainder of your sentence.
You were unable to attend the funeral of your brother who passed away suddenly in August this year, and I take that into account.
[20]Ibid, [53]-[54].
Turning now to our overall assessment of this proposed manifest excess ground.
In our view, the sentencing judge carefully examined and weighed the matters personal to the applicant and the factors in mitigation.
Weighed against these factors in mitigation, her Honour considered the objective gravity of this offending. The offending was described by the judge as ‘approaching, but falling short of, the midpoint’ of seriousness. The applicant’s counsel in the hearing before us did not take issue with this assessment.
We agree with the assessment.
Her Honour correctly observed that the offence was committed in the company of another, was accompanied by a threatened injury, involved two victims, and was committed in an isolated location. The offending was somewhat protracted and involved repeated demands for money and property.
It is the type of armed robbery which is all too easily committed. Box cutter knives are widely available within the community. When used with criminal intent, they constitute a frightening weapon. The threat of disfigurement is terrifying, as is the ease with which this can be inflicted. As one of the victims in this case said, ‘the whole time I was worried [the applicant] was going to cut me, he even said he would give me a scar.’
The offending calls for general deterrence as well as public denunciation, as the judge recognised.
The applicant also had a substantial criminal history, including for dishonesty offences and offences against the person. We have already made mention of the fact that it is notable that the applicant had, only two months prior to this offending, completed a 14-month term of imprisonment. Counsel for the defence also confirmed that the applicant had engaged in subsequent drug related offending.
The judge found that his ‘compact but worrying’ criminal history was ‘deeply connected to [his] drug use’. The judge was right to assess the applicant’s prospects of rehabilitation as being almost entirely tied to his capacity to wrestle with his drug problems within the community. The success of this was fraught with a high degree of uncertainty.
As the judge recognised in her remarks, specific deterrence and the protection of the community also both played a role in this sentencing process.
This being a category 2 offence, pursuant to s 5(2H) of the Sentencing Act 1991, a term of imprisonment (and not in combination with any other form of sentence) was required. As was accepted at the plea, a sentence of imprisonment with a non-parole period was the only disposition open.
In our view, for a person with his prior criminal history, and making allowance for the factors in mitigation and the circumstances personal to the applicant, a sentence of 3 years and 6 months (with a non-parole period of 2 years and 2 months), for an armed robbery approaching, but falling short of, the midpoint of seriousness, is quite unremarkable.
In all of the circumstances it cannot be said that the sentence imposed on the applicant is ‘wholly outside the range of sentencing options available’. In our opinion, the contention that the sentence is manifestly excessive is not reasonably arguable. Proposed ground 2 cannot succeed.
Conclusion
For the above reasons, the application for an extension of time in which to bring an application for leave to appeal against sentence is refused.
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