Hoxha v The Queen
[2012] VSCA 156
•25 July 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. S APCR 2012 0010
| ARIAN HOXHA | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | WEINBERG and MANDIE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 July 2012 | |
DATE OF JUDGMENT: | 25 July 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 156 | |
JUDGMENT APPEALED FROM: | DPP v Arian Hoxha (Unreported, County Court of Victoria, Judge Maidment, 15 December 2011) | |
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CRIMINAL LAW – Application for leave to appeal against sentence – Possession of substances and equipment relating to the manufacture of a drug of dependence with intention of trafficking – Sentence of 33 months with 22 months non-parole – Whether sentencing judge erred in finding beyond reasonable doubt that substantial time, thought, energy and resources had been applied to the process of acquiring the items the subject of the charge and that the offence was the product of not insubstantial planning and preparation – Whether sentencing judge erred in not imposing a wholly suspended sentence – Leave to appeal refused – No point of principle.
CRIMINAL LAW – Appeal against sentence - Possession of substances and equipment relating to the manufacture of a drug of dependence with intention of trafficking – Sentence of 33 months with non-parole period of 22 months – Whether sentencing judge erred in rejecting application of principles five and six of R v Verdins (2007) 16 VR 269 – Whether sentence and non-parole period manifestly excessive – Appeal dismissed – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Mr G A Georgiou | Robert Stary Lawyers |
| For the Crown | Mr T Gyorffy SC | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA:
I agree with Mandie JA.
MANDIE JA:
On 23 November 2011, the appellant pleaded guilty in the County Court to one count of possession of substances and equipment relating to the manufacture of a drug of dependence with the intention of using the same for the purpose of trafficking in a drug of dependence pursuant to s 71A of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).[1]
[1]Section 71A(1) provides that ‘a person who, without being authorised by or licensed … to do so, possesses a substance, material, document containing instructions relating to the preparation, cultivation or manufacture of a drug of dependence or equipment with the intention of using the substance, material, document or equipment for the purpose of trafficking in a drug of dependence is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum)’.
On 15 December 2011, the appellant was sentenced to 33 months’ imprisonment with a non parole period of 22 months.[2] On 18 April 2012, Neave JA granted the appellant leave to appeal against sentence on two grounds, namely that the sentencing judge erred in rejecting the application of principles five and six set out in R v Verdins[3] (ground 2) and that the sentence and non-parole period was manifestly excessive (ground 4). Her Honour refused leave to appeal on the basis of proposed grounds 1 and 3. The appellant subsequently filed a notice of election to renew application under s 315 Criminal Procedure Act 2009 (Vic) to have his application for leave to appeal on grounds 1 and 3 determined by the Court of Appeal comprising at least two judges.
[2]The learned sentencing judge stated pursuant to s 6AAA of the Sentencing Act that, but for the plea of guilty, he would have imposed a sentence of 3 years 6 months, with a non-parole period of 2 years and 4 months. Director of Public Prosecutions v Arian Hoxha (Unreported, County Court of Victoria, Judge Maidment, 15 December 2011) (‘Reasons’).
[3](2007) 16 VR 269.
Background facts
The offence giving rise to this appeal may be summarised as follows.[4] At about 7.30 a.m. on 2 December 2010, police executed search warrants at the appellant’s home at 4 Lyre Court, Gladstone Park and at 7 Lyre Court, Gladstone Park. The appellant was sitting in the passenger seat of a 1999 Land Rover wagon, owned by him, with his brother Alban Hoxha in the driver's seat. The vehicle was stationary in the driveway at 7 Lyre Court.
[4]This summary is based on the Reasons, paras [4]-[6].
In the rear seat and luggage compartment of the vehicle the police found numerous items of equipment and pre‑cursor chemicals suitable for use in the manufacture of drugs of dependence, particularly methylamphetamine. The chemicals included 5 kilograms of sodium which is a prescribed pre-cursor; the prescribed amount is 25 grams. In the garage at the appellant’s home were found other pre‑cursor chemicals including a 56 kilogram gas cylinder containing 34.95 kilograms of ammonia.[5]
[5]Ammonia is a prescribed pre-cursor chemical; the prescribed amount is 150 grams. Both chemicals, together with ephedrine and pseudoephedrine, are used to produce methylamphetamine. The judge noted that ‘[a]ssuming the addition of nine kilograms of ephedrine or pseudoephedrine the quantities of sodium and ammonia seized were sufficient to produce about 4.8 kilograms of methylamphetamine’.
Submissions
The appellant advanced four grounds of appeal against sentence:
1.The sentencing judge erred in finding beyond reasonable doubt that:
(a) substantial time, thought, energy and resources had been applied to the process of acquiring the items the subject of the charge;
(b) the offence was the product of not insubstantial planning and preparation; and
(c) there was an expectation of significant financial reward.
2.The sentencing judge erred in rejecting the application of the principles set out in R v Verdins.
3. The sentencing judge erred in not imposing a wholly suspended sentence.
4.The head sentence and the non-parole period are manifestly excessive, particularly in the circumstances of:
(a) the applicant’s early plea of guilty;
(b) the sentencing submissions of the prosecution;
(c) the fact that there was no evidence of the presence of all the ingredients necessary for the manufacture of methylamphetamine, in particular ephedrine and pseudoephedrine;
(d) the fact that the offence was in respect of a single day only;
(e) the applicant’s remorse;
(f) the applicant’s psychological condition of dysthymic disorder; and
(g) the applicant’s efforts to rehabilitate since the commission of the offence, including abstinence from drug use and gambling, and the applicant’s prospects for rehabilitation.
I will first deal with the two grounds on which leave to appeal is sought (proposed grounds 1 and 3) before considering the two grounds where leave has been granted (grounds 2 and 4).
Proposed ground 1
Neave JA refused leave to appeal on this ground, finding that it was not reasonably arguable, and said:[6]
[6]Leave Reasons, [22]-[24].
… Significant amounts of the chemicals were found in both the car and the applicant’s garage. They were capable of producing a considerable quantity of methylamphetamine. At the plea hearing, the judge put it to the applicant’s counsel that:
It looks like the object was to make a significant sum of money out of the operation, that’s what it looks like.
Counsel responded:
Certainly, and we don’t say that it’s irrelevant to the sentencing process, of course it’s not, it is relevant, but there is a line between his criminality, which is the intention to manufacture, and on the other side of the line is the actual manufacture.
In light of that concession, it cannot be reasonably argued that the applicant was taken surprise by his Honour’s finding that the applicant was motivated by an expectation of significant financial reward. It was also open to his Honour to infer beyond reasonable doubt that this was a serious example of the offence, because of the element of planning which must have been involved in obtaining this quantity of the chemicals and the steps taken by the applicant to conceal them.
On the appeal hearing, the appellant abandoned subpara (c) of proposed ground 1, thus accepting that the sentencing judge was entitled to find beyond reasonable doubt that the appellant had an expectation of significant financial reward arising from his offending conduct.
Nevertheless, the appellant submitted that there was no factual basis for the following findings of the sentencing judge, as no evidence was admitted, and no submissions were made, with respect to these matters:[7]
Having considered the information in Exhibit A [Prosecution Opening] and the photographs in Exhibit B [two books of photographs], I am satisfied beyond reasonable doubt that the quantity of pre cursor chemicals and the nature and locations of the equipment in your possession indicate that this is a serious offence of its kind. This was no spur of the moment offence. The multitude of items were not selected at random. Substantial time, thought, energy and resources had been applied to the process of acquiring the items the subject of the charge. The photographs, Exhibit B, are instructive. They show that most of the items relevant to the charge were carefully packed and concealed from view in large boxes which fitted neatly into the rear seat and rear luggage compartment of your car. Although no ephedrine or pseudoephedrine was in your possession at the time of your arrest, I am satisfied beyond reasonable doubt that your purpose was to traffick in significant quantities of methylamphetamine for substantial financial gain. According to the information provided to me during the plea hearing through your counsel, Mr Georgiou, you had not personally used amphetamines since about February 2010. It was not suggested that your purpose in committing the offence was to feed a personal habit..
…
You have not put forward any credible explanation for your offending, either to Mr Newton or to this court. … I note that it was not submitted on your behalf that your crime was motivated by pressing financial need. Your counsel did not seek to provide any explanation to me for your offending beyond the same ‘background’ to your offending reported by Mr Newton[8] …. I am left to conclude, on the whole of the evidence, that the offence was the product of not insubstantial planning and preparation and was motivated by greed with the expectation of significant financial reward. I make those findings beyond reasonable doubt.
[7]Reasons, [7], [18] (emphasis added).
[8]See infra, para [33].
The appellant submitted that there was no material before the judge as to how the appellant acquired possession of the items the subject of the charge, when they were obtained, who obtained them or as to the extent of the level of planning involved. The appellant submitted that it was not open to the judge to draw an inference, beyond a reasonable doubt, as to the matters of time, energy and planning referred to by the judge.[9] The appellant submitted that ‘somebody’ must have spent a good deal of time and energy in acquiring and installing the items but there was no basis for inferring beyond a reasonable doubt that it was the appellant.
[9]Reasons, [7], [18].
The respondent submitted is that it was reasonably open to his Honour to make these findings on the basis of the evidence before him, particularly the evidence that the substantial amount of equipment and precursor chemicals had been carefully packed and concealed from view in large boxes in the applicant’s vehicle. Thus, the judge was entitled to conclude that substantial time, thought and resources would be required in the process of acquiring such items. The respondent emphasised that there was no evidence of the involvement of any other person in the acquisition, packing and concealment of the items concerned and no explanation whatsoever by the appellant concerning his possession of these items. The judge was therefore entitled to make the relevant inferences and to be satisfied of them beyond a reasonable doubt.
I agree with and adopt the respondent’s submissions and I would therefore refuse leave to appeal on this ground.
Proposed ground 3
The appellant’s proposed ground 3 was that the judge erred in not imposing a wholly suspended sentence, submitting that such a sentence was warranted in light of, inter alia, the concession made by the prosecutor that a term of imprisonment was warranted but that the manner in which it was to be served was a matter for the sentencing judge.
The respondent argued that the Crown’s submission did not bind the judge and that his Honour’s conclusion that immediate imprisonment was warranted was reasonably open on the evidence.
His Honour noted in his sentencing remarks:[10]
Your counsel accepted that your crime was serious enough to merit sentencing you to imprisonment. There can be no doubt that that is true. However, he submitted that in all the circumstances it would be appropriate for me wholly to suspend that a sentence. He reminded me that the Prosecution did not press for immediate incarceration. In all the circumstances, having regard to the seriousness of this offence and your level of culpability, I am firmly of the opinion that an immediate custodial sentence is required. I note, however, that you are not to be sentenced as if you were guilty of the more serious offence of trafficking in a drug of dependence.
[10]Reasons, [19].
The sentencing judge was, of course, not bound by the Crown’s submissions. In my view, this ground is not reasonably arguable and I would refuse leave to appeal.
Ground 2
The appellant contended that the sentencing judge erred in rejecting the application of the principles set out in R v Verdins. He submitted that the judge erred in his finding that there was only ‘some’ risk that imprisonment would cause a deterioration in the appellant’s mental state. He argued that there was no basis for his Honour to conclude that the appellant’s ability to cope with stressful situations would result in a reduced risk of deterioration in his mental state if imprisoned.
The respondent submitted that his Honour’s findings regarding the inapplicability of the principles in Verdins were findings of fact, which were well open on the evidence.
Prior to sentencing, counsel for the appellant tendered a report dated 16 November 2011 of Dr Newton, forensic and clinical psychologist, together with notes of treatment provided to the appellant by his general medical practitioner, Dr Quach. The judge incorporated the report and the notes in their entirety into his reasons. [11] The report of Dr Newton was based on a single extended clinical consultation conducted on 20 September 2011.
[11]Reasons, [8].
With regard to the impact of imprisonment on the appellant’s mental state, Dr Newton reported the following:[12]
Diagnostically, the pattern of long-standing negative mood reported by Mr Hoxha is consistent with the diagnosis of a Dysthymic Disorder by DSM-JV criteria, This condition is a chronic form of relatively mild clinical depression. In Mr Hoxha’s case his dysthymic condition appears to have arisen out of his difficult childhood experiences and to have been reinforced by his experiences of loss and grief throughout his adolescence and adulthood. Based on the history he provided, there does not appear to have been any significant remission of his symptoms since the death of his brother in 2005.
…Speaking in terms of Mr Hoxha’ s psychological condition, I would simply note that he would be at significant risk of experiencing a deterioration in his mental state if he were to receive an immediate custodial disposition. It would be important that he were actively monitored by a mental-health professional to ensure that he received appropriate treatment. A focus on preventing impulsive acts of self-harm would also be important during the early period of any incarceration. It is of course almost a truism that virtually any prisoner will experience some level of depressive symptomatology. In Mr Hoxha’s case his preexisting condition is such that his experience of depressive symptoms is likely to be both more intense and more prolonged than that of a prisoner who is not suffering a dysthymic condition upon intake. Mr Hoxha would also be at considerably greater risk of developing a Major Depressive Episode in the course of his incarceration and would be likely to require relatively close monitoring by clinical staff within the custodial system.
[12]Dr Newton’s report, [27] and [37].
The sentencing judge, after noting that he found Dr Newton’s report of ‘limited use’ with regard to the appellant’s background and motivation for the offence, considered in some detail Dr Newton’s evaluation of the appellant’s mental health:[13]
[13]Reasons, [12]-[14] (emphasis added).
… [counsel for the appellant] relied upon Exhibit 2 in support of his submission that it provides evidence of a mental impairment at the time of sentencing of such a nature as to enliven point 6 of the principles listed by the Court of Appeal in R v. Verdins. He made it clear that he was not suggesting there was a causal connection between your mental impairment and the commission of the offence. … I note that Mr Newton’s Report is based on a single ‘extended clinical consultation’ conducted on 20 September 2011 which included the completion by you of the Personality Assessment Screener. No evidence of more recent assessment of your mental health was tendered or relied upon. Based on that consultation, Mr Newton’s opinion is that you were suffering from a ‘chronic form of mild clinical depression’ known as Dysthymic Disorder. Mr Newton further opined that this condition:
‘appears to have arisen out of [your] difficult childhood experiences and to have been reinforced by [your] experiences of loss and grief throughout [your] adolescence and adulthood. Based on the history [you] provided there does not appear to have been any remission of his symptoms since the death of his brother in 2005’.
As I understand the thrust of Mr Newton’s report, it is his opinion you have apparently lived with this mental impairment for many years. Yet, despite suffering from it, you were able in February 2010 to give up, without any professional counselling, what had become a substantial amphetamine use and to remain abstinent from illicit substances since that time. According to what you told Mr Newton, you were also able in October 2009 to give up, without any professional counselling, a ‘compulsive and uncontrolled’ gambling habit which Mr Newton opined ‘was sufficiently intense to warrant the diagnosis of Pathological Gambling’. As I noted earlier from what you told Mr Newton, you have also in the past been able to ‘enjoy considerable financial success’ by working in two successful restaurants and then by renovating houses and selling them at a profit.
I nevertheless accept that Mr Newton’s Report suggests it is probable that you continue to suffer from ‘relatively mild clinical depression’. I accept that there is some risk that imprisoning you may lead to a deterioration in your mental state. That risk may be greater than that to which a prisoner without your condition is exposed but I do not regard it as substantial. It seems to me that up to now you have generally applied your own resources successfully and coped reasonably well with stressful situations, despite the presence of this long standing mental impairment. On the evidence before me, I am not persuaded that there is a serious risk that imprisonment would have a significant adverse effect on your mental health so as to enliven Verdins principles. That said, I take into account your mental impairment in assessing the appropriate sentence.
In R v Verdins, this Court stated that a mental condition may be relevant to sentencing in at least six ways. The appellant invoked the fifth and sixth principles:[14]
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[14](2007) 16 VR 269, [30] and [32].
In Carroll v The Queen this Court (Maxwell P and Buchanan JA) held: [15]
[15][2011] VSCA 150, [17]-[22] (emphasis added).
It needs to be emphasised that a finding made by a sentencing judge about the applicability of one or more of the principles identified in Verdins is a finding of fact. It is for the sentencing court to decide whether, and if so to what extent, any condition from which the offender is said to suffer is likely to have affected his/her mental functioning in the particular circumstances – that is, at the time of the offending or in the lead-up to it – or is likely to affect him/her if sentenced to imprisonment. As to proposition 1, concerning the reduction of moral culpability, the Court in Verdins said:
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence.[16]
Accordingly, a finding of the kind in issue here … will attract appellate intervention only if it can be shown that the finding was not reasonably open on the evidence.[17] In the present case, the appellant would have had to show that no other conclusion was reasonably open ...
… Her Honour’s approach exemplifies the rigour with which arguments of this kind must be assessed, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.[18] As is now well-recognised,[19] diagnostic labels are, by themselves, of no assistance to a sentencing judge. What matters is what the expert evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.[20]
[16](2007) 16 VR 269, [25].
[17]See Lam v The Queen [2011] VSCA 140, [6].
[18]See, for example, DPP v Patterson [2009] VSCA 222, [46]; R v White [2009] VSCA 177, [13]–[17]; Romero v The Queen [2011] VSCA 45, [13]–[14].
[19]R v Robazzini [2010] VSCA 8, [42].
[20]Verdins (2007) 16 VR 269, [8]; R v Zander [2009] VSCA 10, [29].
While his Honour failed to explicitly mention that Dr Newton spoke of a ‘significant risk’ that imprisonment may lead to a deterioration of the appellant’s mental state, he explained in some detail the reasons why the appellant’s ‘relatively mild clinical depression’ was insufficient to require application of the sixth Verdins principle.
It was reasonably open to his Honour to consider that the sixth Verdins principle was not triggered, notwithstanding Dr Newton’s statement that the appellant ‘would be at significant risk of experiencing a deterioration in his mental state if he were to receive an immediate custodial disposition’. As was stated by his Honour, Dr Newton had diagnosed the appellant with a ‘relatively mild clinical depression’ and the appellant had (while suffering from clinical depression) shown the mental strength to overcome substance abuse and pathological gambling. It was thus reasonably open to his Honour to conclude that there was no ‘serious risk of imprisonment having a significant adverse effect on the appellant’s mental health’.
It was equally open to his Honour to refuse application of the fifth Verdins principle, especially given that, as he noted, no evidence of a more recent assessment of the appellant’s mental health was tendered or relied upon, apart from Dr Newton’s report based on a single consultation conducted three months prior to sentencing. In addition, his Honour noted that he would take into account the appellant’s mental impairment in assessing the appropriate sentence.
For those reasons, I would reject ground 2.
Ground 4
The appellant submitted that his sentence was manifestly excessive as his offending was not at the higher end of the spectrum of severity. He argued that ‘the charge related to a single day’ and there was no evidence that he possessed all of the necessary ingredients to manufacture an illicit substance. Moreover, the appellant submitted that the sentencing judge failed to give sufficient weight to his remorse, as expressed to Dr Newton and through his plea of guilty.
The respondent on the other hand submitted that the sentence imposed was well within the permissible range of sound discretionary judgment. His Honour gave careful consideration to matters of mitigation, and his rejection of the applicant’s expressions of remorse to Dr Newton was a finding open to him. The respondent further argued that specific deterrence was an important sentencing consideration, given the applicant’s relevant prior offending.
The respondent also argued that it was of little consequence that the applicant did not possess all ingredients necessary to produce methylamphetamine, since the gravamen of the offence was possession of the substances and equipment with the intention to manufacture a drug of dependence.
In her reasons for granting leave to appeal based on ground 4, Neave JA noted that she only did so because of the ‘close relationship between ground 2 and the complaint that the sentence was manifestly excessive having regard to the burden which imprisonment will impose on the applicant because of his mental state.’
The sentencing judge found that Dr Newton’s report was of limited use with regard to the appellant’s background history and motivation for his offending.[21]
In dealing with what you told [Mr Newton] about the ‘background’ to your current offending conduct Mr Newton reported that you expressed remorse for you behaviour and you said that you ‘viewed it as being part of the general mire into which [your] gambling and drug use had brought [you] at the end of [your] marriage’. I must say, I find that ‘background’ history, which you apparently gave Mr Newton by way of explanation for how you came to commit this offence on 2 December 2010, hard to reconcile with your assertions that you have been abstinent from illicit substances since about February 2010 and had not gambled since October 2009. I am not satisfied you gave Mr Newton a true or complete account of the background history of, or motivation for, this offence.
I also take into account in your favour your early plea of guilty. I take note of a character reference … provided by your parish priest. … I accept that you are capable of rehabilitation and that it is in the long term good of the community to facilitate that process. I regard your prospects of rehabilitation as reasonable.
I have endeavoured to structure a sentence to take into account your mental impairment and to facilitate your rehabilitation to the extent possible in light of competing sentencing objectives. I am required to punish you justly for your offending, to manifest the denunciation of this court of your offending conduct and to give proper weight to specific and general deterrence. In particular, I think significant weight must be given to general deterrence. On countless occasions, the courts have stressed the seriousness of drug offences and the extensive and harmful effects of the illicit drug trade on the community.
… I regard your moral culpability as high. I note that, although your conviction for trafficking in heroin was in 1997 when you were about 35 years of age, the sentence of imprisonment you received for that offending has not deterred you from committing this offence. Appropriate weight must also be accorded to deterring you from further offending of this kind.
[21]Reasons, [10], [16]-[18] (emphasis added).
Based on his Honour’s finding that he was not satisfied that the appellant had provided Dr Newton with a true account of his background history or motivation, it was reasonably open to his Honour not to accept the appellant’s expression of remorse.
As has been noted numerous times, the ground of manifest excess is notoriously difficult to make out. There are no statistics published in relation to sentences for this offence but counsel for the prosecution tendered a compilation of a number of previous sentences, or references to previous sentences, dating from 2000 to 2010, where there was a charge under the relevant provision and where the offender (with one exception) had pleaded guilty.[22] The materials compiled suggest that sentences imposed after a guilty plea have been commonly in the range of one year to three years’ imprisonment, with the highest sentence being five years’ imprisonment,[23] and the lowest being non-custodial dispositions.
[22]Exhibit entitled 'Section 71A Possession of Substances and Equipment with the Intention of Trafficking'.
[23]The five year sentence was in the matter of R v Chapman [2009] VCC (Unreported, Judge Lacava, 3 September 2009). The amounts there were very large and the accused was an older man with serious health problems and an ‘unblemished’ record. The judge in this case did not find that the accused derived substantial financial reward as a consequence of his activities. Note also that Whelan J in R v Horty Mokbel [2010] VSC 432 (a case not included in the compilation) was presented with the same compilation of cases and imposed a sentence of 6 years for the same offence. See [46]-[47].
It must be acknowledged that sentencing statistics are not an especially illuminating means of indicating the correct range of sentences reasonably open to a sentencing judge in any particular case and that caution should be exercised in relying on such data.[24] Moreover, a review of the table of comparative cases provided to the sentencing judge indicates that the sentence imposed did not fall outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion.
[24]DPP v Maynard [2009] VSCA 129, [35]; See too: DPP (Cth) v Milne [2001] VSCA 93, 13; R v Skuta [1998] VSCA 35, [22]; (Phillips JA, agreeing in the result with Winneke P and Kenny JA); Pavlic (1995) 83 A Crim R 13, 31; DPP v CPD (2009) 22 VR 533, 547 [57] (Maxwell P, Redlich JA and Robson AJA).
The appellant has not shown that the sentence imposed by the learned sentencing judge was manifestly excessive and fell outside the range reasonably available. Accordingly, this ground, too must fail.
For the foregoing reasons, I would refuse leave to appeal on grounds 1 and 3 and dismiss the appeal on grounds 2 and 4.
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