Karacic v The Queen

[2019] NSWCCA 195

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Karacic v R [2019] NSWCCA 195
Hearing dates:	2 August 2019
Date of orders:	19 August 2019
Decision date:	19 August 2019
Before:	Basten JA at [1]; Wright J at [3]; Wilson J at [4].
Decision:	(1) Extend the time in which to bring an application for leave to appeal until 5 December 2018. (2) Leave to appeal granted. (3) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Kaderavek v R [2018] NSWCCA 92 R v Henry (1996) NSWLR 346 R v Qutami (2001) 127 A Crim R 369
Category:	Principal judgment
Parties:	Tony Karacic (applicant) Director of Public Prosecutions (NSW) (respondent)
Representation:	Applicant in person D Patch for respondent
File Number(s):	2016/00099265
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 17 November 2017 Before: Her Honour Judge J Girdham SC File Number(s): 2016/00099265

Judgment

1. BASTEN JA: In circumstances fully recounted by Wilson J, the applicant was sentenced for two offences of armed robbery, following a trial and verdicts of guilty. While it is true that the applicant is unrepresented, the grounds of appeal simply fail to engage with the careful, well-reasoned judgment on sentence delivered by Girdham SC DCJ. As Wilson J demonstrates, there was no identifiable error in that judgment, nor was the sentence manifestly excessive.

2. I agree that the applicant should have an extension of time within which to seek leave to appeal. However, on its face this is a case in which leave to appeal should be refused. I am content to grant leave, but the appeal must, for the reasons given by Wilson J, be dismissed.

3. WRIGHT J: I agree with the orders proposed by Wilson J for the reasons that her Honour has given.

4. WILSON J: At the conclusion of his trial in September 2017 the applicant was found guilty by a jury of two counts contrary to s 97(2) of the Crimes Act 1900 (NSW) of robbery whilst armed with a dangerous weapon. Such an offence carries a maximum sentence of 25 years imprisonment.

5. On 17 November 2017 he was sentenced in the District Court by her Honour Judge Girdham SC to an aggregate term of imprisonment of six years and three months, with a non-parole period of four years and two months, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The indicative sentence for each count was a term of 6 years imprisonment.

6. The applicant now seeks leave to appeal against that sentence, out of time by a number of days, and advances five proposed grounds of appeal. Those grounds, as articulated, are: 

1. “The trial judge erred on backdating the sentence (Applicant effectively doing 4 years 10 months).

2. The trial judge erred on parity to other crimes of similar nature.

3. Evidence of Rehabilitation – Judge erred saying “prospects of rehabilitation poor”.

4. Judge erred on taking offenders criminal history for Armed Robbery in 2003 sentencing. The judge stated he received 4 years for 1 Armed Robbery when in fact it was 5 and 3 on form 1.

5. Sentence is manifestly excessive."

The Facts of the Offences

7. There is no dispute with the facts of the offences as found after trial by the trial judge.

8. Both of the crimes were committed on 6 February 2016 at a pharmacy at South Hurstville. The applicant entered the pharmacy and confronted a staff member, twenty year old Ms Spratt. His face was concealed and he was carrying what Ms Spratt believed to be a gun. She was frightened and immediately raised her hands, but the applicant told her, “No, safe”.

9. Ms Spratt could not access the pharmacy safe, so she went into the dispensary to the pharmacist, who was able to open it. She told the pharmacist, Mr Eskaros, “Open the safe, he has a gun”.

10. The applicant, who had followed Ms Spratt by a circuitous route through the pharmacy, taking money from a cash register as he passed it, told Mr Eskaros to open a door to the area in which the safe was located. Fearful for his safety, the pharmacist opened the door, and then the safe. The applicant took a quantity of drugs from the safe and loaded them into a bag he had. He then left the pharmacy.

11. The events inside the pharmacy were all captured on closed circuit security footage.

12. The applicant lived with his parents at an address situated just three minutes travel from the pharmacy. A neighbouring property to his parents’ home was fitted with security cameras, and footage recorded on the day of the robbery showed the applicant leaving his address just before the robbery, and returning there shortly after it.

13. When the applicant’s home was searched by police a quantity of drugs not readily available for purchase over the counter, and consistent with those stolen from the pharmacy, were found.

14. Five days after the robberies, on 11 February 2016, the applicant was stopped by police as he was driving a car. The car was searched and a shortened loaded firearm was found in the front passenger footwell, just under the seat. This was the firearm used in the robberies at the pharmacy, although the trial judge was satisfied that, even if loaded during the robberies, it had been rendered safe at that time.

15. The applicant was formally charged with the robberies on 1 April 2016.

The Evidence on Sentence

16. The Crown tendered the applicant’s criminal and custodial histories in its case on sentence.

17. Having been born on 10 October 1974 the applicant’s criminal history commenced when he was a child, with an entry against him in March 1990 for malicious damage. There is a similar entry from July 1991. On both occasions the Children’s Court imposed a recognisance without conviction.

18. In February 1993 the applicant was before the Local Court for possession of a prohibited drug, dealt with by way of conviction and fine. In May 1994 the applicant was sentenced in the District Court to a term of 2 years imprisonment to be served by way of periodic detention, for three counts of supplying a prohibited drug.

19. There were further drug offences, of cultivating, possessing, and using a prohibited drug in September 1995; together with offences of illegal use of a conveyance, and driving in a manner dangerous. The penalties imposed were fines, a recognisance, community service, and a disqualification from driving.

20. In April 1998 the applicant was sentenced for a number of summary offences, with which he had been convicted ex parte, having failed to appear before the Local Court the previous year. A mixture of fines, community service, and a recognisance was imposed upon him for a number of driving offences, including driving whilst disqualified, and breaching the recognisance imposed in 1995.

21. There were further driving offences in August 1998, again including a charge of driving whilst disqualified, together with a charge of taking and driving a motor vehicle. The short terms of imprisonment imposed at first instance were substituted on appeal with community service orders and a further recognisance, of 4 years duration, with a requirement that the applicant undertake drug related rehabilitation and counselling.

22. Further summary convictions followed: for possessing a restricted substance in June 1998; for trespassing on a boat in June 1999, larceny in September of that year; and another offence of driving whilst disqualified from October 2000.

23. In January 2002 the applicant received terms of imprisonment to be served by way of periodic detention for break enter and steal, driving whilst disqualified, and some traffic matters.

24. The applicant’s first convictions for robbery offences – five counts of robbery whilst armed with an offensive weapon, with a further two counts taken into account on sentence pursuant to s 33 of the Crimes (Sentencing Procedure) Act, together with further offences of take and drive (two counts), and aggravated car-jacking – were recorded in July 2003, with an overall sentence of 7 years imprisonment imposed. A further term of imprisonment was imposed upon the applicant in August 2003 for driving offences, and there was a further conviction for trespassing on a boat in June 2008.

25. In September 2009 the applicant was convicted and sentenced for an offence of robbery whilst armed with an offensive weapon, with a further two counts of attempting to commit that offence, and another offence of being armed with intent, taken into account on sentence pursuant to s 33 of the Crimes (Sentencing Procedure) Act. The applicant was sentenced to a term of 3 years and 6 months imprisonment, with a non-parole period of 2 years specified.

26. After serving his sentence, the applicant was again before the criminal courts, being dealt with in December 2013 for serious summary traffic offences and, (on appeal to the District Court against sentence imposed in the Local Court) for identity related fraud offences, in April 2014. He received a 15 month intensive corrections order (later revoked) and fines for these crimes. Some summary traffic offences were recorded from about this time until 2016, when the applicant was returned to prison for offences dealt with in June.

27. Also in June 2016 the applicant received sentences of imprisonment, of 6 months after being convicted of larceny; 10 months and some days for possessing a shortened firearm and an unauthorised firearm (the gun used in the present matter); and two counts of possessing implements. The sentences ran concurrently, with the longest sentences (for the firearm) seeing the applicant incarcerated from 11 February 2016 to 13 October 2016, and thereafter subject to parole until 3 January 2017.

28. The applicant did not give evidence in his case on sentence. He tendered a report from Sam Borenstein, clinical psychologist, prepared for the purposes of sentence on 5 November 2017.

29. The applicant gave Mr Borenstein a history, including an assertion that, at the time of the pharmacy robberies he had been under the influence of various illicit drugs, including Xanax and Valium at high doses, “ice” (or crystal methylamphetamine), and drugs prescribed to him, being Mogadon and methadone.

30. He said that all of the offences for which he had received sentences of imprisonment in the past, including driving offences, had been drug related, and gave an account of a history of drug use commencing at age 19 years, with marijuana. Soon after he began to use amphetamines and ecstasy “recreationally”; he began using heroin at age 22 years, initially by smoking the drug, but thereafter by injection.

31. Imprisoned after his first robbery convictions, the applicant said that he abstained from heroin then and for 12 months after release, but relapsed after the death from a heroin overdose of his brother, “self-medicating” on heroin and benzodiazepines. When his drug use was detected by the Parole Service he was prescribed methadone, and he reduced his heroin use. However, he began using crystal methylamphetamine.

32. The pharmacy robberies were committed, the applicant said, to feed his drug habit.

33. He claimed to have been very depressed leading up to the robberies, experiencing anxiety and panic attacks, and having thoughts about suicide. The benzodiazepines made him feel “numb”, and he said he had limited memory of the offences.

34. The applicant said that he had stopped using drugs since being remanded in custody. He told Mr Borenstein that he would not have committed the offences if not intoxicated by drugs, and he felt guilty and remorseful for them, expressing some understanding for the impact his crimes would have had on those held up at gun point.

35. As to his personal circumstances the applicant said that he was born in Sydney to parents of Croatian descent, one of four boys. He was materially supported in childhood, but felt his parents to be unemotional. A younger brother experienced drug induced psychosis, and the applicant’s eldest brother overdosed in April 2011. The applicant has occasionally lived in share accommodation, but has generally resided at home with family. His longest relationship lasted for about 3 years; his girlfriend was visiting him in prison as at the time of sentence.

36. The applicant had an unremarkable education, and played sport and interacted socially when at school. On leaving school after completing Year 10 he began an apprenticeship, intending to qualify as an electrician. He left after 2 and a half years, due to his escalating drug habit. The applicant worked occasionally in other unskilled jobs, including in his father’s carpentry business for a time.

37. Since entering prison most recently the applicant has been prescribed an anti-depressant following a psychiatric assessment, to good effect. He continues to use prescribed methadone. He has in the past (2011) undertaken the SMART Recovery Programme in custody.

38. Mr Borenstein administered a personality assessment, and assessed the level of depression and anxiety experienced by the applicant. He concluded that, whilst the applicant is cognitively intact and does not suffer from any psychiatric disorder, he was suffering from mild depression and anxiety. His impulsivity and addictive behaviour are consistent with the personality profile produced on testing.

39. Mr Borenstein concluded that the applicant had a Substance Abuse Disorder, in remission with incarceration. He regarded the applicant as “highly motivated” to undertake drug rehabilitation and counselling, and expressed the view that he would require intensive support to that end.

The Remarks on Sentence

40. The sentencing judge found the facts as set out above, at [8]-[15].

41. Her Honour set out in summary form the applicant’s criminal history, including his prior convictions for robbery, and the sentences imposed on 7 June 2016 for unlicensed possession of the shortened firearm that had been used in the robbery.

42. Referring to Mr Borenstein’s report, her Honour noted the history given by the applicant to the psychologist as to drug use, and his assertion that he had limited memory of the pharmacy robberies. She observed that, since going into custody, the applicant had told Mr Borenstein that he had “snapped … out of it” and had expressed some insight into the impact of his crimes on the victims. The sentencing judge also set out details of the applicant’s personal history, from the information contained in the psychological report, and she referred to Mr Borenstein’s conclusions.

43. Her Honour noted that the offending conduct consisted of two separate acts that occurred in the course of a single event, with each being of equal seriousness to the other. She found that there had been a degree of planning, requiring the applicant to secure a firearm and arm himself with it, and to adopt a means of concealing his face, apparently a pillowcase, but that the planning was no more than might be expected. Otherwise, the sentencing judge concluded that the offences were opportunistic, and their execution rather confused, consistent with an offender motivated by a desire to obtain drugs.

44. Notwithstanding the limited planning and confused execution, her Honour described the offences as presenting a “terrifying ordeal” for the victims, who had been confronted by a man wielding a gun. She (correctly) rejected a submission that the offences should be assessed as of lesser seriousness because the gun was not fired.

45. Referring to the guideline judgment of R v Henry (1996) NSWLR 346 at [162]-[165], the sentencing judge concluded that the applicant’s crimes were more serious than that outlined in Henry, approaching the mid-range of seriousness.

46. Her Honour observed that the applicant did not meet the profile of the offender referred to in Henry, being an older individual with a lengthy criminal history, including prior convictions for robbery offences. The judge accepted that the applicant’s motivation in committing his crimes was to obtain drugs, but noted that drug addiction did not mitigate the crimes. She accepted, however, that the applicant’s motivation could serve to highlight the impulsivity of the crimes, and point to the extent of the applicant’s incapacity to exercise judgment.

47. Despite the number of prior convictions for armed robbery and related crimes, her Honour did not treat the applicant’s record as an aggravating feature; she concluded that it operated to deny the applicant the leniency that might otherwise have been extended to him, and pointed to a requirement for specific deterrence.

48. Even though the applicant had entered pleas of not guilty, and gave no sworn evidence, her Honour was prepared to accept that he now accepted his guilt for the offences, and realised the effect that his actions would have had on the two victims. She accepted Mr Borenstein’s assessment that the applicant was both remorseful and contrite, and genuine in his expressed intention to rehabilitate himself from drug use. This was a factor that her Honour regarded as relevant to rehabilitation and the prospects of reoffending, and deserving of weight.

49. However, given the applicant’s “deep-rooted drug addiction and previous inability to commit to abstinence from … drugs” the sentencing judge was not satisfied that his prospects of rehabilitation were anything other than poor. She was, however, cognisant of the psychiatric treatment the applicant had accepted, his abstinence from drug use since entering custody, and his expressed desire to remain abstinent, observing,

Only if the offender keeps away from illicit drugs will his prospects of rehabilitation be enhanced and improved … that the offender recognises that much … bears favourably in his subjective case.

50. The applicant’s ongoing family support was referred to as a favourable feature of his subjective case, as was his expressed commitment to change. That commitment was recognised in a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act.

51. Her Honour was mindful of the principle of totality and the need for the sentence imposed to reflect the overall criminality. Whilst the sentences were to be served largely concurrently, a measure of accumulation (of three months) was imported to reflect the repetition of offending, and allowing for the discrete harm done to the second victim.

The Proposed Appeal

Ground 1: “The trial judge erred on backdating the sentence (Applicant effectively doing 4 years 10 months)”

52. In sentencing the applicant, the sentencing judge specified 12 October 2016 as the commencement date. That date was the day before the expiration of the non-parole period of the sentences imposed upon the applicant for his possession of a shortened firearm on 11 February 2016. The firearm was that used in the pharmacy robberies.

53. The applicant complains that, in determining the commencement date of the sentence imposed upon him for the pharmacy robberies, her Honour should have fixed upon the day he entered custody on arrest for the firearms offences, 12 February 2016. He contends that, as his possession of the shortened firearm on 11 February 2016 was “linked” to the robberies, and “part of the same event”, there should have been complete concurrence between the sentences imposed for the firearms offences and that imposed for the pharmacy robberies.

54. The commencement date of a sentence of imprisonment is governed by s 47 of the Crimes (Sentencing Procedure) Act, which provides,

47   Commencement of sentence

(1)   A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.

(2)   A court may direct that a sentence of imprisonment:

(a)   is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b)   commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

(3)   In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

(4)   The day specified in a direction under subsection (2) (b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:

(a)   will become entitled to be released from custody, or

(b)   will become eligible to be released on parole,

having regard to any other sentence of imprisonment to which the offender is subject.

(5)   A direction under subsection (2)(b) may not be made in relation to a sentence of imprisonment (or an aggregate sentence of imprisonment) imposed on an offender who is serving some other sentence of imprisonment by way of full-time detention if:

(a)   a non-parole period has been set for that other sentence, and

(b)   the non-parole period for that other sentence has expired, and

(c)   the offender is still in custody under that other sentence.

(6)   A sentence of imprisonment (or an aggregate sentence of imprisonment) starts at the beginning of the day on which it commences or is taken to have commenced and ends at the end of the day on which it expires.

55. (Section 71 applies to intensive correction orders and has no present relevance.)

56. Section 47 provides for a sentence to commence on the day on which it was imposed, unless the court directs otherwise, pursuant to s 47(2). Where a sentence is directed to commence prior to the date of its imposition, the determination of the commencement date is to be calculated by the court, applying relevant sentencing principles, and in compliance the requirements of the section: see Kaderavek v R [2018] NSWCCA 92 at [19].

57. In sentencing the applicant, and having determined to commence his sentence prior to the date upon which it was imposed, her Honour was obliged to comply with s 47(3) and take into account the time during which the applicant had been held in custody in relation to the pharmacy robberies; and to observe the requirements of s 47(4), which prohibited a commencement date after the date when the applicant would be admitted to parole for the firearms offences.

58. In commencing the sentence imposed upon the applicant on 12 October 2016 her Honour complied with the provisions of s 47.

59. The applicant had been in custody serving time referable to the robberies since 13 October 2016, and he was entitled to have the period from that date until the date of sentence taken into account, either by way of a back-dated commencement date (the preferable approach due to its transparency), or by a commensurate reduction in the sentence imposed. The commencement date of 12 October 2016 fixed by the sentencing judge complied with s 47(3); it also met the requirements of s 47(4), since it was not later than the date on which the applicant was to be admitted to parole for the firearms offences.

60. Although the firearm offences dealt with in the Local Court bore some relationship to the pharmacy robberies, in that the gun used to carry out the crimes was the same gun found in the applicant’s possession on 11 February 2016, that was the only commonality between the offences. The criminality of using a shortened firearm, being a dangerous weapon, to rob two pharmacy workers of a quantity of drugs on 6 February 2016 is both different to and separate from the criminality involved in possessing a shortened firearm when not authorised to do so on another occasion. Had her Honour backdated the sentence as the applicant contends she should have, the penalty imposed upon him in the Local Court would have been rendered nugatory, at least to some extent, including the penalty for the wholly unconnected offences of 11 February 2016 of possessing housebreaking implements, and possessing implements to enter a conveyance.

61. There was no proper basis for her Honour to have directed that the sentence she imposed for the pharmacy robberies commence on the same day as the sentences for the firearms offences and other offences commenced. No principle of sentencing required any other commencement date than that specified by the sentencing judge.

62. This ground is not made out.

Ground 2: “The trial judge erred on parity to other crimes of similar nature”

63. Although expressed by reference to the principle of parity, the applicant’s complaint is that the sentence imposed upon him was outside the appropriate sentencing range, as demonstrated by sentences imposed in other, comparable, cases.

64. The applicant did not elaborate on this ground in his written or oral submissions, and the Court was not referred to any other, similar, cases which could point to error in the exercise of the sentencing discretion.

65. This ground cannot be made out, although the overall complaint of an erroneously lengthy sentence will be addressed in a general sense when ground 5 is considered.

Ground 3: “Evidence of Rehabilitation – Judge erred saying “prospects of rehabilitation poor””

66. In sentencing the applicant the sentencing judge concluded that his prospects of rehabilitation were poor. The applicant complains that, although his criminal history is lengthy, the court’s adverse conclusion as to his future prospects was erroneous, as it failed to take into account his past history of compliance with parole and community service orders, and his present regime of work and study.

67. On the material before the sentencing court, the assessment made of the applicant’s prospects of rehabilitation was, in my view, well open. The applicant’s first recorded drug offence was committed in January 1993, and he has been regularly before the courts as a consequence of drug related crime since that time, plainly unable to abstain from drug use in the following two and a half decades, despite the intervention of the criminal courts.

68. By 1998 at the latest, the courts were actively endeavouring to assist the applicant with drug rehabilitation. A four year recognisance imposed upon him in December of that year required him to undertake counselling, and submit to urinalysis and the supervision of the Parole Service. The applicant breached that order within six months of its imposition. He continued to use drugs, and offend in that context.

69. Whilst it is true that the applicant has never had a parole or community service order revoked, that must be assessed against his frequent breaches of other sentencing orders, often by reoffending during their currency. The custodial history that was before the sentencing court established that the applicant has in the past breached recognisances, intensive corrections orders, and sentences of periodic detention, all directly relevant to an assessment of his prospects of rehabilitation.

70. In my view, her Honour was realistic in her assessment of the applicant’s future prospects as poor. The applicant’s recognition of having done harm to the pharmacy staff he robbed, and his expressed determination to remain drug free, were positive features recognised by the sentencing judge, but each fell to be assessed against the applicant’s long years as a committed drug user, and his previous failure to abstain from drug use.

71. Whilst the applicant’s engagement with employment and study since being sentenced is commendable, it was not a feature that applied at the time of sentence, and her Honour could not have had regard to it. Evidence of the applicant’s progress after sentence is irrelevant unless, error having been established, this Court moves to resentence the applicant. There was no error by the sentencing court with respect to this proposed ground.

Ground 4: “Judge erred on taking offenders criminal history for Armed Robbery in 2003 sentencing. The judge stated he received 4 years for 1 Armed Robbery when in fact it was 5 and 3 on a form 1”

72. No written or oral submissions were made in support of this ground and its meaning is somewhat obscure. It may be based on a misunderstanding of what the sentencing judge said when sentencing the applicant.

73. Her Honour did not record the applicant as having received a four year term of imprisonment for one offence of armed robbery. The only reference to “four years” made by the sentencing judge was to a period the applicant had spent in custody, followed by a year of asserted abstinence from drugs in the community. Her Honour’s remark as to the period in custody is borne out by the applicant’s criminal history, which records an overall cumulative non-parole period of four years imposed upon the applicant in July 2003 by the District Court, for offences of armed robbery (five counts, with a further two counts taken into account), two counts of take and drive, and aggravated carjacking, which saw him incarcerated between 25 January 2002 and 23 January 2006.

74. There is nothing in the sentencing judgment indicative of error in the treatment of the applicant’s criminal history. Although it was open to her Honour to regard the applicant’s criminal history as an aggravating feature pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, favourably to the applicant, she specifically disavowed that approach. The applicant’s criminal history was treated as a feature which operated to deny him the leniency that might have been extended to him in other circumstances, and as being relevant to the need for the sentence imposed to deter the applicant from future crime. That approach was entirely proper.

75. No error has been established.

Ground 5: “Sentence is manifestly excessive”

76. The applicant complains that the aggregate sentence imposed upon him for two counts of robbery whilst armed with a dangerous weapon is manifestly excessive. No submissions were made in support of this ground.

77. The first observation to be made when assessing this complaint is that the two offences for which the applicant was sentenced each carried a maximum penalty of 25 years imprisonment. The second is that the applicant has a lengthy criminal history, including numerous convictions for dishonesty offences, and prior convictions for robbery whilst armed with an offensive weapon. The third is that his subjective case was extremely limited, based as it was largely on the hearsay account he gave to Mr Borenstein (see generally R v Qutami (2001) 127 A Crim R 369 at [58]-[59]).

78. Of further relevance is the finding of special circumstances made in the applicant’s favour, which led to a reduced non-parole period from that which would ordinarily apply (a term of 4 years and 8 months had the usual statutory ratio been applied).

79. These features suggest that the sentence imposed upon the applicant was a modest one, particularly in circumstances where, the matter having proceeded to trial, he was not entitled to any reduction to reflect the utilitarian value of a plea of guilty.

80. In fixing the term of the sentence imposed, her Honour was cognisant of, and had proper regard to, all relevant principles of sentencing law, and she specifically referred to the guideline judgment.

81. The crimes were serious, involving as they did the use of a functional firearm to hold up pharmacy staff so that drugs could be taken, with the likelihood inherent in such offences of lasting consequences for the victims. The applicant received the benefit of a number of favourable findings, including an acceptance – despite his pleas of not guilty and insistence of innocence until just prior to sentence – that he was remorseful for his crimes.

82. The sentence imposed was, in my view, very much towards the lower end of the available sentencing range. It could not be characterised as manifestly excessive. This ground too must fail.

Proposed orders

83. The application for leave to appeal was filed out of time, although only by a matter of days. Whilst the applicant did not provide any explanation for the failure to observe the timetable fixed by the Registrar, it is not difficult to conclude that the lack of any legal assistance to him was a material factor in the delay. I would extend the time in which the application was to be filed until 5 December 2018 and, although I would grant leave to the unrepresented applicant to appeal against his sentence, I would dismiss the appeal. The orders I propose are:

1. Extend the time in which to bring an application for leave to appeal until 5 December 2018.

2. Leave to appeal granted.

3. Appeal dismissed.

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Decision last updated: 19 August 2019