Leishman v The Queen
[2019] VSCA 270
•21 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0256
| DARCY THOMAS LEISHMAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ, WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2019 |
| DATE OF JUDGMENT: | 21 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 270 |
| SENTENCE APPEALED FROM: | DPP v Leishman [2018] VCC 1137 (Judge Smallwood) |
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CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty to carjacking, negligently causing serious injury, intentionally causing serious injury and related summary charges – Two victims – Applicant has substantial criminal history – History of social disadvantage – Sentence six years’ imprisonment with non-parole period four years – Whether sentence manifestly excessive – Leave to appeal refused – Bugmy v The Queen (2013) 249 CLR 571, Veen v The Queen (No 2) (1988) 164 CLR 465 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Tehan QC with Mr G J F Chisholm | Kurnai Legal Practice |
| For the Respondent | Ms R L Harper | John Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WHELAN JA
PRIEST JA:
Sentence and ground of appeal
On 25 July 2018, the applicant, aged 25 years,[1] pleaded guilty in the County Court to carjacking[2] (charge 1), negligently causing serious injury[3] (charge 2) and intentionally causing injury[4] (charge 3), and to the related summary offences of unlicensed driving,[5] trespass,[6] refusing a preliminary breath test[7] and committing an indictable offence whilst on bail.[8] Following a plea, the judge sentenced the applicant that same day to a total effective sentence of six years’ imprisonment, with a non-parole period of four years.
[1]His date of birth is 28 January 1993.
[2]Crimes Act 1958, s 79. The maximum penalty is 15 years’ imprisonment.
[3]Crimes Act 1958, s 24. The maximum penalty is 10 years’ imprisonment.
[4]Crimes Act 1958, s 18. The maximum penalty is 10 years’ imprisonment.
[5]Road Safety Act 1958, s 18. The maximum penalty is 25 penalty units or three months’ imprisonment.
[6]Summary Offences Act 1958, s 9(1)(e). The maximum penalty is 25 penalty units or six months’ imprisonment.
[7]Road Safety Act 1958, s 49(1)(c). The maximum penalty is 120 penalty units or 12 months’ imprisonment.
[8]Bail Act 1977, s 30B. The maximum penalty is 30 penalty units or three months’ imprisonment.
The applicant admitted prior convictions, including multiple findings of guilt and convictions in the Children’s Court for a wide variety of offences such as recklessly causing injury; unlawful assault; threatening to cause serious injury; burglary; theft; theft of a motor vehicle; tampering with a motor vehicle; going equipped to steal; handling stolen goods; retaining stolen goods; dealing with the proceeds of crime; criminal damage; failing to answer bail; possessing cannabis; and driving offences. On 19 November 2013, he was sentenced to six months’ imprisonment for making a threat to kill; making a threat to cause serious injury; stalking; using a carriage service to menace; and theft. Very significantly, in the County Court on 3 June 2011, he had been sentenced to a total effective sentence of five years’ imprisonment, with a non-parole period of two years and six months, for intentionally causing serious injury and armed robbery.[9]
[9]The circumstances of that offending are summarised at [23] below.
It is convenient to set out the individual sentences imposed, the orders for cumulation and associated orders, in tabular form:
Charge Offence Sentence Cumulation 1 Carjacking 4 years Base 2 Negligently causing serious injury 3 years 12 months 3 Intentionally causing injury 2 years 12 months Related summary offences 5 Unlicensed driving 1 month — 6 Trespass 1 month — 10 Refusing preliminary breath test 1 month — 11 Committing an indictable offence on bail 1 month — Total effective sentence 6 years’ imprisonment Non-parole period 4 years’ imprisonment Pre-sentence detention 223 days Section 6AAA declaration 9 years’ imprisonment, with 6 years non-parole Other orders Driver’s licence cancelled, disqualified 4 years
The applicant now seeks leave to appeal against sentence on the following ground:
1. The Learned Sentencing Judge erred in sentencing the Applicant by imposing a manifestly excessive sentence.
Particulars
i.The sentencing judge imposed a sentence more appropriate to aggravated carjacking as opposed to the offence of carjacking that the applicant fell to be sentenced for on charge 1;
ii.The sentencing judge failed to take into account the degree of negligence exhibited by the applicant, when assessing the gravity of charge 2, and only had reference to the injury caused;
and
iii.The sentencing judge failed to give due weight to the Verdins principles, when the sentencing judge rejected the applicant’s new diagnosis of posttraumatic stress disorder.[10]
[10]The applicant’s counsel abandoned reliance on this third particular.
For the following reasons, the application must be refused.
The offending
At the time of offending, the applicant, then aged 24, was on bail for unrelated driving offences. He left the Moe Police Station, located on Anzac Street, Moe, at about 2.25 pm on 14 September 2017. At that time, Novita Gilmour was sitting in her partner’s blue Holden Commodore wagon in the Woolworths parking bay opposite the police station. (Her partner had gone into Woolworths to purchase milk.) The car keys were left in the ignition so that Ms Gilmour could listen to the radio while she waited.
The applicant walked to the driver’s side door of the motor vehicle and stood there for 30 seconds or so before opening the door. Ms Gilmour asked the applicant what he was doing. As he sat down in the driver’s seat, the applicant said, ‘be quiet, shut up’. Ms Gilmour attempted to unfasten her seatbelt and was able to release it. The applicant, who did not hold a driver’s license, started the ignition of the motor vehicle and began to drive it (summary charge – unlicensed driving). Ms Gilmour, who was very scared and in fear for her life, screamed for help and opened the passenger side door. She jumped out of the vehicle and landed on the hard paved parking area. The applicant continued to drive[11] and one of the vehicle’s tyres ran over Ms Gilmour’s left ankle (charge 1 – carjacking; charge 2 – negligently causing serious injury; and related summary charge 11 – committing an indictable offence whilst on bail).
[11]Consistently with the written Summary of Prosecution Opening, the prosecutor opened orally that Ms Gilmour ‘jumped out of the vehicle, landed on the hard paved parking area and the car continued to drive and the tyre ran over her left ankle’. In the course of the plea, however, counsel for the applicant seemed to suggest that the injury to Ms Gilmour was caused when the applicant ‘reversed [the vehicle] out of a car park’ whilst Ms Gilmour was ‘exiting the vehicle’.
While Ms Gilmour lay on the road screaming for help, the applicant continued to drive the motor vehicle north along Anzac Street. Ms Gilmour felt extreme pain in her left ankle. Emergency services arrived and conveyed her to the Latrobe Regional Hospital where it was found she had an open fracture of the left medial malleolus, bruising on the left ankle and grazing on her left calf and ankle.
The applicant meanwhile had driven to the intersection of Waterloo Road and Mervyn Street, Moe, where he absconded, leaving the car on the side of the road.
At approximately 3.30 pm, the applicant entered a property at 98 Service Road, Moe, pulling his hooded jumper over his head. He walked to the side of the house, then to the front door, and then left the property. The applicant then loitered in the area before entering a property on Alexander Road, Moe, the address of Stuart Hansen, who was at home (summary charge – trespass). The applicant attempted to put his own key into the front door but was unable to open the door. Mr Hansen opened the front door and asked, ‘can I help you?’. The applicant replied, ‘sorry mate, I thought it was my place’. Thinking that something was wrong, Mr Hansen told the applicant that they should go and speak with a number of onlookers standing near the front of Mr Hansen’s house. The applicant handed Mr Hansen his key. Mr Hansen believed that the applicant was not making any sense and told him that he was going to place him under ‘citizen’s arrest’. Mr Hansen then attempted to telephone emergency services, apparently causing the applicant to punch Mr Hansen to the nose at least three times (charge 3 – intentionally causing injury), which resulted in Mr Hansen falling to the road. He was assisted by the people standing near his house and the applicant absconded. Emergency services attended and took Mr Hansen to hospital. Mr Hansen was found to have fractures of his nasal bones and the bilateral process of maxilla, and a 20 millimetre laceration to his upper left lip.
Police officers sighted the applicant at the intersection of Lloyd Street and Parkside Drive at approximately 3.40 pm. They arrested the applicant and took him to the Moe Police Station. Whilst at Moe Police Station, the applicant was requested to undertake a preliminary breath test. The applicant refused (summary charge — refusing a preliminary breath test). A Mental Health Clinician subsequently assessed the applicant as being unfit to be interviewed.
The applicant’s submissions
In support of the proposed ground of appeal, counsel for the applicant submitted in writing that the sentence imposed on charge 1, carjacking, was ‘a sentence more appropriate to aggravated carjacking’.[12] It was submitted that ‘the applicant’s offending was spontaneous, involved a minimal threat of force, and no actual physical force applied to the victim’. Using sentences imposed for ‘street robberies’ as a means of comparison, counsel argued that the sentence of four years’ imprisonment imposed for carjacking ‘fell outside the range of sentences available for this type of offending’.[13]
[12]See Crimes Act 1958, s 79A.
[13]In supplementary written submissions, counsel relied by way of analogy on this Court’s decision in DPP v O’Brien [2019] VSCA 254, in which it was held that the principles informing the imposition of sentences for aggravated burglary were directly relevant to sentencing for the new offence of home invasion.
With respect to the sentence imposed for negligently causing serious injury (charge 2), counsel for the applicant submitted that the sentencing judge failed to have regard to the degree of the applicant’s negligence, so that the sentencing discretion miscarried. Counsel submitted that the applicant’s negligence was of a ‘lesser order’ since it was of short duration, and was constituted by him continuing to drive after the victim jumped out of the vehicle and until her ankle was run over. It was submitted that it was the applicant’s failure to stop that was negligent, and not any other aspect of his driving (such as, for example, excessive speed, driving on the wrong side of the road, or disobeying a red light). The applicant’s counsel contended that the sentencing judge put too much weight on the injury caused. Had proper consideration been given to the ‘fundamental gravity’ of the offence — the degree of negligence — the applicant’s offence ‘should have been characterised as at the lower end of the scale’.
Analysis
In support of the submission that the sentence imposed on the applicant for carjacking was out of step with the kinds of sentences imposed for ‘street robberies’, counsel for the applicant drew attention to sentences imposed in two cases[14] and to some statistics.[15]
[14]R v Phan [2009] VSCA 3; Osman v The Queen [2015] VSCA 308.
[15]Sentencing Advisory Council, Sentencing Snapshot No 185: Sentencing Trends for Robbery in the Higher Courts of Victoria, 2010-11 to 2014-15 (June 2016), 3.
Even if one were to assume in the applicant’s favour that some limited guidance as to appropriate sentencing standards for carjacking might be derived from sentences imposed for ‘street robberies’, we are unable to see that the sentence imposed for carjacking in this case is out of kilter with sentences imposed in the general run of ‘street robbery’ cases.[16] Robbery is an offence which encompasses a very broad range of conduct. It is concerned not simply with the unlawful acquisition of another’s property, but also violence (or the threat of violence) — the degree of which can widely vary — against others. Moreover, the methods involved in its commission vary widely; so, too, the nature and vulnerability of its victims. Thus, by way of example, robberies committed against defenceless, isolated individuals in the streets late at night are a particularly serious form of offence, generally calling for stern punishment.
[16]Insofar as there is any utility in statistics, Sentencing Advisory Council statistics relating to sentences for robbery in the higher courts in the period between 1 July 2013 to 30 June 2018 show that 10.3 per cent of cases attracted sentences between three and four years’ imprisonment, 7.5 per cent of the sentences being greater than four yeras.
In any event, it is axiomatic that every sentence must be the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. The selection of a sentence in any given case involves the exercise of judicial discretion which is informed by the nature of, and circumstances in which, the offence was committed; and by the character, antecedents and circumstances of the offender.[17]
[17]Zhuang, 292-3 [30]–[31].
In this Court, counsel for the applicant abandoned any reliance on the judge’s supposed failure properly to apply Verdins[18] principles, relative to the applicant’s suggested post-traumatic stress disorder. It is to be noted, however, that the judge in his sentencing remarks said that he accepted that the applicant suffered from depression and anxiety, which were ‘ongoing difficulties’, and that he was ‘psychologically fragile’. The judge, who had sentenced the applicant in 2011 for intentionally causing serious injury and armed robbery, also made the following observations about the applicant’s deprived background:
Your history is unfortunate indeed. As I have sentenced you before [sic], you participated in Koori Court, as I have said during the course of the plea. When you were in Koori Court some years ago, you participated with a lot of courage and you were dealt with by the elders and you faced the elders and you were able to acknowledge what you had done. I had high hopes for how you would be able to deal with the rest of your life after that even though I had to impose a significant sentence.
Your background can be put in simple terms. You were born in Queensland and you were raised with a stepbrother and older sister. You have a younger sister, and between the age of three and 15, you only had telephone contact with your father. I understand you now have some contact with your stepfather. Your mother did not work and was apparently heavily drug dependent.
You were beaten as a child; repeatedly, it would seem. And at the age of 12 you were on the streets. You said you wanted to leave in any event. You, by the age of 12, were simply surviving. You stayed with your boxing coach for a small time before you were placed in foster care. You were then in care for an extended period of time; it is a bit hard to work out quite [what] went on with all that but I accept that you have been put in those positions, put in residential unit and the like, and in my experience, residential units at Traralgon or wherever they might be do not produce well-balanced adults and that is for sure.
Your mother apparently stopped using drugs after she was incarcerated. You then ran away from home again after an assault, went up to Deniliquin, and were there in touch with your – whether it was your father or your stepfather, I cannot quite work out.
At the time of that last hearing with you, there were people who were endeavouring to assist you and an Aboriginal elder who you had lived with. People spoke on your behalf. Nicki Le Sage who knew you well, who I know well, spoke very well on your behalf and, as I said, there were high hopes held.
[18]R v Verdins (2007) 16 VR 269.
In our view, the contention that the sentence imposed is manifestly excessive cannot be accepted. Indeed, we regard the individual sentences on the charges of carjacking and negligently causing serious injury (and, for that matter, the charge of intentionally causing injury), and the orders for cumulation between those sentences, to be modest, and the total effective sentence thereby produced to be moderate. Similarly, we regard the non-parole period imposed to be unexceptionable. We consider that, having regard to the nature of the applicant’s offending, and his criminal history, the moderate nature of the sentence can only be explained by the judge having given effect to the mitigating features of the case; and in particular, the applicant’s deprived background.[19] As to that, we note that in his reasons for sentence the judge acknowledged the ‘number of significant matters’ in mitigation put on behalf of the applicant. The judge said that he was ‘well aware of the principles in Bugmy in terms of disadvantaged backgrounds’; and he stated that he accepted ‘totally’ that a background such as the applicant’s, and ‘the Koori aspects of being dislocated and the violence’, are ‘things that one does not get over in five minutes’.[20]
[19]Bugmy v The Queen (2013) 249 CLR 571, 592–3 [37], 594–5 [42]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
[20]See [24] below.
Notwithstanding his deprived background, the applicant’s criminal record remains highly relevant. Although the applicant is not to be punished again for his prior offending, his very poor criminal antecedents are relevant in a number of ways: as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[21] Indeed, the High Court made clear in Veen [No 2][22] that, although the applicant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant
to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
[21]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).
[22]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen [No 2]’). See also R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA); Bugmy, 595 [45].
Veen [No 2] involved the sentence imposed in a case in which, in 1983, the appellant had stabbed a man repeatedly with a bread knife. He pleaded guilty to manslaughter on the basis of diminished responsibility and was sentenced to life imprisonment. Ultimately, in his appeal to the High Court, the Court took into account not only the bare fact of his previous convictions, but also the factual circumstances underpinning his previous acts of violence. Thus, in 1971, when almost 16, Veen had stabbed himself in the chest with a knife (puncturing a lung), after he had been taken to a police station. (He was not charged in relation to this incident.) Later in that year, Veen stabbed his boarding-house landlady three times in the chest and once in the back, after she had tried to get him to go to bed. He was convicted of malicious wounding in the Children’s Court and committed to an institution. A few years later, in 1975, when Veen was aged 20 and working as a prostitute, he stabbed a man to death after the deceased refused him payment.[23] A jury convicted him of manslaughter, the case eventually reaching the High Court. On that occasion his original sentence of life imprisonment was quashed, and the High Court substituted a sentence of 12 years’ imprisonment.[24]
[23]Veen [No 2], 468.
Veen’s life was a ‘sorry story’. He was Aboriginal and had been given to non-Aboriginal foster parents at the age of two and a half years. His childhood was ‘disturbed’, and he was removed from his foster parents’ care. A male teacher sexually molested him and he had poor academic performance. He had abused alcohol, leading to brain damage. Notwithstanding Veen’s deprived background, the High Court did not disturb the sentence imposed at first instance. Upholding the life sentence imposed upon him, the majority observed that, the ‘tragedy of Veen’s life, which … must excite sympathy for him, has to be balanced against the exigencies of the criminal law especially the protection of society’.[25]
[25]Veen [No 2], 478.
More recently, in Bugmy, the High Court observed that an inability to control violent responses to frustration, borne of an exposure to violence and substance abuse, may increase the importance of community protection as a feature in sentencing:[26]
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[27] An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
[26]Bugmy, 595 [44] (citations as in original).
[27]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.
As has been mentioned, the sentencing judge had, on 3 June 2011, previously sentenced the applicant to be imprisoned for intentionally causing serious injury and armed robbery.[28] The circumstances of that offending were very disturbing. Two days after his eighteenth birthday, the applicant encountered his intellectually disabled victim (who was previously unknown to him) in a shopping centre in Morwell. The applicant demanded money from the victim, and, when he refused, the applicant stabbed his hapless victim with a knife. Having then walked the victim to an ATM, the applicant demanded that the victim withdraw money, otherwise the applicant would stab him again. After the victim withdrew $400 and handed it over, the applicant gratuitously stabbed him several more times to the chest and abdomen, hit him in the face with his hand and threw a rock at his head, causing the victim to fall unconscious. After regaining consciousness, the victim flagged down a motorist, and help was eventually obtained from police and ambulance. The victim was flown to the Royal Melbourne Hospital for emergency surgery. He had suffered eight stab wounds to his abdomen — including one which penetrated the left lobe of his liver and two which lacerated his small bowel — together with a cut to his lip and a fracture of his left wrist. The victim then spent ten days in hospital.
[28]DPP v Pearson [2011] VCC 688. (The applicant then went by a different surname.)
In the instant case, in his reasons for sentence the judge — perhaps somewhat benevolently — characterised the applicant’s prospects of rehabilitation as ‘guarded’. His Honour also observed:
The offending has to be, in my view, regarded as serious. It clearly calls for the application of general deterrence [and in] your situation, specific deterrence. Denunciation is important, as well as punishment and, in your situation, albeit such a young age of 25, with the way in which you have conducted yourself in very serious ways, there has to be an element of community protection involved in all this.
And, in a passage to which we have previously adverted,[29] added:
… You, as I have said, are still a young person and your counsel has pointed out a number of significant matters on your behalf, well aware of the principles in Bugmy in terms of disadvantaged backgrounds and I accept totally that with a background such as yours and the dislocation, the Koori aspects of being dislocated and the violence are things that one does not get over in five minutes.
However, the situation is that there must be an element of community protection in all this ...
[29]See [18] above.
As the judge recognised, general and specific deterrence, denunciation, just punishment and protection of the community all needed to be given full weight when imposing sentence on the applicant. The applicant’s offending relevant to the first and second charges was breathtaking in its brazenness. For him to have stolen the vehicle with Ms Gilmour inside, in broad daylight and in sight of a police station, is nothing short of outrageous. And to have then driven the car, when he must have known that Ms Gilmour — having thrown herself from the vehicle — was in close proximity to it and risked serious injury from it if he continued to drive, made the applicant’s a very serious example of the offence of negligently causing serious injury. Plainly, his crimes have had, and will continue to have, a profound deleterious effect on Ms Gilmour.
In her victim impact statement, Ms Gilmour said:
When this man came into the car and I realised he was not a friend of my boyfriend, I felt fear like I have never felt before. While I am writing this the memory has made me break into a sweat which I can’t control. ... It all happened so quickly and when the man tried to start the car I opened the car door very wide to call for help but no-one came. In my panic I couldn’t undo my seatbelt. When I finally got out of the seatbelt I jumped from the car which was by then moving. The back wheel ran over my left foot and the man drove off in my boyfriend’s car. I was in such shock that at first I didn’t feel too much pain. Police and an ambulance came and I was taken to hospital.
Since then I have had two surgeries on my foot which was broken. The first operation put four screws in my foot. In the second operation two screws were removed and I still have two screws and my foot has still not healed properly. My specialist surgeon says that in 12 months if my foot still doesn’t feel right, I might need another operation to remove the screws that are left. I have a limp and my foot is sore and doesn’t feel right. I have constant pain in my foot and take strong pain medication. I feel the pain more at night when I am trying to sleep and get sharp pains in my foot every day. I know something is not right and have told my doctor and my surgeon.
The biggest problem I have since this happened is anxiety. I have panic attacks now and break into a sweat when I talk about what happened. I feel frightened when I see men wearing a hoodie, as the man who did this to me was wearing a hoodie. I don’t sleep well at night – I have nightmares and I take medication to help me sleep. I have lost my appetite and have lost weight. I see a psychologist and my doctor regularly to help me with my anxiety and panic attacks.
Further, although the injuries to Mr Hansen may not now satisfy the definition of ‘serious injury’,[30] they were far from trivial, and the applicant’s attack upon him has had a significant impact on his health and well-being. In his reasons for sentence, the judge described the effect on Mr Hansen as follows:
[Mr Hansen] whose nose and face you broke pointed out that he still suffers from headaches and neck and shoulder, breathing difficulties, upper jaw discomfort and problems with sensitivity in his teeth. He says that every day is just an endless battle with just simple tasks. He does not go outside much anymore and does not interact with friends or family. Sleeping has become difficult.
He said his life has taken a downhill slide ever since and he just wants to shut himself away from it all and try to make any sense and question everything he does. He says that he is now trying to get psychological and professional assistance for all this but clearly, whatever there may have been in terms of pre-existing conditions, your totally unprovoked assault on a person who is, in all probability, just simply endeavouring to help you is inexcusable and serious.
[30]See Crimes Act 1958, s 15. See also Phillips v The Queen; Liszczak v The Queen [2017] VSCA 313.
Having regard to the very serious nature of the applicant’s offending and his criminal antecedents, and paying due regard to the social disadvantage he has suffered, his contention that the sentence imposed upon him is manifestly excessive is without substance.
The application for leave to appeal against sentence must be refused.
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