Lind v The King
[2025] VSCA 110
•23 May 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2025 0013 |
| JAMES LIND | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BOYCE JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 May 2025 |
| DATE OF JUDGMENT: | 23 May 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 110 |
| JUDGMENT APPEALED FROM: | DPP v Lind (County Court of Victoria, Judge Meredith, 17 December 2024) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Aggravated burglary – Intentionally causing injury – Theft – Handling stolen goods – Whether sentences manifestly excessive – Not reasonably arguable that sentences manifestly excessive – Application for leave to appeal refused.
Hogarth v The Queen (2012) 37 VR 658; DPP v Meyers (2014) 44 VR 486, referred to.
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| Counsel | ||
| Applicants: | Mr C Hooper | |
| Respondent: | Mr J Shaw with Ms G Tweedy | |
Solicitors | ||
| Applicants: | James Dowsley & Associates | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
BOYCE JA:
Introduction
The applicant pleaded guilty in the County Court to charges contained in two indictments. The charged offending referable to indictment C2315964.1A (the ‘first indictment’) was committed on 13 October 2022. Indictment N12397227.1 (the ‘second indictment’) related to offending committed on 4 November 2022. The applicant was sentenced on 17 December 2024 as follows.
Charge
Offence
Maximum
Sentence
Cumulation
Indictment C2315964.1A 1 Aggravated burglary[1] 25 years 6 years Base 2 Intentionally causing injury[2] 10 years 2 years 6 months 3 Intentionally causing injury[3] 10 years 2 years 8 months 4 Theft[4] 10 years 3 months Nil 5 Handling stolen goods[5] 15 years 6 months Nil Total Effective Sentence: 7 years and 2 months’ imprisonment [1]Contrary to s 77 of the Crimes Act 1958.
[2]Contrary to s 18 of the Crimes Act 1958.
[3]Contrary to s 18 of the Crimes Act 1958.
[4]Contrary to s 74 of the Crimes Act 1958.
[5]Contrary to s 88 of the Crimes Act 1958.
Charge
Offence
Maximum
Sentence
Cumulation
Indictment N12397227.1 1 Prohibited person carrying an imitation firearm[6] 10 years 2 years Nil 2 Common law assault 5 years 18 months 6 months 3 Common law assault 5 years 18 months 6 months 4 Common law assault 5 years 18 months 6 months 5 Threat to destroy property[7] 5 years 18 months 6 months 6 Theft[8] 10 years 1 month Nil 7 Theft[9] 10 years 3 months Nil 8 Reckless conduct endangering serious injury[10] 5 years 2 years 8 months 9 Possession of a drug of dependence[11] 5 years 1 month Nil 10 Carrying firearm while committing an indictable offence[12] 5 years 2 years Base Total Effective Sentence: 4 years and 8 months’ imprisonment Other Orders: 2 years of sentence imposed on Indictment N12397227.1 to be served cumulatively on the sentence imposed on Indictment C2315964.1A. [6]Contrary to s 5AB(2) of the Control of Weapons Act 1990.
[7]Contrary to s 198(a) of the Crimes Act 1958.
[8]Contrary to s 74 of the Crimes Act 1958.
[9]Contrary to s 74 of the Crimes Act 1958.
[10]Contrary to s 23 of the Crimes Act 1958.
[11]Contrary to s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act 1981.
[12]Contrary to s 31A of the Crimes Act 1958.
Global Total Effective Sentence: 9 years and 2 months’ imprisonment Non-Parole Period: 6 years and 6 months Pre-Sentence Detention Declaration pursuant to s 18(1) of the Sentencing Act 1991: 773 days Section 6AAA Statement: 12 years’ imprisonment with a non-parole period of 8 years Other Relevant Orders: Licence cancellation and disqualification order (3-year duration); forfeiture order; disposal order
The applicant seeks leave to appeal against sentence. His proposed ground of appeal states that ‘the sentence imposed was manifestly excessive’. The ‘Particulars’ described in the applicant’s notice of appeal make it clear that the sentence appealed against is the period of 7 years and 2 months’ imprisonment imposed in respect of the first indictment.
I do not consider it to be reasonably arguable that the sentences imposed on the first indictment are manifestly excessive. I would therefore refuse the application for leave to appeal. My reasons are as follows.
Offending
To assess the merits of the applicant’s proposed ground of appeal it is necessary to understand the nature of the applicant’s offending covered by each indictment.
First indictment
In the early hours of the morning of 13 October 2022 the applicant and his co-offender went to an apartment rented by the female complainant. They were both armed with crowbars. The complainant and her male partner were inside the apartment. The male partner was asleep in the living room. The female complainant was in bed. The co-offender and the complainant were acquaintances. The co-offender’s wife had accused the complainant of stealing her bracelet. This, or some other disagreement between the co-offender and the female complainant, was the apparent reason for the attendance.
A mutual friend of the complainant, and the complainant’s partner, were also at the apartment. The friend exited the apartment when the applicant and co-offender were outside. The friend saw the applicant and co-offender; they were trying to lift the friend’s electric scooter off the balcony of the apartment.
The applicant and co-offender confronted the mutual friend near to the front door of the apartment. The applicant and the co-offender were dressed in dark clothing and were wearing full face masks. There was a scuffle. The co-offender hit the mutual friend with a crowbar to the right upper lateral side, and back, of his head. The friend was also hit to the right side of his ribs. The co-offender struck the mutual friend at least seven times. The applicant admitted that he was complicit in this attack.[13]
[13]More particularly, in submissions filed by the applicant, he accepted that he offered ‘at least intentional assistance or encouragement to the co-offender in respect of charge 2’.
The mutual friend suffered bruising and wounds to various parts of his body. He sustained injuries to his head and arm requiring medical treatment in hospital. He received two sutures due to a laceration caused to his left forearm, as well as three sutures for a laceration to the back of his head (charge 2 — causing injury intentionally). A victim impact statement was tendered in which the mutual friend described the profound effect that this beating had had upon him.
The female complainant heard this attack taking place. She tried to wake up her partner. The applicant entered the apartment after pushing past both the co-offender and the mutual friend. At the point of entry, the applicant was armed with a crowbar and intended to commit an offence involving an assault (charge 1 — aggravated burglary).
Once inside, the applicant assaulted the complainant’s partner, who was asleep on the living room floor. The applicant hit the partner with the crowbar. The complainant stood with her partner while the applicant struck the partner with the crowbar to his head, face and hands. The applicant made demands for cash, as he struck the partner. The complainant’s partner suffered bruising and wounds to various parts of his body. He suffered lacerations and bruising to his face and upper body, as well as a fracture to his right wrist. The complainant’s partner was treated in hospital where he received suturing to his left cheek and right hand (charge 3 — causing injury intentionally).
The applicant stole a mobile phone that belonged to the complainant’s partner (charge 4 — theft).
Ultimately, the complainant’s partner managed to obtain control of the crowbar and fight back. The complainant screamed and was crouching in the bedroom while her partner and the mutual friend managed to chase the applicant and co-offender away from the apartment.
The stolen mobile phone was able to be tracked. The phone, later that morning, led police to an address in Port Melbourne where police observed a Toyota sedan. Police pursued the Toyota, but the pursuit was later abandoned. The Toyota sedan was later discovered by police parked some 10 metres away from the applicant’s address in Altona. CCTV footage captured the applicant exiting the sedan and entering his address. Both the Toyota sedan, and its registration plates, were stolen (charge 5 — handle stolen goods — vehicle and plates). The Toyota sedan was later driven away by the co-offender and pursued by police. The co-offender was later arrested.
Second indictment
As to the applicant’s offending the subject of the second indictment, the applicant’s co-offenders were a male ‘TR’ and a female ‘EO’. On 4 November 2022, the applicant and his co-offenders went to an address in Melton. They were in a stolen vehicle. They observed a white Scania tipper truck inside the yard at this address. TR and EO claimed rights of ownership over this truck and they had recruited the applicant to assist them with their claim. Having identified the truck, the applicant and his co-offenders subsequently left.
The applicant later returned to the Melton address in the stolen vehicle. He was with another person — ‘JF’. The applicant was driving the vehicle. The applicant drove into the yard at speed and almost hit a 50-year-old man who was nearby. The applicant was in possession of an imitation firearm. The applicant qualified as a ‘prohibited person’ (charge 1 — prohibited person in possession of an imitation firearm).
Upon entering the yard at the Melton address, the applicant got out of the vehicle and produced the imitation firearm (a black handgun) from the waistband of his pants. The applicant assaulted the 50-year-old man (charge 2 — common assault). The applicant said to this man, ‘you stole our truck you cunts’. The applicant threatened to ‘burn this whole place down’ if the man called the police (charge 5 — threatening to destroy property).
TR and EO then walked into the yard. They spoke with another man who was present. The applicant then punched that other man to the face (charge 3 — common assault), and also punched the 50-year-old man to the face (continuation of charge 2 — common assault). The applicant punched another man who was also present causing him to fall to the ground (charge 4 — common assault). During these assaults, the applicant brandished the imitation firearm (charge 10 — carrying a firearm whilst committing an indictable offence).
The applicant then entered an open storage container located at the property. He stole a grease gun, three impact drivers, a battery pack, a blower and two other power tools (charge 7 — theft). He took a set of office keys from the site as well as a Commonwealth bankcard (charge 6 — theft). The applicant left in the stolen vehicle; TR departed in the Scania tipper truck.
The applicant was later pursued by police. By this stage he was driving his partner’s car. To escape police the applicant drove on the wrong side of the road at a speed of 100 kilometres per hour. Even after police had successfully deflated the tyres of the vehicle driven by the applicant, he continued to drive the vehicle with shredded tyres and wheel rims exposed. The applicant drove on a nature strip in order to avoid apprehension and then collided with a police vehicle (charge 8 — reckless conduct endangering serious injury). When his vehicle finally came to a halt, the applicant fled on foot. The applicant was ultimately arrested. Once arrested, the applicant was found in possession of a plastic container containing the drug GHB (charge 9 — possession of a drug of dependence).
The plea
On the plea the applicant’s counsel conceded that the applicant possessed ‘high moral culpability’ and that his offending was ‘objectively very serious’. As defence counsel put it:
[It] appears to be [the applicant] is engaged by each of the co-offenders to assist them in resolving or settling personal grievances.
The applicant submitted that he had been introduced to drugs at a young age by his father. The applicant had struggled with drug addiction throughout his life; and he was — it seems — under the influence of drugs during the commission of the present offending. This, it was submitted, entitled the applicant to a lowering of his moral culpability along the lines contemplated by the High Court in Bugmy v The Queen.[14] The applicant emphasised that during his period on remand he had undertaken a number of rehabilitative courses.
[14](2013) 249 CLR 571; [2013] HCA 37.
The applicant eschewed reliance on R v Verdins.[15] But the applicant tendered a neuropsychological report authored by Dr Loretta Evans. Dr Evans opined that
in the absence of any observable benefit or sustained change following therapeutic interventions, and ongoing mood symptoms, the likelihood of drug relapse post release is increased, and correspondingly, the risk of re-offending is considered likely to be extremely high.
[15](2007) VR 269; [2007] VSCA 102.
The prosecutor called attention to the fact that the applicant had earlier been dealt with for aggravated burglary on three occasions. The prosecutor told the court that one such aggravated burglary had been committed by the applicant ‘in the middle of the night’, in company, and had resulted in the theft of property. The prosecutor thus characterised the present aggravated burglary as the applicant’s ‘fourth finding of guilt for aggravated burglary’. The prosecutor told the court that one of the applicant’s earlier aggravated burglaries had involved ‘actual violence and intimidation within the property’. Prior to the offending contained on the first indictment, the applicant had only been out of jail ‘for just over a month’; and, at the time of this offending, the applicant was subject to a community correction order.
The sentencing judge’s reasons for sentence
Sentencing the applicant, the judge noted that he had made a ‘no comment’ record of interview when spoken to by police in connection with both sets of offending.[16] The judge noted, however, that the applicant had pleaded guilty, and that — although a contested committal had been conducted in respect of one set of offending[17] — a ‘process of negotiation’ was necessary to achieve a full resolution of the applicant’s matters. The judge considered that the applicant’s pleas had ‘facilitated the course of justice’ and that the applicant had exhibited a ‘degree of remorse’. Accordingly, the judge indicated that the applicant would receive an ‘appropriate discount’ in sentence.[18]
[16]DPP v Lind (County Court of Victoria, Judge Meredith, 17 December 2024) [25] (‘Reasons’).
[17]Reasons, [26]. In written submissions, the applicant contended that ‘[i]t is accepted that [the applicant] cannot be regarded as having entered an early plea given he ran a contested committal in respect of each indictment’ (emphasis added).
[18]Reasons, [26].
The judge noted that the applicant was aged 33 at the time of the plea. He was 31 at the time of his offending.[19]
[19]Reasons, [29].
The judge considered that the applicant had a ‘significant prior criminal history’. It was of particular relevance — for instance — that, in 2016, the applicant was sentenced in the County Court to 7 years’ imprisonment (with a non-parole period of 4 years and 9 months) for offending that included aggravated burglary, false imprisonment, intentionally causing injury and possession of a firearm. In 2013, the applicant received a sentence of 16 months’ imprisonment for offending that included the commission of an aggravated burglary. As noted above, the applicant’s present offending was committed in breach of a community correction order imposed in the Magistrates’ Court in August 2022. This community correction order was imposed for offending that included threatening to damage property and making threats to kill.[20]
[20]Reasons, [29].
The judge then turned to the applicant’s background and upbringing. The applicant was raised by his parents until he was aged nine or 10. He was physically and sexually abused by his father from an early age. His father had schooled the applicant in criminality, enlisting him in the commission of petty crimes. The father also introduced the applicant to drugs when the applicant was young. The father spent many years in gaol for offences involving drugs and violence.[21] The judge referred to a reference provided by the applicant’s sister. As the sister described it, the applicant ‘had no chance of being a normal, well-adjusted member of society given this type of abuse and psychological trauma’.[22]
[21]Reasons, [32]–[33], [37].
[22]Reasons, [41].
The applicant had twice unsuccessfully attempted VCE. He had had the potential to develop a sporting career, but this was marred by drug abuse. The applicant had a lengthy history of substance abuse which included using methamphetamine. The applicant was abusing drugs during the commission of the present offending. The applicant had worked at various manual jobs in the past, but was unemployed since about 2021.[23]
[23]Reasons, [34]–[36].
The judge referred to an expert psychological opinion that was tendered on the plea[24] which established that the applicant met the diagnostic criteria for chronic polysubstance use disorder, anxiety and depression. There was also a provisional diagnosis of acute stress disorder. This was described as a mild form of PTSD. The judge noted that there was no suggestion of any mental illness or abnormality having contributed to the applicant’s offending behaviour.[25]
[24]From Australian Forensic Therapeutic Rehabilitation Melbourne, dated 9 October 2023.
[25]Reasons, [38]–[39].
The judge accepted that the applicant appeared to have suffered a background ‘of some significant disadvantage’. On this basis the judge allowed for ‘some reduction of [the applicant’s] moral culpability’.[26]
[26]Reasons, [43].
The judge noted that the applicant’s offending, the subject of the first indictment, was committed in company; that both offenders were armed with crowbars; that this offending possessed a ‘degree of premeditation’; and that it represented ‘the targeting of a particular private residential home where [the applicant’s] co-accused had a grievance with the occupant’. The judge referred to the applicant’s use of a mask and the fact that entry to the premises had occurred in the ‘early hours of the morning’ when one occupant was sleeping and the other had just gone to bed. The judge emphasised that the applicant had persevered in his decision to enter the apartment despite the interruption caused by the mutual friend.[27]
[27]Reasons, [44].
The judge referred to the features of relevance listed in Director of Public Prosecutions v Meyers[28] (‘Meyers’) that are referrable to a determination of the objective seriousness of any particular instance of aggravated burglary. Noting that the applicant’s intent upon entry to the apartment was to commit an offence involving an assault upon one of the occupants, the judge considered that the applicant’s offending ‘represents a serious example of an aggravated burglary’.[29]
[28](2014) 44 VR 486, 497 [47]–[48] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314.
[29]Reasons, [46]–[47].
As to the offending the subject of the second indictment, the judge noted that the applicant appeared to be the ‘principal offender’, and that he was ‘carrying out this behaviour on behalf of others who held a grievance’ that had nothing to do with him. The judge considered that these were ‘fairly serious examples of the charged offences’.[30]
[30]Reasons, [48]–[49].
Notwithstanding the mitigatory matters upon which the applicant was able to rely, the judge considered that in light of the applicant’s prior criminal history ‘nothing other than a lengthy term of imprisonment is appropriate’. The judge considered that ‘at best’ he was only ‘cautiously optimistic’ as to the applicant’s prospects of rehabilitation. The judge determined that he would impose a ‘fairly lengthy period on parole’.[31]
[31]Reasons, [50]–[51].
Submissions
The applicant’s written case argued that the ‘head sentence and non-parole period’ imposed on the first indictment is manifestly excessive. The applicant submitted that ‘offending in similar circumstances had led to lesser sentences’ than the sentence imposed in the present case.[32] The applicant made reference to the various matters personal to the applicant that had been taken into account by the sentencing judge, and contended that had the sentencing judge paid proper regard to these matters ‘a more lenient sentence ought to have followed’. In oral submissions, it was acknowledged that the gravamen of the applicant’s complaint was the length of the sentence imposed on the aggravated burglary charge, combined with the length of the orders for cumulation made in respect of the charge 2 and 3 sentences.
[32]The applicant, in this respect, made reference to Meyers (where a sentence of 4 years’ imprisonment was imposed for aggravated burglary), Salapura v The Queen [2018] VSCA 255 (where the sentence for aggravated burglary was 4 years and 6 months’ imprisonment) and Bava v the Queen [2021] VSCA 34 (where a sentence of 5 years’ imprisonment had been imposed for the offence of aggravated burglary).
The respondent, on the other hand, submitted that it was ‘within the sound exercise of the sentencing discretion’ for the judge to have imposed the sentences that he did on the first indictment. The respondent emphasised that the circumstances of the applicant’s present offending satisfied many of the conditions of aggravation specified by this Court in Meyers. Moreover, the present offending was committed in breach of a community correction order.
It was submitted by the respondent that, having regard to the maximum penalty of 25 years applicable to the offence of aggravated burglary, the sentence of 6 years’ imprisonment in this case, for such a serious example of this offence, was ‘well within range’. It was submitted that the orders for cumulation made in respect of the charge 2 and 3 sentences were also within range given the nature of the charge 2 and 3 offending. It was emphasised that the applicant was a principal offender for charge 3, and that this justified a slightly increased level of cumulation.
It was submitted that the sentences imposed on charges 4 and 5 represented a small percentage of their respective applicable maximum penalties; and, in any event, these sentences were ordered to be wholly concurrent. It was submitted that the non-parole period ordered, which equated to 71% of the global total effective sentence, was — in all the circumstances — ‘unremarkable’.
The respondent submitted that the judge had placed appropriate reliance on matters personal to the applicant and that could be considered to be mitigatory. These matters did, however, need to be balanced against the applicant’s prior convictions.
The respondent submitted that the other cases referred to by the applicant did not establish that the present sentence was inconsistent with current sentencing practice for the offence of aggravated burglary. The respondent referred to various authorities that established, so it was submitted, that the present aggravated burglary sentence was consistent with relevant current sentencing practices.[33]
[33]The respondent referred to Begg v The Queen [2020] VSCA 183 (aggravated burglary — 6 years’ imprisonment), Hodgson v The Queen [2021] VSCA 73 (aggravated burglary — 6 years’ imprisonment) and Hi v The Queen [2017] VSCA 315 (aggravated burglary — 7 years’ imprisonment).
Analysis
In order to establish that a sentence is manifestly excessive, it must be shown that the sentence stands wholly outside the range of sentences open to be imposed in all the circumstances of the case.[34] As this is an application for leave to appeal, the applicant’s burden is to establish that it is reasonably arguable that this is so.
[34]R v Abbott(2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
In view of the manner in which the applicant presented his case, the particular sentence that first invites scrutiny is the 6-year term imposed upon the applicant for the offence of aggravated burglary.
In 2012, this Court in Hogarth v The Queen[35] (‘Hogarth’) recognised that sentences hitherto imposed for the offence of aggravated burglary, when committed in circumstances described as ‘confrontational’, had been too low and required an increase.[36] The approach in Hogarth was affirmed in Meyers. In Meyers this Court observed as follows:
Put simply, Hogarthestablished that current sentencing practices (‘CSP’) for serious forms of aggravated burglary needed to change, as they did not reflect the objective seriousness of such offending. Aggravated burglaries which involve confrontation and violence, or threats of violence, should be viewed very seriously, whether the target of the attack is a former domestic partner or a person against whom some other grievance is held.[37]
[35](2012) 37 VR 658; [2012] VSCA 302.
[36]Ibid 673–4 [58]–[63] (Maxwell P, Neave JA and Coghlan AJA).
[37]Meyers (2014) 44 VR 486, 489 [6] (Maxwell P, Redlich and Osborn JJA); [2014] VSCA 314.
Meyers gave expression to the sorts of considerations that will ordinarily be of relevance when assessing, in any particular instance, the objective seriousness of the commission of the offence of aggravated burglary. These considerations were:
·the offender’s intent at the point of entry (whether to steal or commit assault or cause damage);
·the mode of entry (eg, by forcing a door or breaking a window);
·whether the offender was carrying a weapon;
·whether the offender was alone or in company;
·the time of day at which the burglary took place;
·what the offender knew or believed about who would be inside and/or about where the person(s) would be; and
·whether the offender was someone of whom the victim was particularly frightened.[38]
[38]Ibid 498 [48].
In 2021, in Brown v The Queen,[39] this Court observed that
sentencing standards for aggravated burglary have been undergoing a steady transition since this Court’s 2012 decision in Director of Public Prosecutions v Hogarth (‘Hogarth’). In that case, the Court held that sentences generally imposed for ‘confrontational aggravated burglary’ were too low, and that sentencing practices needed to change to reflect the objective gravity of this kind of offending. The significance of that decision was clarified in Meyers, the Court holding that Hogarth was to be viewed as having removed the constraints of current sentencing practice for aggravated burglary in all of its more serious forms.[40]
[39][2021] VSCA 204 (Maxwell P and Sifris JA).
[40]Ibid [34].
When it came to the circumstances of the present aggravated burglary, the applicant’s intent upon entry was to commit an offence involving an assault; the offence was committed in company; the applicant was armed with a crowbar; the offence was planned and committed in response to a grievance held by the co-offender; and, the offence was committed in the early hours of the morning when it might be expected (as indeed was the case) that persons inside the apartment might be asleep or at least in bed. This was, as defence counsel conceded on the plea, a ‘confrontational’ aggravated burglary of the type contemplated in Hogarth.
There was also the fact that the applicant continued with the entry of the premises even after he was disturbed by the mutual friend. And, significantly, the applicant’s commission of this particular aggravated burglary was in breach of a community correction order. The applicant had a relatively extensive criminal history which included — as the sentencing judge acknowledged — sentences of imprisonment for aggravated burglary.
It is unnecessary to recite the detail of the various comparable cases relied upon by the parties.[41] It is sufficient to say that I accept the respondent’s submission that, since the cases of Hogarth and Meyers, a sentence of six years’ imprisonment for aggravated burglary, committed in the present circumstances, even having regard to the mitigatory matters that arise in the present case, does not appear out of kilter with current sentencing practice.
[41]For, as the High Court emphasised in Director of Public Prosecutions vDalgliesh(2017) 262 CLR 428; [2017] HCA 41, while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration, that factor is only one of a number of factors which must be taken into account in the exercise of the sentencing discretion: see at 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
The applicant pleaded guilty and had been brought up in circumstances of some difficulty. The applicant’s upbringing entitled him to a reduction of his moral culpability. But even giving these matters due weight, I am unable to accept that, in light of the objective seriousness of the present aggravated burglary, it is reasonably arguable that the 6-year term imposed is manifestly excessive. In my view, to the contrary, that sentence sits comfortably within the applicable range. Or to put the same proposition differently, I do not consider it to be reasonably arguable that this sentence sits wholly outside the range of sentencing options that were open to be imposed in the circumstances of the present case.
Remaining focussed on the first indictment, attention must then turn to the sentences imposed on charges 2 and 3 and the orders for cumulation made in respect of those individual sentences — orders of six and eight months respectively. These two injury offences were particularly brutal in nature. In circumstances that must have been quite terrifying, each victim was struck forcefully with a crowbar. This included being struck, in each instance, to the head region. Both victims suffered injuries requiring medical attention, and, in particular, suturing. Whilst the applicant was complicit in the first attack, he was the principal offender in the instance of the second.
As the matter was argued, the applicant did not so much seek to impugn the individual sentences imposed on charges 2 and 3; rather, he sought to attack the orders for cumulation made in respect of each such sentence.[42]
[42]And, in any event, s 280(1)(b) of the Criminal Procedure Act 2009 states that the Court of Appeal may refuse an application for leave to appeal in relation to any ground of appeal if ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed’.
Given, in particular, the objective gravity of the applicant’s offending the subject of charges 2 and 3, I consider that it was necessary for the sentencing judge to mark the commission of each separate injury offence with an order for cumulation that reflected the fact that this offending was both serious and was committed against separate victims at different points in time. In all, I consider that the respective orders of six and eight months’ cumulation gave moderate effect to this particular need. The latter order of cumulation was — no doubt — of greater magnitude so as to give effect to the applicant’s role as principal offender when it came to the commission of charge 3.
I do not consider, in all the circumstances, that it is reasonably arguable that the orders for cumulation made in respect of the charge 2 and 3 sentences are manifestly excessive. I am not persuaded that it is reasonably arguable that these orders stand wholly outside the range of orders for cumulation that it was reasonably open to the sentencing judge to make, given the particular circumstances of this case.
Lastly, it is, of course, necessary to stand back and view the sentence imposed on the first indictment in order to consider its length as a constitutive element of the total, or global, sentence imposed across both the first and second indictments. Considerations of totality, referable to the first indictment, cannot be divorced from an appreciation of how the first indictment sentence contributes to the overall sentence imposed on the applicant.
In my view there is nothing about the global sentence imposed upon the applicant, across both indictments, which makes it seem as if one of the building-blocks making up that sentence (here, the first indictment sentence) is manifestly excessive, or that it is reasonably arguable that this is so. To the contrary, an appreciation of the global sentence imposed across both indictments appears, given the objective seriousness of the applicant’s offending, rather to confirm the conclusion that the head sentence on the first indictment sits comfortably within range in all the circumstances.
I agree with the respondent that the non-parole period ordered in this case (which stands at 71% of the total effective or global head term) is ‘unremarkable’ and properly reflects the sentencing judge’s cautious optimism concerning the applicant’s prospects of rehabilitation. I do not consider it reasonably arguable that this non-parole period is manifestly excessive.
Conclusion
The application for leave to appeal against sentence must, for these reasons, be refused.
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