Nathan Sinclair v The Queen
[2022] VSCA 180
•30 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0037 |
| NATHAN SINCLAIR | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 August 2022 |
| DATE OF JUDGMENT: | 30 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 180 |
| JUDGMENT APPEALED FROM: | [2022] VCC 259 (Judge Lyon) |
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CRIMINAL LAW – Appeal – Sentence – One charge of armed robbery, 11 charges of theft, one charge of handling stolen goods, three charges of attempted theft, seven charges of damaging property, three related summary offences – Total effective sentence 2 years, 2 months’ imprisonment – Non-parole period 1 year, 5 months – Whether judge failed to give effect to intention to impose relatively long parole period – Whether judge erred in applying fifth limb of R v Verdins (2007) 16 VR 269 – Whether total effective sentence or non-parole period vitiated by error – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr G Chipkin | ||
| Respondent: | Ms DI Piekusis QC | ||
Solicitors | |||
| Applicant: | Chester Metcalfe & Co | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
KYROU JA
T FORREST JA:
Introduction and summary
On 18 and 28 February 2022, the applicant pleaded guilty to the charges set out in the table below. On 7 March 2022, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Sinclair [2022] VCC 259 (‘Sentencing remarks’).
Charge on Indictment
Offence
Max Penalty
Sentence
Cumulation
1 Armed robbery [Crimes Act 1958, s 75A] 25 years 1 year, 8 months Base 2 Theft [Crimes Act, s 74(1)] 10 years 5 months — 3 Theft 10 years 3 months 2 months 4 Theft 10 years 3 months — 5 Handling stolen goods [Crimes Act, s 88] 15 years 3 months — 6 Attempted theft [Crimes Act, ss 74(1), 321M] 5 years 2 months 1 month 7 Damaging property [Crimes Act, s 197(1)] 10 years 4 months 2 months 8 Attempted theft 5 years 2 months — 9 Damaging property 10 years 4 months — 10 Theft 10 years 3 months — 11 Damaging property 10 years 4 months — 12 Theft 10 years 3 months — 13 Damaging property 10 years 4 months — 14 Theft 10 years 3 months — 15 Damaging property 10 years 4 months — 16 Attempted theft 5 years 2 months — 17 Damaging property 10 years 4 months — 18 Theft 10 years 3 months — 19 Theft 10 years 3 months — 20 Damaging property 10 years 4 months — 21 Theft 10 years 3 months — 22 Theft 10 years 3 months — 23 Theft 10 years 3 months — Related Summary Offences
4 Drive while disqualified [Road Safety Act 1986, s 30] 2 years 3 months 1 month 5 Commit indictable offence on bail [Bail Act 1977, s 30B] 3 months 1 month — 6 Contravene bail conditions [Bail Act, s 30A] 3 months 1 month — Total Effective Sentence: 2 years, 2 months Non-Parole Period: 1 year, 5 months Section 6AAA Statement: Total Effective Sentence 3 years, 6 months
Non Parole-Period 2 years, 6 months
Other Relevant Orders:
1. All Victorian licences cancelled and disqualified for 12 months from the date of sentence.
The applicant has sought leave to appeal against his sentence on the following grounds:[2]
1In fixing a non-parole period that was 65% of the total effective sentence, the learned sentencing judge erred by:
aFailing to give effect to his intention to impose a ‘longer than usual’ and/or ‘relatively long’ parole period; and/or
bFailing to afford [the applicant] procedural fairness.
2In imposing the sentences on each charge, making orders for cumulation, and fixing the non-parole period, the learned sentencing judge erred in failing to take into account that prison would weigh more heavily on [the applicant] than it would on a person in normal health.
[2]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
At the hearing of the application for leave to appeal on 25 August 2022, it became apparent that, with the benefit of emergency management days, the applicant had already become eligible for parole on 17 August 2022. Following a suggestion by the Bench that ground 1 has become academic, counsel for the applicant sought a brief adjournment in order to seek instructions from the applicant on whether the application should proceed. When the hearing resumed, counsel informed the Court that the applicant wished to continue with the application and sought leave to argue that the errors upon which he relied vitiated both the total effective sentence and the non-parole period. That leave was granted.
For the reasons that follow, the application for leave to appeal will be refused.
Circumstances of the offending
At 10 pm on 13 August 2020, Nirosha Perera walked past the applicant on her way to her car in the underground car park of a shopping centre in Boronia. He ran up behind her holding a 20 to 30 cm knife and pointed it at her chest. She screamed and he took her handbag and car keys from her hand (charge 1 — armed robbery). He stole her silver Lexus sedan and drove off (charge 2 — theft).
Between the time of stealing Ms Perera’s car on the evening of 13 August 2020 until his arrest at a house in Corio on the morning of 19 August 2020, the applicant:
(a)filled the stolen car with petrol on five occasions and did not pay for the petrol (charges 3, 4, 21, 22 and 23 — theft);
(b)fitted stolen registration plates to the car (charge 5 — handling stolen goods);
(c)smashed the windows of seven cars with the intention of stealing items from those cars (charges 7, 9, 11, 13, 15, 17 and 20 — damaging property);
(d)stole a second set of registration plates and various personal items from five cars, such as keys, a garage remote, a phone charger and Bluetooth headphones (charges 10, 12, 14, 18 and 19 — theft); and
(e)unsuccessfully attempted to steal items from three cars (charges 6, 8 and 16 — attempted theft).
At the time of his offending, the applicant was on bail for other matters (summary charge 5 — commit indictable offence on bail) and was also subject to a community correction order (‘CCO’) imposed upon him on 4 June 2020.[3] It was a condition of his bail that he not leave his place of residence between 9 pm and 7 am (summary charge 6 — contravene bail conditions). He was also disqualified from driving (summary charge 4 — drive while disqualified).
[3]See [17] below.
When the applicant was arrested, the stolen car was parked outside the house in Corio and the second set of registration plates was found inside the house. Police matched clothing and shoes found in the house with that worn by him in CCTV footage taken during his offending.
In a record of interview conducted with police, the applicant denied involvement in the armed robbery on 13 August 2020 or the theft of any petrol. He stated that he was in Geelong at the time of the armed robbery and that the stolen car had been left outside the house in Corio by someone else.
The applicant’s mother made a statement to police confirming that he was at her house in Boronia on 13 August 2020.
Applicant’s personal circumstances
The applicant was 20 years old at the time of the offending and 21 at the date of sentence.
The applicant is an Indigenous man. He was born and raised in Geelong. His parents separated before his birth. He has four maternal half-siblings and two paternal half‑siblings, with whom he has limited contact.
The applicant’s upbringing was acutely dysfunctional. He lived with his mother until he was aged 4. She has several mental health diagnoses and abused drugs. He then lived with his father and his father’s partner until child protection officers intervened when he was aged 11. His father was an alcoholic and physically violent to him. The applicant does not wish to have a future relationship with him.
At the age of 11, the applicant was taken into foster care. His foster parent Tracey spent time in prison for murder. As a result, he was placed in many other foster homes and lived in two residential care units until the age of 17. Since then, he has had periods of homelessness and couch surfing with other marginalised young people.
The applicant’s schooling was very limited and he has not had employment.
The applicant has an extensive criminal history dating back to 2015 for dishonesty, property damage, physical violence, threats of physical violence, weapons and driving offences. The offences for which he was found guilty on 3 December 2015 in the Geelong Children’s Court include attempted armed robbery. He has breached orders for probation, youth supervision, CCOs and bail, including committing indictable offences while on bail, failing to answer bail and breaching conditions of bail.
In around June 2020, the applicant pleaded guilty in the County Court to armed robbery, theft and driving while disqualified. The armed robbery was committed in August 2019 in company with a co-offender. On 4 June 2020, the applicant was sentenced to 9 months’ imprisonment together with a 12 month CCO. As a result of breaches of the CCO constituted by failure to attend a number of supervision appointments, on 8 December 2020 the applicant was resentenced by a County Court judge to an aggregate sentence of 26 months’ imprisonment with a non-parole period of 18 months. On appeal to this Court, the applicant was resentenced on 3 May 2021 to 15 months’ imprisonment with a non‑parole period of 9 months.[4]
[4]Sinclair v The Queen [2021] VSCA 144. The Court resentenced the applicant on 3 May 2021 and published its reasons on 31 May 2021.
The current offending was committed between 13 and 19 August 2020, in breach of the CCO made on 4 June 2020. During the period of the offending, the applicant was also on bail for unrelated offences. Bail was granted on 23 July 2020.
The applicant and his current partner, Jamie Clark, have an 11 month old son who was born while the applicant was in custody.
The applicant was diagnosed with attention deficit hyperactivity disorder (‘ADHD’) at age 11. By age 12, he was abusing cannabis, before abusing ice and GHB. He began chroming when he was in residential care. He was binge drinking from a young age. His longest period of abstinence from drug abuse was during his previous imprisonment, although he relapsed once he was released from prison. While on remand for the current offending, he returned negative drug screening results.
Plea hearing
Ms Clark gave evidence at the plea hearing. She stated that the applicant would be able to live with her upon his release and that she had noticed an improvement in his attitude and maturity. She stated that she is connected to a lot of rehabilitation support services that would be available to the applicant upon his release from prison.
At the plea hearing, defence counsel — who did not represent the applicant before us — submitted that rehabilitation was a key sentencing consideration. He contended that the overall sentencing principles would be best addressed by deferring the applicant’s sentence through the Court Integrated Services Program (‘CISP’). The following exchange took place between the judge and defence counsel regarding that contention:
HIS HONOUR: All right, let me be absolutely clear from the outset so no one is under any misapprehension whatsoever. I consider the objective gravity of this offending to be very high. I consider [the applicant’s] moral culpability to be very high. I consider that his criminal record, the fact that this offending occurred whilst he was on bail and whilst on a CCO to add to the seriousness of this offending. I can see no other course than a period of imprisonment is available to me.
What I do take into account is the fact that [the applicant] is a young man who has come from an horrendous background and has lived a very deprived childhood. But I do not consider that rehabilitation becomes such a prime focus that it would enable me to defer sentencing and place him on bail at the moment. That’s how I see the situation as we stand.
[DEFENCE COUNSEL]: Yes, Your Honour.
HIS HONOUR: Where I would see the prospect for rehabilitation would be some mitigation of the sentence that I impose and a longer than usual parole period, but such is the seriousness of his offending you’re going to have some work to persuade me that the CISP program is the appropriate course.[5]
[5]Emphasis added.
The judge subsequently stated that he was not entertaining the prospect of admitting the applicant to the CISP program. He then said ‘[w]hat I would tend to do is, as I made observations earlier, is mitigate [the applicant’s] sentence by a longer than usual parole period’.[6]
[6]Emphasis added.
In the light of the judge’s indication that he would not admit the applicant to the CISP program, defence counsel stated that his ‘fall back’ position was to advocate for ‘a lower non-parole period and an extended time on parole’.
The applicant relied upon a number of psychiatric and psychological reports tendered at the plea hearing. In a psychiatric report dated 11 February 2019, Dr James Belshaw noted that the applicant’s ‘cognitive and psychological vulnerabilities’ had led to him being subjected to periods of restrictive management regimes in custody. Dr Belshaw diagnosed the applicant with cannabis use disorder, alcohol use disorder and stimulant use disorder. He reported that he did not find clear evidence that the applicant continued to suffer from symptoms of ADHD.
In a psychological report dated 10 February 2020, Ms Gina Cidoni diagnosed the applicant with ADHD, post-traumatic stress disorder (‘PTSD’) and substance use disorder. In a more recent psychological report dated 11 February 2021, Ms Cidoni diagnosed the applicant with substance use disorder, generalised anxiety disorder and PTSD. She reported that his drug use was a major factor linked to his recent and past offending and made the following brief reference to the impact of imprisonment upon the applicant’s mental health:
[The applicant’s] youth and mental illness are relevant to his ability to manage a prison environment. His symptoms would be exacerbated, and his immaturity and his conditions would make his experience more onerous.[7]
[7]Paragraph 79 of Ms Cidoni’s report dated 11 February 2021.
In his written submissions, defence counsel argued that the ‘principle [in R v Verdins[8]] in so far as custody weighing more heavily upon the [applicant] should be applied’. Defence counsel elaborated as follows at the plea hearing:
I made the submission insofar as Verdins as his time in custody would’ve been more onerous, that’s opined at paragraph 79 [of Ms Cidoni’s report dated 11 February 2021]. The diagnoses … that I’m relying on [are] generalised anxiety disorder and PTSD. There’s a drug remission diagnosis. I’m not relying on that insofar as time in custody being more onerous. It’s quite scant in terms of the extent of how it would’ve been more onerous for him but still there’s something there insofar as being a material consideration. So whilst great weight may not be able to be placed upon that particular limb of Verdins, it’s still there to be considered in my respectful submission.
[8](2007) 16 VR 269 (‘Verdins’).
The applicant contended that he had progressed his own rehabilitation while in custody. In support of this contention, he relied upon certificates and letters outlining his engagement in the Aboriginal Holistic Cultural Yarning Circle Program, his position as a visits billet, his negative drug screening results, his completion of various vocational courses, his involvement in drug treatment programs and Indigenous artwork he was undertaking.
Sentencing remarks
The judge stated that the armed robbery was a serious example of the crime and assessed it as ‘midrange’.[9] He stated that the applicant waited in the underground car park late at night, chose a ‘soft target’ and ‘had the element of surprise’.[10] He remarked that the impact upon Ms Perera had been significant and long lasting.
[9]Sentencing remarks, [16].
[10]Sentencing remarks, [12].
In assessing the applicant’s moral culpability, the judge took into account the following factors:
(a)The offending contravened a CCO which was imposed about nine weeks earlier for the armed robbery committed in August 2019.
(b)The current offending was committed while the applicant was on bail for other offending and in breach of a curfew condition of that bail.
(c)The applicant has a previous finding of guilt for attempted armed robbery in the Children’s Court in 2015.
(d)The applicant has an extensive criminal history dating back to 2015.
(e)The applicant was apparently drug affected at the time of committing the armed robbery, although this neither mitigated nor aggravated the offending.
The judge said that Ms Cidoni’s report of 11 February 2021 confirmed the applicant’s diagnosis for ADHD, PTSD and substance use disorder.[11] He did not refer to the principles in Verdins.
[11]As appears from [26] above, whereas Ms Cidoni diagnosed the applicant with ADHD, PTSD and substance use disorder in her report dated 10 February 2020, she diagnosed him with generalised anxiety disorder, PTSD and substance use disorder in her report dated 11 February 2021.
The judge did not make a finding about the applicant’s prospects of rehabilitation.
The judge stated that the applicant’s plea of guilty had utilitarian benefit and facilitated the course of justice. However, he noted that the applicant had not exhibited any particular remorse.
The judge stated that it was neither viable nor justifiable to release the applicant on the CISP program due to the objective gravity of the offending, the applicant’s earlier conviction for armed robbery, his breach of the CCO for that offence, and his comprehensively poor record of contravening bail and community supervisory orders.
The judge remarked that he took into account the following factors in structuring the applicant’s sentence:
(a)The sentencing purposes of deterrence, denunciation and protection of the community.
(b)The impact of the COVID-19 pandemic upon the applicant’s time in custody.
(c)The principle of totality.
(d)The applicant’s youth, which meant that rehabilitation was a key consideration in the sentencing process. However, the nature of the current offending and the applicant’s long list of prior criminal convictions somewhat detracted from the primacy of rehabilitation as a sentencing objective.
(e)The applicant’s deprived and dysfunctional background meant that the principles in Bugmy v The Queen[12] had to be taken into account in the mitigation process. However, a balance had to be struck between these principles — which potentially rendered it inappropriate to use the applicant as a vehicle for general deterrence — and the real need to ensure the protection of the community.
[12](2013) 249 CLR 571 (‘Bugmy’).
Immediately before imposing sentence, the judge stated that he would ‘give [the applicant] the opportunity for release on a relatively long period of parole’.[13] After he pronounced the sentence, the judge said that, because of the large number of charges and the need to comply with the principle of totality, he had to ‘somewhat artificially go about the task of cumulation of sentences’.[14]
[13]Sentencing remarks, [48].
[14]Sentencing remarks, [50].
Preliminary observations
As we have already stated, once it became apparent that ground 1 had become academic because the applicant is already entitled to parole, the focus of the application for leave to appeal was whether the total effective sentence and the non-parole period were vitiated by the errors upon which the applicant relied. In these circumstances, it is convenient to consider grounds 1 and 2 together.
Although it is no longer necessary for us to consider the parties’ submissions on ground 1 insofar as that ground was solely directed at securing a lower non-parole period, it is appropriate for us to make two observations before turning to the parties’ reformulated submissions.
First, the authorities establish the following propositions that are presently relevant:
(a)The non-parole period is the minimum term which justice requires be served.[15]
(b)There is no ‘usual’ non-parole period for an offence or category of offence.[16] However, in the majority of cases the proportion between the non-parole period and the total effective sentence is between 60 per cent and 75 per cent.[17] This range is not immutable — both longer and shorter ratios are to be found.[18] A longer ratio may be found, for example, in cases involving lengthy sentences for very serious offences such as murder.[19]
(c)Exceptionally, the Court of Appeal may be persuaded that a non-parole period manifestly failed to give effect to the sentencing judge’s stated intention, in which case error is established and the sentencing discretion is re-opened.[20]
[15]Wallace v The Queen (2012) 35 VR 520, 521 [2] (‘Wallace’).
[16]Wallace (2012) 35 VR 520, 521 [2]; Kumova v The Queen (2012) 37 VR 538, 545 [26] (‘Kumova’); McLean v The Queen [2018] VSCA 209, [18].
[17]Romero v The Queen (2011) 32 VR 486, 493 [25] (‘Romero’); Kumova (2012) 37 VR 538, 541 [11], 545 [27].
[18]Kumova (2012) 37 VR 538, 542 [13], 545 [27].
[19]Romero (2011) 32 VR 486, 493 [25]; Kumova (2012) 37 VR 538, 542–3 [14], 545 [27].
[20]Wallace (2012) 35 VR 520, 521 [2].
Secondly, the intended meaning of the judge’s two statements during the plea hearing that he intended to fix ‘a longer than usual parole period’ was unclear, particularly in the light of his use of the different phrase ‘a relatively long period of parole’ in his sentencing remarks. The two statements may well have induced defence counsel to desist from making more fulsome submissions regarding the non-parole period. It follows that, had the issue of the non-parole period not become academic by the time the application for leave to appeal was heard, ground 1 would have been arguable.
Parties’ submissions
The applicant, in effect, submitted that the total effective sentence and the non-parole period were vitiated in the light of the following matters:
(a)his youth, which continued to render his rehabilitation a key sentencing consideration;
(b)his supportive partner, who could connect him to relevant support agencies;
(c)his performance in custody, including remaining drug free, gaining employment and engaging in various rehabilitative, vocational and cultural programs;
(d)his son being born while he was in custody, which was a major motivating factor for him to work towards his release and positive performance on parole;
(e)the especially onerous nature of custody during the pandemic;
(f)the fact that his mental health conditions meant that his incarceration would be more onerous than a person without those conditions; and
(g)his deprived background, which continued to engage the principles in Bugmy.
The applicant contended that the judge failed to take into account the fifth limb of Verdins, which states that ‘[t]he existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health’.[21] The applicant relied upon four reasons in support of this contention. First, this was a matter that assumed some prominence on the plea, being the only limb of Verdins raised on the evidence and one of only five subjective circumstances relied upon in the applicant’s written submissions. Secondly, this was the only matter of any moment which the judge failed to refer to in his otherwise comprehensive reasons. Thirdly, the judge explicitly referred to other aspects of the burden of imprisonment, such as the impact of the pandemic. Fourthly, the judge’s imposition of a ‘usual’ non-parole period despite earlier indications to the contrary supported the conclusion that, by the time of sentence, the judge had overlooked matters weighing in favour of a lower than usual non-parole period, such as the fifth limb of Verdins.
[21](2007) 16 VR 269, 276 [32].
The applicant contended that, if the judge had given appropriate weight to the mitigating factors referred to above, including the fifth limb of Verdins, he would have imposed a lower, more appropriate total effective sentence and a lower non-parole period.
The Crown submitted that the total effective sentence and non-parole period were lenient, having regard to the fact that the applicant was sentenced for 23 indicatable offences and three related summary offences. That was said to be because the matters put on the applicant’s behalf — primarily, his youth and disadvantaged background — had to be balanced against the following considerations:
(a)The offending commenced with a serious example of armed robbery on a ‘soft target’, just over two months after the applicant’s merciful release from custody on a CCO for similar offending, and at a time when he was also on bail.
(b)The subsequent offending was sustained, and aptly described by defence counsel as ‘essentially a week long crime spree’.
(c)There was no evidence of remorse and the applicant did not have good prospects of rehabilitation.
(d)The applicant’s prior criminal history meant that the considerations in Bugmy cut both ways. Community protection and general and specific deterrence were relevant sentencing principles.
The Crown submitted that there was nothing in the sentencing remarks or the sentence imposed which might tend to a conclusion that the judge did not make an allowance for the fifth limb of Verdins as part of the instinctive synthesis. It contended that, having regard to the fact that the fifth limb of Verdins was only faintly pressed on the plea,[22] the judge’s failure to make specific reference in the sentencing remarks to the fifth limb of Verdins does not demonstrate error. That was said to be because the applicant’s youth, his good progress in custody and the application of the Bugmy principles took primacy in his submissions on the plea. The Crown argued that his good progress in custody somewhat contradicted his Verdins submission.
[22]See [27] above.
The Crown emphasised that, even though the applicant had been in continuous custody since 19 August 2020, there was no information before the Court as to whether he had found the custodial experience ‘more onerous’ as a consequence of his conditions, nor of the extent to which his symptoms were or might be ‘exacerbated’ as a consequence of the custodial environment.
Decision
In our opinion, both grounds of appeal, as reformulated, must be rejected.
The total effective sentence and the non-parole period can only be described as very lenient having regard to:
(a)the gravity of the applicant’s offending;
(b)the applicant’s moral culpability;
(c)the applicant’s extensive criminal history — including for attempted armed robbery, armed robbery and theft — and the relevance of that history to sentencing considerations such as protection of the community and specific deterrence;
(d)the mitigating factors upon which the applicant was entitled to rely including, in particular, his guilty pleas, youth, deprived background and hardship in custody caused by the COVID-19 pandemic;
(e)the mitigating factors upon which the applicant was not entitled to rely including, in particular, remorse and a positive finding about his prospects of rehabilitation; and
(f)the maximum penalties set out at [1] above.
The judge was correct to describe the armed robbery as a serious example of the crime. The applicant confronted Ms Perera late at night in an underground car park and threatened her with a knife. The offending involved some planning in that the applicant attended the car park armed with the knife and waited for a victim whom he regarded as a ‘soft target’. As confirmed by Ms Perera’s victim impact statement, it was a terrifying experience for her. Each of the subsequent offences which constituted the applicant’s ‘week long crime spree’ may have been less serious but they were nevertheless disturbing because they evinced a continuing disregard for the law and the rights of other members of the community.
The applicant’s moral culpability was high in the light of the fact that he was serving a CCO and was on bail at the time of the offending and committed the armed robbery very soon after he was sentenced for the previous armed robbery. However, we accept that the applicant’s moral culpability was moderated to some extent due to his deprived background.
The applicant’s extensive criminal history was relevant to the exercise of the sentencing discretion in a number of ways. First, it amplified the weight to be given to protection of the community and specific deterrence. Secondly, it demonstrated that previous sentencing dispositions which contained features such as supervision that focused upon the applicant’s rehabilitation were unsuccessful in deterring him from further offending.
We accept that the mitigating factors upon which the applicant relied warranted significant weight in the exercise of the sentencing discretion. However, their moderating impact had to be balanced against the sentencing considerations — particularly the gravity of the offending and protection of the community — which underscored the need for a substantial custodial sentence. Thus, whilst the applicant’s youth and deprived background meant that rehabilitation remained a key sentencing consideration, its moderating impact was diluted due to the heightened need to protect the community given the gravity of the current offending and similar previous offending by the applicant. It is also relevant in this context that the applicant could not rely upon positive findings regarding remorse and prospects of rehabilitation.
In relation to the fifth limb of Verdins, we are prepared to assume in the applicant’s favour that the judge’s failure to refer to it meant that he failed to take it into account. However, such a failure was justified because there was no evidence on the plea that supported a finding on the balance of probabilities that the fifth limb was engaged. It is true that, in her report dated 11 February 2021, Ms Cidoni made the statement set out at [26] above. However, that statement was conclusionary, without any reasoning to support it.
It follows from the above analysis that we are not satisfied that the judge made any vitiating error in the exercise of his sentencing discretion. Even if this conclusion were wrong, we would refuse leave to appeal because we are firmly of the view that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge.[23] That is because the individual sentences, the orders for cumulation, the total effective sentence and the non-parole period are very lenient.
[23]Criminal Procedure Act 2009, s 280(1)(a).
Conclusion
For the above reasons, the application for leave to appeal will be refused.
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