Papworth v R

[2011] NSWCCA 253

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

PAPWORTH v R [2011] NSWCCA 253

Hearing dates:

17 November 2011

Decision date:

25 November 2011

Before:

WHEALY JA at 1
SIMPSON J at 2
HOEBEN J at 3

Decision:

Leave to appeal granted.

Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - use of Form 1 offences - whether sentencing judge erred in refusing to find special circumstances - parity - whether sentence manifestly excessive.

Legislation Cited:

Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518, (2002) 56 NSWLR 146
Caristo v R [2011] NSWCCA 7 at [26]
Hili v The Queen [2010] HCA 45
Leese v Regina [2007] NSWCCA 108
Power v The Queen (1974) 131 CLR 623 at 627-629
Quayle v R [2010] NSWCCA 16 at [41]
R v Cramp [2004] NSWCCA 264 at [31]
R v El Hayek [2004] 144 A Crim R 90 at [103]
R v El Hayek [2004] NSWCCA 25; [2004]144 A Crim R 90 at [103]
R v Millar [2005] NSWCCA 202
R v Morgan (1993) 70 A Crim R 368
R v Palmer [2007] NSWCCA 308
Regina v Price [2005] NSWCCA 285
R v Silver (1999) NSWCCA 108 per Simpson J at [28]
R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 at [59]
Regina v J. Tory and L. Tory [2006] NSWCCA 18
Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477

Category:

Principal judgment

Parties:

Martin Dennis Papworth - Applicant

Representation:

Ms C Nash - Applicant
Ms Bowers - Respondent Crown
Mitchell Cavanagh - Applicant

File Number(s):

2009/257678

 Decision under appeal 

Date of Decision:

2010-10-13 00:00:00

Before:

Coolahan DCJ

File Number(s):

2009/257678

Judgment

1. WHEALY JA: I agree with Hoeben J.

1. SIMPSON J: I agree with Hoeben J.

1. HOEBEN J:

Offences and sentence

On 4 June 2010 the applicant and his co-offender, Mark Baker, pleaded guilty before Judge Coolahan to an indictment containing two counts:

Count 1 - On 17 November 2009 at Belmont in the State of New South Wales in company of each other did enter the dwelling house at 1/9 Thompson Street with intent therein to intimidate Mark Crossley contrary to s111(2) of the Crimes Act 1900 (maximum penalty imprisonment for 14 years).

Count 2 - On 17 November 2009 at Belmont did steal a number of DVDs, a DVD player, a digital set top box, a number of LP records, a record player, a Nokia mobile phone, foodstuffs and a cask of wine, the property of Mark Crossley in the dwelling house at 1/9 Thompson Street, contrary to s148 of the Crimes Act 1900 (maximum penalty imprisonment for 7 years).

1. When dealing with count 1, his Honour was asked to take into account on a Form 1 an offence of common assault on Mark Crossley on 17 November 2009 contrary to s61 of the Crimes Act 1900 and an offence of intimidation of Mark Crossley on 30 April 2010, contrary to s13 of the Crimes (Domestic and Personal Violence) Act 2007. With respect to Baker, only the assault matter was included on a Form 1.

1. On 13 October 2010 the applicant was sentenced by Judge Coolahan as follows:

Count 2 - A fixed term of imprisonment for 15 months commencing 5 June 2010 and expiring 4 September 2011.

Count 1 - A term of imprisonment with a non-parole period of 2 years commencing 5 September 2010 and expiring 4 September 2012 with a balance of term of 9 months expiring 4 June 2013.

The applicant's aggregate sentence for counts 1 and 2 was imprisonment for 3 years with a non-parole period of 2 years and 3 moths.

1. Before imposing the above sentences, his Honour dismissed an all ground appeal by the applicant against a conviction for an offence of intimidation. As no complaint was made about the original sentence of a fixed term of 8 months imprisonment, his Honour confirmed that sentence but changed the commencement date to 5 December 2009 and the expiry date to 4 August 2010.

1. The applicant has appealed against the severity of the sentence on the following grounds:

1. That the sentencing judge did err in failing to have regard to the fact that the matters on the Form 1 could have been dealt with in the Local Court and subject to a lower maximum penalty.

2. That the sentencing judge did err in failing to find special circumstances to justify a variation of the statutory ratio.

3. (This ground of appeal was not pursued)

4.   That the applicant has a justified sense of grievance in respect of the comparative sentences of the applicant and the co-offender.

5. That the sentence is manifestly excessive.

Factual background

1. The applicant and the victim had known each other for over 16 years, having met in Maitland Gaol. For a period of time in May 2009 the applicant and his wife lived at the victim's house. At the time of the offences on the indictment, the victim had a dislocated knee, which required a period of recuperation and him using crutches.

1. At 4pm on 17 November 2009 the victim was at home watching TV when the applicant and Baker entered the room. The victim said "Not now man, I'm broken" referring to his knee injury and crutches. The applicant said "This is the dog I was telling you about". The applicant grabbed the victim at the back of his head and pressed their foreheads together. The victim described the applicant's face as being full of rage. The applicant said words to the effect of "You're a dog, I should f---- shoot you. I should f---- stab you."

1. In relation to the common assault offence on the Form 1, Baker and the applicant grabbed the victim and both began to slap him around the head and face. The applicant and Baker then left.

1. After about a minute, the offenders returned. The victim was very frightened by this time. He pushed his way past the offenders, made it to the front door and then hobbled up the street. As soon as he was in a public place, the victim began to yell "Get off my property just leave. I don't want you here, just leave". This alerted the neighbours and the police were called.

1. In relation to count 2, while the victim was away from his house the offenders ransacked it and removed the items which are set out in count 2.

1. On 20 November 2009 the applicant attended Belmont Police Station and was arrested. He took part in an electronically recorded interview, in which he denied involvement in the incident and nominated his wife, Claire, and cousin, Mark Baker, as alibi witnesses.

1. In relation to the second matter on the applicant's Form 1, at around 9am on 30 April 2010 the victim was waiting at a bus stop on the Pacific Highway at Belmont South. He saw the applicant driving his white Toyota Camry along the opposite side of the road. The applicant then made a u-turn, travelled along the breakdown lane and pulled up beside the bus stop where the victim was standing. The applicant began shouting and pointing at the victim who could not understand the words due to traffic noise, but observed the applicant's manner as being threatening and extremely aggressive and menacing. The victim felt scared and intimidated. These events were witnessed by a person who was also waiting for a bus.

Remarks on sentence

1. His Honour regarded the offences as serious in that count 1 was in the nature of a home invasion. His Honour also had regard to the fact that the victim was disabled and that there were two offenders. He assessed the level of seriousness at just below the mid level, because the offence was of relatively short duration. His Honour did note, however, that there was some degree of premeditation, that the applicant was the instigator and that he was the one who first entered the victim's premises. In relation to count 2, his Honour assessed that offence as somewhere below the mid level of seriousness. He did not think any planning was involved in that offence.

1. In relation to subjective matters, his Honour noted that the applicant was born in March 1966 and was aged 44 at the time of sentence. His Honour noted that the applicant had first come before the Children's Court in 1982. Thereafter there had been offences for entering enclosed lands, assaulting police, driving offences and smoking and possession of Indian hemp. In 1988 he was placed on a recognisance for assaulting a female and was fined for assault and resisting arrest. In 1989 he was dealt with in the Local Court for a number of matters including trespass, counts of assault and resist police, assault occasioning actual bodily harm, offensive behaviour and resisting arrest. In 1991 he was imprisoned for assault.

1. In 1993 he was fined for trespass, imprisoned for breaches of an apprehended domestic violence order, he was convicted of assault occasioning actual bodily harm and later that year, was imprisoned for assault and again breaching an apprehended violence order. He was fined for offensive conduct and there were some serious driving matters. In 1995 he was imprisoned for a breach of a recognisance and disqualified from driving. In 1996 he was imprisoned for assault occasioning actual bodily harm and fined for remaining upon enclosed lands. In that and the following years he was fined for the possession of prohibited drugs.

1. In 2000 he was imprisoned for resisting police, contravening an apprehended domestic violence order and two counts of assault. In 2002 he was imprisoned for a number of counts of assaulting police and resisting police, as well as contravening apprehended domestic violence orders. He was imprisoned for common assault. In 2003 he was imprisoned for assault occasioning actual bodily harm. In 2004 he was imprisoned for four counts of common assault, one count of contravening an apprehended domestic violence order and one count of malicious damage.

1. His Honour concluded this review of the applicant's criminal history as follows:

"I have not attempted to include all matters on his criminal history in the above review. That history does contain other matters, particularly serious driving offences. He also has matters on his non-fingerprint history. These include an order for community service in 2008 for two counts of intimidating a police officer and a fine in 2009 for passing a valueless cheque." (ROS 8.4)

1. His Honour remarked that although the pre-sentence report indicated that the applicant had completed a number of anger management programs while in prison, these had been of little assistance to him. His Honour also reviewed a psychological report obtained on behalf of the applicant. The author thought that the applicant was of below average intelligence. Having administered certain psychological tests, the following diagnosis was provided:

"Mr Papworth experiences temper and aggressive behaviour and this has been a long standing problem for him. Such behaviours are likely to play a prominent role in the clinical picture. These behaviours represent a potential treatment complication and should receive careful attention and treatment planning. He has at no time sought psychological treatment. It does seem that periods of incarceration have not served as a deterrent and it may be that he's acting on impulse, use of drugs and alcohol, as well as poor ability to control his emotions, have contributed to his ongoing offending behaviour.

Mr Papworth may benefit from sessions of cognitive behavioural therapy aimed at anger management. He could assess this through Medicare or Community Health. Before this, however, he should attend a residential drug and alcohol rehabilitation program of a long duration such as the three to six month residential program at the WHOS therapeutic community in Cessnock or the residential care program at Niagara Lodge, Central Coast Recovery Association."

1. The difficulty which his Honour had with the psychological report was that it depended very much upon the reliability of what the psychologist was told by the applicant. The applicant gave evidence in the sentence proceedings. He told the Court that between 2004 and the occasion of these offences he had tried to turn his life around but had suffered business setbacks and his wife had experienced a breakdown. He thought the victim had contributed to his business setbacks. In relation to his wife's breakdown, he said that she had become very depressed at which time she had poured petrol over herself and suffered serious burns. He said that she needed ongoing assistance. He admitted to having a drug and alcohol problem. His Honour found the applicant to be most unconvincing as a witness, particularly when giving evidence about his motives for going to the victim's house.

1. The applicant's wife gave evidence as to her disabilities following the petrol incident. She said that the business setbacks suffered by the applicant had led to them both using amphetamines and drinking heavily. As a result of her injuries, she could not look after herself and needed assistance. This assistance had been provided by Baker while the applicant was in custody. She stressed that the applicant had changed his ways since 2004.

1. His Honour did not believe much of what the applicant's wife said. He concluded that "She will go to any lengths to protect Papworth". (ROS 13.1)

1. His Honour acknowledged that there was a gap in the applicant's criminal history between his release from prison in 2004 and these offences, although there were matters on his non-fingerprint record which indicated the contrary. His Honour was unable to detect any signs of remorse on the applicant's part. His Honour rejected the proposition that the applicant's psychological problems and his below average intellect and the nature of the offence should ameliorate the application of general deterrence.

1. His Honour found that there was some premeditation involved in relation to count 1 in that the applicant had said to Baker "This is the dog I was telling you about". His Honour was not able to say to what extent the offence was premeditated. In relation to count 2, his Honour accepted that the offence was spontaneous and unpremeditated.

1. In relation to parity, his Honour summarised the prosecutor's submissions as follows:

"The learned Crown Prosecutor said that this was not a case calling for parity of sentence. He submitted that there were objective and subjective factors which differentiated the offenders' cases. The offender Papworth has an additional matter on a Form 1 which in itself was a serious offence committed while he was on bail for the matters on the indictment. There is also a marked difference in the criminal histories of both offenders."

No submissions were made on behalf of the applicant that the parity principle should apply.

1. On the basis of what the applicant had said to Baker when he first saw the victim, his Honour found that the applicant was the initiator of the visit to the victim's home. His Honour rejected the submission that the applicant's sentence should be reduced because of hardship. On that issue his Honour said:

"As the evidence stands, I can find no basis for such a finding. I have observed Mrs Papworth in the witness box on two occasions and in the body of the court. While she has an arm in bandages and whilst I accept that she did suffer very significant burns, the degree of restriction and the need for future care is really unknown. I am unable to accept her evidence in this regard and no medical evidence has been presented on the issue." (ROS 22.1)

1. His Honour had difficulty in identifying any mitigating factors in relation to the applicant except for his plea of guilty for which his Honour allowed a discount of 15 percent. In relation to totality, his Honour said:

"In relation to Papworth, those sentences should be largely accumulated on the sentence in the appeal matter, that being an entirely separate offence. However, in formulating the sentences and in their structure, I have taken into account the principle of totality." (ROS 21.4)

1. In relation to special circumstances, his Honour said:

"I cannot find any basis for a finding of special circumstances in the case of Papworth except to account for partial accumulation of the sentences which I intend to impose in relation to these matters so that the relevant statutory ratio might be preserved. However, I do not take into account the sentence in the appeal matter for that purpose as that was a fixed term sentence.

In the case of Baker, I think that there should be a finding of special circumstances because I am satisfied that he does have prospects of rehabilitation and I am also satisfied that he would benefit from a longer than normal period of supervision on his release to give him the best chance of getting his life back on track." (ROS 21.5)

1. His Honour had this to say about the Form 1 matters:

"In relation to the Form 1 matters, so far as the two counts of common assault are concerned I do not think that they should make a significant difference to sentence because it seems to me that, by and large, they form part and parcel of count 1 on the indictment. However in the case of Papworth, so far as the offence of intimidation is concerned, as I said earlier, to my mind that is a serious offence. The facts disclose it to be so and it was committed whilst he was on bail for the counts on the indictment. More than lip service must be paid to that offence when sentencing him in relation to count 1." (ROS 22.3)

Appeal

Ground 1: That the sentencing judge did err in failing to have regard to the fact that the matters on the Form 1 could have been dealt with in the Local Court and subject to a lower maximum penalty.

1. The applicant submitted that the two Form 1 matters could have been dealt with in the Local Court. In the case of the assault offence, the maximum penalty in the Local Court was imprisonment for 12 months and for the intimidation offence, the maximum penalty was 2 years. By reference to such decisions as R v Palmer [2007] NSWCCA 308 the applicant submitted that when sentencing for such offences it was relevant that the offence could have been dealt with in the Local Court. He submitted that his Honour had erred in that he had not taken this into account but had sentenced on the basis of the higher maximum sentences which were available in the District Court.

1. The applicant relied on his Honour's specific reference to those higher maximum sentences (ROS 1.9) and on the emphasis which his Honour gave to the seriousness of the Form 1 intimidation offence (see [28] hereof).

1. There are a number of reasons why this submission should be rejected. In relation to the assault matter, it is clear from his Honour's remarks on sentence that it "should [not] make a significant difference to sentence". Next, his Honour was not sentencing the applicant in relation to the offences on the Form 1. The applicant was sentenced for the counts on the indictment and the offences on a Form 1 were taken into account in relation to the sentence imposed for count 1.

1. Clear guidance has been given as to the approach to be adopted by sentencing courts when Form 1 matters are under consideration, i.e. Attorney General's Application under section 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 [2002] NSWCCA 518, (2002) 56 NSWLR 146 (the guideline judgment). There Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) said:

"39 The sentencing court is sentencing only for the "principal offence". It is no part of the task of a sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence. ...

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. ..."

1. To follow the approach propounded by the applicant would be to engage in the very process which has been disapproved in the guideline case, i.e. it would involve an attempt to determine an appropriate sentence for the intimidation offence listed on the Form 1.

1. This ground of appeal has not been made out.

Ground 2: That the sentencing judge did err in failing to find special circumstances to justify a variation of the statutory ratio.

1. The applicant submitted that there was ample evidence before his Honour to justify a finding of special circumstances and that his Honour was in error in failing to make such a finding. The applicant referred to the psychological report with its recommendation for residential rehabilitation and to the need for him to care for his injured wife. The applicant submitted that, on the basis of that material, his Honour should have found special circumstances.

1. The principles applicable to the setting of the non-parole period of a sentence under s44 of the Crimes (Sentencing Procedure) Act 1999 are well settled. The non-parole period is the minimum period of actual incarceration that the offender must spend in custody, having regard to all the elements of sentencing, such as punishment, rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 627-629; R v Simpson [2001] NSWCCA 534, (2001) 53 NSWLR 704 at [59]; Caristo v R [2011] NSWCCA 7 at [26].

1. A finding of special circumstances is a discretionary finding of fact in respect of which this Court is slow to intervene: R v El Hayek [2004] NNSWCCA 25; [2004] 144 A Crim R 90 at [103]; R v Cramp [2004] NSWCCA 264 at [31]; Quayle v R [2010] NSWCCA 16 at [41]. In other words, the facts of this case may have allowed his Honour to make a finding of special circumstances but they did not compel him to do so.

1. In Simpson Spigelman CJ (with whom Mason P, Grove J and Newman AJ agreed) said in relation to what can constitute special circumstances:

"73 One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact - to identify the circumstances - and secondly one of judgment - to determine that those circumstances justify a low proportion relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive."

1. In this case his Honour was not asked to find "special circumstances". In Quayle there was material before the District Court capable of amounting to "special circumstances" and it was submitted that the judge should have made such a finding. RA Hulme J (Grove and Simpson JJ agreeing), said:

" It is difficult to say that a judge was in error for not doing something that he or she was not asked to do. A finding that there are, or are not, special circumstances is a discretionary finding of fact: see R v El-Hayek [2004] NSWCCA 25 per Howie J at [103]. ..."

1. A common reason for a finding of special circumstances is a need for effective rehabilitation ( R v Silver (1999) NSWCCA 108 per Simpson J at [28]).

1. Apart from the evidence of the psychologist that residential rehabilitation would be useful for the applicant, there was no evidence that he wished to undergo or would undergo such rehabilitation. His Honour found, as he was entitled to, that the applicant did not have prospects of rehabilitation. His Honour was not satisfied as to the state of health of the applicant's wife and as to her needs. This also was a finding open to his Honour.

1. Error has not been identified in his Honour's refusal to find special circumstances. This ground of appeal has not been made out.

Ground 4: The applicant has a justified sense of grievance in respect of the comparative sentences of the applicant and the co-offender.

1. The applicant submitted that because he and Baker were co-offenders in relation to the same offences, there was no justification for the significant discrepancy between their sentences, i.e. a full term of 3 years compared to 2 years, and a non-parole period of 2 years and 3 months compared to 1 year.

1. The applicant submitted that his Honour's findings as to the respective parts played by him and Baker were not open on the evidence. He submitted that the statement "This is the dog I was telling you about", together with the applicant being the first person into the victim's apartment, were not sufficient to justify findings that the applicant was the initiator of the entry to the victim's home and that Baker was a "follower". The applicant submitted that the important matter which his Honour lost sight of was that both he and Baker were acting in a common purpose. He submitted that the differences between him and Baker were not such as to justify such a large discrepancy between the sentences imposed.

1. An analysis of the facts in this matter make it clear that there is no proper basis for the applicant having a justifiable sense of grievance. It was open to his Honour to find on the basis of the applicant's statement and actions at the time of the offence in count 1, that the applicant was the initiator of the entry into the victim's flat. This is particularly so when account is taken of the threats by the applicant to shoot or stab the victim. In addition, the difference in the subjective circumstances of the applicant and Baker were so great as to explain the difference in the sentences.

1. The applicant's criminal history was much more significant than Baker's so that "a more severe penalty was warranted" having regard to "retribution, deterrence and the protection of society". It was "legitimate" for his Honour to take account of the antecedent criminal history because it "illuminates the moral culpability of the [applicant] in the instant case" ( Veen v The Queen (No 2) (1987-88) 164 CLR 465 at 477).

1. The intimidation on the Form 1 was a matter which could be properly taken into account to increase the penalty for the principal offence because not only was it a significant offence in its own right, but it had been committed while the applicant was on bail for the instant offences.

1. Finally, his Honour could find no evidence of any genuine remorse on the part of the applicant, whereas Baker was found to be not only remorseful but to have good prospects of rehabilitation. His Honour was entitled to reach those latter conclusions even though Baker did not give evidence, on the basis of the evidence of his fiancee and the pre-sentence report.

1. Accordingly, it was open to his Honour to find that the objective seriousness of the count 1 offence for the applicant was greater than that of Baker because the applicant had instigated the offence and Baker was under his influence. In addition, Baker's subjective case was substantially stronger than that of the applicant. It follows that this ground of appeal has not been made out.

Ground 5: That the sentence is manifestly excessive.

1. The applicant submitted that by reference to four cases - R v Millar [2005] NSWCCA 202; Regina v Price [2005] NSWCCA 285, Regina v J. Tory and L. Tory [2006] NSWCCA 18 and Leese v Regina [2007] NSWCCA 108 - it could be seen that the sentence imposed on him was outside the available range. The facts of those cases involved home invasions and the sentences imposed were significantly less than that imposed on the applicant.

1. The relevant test in relation to "manifest excess" was restated in R v Hayek [2010] NSWCCA 139:

"37 ... the task is not for this Court to decide whether it would have exercised its discretion differently. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Vuni v R [2006] NSWCCA 171 at [33], citing Dinsdale (2002) 202 CLR 321 at 325; endorsed in Stewart v R [2009] NSWCCA 152 at [16] - [17]."

1. While consistency in sentencing is an important consideration and a desirable goal, this Court has repeatedly endorsed the principle in R v Morgan (1993) 70 A Crim R 368 that the relevant question on appeal is whether the sentences are within a proper range. It is not a question of whether other sentences can be said to be more or less lenient by undertaking a detailed analysis of other decided cases, as these often possess wide and divergent differences in their objective and subjective circumstances to which the sentencing judge may have attached particular weight.

1. In Hili v The Queen [2010] HCA 45 the plurality reiterated at [54] - [55] the limited value of statistics and previously decided cases in the sentencing process. They concluded:

"59 As was said in Dinsdale v The Queen , "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong , appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong , "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"."

1. The Crown in its submissions analysed in detail the four cases relied upon by the applicant. That analysis demonstrated that the factual circumstances of the offences and the subjective features of the offenders were so different to those operating in this case as to make those decisions of very little assistance in assessing the applicant's sentence.

1. What is clear, however, is that the applicant has failed to demonstrate that this sentence was "unreasonable or plainly unjust". If anything, having regard to its objective seriousness, the maximum penalty and the applicant's poor subjective case, this sentence could be properly regarded as lenient.

1. This ground of appeal has not been made out.

Conclusion

1. The orders which I propose are:

(i) Leave to appeal be granted.

(ii) Appeal dismissed.

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Decision last updated: 15 December 2011