R v McCartney
[2006] VSCA 35
•2 March 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 104 of 2005
| THE QUEEN |
| v. |
| KASEY STEWART McCARTNEY |
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JUDGES: | CALLAWAY, EAMES and ASHLEY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 February 2006 | |
DATE OF JUDGMENT: | 2 March 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 35 | |
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Criminal law – Sentencing – Youthful offender – Significant criminal history – Multiple offences committed over a period of months – Robbery, armed robbery, burglary, theft, handling stolen goods, causing injury intentionally, assault – Plea of guilty – Significant prospects of rehabilitation – Total effective sentence of 87 months’ imprisonment with a non-parole period of 48 months not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. with Mr T.C. Wallwork | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr R. Edney | Doogue & O’Brien |
CALLAWAY, J.A.:
I agree with Ashley, J.A.
EAMES, J.A.:
The application for leave to appeal against sentence brought by the appellant under s.582 of the Crimes Act 1958, was heard by me, sitting alone. I granted leave - the ground of appeal being arguable - and in so doing I observed that although there were many factors which suggested that the sentence imposed was appropriate, a court of three judges should assess the weight to be given to what appeared to be the glimmer of hope for rehabilitation. As it happened, I later became one of the three members of the Court which heard the appeal and I then had the benefit of full argument concerning the ground of appeal.
As has been frequently stated by this Court, an appeal against sentence can not succeed unless sentencing error is disclosed. In this case the one sentencing error which was asserted was that the sentence imposed was manifestly excessive, particulars of that complaint being that the sentencing judge had failed to give appropriate weight to the appellant’s prospects of rehabilitation, his relative youth, his Aboriginality, his lack of prior convictions for armed robbery and robbery and his pleas of guilty. After giving careful consideration to the submissions of counsel I am not persuaded that, having regard to the submissions and evidence before him, the judge failed to give appropriate weight to the sentencing considerations identified in the ground, and the sentence imposed, stern though it was, did not fall outside the sentencing range open to the judge to impose. In so concluding I adopt the reasons of Ashley, J.A., whose judgment I have read in draft, but I wish to make some additional observations.
There were many factors which suggested that the appellant had good prospects of rehabilitation. Apart from the significance of his pleas of guilty in this regard, he had shown significant remorse for his offending and for its impact on his victims. One early sign of his potential for rehabilitation was his successful return to studies to complete his secondary education in 1999, but that positive step was unfortunately followed by further offending and terms of imprisonment. Nonetheless, the decision to further his education in 1999 reflected well on the applicant and his successful completion of his secondary education demonstrated the appellant’s potential to succeed in his studies towards a Social Work degree, and towards Youth Work qualifications under a TAFE program. He commenced those courses in July 2004 under the auspices of the Institute of Koorie Education at Deakin University.
Those efforts towards his rehabilitation are particularly commendable given the considerable educational, social and family disadvantages which the appellant had to overcome, but his Honour recognised that to be the case. His Honour said that the appellant had every prospect of rebuilding his life if he was able to maintain his studies and gain some stability in his life upon release from prison.
Upon a close reading of his Honour’s sentencing remarks, and also having regard to remarks made by him during the course of submissions, it is clear that the learned sentencing judge gave great weight to the appellant’s favourable prospects of rehabilitation. That he did so is particularly evident in the lower than usual non-parole period which his Honour fixed, but his Honour’s assessment of those prospects was no doubt also reflected in the modest orders for cumulation which he made.
The other factor on which I wish to add some comments relates to the Aboriginality of the appellant. As I discussed in R v Fuller-Cust[1], the mere fact of Aboriginality does not bear upon sentence, but the Aboriginal descent of an offender may be relevant to an understanding of an offender’s history of offending and of the obstacles to rehabilitation which he or she has had to overcome. However, mitigatory considerations based on racial or ethnic origin, such as those I discussed in R v Fuller-Cust, require an evidentiary basis if they are to be called upon in a plea for leniency. Such considerations require a careful examination of the history of an offender. It seems plain to me that the judge would have given attention to any submissions which demonstrated the relevance of the appellant’s race to his sentencing; indeed, he encouraged counsel to provide him with more information about the appellant, and agreed to an adjournment of the plea so that further and better information could be provided to him, in particular, about the courses being undertaken with Deakin University[2].
[1](2002) 6 V.R. 496, at 520-523 [78]-[90]; see too Neal v R (1982) 149 C.L.R. 305, at 326, per Brennan, J.
[2]The letter from Mr David Davenport, Co-ordinator of the Students in Custody Program at Deakin University provided valuable information about that program, and described the appellant as a man with a great deal of potential. It emerged that although in his letter he expressed keenness to expand on those comments Mr Davenport had been approached too late for him to be able to attend the adjourned plea hearing.
The submissions made to the judge, together with the evidence called from the appellant’s father and that contained in the report of psychologist Mr Bernard Healey, dealt comprehensively with the disadvantaged youth of the appellant. However, as counsel who appeared on the appeal conceded, the submissions to the judge made very little reference to the appellant’s Aboriginality[3]. Even when Aboriginality was referred to its particular significance was not explained. For example, copies of the appellant’s artwork were tendered, by way of demonstrating both his artistic skill and his rehabilitation efforts in prison, which the art work did indeed demonstrate. Arguably, however, the art work also demonstrated that the appellant’s Aboriginality was central to his art. So too, the relevance, if any, of his Aboriginality to the disadvantageous circumstances of the appellant’s upbringing, and to the incidence of his contact with welfare and law enforcement authorities, was neither highlighted by evidence nor the subject of submissions[4].
[3]Indeed, his Honour was told that the applicant’s mother was not of Aboriginal descent, only his father. In fact, as we were told on appeal, both parents were of Aboriginal descent.
[4]For example, clinical psychologist Mr Bernard Healey reported the appellant’s claim that the incident that led to serious prior convictions in October 2002, and sentences of imprisonment, for recklessly causing serious injury and recklessly causing injury arose out of racist taunts in a hotel. No submissions were made as to that contention.
Whilst it is quite possible that further investigation might have led to the exposure of additional relevant information for the plea, counsel for the appellant
accepted that the appropriateness of the sentence in this case must be assessed by reference to the evidence and submissions provided to the judge. In any event, this very experienced judge may have been alive to the potential added dimension of Aboriginality in the appellant’s case. This awareness might explain his Honour’s observation when, after commenting on the “destructive upbringing” of the appellant, he noted “the matters that Mr Healy has referred to” and observed “of course many of those matters I suspect are strongly reflected in the prior convictions that you have admitted”. I am not persuaded that the judge failed to give adequate weight to the factor of the Aboriginality of the appellant, having regard to the evidence before him.
The sentencing task in this case was difficult. As Ashley, J.A. has demonstrated in his judgment, the judge took considerable care in balancing the competing considerations, including the matters identified under the particulars of the ground of appeal. Upon careful review I am not persuaded that he fell into error or that the sentence was outside the range open to him. Notwithstanding the many factors which operated in the appellant’s favour, the seriousness and duration of the offending conduct in this case, when coupled with the appellant’s prior history, compelled his Honour to give particular weight to factors of general and specific deterrence. The judge made very moderate orders as to cumulation and as to the non-parole period to be served, but the sheer multiplicity of the offences meant that a substantial head sentence was inevitable, and that which was imposed was not manifestly excessive.
I would dismiss the appeal.
ASHLEY, J.A.:
Statement of the case The appellant, Kasey McCartney, a man born 11 September 1979 and so aged 26 years, pleaded guilty in the County Court on 8 February April 2005 to 28 counts which alleged a variety of offences. He admitted 64 prior convictions from seven court appearances between 1995 and 2003. He had appeared twice in the Children’s Court, four times in the Magistrates’ Court and once in the County Court. On 5 April 2005 he was sentenced to a total effective sentence of 87 months imprisonment with a non-parole period of 48 months. A declaration was made that pre-sentence detention amounted to 607 days. He appeals, by leave, against the sentence imposed on the single ground that the sentence was manifestly excessive.
The offences
The offences to which the appellant pleaded guilty, the maximum penalty set by statute, and in each instance the sentence imposed and whether any part thereof was cumulated, were as follows:
| Count | Offence | Contrary to (Crimes Act) | Max. penalty | Sentence | Cumulative |
| 1 | Handling stolen goods | 88 | 15 years | 6 months | |
| 2 | Robbery | 75 | 15 years | 2 years | 6 months |
| 3 | Attempted Robbery | 321M | 10 years | 12 months | |
| 4 | Theft | 74 | 10 years | 6 months | |
| 5 | Robbery | 75 | 15 years | 2 years | 6 months |
| 6 | Handling stolen goods | 88 | 15 years | 6 months | |
| 7 | Theft | 74 | 10 years | 6 months | |
| 8 | Burglary | 76 | 10 years | 12 months | 6 months |
| 9 | Theft | 74 | 10 years | 6 months | |
| 10 | Theft | 74 | 10 years | 6 months | |
| 11 | Robbery | 75 | 15 years | 2 years | 6 months |
| 12 | Theft | 74 | 10 years | 6 months | |
| 13 | Robbery | 75 | 15 years | 2 years | 6 months |
| 14 | Burglary | 76 | 10 years | 12 months | |
| 15 | Theft | 74 | 10 years | 6 months | |
| 16 | Robbery | 75 | 15 years | 2 years | 6 months |
| 17 | Causing injury intentionally | 18 | 10 years | 6 months | 3 months |
| 18 | Robbery | 75 | 15 years | 2 years | 6 months |
| 19 | Theft | 74 | 10 years | 6 months | |
| 20 | Burglary | 76 | 10 years | 12 months | |
| 21 | Theft | 74 | 10 years | 6 months | |
| 22 | Common assault | Common law & s.320 | 5 years | 6 months | 3 months |
| 23 | Criminal damage | 197 | 10 years | 6 months | |
| 24 | Theft | 74 | 10 years | 6 months | |
| 25 | Theft | 74 | 10 years | 6 months | |
| 26 | Common assault | Common law & s.320 | 5 years | 6 months | 3 months |
| 27 | Armed robbery | 75A | 25 years | 3 years | |
| 28 | Possess drug of dependence | 73 Drugs, Poisons & Controlled Substances Act | 5 penalty units (s.73(1)(a); or 1 year goal (s.73(1)(b) | 1 month |
The circumstances of each of the offences, briefly stated, were as follows:
Count 1 – Dishonestly handling stolen goods. A Nokia mobile phone was stolen during a burglary at Preston on 16 May 2003. Later in May a SIM card belonging to the appellant was used inside the stolen phone.
Count 2 – Robbery. On 24 May 2003, the appellant entered a newsagency in West Preston. He told the owner that it was a robbery, to stay calm and that he would not be hurt. He, the appellant, took about $1,000 from two tills.
Count 3 – Attempted robbery. During the newsagency robbery, a woman entered the shop. The appellant demanded her handbag. She said that she had no money and she was then left alone.
Count 4 – On 2 June 2003, at Northcote, the appellant and another man forced entry to a motor vehicle and drove it away.
Count 5 – Later on 2 June 2003, the appellant and another man forced entry to a bank at Reservoir. The other man took $6,905 from the tellers’ drawers. The appellant shouted threats meanwhile. When the two of them left, he, the appellant, took with him a mobile telephone belonging to one of the staff, and a green bag. The vehicle referred to in Count 4, with the phone and bag inside, was later abandoned.
Count 6 – Dishonestly handling stolen goods. On 5 June 2003, a home was burgled in East Melbourne and a mobile phone was stolen. The appellant’s SIM card was used inside the phone between 5 or 10 June. Count 6 focussed on the appellant’s admitted use of the phone.Count 7 – Theft. On 18 June 2003 the appellant forced entry to a motor vehicle and drove it away. It was recovered about a week later.
Counts 8, 9, 10 – Burglary, Theft (2). On 18 June 2003, the appellant entered a hair salon with intent to steal. In fact he stole the handbags of two employees. Those handbags contained a purse, a mobile phone, and personal belongings. The purses were found in the stolen vehicle the subject of count 7.
Count 11 – Robbery. On 26 June 2003, the appellant and another man entered a clothing store in Brunswick. The appellant told an employee that it was a robbery, to say nothing, and not to call for help. The appellant asked, in effect, for all the $100 notes. He was given about $1,000 from the till.
Count 12 – Theft. The appellant forced entry to a motor vehicle on 8 July 2003, and drove it away.
Count 13 – Robbery. The appellant and an accomplice entered a bakery in Northcote on 9 July 2003. The appellant walked behind the counter, told a shop attendant to “shut up,” opened the cash register, and stole about $200.
Counts 14 and 15 – Burglary/Theft. Also on 9 July 2003, the appellant and his co-offender entered a Homemart store in Northcote. There was no attendant on duty. The appellant forced open the cash register, and stole $345.
Counts 16 and 17 – Robbery/Causing injury intentionally. Again on 9 July 1963, the appellant and the co-offender entered another shop. The appellant walked behind the counter and told the female worker that it was a robbery and “Don’t move and you won’t get fucking hurt”. He then reached under the counter, and took her purse. She screamed, and he punched her, knocking her to the ground. She suffered facial injuries and a chipped tooth. The appellant took the purse and its contents, which were valued at about $400.
Count 18 – Robbery. This offence was committed on 24 July 2003. The appellant entered an Australia Post shop in Richmond, shouted that it was an armed robbery, pushed the shop assistant away from the cash register, took $5,000 in cash, and ran away.
Counts 19, 20, 21 – Theft/Burglary/Theft. On 1 August 2003 the appellant broke into and stole a motor vehicle at the Queen Victoria Market. Leaving the car park, he stopped near the (empty) cash booth, stole a bag containing $1,900, and unsuccessfully attempted to jemmy open the cash register.
Counts 22 and 23 – Common Assault/Criminal Damage. The appellant was disturbed in the cash booth by the returning attendant. The appellant threatened the attendant with a screwdriver, telling the latter to “Get back. What are you going to do? I will fucking stab you. Don’t be a hero.” He then made his getaway, driving the stolen vehicle through a boom gate. He later abandoned the vehicle, which had suffered damage requiring some $3,000 in repairs.
Count 24 – Theft. This was another instance of car theft, committed on 7 August 2003.
Count 25 and 26 – Theft/Common Assault. Also on 7 August 2003, the appellant and a co-offender entered a milk bar which was temporarily unattended. The appellant stole a cash register. He armed himself with a bread knife and, being confronted by the returning shop owner, threatened her with it before leaving the shop. He stole a total of $1,550.
Count 27 – Armed Robbery. This was another offence committed on 7 August 2003. the appellant and a co-offender entered a commercial premises. The appellant jumped the counter and shouted: “This is a fucking robbery give us all your money” and “Don’t let me get my weapon out”. He grabbed cash from the tills, and demanded “more money”. He demanded that the safe be opened; but the staff could not do this. He made demands for “the rest of the money.” He used a screw driver to jemmy open one cash drawer. In all, he took about $3,000.
Count 28 – Possess drug of dependence. The appellant was arrested on 7 August 2003. He was found to be in possession of a small quantity of cannabis.The course of events
The appellant was arrested and interviewed on 7 August 2003. He was charged with several offences. Following a further interview he was charged with many other offences.
A contested committal was fixed for 17 January 2004. No Magistrate was available.
On 19 July 2004, what was to be a contested committal resolved itself into something much simpler when the appellant pleaded guilty to many charges.
On 8 February 2005, in the County Court, a presentment was filed which specified the 28 counts to which I have earlier referred. The appellant pleaded guilty to all counts, and a plea hearing ensued. That hearing ultimately concluded, it seems, on 11 March 2005.
The appellant was sentenced on 5 April 2005.
The appellant, it can be seen, pleaded guilty, though not at the earliest possible opportunity. Nonetheless, he was entitled to a discount on the sentence which would otherwise have been passed.
Prior offences
The appellant’s prior court appearances spanned the period 19 December 1995 – 29 January 2003. They involved a wide range of offences of dishonesty and violence, together with some other matters. Sentencing dispositions included release on a youth attendance order, fines, detention in a youth training centre, a community based order, and imprisonment. The longest total effective sentence previously imposed upon the appellant had been 12 months imprisonment, with a four months’ non-parole period.
Submissions for the appellant
In seeking to establish that the sentence imposed was manifestly excessive, counsel for the appellant first relied upon prospects of rehabilitation. Counsel submitted that the circumstances offered more than a glimmer of hope[5].The appellant was shown to be of good intelligence. This would conduce to his rehabilitation. The appellant had taken the opportunity whilst on remand to commence a degree course in social work through an external studies program offered by Deakin University. An extensive period of imprisonment, counsel submitted, might jeopardise the appellant’s significant efforts at rehabilitation.
[5]Referring to DPP v Snell [2005] VSCA 131 at [28] per Charles JA.
Further, there was a danger of the appellant becoming institutionalized. In that context, and more generally, counsel secondly submitted that the relative youth of the appellant was a matter requiring close and favourable consideration[6].
[6]Citing R v Mills [1998] 4 VR 235 at 241 per Batt JA, and R v Lawrence (2004) 10 VR 125.
A third matter relied upon by counsel was the appellant’s Aboriginality - not Aboriginality per se, but the social disadvantage arising from membership of that group[7]. Counsel submitted that material advanced on the plea was “strongly suggestive of a childhood of privation and abuse”.
[7]Citing R v Fuller-Cust (2002) 6 VR 496 at [78]-[88], 520-522 per Eames JA, R v Neal (1982) 149 CLR 305 at 326 per Brennan J and R v Fernando (1992) 76 A Crim R 58 at 62-63 per Wood J.
Counsel relied, in the fourth place, upon the fact that this was the first occasion upon which the appellant had been charged with armed robbery. He submitted the offence had occurred against the background that the appellant had separated from his partner and young child, and had descended into drug abuse.
Counsel finally drew attention to the plea of guilty. He argued that the plea had particular significance in that proof of many of the offences would have relied upon identification evidence.
Submissions for the respondent
The Director of Public Prosecutions, appearing for the respondent, emphasised at the outset that the appellant had been sentenced by an experienced judge who had been faced with an offender who had committed multiple offences involving dishonesty and/or violence over a substantial period of time, and who had many prior convictions, a number of which were relevant. The appellant had, he submitted, “displayed an utter disrespect for his victims’ rights as to their personal safety and property”.
The Director next submitted that the learned sentencing judge had – with one exception – recognised, and referred to, each of the matters relied upon for the appellant on this appeal. In particular, he had accepted the contention that the appellant had good prospects for rehabilitating himself and contributing to the community. The matter about which the judge had said nothing was that this was the first occasion upon which the appellant had been charged with armed robbery. Still, it was submitted, not much was to be made of that omitted reference, for the appellant’s criminal history was in fact littered with offences importing dishonesty and/or violence. Further, the first offence in the current series had been committed only two months after the appellant’s release on parole (on 4 March 2003).
The Director submitted, viewing the matter in the broad, that the sentence imposed, though severe, was just in all the circumstances. It did not approach the margin at which manifest excess might be discerned.
Resolution of the appeal
At the outset of the hearing, the Director informed the court that the learned sentencing judge had, in respect of count 28, imposed a sentence in excess of that available; for the parties had approached that count on the footing that the cannabis in question was a “small quantity”, that fitting the description in s.73(1)(a) of the Drugs, Poisons and Controlled Substances Act 1981. Noting that his Honour had imposed a sentence of 1 month’s imprisonment, with no cumulation, the Director submitted that the appropriate course would be to allow the appeal in respect of that count only, and sentence the appellant to be convicted and discharged. He submitted also that the error was such, viewed in context, as not to call for the re-opening of the sentencing discretion at large. I agree. Counsel for the appellant, I note, did not contend to the contrary.
The Director also alerted the Court, at the outset, to three factual errors made by the sentencing judge in his sentencing remarks. So, in respect of counts 1 and 6, the appellant had been charged with dishonestly handling stolen goods. But the judge had described the offences by reference to the theft which in each instance had preceded the dishonest handling – the appellant not having been charged with the thefts. Then, in respect of count 3, the appellant had been charged with attempted robbery – whereas the sentencing remarks described a robbery. The Director submitted that these errors were inconsequential. He emphasized that the sentences which had been imposed strongly suggested that they had addressed the offences which were actually the subject of the charges.
Counsel for the appellant did not submit that there was any point to be made about these errors. He did not argue that any of them was of substance, and so infected the sentencing process. That was, in my opinion, an entirely responsible position for him to adopt.
There was much force in the submissions made by the Director. I accept them.
I go then, to the broad canvas of the sentence which was imposed. No specific sentencing error – save in respect of count 28, and then by the Director – was contended for, a matter reflecting the circumstance that the learned judge addressed the evidence and the submissions which were respectively given and advanced on the plea. The complaint is that nonetheless the ultimate result – a total effective sentence of 7 years and 3 months imprisonment, with a non-parole period of 4 years – was manifestly excessive. I do not agree.
As I noted a little earlier, the Director conceded that the sentenced imposed was, on first blush, severe. But he submitted that the structure of the sentence, when carefully examined, showed that the learned judge had been moderate in the individual sentences which he imposed, had been very alive to the question of totality - as reflected by the way in which he had cumulated in some instances, but not in many others – and had taken proper account of the appellant’s prospects for rehabilitation, particularly by the minimum term which he had set.
To my mind, those submissions were persuasive. The offences which the appellant committed were serious. They were repeatedly of a similar kind. They took place over a substantial period of time. They showed scant regard for property rights and the personal safety of others. The robberies, for the most part committed upon “soft” targets, must have been very frightening. Often enough there had been but one shop assistant present, and often enough a female. On the occasions when there was some resistance, the appellant resorted to personal violence (as with count 17) or property damage (as in the case of count 23). Further, the offending was carried out by a man who had a bad prior history of offending, who had been given the advantage of non-custodial dispositions without success, and who had begun to commit the presently relevant series of offences within a short time of being released from custody.
There were, undoubtedly, a number of factors running in the appellant’s favour. He was still quite a young man, at the time of offending, and at the time of being sentenced. There was evidence that he had endured a difficult childhood. He had left school early, and had no employment skills to fall back on. He had taken steps to further educate himself, most particularly in the period during which he was on remand for the presently relevant offences. His natural intelligence gave him good prospect of furthering his education so long as he persisted with it. The particular offences had been committed following a relationship breakdown and relapse into drug use. He had pleaded guilty, albeit not at the earliest opportunity.
Those various ameliorating circumstances were, to greater or lesser extent, placed before the learned sentencing judge; and were acknowledged by him in his sentencing remarks. The fact that they were mentioned does not require a conclusion, of course, that the sentencing process did not yield a sentence that was manifestly excessive. But, unless the sentencing remarks were a charade – and nothing suggests that such was here the case – the prospect that something went irretrievably wrong must be the less when the various possible ameliorating factors were, on the face of it, brought to account. In the present instance, I am not persuaded that they were so little brought to account so as to produce a sentence that was manifestly excessive. Moreover, the relatively short minimum term which his Honour set appears to reflect his acceptance of the appellant’s prospects for rehabilitation. A shorter than usual minimum term was proposed by the appellant’s counsel as a means of encouraging his client’s demonstrated efforts to rehabilitate himself.
I referred a moment ago to the various ameliorating factors having been placed before the learned sentencing judge to greater or lesser extent. In several respects, at least, the latter adjective was in point. So, for example, very little explanation was offered as to the circumstances of the prior offences, although something was to be found in the history recorded by the psychologist, Mr. Healey.
Again, the judge was told that the appellant is an Aboriginal; although disparate material was provided whether one or both of his parents are Aboriginal. The judge was also told that the appellant had been abused by his mother and other relatives as a child. Again, there was material which showed that the appellant had moved from one residence to another, from one carer to another; and that his schooling had been slight. It is possible to conjecture that these disparate pieces of material may have been fitted together, and been supplemented by other material, so as to enable a submission that the appellant’s Aboriginality - or rather, things that were its consequences - gave some explanation for the offending, or bore upon the appellant’s prospects for rehabilitation, or were in some other way relevant in the sentencing exercise. But no such exercise was attempted; and it was not for the learned judge to speculate about what might possibly have been advanced. Indeed, his Honour provided as much help, and suggestion, to the appellant’s counsel in the course of the plea - counsel, I add, had only been very recently briefed - as he could responsibly have done.
Concerning the matters about which something more or different might have been said, I should add this: it is not the case, because such matters were not much mentioned, or because they were not drawn together in a particular way, that the learned judge did not take account of them so far as they were relied upon. His Honour’s sentencing remarks show that he did so. Indeed, they may be said to show that he sentenced the appellant on the basis that what had been submitted was more extensive than was in truth the situation.
Conclusion
Save for re-sentencing the appellant in respect of count 28, I consider that the appeal should be dismissed.
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