Ross v The Queen

[2022] VSCA 149

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0054

DANIEL ROSS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2022
DATE OF JUDGMENT:	29 July 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 149
JUDGMENT APPEALED FROM:	DPP v Ross [2022] VCC 400 (Judge Gwynn)

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CRIMINAL LAW ­– Appeal – Sentence – Trafficking methylamphetamine, reckless conduct endangering serious injury and associated charges – Sentence  2 years and 9 months’ imprisonment with 22 months non-parole – Whether judge erred in failing to find that the applicant experienced profound childhood deprivation – Whether reduced moral culpability – Leave to appeal refused – Bugmy v The Queen (2013) 249 CLR 571; Veen v The Queen [No 2] (1988) 164 CLR 465 considered.

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Counsel
Applicant:		Mr J Connolly
Respondent:		Ms D Piekusis QC
Solicitors
Applicant:	Kurnai Legal Practice
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
MACAULAY JA:

Introduction

1. The applicant, now aged 35 years,[1] pleaded guilty before a judge in the County Court to two charges of trafficking in a drug of dependence, methylamphetamine[2] (charges 1 and 4); one charge of reckless conduct endangering serious injury[3] (charge 2); one charge of theft[4] (charge 3); and one charge of possession of a drug of dependence[5] (charge 5).  He also pleaded guilty to the related summary offences of failing to stop vehicle on police request[6] (summary charge 4); failing to stop vehicle after an accident[7] (summary charge 4); dealing with property suspected to be the proceeds of crime[8] (summary charge 8); committing indictable offence whilst on bail[9] (summary charges 10 and 21); contravening a conduct condition of bail[10] (summary charge 11); possessing a prohibited weapon[11] (summary charge 19); unlicensed driving[12]  (summary charge 23); and dangerous driving[13] (summary charge 24).  The applicant also fell to be sentenced for contravening a Community Correction Order (‘CCO’) – by further offending and non-compliance – imposed by the County Court on 2 October 2019.

   [1]His date of birth is 19 June 1987.

   [2]Drugs, Poisons and Controlled Substances Act 1981, s 71 AC. The maximum penalty is 15 years’ imprisonment.

   [3]Crimes Act 1958, s 23. The maximum penalty is 5 years’ imprisonment.

   [4]Crimes Act 1958, s 74(1). The maximum penalty is 10 years’ imprisonment.

   [5]Drugs, Poisons and Controlled Substances Act 1981, s 73(1). The maximum penalty is one year’s imprisonment.

   [6]Road Safety Act 1986, s 64A. The maximum penalty for a subsequent offence is one year’s imprisonment.

   [7]Road Safety Act 1986, s 61(1)(a). The maximum penalty is 14 days’ imprisonment.

   [8]Crimes Act 1958, s 195. The maximum penalty is 2 years’ imprisonment.

   [9]Bail Act 1977, s 30B. The maximum penalty is 3 months’ imprisonment.

   [10]Bail Act 1977, s 30A(1). The maximum penalty is 3 months’ imprisonment.

   [11]Control of Weapons Act 1990, s 5AA. The maximum penalty is 2 years’ imprisonment.

   [12]Road Safety Act 1986, s 18(1)(a). The maximum penalty is 6 months’ imprisonment.

   [13]Road Safety Act 1986, s 64 (1). The maximum penalty is 2 years’ imprisonment.

2. Following a plea in mitigation, on 25 March 2022 the judge sentenced the applicant to a total effective sentence of two years and nine months’ imprisonment, with a non-parole period of one year and 10 months, in accordance with the following table:

Charge	Offence	Sentence	Cumulation
1	Trafficking a drug of dependence	20 months	Base
2	Reckless conduct endangering serious injury	18 months	6 months
3	Theft	8 months	1 month
4	Trafficking a drug of dependence	18 months	4 months
5	Possessing a drug of dependence	1 month	—

Related summary offences
4	Fail to stop vehicle on police request		16 months (aggregate with RSO 4, 5, 23)	2 months
5	Fail to stop after an accident
8	Dealing with proceeds of crime		—
10	Committing indictable offence on bail		—
11	Contravening bail conduct condition		—
19	Possessing a prohibited weapon		—
21	Committing indictable offence on bail		—
23	Unlicensed driving		See RSO 4	See RSO 4
24	Dangerous driving
Breaching community correction order		1 month	—
Total Effective Sentence		2 years and 9 months’ imprisonment
Non-parole period		22 months
Pre-sentence detention		490 days
Section 6AAA declaration		4 years’ imprisonment with 2 years and 2 months non-parole
Other orders		Driver’s licence cancelled for 12 months

1. The applicant now seeks leave to appeal against the sentence on a ground that contends that the sentencing judge ‘fell in error by not finding that the principles raised in Bugmy^[[14]] applied to the applicant’.

   [14]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).

2. In our opinion, the ground lacks substance.  Leave to appeal should be refused.  Our reasons follow.

The applicant’s criminal history

1. Before describing the applicant’s offending, it is convenient to say something of his unenviable criminal antecedents.

2. The applicant’s criminal history – which involves some 14 court appearances – commences with a sentence for criminal damage in December 2005, when he was aged 18 years.  It is followed a year later with convictions for making a threat to kill, unlawful assault, resisting police and failing to answer bail.  Thereafter, the applicant amassed a vast array of convictions for dishonesty, drug possession, weapons possession, property damage, stalking and driving offences, together with crimes of violence, including unlawful assault, assault with a weapon, recklessly causing serious injury and recklessly causing injury.  Very significantly, the applicant has previous convictions for trafficking methylamphetamine; reckless conduct endangering life; dangerous driving whilst being pursued by police; motor vehicle theft; and failing to stop on police direction.  

3. Also significantly, the applicant has a history of breaching court orders, including family violence intervention orders; bail orders; driving disqualification orders; community based orders; and suspended sentences of imprisonment.  Prior to the sentence now under consideration, he had been sentenced to imprisonment on 11 occasions, the longest such sentence being a sentence of 12 months’ imprisonment, coupled with a CCO, imposed on 2 October 2019 by a judge of the County Court on appeal.

4. Self-evidently, the applicant has not been much deterred – if at all – from criminal and anti-social behaviour by supervisory orders intended to foster his rehabilitation or by moderate sentences of imprisonment.

The offending

1. The sentence under consideration involved two incidents of offending by the applicant.

The first incident: 30 August 2020

1. At about 6.22 pm on 30 August 2020, police observed a Toyota Camry parked outside 1 and 1A Tarene Street, Dandenong.  The Toyota Camry belonged to an acquaintance of the applicant, and had been loaned to him earlier in the day.  A female, Kahla Lowick, was seated in the front passenger seat with the door open.

2. Police performed a ‘u-turn’ to intercept the vehicle, and observed the applicant walking along the driveway between 1 and 1A Tarene Street.  When he noticed police, the applicant appeared to press himself against a brick wall to avoid detection.  Police requested the applicant to approach, which he did.  He told police he was buying ‘rims’ for his friend’s car from someone at the address.

3. Police advised the applicant that they were performing COVID-19 compliance checks.  The applicant – who had a satchel bag over his shoulder and was holding a mobile phone and wallet – appeared to be agitated, but provided his details to police.  Police observed a large amount of cash in the applicant’s wallet and informed him that he would be subject to a search under the Drugs, Poisons and Controlled Substances Act 1981.

4. The applicant then became aggressive, causing police to request backup.  He threw his black satchel onto the grass next to police and put his wallet and phone by his feet.  Police collected the bag and wallet to conduct a search.  Whilst they were doing so, the applicant got into the driver’s seat of the Toyota Camry and drove off at a fast speed with Ms Lowick still in the front passenger seat.

5. At about that time, another police officer was driving a police vehicle north along Tarene Street.  He observed the Toyota Camry driving south on the wrong side of the road. When the Toyota Camry was less than 10 metres away, the officer was forced to make a hard right turn to avoid a head-on collision.  In order to pass the police vehicle, the applicant’s vehicle mounted the kerb on the right-hand side, colliding with bins as it did so.  As the applicant swerved left to go back onto the road, his vehicle collided with the rear passenger side of the police vehicle, causing damage.  No police were, however, injured (charge 2 – conduct endangering persons).  The applicant continued driving south and did not stop following the collision (summary charge 5 – failing to stop vehicle after accident).

6. Another police vehicle followed the applicant’s vehicle in an attempt to intercept him. Whilst doing so, police observed the applicant overtake another vehicle on the wrong side of the road at a fast speed, before returning to the correct side of the road (summary charge 24 — dangerous driving).  Police again attempted to intercept the applicant, who failed to stop (summary charge 4 — fail to stop on police request).  The applicant was not the holder of a driver’s licence (summary charge 23 — unlicensed driving).

7. A search of the applicant’s black satchel bag revealed the following:

   ·two large, and one small, ziploc bags containing 68.5 grams of methylamphetamine, the pure weight being 56.4 grams (charge 1 — trafficking a drug of dependence);

   ·cash in the sum of $309.55 (summary charge 8 — deal with property suspected of being proceeds of crime);

   ·a large quantity of unused ziploc bags; and

   ·one small digital scale.

8. A search of the applicant’s wallet revealed:

   ·identification documents in the applicant’s name; and

   ·cash in the sum of $1,905 (summary charge 8).

The second incident: 22 October 2020

1. On 22 October 2020, at approximately 9.55 am, police received information that the applicant, whom they had sought since 30 August 2020, was at the Sandown Regency Hotel in Noble Park.  Police attended, and hotel management informed them that Jordan James, an associate of the applicant, was staying in room 3.  

2. Police attended room 3.  A silver Volkswagen Golf was parked directly outside.  Mr James admitted the police.  The applicant, who was on the bed, was arrested and cautioned.

3. Police located the following:

   ·on the right bedside table, a small amount of methylamphetamine in a ziploc bag, a small black case which contained a further two ziploc bags containing methylamphetamine and a small bottle containing 35.1 grams of 1,4 Butanediol (charge 5 — possess drug of dependence); and

   ·on the floor of the right side of the bed, a small black toiletries bag containing four ziploc bags containing methylamphetamine.

4. The total combined weight of the methylamphetamine was 36.6 grams, the pure weight being 30.492 grams (charge 4 — trafficking in a drug of dependence).

5. A check of the Volkswagen Golf revealed it to have been stolen from a Windsor address between 23 and 24 August 2020 (charge 3 — theft).  A search of this vehicle revealed the following:

   ·a balaclava;

   ·a taser (summary charge 19 — possess prohibited weapon); and

   ·a damaged black Samsung phone.

6. The applicant had been bailed by Magistrates’ Court on 7 August 2020 for unrelated offending (summary charges 10 and 21 — commit indictable offence whilst on bail).  A condition of his bail included that he not drive a motor vehicle (summary charge 11 — contravene conduct condition of bail).

Arrest and committal

1. After his arrest on 22 October 2020, the applicant was interviewed.  He told police that he could not recall the incident on 30 August 2020 as a result of being involved in a bad car accident on 9 April, which he said led to memory loss.  The applicant told police that he did not know anything about the drugs or cash found, but that he is a user of methamphetamine.  He said that he did not know that the Volkswagen Golf was stolen, and that he had bought it from a random person.  The applicant said that he had found the taser that was located in the vehicle.  Everything in the car and hotel room was his. He said that he has such large quantities of methamphetamine because he uses a lot, and that he did not buy the drugs but that they just came into his possession.  The applicant also told police that he has never held a driver’s licence.

The applicant’s submissions on the plea

1. At the time of committing the present offences, the applicant was subject to a CCO.  Counsel for the applicant informed the judge that, whilst subject to the CCO, the applicant was the victim of a serious crime in which his car was rammed off the road by another vehicle, as a result of which he suffered serious injuries.

2. Counsel for the applicant told the sentencing judge that the applicant from when he was young until aged 17 was the victim of significant violence perpetrated by his violent, alcoholic father.  There were times where the applicant lost consciousness as a result of his father’s assaults upon him.  This violence had a profound effect on the applicant.  It resulted in the applicant having significant anger and behaviour issues, and in him leaving school in Year 7.  From age 12, the applicant began engaging in heavy alcohol consumption, and, from age 13, polysubstance abuse.  In his 20s, the applicant misused prescription medication, and eventually turned to cocaine and methamphetamine.  As a result of his drug abuse and head injuries, the applicant has been diagnosed with an Acquired Brain Injury (‘ABI’).

3. The applicant’s counsel submitted that a report from Dr Evrim March, a clinical neuropsychologist, dated 7 October 2021 (Exhibit D2),

   enlivens Bugmy and there’s evidence of Bugmy which in turn entitles, if it’s found, if it’s held to be found, entitles [the applicant] to a sentencing discount in regards to his ongoing moral culpability.

4. There was then the following important exchange:[15]

   [15]Emphasis added.

   HER HONOUR:  Just in terms of Bugmy, I have obviously read numerous reports where an assessor, whether they be a neuropsychologist, a psychologist or psychiatrist address Verdins,[16] I’ll put that to one side for the moment but I’ve never seen a report address Bugmy. What understanding does Dr March have of the decision of the High Court in Bugmy?

   [DEFENCE COUNSEL]:  I wouldn’t know what specific knowledge of Bugmy would be. I believe she’s been provided previously by her office with, and I may stand to be corrected, but it’s my understanding that a copy of the Bar Book with a summary of Bugmy may have been provided to her in the past in regards to what (indistinct) and what its relevance is.

   HER HONOUR:  I mean, isn’t it really a matter for me?

   [DEFENCE COUNSEL]:  It is.

   HER HONOUR:  In a sense that accepting as I do that your client’s had a very difficult upbringing. I don’t have any reason to dispute that he was largely left in the hands of his father whilst his mother worked. I don’t have any reason to take issue that his father was an alcoholic. I don’t have any reason to take issue with the fact that his father was a violent alcoholic and I don’t have any reason to take issue with the fact that your client was the subject of that violence and that dynamic was one that therefore affected his education and his own behaviour and ultimately his resort to drug use and abuse. I don’t have any problem with any of that. I’ll just check. Mr [Prosecutor], any issue from your end with that?

   [PROSECUTOR]:  No, Your Honour. My primary concern with the Bugmy submission is just the basis of which and how it derives from Dr March’s report.  There’s no criticism of what’s contained in that and in relation to the truth of what’s contained, it’s just really the scarcity of the details which my submission would be based on.

   HER HONOUR:  So it’s really about — it just doesn’t seem to me that Dr March can really comment on the application of the Bugmy principles. It seems that really it’s a matter for me and I don’t know where the line sometimes gets drawn in terms of a person’s personal circumstances and whether ultimately I’ll have to form the view that he came from a situation of severe social disadvantage.  Be that as it may, I’m telling you I accept that Mum wasn’t home, I accept that Dad was. I accept that Dad was an alcoholic. I accept that Dad was violent and I accept that Dad was violent towards [the applicant]. I accept that that impacted on his own behaviour and sense of well-being.  It undoubtedly affected his schooling and social interactions and undoubtedly led to his resort to drug use and abuse, what I call that.

   [DEFENCE COUNSEL]:  Well, Your Honour, what I would say is that those are all elements that are identified in the Bugmy decision as elements that are indicative of a finding of Bugmy would apply.

   HER HONOUR:  Be that as it may, sometimes described as a double-edged sword in the sense that it’s something that should be factored into account each and every time someone like [the applicant], if Bugmy applies, appears before a court to reduce moral culpability but by the same token, that then lends weight to the need for protection of the community, which I see that there’s a great need for in [the applicant’s] case unfortunately because he’s not yet at that age or stage where he doesn’t want drugs to be part of his life.

   [DEFENCE COUNSEL]:  Well, Your Honour, what I would say in relation to that double-edged sword is that even if it does exacerbate some of the other sentencing considerations that Your Honour’s has taken into account, it would be my submission that the net effect, if a Bugmy submission is accepted, the net effect should overall be still result in an amelioration of the sentence that the Bugmy submission, if accepted, shouldn’t result on a person receiving a more severe punishment even if it balanced by the other considerations.

   [16]R v Verdins (2007) 16 VR 269.

5. Counsel for the applicant also submitted that, as an extension of the impact of the applicant’s childhood, he has been diagnosed with an antisocial personality disorder and has cognitive impulsivity.  The severity of the persistent physical abuse the applicant suffered as a child increased the risk of mental illness, drug and alcohol dependence, personality disorder and forensic involvement as an adult.  In the following exchange, however, counsel made clear that Verdins considerations were not relied upon:

   HER HONOUR:  All right, I understand how that’s put.  In terms of Dr March’s report, is there a reliance on Verdins?

   [DEFENCE COUNSEL]:  No, there’s not a reliance on Verdins. There is a submission in relation to [the applicant’s] mental health and it’s probably — it may have been better put as almost an extension of the Bugmy submission in regards to the diagnosis — well there’s the cognitive impulsivity which is exacerbated by his drug use which he’s diagnosed with. But there’s also the antisocial personality disorder which Dr March was not prepared to say enlivened Verdins or crossed the threshold sufficient to Verdins. However, she does note that the severity of the persistent physical abuse as a child is considered a significant factor in diagnosis and that having a conduct disorder increases the risk of mental illness, drug and alcohol dependence, personality disorder and forensic involvement as an adult. All of which effectively are present for [the applicant]. So that mental health condition is a further consequence, in my submission, of the Bugmy background and whilst it doesn’t perhaps cross the Verdins threshold, it is, in my submission, nonetheless a relevant consideration and does carry some weight at sentencing.

1. Finally, the applicant’s counsel submitted that the plea of guilty was early, the matter having resolved on the day of the committal, entitling the applicant to a sentencing discount.  Finally, counsel submitted that, as a result of the COVID-19 pandemic, the conditions of the applicant’s custody on remand had been ‘particularly onerous’.

The judge’s sentencing reasons

1. In her reasons for sentence, the judge said:[17]

   [17]Emphasis added.

   Your counsel seeks to rely on what is referred to as the Bugmy principles.  Without turning to the dire personal circumstances and upbringing of Mr Bugmy, which was an environment of extreme dysfunction and disadvantage, the High Court in [Bugmy] made a number of significant findings which include:

   (a)A person’s background of social disadvantage may mitigate sentence. 

   (b)The effect of a person’s background of social disadvantage may vary but it does not diminish over time.

   (c)The impact on an individual sentence of a person’s history of social disadvantage can and should vary as the weight to be afforded social disadvantage requires individual assessment.

   (d)Most importantly, ‘…in any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence it is necessary to point to material tending to establish that background’. 

   I do accept that aspects of your background appeared difficult in the sense of your mother's absence due to work, you being left in the care of a violent alcoholic father, the impact then on your education and your early resort to drug use. Drugs have remained in your life and seem to be your primary method of managing your emotions and wellbeing, however ill-conceived that might be. I have no reason to challenge your background as described. 

   However, I am not persuaded that circumstances of profound social deprivation have been established. The information before me is relatively limited. That does not mean that your background is without relevance to the sentencing exercise. I do accept it has shaped the man you are today, but not such as to have any meaningful reduction in your moral culpability for the offending which is before this court.

The submissions in this Court

1. In this Court, counsel for the applicant submitted that the sentencing judge had erred in finding that the applicant had not suffered the profound disadvantage of the kind referred to in Bugmy.  An offender’s background is always relevant to the sentencing task.  But when that background is one of profound disadvantage of the kind referred to in Bugmy, a reduction in moral culpability is justified.  Counsel for the applicant submitted that the reduction in moral culpability, and the moderation of sentence, is assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.

2. Referring to the sentencing remarks extracted above, the applicant’s counsel submitted that, even if the information before the sentencing judge was relatively limited, the personal background that the judge appears to have accepted supports a conclusion that the applicant did suffer profound disadvantage of the type envisaged in Bugmy, and there should have been a reduction in the moral culpability for this reason, even if only moderate.  The judge erred in failing to find profound social deprivation to have been established, and in failing to reduce the applicant’s moral culpability as a result.  Citing Herrmann,[18] counsel submitted that the ‘general’ approach does not depend on proof of a nexus between the relevant offending and the high level of deprivation, abuse and other social disadvantage.

   [18]DPP v Herrmann (2021) 290 A Crim R 110, 121 [45].

3. Counsel for the respondent submitted that the evidence suggested that the applicant had seen little of his mother and that his father was a violent alcoholic who often was violent towards him.  The sentencing judge was not persuaded, however, that the evidence relied upon relating to the circumstances of the applicant’s upbringing was sufficient to lead to a meaningful reduction of his moral culpability.  In the judge’s opinion, that evidence was simply too limited.  Despite this finding, however, the judge was prepared to take this evidence into account in a general manner.  The respondent’s counsel submitted that, having regard to the statements of principle found in Bugmy, and given the quality of the evidence relied on by the applicant, the finding made by the judge was reasonably open to her.  There can be no gainsaying, counsel submitted, that the treatment of the applicant by his father was very unfortunate, but it is difficult to see how this evidence could adequately ‘explain’ the current offending – broadly,  drug and driving offences –  such as to lessen the applicant’s moral culpability in the manner contemplated in Bugmy.

4. Ultimately, the respondent’s counsel submitted that, even if this Court determined that the judge did err, the Could should nevertheless conclude that no different sentence should be imposed and refuse leave to appeal accordingly.[19]

   [19]See Criminal Procedure Act 2009, s 280(1).

Discussion

1. Essentially, the applicant’s argument took issue with the judge’s failure to find a ‘fact’ on the evidence before her; that is, that the applicant did not experience ‘profound social deprivation’.  In our view, however, it was open to the judge to find that the applicant had failed to establish ‘profound social deprivation’ of the kind contemplated in Bugmy.  The information before the judge – generally consisting of the contents of Dr March’s report – was indeed ‘relatively limited’.  It was open to the judge to find that the applicant’s background was ‘not such as to have any meaningful reduction in [his] moral culpability for the offending which is before this court’.

2. The circumstances that led to a conclusion of ‘profound childhood deprivation’ in Bugmy included the facts that the appellant was an Aboriginal man who grew up in a household in which alcohol abuse and violence were commonplace.  He had little formal education, was unable to read or write, and had started drinking alcohol and taking prohibited drugs when he was 13 years old.  He witnessed his father stab his mother 15 times, and his siblings all had records for violence.  His record of juvenile offending commenced when he was 12, and he was regularly detained in juvenile detention centres from that age.  When he turned 18 he was transferred to an adult prison.  He had a long record of convictions including for offences of violence, and had spent much of his adult life in prison.  His history included repeated suicide attempts.[20]

   [20]Bugmy, 584 [12].

3. Importantly, the High Court made it clear in Bugmy that a deprived background does not have the same relevance to all purposes of punishment:[21]

   Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult.[22]  An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced.  However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

   [21]Ibid 595 [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (citation as in original).

   [22]Veen v The Queen [No 2] (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ.

4. Assuming, as we do, that the applicant suffered some childhood deprivation, we are unable to see how it might be said to ‘explain’ the present offending, which essentially involved drug trafficking and an attempt to avoid arrest through reckless driving.  The offending in the present case did not consist of a ‘recourse to violence when frustrated’, borne of an ‘inability to control that impulse’, such that the applicant’s moral culpability ‘may be substantially reduced’.  That said, we accept (as did the judge) that the applicant’s background is not without relevance to the exercise of the sentencing discretion.  But it is difficult to conceive how it might lead to any ‘meaningful reduction in [his] moral culpability’. 

5. Notwithstanding that we accept that he may have suffered some degree of childhood deprivation, we consider that the applicant’s criminal history significantly illuminates his moral culpability.  Although, of course, he is not to be punished again for his prior offending, the applicant’s criminal antecedents are relevant in a number of ways: as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, concomitantly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[23]  In that regard, the High Court made clear in Veen [No 2][24] that, although the applicant’s antecedent criminal history ‘cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’, it is relevant

   to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.  Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency.  That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

   [23]R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA).

   [24]Veen v The Queen [No 2] (1988) 164 CLR 465, 477–8 (Mason CJ, Brennan, Dawson and Toohey JJ) (‘Veen [No 2]’).  See also R v O’Brien and Gloster [1997] 2 VR 714, 718 (Charles JA); Bugmy, 595 [45].

6. For these reasons, we are not persuaded that the judge erred in the manner contended by the applicant. 

7. Had we been persuaded that the error contended for had been made out, however, we would still have refused leave to appeal, since there is no reasonable prospect that a less severe sentence might be imposed.  We consider the sentence imposed on the applicant to be remarkably lenient.  It can only be explained by the sentencing judge having given full weight to all relevant mitigating features.

Conclusion

1. Leave to appeal against sentence should be refused.

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