Russo v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0156

JOSHUA VINCENT RUSSO	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 55
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Joshua Russo (County Court of Victoria, Judge Wischusen, 31 July 2023)

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CRIMINAL LAW – Appeal – Sentence – Common assault – Causing serious injury recklessly – Applicant hit male victim with metal bar to the jaw and pushed female victim to the throat in unprovoked attack following verbal exchange in response to insults to nearby women – Applicant pleaded guilty to one charge of common assault and one charge of causing serious injury recklessly – Sentenced to nine months’ imprisonment and 18-month community correction order (with treatment conditions) – Whether sentencing judge failed to take Verdins limb three into account – Whether sentence manifestly excessive – No failure to consider to Verdins limb three – Sentence not manifestly excessive– Leave to appeal refused.

Crimes Act 1958, ss 15, 17.

Minutolo v The King [2023] VSCA 300, applied; R v Verdins (2007) 16 VR 269, DPP v Russell [2014] VSCA 308, discussed.

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Counsel
Applicant:		Mr J Manning
Respondent:		Ms D Piekusis KC
Solicitors
Applicant:	Doogue & George Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
T FORREST JA:

On 31 July 2023, after a plea of guilty, the applicant was sentenced for one charge of common assault and one charge of causing serious injury recklessly. The details of the sentence are set out in the table below.

Charge on Indictment	Offence	Max Penalty	Sentence
1	Common assault[1]	5 years	Aggregate sentence of 9 months’ imprisonment and an 18-month community correction order (with treatment conditions)
2	Causing serious injury recklessly[2]	15 years
Total Effective Sentence:		9 months’ imprisonment and 18-month community correction order (with conditions)
Section 6AAA Statement:		4 years’ imprisonment with a non-parole period of 2 years and 3 months
Other Relevant Orders: Disposal order pursuant to s 78(1) of the Confiscation Act 1997.

[1]Contrary to Common Law.

[2]Contrary to s 17 of the Crimes Act 1958.

The applicant seeks leave to appeal on the following grounds:
Ground 1 – The learned sentencing judge erred by failing to take into account the third of the Verdins[3] principles.
Ground 2 – The aggregate sentence imposed on charges 1 and 2 is manifestly excessive.

The offending[4]

[3]R v Verdins (2007) 16 VR 269, 276 [32].

[4]This description of the offending is drawn from the Summary of Prosecution Opening, which was tendered as Exhibit 1 on the plea.

At about 4.40 pm on 23 October 2021, Jason Jessup and his fiancée Tiffany Brochus attended at the Carrum Downs Plaza. Ms Brochus attended a pharmacy. Mr Jessup waited outside the pharmacy.
An elderly blue Holden Commodore owned by the applicant cruised into the Plaza area. Two young women were also in the general vicinity. A male within the vehicle yelled out, ‘Fuck yeah. Sluts. Yeah’. The applicant repeatedly revved the Commodore’s engine very hard. The exhaust was barely muffled and the effect was violently loud. Some bystanders leaving a nearby liquor store seemed to approve.
Mr Jessup approached the Commodore and said, ‘Stop acting like a flog. No one needs to hear that’ and a little later ‘just go mate, you’re making an idiot of yourself. Show some bloody respect’. At about this time, Ms Brochus emerged from the pharmacy. Her contribution was, ‘Your car sounds like shit. It’s obvious you have a small dick’.
We have viewed the CCTV footage of what happened next. The applicant stated, according to witnesses, ‘what, what’, and then sprung from his car armed with a silver metal bar with what appeared to be a socket on one end. Two other unidentified males also left the car.
Mr Jessup told the applicant to get back into his car. The applicant replied, ‘You and your slut can fuck off’. The applicant still holding his weapon said to Mr Jessup, ‘You want it? You want it?’. Ms Brochus stepped in between the two men. The applicant pushed Mr Jessup and dropped his weapon as he did so. He picked it up and then pushed Ms Brochus at least twice to the throat ‘with obvious force’[5] (Charge 1) before another male pushed her to the ground.
[5]DPP v Russo (County Court of Victoria, Judge Wischusen, 31 July 2023), [10] (‘Reasons’).
At about this time, a male, apparently unconnected to these earlier events and with his arm in a sling, arrived on the scene. He had recently departed from the Cellarbrations bottle shop. He kicked Mr Jessup from behind, causing Mr Jessup to lose balance and face his new adversary. Ms Brochus was still endeavouring to discourage the applicant from engaging with Mr Jessup. The applicant now side on to Mr Jessup swung the metal bar with a roundhouse motion and it struck Mr Jessup squarely within the mouth/jaw region (Charge 2). He collapsed to the ground. The two unidentified males set about Mr Jessup kicking him as he lay on the ground. One of them struck Ms Brochus causing her to fall over the prone Mr Jessup. Shortly after that, she was thrown roughly to the road.
A strongly built bystander intervened. The applicant and his passenger re-entered the Commodore and decamped. The male with the arm sling walked away.
The applicant’s plea represented an acknowledgment of only his parts in these violent events. The judge accepted that the applicant was ‘not to be sentenced for any of the actions of the unknown males …’.[6]
[6]Reasons, [12].
Mr Jessup was treated at the scene by paramedics and transported to Frankston Hospital. He sustained:
•a left front subcutaneous haematoma;
•full thickness oblique laceration across the upper lip, extending onto the skin beneath the nose;
•left infraorbital tenderness; and
•horizontal comminuted maxillary alveolar ridge (upper jaw) tooth bearing segment ridge fractures involving the teeth numbered 11, 12 and 21, and the loss of tooth number 22.
Mr Jessup was treated with:
•debridement and repair of upper lip laceration involving treatment by a plastic surgeon;
•repositioning and splint of teeth performed by a dentist;
•analgesia, antibiotics, antiemetics and diphtheria tetanus vaccinations.
The fracture of the upper jaw and the dental injuries were the most significant of Mr Jessup’s injuries. By his plea to recklessly causing serious injury, the applicant admitted that these injuries were substantial and protracted.[7]
[7]Satisfying the definition of ‘serious injury’ in s 15 of the Crimes Act 1958.
On 1 November 2021, the police executed a search warrant at the applicant’s residential address. Amongst other items, police seized clothing similar to that depicted on the CCTV footage referred to earlier in these reasons, a blue Holden Commodore and a silver coloured metal bar located between the front passenger seat and the centre console of the Commodore.
The applicant was arrested on 3 November 2021. He made a ‘no comment’ record of interview.
The applicant has no prior convictions nor has he been charged with, or convicted of any, subsequent offending.

The plea hearing

Prosecution submissions

A summary of prosecution opening was tendered on the plea. Victim impact statements were read which outlined the serious impacts felt by Mr Jessup and Ms Brochus. Later, after defence submissions, the prosecution submitted that a period of imprisonment was ‘necessary to account for the seriousness of the offending, notwithstanding the lack of priors for the accused, and his obvious attempts at rehabilitation since’. After revisiting the expert reports tendered by the applicant, the prosecutor stated that her instructions remained that a combination term of imprisonment with a community correction order (CCO) would be within range, but that a CCO alone was not within range.
The prosecutor accepted that whilst there was a ‘potential application of Verdins’,[8] the fact of the applicant’s drinking and amphetamines use before the offending meant that the mitigatory effects of some mental impairment (Attention Deficit/Hyperactivity Disorder (‘ADHD’) and low intellectual functioning) were reduced. The applicant ‘having been a user of those substances regularly … would have been aware of the real risk that those substances would impair his judgment to the extent that he could lose rational control’.
[8]See R vVerdins (2007) 16 VR 269; [2007] VSCA 102 (‘Verdins’).
The prosecutor initially submitted that any findings regarding Verdins limbs one to four should be treated with caution and Verdins did not in fact get invoked with respect to those limbs. Ultimately however, it was conceded in respect of limbs one to four, that the judge should accord the guarded opinions of the experts some weight in determining whether or not there was some reduction in moral culpability by virtue of the applicant’s low cognitive functioning and ADHD. Limbs five and six were engaged.
The prosecutor submitted that current sentencing practices for causing serious injury recklessly committed in similar circumstances to this case (offending with a weapon in an unprovoked manner) dictated that a term of imprisonment was appropriate and necessary to address the seriousness of the unprovoked offending. Given the exceptional plea material however, there was a concession that a period of imprisonment could be truncated such that a combination sentence was within range.

Defence submissions

Defence counsel submitted that his client had acknowledged his wrongdoing from an early stage and expressed remorse to his family members and employer. He submitted that there was apparent aggression on both sides of the confrontation and the CCTV footage illustrated the applicant’s poor impulse control.
The applicant was supported at court by many family members, friends and his partner. No issue was taken with the prosecution opening. Counsel emphasised that the applicant stood to be sentenced for the two physical acts perpetrated by him and not the cowardly acts of his, so far unidentified, co-offenders. Counsel tried to gain some comfort from the fact that his client desisted and withdrew after striking Mr Jessup with the bar. The judge correctly observed that by that stage Mr Jessup had been ‘felled’.
The applicant’s personal circumstances were said to be as follows.
•He was aged 24 at the time of the offending and relatively immature.[9]
[9]Citing R v Mills [1998] 4 VR 235, counsel submitted that the community has a vested interest in seeing young people rehabilitated, particularly where the prospects of rehabilitation are sound.
•On the day of the offending, he had used alcohol and amphetamines.
•He suffers from ADHD and borderline intellectual functioning.
•He had recently ceased a long-term relationship at the time of the offending. He has a small child from the relationship and shares care of the child. He was at the time of the plea, in a new and supportive relationship.
•He was highly remorseful, as evidenced by character references, the psychological and psychiatric reports, and his plea of guilty.
•His prospects of rehabilitation were excellent.
•He had no prior convictions, nor had there been any further offending and it was submitted, he was ‘advanced down the pathway of reformation.’
•He made a plea offer to the prosecution on 31 January 2022 when the effects of the pandemic on the courts were ‘clearly in full swing’ and there had been no contested committal or cross-examination of any witnesses at any stage.
•There had been a period of delay of approximately 20 months during which time the applicant had had the matter hanging over his head and had gone about his rehabilitation.[10]
•He had complied with all his bail conditions, attended counselling and his general practitioner, and had disclosed his offending to his treating medical professionals, family, friends and employer.
•He had been referred to a psychiatrist to commence medication for his ADHD but did not have private health cover. There was ‘every indication that he can be compliant with that type of assistance and medication’.
[10]Citing R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
Counsel submitted that the offending was not premeditated and developed relatively spontaneously. The injuries, while serious, were at the lower end of the scale of seriousness bearing in mind the definition of serious injury in the Crimes Act 1958.[11]
[11]Section 15 of the Crimes Act 1958 relevantly reads:
‘serious injury means—
(a)      an injury (including the cumulative effect of more than one injury) that—
(i)       endangers life; or
(ii)      is substantial and protracted; or
(b)the destruction, other than in the course of a medical procedure, of the foetus of a pregnant woman, whether or not the woman suffers any other harm’.
A bundle of character references was tendered from family members, his new partner, and his employer.
A neuropsychological report prepared by Mr Martin Jackson was tendered. Its substance was as follows.
•The applicant was assessed in person over two hours and 30 minutes.
•He had a history of learning and behaviour difficulties in primary school and his behaviour deteriorated in secondary school. He was diagnosed with dyslexia in grade 1.
•He attended a TAFE course to assist in completing school (VCAL) and started a carpentry course which he did not complete. After leaving school, he worked for a couple of years as a labourer and since then has worked as a spray painter of trucks.
•He commenced smoking and drinking at a young age. He commenced smoking marijuana at 13 or 14. This stopped after he separated from his ex-partner.
•He commenced using ice when he was 15 or 16, generally on weekends. He started using Xanax to relax. He had ceased using both.
•He grew up in Frankston and Langwarrin. His parents separated when he was aged 7 and divorced when he was 9. He has two younger siblings and five step-siblings. There was some domestic violence within his family from his father.
•The incident occurred the day before his 25^th birthday.
•Neuropsychological tests were administered including the Weschler Adult Intelligence Scale 4^th edition and various memory tests.
•He was generally able to follow test instructions.
•He is a man of estimated borderline to low average premorbid abilities. His verbal intellectual abilities, perceptual intellectual abilities, working memory abilities and processing speed were all in the borderline to low average range.
•He performed in the extremely low range in some areas including high level attention, complex new learning, and impulse and attentional control.
•These impairments would be exacerbated by the use of drugs or alcohol.
•His previous diagnosis of dyslexia was inaccurate and was not supported by the information at the time or the current assessment. It had meant that the real cause of his behavioural and learning deficits had gone undiagnosed.
The neuropsychologist was of the opinion that ‘it is highly likely (the applicant) actually has ADHD, with poor impulse control and low frustration tolerance’. He was of the opinion that ‘there is a high probability of a link between Mr Russo’s cognitive and behavioural deficits and the offending behaviour’.
Dr David Trainor, a consultant psychiatrist, was engaged to prepare a medico-legal report concerning the applicant’s underlying psychiatric state, and any relationship it had to the offending. He interviewed the applicant on 17 March 2023 for 90 minutes and 24 March 2023 for 75 minutes. The applicant’s mother joined for the second assessment. His report is dated 1 April 2023. A similar history to that obtained by Mr Jackson was obtained. He noted that the applicant was asked to leave school halfway through year 10, had difficulties with learning and behaviour at school, witnessed domestic abuse, experienced physical abuse from his father as a child, and was hyperactive as a child. He would have met the criteria for conduct disorder in childhood.
The applicant had no psychiatric history but had seen a psychologist in the past for anger management, and had seen his general practitioner after his long-term relationship broke up, when he experienced anxiety in the context of illicit substance cessation.
Dr Trainor’s opinions, in short, were as follows.
•The applicant meets the criteria for ADHD, predominantly inattentive presentation type.
•It is likely his childhood troubles at school and socially were related to his untreated ADHD.
•Untreated ADHD and his childhood trauma make it more likely that the applicant would develop illicit substance use and alcohol abuse. He meets the DSM V criteria for Cannabis Use Disorder in sustained remission, and Stimulant Use Disorder in sustained remission.
•His substance use likely influenced the offending by increasing disinhibition, impulsivity, and impairing his judgment.
•Untreated ADHD made him more vulnerable to react impulsively, have low frustration tolerance, and made it harder for him to regulate his emotional state in the moment.
•Impulsivity, hyperactivity and inattention are core features of ADHD and increase the likelihood of violence.
•His childhood adversity made it more likely he would respond with violence when angry, and justify this as socially acceptable.
•He has no history of a significant mood disorder or psychotic illness.
•The applicant has some insight that future use of drugs will make it more likely he would reoffend.
•He needs drug and alcohol counselling given the impact they had on his offending.
•His prospects for rehabilitation are good if he curtails his drug and alcohol use, has treatment for ADHD and completes psychological work.
•The impact of prison on the applicant is unclear. He may be more vulnerable to mental health decline given it will be his first time in prison. His ADHD, borderline intellectual functioning, past substance abuse and childhood adversity ‘all predispose him to developing major mental illness’.
The applicant’s counsel submitted that all principles in Verdins and Bugmy[12] were engaged.
[12]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
Further, the applicant’s counsel submitted:
In considering the Verdins' principles obviously general deterrence and specific deterrence can be sensibly moderated.
For other reasons I say that specific deterrence doesn't loom large because of who he is and how he's responded. He's got the message clearly, and because of his mental health issues also, specific deterrence and general deterrence warrant some reduction, and he is less in my submission of an appropriate vehicle for those sentencing objectives than others.

The judge’s reasons for sentence

The judge set out the factual circumstances in similar terms to the summary of prosecution opening. He noted that Mr Jessup is permanently disfigured by scarring with loss of sensation on the right side of his mouth, the loss of a tooth and the need for continuing dental treatment. He noted he has suffered from anxiety and panic attacks and interference with his mood, social activities, work and sense of security.[13]
[13]Reasons, [19]–[20].

The judge noted that Ms Brochus’s victim impact statement describes disturbances to her mood, sense of security, sleep, social life and work performance and financial hardship.[14]
[14]Reasons, [21].
His Honour noted that it was conceded that the applicant’s plea which was first offered at the committal case conference in February 2022 but was not accepted until August 2022, was an ‘early plea’.[15]
[15]Reasons, [22].
The judge then reviewed the defence submissions. He accepted that the ‘early plea’ was also an expression of remorse and noted that the applicant was entitled to have it taken into account ‘all the more so in these times of the pandemic, although its effects are now waning’.[16] He accepted that the applicant’s prospects for rehabilitation were ‘very good’.[17] The judge took into account delay — ‘it is now 20 months since [the applicant] was charged and for all of that time the prospect of incarceration has undoubtedly weighed heavily on [his] mind’.[18] The judge noted that in that time, the applicant had not offended or breached any of the conditions of his bail, had addressed his behavioural issues, sought treatment (though funding has been a problem), moderated his intake of drugs and alcohol, and continued employment.[19] The judge also considered that the applicant’s ‘otherwise good character’ as recounted in references from his employer, his family and his partner all went in his favour.[20]
[16]Citing Worboyes v The Queen [2021] VSCA 169, [35], [39]; see also Chenhall v The Queen [2021] VSCA 175.
[17]Reasons, [28], [49].
[18]Reasons, [29].
[19]Ibid.
[20]Reasons, [27].
The judge reviewed the reports of Mr Jackson and Dr Trainor. His Honour observed that the principles of Verdins and Bugmy were submitted to be enlivened as mitigating the applicant’s moral culpability and bearing upon the likely effects of life in prison. At paras [49] and [50], the judge said:
On the material tendered on the plea, I am persuaded that your prospects of rehabilitation are very good, though I am not unreserved in my acceptance of this proposition as your insight into the effect of alcohol and substance abuse appears limited and there are passages in the reported histories that you have given which show that your acceptance of responsibility for what took place on this day is not quite complete.
As to the question of the extent to which mental and cognitive conditions described in the reporting should moderate my assessment of your moral culpability for this offending, and so the weight to be given to Verdins’ principles, this is a difficult analysis in circumstances where, on your own assessment, your behaviour was also much affected by the consumption of amphetamines and alcohol, which it is postulated in the reporting were a form of self-medication. In the end, to the extent that a link is made out, it is my view that the moderation to be afforded by these considerations is modest. I have also had regard to the opinion that your mental health may decline as a result of any incarceration.
The judge balanced this moderation against the objective gravity of the offending. His Honour said this:[21]
Against the matters to be taken into account in mitigation of penalty must be balanced the fact that this was an outrageous attack upon two strangers. It was committed in broad daylight, in company, in an apparently busy shopping centre. It was, according to the opening, precipitated by the behaviour of people in your car making disparaging sexualised comments to passers-by. When the innocent victims of your offending remonstrated with you, several opportunities presented themselves – one of them was to move on. Here, after commencing to leave your vehicle, you went back into it to retrieve what is apparently a substantial piece of solid steel. Once armed with this, you approached Jessup and pushed him forcefully so that he backed away. In doing this, you dropped your weapon but you promptly retrieved it, and despite several attempts by Ms Brochus to prevent you attacking Jessup, you eventually did so at a moment when he was defenceless because he had turned to face another assailant. This was a wholly unwarranted and cowardly response to the exchanges that had preceded it. As your plea of guilty to Charge 2 shows, you struck him in conscious disregard of the risk of the serious injury which you knew then existed.
In the circumstances, and despite the steps you have taken since, some weight must be given to specific deterrence, and as the authorities show, general deterrence must also be given weight as drug and alcohol-fuelled violence in public places[22] is becoming increasingly prevalent. Further, I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and to otherwise impose just punishment.
[21]Reasons, [51]–[52].
[22]As to this, see DPP v Russell [2014] VSCA 308 at [1], [69]; Raveche v The Queen [2015] VSCA 99 at [67]; and Vincec v The Queen [2018] VSCA 18 at [66]. See also R v Deng [2023] VSC 257 at [169]: ‘Regarding general deterrence, this principle takes priority in circumstances where public safety is put at risk, such as cases involving street violence, drugs or alcohol, and unprovoked attacks.'
After carefully weighing all matters referred to, his Honour concluded that ‘a sentence that does not involve a term of imprisonment to be immediately served would not meet all the relevant sentencing considerations’.[23]
[23]Reasons, [53].

This appeal

Proposed ground 1

Proposed ground 1 asserts that the judge failed to take into account the third of the Verdins principles. In order to understand the applicant’s submissions on this ground, it is worthwhile to set out the six principles restated in Verdins.[24]
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.[25]
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[24]Verdins (2007) 16 VR 269, [32] (Maxwell P, Buchanan and Vincent JJA); [2007] VSCA 102.
[25]See, for example, Payne at 444, [43].
The applicant’s argument is that whilst the judge specifically identified principles one, two, four, five and six as being engaged and with some work to do, a perusal of his reasons demonstrates that he failed to accord the same attention to limb three. It follows, according to the argument, that the judge thus overvalued general deterrence by not moderating or eliminating it as a sentencing consideration given the nature and severity of the applicant’s impaired mental functioning. The applicant relied on all Verdins principles in his submission to the judge and specifically contended that the applicant was an inappropriate vehicle for either specific or general deterrence on account of his mental impairment.
On the hearing of the application, counsel for the applicant punctiliously directed the Court to the judge’s reasons for sentence and demonstrated, beyond argument, that there was no direct reference to Verdins principle three. That is not the end of the argument however.
In his reasons for sentence, the judge stated that:
Mr Russo, I state to you that I have taken into account all the matters raised on your behalf in the course of your plea, during which your counsel spoke to detailed written submissions dated 25 July 2023.[26]
As we have stated, Verdins principle three was raised on the applicant’s behalf, along with all the other Verdins principles.
[26]Reasons, [23] (emphasis added).
Later in the reasons for sentence, the judge stated the extent of moderation to the ‘weight to be given to Verdins’ principles, … [was] a difficult analysis’.[27]
[27]The entire passage is set out at para [34] above.
Whilst the judge did not specifically single out principle three for individual attention elsewhere in the judgment, we are far from satisfied that the judge failed to take it into account. Had general deterrence featured prominently in the sentencing mix, we would have expected a sentence considerably in excess of the composite sentence imposed. Put another way, we regard this sentence as very lenient indeed given the egregious criminal circumstances of offending. To attack a man from behind, with an iron bar to the face, occasioning substantial and protracted injury, whilst recklessly indifferent to the consequences, is significant offending. The sentence imposed by his Honour for what is most serious offending leads inexorably to the conclusion that the judge gave full weight to all mitigating factors argued on the applicant’s behalf, including Verdins limb three. If the need for general deterrence were left undisturbed in the sentencing calculus, we consider that the sentence imposed would have been measured in years rather than in its current modest composite form.
Leave to appeal under proposed ground 1 must be refused.

Proposed ground 2

For the reasons stated under cover of proposed ground 1, the sentence imposed was not manifestly excessive. As we have said, we consider the attack on Mr Jessup to constitute significant criminal offending. It calls for an immediate term of imprisonment, and in our view, the suite of quite substantial mitigating factors was given full weight by the judge so as to enable him to impose a composite sentence involving a relatively short term of imprisonment and a CCO. In order for a ground alleging manifest excess to succeed, an applicant must demonstrate that the impugned sentence is ‘wholly outside the range of sentencing options available’ to the judge in the sensible exercise of sentencing discretion.[28] In this case, in all its circumstances, we consider the sentence to be not only comfortably within the available range, but towards the lower end of that range.
[28]Minutolo v The King [2023] VSCA 300, [62] (Kennedy JA and Kidd AJA); Sawyer-Thompson v The Queen [2018] VSCA 161, [130] (Maxwell ACJ, Tate and Beach JJA); Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
Leave to appeal under proposed ground 2 must be refused.

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[2024] VSCA 55

28 March 2024