Senarath v The King
[2024] VSCA 306
•11 December 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0159 |
| MISSAKA SENARATH | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 11 December 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 306 |
| JUDGMENT APPEALED FROM: | [2024] VCC 873 (Judge Hassan) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Persistent sexual abuse of child outside Australia, grooming to make easier to engage in sexual activity with child outside Australia, using carriage service to solicit, and cause to be transmitted to self, child abuse material, possessing or controlling child abuse material obtained or accessed using carriage service and visually capturing genital or anal region (upskirting) – TES of 13 years and 8 months, with NPP of 9 years and 6 months – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Ms M Brown | ||
| Respondent: | Ms R Champion | ||
Solicitors | |||
| Applicant: | Victoria Legal Aid | ||
| Respondent: | Solicitor for Commonwealth Director of Public Prosecutions | ||
BEACH JA:
On 26 March 2024, the applicant pleaded guilty in the County Court to two charges of using a carriage service to solicit child abuse material to be transmitted to himself, contrary to s 474.22(1) of the Criminal Code (Cth) (charges 1 and 3); nine charges of grooming a person to make it easier to engage in sexual activity with a child outside Australia, contrary to s 272.15A(1) of the Criminal Code (charges 2 and 4 to 11); one charge of persistent sexual abuse of a child outside Australia, contrary to s 272.11(1) of the Criminal Code (charge 12); and one charge of possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (charge 13). At the same time, he also pleaded guilty to one related summary charge of visually capturing a person’s genitals — upskirting, contrary to s 41B of the Summary Offences Act 1966.
On 11 June 2024, the applicant was sentenced as follows:[1]
[1]DPP (Cth) v Senarath [2024] VCC 873 (‘Reasons’).
| Charge | Offence | Maximum | Sentence | Commencement date |
| 1 | Using a carriage service to solicit, and cause to be transmitted to self, child abuse material | 15 years | 3 months | 11 August 2024 |
| 2 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 3 years | 11 August 2030 |
| 3 | Using a carriage service to solicit, and cause to be transmitted to self, child abuse material | 15 years | 2 years | 11 February 2034 |
| 4 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 3 years | 11 August 2031 |
| 5 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 4 years | 11 August 2031 |
| 6 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 18 months | 11 February 2035 |
| 7 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 2 years | 11 February 2035 |
| 8 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 12 months | 11 August 2024 |
| 9 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 10 months | 11 August 2024 |
| 10 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 18 months | 11 February 2036 |
| 11 | Grooming a person to make it easier to engage in sexual activity with a child outside Australia | 15 years | 10 months | 11 August 2024 |
| 12 | Persistent sexual abuse of child outside of Australia | 30 years Minimum penalty of 7 years | 8 years (Base sentence) | 11 August 2024 |
| 13 | Possessing or controlling child abuse material obtained or accessed using a carriage service | 15 years | 18 months | 11 August 2036 |
| Total effective sentence: | 13 years and 6 months | |||
| Non-parole period: | 9 years and 6 months | |||
Charge | Related summary offence | Maximum | Sentence | Commencement date |
6 | Visually capture genital or anal region | 2 years | 3 months | 11 June 2024 |
Overall sentence | ||||
Overall total effective sentence: | 13 years and 8 months | |||
Overall non-parole period: | 9 years and 6 months | |||
Pre-sentence detention: | 573 days | |||
Section 6AAA declaration | 17 years and 6 months imprisonment, with a non-parole period of 14 years. | |||
Other relevant orders: | To report for life pursuant to the Sex Offenders Registration Act 2004 (Vic). | |||
The applicant now seeks leave to appeal against sentence. His single proposed ground of appeal is that the total effective sentence, non-parole period and orders for cumulation on charges 3, 4, 5, 6, 7, 10 and 13 are manifestly excessive.
Circumstances of the offending
The applicant’s offending occurred between 15 May 2020 and 15 November 2022. The sentencing judge described the applicant’s offending in detail at Reasons [4]–[136]. While those paragraphs of the Reasons should be read in full in order to appreciate the true extent of the applicant’s offending, it is not necessary to burden these reasons with all of the detail of the offending. For present purposes, the offending may be more briefly summarised as follows:
(1)Between 16 May and 17 June 2020, the applicant engaged in a text message conversations with ‘Chelsea’ in which he requested ‘Chelsea’ send him child abuse material of herself or younger friends, including ‘the younger the better and the rewards get higher’. The applicant was ultimately sent one video and one image of a naked pubescent female, categorised as child abuse material (charge 1).
(2)Between 28 August 2021 and 8 January 2022, the applicant engaged in WhatsApp conversations with ‘Pau & Marian’ in which he expressed his desire to see images and videos of the child ‘Marian’ and offered to pay Philippine pesos in exchange for them. During these conversations, 13 images and six videos of a naked prepubescent female (Marian) were sent to the applicant. The focus of these images and videos was on the child’s genital region (charge 2).
(3)Between 7 September 2021 and 3 August 2022, the applicant engaged in online discussions with eleven ‘11 separate users’, in which he solicited child abuse material. During these conversations, the applicant regularly offered to pay Philippine pesos for the child abuse material. In one example, a discussion with ‘Genelyn’, the applicant asked ‘So what do you have?’. Genelyn replied that she had a daughter and a niece aged three and six. The applicant expressed a preference for the six year old. After seeing a video, the applicant asked ‘Is that really her on the video?’. Upon being told that it was, and that more videos could be made for him, the applicant asked if there was any chance he could meet her and ‘tast’ (scil, taste) her if he came to the Philippines (charge 3).
(4)Between 22 January and 9 August 2022, the applicant engaged in WhatsApp conversations with ‘Rose’ in which the applicant asked if he could meet her ten year old daughter and spend time with her if he came to the Philippines. In one conversation, Rose told the applicant that she could create a video of her daughter with her cousin, both naked, and with ‘open pussy’. The applicant requested ‘Rose’ send him pictures and videos of her daughter and offered to pay her 1,000 Philippine pesos (charge 4).
(5)Between 29 April and 21 September 2022, the applicant engaged in WhatsApp conversations with ‘Jhoy’ in which the applicant offered to send money in exchange for pictures and videos of her eight year old daughter. The applicant offered to ‘pay well’ if he could meet the child in the Philippines. The applicant continued communicating with ‘Jhoy’ when he was in the Philippines. During the period of this offending, he received 15 images and ten videos of child abuse material. This material consisted of images and videos of a naked female child’s genitals, including one where the child was ‘dancing in a sexual manner’, rubbing her vagina and pulling her labia apart to expose her vagina (charge 5).
(6)On 26 May 2022, the applicant engaged in a WhatsApp conversation with ‘Hanna Mhae’ in which he asked whether he could meet her nine year old daughter and spend time with her (charge 6).
(7)Between 4 July and 19 September 2022, the applicant engaged in WhatsApp conversations with ‘Unk’ in which he asked whether he could meet her four and 15 year old daughters if he came to the Philippines and requested pictures and videos of the children (charge 7).
(8)Between 8 July and 19 September 2022, the applicant engaged in WhatsApp conversations with ‘Pinay Pinay’ in which he asked whether she had any children available aged between five and ten that he could ‘do things’ with (charge 8).
(9)On 12 July 2022, the applicant engaged in a WhatsApp conversation with ‘Kittykate’ in which he asked to meet her nine year old daughter when he came to the Philippines. The applicant offered to pay if he could ‘get naughty’ with Kitykate’s daughter (charge 9).
(10)Between 14 July and 19 September 2022, the applicant engaged in a WhatsApp conversation with ‘Mab Scarlette22’ in which he asked to ‘get a little naughty’ with her 12 year old daughter in exchange for Philippine pesos (charge 10).
(11)On 8 and 19 September 2022, the applicant engaged in a Skype conversation with ‘MM’ in which he asked to meet her 12 year old daughter in exchange for payment. The applicant asked MM what he could do with the child. MM told him he could do anything he wanted in exchange for payment (charge 11).
(12)On 21 September 2022, the applicant engaged in two instances of sexual penetration of a child’s vagina, with his fingers and tongue respectively, and one instance of sexual activity with a child in the Philippines. The sexual activity included the applicant touching his victim’s vagina with his penis. The applicant recorded each of the instances and saved them to his mobile phone. The recording of the applicant’s digital penetration of his victim’s vagina showed the child ‘visibly experiencing pain’ (charge 12).
(13)The applicant’s mobile telephone, laptop computer and two external hard drives contained 697 images and 794 videos of child abuse material. This material was possessed by the applicant between 23 September 2022 and 15 November 2022 (charge 13).
(14)The applicant made a recording on 2 January 2022 ‘up-skirting’ an 11 year old girl in his family home. The video was taken for the purpose of capturing the genital and anal region of the child (related summary offence).
Reasons for sentence
The judge commenced her reasons for sentence by identifying the offences to which the applicant had pleaded guilty. In the course of doing so, her Honour referred to the maximum penalties for the offences (15 years for each of charges 1 to 11 and 13, 30 years for charge 12 and two years for the related summary charge) as well as the statutory minimum sentence for charge 12 (seven years).[2]
[2]Reasons [1]–[3].
Her Honour then summarised the circumstances of the applicant’s offending.[3] In the course of doing so, the judge noted that the original images and the videos of the unknown female child the subject of charge 12 had been examined by paediatricians who had opined that the age of the child was approximately 10 years.[4] The judge also noted that, when interviewed by police, the applicant made limited admissions, but otherwise denied the allegations put to him and gave a ‘no comment’ record of interview.[5]
[3]Ibid [4]–[136].
[4]Ibid [8].
[5]Ibid [10]–[11].
Having summarised the applicant’s offending, the judge then observed that the matter had resolved at a committal mention on 14 July 2023, saying:
This is a plea at the earliest opportunity which has been of considerable benefit to the community in obviating the need for what would have been a lengthy and costly trial. The timing of your plea predates the announcement that the backlog of trials occasioned by the COVID-19 pandemic had been cleared in this Court and I therefore accept that your plea of guilty attracts a Worboyes discount.
However, while I accept that you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic related delay at the time the plea was entered. In July 2023 the situation in this Court was not what it was in 2020 when trials were suspended indefinitely at the height of COVID uncertainty. Accordingly, you will get a Worboyes discount, but it will be reflective of the circumstances at the date of your plea and will not be of the magnitude that pleas were attracting at the height of the pandemic.[6]
[6]Ibid [137]–[138] (citation omitted).
With respect to the applicant’s cooperation with authorities, the judge noted that, after some initial reluctance to provide the PIN code to his mobile phone, the applicant provided it to investigators; and that he also made some limited admissions to child pornography on his phone and looking at material which he should not have looked at. The judge observed, however, that in his record of interview, the applicant minimised his conduct and refused to consent to a non-intimate forensic procedure. The judge thus found that the applicant’s cooperation with authorities was ‘minimal’.[7]
[7]Ibid [139].
Under the heading ‘Personal circumstances’, the judge referred to the following matters:
(1)The applicant was born in Sri Lanka in February 1978. He was 46 at the time of sentencing. He completed the equivalent of Year 12 in Sri Lanka. With his parents’ support, he relocated to Australia in 1999 to complete his tertiary studies (diplomas in engineering and information technology).[8]
(2)The applicant worked in a succession of menial jobs to support himself in Australia. He returned to Sri Lanka in 2006, where he worked for an environmental project. The project ended in 2008, and the applicant returned to Australia in 2009. In 2010, he found employment in a managerial role at a hotel, where he worked for about three years. Subsequently, the applicant was employed in a winery, and later in factories and in cleaning.[9]
(3)The applicant married when he was about 31. He and his wife have two sons. They purchased a home in 2014, but struggled to pay the mortgage. The applicant was eventually made bankrupt and the matrimonial home was sold pursuant to a court order.[10]
(4)The applicant had only used drugs recreationally in his youth. He had only abused alcohol in the context of the stress associated with his bankruptcy. He had no criminal history.[11]
(5)Supportive references from the applicant’s wife and younger brother were tendered on the plea.[12]
(6)While the applicant is a permanent resident of Australia, he is not an Australian citizen. Consequently, he is liable to deportation at the conclusion of his sentence.[13]
[8]Ibid [142]–[146].
[9]Ibid [147]–[148], [150].
[10]Ibid [149], [151].
[11]Ibid [152]–[153].
[12]Ibid [154]–[157].
[13]Ibid [158].
The judge referred to a report of Mr Simon Candlish, a consultant psychologist who interviewed the applicant in February and March 2024.[14] The judge noted Mr Candlish’s opinion that the applicant met the criteria of a major depressive disorder of mild severity; met the criteria for alcohol use disorder in remission; and met the criteria for paedophilic disorder (female children, non-exclusive).[15] The judge noted that Mr Candlish was of the opinion that the applicant fell into the ‘moderate-low risk for reoffending’; and that sustained incarceration was likely to cause a worsening of the applicant’s depressive symptoms with an increased risk for suicide.[16]
[14]Ibid [141], [159]–[169].
[15]Ibid [167].
[16]Ibid [168]–[169].
After summarising the parties’ submissions,[17] the judge turned to the objective gravity of the applicant’s offending and his moral culpability. Specifically, the judge said:
Your offending was objectively very serious and your moral culpability very high.
In respect of the grooming charges, these involved you over a lengthy period pursuing the objective of having sexual contact with children living in impoverished circumstances. You pursued children who were under 12 years of age, and you offered financial incentives to the purported adults who had care of the children. The prosecution provided me with a table of the agreed conversion rates between Philippine Peso and Australian dollars. The agreed conversion rate for PHP500 was roughly $14. It is clear you sought to exploit and abuse these children, and you did so for a pittance. On eight occasions you made plans to meet the child in the Philippines. On five occasions you sought to meet the child when you were in the Philippines. I regard Charges 2, 4 and 5 as serious examples of the offence given the duration of your offending, the exchange of child abuse material and the steps that were taken to meet the child involved. I regard Charges 6–11 as lower end examples of the offence, bearing in mind however that the charge of grooming for sexual conduct with a child is always inherently serious.
In respect of Charge 12, although your offending occurred on a single day, it involves two occasions of penetration which you filmed, and which caused the child pain. The child involved was, on your own admission, only around 12 years old and you paid to abuse her. I accept the prosecution submission that the offending was planned, indeed that is then inescapable conclusion given your pursuit of children in the Philippines over such an extended period. Your offending in respect of this offence is not in the least worst category. In my view, given the factors I have outlined, it is a serious example of the offence.
In respect of the charge of possession of child abuse material, the material was found on four of your devices. It was not an insignificant amount of child abuse material and much of it was of a highly depraved nature.
The upskirting offence is yet another highly disturbing aspect of your conduct. It involves the violation of an 11-year-old child who was the child of a close family friend who was at your home. Your conduct here is not only depraved but involves a grave breach of trust.[18]
[17]Ibid [170]–[197].
[18]Ibid [199]–[203].
Next, the judge said that general deterrence, denunciation and just punishment were all relevant in the sentencing of the applicant, as were specific deterrence and community protection, given the ‘very serious and repeated nature’ of the offending.[19]
[19]Ibid [204].
The judge accepted that there was some remorse implicit in the applicant’s plea, but she was not persuaded that there was ‘full and insightful remorse’ on his part. The judge noted that the applicant had ‘consistently tried to minimise [his] behaviour’.[20] Notwithstanding the applicant’s lack of insight into his conduct, the judge said that she was prepared to assess his prospects of rehabilitation as ‘reasonable’. The judge also accepted the opinion of Mr Candlish that the applicant posed a moderate to low risk of reoffending.[21]
[20]Ibid [206].
[21]Ibid [207].
On the basis of Mr Candlish’s report, the judge accepted that the applicant’s depressive disorder would make his time in custody more difficult than it would be for a prisoner without the applicant’s mental health difficulties. Her Honour, however, accepted a prosecution submission that the evidence did not demonstrate that incarceration posed a serious risk of any significant adverse effect on the applicant’s mental health.[22]
[22]Ibid [208]. See R v Verdins (2007) 16 VR 269.
Next, the judge said that she had had regard to ‘comparator cases’; taken into account the hardship occasioned to the applicant’s family by his imprisonment; taken into account the applicant’s concern about his family’s situation, which would make his time in custody more difficult, as would the prospect of deportation at the end of his sentence; and taken into account that the prospect of deportation also placed in jeopardy the applicant’s life in Australia where he had lived since 1999.[23]
[23]Reasons, [209]–[210].
The judge concluded her reasons for sentence by saying:
There is a presumption of cumulation for sentencing for Commonwealth child sex offences. However, this presumption does not displace the application of the principles of totality or parsimony.
Totality is an important sentencing consideration given you face a number of very serious charges all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending.
I have had regard to the maximum penalty in respect of all the offences and the statutory minimum sentence in respect of Charge 12.
In respect of Charge 12 as I hope I have made clear your offending does not fit in the least worst category. You are entitled to a discount by virtue of your plea of guilty, and a very modest discount in respect of your very limited cooperation with authorities.[24]
[24]Ibid [211]–[214] (citation omitted).
Finally, after imposing the sentences she imposed on each charge, but before announcing the start dates of each sentence, the judge said:
Now in terms of the Commonwealth offending Charge 12 is the base charge and it will start two months after the commencement of the State charge. It will therefore start on 11 August 2024.
No cumulation will be made on the following charges and they will also therefore have a start date of 11 August 2024 and they are Charges 1, 8, 9 and 11.
I order one year cumulation upon Charge 12 and upon each other in respect of Charges 2, 4 and 5.
I order six months’ cumulation upon Charge 12 and upon each other on charges 3, 6, 7, 10 and 13.[25]
[25]Ibid [232]–[235].
Applicant’s submissions
While the applicant accepted that his offending was ‘objectively very serious and his moral culpability extremely high’, he submitted that ‘nonetheless … the sentence imposed’ was ‘manifestly too long’. Having made that submission, the applicant then said that, ‘for the avoidance of doubt, no criticism is made of the individual sentences imposed’; and that it was conceded that the applicant’s conduct was deserving of a significant term of imprisonment.
The applicant submitted that, notwithstanding the judge’s references to totality in the Reasons, her Honour imposed a total effective sentence that was ‘disproportionate to the aggregate criminality involved in all of the offending’.
In submitting that the total effective sentence was disproportionate and offended the principle of totality, the applicant made the following observations about the offending and the sentences imposed:
(1)The sentences on charges 3, 6, 7, 10 and 13 were ‘wholly cumulative on the sentence imposed on charge 12’.
(2)The sentences imposed on charges 4 and 5 were ‘mostly cumulative on the sentence imposed on charge 12’.
(3)While the overall period of offending spanned over two years, charges 4 to 13 were all committed between January and September 2022.[26]
(4)Within that period, charges 7 to 13 were all committed between July and September 2022; and charges 6 and 9 were committed on a single day.[27]
(5)The sentences imposed on charges 7, 10 and 13 ‘are wholly cumulative on charge 12 and each of these charges (scil, sentences) commences years after the individual sentence on charge 12 has expired’.
(6)Of the nine grooming charges, the orders for cumulation have resulted in an additional five years after the expiry of the sentence imposed on charge 12. The orders for cumulation on all charges have resulted in an additional five years and six months after the expiry of the sentence imposed on charge 12.
[26]While in the end it may make no difference to the ultimate outcome of this application, in the interests of accuracy, I note that the offending on charge 13 actually occurred between September and November 2022.
[27]See n 26 above. And note that, in any event, no cumulation was ordered in respect of the sentence imposed on charge 9.
The applicant’s plea of guilty, his lack of criminal history, his positive good character, hardship to dependants and prospect of deportation were all ‘compelling circumstances in mitigation’. It was submitted that, while her Honour considered these matters, they were not given sufficient weight in the sentencing synthesis.
Structure of the judge’s sentence
Before considering the applicant’s proposed ground of appeal, it is necessary to say something about the structure of her Honour’s sentence. Her Honour was faced with the well-known, and often discussed, difficulties involved in sentencing an offender for both State and Federal offences.[28] These difficulties are the product of the different statutory provisions which a sentencing judge must comply with when sentencing in relation to both State and Federal offences.[29]
[28]As to which, see DPP v Swingler [2017] VSCA 305 (Ferguson CJ, Maxwell P and Weinberg JA), [63]–[82] (‘Swingler’). See further, R v O’Brien (1991) 57 A Crim R 80 (Crockett, McGarvie and Phillips JJ) (‘O’Brien’). See also Burbridge v The Queen [2016] NSWCCA 128, [45] (per Rothman J, with whom MacFarlan JA and Bellew J agreed); Hayes v The Queen [2017] VSCA 285, [57].
[29]As to which, see Mokbel v The King [2023] VSCA 40, [49] (Emerton P, Beach and McLeish JJA) (‘Mokbel’).
In the present case, the sentencing judge took the second of the three approaches, identified in Swingler,[30] that a sentencing judge might take when sentencing for both State and Federal offences. Thus, the sentence on the related summary offence commenced first in time and ran for the two months which the judge wished to cumulate on the sentences imposed on the other offences, before the sentences on the first of those other offences (which were Federal offences) commenced. Additionally, as required by the relevant provisions of the Crimes Act 1914 (Cth),[31] the Federal non-parole period commenced at the start of the first of the Federal sentences.
[30]Swingler [2017] VSCA 305, [78].
[31]See in particular ss 19AB, 19 AF and 19AJ of the Crimes Act 1914.
The end result of the judge’s sentences and orders was, as her Honour said when passing sentence, to impose a total effective sentence of 13 years and eight months. That sentence was arrived at by cumulating two months of the related summary charge on the base sentence (the sentence on charge 12); together with the cumulation of 12 months on each of charges 2, 4 and 5, and six months on each of charges 3, 6, 7, 10 and 13. In doing so, her Honour complied with the relevant State and Federal statutory provisions relevant to the sentencing of the applicant.[32]
[32]Including s 11(2) of the Sentencing Act 1991, which does not permit a non-parole period to be ordered where the sentence for the State offence is less than one year.
Consideration
The applicant’s proposed ground of appeal is devoid of merit. As the applicant correctly concedes, no complaint could be made about any of the individual sentences imposed by the judge. The same is true in respect of the relatively modest orders for cumulation made by the judge. At the risk of repetition, the judge ordered no cumulation on charges 1, 8, 9 and 11; only six months’ cumulation on each of charges 3, 6, 7, 10 and 13; and one year’s cumulation only on charges 2, 4 and 5.
The applicant’s contention that the total effective sentence was ‘disproportionate to the aggregate criminality involved in all of the offending’ cannot be accepted. When one examines the total criminality of the applicant’s abysmal offending, the only conclusion one can come to is that, notwithstanding all of the matters the applicant relied upon in mitigation, the orders for cumulation and the resultant total effective sentence were well within range.
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[33] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[34]
[33]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[34]Ibid.
The proposition that the total effective sentence was wholly outside the range of sentencing options available to the judge is not reasonably arguable. Nor is the proposition that the non-parole period (approximately 70 per cent of the total effective sentence) was, in any event, outside the range of sentencing options available to the sentencing judge, is also not reasonably arguable. As the Reasons disclose, the judge paid careful attention to all of the matters which the applicant relied upon in mitigation. The sentences her Honour imposed, and the orders made by her, do not reveal any basis upon which it might sensibly be contended that the sentence ultimately imposed was manifestly excessive, or that the judge failed to give sufficient weight to the applicant’s lack of criminal history, his otherwise positive good character, the hardship to his dependents, his prospect of deportation or any of the other matters relied upon by the applicant on the plea.
Moreover, when considering the total effective sentence and whether it is within range, one should not overlook the modestness of the base sentence (upon which there was cumulation of two,[35] six[36] or 12 months[37] of nine of the thirteen other sentences).[38] Eight years for the offending constituting charge 12 (where the maximum of that offence is 30 years, and the minimum is seven years) could only be described as lenient in all of the circumstances. It follows from that conclusion that, even if one were to conclude that there was some error in one or more of the orders for cumulation about which the applicant makes complaint, when one looks at the totality of the applicant’s offending, there is no reasonable prospect that this Court would reduce the applicant’s total effective sentence. This provides an additional basis upon which leave to appeal should be refused.[39]
[35]The State offence.
[36]Charges 3, 6, 7, 10 and 13.
[37]Charges 2, 4 and 5.
[38]There being no cumulation in respect of the sentences imposed on charges 1, 8, 9 and 11.
[39]See s 280(1)(b) of the Criminal Procedure Act 2009. See further, Al Qassim v The King [2024] VSCA 302, n 71 (T Forrest and Kenny JJA).
Finally, there is nothing in the applicant’s complaints that sentences on particular charges commenced after the conclusion of the sentence on charge 12 (and, in some cases, years after that sentence). The fact that such was the case is merely an artefact of the structure of the sentence that the judge was required to impose as a result of the applicant falling to be sentenced for both State and Federal offences at the same time. Moreover, while the sentences on charges 7, 10 and 13 will commence some years after the end of the sentence on charge 12, it is also to be noted that there is a substantial concurrency between the sentences on those charges.
Conclusion
There is no substance in the applicant’s proposed appeal. Accordingly, leave to appeal must be refused.
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