Shortall v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2024 0123
PATRICK SHORTALL	Applicant
v
THE KING	Respondent

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JUDGES:	Kenny JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	28 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 252
JUDGMENT APPEALED FROM:	[2024] VCC 152 (Judge Cahill)

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Appeal – Sentence – Failing to render assistance after a motor vehicle accident – Burglary and theft – Damage property – Whether sentence manifestly excessive – Distinguishable from key cases – No benefit of an early plea – No remorse – Motor vehicle accident occurred in an isolated area – Base sentence and order for cumulation within range reasonably open to sentencing judge – Total effective sentence within range reasonably open to sentencing judge – Leave to appeal refused.

Crimes Act 1958, ss 74(1), 197(1), 76; Road Safety Act 1986, ss 61(1)(b), s 61(3).

Bankal v The Queen [2019] VSCA 171; Neskovski v The Queen (2022) 100 MVR 12; [2022] VSCA 86; Vasilevski v The Queen (2018) 83 MVR 351; [2018] VSCA 7; Varghese v The King (2024) 107 MVR 110; [2024] VSCA 115; Sarikaya v The Queen (2015) 73 MVR 1; [2015] VSCA 236; Simpson v The Queen (2015) 72 MVR 147; [2015] VSCA 210, considered.

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Counsel
Applicants:		Ms M Brown
Respondent/s:		Mr Z Menon
Solicitors
Applicants:	Balmer & Associates
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

KENNY JA:

Introduction and overview

On 21 February 2024, the applicant was found guilty at trial in the County Court of Victoria of one count of theft, two counts of damaging property, one count of burglary, and one count of failing to render assistance after a motor vehicle accident.
On 14 May 2024, the applicant was sentenced as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Theft (contrary to s 74(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
2	Damaging property (contrary to s 197(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
3	Damaging property (contrary to s 197(1) of the Crimes Act 1958)	10 years’ imprisonment	6 months’ imprisonment	1 month
4	Burglary (contrary to s 76 of the Crimes Act 1958)	10 years’ imprisonment	12 months’ imprisonment	6 months
5	Failing to render assistance after a motor vehicle accident (contrary to s 61(1)(b) and s 61(3) of the Road Safety Act 1986)	10 years’ imprisonment	3 years 9 months’ imprisonment	Base
Total Effective Sentence:		4 years 6 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		83 days
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. Charge 5: Licence cancelled and disqualified from obtaining a licence or permit for 4 years from 14 May 2024. 2. Forfeiture and disposal orders.

The applicant seeks leave to appeal against sentence. There is one proposed ground of appeal, namely:
Ground 1: The individual sentence imposed on charge 5, order for cumulation on charge 4 and total effective sentence are manifestly excessive.
For the reasons stated below, leave to appeal is refused.

Circumstances of offending

On 23 March 2020 at 3:08am, CCTV footage captured a white Hyundai i30 arriving at the IGA in Wandong. The vehicle’s registration plates had been removed. The front seat passenger (‘passenger’) used a jemmy bar to open the IGA’s roller door, while the driver used a power tool to cut through the lock on the sliding doors which had been covered by the roller door. The intruders, distinguished by their clothing, entered the supermarket and, when the passenger jumped over the counter to get to the cigarette cupboard, a smoke bomb ignited and filled the room with smoke. The two intruders left empty-handed. At 3:18am, the passenger returned to the front passenger seat of the car. The driver got back into the driver’s seat and drove off.
Police arrived soon after. CCTV footage showed the passenger wearing a cap when he got out of the car. He was not wearing the cap when he returned to it. Police found a cap at the scene and seized it.
Around 5:00am, off-duty police officer (Parrish Walton) located the Hyundai i30 with front-end damage near the Broadford-Wandong Road. The car had crashed about 7 km from the IGA supermarket in Wandong. Nathan Bell was trapped in the passenger seat, wearing clothing similar to that of the passenger seen at the supermarket. Mr Bell told Mr Walton that he had been there for a couple of hours and the driver had gone to get help. He said he could not move his legs. Mr Bell was airlifted to the Royal Melbourne Hospital. Police found two pairs of gloves and a jemmy bar at the scene. The vehicle’s registration plates were in the boot of the car.
DNA analysis linked Mr Bell to a cap found at the IGA and the applicant to a bloodstain on the driver’s airbag.
The sentencing judge noted that crime scene officers had seen the applicant walking about 9.5 km from the crash site around 10:45am that morning. The applicant claimed to have had a fight with his ‘missus’ in the car and that she had kicked him out. Police let the applicant walk on. The applicant’s clothing matched that of the driver seen at the supermarket.
Police seized Mr Bell’s phone, which contained:
(a)a message sent to the applicant’s daughter on 23 March 2020 at 3:29am. It read, ‘we crashed’ with the words Broadford and Clonbinane misspelt; and
(b)other messages on 22 March 2020, sent the evening before the offending, to the applicant’s daughter and another person called Brayden, which showed Mr Bell had asked Brayden to steal an ‘i30’ and directed him to deliver it to the applicant’s address.
The crashed white Hyundai i30 was stolen from Collingwood around 8:45pm on 22 March 2020.
Telephone records, for a service subscribed in the applicant’s name, showed his number had exchanged messages with Mr Bell up until 21 March and phone calls with him on 22 March. They also showed the applicant’s phone number was active between 3:14am and 6:35am on 23 March. There were no calls to emergency services or anyone else during this time.
At trial, the applicant denied being the driver of the white Hyundai i30. The prosecution relied on DNA evidence, similarities in clothing between the passengers of the crashed car and the people at the scene, similarities between the car at the IGA and the car that crashed on the Broadford Road, and the presence of particular tools in the car to prove the applicant’s involvement.
The sentencing judge noted that by their verdicts, the jury was satisfied that the applicant was involved in the break-in at the Wandong IGA, the applicant was the driver of the white Hyundai i30 when it crashed, Mr Bell suffered serious injuries and the applicant knew this, and the applicant knew he was driving a stolen motorcar.

Plea hearing

The parties filed written submissions for the plea hearing. The prosecutor tendered a victim impact statement. The applicant tendered the report of Gina Cidoni, psychologist (‘Cidoni Report’); letters from members of his family; and a bundle of prison program certificates.
At the plea hearing, the applicant admitted a limited criminal record of summary offences, largely driving related. This was the applicant’s first time in custody.

Victim impact

The sentencing judge found that Mr Bell suffered serious injuries, being trapped in the passenger seat of the motorcar for nearly two hours until Mr Walton found him. Mr Walton stated that Mr Bell appeared to be in a lot of pain and was falling in and out of consciousness.[1] Mr Bell was airlifted to the Royal Melbourne Hospital, where his injuries left him a paraplegic.[2]
[1]DPP v Shortall [2024] VCC 152, [40] (‘Reasons’).
[2]Reasons, [41].
Mr Bell’s mother provided a victim impact statement. The sentencing judge stated that Mr Bell’s mother spoke ‘movingly’ about the severe deficits in her son’s life.[3] Mr Bell is now wheelchair-bound and requires a daily carer for bathing and personal hygiene, and is at risk of serious injury from any fall. Mr Bell has expressed to his mother that ‘this is not a life’,[4] and she fears he may take his own life. She remains hypervigilant and worries about his safety and well-being. In her words directed at the applicant, ‘[y]ou walked away from my son, and he has not been able to walk since’.[5]

Personal circumstances

[3]Reasons, [42].

[4]Victim Impact Statement of Tracey Butler dated 15 April 2024 (‘Statement of Tracey Butler’).

[5]Statement of Tracey Butler.

The judge’s sentencing reasons record that the applicant was 48 years old at the time of the offending, and 53 years old at the time of sentencing. According to the Cidoni Report, the applicant was raised by his parents with his younger sister in Broadmeadows. When he was 12 years old, his parents separated. Thereafter, he lived with his father while his sister lived with his mother. His father moved away when the applicant was 16 years old, and the applicant stayed in Melbourne with a friend. After leaving school, the applicant worked as a spray painter and panel beater, then as a concreter. He remained a concreter for 30 years until 2019, when he began to drive trucks.
The applicant has three daughters, who were 32, 28, and 24 years old at the time of sentencing. After separating from their mother in 2010, the applicant cared for his two younger daughters for two years. A subsequent five-year relationship ended in 2019 and around 2020 the applicant moved to Kilmore to live with one of his daughters and her partner. At the time of the offending, he was living with a friend of Mr Bell and using illicit drugs.
In 2023, the applicant moved to live with his father. The applicant reported to Ms Cidoni that since his teenage years he had a history of methamphetamine, amphetamine, and cocaine use, although he was not a heavy drinker. Ms Cidoni made provisional diagnoses of borderline personality disorder, major depressive disorder, and generalised anxiety disorder. She noted the applicant’s difficulty coping with the prison environment and recommended counselling to address his substance abuse and psychological problems.
His Honour noted that:[6]
Remand custody has been stressful. Unfortunately, on an occasion, [the applicant was] assaulted by prisoners not known to [him]. [The applicant feared] it may have been a revenge attack.
In prison, [the applicant had] completed several behavioural and vocational programs.
[The applicant’s] father and daughter … wrote references for [him] in June 2023, before [his] trial.
[His] father wrote [the applicant was] helping him with the maintenance of his 60-acre property. To his observation [the applicant] was not using drugs in the family environment.
His daughter wrote she was seeing [him] regularly. According to her, [they] mutually support each other.
[6]Reasons, [66]–[70] (citations omitted).
His Honour also noted that the applicant was supported in court by two of his daughters, their partners, and a friend.[7]
[7]Reasons, [71].

Sentencing reasons

The sentencing judge found that the applicant’s failure to render assistance to a seriously injured person after a motor car accident was a ‘particularly serious example of the crime’.[8] His Honour noted that the applicant knew the injured man; that he had been living with one of the injured man’s friends; that he had been in communication with him prior to 23 March 2020; that he had committed a supermarket burglary with him, using a stolen motor car; and that he had crashed the car in scrub when driving away from the supermarket.[9] The applicant had, moreover, left his companion ‘trapped in the vehicle, in an unpopulated area, where … he was not discovered until two hours later, when fortuitously a police officer driving early to work stopped and found him’.[10] The judge concluded that his departure from the scene ‘without regard to [the injured man’s] welfare was inhuman’.[11] His Honour further concluded that the applicant ‘fled in order to evade the detection of [his] involvement in the supermarket break-in’.[12]
[8]Reasons, [82].
[9]Reasons, [83]–[84].
[10]Reasons, [85].
[11]Reasons, [86].
[12]Reasons, [87].
His Honour held that the applicant’s moral culpability for the offending was high[13] and that it was not reduced by the possibility that the applicant ‘may not have known the extent of [the injured man’s injuries]’ and that ‘immediate assistance would have made no difference’.[14]
[13]Reasons, [88].
[14]Reasons, [89].
The sentencing judge found the burglary was ‘less serious’. His Honour noted, however, that the offending was planned; that the applicant used a stolen car after removing the registration plates to evade detection; and that the applicant went with his companion ‘equipped with gloves, a power tool and jemmy bar, to steal from commercial premises’.[15] This led his Honour to assess the burglary ‘to be higher than low end’ for this type of offending.[16] His Honour accepted, however, that the criminal damage offences were at the lower end, noting that the supermarket’s operations were not disrupted and the owner was trading the next day.[17] His Honour assessed the ‘seriousness of using the car to commit a crime’ ‘as above low end’, noting that the applicant used it to commit the burglary.[18]
[15]Reasons, [90].
[16]Reasons, [91].
[17]Reasons, [92].
[18]Reasons, [28].
The sentencing judge held that, in the applicant’s case, ‘[g]eneral deterrence is an important sentencing factor. So too, is denunciation of your failure to render assistance’. At the same time, however, his Honour took into account the Cidoni Report concerning the applicant’s psychological conditions. His Honour stated:[19]
Relying on Ms Cidoni’s opinion, I will moderate your sentence to take into account, because of your psychological conditions, prison will be harder for you than a person without them. There is no material before me to support the proposition that there is a serious risk your mental health will significantly deteriorate in prison.
[19]Reasons, [94]–[95].
His Honour also accepted that delay was a mitigating factor, noting that the offences had been committed four years earlier and that during these years ‘the applicant had not been convicted of any offences and … [had] been in suspense about the outcome of the proceedings’.[20] His Honour also noted that the applicant had a limited criminal record, a good working history and strong family support.[21] Nonetheless, his Honour was cautious about the applicant’s prospects of rehabilitation, noting that the applicant had shown no remorse.[22] In these circumstances, his Honour concluded that there should be a non-parole period, ‘which will allow [the applicant] time to advance [his] rehabilitation under supervision in the community after [he had] served a term of imprisonment’.[23]
[20]Reasons, [96].
[21]Reasons, [99]–[100].
[22]Reasons, [96]–[98].
[23]Reasons, [101].
In his Honour’s assessment, the applicant’s failure to render assistance to Mr Bell was ‘the most serious crime’.[24]
Sentencing practices for this offence are a relevant consideration. I have used Bankal, and the cases referred to in it, together with other sentences of this court, to identify relevant sentencing principles and, making appropriate adjustments, to measure the sentence I will impose on [the applicant].
I will make orders for part cumulation to reflect the additional criminality of [the applicant’s] involvement in the supermarket break-in.
Because [the applicant is] to be sentenced for a number of charges, I will apply the totality principle to ensure [the applicant’s] aggregate sentence is an appropriate measure of [his] overall criminality.[25]
[24]Reasons, [103] (citations omitted).
[25]Reasons, [103].

Applicant’s submissions

The applicant submitted that the individual sentence imposed on charge 5, the order for cumulation on charge 4 and the total effective sentence were manifestly excessive. The applicant relied on three considerations: current sentencing practices, delay in the matter proceeding, and factors personal to the applicant.
The applicant did not challenge the sentencing judge’s findings that the applicant’s departure from the scene of the accident was inhumane and that his moral culpability was high. Rather, the applicant contended that there was nothing in his conduct that ‘elevated this example of failing to render assistance as being a ‘particularly serious’ example of the offence, as his Honour found. The applicant submitted that the features of his offending were ‘typical of this offence’.
In support of his contention that the sentence imposed on him did not conform to current sentencing practices, the applicant not only took issue with the sentencing judge’s application of Bankal v The Queen,[26] but also contended that other cases showed that the sentence imposed on him by the sentencing judge was manifestly excessive.[27] These cases were: Neskovski v The Queen[28]; Vasilevski v The Queen[29]; Varghese v The King[30]; Sarikaya v The Queen[31]; and Simpson v The Queen.[32]
[26][2019] VSCA 171 (‘Bankal’).
[27]Reasons, [80], [89], [103].
[28](2022) 100 MVR 12; [2022] VSCA 86 (‘Neskovski’).
[29](2018) 83 MVR 351; [2018] VSCA 7 (‘Vasilevski’).
[30](2024) 107 MVR 110; [2024] VSCA 115 (‘Varghese’).
[31](2015) 73 MVR 1; [2015] VSCA 236 (‘Sarikaya’).
[32](2015) 72 MVR 147; [2015] VSCA 210 (‘Simpson’).
The applicant submitted that the sentence imposed on him was six months longer than that imposed in Bankal, and nine months longer than those imposed in Neskovski and Vasilevski; and that all of the other cases to which he referred involved individual sentences that were shorter again. While he acknowledged that each case turned on its own facts and circumstances, the applicant submitted that the features of his offending and his personal circumstances did not justify the discrepancy between the sentence imposed on him and those imposed in like matters.
In support of his manifest excess ground, the applicant also contended that the sentencing judge gave insufficient weight to the matter of delay. The applicant contended that both the ‘unfairness to the offender’ limb and the ‘progress to rehabilitation’ limb had some application in his case, although the applicant noted that the rehabilitation limb was primarily demonstrated by his refraining from committing any further offending.
Also in support of his manifest excess ground, the applicant contended that, although the sentencing judge considered personal matters and took them into account when sentencing, the combination of the following factors should have operated to moderate the length of the sentence imposed on charge 5, and consequently, the total effective sentence:
(a)a lengthy work history spanning some 30 years;
(b)strong and ongoing family support, demonstrated by written references and personal attendance at court;
(c)extra-curial punishment in the form of assaults in custody;
(d)custody would be more onerous due to his psychological conditions; and
(e)a ‘limited’ criminal record.

Respondent’s submissions

The respondent submitted that the total effective sentence was not outside the range of sentencing options available to the sentencing judge; and that the sentence imposed on the applicant ‘properly reflected the gravity of the offending whilst also balancing the matters in mitigation which the applicant was able to call in aid’.

The respondent further submitted that while the sentencing judge was required to consider current sentencing practices, this was not a controlling factor. The respondent submitted that in this case, unlike a number of the cases to which the applicant referred, it was not open to the applicant to call in aid a guilty plea, findings of genuine remorse and acceptance of legal and moral responsibility.
As to the matter of delay, the respondent submitted that the sentencing judge noted the matter of delay and treated it as a mitigating factor.[33]
[33]Citing Reasons, [96].
The respondent further submitted that each of the matters personal to the applicant were considered by the sentencing judge, and balanced against his Honour’s assessments of the objective gravity of the offending, the applicant’s moral culpability and the need for general deterrence to be given strong weight.[34]
[34]Citing Reasons, [94]; Sarikaya, [33]–[34].

Consideration

It has been said that in order for the ground of manifest excess to succeed, it must be shown that something has gone ‘obviously, plainly or badly wrong’ in the exercise of the sentencing discretion.[35] As this Court explained in Clarkson v The Queen:
The ground of manifest excess will only succeed if it can be shown that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. 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 the relevant circumstances of the offending and of the offender. This is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown. [36]

Sentencing practices considered

[35]See, eg, Rohen v The King [2024] VSCA 1, [123].

[36](2011) 32 VR 361, 384; [2011] VSCA 157, [89].

Plainly enough, current sentencing practices are relevant to the task of a sentencing judge, who must therefore take them into account. The sentencing judge in the applicant’s case evidently sought to do this. In this connection, his Honour specifically referred not only to Bankal, but also cases referred to in Bankal, and other sentences of the County Court of Victoria.[37]
[37]Reasons, [103].
There are, naturally enough, a broad range of circumstances that may give rise to the offence of failing to render assistance after a motor vehicle accident contrary to ss 61(1)(b) and 61(3) of the Road Safety Act 1986. The cases referred to by the parties illustrate this well.
I accept that, as the respondent submitted, it was open to the sentencing judge to find that the circumstances of the applicant’s offending made his offending a serious example of that offence. Before the accident, the applicant and the applicant’s companion, Mr Bell, had known one another. They engaged in the supermarket burglary together. Mr Bell was seriously injured in the accident, and the applicant knew this to be so[38] (though he may not have known the extent of these injuries). Notwithstanding this, the applicant left Mr Bell trapped in the car in an unpopulated area, where there was a risk that he would not be found for some significant time. The applicant left the scene of the accident, leaving Mr Bell with the impression he had gone for help. In fact, the applicant fled the scene to avoid the detection of his involvement in the burglary. In these circumstances, it was also open to his Honour to find that the applicant’s moral culpability for his offending was high.
[38]Reasons, [36].
As noted above, however, the applicant referred to a number of cases (Bankal, Vasilevski, Varghese, Sarikaya, Simpson, and Neskovski) in support of his submission that the total effective sentence imposed on him was outside the range open to the sentencing judge. I am not persuaded that this is the case, because I am not persuaded that any of these cases is relevantly comparable.
In each of Bankal, Vasilevski, and Simpson, the offender pleaded guilty and had the benefit of a guilty plea. The applicant did not plead guilty, and the benefit of the plea was not available to him.
In Simpson, the offending occurred in the Melbourne suburb of Preston, not in an isolated area as in this case. Moreover, in Simpson, by reason of his guilty plea, the offender was found to have expressed remorse in relation to the injured passenger to whom he had the obligation to render assistance.[39] In this case, as already noted, the sentencing judge held that there was no remorse on the part of the applicant for his offending conduct.[40]
[39]Simpson, [18] (Whelan JA, Beach JA agreeing at [61]).
[40]Reasons, [98].
There are other kinds of differences that make meaningful comparison difficult. In Vasilevski, the offender pleaded guilty to nine charges (and five related summary offences). The charge of failing to render assistance was not the primary offence. Rather, a charge of dangerous driving causing death attracted the base sentence of 4 years’ imprisonment. Simpson was not dissimilar to Vasilevski in this respect, in that the offender pleaded guilty to five charges and four related summary offences. The primary offence was negligently causing serious injury, for which the offender received a sentence of 4 years’ imprisonment. In cases such as these, the totality principle necessarily had some effective operation in the sentencing process.
In Varghese, the offender entered pleas at the ‘earliest possible opportunity’.[41] The offender was found to be a person of prior good character,[42] who expressed remorse and had taken responsibility for his offending.[43] There was also evidence that the offender was, at the time of sentence, experiencing symptoms of panic disorder and adjustment disorder, with anxiety and mood symptoms, with the possibility of further deterioration into a major depressive disorder and post-traumatic stress disorder.[44] This case is quite different to the present case, where there was no plea and no remorse.
[41]Varghese, [16].
[42]Varghese, [22].
[43]Varghese, [44].
[44]Varghese, [43].
Sarikaya is also distinguishable from this case. In Sarikaya, the offender was able to rely on limbs five and six of the principles in Verdins.[45] This was not open to the applicant in this case. Further, the sentencing judge in that case found that the offending in relation to the charge of failing to render assistance ‘was not of great significance, because, fortuitously, care was available almost instantaneously’.[46] Presumably, this also entered into the judge’s instinctive synthesis in the sentence imposed.
[45]R v Verdins (2007) 16 VR 269; [2007] VSCA 62.
[46]Sarikaya, [16].
Neskovski is also relevantly distinguishable from the present case. Although the offender in Neskovski was convicted after trial (as in this case), the offender in Neskovski had surrendered himself to police custody in the evening of the same day of the early-morning collision.[47] The offender’s criminal history was limited;[48] and the offender was found to have positive prospects of rehabilitation.[49] Further, the offender had made an earlier plea offer, which included the charge of failing to render assistance, but this had been rejected on the basis that the prosecution sought a guilty verdict at trial to a charge of dangerous driving causing death. The prosecution was unsuccessful in this respect. In this case, as already noted, the applicant fled the scene to avoid detection for the supermarket burglary; the sentencing judge was cautious about his rehabilitation prospects; and there was no early plea offer; and no remorse.
[47]DPP v Neskovski (Unreported, County Court of Victoria, Judge Meredith, 13 July 2021), [9] (‘Neskovski unreported’).
[48]Neskovski unreported, [43], [53].
[49]Neskovski unreported, [28].
A reading of these cases does not provide any cogent support for the applicant’s case that the sentence imposed on him did not conform to current sentencing practices.

Delay considered

The applicant was charged on summons on 5 November 2020. The matter was uplifted to the committal stream on 14 October 2021. The applicant was committed for trial on 14 September 2022, which took place some 17 months later. He was sentenced on 14 May 2024.
Significant delay between the time an offender is charged and eventually sentenced can be a strong mitigating factor.[50] As the applicant recognised, there are two limbs upon which the effect of delay is considered: unfairness and rehabilitation.[51] There was little said on the applicant’s behalf on the matter of delay at the plea hearing, however; and little, if any, specific evidence about the effect on him of the charges hanging over his head or his progress to rehabilitation during the period of the delay.
[50]See, eg, R v Merrett, Piggott and Ferrari (2007) 14 VR 392, [34]–[35]; [2007] VSCA 1; and DPP v Merryfull [2023] VSCA 244 (‘Merryfull’).
[51]See, eg, Merryfull, [44]–[45].
Nonetheless the sentencing judge expressly took the delay into account as a mitigating factor. His Honour noted that the applicant had been in suspense about the outcome of the proceedings against him and the absence of any subsequent reoffending.[52] His Honour was also clearly alive to the statements made by the applicant’s father and his sister concerning him, and to the fact that in prison the applicant had completed ‘several behavioural and vocational programs’.[53] Bearing in mind, however, that the sentencing judge was cautious about the applicant’s rehabilitation prospects, especially in the absence of remorse, and the limited evidence as to the effect of delay on the applicant and his progress to rehabilitation in the delay period, there was little more his Honour could have done. There is nothing to support the applicant’s suggestion in his submissions that somehow the delay was regarded as his ‘fault’.
[52]Reasons, [96].
[53]Reasons, [67].
The matter of delay and the nature of his Honour’s consideration of it does not assist the applicant’s manifest excess ground.

Matters personal to the applicant considered

The sentencing judge took into account each of the personal matters to which the applicant referred. His Honour specifically recognised that the applicant had ‘a good work history and strong family support’;[54] and that he had found remand custody stressful, having been assaulted at one point in what he feared was ‘a revenge attack’.[55] His Honour took account of the fact that the applicant would find custody more onerous because of his psychological conditions than others without those conditions, and moderated the applicant’s sentence on this account.[56] His Honour also took into account his limited criminal record.[57]
[54]Reasons, [100].
[55]Reasons, [66].
[56]Reasons, [95].
[57]Reasons, [100].
Plainly enough, however, these personal considerations had to be weighed in the sentencing judge’s assessment against the objective gravity of the offending, the applicant’s moral culpability, and the need for general deterrence and denunciation of the applicant’s failure to render assistance to Mr Bell following the accident on the Broadford-Wandong Road. Furthermore, his Honour’s instinctive synthesis also had to take account of that fact that the applicant had shown no remorse; that his Honour was cautious about his prospects of rehabilitation; and that, although his criminal history was limited, this history disclosed a number of previous driving offences.
Again, the personal considerations to which the applicant referred and his Honour’s consideration of them do not assist the applicant’s manifest excess ground.

Orders for cumulation and total effective sentence

The individual sentence on charge 5 of 3 years and 9 months’ imprisonment reflected the gravity of the offending and also took account of the matters in mitigation upon which the applicant was able to rely. It cannot be reasonably argued that it was not within the range open to the sentencing judge.
Bearing in mind the evident degree of planning involved in executing the burglary, it was clearly open to the sentencing judge to find that the burglary (charge 4) was ‘higher than low end’ for offending of that kind.[58] The applicant did not challenge this assessment. His Honour’s assessed the criminal damage offences (charges 2 and 3) at the ‘low end’.[59] Bearing in mind that the burglary and criminal damage offences were distinct, and therefore required punishment that was separate to the conduct constituting charge 5, cumulation was appropriate.
[58]Reasons, [90].
[59]Reasons, [93].
Taking account of the matters in mitigation, the sentence of 12 months imprisonment for burglary (charge 4) and an order for cumulation of 6 months were within the range open to the sentencing judge. Similarly the sentences of 6 months for theft (charge 1) and damaging property (charges 2 and 3) and orders for cumulation of one month with respect to each of these charges were clearly within the range open to his Honour.
Finally, it is plain enough that a total effective sentence of 4 years and 6 months imprisonment was within the range open to the sentencing judge and does not bespeak error.

Conclusion

For the foregoing reasons, the applicant’s ground of manifest excess is not reasonably arguable and leave to appeal is refused.

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[2024] VSCA 252

28 October 2024