Singh v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0175

ADITYA SINGH	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	14 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 17
JUDGMENT APPEALED FROM:	[2022] VCC 1808 (Judge Smallwood)

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CRIMINAL LAW – Application for leave to appeal against sentence – Armed robbery, intentionally damage property, commit indictable offence on bail – Applicant sentenced to two years’ imprisonment with a non-parole period of 15 months’ – Guilty plea – Youth - Early plea – Full admissions on arrest – Whether judge erred in not giving principles 5 and 6 in Verdins any weight in sentencing – Whether judge erred regarding in charactering the level of the applicant’s remorse – Whether sentence manifestly excessive – Application for leave to appeal refused.

Sentencing Act 1991, s 32(1)(b).

Worboyes v The Queen [2021] VSCA 169; R v Verdins (2007) 16 VR 269.

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Counsel
Applicant:		Mr SN Andrianakis
Respondent:		Ms A Moran
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

The applicant pleaded guilty, before a judge of the County Court, to one charge of armed robbery, one charge of intentionally damaging property and a related summary offence of committing an indictable offence while on bail.
Following a plea made on his behalf, he was sentenced to a total effective sentence of two years’ imprisonment with a non-parole period of 15 months. That sentence was constituted as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed robbery Crimes Act 1958, s 75A	25 years	2 years	-
2	Intentionally damage property Crimes Act 1958, s 197(1)	10 years	3 months	-
Related Summary Offences
3	Commit indictable offence on bail	3 months	Convicted and discharged	N/A
Total Effective Sentence:		2 years
Non-Parole Period:		15 months
Pre-sentence Detention Declared:		1 day
Section 6AAA Statement:		Total Effective Sentence 3 years Non Parole-Period 2 years
Other Relevant Orders: Forfeiture order in relation to a black cap, disposable mask, white gloves and wooden hammer used in the commission of the offence.

The applicant seeks leave to appeal the sentences on the following grounds:
Ground 1 – The sentencing judge erred in failing to give any weight to principles 5 and 6 in Verdins (2007) 16 VR 269.
Ground 2 – The sentencing judge erred in finding that the applicant’s remorse was somewhat problematic, despite indicating during the plea hearing that he would sentence the applicant on the basis that he was truly remorseful for his conduct.
Ground 3 – In all the circumstances the sentence imposed on charges 1 and 2, and as a result the total sentence imposed and non-parole period fixed are manifestly excessive.

Circumstances of the offending

On 15 December 2021, at 11:43 am, the applicant, who was then 19 years of age, walked to the front of a bakery in Glen Waverley. He smashed the front glass sliding door with a hammer, and then entered the bakery wearing a black hoodie, a black cap, a disposable face mask and gloves. He was holding the hammer, which was described by one witness as a mallet, in his hand.
When the applicant entered the bakery, the employee, a young female, was standing in front of the cash register. The applicant, in a very stern and aggressive tone, yelled to her ‘Hand over all your fucking money so no one gets hurt.’ The employee, who was terrified for her own safety, opened the cash drawer and took from it the larger denomination bank notes, which she placed on the counter. They totalled approximately $450. The applicant seized the money, walked swiftly out of the bakery, and ran down the street. The female employee ran out the back of the shop to inform her co-worker what had occurred. As a result, the co-worker, and two other persons, pursued the applicant. Ultimately they caught him, wrestled him to the ground, and took the hammer from his possession. The money that the applicant had robbed from the premises was recovered.
Following his apprehension, the police, who had been notified, arrived at the scene. The applicant admitted that he broke the window, told the employee to hand over the money and departed. Subsequently, the applicant was interviewed at the Oakleigh Police Station, and he made full admissions in relation to his offending. In the course of the interview, he said that he carried the hammer for the purposes of intimidation. He said that the female staff member would have felt ‘very scared’ and that she may have even feared for her life. He accepted that she had probably been traumatised by the incident. He said ‘…I do regret putting this negative energy out there into the world’.
Following his arrest, the applicant was remanded in custody, and he was granted bail on the following day (16 December 2021).

The applicant’s personal circumstances

The applicant was born in India in February 2002. He is the eldest of three children. In 2005 the family migrated to Australia. The applicant’s younger years were punctuated by family violence, principally perpetrated by his father towards his mother, and also towards himself and his two younger brothers. The applicant completed his Victorian Certificate of Education at Glen Waverly Secondary School and then commenced a law degree at Deakin University. However, he discontinued his university studies after one year, and joined the Australian Army. He remained in the Army for one year, but was discharged as a result of being in possession of drugs.
Following his discharge from the Army, the applicant was unemployed apart from some short periods in which he worked in online customer service and also at a kebab shop.
The applicant commenced to smoke cannabis at the age of 16 years. Subsequently, at the age of 19 years, he also used other drugs including cocaine, amphetamines and ketamine. At the time of the offending, and at the time of the plea, the applicant was living at home with his parents and siblings.
The applicant did not have any previous convictions. However, at the time of the offending he was subject to four outstanding sets of charges. Two months before the offending in the present case, he had been granted bail by the Ringwood Magistrates’ Court on charges of making a threat to kill and unlawful assault.

Supervised bail progress report

On 13 July 2022, the prosecution made an application to revoke the applicant’s bail. That application was made on the basis of a Supervised Bail Progress Report of the same date. The application for revocation of bail was refused.
The report, which was tendered before the sentencing judge in the present case, noted that since the applicant’s previous court hearing in March 2022, he had failed to comply with Youth Justice reporting requirements for his bail, having attended only six of 21 scheduled supervision appointments. During those appointments, the applicant had engaged superficially and he had failed to act on commitments that he made. Further, the applicant had twice failed to attend team leader warning sessions, and on two other occasions, when he did attend, he engaged on a superficial level.
The report noted that the applicant’s mother had advised that the applicant had breached the terms of his bail on a number of occasions, spending multiple nights away from the family home. In addition, the applicant’s mother had observed him to present as substance affected within the family home. The applicant had attended an initial assessment for alcohol and other drug treatment in January 2022, but since then he had refused to engage in further recommended treatment.
In conclusion, in the report, it was noted that the applicant had shown ‘blatant disregard’ for the conditions of his bail, and that he had continued to actively breach the conditions of the bail, by consuming illicit substances, refusing to comply with the prescribed curfew, and failing to report to the police station. The report concluded by assessing that the applicant was no longer suitable for the Youth Justice Supervised Bail Program and the authors of the report recommended that bail be revoked.

Psychological report

For the purposes of the plea, the applicant was examined by Ms Gina Cidoni, a psychologist, on 12 July 2022. Having conducted relevant psychological testing, Ms Cidoni concluded that the applicant had the following clinical diagnoses in line with the Diagnostic and Statistical Manual of Mental Disorders (Fifth Edition): Adjustment Disorder with a disturbance in mood and conduct; Major Depressive Disorder; and a Substance Use Disorder (in remission). Ms Cidoni considered that the applicant’s mental state would have ‘significantly contributed’ to his offending by causing a neurocognitive dysfunction and behavioural effects relating to erratic and impulsive acts, clouded judgment and reduced moral culpability. The applicant’s substance abuse during the offending period could also have contributed to his dysregulation and lack of behaviour control.
Ms Cidoni considered that the applicant’s risk of offending was moderate, and that he had good prospects for rehabilitation. She recommended that the applicant undergo a course of psychological counselling for at least 12 months. She considered that the applicant’s mental presentation was chronic and serious, and that there was a risk that imprisonment would have a serious adverse effect, relating to concerns about a deterioration in his mental state and the development of a personality disorder.

The plea

On the plea, which commenced on 21 July 2022, counsel for the applicant submitted that the judge should impose a Community Correction Order. In support of that submission, counsel contended that the first and third principles stated in R v Verdins[1] should apply. Thus, it was submitted that as a result of the applicant’s psychological condition his moral culpability for the offending was reduced, and that as a consequence the sentencing purpose of general deterrence should be moderated. It was further submitted that as the applicant was a young offender, his rehabilitation should be given particular weight. In addition, counsel relied on the early plea of guilty, and the applicant’s cooperation and candid admissions. Counsel submitted that the offending itself should be regarded as being at the lower end of the scale, and that it was relatively unsophisticated and unplanned.
[1](2007) 16 VR 269, 276 [32] (‘Verdins’).
In the course of the plea, the judge expressed reservations as to whether the applicant would be capable of complying with the terms of a Community Correction Order. His Honour expressed some reluctance to imprison the applicant in an adult gaol, observing that ‘with his personality, he’d get belted, he’d get himself into fights real quick’. Notwithstanding his reservations, the judge adjourned the matter, for the purposes of obtaining a pre-sentence report as to the applicant’s suitability for a Youth Justice Centre order, and also a Community Corrections report.
Pre-sentence reports
Following the adjournment, Mental Health Advice and Responsible Service (‘MHARS’) of Forensicare provided a report dated 22 July 2022. The report was based on documents supplied by Corrections and in particular the psychological report prepared by Ms Cidoni. In its report, MHARS noted that the applicant could not be contacted because he had not responded to any telephone calls or texts. Accordingly, the applicant had not been independently assessed by Forensicare. The report noted the diagnosis of the three psychological conditions made by Ms Cidoni, and, based on that diagnosis, recommended that the applicant required ongoing mental health care.
The Community Correction Order assessment outcome report, which was dated 25 July 2022, concluded that the applicant was assessed as being unsuitable for a Community Correction Order. The applicant had been scheduled to attend a meeting to determine his suitability to undergo a Community Correction Order. The service had attempted to contact him on three occasions without success. As a consequence, the service was unable to provide a recommendation that the applicant was suitable for such an order.
The Youth Justice pre-sentence report was dated 20 September 2022. The report concluded by recommending that the applicant was not assessed as being suitable by the Department of Justice and Community Safety for a Youth Justice Centre order. In particular, it noted that the applicant failed to meet the criteria found in s 32(1)(a) of the Sentencing Act 1991, which required that the applicant have reasonable prospects for rehabilitation. In that respect, the report noted (inter alia): that the applicant had demonstrated poor compliance with previous supervision (for bail); that he had refused to engage with intervention to address his offending behaviour; that he had demonstrated difficulties with authority and an inability to follow rules; that he had demonstrated poor interpersonal relationships and disengagement from a pro-social family; and that he had exhibited minimal motivation to engage in pro-social activities and disassociate from his negative peers.
The report also concluded that the applicant did not meet the criterion specified in
s 32(1)(b) of the Sentencing Act, namely, that the applicant was ‘particularly impressionable immature or likely to be subjected to undesirable influences in an adult prison’. In that respect the authors referred (among other matters) to the applicant’s history of violent behaviour, his history of poor self-control and emotional regulation and anger management, and the fact that the applicant functioned at his chronological age.

Further plea

The matter returned before the judge on 25 October 2022. On that date, counsel for the applicant noted that the applicant, in the meantime, had failed to appear in relation to matters listed at Ringwood Magistrates’ Court on 14 October. As a consequence, he had been arrested on 18 October, and a consolidated plea was conducted on his behalf before the Dandenong Magistrates’ Court on 20 October. On that date, the magistrate had deferred sentence pending preparation of a CISP report.
Notwithstanding the terms of the two pre-sentence reports obtained by the court, counsel for the applicant maintained his previous submission that the judge should impose a Community Correction Order. Counsel accepted that the applicant’s history raised concerns concerning the applicant’s ability to comply with such an order. Nevertheless, in view of the applicant’s age and his lack of previous convictions, it was submitted that his rehabilitation should be the predominant consideration, and on that basis a Community Correction Order should be made.

Reasons for sentence

In his reasons for sentence,[2] the judge characterised the offending by the applicant as serious. The judge noted that the offending itself had involved some forethought and pre-planning.[3] His Honour considered that, although no victim impact statement had been provided, nevertheless it could be readily inferred that the female victim, having been confronted with a hammer, would have been terrified.[4] His Honour also noted that the applicant had been assessed as being unacceptable for a Community Correction Order, and that he had also been assessed as not being acceptable for a Youth Justice sentence.
[2]DPP v Singh [2022] VCC 1808 (‘Reasons’).
[3]Ibid [10].
[4]Ibid [11].
In mitigation, the judge accepted that the applicant had pleaded guilty at an early stage and he had made full admissions to the police. The judge considered that the question, whether the applicant’s guilty plea was accompanied by remorse, was ‘somewhat problematic’, but his Honour stated ‘I will give you the benefit of the doubt with regard to that’.[5] The judge accepted that the applicant had made full admissions as to his offending, and that his plea of guilty was of particular utilitarian value for the reasons discussed in Worboyes v The Queen.[6] Having referred to the report of Ms Cidoni, the judge accepted that the first and third principles stated by the Court in Verdins should apply in mitigation of sentence.
[5]Ibid [2].
[6][2021] VSCA 169, [39] (‘Worboyes’).
In conclusion, the judge noted that the applicant’s offending had involved a degree of planning. The applicant had a record of poor compliance with previous supervision, and he had previously refused to engage with interventions which were designed to address his offending behaviour.[7] The judge regarded the applicant’s prospects of rehabilitation as being ‘very guarded’, and that his risk of reoffending, if he were to continue to use drugs, would be ‘high’.[8] The judge concluded that armed robbery is a serious offence, and that in view of the reports obtained by Youth Justice and from the Community Correction Order officer, the only available sentence was one of a term of imprisonment in an adult gaol, which must be of sufficient duration to deter the applicant from further offending and also to act as a general deterrent.[9]
[7]Reasons, [24].
[8]Ibid [26].
[9]Ibid [27].

Ground 1 — submissions

In support of Ground 1, counsel for the applicant noted that Ms Cidoni, in her report, had referred to the applicant’s immaturity, poor insight, and emotional and cognitive avoidance, and had also noted that the applicant experienced periods of intense depression with variable suicidal ideation. The judge also referred to the report of the MHARS which had noted that the applicant had mental health concerns, and that he required ongoing mental health care. During the plea, the judge did not take issue with the submission made by counsel for the applicant that the fifth and sixth principles outlined in Verdins should apply. In particular, in response to the prosecutor’s concession relating to those principles, the judge noted that the applicant would be vulnerable in an adult gaol, and that he would quickly become involved in physical altercations, in the course of which he would be ‘belted’. Counsel submitted that notwithstanding those matters, the judge erroneously failed to give any weight to the fifth and sixth principles of Verdins in his sentencing reasons.
In response, counsel for the respondent noted that although, in written submissions to the sentencing judge, counsel for the applicant had contended that principles 5 and 6 of Verdins were ‘arguable’, nevertheless counsel for the applicant did not make any submissions to the judge, in the course of the plea, that those two principles were engaged. Instead, counsel for the applicant had only argued that the first and third principles stated in Verdins applied.
Counsel for the respondent noted that, in her report, Ms Cidoni stated no more than that there was a ‘risk’ that imprisonment would have a serious adverse effect on the applicant. Counsel noted that in Brown v The Queen[10] the court stated that there must be appropriate evidence, constituted by a well-founded expert opinion, in order that the principles outlined in Verdins be applied in mitigation of sentence. Counsel contended that, in view of the qualified nature of the reference by Ms Cidoni to the potential effect of a term of imprisonment on the applicant, it was unsurprising that counsel for the applicant, on the plea, did not press the application of the fifth and sixth principles of Verdins. Accordingly, it was within the sound exercise of the judge not to take those principles into account in the sentencing exercise.
[10][2020] VSCA 212, [61] (‘Brown’).

Ground 1 — analysis and conclusion

On analysis, there are two insurmountable difficulties precluding success of the applicant on ground 1. First, on the plea, propositions 5 and 6 of Verdins were not sufficiently relied on by the applicant to require the judge to take them into account in mitigation of sentence. Secondly, in any event, the evidence put before the judge was insufficient to support the application of either of those propositions.

In the outline of submissions filed on behalf of the applicant before the hearing of the plea, counsel for the applicant summarised the conclusions by Ms Cidoni as to her diagnosis and as to her opinion that there was a link between the applicant’s Major Depressive Disorder and his offending. On that basis, it was submitted in the outline that the first and third principles of Verdins had application. Later in the outline, counsel referred to the opinion expressed by Ms Cidoni that imprisonment might have a serious adverse effect on the applicant’s psychological condition, and counsel there contended that ‘… Verdins limbs 5 and 6 are arguable’.
Subsequently, on the hearing of oral submissions, counsel for the applicant referred to and relied on Ms Cidoni’s report insofar as it supported the first and third limbs identified in Verdins. However, counsel did not, on the plea, or on the subsequent adjourned hearing of the plea, make any submission to the effect that the fifth and sixth limbs in Verdins applied to the case.
In view of the qualified manner in which limbs 5 and 6 in Verdins were referred to in the outline of submissions, and in the absence of any specific reliance on those propositions in the course of the plea, the judge was entitled to proceed on the basis that the applicant did not rely on those propositions in mitigation of sentence. If the applicant had sought to rely, in mitigation of sentence, on the effects of a custodial sentence on his psychological condition, it would be expected that a specific submission would have been made to that effect.
On the hearing of the plea, the prosecutor did state to the judge that the prosecution position was that ‘whilst it may be that limbs 5 and 6 [of Verdins] could have some applicability’, it was not conceded that the first and third propositions stated in Verdins operated to reduce the applicant’s moral culpability for his offending. In the absence of any specific reliance by counsel for the applicant on the plea on the fifth and sixth propositions stated in Verdins, that brief response by the prosecutor could not, realistically, be regarded as some form of a concession by the prosecution that the judge should, in mitigation of sentence, apply the fifth and sixth propositions outlined in Verdins.
Further, and in any event, the material put before the judge was not sufficient to require a finding by his Honour that would engage either the fifth or sixth propositions in Verdins.
Those two propositions were expressed by the court in Verdins in the following terms:
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.[11]
[11]Verdins, 276 [32].
In respect of the fifth proposition, the court in Verdins stated the following:
This proposition requires neither explanation nor qualification. Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.[12]
[12]Ibid 276 [28].
Ms Cidoni’s report does not suggest, in any way, that as a consequence of the applicant’s Adjustment Disorder, Major Depressive Disorder or Substance Use Disorder, a sentence of imprisonment would weigh more heavily on the applicant than it would on a person in normal health.
The opinion expressed by Ms Cidoni as to the potential effect of a term of imprisonment on the applicant’s psychological condition was expressed in quite guarded terms. Ms Cidoni’s conclusion was no more than that there was a ‘risk’ that imprisonment would have a serious adverse effect on the applicant, because of a ‘concern about deterioration and development of a personality disorder’. Ms Cidoni explained that the applicant’s symptoms tended to result in reactive behaviour which would add to his dysfunction and cause problems.
In Brown, the court emphasised that there should be appropriate evidence to support the application of any of the six propositions in Verdins, in the following terms:
Evidence-based decision-making is, of course, precisely what Verdins both authorises and requires. What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.
As the Court in O’Neill rightly emphasised:
Careful consideration needs to be given to whether the evidence establishes that mental capacity has been impaired and which of the circumstances set out in Verdins are engaged. It requires a rigorous evaluation of the evidence.
And, as the Court further said:
It has been the general experience of this Court that sentencing judges exercise great caution when considering whether Verdins principles have been enlivened. Judges give careful consideration to whether the material relied upon by the offender establishes the necessary basis for the application of the relevant Verdins principle relied upon. They give the issue the rigorous attention that it requires.[13]
[13]Brown [2020] VSCA 212, [61]–[62] (citations omitted).
Applying those principles, the opinion expressed by Ms Cidoni as to the potential ‘risk’ associated with a sentence of imprisonment was not sufficient to enliven application of the sixth principle outlined in Verdins.
In her report, Ms Cidoni did not describe the degree of the risk, that a sentence of imprisonment might cause the applicant to develop a personality disorder. In particular, she did not describe it as a serious risk. She described the common symptoms of such a disorder to include a lack of a clear or stable self-image and a struggle to form and maintain interpersonal relationships. Without more, we are not persuaded that an unspecific risk of developing such a disorder could be considered to constitute a ‘serious risk of imprisonment having a significant adverse effect’ on the applicant’s mental health for the purposes of the sixth proposition outlined in Verdins.
For those reasons, ground 1 of the application must fail.

Ground 2 — submissions

Counsel for the applicant noted that it had been submitted on the plea that the applicant was remorseful for his conduct. The applicant had made full admissions as to the offending when he was arrested, and he had entered an early plea of guilty. In his interview, he expressed remorse. He also expressed remorse to Youth Justice, although, in the opinion of the writer of the report, that remorse was tempered by his limited empathy with the victims of his offending. During the plea, the judge accepted the submission, made by counsel for the applicant, that the applicant was truly remorseful for his conduct. The prosecution took no issue with that proposition. However, in his sentencing reasons, the judge expressed only a qualified acceptance of the applicant’s remorse, stating that it was ‘somewhat problematic’ that the plea of guilty was accompanied by remorse.
Counsel further submitted that the contents of the Youth Justice pre-sentence report did not justify the judge expressing such a qualification as to the nature of the applicant’s remorse. In that respect, the report noted that the applicant had expressed regret for his actions, and he acknowledged that the employer of the store, and the customers, would have felt scared, and the owners of the shop would have felt angry that someone had stolen their money.
In response, counsel for the respondent noted that, in the Youth Justice pre-sentence report, the case manager stated that the applicant did not present as remorseful for the impact which his offending had on the store, although the applicant did demonstrate a sincere understanding of the impact of his offence on the victim. Counsel submitted that the qualification expressed by the case manager in her report provided the context to the comment made by the judge, in sentencing the applicant, that the question of remorse was ‘somewhat problematic’. Notwithstanding that comment, the judge nevertheless gave the applicant ‘the benefit of the doubt.’ Thus, his Honour did not resile from his earlier remarks, during the sentencing hearing, that he would sentence the applicant on the basis that he was truly remorseful.

Ground 2 — analysis and conclusion

In our view, it was well open to the judge to express some reservations as to the quality of the applicant’s remorse for this actions.
The applicant’s blatant non-compliance with the conditions on which he had been granted bail demonstrated that he had little insight into the gravity of his offending. The authors of the Youth Justice pre-sentence report observed that in their discussions with the applicant, he had struggled to empathise with the victims, and that he did not present as remorseful for the impact that his offending had on the store. In those circumstances, the judge had an appropriate basis upon which to regard the question of the applicant’s remorse as being ‘somewhat problematic’.
Further, and in any event, notwithstanding those reservations, the judge, in his reasons for sentence, was prepared to give the applicant the ‘benefit of the doubt’ in respect to the question of his remorse. Accordingly, it may be concluded that the judge sentenced the applicant on the basis that he was remorseful for his offending and the impact which it had on the victims.
It follows that the applicant has failed to establish ground 2.

Ground 3 — submissions

In support of Ground 3, counsel for the applicant referred to the following matters which were in mitigation of sentence:
•the applicant was a young person who had no criminal history;
•the applicant had pleaded guilty early and he had made full and comprehensive admissions to his offending;
•according to the principles stated in Worboyes, the applicant’s early plea was of particular utility due to the effects of the COVID-19 pandemic on the operation of the courts;
•Ms Cidoni in her report had assessed the applicant as of being a moderate risk, with good prospects of rehabilitation.
Counsel placed particular emphasis on the applicant’s youth. He noted that, in her report, Ms Cidoni explained that as an adolescent transitions to adulthood, the intellectual abilities mature before the executive and self-regulatory abilities. Accordingly, there is a developmental disconnect, which comprehends the risk of a young person being involved in particular behaviour without fully thinking through and understanding its consequences. Counsel relied on the authorities in which it has been noted that a sentence of adult imprisonment is almost inevitably counterproductive for a young offender, and would be more likely to impair rather than improve such an offender’s prospects of successful rehabilitation.[14]
[14]Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 46–47 [4], 54 [36] (Redlich JA); R v Mills (1998) 4 VR 235, 242; Buckley v The Queen [2022] VSCA 138 [6], [48]–[49] (Maxwell P, T Forrest JA).
Based on those matters, counsel submitted that it was not open to the judge to sentence the applicant to a term of adult imprisonment. It was submitted that the judge was not bound by the pre-sentence reports. Counsel accepted that it was open to the judge to sentence the applicant to a term of detention in a Youth Justice Centre, and he accepted that such a sentence would not be manifestly excessive. In conclusion, counsel contended that the judge should have sentenced the applicant to either a Community Correction Order or to a term of detention in a Youth Justice Centre.
In response, counsel for the respondent noted that armed robbery is, of itself, a serious criminal offence, the maximum sentence for which is 25 years’ imprisonment. In the present case the offending involved some pre-planning. The victim was a ‘soft target’, and, as accepted by the applicant, it was clear that the victim was terrified by the manner in which the offence was committed. Counsel further noted that a significant factor in the sentencing synthesis of the judge was the fact that both Community Corrections and Youth Justice had concluded that the applicant was unsuitable for a Community Correction Order and for a Youth Justice Centre order. In that respect, counsel noted that Youth Justice had been dealing with the applicant during the term on which he had been released on bail, and thus Youth Justice was well acquainted with him and with his suitability for the imposition of a Youth Justice Centre detention order. Counsel therefore submitted that, notwithstanding the mitigating circumstances relied on by the applicant, the sentence imposed by the judge was well within the range of sentencing options available in the circumstances.

Ground 3 — analysis and conclusion

The principles that apply to a ground of appeal based on manifest excess are well established. In order to succeed, the applicant must demonstrate that the sentence imposed on him was wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentence was not reasonably open to the sentencing judge, if proper weight had been given to all the relevant circumstances both of the offending and the offender. It is well recognised that the test for manifest excess is stringent.[15]
[15]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
As we have noted, in the course of oral submissions, counsel for the applicant did not submit that it was not open to the judge to impose a custodial sentence. In particular, counsel accepted that it was open to the judge to have sentenced the applicant to detention in a Youth Justice Centre for a period of two years. Thus, counsel confined his submissions to the proposition that the sentence of imprisonment in an adult jail was manifestly excessive.
That concession was appropriate. Armed robbery, of itself, is a serious offence, the maximum sentence for which is 25 years’ imprisonment. In the present case, the applicant’s offending had a number of serious aspects to it. On his own admission, the applicant used a hammer (which the victim described as a mallet) to intimidate the defenceless female employee of the store. The applicant had selected the store as a target because it was vulnerable and accessible. He had taken a number of precautions to prevent his detection, including wearing a mask, a hoodie and gloves. After he entered the store, the applicant deliberately acted in a manner that was designed to intimidate the employee into handing over the cash from the register.
In passing sentence, the judge correctly recognised that the applicant did have available a number of mitigating circumstances, including his youth, his lack of previous convictions and the early admissions he did make concerning his offending. The judge correctly recognised that, in view of the matters discussed in Worboyes, the applicant’s plea of guilty was of particular utilitarian value.
It may be accepted that the applicant’s young age, and his lack of previous convictions, were significant mitigating circumstances in the case. It is for those reasons that the judge, during the course of the plea, expressed reluctance to sentence the applicant to a term of adult imprisonment. However, having adjourned the plea, and received the further reports, including the Youth Justice pre-sentence report, the judge concluded that he had no other option than to sentence the applicant to a term of imprisonment in an adult jail.[16] In reaching that conclusion, the judge had reference to the Community Corrections report[17] and the Youth Justice report. By reason of the contents of the latter report, the judge noted that the applicant had ‘shown little if any inclination to change [his] ways’.[18] The judge further noted that the applicant had poor previous compliance with the supervised bail, and that he had refused to engage with intervention that was designed to address his offending behaviour.[19] For those reasons, the judge concluded that imprisonment in an adult jail was the only available sentencing option.
[16]Reasons, [27].
[17]Ibid [21].
[18]Ibid [22].
[19]Ibid [24].
Certainly, it was open to the judge to sentence the applicant to a term of detention in a Youth Justice Centre, notwithstanding the report obtained from Youth Justice. However, the terms in which Youth Justice expressed its opinion, particularly in relation to the applicability of s 32(1)(a) of the Sentencing Act, were particularly persuasive.
Counsel for the applicant has correctly pointed out that the criteria specified in ss 32(1)(a) and (b) of the Sentencing Act are stated in the alternative. Section 32(1) provides that a judge may make a Youth Justice Centre order if it has received a pre-sentence report and the court believes either (a) that there are reasonable prospects of the rehabilitation of the young offender; or (b) that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
As we have noted, the Youth Justice report concluded that the applicant did not meet the criteria for either alternative proposition. There is some substance in the submission, made on behalf of the applicant, that the matters referred to in the report, as supporting the conclusion under s 32(1)(b), are not particularly persuasive. However, on the other hand, the factors relied on in the report in support of the conclusion, under s 32(1)(a), that the applicant did not have reasonable prospects for rehabilitation, provided cogent support for the conclusion that the applicant was not a suitable person to be detained in a Youth Justice Centre.
As we have mentioned, the report correctly noted that the applicant’s offending was serious. The report noted that he had demonstrated poor compliance with previous supervision, he had refused to engage with intervention designed to address his offending behaviour, he had demonstrated difficulties with authority and in following rules, and he had demonstrated poor interpersonal relationships and disengagement from his family. The report further noted that the applicant had exhibited ‘minimal motivation’ to engage in pro-social activities and to disassociate from his negative peers. Those factual conclusions by the authors of the Youth Justice report, who were well acquainted with the applicant’s performance during the time in which he was on supervised bail, were of particular weight. In our view, they fully justified the conclusion by the judge that it was not appropriate to sentence the applicant to a term of detention in a Youth Justice Centre.
In that regard, it must be borne in mind that at the time of sentencing the applicant was 20 years and 8 months old. The report noted that the applicant functioned at his chronological age. In that respect, it may be noted that the applicant had completed Year 12 in his secondary education, he had commenced to undertake a tertiary education, and he had also gained admission into the Australian Army. All of those matters are relevant to an assessment of the maturity of the applicant, and as to a determination as to the nature of the sentencing disposition.
Taking those matters into account, we are not persuaded that the sentence imposed on the applicant in this case was manifestly excessive. It was reasonably open to the judge, in the circumstances, to conclude that the only appropriate sentence for disposition was a custodial sentence in an adult prison.

For those reasons, ground 3 of the application does not succeed.

Summary of conclusions

For the foregoing reasons, the applicant has failed to succeed on any of the grounds of the application. Accordingly, the application for leave to appeal against sentence must be refused.

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[2023] VSCA 17

14 February 2023