Thompson v The Queen

[2022] VSCA 67

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0161

SARAH THOMPSON	Applicant
v
THE QUEEN	Respondent

---

JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	13 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 67
JUDGMENT APPEALED FROM:	[2021] VCC 1274 (Judge Carmody)

---

CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Parity – Lack of disparity – Applicant and co-offender receiving same sentences, where co-offender had more extensive criminal history and was on bail at time of offending – Co-offender having background of significant disadvantage – Complaint of lack of disparity not reasonably arguable – Lenient sentences in any event – Application for leave to appeal refused.

---

REPRESENTATION:	Counsel	Solicitors
For the Applicant	Ms G Connelly	Valos Black & Associates
For the Respondent	Ms D I Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA:

1. The applicant, together with her co-offender, Nathan Robertson-Ainsworth, pleaded guilty in the County Court to one charge of aggravated burglary and four charges of theft (charges 2 to 7 on Indictment C2013360).  At the same time, Robertson-Ainsworth pleaded guilty to an additional charge of theft (charge 1 on the indictment) together with a number of related summary offences.  A joint plea hearing was conducted on 30 August 2021. 

1. On 2 September 2021, the judge sentenced the applicant as follows:

Charge	Offence	Maximum	Sentence	Cumulation
2	Aggravated burglary, s 77 Crimes Act 1958	25 years	4 years	Base
3	Theft, s 74 Crimes Act 1958	10 years	6 months	3 months
4	Theft, s 74 Crimes Act 1958	10 years	30 days	7 days
5	Theft, s 74 Crimes Act 1958	10 years	30 days	7 days
6	Theft, s 74 Crimes Act 1958	10 years	30 days	14 days
7	Theft, s 74 Crimes Act 1958	10 years	$200	–
Total Effective Sentence:		4 years 4 months
Non-Parole Period:		2 years 9 months
Pre-Sentence Detention:		572 days
Section 6AAA Statement:		6 years 6 months, with a non-parole period of 4 years 6 months

1. On the same day, the judge sentenced Robertson-Ainsworth as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Theft, s 74 Crimes Act 1958	10 years	$200	–
2	Aggravated burglary, s 77 Crimes Act 1958	25 years	4 years	Base
3	Theft, s 74 Crimes Act 1958	10 years	6 months	3 months
4	Theft, s 74 Crimes Act 1958	10 years	30 days	7 days
5	Theft, s 74 Crimes Act 1958	10 years	30 days	7 days
6	Theft, s 74 Crimes Act 1958	10 years	30 days	14 days
7	Theft, s 74 Crimes Act 1958	10 years	$200	–
RSO 2	Refuse sample of oral fluid, s 49(3AAA) Road Safety Act 1986	120 penalty units	Aggregate fine $500	–
RSO 3	Use unregistered vehicle — highway, s 7(3)(a)(ii) Road Safety Act 1986	50 penalty units	Aggregate fine $500	–
RSO 4	Unlawful assault, s 23 Summary Offences Act 1966	3 months or 15 penalty units	2 months	1 month
RSO 4[1]	Number plates not affixed, r 50(1) Road Safety (Vehicles) Regulations 2009	2 penalty units	Aggregate fine $500	–
RSO 5	State false name or address, s 59(2)(b) Road Safety Act 1986	1 month or 5 penalty units	Aggregate fine $500	–
RSO 8	Commit indictable offence whilst on bail, s 30B Bail Act 1977	3 months or 30 penalty units	1 month	–
RSO 12	Drive while disqualified (rolled up charge), s 30(1) Road Safety Act 1986	2 years or 240 penalty units	3 months	2 months
Total Effective Sentence:		4 years 7 months
Non-Parole Period:		2 years 10 months
Pre-Sentence Detention:		452 days
Section 6AAA Statement:		7 years with a non-parole period of 5 years

[1]These related summary offences to which Robertson-Ainsworth pleaded guilty consist of two offences charged as charge 4 because there were two sets of summary charges.

1. The applicant now seeks leave to appeal on the sole proposed ground that ‘[t]he sentencing orders offend the parity principle’.

Circumstances of the relevant offending

1. The applicant’s parity complaint concerns the offending the subject of charges 2 to 7 on the indictment.  The applicant complains that the judge should not have imposed the same sentences and orders for cumulation on her, in relation to those charges, as those he imposed on Robertson-Ainsworth.  Having regard to the terms of the applicant’s complaint, it is only necessary to summarise the offending which gave rise to charges 2 to 7.

1. The background to charges 2 to 6 is an alleged unpaid drug debt.[2]  The applicant and Robertson-Ainsworth were in a relationship.  The victims of their offending, Mark Taylor and Kristen Windsor, lived in Horsham.  On 7 February 2020 Robertson-Ainsworth sent Mr Taylor three text messages, warning him that he was coming to collect $2,000 for the alleged drug debt.  On 8 February 2020, the applicant and Robertson-Ainsworth travelled to Horsham.  At approximately 5:15 am, they stopped at a Caltex service station and filled their vehicle with fuel.  They drove away without paying (charge 7, theft).

   [2]The offending constituted by charge 7 occurred while the applicant and her co-offenders were travelling on the way to the location where the offending giving rise to charges 2 to 6 occurred.

1. At approximately 6:10 am, the applicant, Robertson-Ainsworth and a third unidentified man arrived at their victims’ home.  They approached the front door of the house, with the intention of stealing items of value in order to satisfy their alleged drug debt.  At the time, Robertson-Ainsworth was in possession of a metal pole, which was approximately 70 cm in length and 3 cm in diameter;  and the applicant was a in possession of a knife, which was approximately 25 cm in length.  Mr Taylor and Ms Windsor were at home.  Also visiting the home at the time were Justin Foot and Benjamin Barnes.  All four of them were seated in the lounge room, when they heard a person attempting to unlock the front door.  The applicant kicked the door open, breaking it off its hinges.  The three intruders then entered the home (charge 2, aggravated burglary). 

1. The applicant, Robertson-Ainsworth and the unidentified man then entered the lounge room, where Robertson-Ainsworth began yelling at the people in the house and threatening them with the metal pole.  Robertson-Ainsworth demanded the people present hand over their mobile phones to the applicant.  Ms Windsor, Mr Foot and Mr Barnes complied, and the phones were collected and kept in the possession of the applicant.

1. Robertson-Ainsworth then demanded the keys to Mr Taylor’s vehicle, a Holden Commodore parked in the driveway.  Mr Taylor complied with that demand.  Robertson-Ainsworth then took Mr Foot outside, as he was unable to get Mr Taylor’s car started.  The applicant remained in the lounge room with Mr Taylor, Ms Windsor and Mr Barnes, brandishing a knife.  Mr Foot then assisted in getting the Holden Commodore started by removing the battery from the vehicle in which the applicant and Robertson-Ainsworth had arrived, and placing it in the Holden Commodore to start that vehicle, before then returning the battery to the vehicle from which it came. 

1. While at the premises, the applicant and Robertson-Ainsworth stole the following items of property:

·Mr Taylor’s Holden Commodore, four 20-inch mag rim wheels, and a hard drive, together with Mr Taylor’s driver’s licence, Commonwealth Bank debit card and CentreLink card (charge 3, theft);

·Ms Windsor’s OPPO mobile phone (charge 4, theft);

·Mr Barnes’s Apple iPhone X (charge 5, theft);  and

·Mr Foot’s Apple iPhone (charge 6, theft).

1. The whole incident lasted approximately 20 minutes.  Before leaving with the stolen items, Robertson-Ainsworth threatened the victims that if they reported the matter to police, he would come back for them. 

1. At the time of their offending, Robertson-Ainsworth was on bail, and the applicant was the subject of an adjourned undertaking. 

Sentencing reasons

1. The judge commenced his reasons for sentence with a description of the offending which constituted charges 2 to 7,[3] before summarising Robertson-Ainsworth’s additional offending.[4]  During the course of his summary, the judge noted that Robertson-Ainsworth was on bail at the time he committed the offences which were the subject of charges 2 to 7, and that this was the subject of the related summary charge 8 (committing an indictable offence while on bail).[5]

   [3]DPP v Robertson-Ainsworth [2021] VCC 1274, [18]–[32] (‘Reasons’).

   [4]Ibid [30], [33]–[40].

   [5]Ibid [33].

1. After summarising the applicant’s and Robertson-Ainsworth’s records of interview,[6] the judge noted that both the applicant and Robertson-Ainsworth had been in custody for 572 days.  He said that the applicant had served a total of 572 days of pre-sentence detention referable to charges 2 to 7;[7]  whereas, Robertson-Ainsworth had only served 452 days of pre-sentence detention in relation to the offending for which he fell to be sentenced — Robertson-Ainsworth having served a sentence for other offending since his arrest in respect of the charges for which he fell to be sentenced by the judge.[8]

   [6]Ibid [41]–[42].

   [7]Ibid [43].

   [8]Ibid [44].

1. The judge then turned to Robertson-Ainsworth’s and the applicant’s personal circumstances. 

1. In respect of Robertson-Ainsworth, the judge noted that he was 28 at the time of sentence, and had experienced a difficult early life.  His father left his mother when he was three years old.  She re-partnered with a man who became his stepfather.  The applicant’s mother experienced serious violent attacks from his stepfather.  On occasion, she required treatment in hospital for the injuries inflicted on her.[9]

   [9]Ibid [45]–[46].

1. The judge noted that when Robertson-Ainsworth was in his early teenage years, his mother was incarcerated.  For that period of time, he was homeless and ‘living in the streets and, effectively, couch surfing’.[10]

   [10]Ibid [47].

1. The judge also noted that Robertson-Ainsworth was illiterate, having left school at year 9, after repeating years 4 and 5.  He was bullied at school because he was young for his age.  He was expelled from school because he urinated on a teacher’s leg after having been refused permission to go to the toilet.[11]

   [11]Ibid.

1. The judge referred to medical evidence tendered in relation to Robertson-Ainsworth, including him having been diagnosed as schizophrenic in 2015;  having been under the orders of the Mental Health Tribunal twice in 2016, once in 2017, and once in 2019.[12]  The judge referred to the various drugs which had been prescribed to treat Robertson-Ainsworth’s psychiatric conditions;  his borderline to low average intelligence;  his having been diagnosed with the long-term mental disorder of schizophrenia;  and the effect of his mental condition on his ability to make decisions.[13] 

   [12]Ibid [48].

   [13]Ibid [49]–[50].

1. The judge said that Robertson-Ainsworth had been able to obtain and retain employment after leaving school, having performed manual hands-on type work and also work as a dump truck driver.[14]

   [14]Ibid [51].

1. In describing Robertson-Ainsworth’s criminal history, the judge said:

You have a prior criminal history for offending in New South Wales and Queensland between 2011 and 2014.  These matters are minor dishonesty charges and numerous driving charges.  Your more serious criminal history commenced in 2016 in Victoria.  There are charges of theft of motor car, criminal damage, recklessly cause injury, theft, and driving related charges.  Your criminal history is relevant to this current offending.[15]

[15]Ibid [53].

1. With respect to the applicant, the judge noted that she was 32 at the time of sentencing;  and that the applicant had described her upbringing ‘as stable and a loving family’.[16]  The judge noted that the applicant had completed year 11 and thereafter had 15 jobs in retail and administrative assistant type roles.[17]

   [16]Ibid [56]–[57].

   [17]Ibid [58].

1. The judge observed that the applicant had three significant relationships, during the first of which she was charged, convicted and sentenced for importing methylamphetamine.[18]  The judge described the applicant’s activity as a ‘drug mule’ having almost cost her her life because one of the bags she ingested burst, and she ended up in the emergency department of a hospital as a result.  The applicant’s life was saved, but in September 2009, she was sentenced ‘to 12 months’ imprisonment and a Commonwealth Crimes Act good behaviour bond’.[19]

   [18]Ibid [59].

   [19]Ibid. In fact, the sentence of imprisonment was 3 years, with an order that the applicant be released after 12 months on entering into a $5,000 good behaviour bond.

1. The judge noted that in 2002, when the applicant was 14, she was diagnosed with bipolar disorder;  and that she had subsequently been diagnosed as suffering from ‘PTSD, borderline personality disorder’.[20]

   [20]Ibid [62].

1. Next, the judge dealt with various sentencing considerations.  These included the purposes for which a court may impose a sentence, rehabilitation, current sentencing practices, the value of the pleas of guilty, delay and the seriousness of the aggravated burglary charge.[21]  As to the seriousness of the aggravated burglary offence, the judge said:

   [21]Ibid [65]–[77].

The seriousness of the offending of the aggravated burglary by the both of you is indicated by the following factors:

(a)your intention was to recover money or property to satisfy the debts when you both entered the property;

(b)       you forced entry to the property by kicking the door in;

(c)you were in the company of one another and an unidentified co-offender;

(d)the offence occurred at the very early hours of the morning, approximately 6 am;

(e)you both knew that at least Mr Taylor and Ms Windsor were inside the premises when you entered;

(f)when you entered the premises, each of you had a weapon, Mr Robertson-Ainsworth, you had a metal pole, Ms Thompson, you had a knife;  and,

(g)each of you had a clear intention to recover money or value by going into that premises.[22]

[22]Ibid [77].

1. The judge concluded his sentencing reasons by dealing with what he said was the individual sentencing considerations in relation to Robertson-Ainsworth and the applicant.  In respect of Robertson-Ainsworth, the judge said:

In your case, Mr Robertson-Ainsworth, you were on bail for other offending when you committed these offences.  You have served short sentences for dishonesty and violent offending in the past.  Most of your criminal history is for driving related offending.  In particular, you had only been out of gaol for a period of seven months when you offended on this occasion.

You are of Aboriginal background through your father, but you have had little contact with him over your life.  It is clear you have endured a most dysfunctional disadvantage and traumatic upbringing at the hands of your stepfather, and in the circumstances of your mother's imprisonment when you were a teenager or a young person.  That background has compromised your capacity to mature and to learn from experience.  The upbringing I refer to is further complicated by your diagnosis for schizophrenia, and an assessment that you are borderline to low average intelligence;  you are illiterate.

In this sentencing process, I assess these factors to lessen your moral culpability for this offending and reduces the assessment that you are an appropriate vehicle for the expression of general deterrence.

I accept that given your mental health diagnosis your time in custody will be more onerous than a prisoner of normal mental health.  At present, you are receiving adequate treatment, but the prison environment is very stressful for prisoners who suffer from mental health conditions that are difficult to control, as is your case.  Your sentence is to be reduced appropriately, but also reflected in an opportunity to be granted parole to assist you with your rehabilitation and further treatment.

Your prospects of rehabilitation are guarded, due to your mental health problems and your relapsing on treatment, and combined with your long-term drug related lifestyle.

Another matter I need to take into account in your circumstances is the issue of totality, given that only some part of the time you have totally spent in gaol can be attributed as pre-sentence detention in these matters.

The offending is serious and the only appropriate sentence in your case is a term of imprisonment with a non-parole period.  The sentencing principles of deterrence, whilst ameliorated, general and specific, just punishment and denunciation of your criminal actions and the protection of the community dictate that a term of imprisonment is the only appropriate sentence, and that is to be combined with a non-parole period.[23]

[23]Ibid [80]–[86].

1. In relation to the applicant, the judge said:

Ms Thompson, the Verdins principle applies to your sentencing process in the following manner.  Your bipolar diagnosis, together with PTSD and depressive illness operate to mitigate your moral culpability for this offending.  I accept that your well-documented mental health history and conditions will make your time in custody more onerous than a prisoner of normal mental health.

I note that you were placed on a good behaviour undertaking at the Heidelberg Magistrates' Court on 13 May 2019 for a period of 12 months.  You have offended in this occasion whilst you were on that undertaking.

Your criminal history is otherwise limited to one charge of importing methylamphetamine, which was 10 years prior to this offending.  The common feature of the 2009 offending and the 2019 offending is the drug culture, of which you are a part.  Your mental health diagnosis and intermittent use of drugs are not a good combination.  Ms Cokorillo assesses you as a moderate risk of reoffending because of those matters.

I do not accept that the dependent personality disorder that you have been diagnosed as suffering, was a key role in your offending in this case.  You were mutually dependent upon one another, that is you and Mr Robertson-Ainsworth in this venture and your admission to police that some of the money owed by Mr Taylor was in fact owed to you, reinforces that conclusion.

The sentence to be imposed on you takes into account your moral culpability for those offences you have been charged with and makes allowance for the matters to which I have referred to during the course of these reasons.

Ultimately, the only appropriate sentence is a term of imprisonment with a non-parole period to satisfy those sentencing principles of general and specific deterrence, although ameliorated, and just punishment, denunciation of your offending, rehabilitation, and protection of the community.[24]

[24]Ibid [88]–[93] (citation omitted).

Applicant’s contentions

1. In contending that the sentencing orders made by the judge offended the parity principle, the applicant submitted:

Even accepting that the co-offenders were equally culpable for their common offending and relied on matters in mitigation of broadly comparable weight and comparable effect on sentencing principle, it was not open to the learned sentencing judge to impose on them the same sentences.

1. In support of that submission, the applicant contrasted her previous conviction for importing (as a ‘drug mule’) a border controlled drug in 2009, and her placement on an adjourned undertaking without conviction for traffic offences in 2019, with Robertson-Ainsworth’s history of persistent offending since 2015 in Victoria for violence, dishonesty and failure to comply with orders.  The applicant submitted that specific deterrence and community protection, upon release following a significant term of imprisonment, ‘had to assume a significantly greater weight for Robertson-Ainsworth than for the applicant’.

1. The applicant also relied upon the fact that she complied with her two years recognisance release order following imprisonment for one year in 2009;  and thereafter, although managing significant challenges in the form of her mental illness and an abusive relationship, did not reoffend for a decade.

1. The applicant accepted that, while the principle of totality had more work to do in sentencing Robertson-Ainsworth than the applicant, s 16(3C) of the Sentencing Act 1991 meant that a presumption of cumulation applied to his sentence — with the fact of his offending while on bail being, additionally, a significant matter in aggravation of his sentences. 

1. The applicant submitted that, in all the circumstances of the case, it was not open to the sentencing judge to impose the same sentences on the applicant and Robertson-Ainsworth for their shared offending.  It was also submitted that, ‘[t]here is scope for the applicant to receive a lesser sentence’.

Respondent’s contentions

1. The respondent submitted that it was open to the sentencing judge to impose the same sentences on the applicant and Robertson-Ainsworth in relation to charges 2 to 7 when proper regard was had to the application of the totality principle and the principles in Bugmy v The Queen[25] and R v Verdins.[26]

   [25](2013) 249 CLR 571 (‘Bugmy’).

   [26](2007) 16 VR 269 (‘Verdins’).

1. The respondent accepted that there were significant differences between the applicant’s criminal history and Robertson-Ainsworth’s criminal history.  It was submitted, however, that Robertson-Ainsworth’s criminal history had to be understood in the context of significant disadvantage and dislocation.  As the respondent put it:

[Robertson-Ainsworth] was exposed to and subjected to domestic violence perpetrated by his stepfather.  When his mother was incarcerated [he] was aged between 10 and 14 years, and he found himself homeless.  During the period of homelessness [he] was introduced to heroin and then at a later point, methylamphetamine.  [He] left school at either year 7 or year 9 and is illiterate.  [He] has been assessed as being of low to borderline intelligence and has commenced an application for support from the National Disability Insurance Scheme.

1. The respondent noted that the sentencing judge had accepted that Bugmy principles had application in sentencing Robertson-Ainsworth in that it reduced his moral culpability.[27]  To the contrary, the applicant did not seek to invoke Bugmy principles:  she being from a stable family environment, and having enjoyed family support prior to this offending.

   [27]Reasons [81]–[82].

Parity principles

1. The principles governing parity are well established.[28]  As was said in Collins:

Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes.  If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed.  However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.  When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[29]

[28]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; Collins v The Queen [2015] VSCA 106 (‘Collins’);  Ryan v The Queen [2016] VSCA 255; Nipoe v The Queen [2020] VSCA 137, [38]; Chamma v The Queen [2020] VSCA 232, [60]; Abela-Rogers v The Queen [2022] VSCA 34, [15]-[16] (‘Abela-Rogers’);  Tran v The Queen [2022] VSCA 45, [46]-[48] (‘Tran’).

[29][2015] VSCA 106, [23] (citations omitted).

1. In Hilder v The Queen,[30] Maxwell ACJ identified ‘the true nature of the question which must be addressed when the ground of parity is advanced’ as being ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co-offenders in the way he or she did’.[31]  His Honour went on to say that there was a ‘close analogy with the stringency of the test of manifest excess’, and then said that, for a parity ground to succeed, ‘it must be shown that the conclusion as to sentence differentials was not reasonably open’.[32]

   [30][2011] VSCA 192.

   [31]Ibid [37].

   [32]Ibid [38]; Collins [2015] VSCA 106, [23]; Abela-Rogers [2022] VSCA 34, [16]; Tran [2022] VSCA 45, [47].

Did the sentencing orders offend the parity principle?

1. There is no substance in the applicant’s contention that the judge’s sentencing orders offended the parity principle.  For the reasons which follow, the applicant’s proposed ground of appeal is not reasonably arguable. 

1. The applicant’s parity ground is a complaint that she and Robertson-Ainsworth received exactly the same sentences in respect of charges 2 to 7 in circumstances where, although their offending was relevantly identical, their circumstances were different.  The principal differences concern their different criminal histories and their different backgrounds.

1. In support of the proposition that the applicant should have received lower sentences than Robertson-Ainsworth, the applicant relied upon Robertson-Ainsworth’s more extensive criminal history, and the fact that he was on bail at the time of his offending (while, by contrast, the applicant’s offending was merely in breach of an undertaking she had given to the Magistrates’ Court in May 2019).

1. Pulling in the other direction, however, was Robertson-Ainsworth’s background of significant disadvantage — compared to the applicant’s considerably more stable and supportive background.  As was said in Bugmy:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person’s capacity to mature and learn from experience.  It is a feature of the person’s makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision.[33]

[33]Bugmy (2013) 249 CLR 571, 594–5 [43]–[44] (emphasis added).

1. It should also be borne in mind that there is no principle of sentencing which requires that more severe sanctions be administered to those who persist in their criminal behaviour.[34]  That is not, however, to deny that an adverse criminal record may nevertheless have an impact on the sentencing process in a number of well recognised ways.[35]

   [34]R v O’Brien [1997] 2 VR 714, 718–9 (‘O’Brien’);  Wilson v The Queen [2022] VSCA 2, [20] (‘Wilson’).

   [35]As to which, see O’Brien [1997] 2 VR 714, 718–9; Wilson [2022] VSCA 2, [20].

1. The short point in relation to the applicant’s proposed ground of appeal is that it was open to the judge to impose the same sentences and orders in respect of charges 2 to 7, given Robertson-Ainsworth’s background of significant disadvantage.  The contrary proposition is not reasonably arguable.  The fact that there was a presumption of cumulation in Robertson-Ainsworth’s case[36] does not change this.

   [36]See s 16(3C) of the Sentencing Act 1991.

1. In any event, the sentences imposed by the judge in respect of charges 2 to 7 were modest — particularly the sentence imposed on the charge of aggravated burglary (charge 2), which was very lenient.  The aggravated burglary was a serious example of a serious charge:  the applicant having been in company with Robertson-Ainsworth and an unidentified co-offender;  the offending occurring in the early hours of the morning, when the offenders knew that at least two victims were inside;  and the involvement of weapons in the offending, in particular the knife which the applicant brandished during the course of the offending.  In the circumstances, it is extremely difficult (if not impossible) to see how the judge could have given a lesser sentence to the applicant on charge 2.[37]

   [37]See Farrugia v The Queen (2011) 32 VR 140, 147–8 [31].

1. The applicant’s sentence on charge 2 was very lenient.  The orders for cumulation in respect of the other charges were moderate.  Even if I thought there was any substance in the applicant’s proposed ground of appeal (which I do not) I would have concluded that there is no reasonable prospect that this Court would reduce the applicant’s total effective sentence.  This would have provided a further basis for refusing leave to appeal.[38] 

   [38]See s 280(1)(b) of the Criminal Procedure Act 2009.

Conclusion

1. The application for leave to appeal must be refused.

- - -