Walsh v The Queen
[2018] VSCA 334
•7 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0120
| ANTHONY JOHN WALSH | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 November 2018 |
| DATE OF JUDGMENT: | 7 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 334 |
| JUDGMENT APPEALED FROM: | DPP v Walsh (Unreported, County Court of Victoria, Judge Gamble, 28 May 2018) |
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CRIMINAL LAW — Appeal — Sentence — Two charges of negligently causing serious injury by driving — Victims the appellant’s children — Negligent driving resulting from rebound fatigue through methylamphetamine use — Whether sentence inconsistent with comparable cases — Whether total effective sentence of 6 years’ imprisonment with non-parole period of 3 years and 9 months manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Nathwani | Eagle & Partners |
| For the Respondent | Ms K Judd QC DPP with Mr T Bourbon | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
WEINBERG JA:
Overview
In the early hours of 4 March 2017, a Toyota Hilux four wheel drive vehicle being driven by the appellant along the Western Freeway in Wendouree left the roadway and nose-dived into a rail cutting. Two of his children who were passengers — Madelynne, aged 9 years, and Matthew, aged 14 — were seriously injured.
Madelynne’s injuries were life threatening. They included:
· multiple system trauma;
· a fracture dislocation of the ‘C2’ dens with significant ligamentous injury at the crania cervical junction, and ‘T2’ signal changes suggesting oedema within the cervical cord;
· traumatic brain injury;
· the fracture of multiple ribs with flail chest;
· a bilateral pneumothorax;
· a ‘grade 1’ liver laceration;
· laceration of the spleen;
· small bowel perforation; and
· a ‘C2’ cervical fracture.
Madelynne had to undergo a number of procedures and surgeries. Post-operatively she was managed with total parenteral nutrition due to her small bowel injuries and feed intolerance, which was later changed to nasogastric intubation feeding. She also suffered ventilation-associated pneumonia. Madelynne has had to tolerate extensive rehabilitation, and continues to have issues with her health that affect her schooling and day to day life.
Matthew’s injuries included:
· multiple right kidney lacerations and kidney contusions with bleeding, with blood collection around the kidney and blood in the urine;
· bruising to both lungs, breathing problems and shallow breathing;
· bruising and abrasions over the chest;
· bruising to the upper and right lower quadrants on the abdomen;
· bruising over the right groin;
· left leg swelling;
· abrasion to left shinbone and calf;
· abrasion to the right lower shin;
· spinal bone fracture on torso level (possibly due to an unrelated pre-event medical condition); and
· the complication of infection with fever.
Matthew is likely to suffer from future complications as a result of the injuries to his kidneys and to have a reduced quality of life.
Plea, sentence and ground of appeal
On 1 May 2018, the appellant, now aged 40,[1] pleaded guilty before a judge in the County Court to two charges of negligently causing serious injury arising from the events of 4 March 2017.[2]
[1]His date of birth is 7 December 1977.
[2]Crimes Act 1958, s 24. The maximum penalty is 10 years’ imprisonment.
Following a plea, on 28 May 2018 the judge sentenced the appellant on charge 1 (relating to Madelynne) to four and a half years’ imprisonment, and on charge 2 (relating to Matthew) to three and a half years’ imprisonment.[3] The judge ordered that 18 months of the sentence on charge 2 be served cumulatively with the sentence on charge 1, resulting in a total effective sentence of six years’ imprisonment.[4] A non-parole period of three years and nine months was fixed.[5]
[3]The appellant also pleaded guilty to a related summary offence of driving while exceeding the prescribed quantity of drugs, for which he was fined $750.
[4]Pursuant to s 6AAA of the Sentencing Act 1991, the Court declared that had the appellant been convicted after a trial, ‘he would have been sentenced to a total effective sentence of seven and a half years’ imprisonment, with a non-parole period of five and a half years’.
[5]The judge also ordered that any driving licence held by the appellant be cancelled, and that he be disqualified for three years from the date of his release from custody.
On 12 September 2018, a judge of this Court granted the appellant leave to appeal[6] against his sentence on a single ground formulated as follows:
[6]Walsh v The Queen [2018] VSCA 233 (Tate JA).
1. The individual sentences, order for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
(i)Insufficient discount was given to the [appellant’s] plea of guilty; further and/or alternatively,
(ii) The learned judge took too high a starting point, further and/or alternatively,
(iii) The cumulation in the circumstances was not sufficiently moderated, further and/or alternatively,
(iv) That the sentence imposed offended the totality principle, and/or
(v) That the total effective sentence reflected an upper range sentence despite sentencing remarks and the facts of the case identifying this as a mid-range case, further and/or alternatively,
(vi) The learned judge did not reduce the sentence sufficiently to mark the specific deterrence that he accepted the [appellant] had already received, and/or
(vii) The learned judge gave insufficient weight to the personal circumstances of the [appellant], and/or
(viii) The learned judge did not sufficiently take into account the impact of the [appellant’s] incarceration on the victims, and
(ix) The sentences imposed are more severe than that which were necessary to achieve the purposes for which the sentences were imposed.
For the reasons that follow, we would dismiss the appeal.
Factual background
The appellant had three children with Emily Walsh, from whom he separated in October 2016. After the separation, Matthew lived with the appellant, whilst Madelynne and her sister lived with their mother. At the time that his children were seriously injured, the appellant, then living in Clonbinane, was driving to visit a new female partner resident in Ballarat (a trip of about 185 kilometres). He was about ten minutes from his destination when the fatal accident occurred. At the time, Matthew was in the front passenger seat and was wearing his seatbelt. Madelynne was asleep in the backseat and not wearing a seatbelt (although the prosecution accepted, first, that when Madelynne initially got into the car the appellant understood that her seat belt was on, and, secondly, that there is no evidence about how it came to be undone).
It appears that the appellant had commenced his journey at a little after 11.00 pm on Friday, 3 March 2017, when he left home with Matthew and Madelynne (who was staying the weekend with him) to drive to Ballarat. At some time between 1.25 am and 2.25 am on Saturday, 4 March 2017, his vehicle left the Western Freeway in Wendouree whilst travelling through a left hand curve in the roadway. His vehicle entered the grass verge in the centre, travelled down the embankment, levelled out on the bottom before coming close to entering the oncoming lanes. He steered to the left as his vehicle drove around the right hand side of a tree, striking several branches. The ground then fell away below his vehicle, which nose-dived into a rail cutting and then rotated over so that the rear of the car came to rest on its front in an almost vertical position against the wall of the rail underpass.
The appellant was able to get himself and his two children out of the car. He walked along the train tracks with his son for some 50 metres — carrying his daughter wrapped in a blanket — before turning west and continuing along a fence line for 300 metres. He telephoned ‘000’ at 2.40 am.
Emergency services attended and the appellant and the children were transported to hospital. The appellant had a blood sample taken at Ballarat Base Hospital at 4.05 am. Later analysis returned a result of .14 mg/l of methylamphetamine and .50 mg/l of amphetamine. As we have said, Madelynne suffered life threatening injuries to the head, neck and internal organs. She was airlifted to the Royal Children’s Hospital where she spent three months in traction in a ‘Halo Device’.
At the scene, the appellant told police that the fatal incident had occurred because of a kangaroo. That account, it appears, was not true. Detective Rob Hay, an expert collision reconstructionist who attended the scene of the collision and conducted an examination of the evidence, concluded:
In my opinion, the physical evidence at the scene is not consistent with the driver’s account. The evidence at the scene is consistent with an inattentive driver running off the road for unknown reasons.
The real explanation for the driver running off the road lay in the appellant’s fatigue, including ‘rebound fatigue’ from methylamphetamine use. In that regard, Dr Sanjeev Gaya, a Forensic Physician attached to the Victorian Institute of Forensic Medicine, provided the following opinion:
· The results of the blood analysis confirm that the appellant was driving after having used amphetamines.
· It is not possible to determine the dose or timing of drug use from the blood analysis results alone.
· The level of amphetamines that was found was similar to the levels found in large numbers of people driving under the influence of drugs.
· Although there is no precise correlation between blood levels and impairment for amphetamines in the same way that exists for drugs such as alcohol, as a general rule the higher the level the more likely it is that a person is impaired. It is possible for amphetamines to produce adverse effects on driving ability at any blood level. The nature of impairment cannot be interpreted from a single blood analysis result but the general effect is for the drug to cause a period of stimulation followed by a period of rebound fatigue. Both these stages can cause severe driving impairment.
· The circumstances of the incident suggest that the appellant showed no evidence of any evasive or corrective action when his car veered off the road. He took evasive and corrective actions only after his car had driven along a wide grassed divide. This is indicative of a temporary lapse in awareness of his immediate environment.
· Furthermore, when his most recent sleep and wakefulness history before the crash is taken into consideration, the timing of his crash was at a time of maximum sleepiness. At the time of the incident the appellant had been up for 18 to 19 hours.
· Rebound fatigue from methylamphetamine use and subsequent falling asleep would have impaired the appellant’s ability to drive, thus preventing him from having proper control of a motor vehicle.
Sentencing reasons
In his reasons for sentence, the judge described the appellant’s decision to drive to Ballarat on the night of the accident with his two young children as ‘selfish and criminally negligent’. The appellant had worked all day as a courier truck driver, then had waited at work for another driver to finish a shift at 9.30 pm. He drove the two of them home, arriving at 11.00 pm. The appellant had something to eat, then put Madelynne and Matthew into the car shortly after 11.00 pm and left. His vehicle passed a speed camera on the Hume Freeway in Wallan at 11.32 pm. He stopped at a petrol station at 11.41 pm — where he purchased an iced coffee drink and was seen on CCTV to be stretching and yawning — and left at 11.45 pm. At 12.45 am he sent a Facebook message to his girlfriend saying he was in Pentland Hills doing 120 kilometres per hour. As earlier mentioned, the collision occurred at some time between 1.25 am and 2.25 am.
When discussing the appellant’s fatigue, and the effect upon him of methylamphetamine use, the sentencing judge observed:
The degree of negligence was itself high. Given his weekly work routine and the consequent lack of sleep that he had, particularly in the previous 24 hours, [the appellant] must have known that he was very tired when he chose to embark on a relatively lengthy night drive. Moreover, he had previously used the drug, methylamphetamine, which I am well satisfied contributed to his fatigued state in the manner explained by Dr Gaya. In that context, [the appellant] must have known that there was a real, as opposed to a fanciful risk, of him falling asleep at the wheel, particularly in the latter part of that journey. And, that is exactly what happened, in my view. He lost concentration, fell asleep momentarily and then sought to save the situation when it was, by then, too late.
As to the appellant’s moral culpability, the judge said:
In my view, the circumstances of this offending are such that [the appellant] should be seen as bearing a significant level of moral culpability. He must have known that it was not safe for him to drive on that night. Yet, he chose to do so, with two young passengers on board. By driving as he did, he betrayed their trust in a serious fashion for selfish reasons. He could quite easily have delayed his departure until the following day, but did not because he wanted to see his new partner that night.
In assessing the gravity of the offending, the judge was guided by this Court’s judgment in Harrison,[7] in which (among other things) the Court stated that there were ‘upper range’, mid-range’ and ‘lower-end’ instances of negligently causing serious injury by driving.
[7]Harrison v The Queen (2015) 49 VR 619, 629 [44] (Maxwell P, Redlich and Tate JJA) (‘Harrison’).
The sentencing judge expressed the view that the two offences of negligently causing serious injury ‘were serious examples of their type’. He said that both the degree of negligence, and the seriousness of the injury, were ‘high’. The injuries sustained by Madelynne ‘were clearly very serious indeed’, and, whilst ‘there is some room for improvement in [her] health, she will clearly bear the brunt of this offending more than anyone’. Matthew’s injuries ‘were still very significant and likely to have an ongoing and deleterious impact on his quality of life’. The circumstances of the offending, the judge thought, are such that the appellant ‘should be seen as bearing a significant level of moral culpability’. Given the more serious injuries suffered by Madelynne, the judge regarded the offence alleged in charge 1 to be more serious than that in charge 2. In conformity with Harrison, the judge considered each of the offences ‘to be at least mid-range instances of negligently causing serious injury by driving and in the case of that involving Madelynne, one that comes very close to being an upper-end instance of negligently causing serious injury by driving’.
There were several matters in mitigation identified by the judge:
· the appellant’s plea of guilty at the earliest reasonable opportunity;
· his genuine remorse and willingness to take personal responsibility for the collision;
· the unlikelihood of him offending in the same manner in the future;
· the burden of seeing his children — in particular Madelynne — suffering with the ongoing effect of their injuries;
· his voluntary engagement with drug and alcohol counselling;
· his self-imposed ban on driving;
· the enforced separation from his children during his imprisonment;
· the fact that he had himself been injured; and
· the delay in being charged (some nine months).
As to the appellant’s personal circumstances, the judge noted that the appellant has a sound work history. He was committed to his work and family, and was last sentenced for an offence in 2003. The appellant has subsequent convictions for careless driving and failing to report damage to police as the result of a motor vehicle accident on 22 July 2017. He took the break-up of his marriage ‘hard’ and started drinking heavily (although he has benefited from counselling). The appellant has been diagnosed with post-traumatic stress disorder and depression as a result of the incident and its consequences to his children.
The appellant’s submissions
In this Court, counsel for the appellant submitted that the sentencing judge ‘took too high a starting point, akin to an upper range case for the overall criminality, that in fact fell within the mid-range band’. The overall sentence imposed, counsel submitted, failed sufficiently to ‘discount the plea of guilty’, particularly in circumstances where the judge accepted the appellant’s genuine remorse.
Counsel contended that the criminal conduct on both charges ‘was exactly the same conduct, committed in the same piece of criminality by the [appellant] and was a single episode of offending’. Consequently, so counsel submitted, the cumulation of an additional 18 months was excessive, and offended the principle of totality.
Further, counsel submitted, the sentence imposed does not adequately reflect the mitigating circumstances that the judge found (including delay). Hence, too much weight must have been given to specific deterrence.
In the written case, counsel referred to the judge’s finding that the appellant was close to his children, and that separation would be difficult for all. Counsel also drew attention to the victims’ distress at their father’s predicament. Citing Campbell,[8] he submitted that ‘there was absolutely no reduction in sentence for this at all’.
[8]R v Campbell [2005] VSCA 225, [15]–[16] (Eames JA).
Finally, in order to try and make good the proposition that the sentence was manifestly excessive, counsel relied on several sentencing cases which he submitted were ‘comparable’, including Harrison, Gurovski,[9] Barry[10] and Halket.[11]
[9]Gurovski v The Queen (2018) 83 MVR 333 (Whelan and Kyrou JJA) (‘Gurovski’).
[10]DPP v Barry (2017) 82 MVR 448 (Weinberg and Kyrou JJA, and Beale AJA) (‘Barry’).
[11]Halket v The Queen (2016) 77 MVR 509 (Maxwell ACJ, and Redlich and McLeish JJA) (‘Halket’).
Discussion
The objective gravity of the appellant’s offending fell to be assessed according to the degree of negligence involved and the seriousness of the injuries caused.[12]
[12]Gorladenchearau v The Queen (2011) 34 VR 149, 156 [22] (Maxwell P, Ashley JA and Ross AJA); Harrison, 629 [44]; Gurovski, 346 [57]; Sutic v The Queen [2018] VSCA 246, [46] (Kyrou and Kaye JJA) (‘Sutic’).
Furthermore, despite the fact that the injuries to both children arose out of a single course of driving, the appellant owed a separate duty to both to keep them safe from harm. Thus, although the appellant’s driving constituted a single act (resulting in a single accident) which caused the injuries, two separate victims were seriously injured as a result of that single act. It would not have been proper to render the victim Matthew a ‘meaningless statistic’ through a failure to cumulate part of the sentence for the offence against him upon the sentence for the offence against Madelynne.[13] Hence, the sentencing judge was required to impose a proportionate sentence with respect to each charge, and to cumulate between the sentences so as to ensure that there was appropriate recognition of the harm occasioned to both victims. He was then required to step back and review the total effective sentence produced by the order for cumulation so as to ensure that the principle of totality was not infringed. We consider that the judge did as required.
[13]See DPP v Solomon (2002) 36 MVR 425, 429–30 [19] (Winneke P); DPP v Whittaker (2002) 5 VR 508, 514 [25] (O’Bryan AJA); R v Izzard (2003) 7 VR 480, 485 [23] (Callaway JA); Towle v The Queen (2009) 54 MVR 543, 571–2 [95]–[97] (Maxwell P); Vasilevski v The Queen (2018) 83 MVR 351, 359 [25], 362 [45] (Priest and Santamaria JJA); Guode v The Queen [2018] VSCA 205, [73] (Ferguson CJ, Priest and Beach JJA).
As we have mentioned, the judge said that he considered each of the offences to be at least ‘mid-range’ instances of negligently causing serious injury by driving, the offence involving Madelynne to be ‘very close to being an upper-end instance’. The judge cannot be criticised for attempting to so categorise the offences, since that was a course contemplated by Harrison. More recently, however, in Weybury[14] — decided in the post-Dalgliesh era[15] — Maxwell P and Hargrave JA observed that:[16]
… it is in our opinion not helpful to debate whether, on the spectrum of cases from least to most serious, the offending in this case falls within a particular category such as ‘mid-range’ or ‘bottom of the high-range’ or other like classifications. Such an approach carries the risk that it will attract reference to current sentencing practices for offences which have previously been categorised in a particular range, whatever the circumstances of the offending and the mitigating circumstances. Such an approach may lead to sentencing judges unconsciously limiting their instinctive synthesis of a particular case by sentences in other cases classified within a particular range, rather than considering the individual facts of comparable cases.
In our opinion, it is best to avoid categorising cases as falling within a particular ‘range’ and, instead, for sentencing judges to have regard to relevantly comparable, and current, cases as ‘yardsticks’. This approach involves considering where a case fits on the spectrum of offending, and is the preferable way for sentencing judges to have regard to current sentencing practices as a factor in the instinctive synthesis.
[14]DPP v Weybury (2018) 84 MVR 153 (‘Weybury’).
[15]See DPP v Dalgliesh (a Pseudonym) (2017) 349 ALR 37 (‘Dalgliesh’).
[16]Weybury, 165 [33]–[34] (citations omitted). See also Sutic, [52] (fn 21).
And Priest JA said:[17]
Beyond saying that the maximum penalty must be reserved for cases in the ‘worst category’, and that a sentencing judge in every case is bound to consider where the facts of the particular offence and offender lie on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category (properly so called), in my view, attempts to shoehorn particular cases into categories of seriousness such as ‘upper’, ‘middle’ or ‘lower’, or to characterise moral culpability as ‘high’ (or ‘very high’), ‘middle range’ or ‘low’, are often calculated to obscure the essential nature of the sentencing task.
[17]Ibid, 170–71 [54] (citations omitted). See also Sutic, [52] (fn 21).
In the present case, the judge concluded that the degree of negligence in the appellant’s driving was high. We agree. Moreover, the injuries to the appellant’s daughter in particular were very serious indeed, and the effects of them upon her profound. The lives of both children will to differing extents continue to be blighted by the injuries caused by their father’s negligence. Those aspects make the instant offending a serious example of the offence of negligently causing serious injury by driving.
Counsel for the appellant contended that comparison of the appellant’s sentence with sentences imposed in ‘comparable’ cases (so-called) demonstrated that the appellant’s sentence is simply too high. Sentences passed in other cases, however, are not precedents which must be followed unless they are capable of being distinguished.[18] Every sentence must be the product of an intuitive synthesis of all factors relevant to the particular case (including the circumstances of the offender and the offence, and the aggravating and mitigating features).[19] That said, a general overview of sentences imposed for offences of a similar character may play some part in informing the instinctive synthesis, particularly insofar as it may provide a general guide to current sentencing practices.[20] As was observed in Zhuang:[21]
It should be emphasised that whilst like cases provide some insight as to the relevant current sentencing practice, as we have said, sentences passed in other like cases are not precedents which must be followed unless they are capable of being distinguished. The question whether a sentence is manifestly excessive or inadequate cannot be answered by a numerical comparison with other sentences imposed in other cases.[22] As the High Court explained in Munda,[23] past sentencing decisions do not define the limits of the sentencing discretion. Every case must turn on its own facts — including the particular features of aggravation and mitigation, and the individual circumstances of the offender and the offence — and be the product of the intuitive synthesis of those facts. And as was further said by the court in Hudson:[24]
The selection of a sentence involves the exercise of a judicial discretion which is informed by the circumstances in which the offence was committed and the character, antecedents and conditions of the offender. It is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. The method of instinctive synthesis will by definition produce outcomes upon which reasonable minds will differ. For that and other reasons, counsel are precluded from submitting that a specific sentence should be imposed.
Resort to so-called comparative sentencing cases must not be permitted to obscure the essential sentencing task, which is, in the exercise of discretion, to craft a sentence which reflects all factors relevant to the individual case.
[18]DPP v Zhuang (2015) 250 A Crim R 282, 292 [30] (Redlich, Priest and Beach JJA) (‘Zhuang’), citing DPP v Adajian [1999] VSCA 105, [28] (Callaway JA). See also Dalgliesh, 54-5 [83] (Gageler and Gordon JJ).
[19]Zhuang, 292 [30].
[20]Ibid. See also Sutic, [97].
[21]Ibid, 294–5 [36]–[37] (citations in original).
[22][Hili v The Queen (2010) 242 CLR 520], 538-9 [59].
[23]Munda v Western Australia (2013) 249 CLR 600, 631 [95].
[24]Hudson v The Queen (2010) 30 VR 610, 616 [27].
The contention that the sentence imposed in this case is out of step with current sentencing practises cannot be accepted. Recognising that ‘current sentencing practices’ is but one category of multiple factors to be weighed in the balance with others when imposing sentence,[25] we consider the sentence imposed in the present case to be consistent with current practice. Importantly, when all of the particular features of the appellant’s case are properly synthesised, the individual sentences imposed, the total effective sentence produced by the order for cumulation and the non-parole period are in our view all well within the range of those open in the proper exercise of the sentencing discretion.
[25]See s 5(2) of the Sentencing Act 1991.
This is a tragic case. We do not doubt the appellant’s remorse, or the fact that he has been keenly punished by the recognition of the harm that his actions have caused his children. Nor do we doubt that his children bear the appellant no malice. Indeed, his daughter’s victim impact statement (Exhibit D) was touchingly positive and optimistic in tone:
YES THE ACCIDENT CHANGED ME. THE GOOD THINGS ARE THAT I HAVE MET LOTS OF WONDERFUL NEW PEOPLE. SCHOOL AIDES THAT I LOVE VERY MUCH THEIR NAMES ARE JAN, TERRI, DEB & KAYLENE BUT DEB LEFT. I GO TO SCHOOL SOME OF THE DAYS OF THE WEEK.
THEY TREAT ME LIKE A BABY SOMETIMES BUT IT’S OK. ALL I CAN DO AT RECESS AT SCHOOL IS SIT, WALK & IN THE ART ROOM & I LOVE IT BECAUSE I LOVE ART & I LOVE TO TALK TO THEM. I’M NOT ALLOWED ON THE PLAYGROUND AT SCHOOL BUT I’M PRACTISING. I CAN’T DO ANYTHING WITHOUT AN AIDE AND IT’S FUN BUT NOT ALL THE TIME LIKE I’M NOT ALLOWED TO GO NEAR STAIRS WITHOUT AN AIDE BECAUSE THEY THINK I WILL FALL BUT WHERE I LIVE I HAVE LOTS OF STAIRS AND I GO DOWN THEM ALL BY MYSELF. I CAN ALMOST DO EVERYTHING MYSELF AGAIN NOW. MY VOICE IS DIFFERENT BECAUSE MY TOUGUE IS DAMAGED, SO I WON’T SOUND THE SAME AGAIN BUT MY SPEECH PERSON SIMONE SAYS MY VOICE MIGHT GET BACK THE SAME.
MY EYE IS DIFFERENT BECAUSE IT GOT DAMAGED AS WELL AND I MAY BE GETTING EYE DROPS. SOMETIMES I MAY SEE TWO THINGS INSTEAD OF ONE. EVEN THOUGH I’M NOT THE SAME I STILL LIKE MYSELF FOR HOW I AM.
AND I’M GETTING BETTER EVERY DAY.
THE END
Albeit that the merciful attitude of the victims is not altogether to be ignored, it cannot be given much weight. It is the judge — seized of all the relevant features, both aggravating and mitigating — who determines the sentence, not the victims. When victims in a tragic case such as this — in particular, child victims — express a merciful attitude towards an offender, they are unlikely to be aware of, let alone understand, the competing factors which must animate the exercise of the sentencing discretion. Moreover, child victims expressing forgiveness are unlikely to fully appreciate (if at all) the importance of general deterrence in a case such as this, a factor to which a sentencing court must give adequate weight.
Paying due heed to the mitigating features relied upon by the appellant (including the relatively modest delay in charging him), we are not persuaded that his sentence is manifestly excessive.
Conclusion
The appeal must be dismissed.
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