Williams v Connor
[2019] ACTSC 184
•16 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Williams v Connor |
Citation: | [2019] ACTSC 184 |
Hearing Date: | 16 July 2019 |
DecisionDate: | 16 July 2019 |
Before: | Mossop J |
Decision: | The appeal is dismissed |
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – Whether sentence was manifestly excessive – it was not – whether the magistrate set a non-parole period calculated by reference solely to or primarily to the proportion on the existing sentence – he did not |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 66(3) Criminal Code 2002 (ACT), s 318(2) Magistrates Court Act 1930 (ACT), s 208 |
Cases Cited: | Acuthan v Coates (1986) 6 NSWLR 472 Balthazaar v The Queen [2012] ACTCA 26 Wyper v The Queen [2017] ACTCA 59 |
Parties: | Ayshia Williams (Appellant) Anthony Connor (Respondent) |
Representation: | Counsel A Hopkins (Appellant) D Sahu Khan (Respondent) |
| Solicitors McKenna Taylor (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 15 of 2019 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Morrison Date of Decision: 1 February 2019 Case Title: Williams v Connor Court File Number: MC 762 of 2017 |
MOSSOP J:
Introduction
This is an appeal against a sentence imposed by the Magistrates Court. In order to understand that sentence it is necessary to refer to a previous sentence that was imposed.
On 3 July 2018, the appellant, Ayshia Williams, was sentenced for the offence of aggravated robbery committed on 5 May 2015 (CC2015/7352): see R v Williams [2018] ACTSC 325. Acting Chief Justice Burns imposed a sentence of three years and five months from 7 July 2017 until 6 December 2020. He set a non-parole period of two years and two months ending on 6 September 2019.
On 15 November 2018, the appellant was found guilty of the offence of dishonestly and without consent riding in a motor vehicle (CC2017/2917) contrary to s 318(2) of the Criminal Code 2002 (ACT). This offence was committed on 26 February 2017. Sentencing submissions were heard on 1 February 2019 and the appellant was on that day sentenced to 15 months’ imprisonment for the offence. The sentence starts on 7 June 2020 and ends on 6 September 2021. The sentence therefore added nine months to the existing head sentence imposed by Burns ACJ.
The imposition of this sentence had the effect of cancelling the existing non-parole period: see s 66(3) of the Crimes (Sentencing) Act 2005 (ACT). It was therefore necessary to set a new non-parole period. The new non-parole period that was set by the magistrate was from 7 July 2017 until 6 February 2020. The effect of this was to add five months to the existing non-parole period.
The appeal
The present appeal is an appeal against the head sentence of 15 months’ imprisonment and the addition of five months to the total non-parole period.
The appeal is brought pursuant to s 208 of the Magistrates Court Act 1930 (ACT). On such an appeal the court must have regard to the evidence given in the proceedings at which the appeal arose and has power to draw inferences of fact. The appellant accepts that it is necessary to establish an error in the exercise of the magistrate’s sentencing discretion. In this case, the appellant claims specific error of principle and error to be inferred from what the appellant asserts is the “unreasonable or plainly unjust” imposition of a 15 month head sentence.
The Notice of Appeal contains four grounds:
a.That the sentence imposed was manifestly excessive.
b.That the learned magistrate failed to consider the objective seriousness of the offence and its relationship to the sentence imposed.
c.That the learned magistrate failed to properly apply the totality principle.
d.That the learned Magistrate erred in setting the non-parole period by reference only, or primarily, to the proportion established by the existing sentence.
The appellant did not press ground c. Ground b was only argued as a particular of ground a, namely, manifest excess. Ground a and ground d are therefore the core complaints. The essence of the appellant’s argument is that:
(a) First, the imposition of the 15 month head sentence was manifestly excessive in all of the circumstances of the case.
(b) Second, the setting of the non-parole period mechanically by reference to the proportion established by the existing sentence, manifested an error of principle. The appellant contended that the correct application of principle required consideration of the appellant’s personal circumstances and prospects of rehabilitation at the time of the sentencing hearing.
The facts
The appellant was found guilty of riding as a passenger in a motor vehicle which had been stolen and was then involved in a motor vehicle accident. The driver of the vehicle was a Thomas Williams who also goes by the name Michael Williams. The vehicle in which the appellant was a passenger was stolen from a residence in Canberra on 24 February 2017. The owner did not know the appellant or Thomas Williams or give either of them permission to drive or ride in the vehicle. On 26 February 2017 at about 9:30pm, the vehicle was involved in a serious accident in which it collided with a grey Toyota Camry on Wentworth Avenue in Kingston. The appellant was identified at the scene exiting the vehicle and leaving the scene. Thomas Williams was observed to be the driver of the vehicle. When asked if he was okay he told the witness to “fuck off” and followed the appellant away from the scene of the accident. The two issues at the trial were whether the appellant was the person seen leaving the vehicle and whether the prosecution had proved that riding in the vehicle was dishonest. Both issues were resolved in the prosecution’s favour.
Previous decision of Burns ACJ
The sentence previously imposed by Burns ACJ was for an offence of aggravated robbery on 5 May 2015. That involved threatening the attendant at a Woolworths service station with a syringe filled with what appeared to be blood and making off with items to a value of $1285. The plea of guilty was entered on 16 September 2016 and was adjourned on occasions and the appellant granted bail so as to permit participation in residential drug rehabilitation. Those rehabilitation attempts were unsuccessful and hence on 3 July 2018 his Honour sentenced the offender. In his Honour’s decision he summarised the offender’s criminal history as follows (at [3]):
I note that you have a significant criminal history including offences of robbery and assault with intent to rob in New South Wales and numerous offences of dishonesty as well as some offences relating to violence. There is little by way of leniency that this court can show to you in sentencing you for the present offence on the basis of your prior criminal history.
He then referred in some detail to a pre-sentence report and an updated pre-sentence report which were before him. Those reports were also relied upon before the magistrate in the present case. His Honour summarised the contents of the pre‑sentence report in his reasons at [4]-[12].
His Honour backdated the sentence that he imposed to take into account the time spent in custody in relation to the aggravated robbery charge as well as some of the period that the appellant spent in custody as a result of the execution of New South Wales warrants. This led to the backdate date of 7 July 2017. His Honour referred to the appellant’s stated intention to return to residential rehabilitation upon release from custody and said (at [20]) “you have reasonable prospects for success if you follow through with your intention to undertake a program such as the Karralika Therapeutic Community Program upon your release from custody”.
The sentence of three years and five months that was imposed reflected a starting point of four years’ imprisonment reduced by approximately 15% on account of the plea of guilty and the periods during which the offender attempted to undertake residential rehabilitation. The non-parole period of two years and two months reflected a non-parole period of 63% of the head sentence. No reasons were given that specifically related to the length of the non-parole period.
Sentencing decision of the magistrate
Before the Magistrate, counsel who appeared for the appellant made reference to her participation in the Real Understanding of Self‑Help (RUSH) program at the Alexander Maconochie Centre (AMC), her anticipated participation in the Worldview program and her employment four days a week in the bakery at the jail. The principal contention put on behalf of the appellant before the magistrate was that, although a custodial sentence may be imposed, no extension to the existing non-parole period should be made.
The sentencing decision of the magistrate was given at the conclusion of the oral submissions. The reasons given were well-structured and coherent.
His Honour referred to the “detailed findings” made at the time of his reasons for finding the appellant guilty of the offence. Those “detailed findings” related to the contested issues at the substantive hearing, namely identification and dishonesty. His Honour then referred to the extensive criminal history of the appellant in the following way:
You have an extensive criminal history stretching back to offences dealt with in the Childrens Court in 2000. Over the intervening 18 years you have been dealt with for a range of offences including many offences of dishonesty, offences of violence, drug offences and failing to appear. Your most recent offending in this jurisdiction was an offence of aggravated robbery committed in 2015 for which you were sentenced in the Supreme Court in July of last year. A sentence of three years and five months’ imprisonment was imposed. The non-parole period for that sentence expires on 6 September this year.
His Honour referred to the personal circumstances of the appellant, closely following the material in the pre-sentence reports. The reports described that the appellant’s history of compliance with supervision has not been wholly satisfactory. His Honour referred to the difficult childhood of the appellant in some detail which was summarised by his Honour saying “you described a difficult childhood characterised by your parents’ substance abuse, physical, sexual and emotional abuse by your father and a lack of support from your mother”. His Honour referred to the fact that the appellant became itinerant when only nine years of age. His Honour referred to the appellant’s two children, one who lives with her sister and another who died as an infant. His Honour referred to her limited schooling and the absence of an employment history other than as working as a prostitute. His Honour referred to the absence of prosocial activities.
The magistrate then referred to the matters referred to specifically by counsel who appeared for the appellant before the magistrate, namely, that she was working in the bakery, that she was participating in the RUSH program and that she ultimately intended to participate in the Worldview program. He referred to her history of drug and alcohol use and diagnoses of borderline personality disorder and post-traumatic stress disorder. He referred to her desire to address her criminogenic risks and avoid further offending, that she was open to attending counselling for substance abuse and mental health issues and wished to enter the cognitive self-change program. He also referred to the summary provided in the pre-sentence report which identified her, amongst other things, as being at a medium to high risk of reoffending and set out the summary in the report as follows:
Ms Williams is assessed as medium to high risk of reoffending. Her drug use has affected multiple areas of her life since she was a teenager, and at present her daughter refuses to speak with her due to her behaviour. She has a poor relationship with her father due to the abuse she suffered at his hands as a child, although her relationship with her mother is reportedly good. Ms Williams’ primary criminogenic risks include her substance abuse and mental health issues. In addition, Ms Williams identified the need to participate in a cognitive behavioural program. Should she commit to addressing these issues, her risk of offending may reduce.
The magistrate then observed “I think I can fairly observe that your personal circumstances and your background are such that they evoke sympathy”.
His Honour referred to the maximum sentence indicating that the legislature intended both knowingly driving and knowingly riding in a stolen vehicle to be treated as serious offences. His Honour referred to the fact that little was known about the circumstances in which the appellant came to be in the vehicle, although it was apparent that she knew it was stolen. He indicated that the history of offending indicated limited room for leniency and that personal deterrence had a role to play in sentencing. His Honour indicated that as a matter involving a not guilty plea no discount for a plea of guilty was involved.
Manifest excess
The principles to be applied in relation to a claim of manifest excess are summarised in the appellant’s written submissions. Counsel for the respondent took no issue with that summary of the principles. They were as follows:
(a)The principles relating to claims of manifest excess are well settled: Dalton v The Queen [2015] ACTCA 48 at [18] (‘Dalton’); Williams v The Queen [2018] ACTCA 4 at [21]-[27]; Henry v The Queen [2019] ACTCA 5 at [30]-[31] (‘Henry’).
(b)A claim of manifest excess calls into question what is a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15].
(c)Manifest excess is a conclusion which does not depend on the identification of specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (‘Dinsdale’) at [6].
(d)The test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505; Dinsdale [6].
(e)A sentence which is unreasonable or plainly unjust because it is manifestly too long is a sentence which is erroneous in point of principle: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [61].
(f)Manifest excess is not established just because the appeal court would have imposed a more lenient sentence: Balthazaar v The Queen [2012] ACTCA 26 at [61]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 (‘Markarian’) at [28].
(g)Whether a sentence is ‘manifestly excessive’ must be considered in the context of the legislated maximum penalty that applies to the ‘worst possible case’ which provides a ‘yardstick’ for assessing the appropriate penalty in a particular case: Markarian at [31].
(h)The objective seriousness of the particular offence and the subjective circumstances of the offender are critical to deciding whether a sentence lies within the available range: Barrett v The Queen [2016] ACTCA 38 at [32]-[34] (‘Barrett’); CX v The Queen [2017] ACTCA 37 (‘CX’) at [25]: Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [20]‑[23]; Dalton at [18].
(i)Any sentencing pattern applicable to the offence type is an important consideration when deciding whether a sentence lies within the available range: Barrett at [32]-[34].
(j)Comparative sentences do not fix quantitative boundaries within which future sentences must be passed. The focus is on consistent application of principle, rather than a mathematical exercise: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]-[55]; R v Pham [2015] HCA 39; 256 CLR 550 at [26]-[27]; R v Kilic [2016] HCA 48; 259 CLR 256 at [22]; Wyper v The Queen [2017] ACTCA 59.
(k)It is for the appellant to satisfy the Court that the sentence imposed was unreasonable, plainly unjust or outside the available sentencing range: Barrett at [32]-[34].
The submissions of the appellant were directed to:
(a)statistics relating to sentencing patterns for the offence of riding a motor vehicle dishonestly and without consent;
(b)the circumstances of the offence and its objective seriousness; and
(c)the subjective circumstances of the offender.
So far as sentencing statistics were concerned, the appellant submitted that for sentences imposed in the ACT Magistrates Court 80% of cases resulted in the imposition of a term of imprisonment with 30% of those being fully or partially suspended. Where imprisonment was imposed, 54% of the cases were for a term of six months or less, 35% were between six and 12 months. Only 6% of offenders received more than 15 months’ imprisonment. Statistics from the Supreme Court were also provided which indicated that 79% of terms of imprisonment imposed were 12 months or less. 9.6% were between 12 and 18 months.
I was also referred to the decisions of the court in R v Booth [2017] ACTSC 191 (‘Booth’) and R v Bright [2017] ACTSC 328 (‘Bright’). In Booth, Penfold J imposed a sentence of 11 months reduced from 12 months on account of the plea of guilty on each of two offences, one being ride in a motor vehicle without consent the other being drive a motor vehicle without consent. The driving or riding had been from Turner to Braddon to Civic and done for the purposes of committing other offences. The offending was characterised as “somewhat above the lowest level of seriousness”. In Bright, the offender received a sentence of imprisonment of seven months reduced from nine months on each of two counts of riding a motor vehicle without consent. Both of the offences were characterised as being in the mid range of objective seriousness and it was noted that it was an aggravating feature that the vehicle was used for the purpose of further offending. The overall effective sentence on these charges and five others was just over four years. The sentences imposed on the ride motor vehicle charges are likely to have been affected by issues of totality having regard to the number of offences that occurred on two days, one day apart.
So far as the objective circumstances are concerned, counsel for the appellant pointed out that:
(a)little is known about the circumstances by which the appellant came to be in the vehicle;
(b)his Honour was correct that the fact that the vehicle was involved in a collision was not an aggravating factor as the appellant was a passenger;
(c)the appellant was the subject of a good behaviour order at the time in relation to the offence of providing a false name, a fact which his Honour took into account “in a slight way”;
(d)the appellant was on bail in relation to the aggravated robbery offence the subject of Burns ACJ’s sentence;
(e)his Honour did not explicitly make an assessment of the objective seriousness of the offence, but during the course of argument did not take issue with the assessment by counsel for the appellant that the offence was at the lower end of objective seriousness; and
(f)the appellant’s riding in the motor vehicle was not associated with any other offending in which the vehicle was used cf Booth at [11]; Bright at [13]-[14].
In those circumstances the appellant submitted that even before consideration of the subjective circumstances of the offender, it was apparent that the sentence was unreasonable and plainly unjust because it was manifestly too long.
So far as subjective circumstances were concerned, the appellant accepted that his Honour made specific reference to the appellant’s background and personal circumstances and that they “are such as that they evoke sympathy”. The appellant submitted that his Honour ought to have gone further by recognising that she had suffered “quite profound childhood deprivation” which she had been struggling to overcome. In that regard, counsel relied upon Bugmy v the Queen [2013] HCA 37; 249 CLR 571 at [44]. The appellant submitted that the offending could not be divorced from the circumstances of the offender’s ongoing struggle with substance abuse and mental health which directly related to her experience as a child.
Counsel for the appellant submitted that the appellant’s efforts to address her substance abuse and mental health issues were evident before Burns ACJ and before the magistrate there was evidence of the appellant’s ongoing participation in the RUSH program, the Worldview programme, drug and mental health treatment and employment in the bakery at the AMC. He submitted that there was “significant evidence of progress towards rehabilitation” and that bearing in mind the objective seriousness of the offence it was unreasonable and plainly unjust to impose a 15 month term of imprisonment on the appellant.
Counsel for the respondent submitted that having regard to the maximum sentence of five years, the sentence could not be described as unreasonable, plainly unjust or outside the available sentencing range.
In my view, the sentence imposed was not manifestly excessive. I accept that the offending was not aggravated by being associated with further offending. However, it was committed by a person who was on conditional liberty. I do not accept the submission that a 15 month sentence could not bear a proper relationship to the objective seriousness of the offence even without considering the subjective circumstances of the offender.
First, the statistical material is of only limited assistance given that it does not disclose the objective or subjective circumstances in any of the cases.
Second, the decisions in Booth and Bright are not so different in their approach to sentencing as to indicate that the sentence imposed was beyond the proper exercise of the discretion of the magistrate. In Booth, the starting point was a period of 12 months before consideration of the plea of guilty. That is plainly not very different to the 15 month sentence imposed in the present case. In both the present case and in Booth, the offenders had significant criminal histories and were assessed as at medium to high risk of reoffending.
Third, the maximum penalty of five years’ imprisonment must be given effect as a yardstick for assessing the appropriate penalty in a particular case. The penalty imposed was 25% of the legislative maximum. The legislature has seen fit to not distinguish between riding or driving the vehicle, including both actions within a single offence provision bearing the same legislated maximum penalty. Whether riding or driving is more serious will depend on the circumstances. There will be a limited range of circumstances which aggravate that conduct. The fact that the appellant was on conditional liberty is one of them, as would be if the purpose of driving or riding was to facilitate further unlawful conduct. There was no evidence that would reduce the seriousness of, or explain the offending conduct. Having regard to the legislated maximum penalty it cannot be said, simply by reference to the brief period during which the appellant was proved to have ridden in the vehicle and the absence of aggravating circumstances beyond being on conditional liberty, that a sentence of 15 months was manifestly excessive.
The subjective circumstances of the offender were not such as to render the sentence manifestly excessive. So far as the complaint was that there was no specific reference to the decision in Bugmy, that is hardly surprising having regard to the fact that the submissions by counsel for the appellant appearing before the magistrate made no reference to that case. His Honour clearly had regard to the personal circumstances given that he summarised them in some detail and indicated that they evoked sympathy. He clearly considered the history of deprivation as being relevant to sentencing. Having regard to the nature of Magistrates Court proceedings, it would involve scrutinising the decision of the magistrate with an eye keenly attuned to the detection of error to say that specific reference needed to be made to the decision in Bugmy in circumstances where there was no specific reference to that authority and no attempt to go beyond the manner in which Burns ACJ had addressed the issue of personal circumstances, other than by reference to matters arising subsequent to his Honour’s decision.
So far as those matters were concerned, the magistrate was told of the appellant’s participation in the RUSH program, that she anticipated taking part in the Worldview programme, that she had received drug and mental health treatment at the AMC and that she had undertaken employment at the bakery at the AMC and wished to participate in the cognitive self-change program.
There was no evidence or information about the content of the RUSH program. The participation in the Worldview programme, which involved the provision of some post-release assistance and accommodation was merely participation which, at that stage, was anticipated rather than actual. The drug and mental health treatment was a reference to the appellant being on the methadone program within the prison and receiving identified mental health medication. The employment at the bakery within the AMC demonstrated some positive engagement within the prison. The anticipated participation in the cognitive self-care program was a modest positive sign. The information available to the magistrate was limited, the most significant of which was probably the ongoing employment within the jail. At best it can be said that there were modest positive signs of rehabilitation, but those were not so significant as to provide a substantially greater degree of assurance about the appellant’s path towards rehabilitation than was available before Burns ACJ.
In all of the circumstances, having regard to the discretionary nature of the sentencing decision made by his Honour, I am not satisfied that it was manifestly excessive. It may have been at the stern end of the spectrum, but that does not disclose any relevant error.
Error in fixing non-parole period
Once again the submissions of counsel for the appellant provide a useful summary of the authorities in relation to the setting of non-parole periods. Those principles were not disputed by counsel for the respondent. They were as follows:
(a)The principles relevant to setting a non-parole period are well settled: Taylor v The Queen [2014] ACTCA 9 at [19] (‘Taylor’); Henry at [33]; Lewis v Storey [2019] ACTSC 74 at [52].
(b)A non-parole period is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627‑628; Deakin v The Queen (1984) 11 A Crim R 88 at 89; Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615; Bugmy v The Queen (1990) 169 CLR 525 (‘Bugmy’) at 536.
(c)A non-parole period must be fixed having regard to all of the sentencing purposes in s 7 Crimes (Sentencing) Act 2005 (ACT): Taylor at [19.1]; Bugmy at 531.
(d)In Taylor at [19.2] the Court of Appeal emphasised that:
An offender’s prospects of rehabilitation are important to the fixing of the non‑parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531-532.
(e)A sentencing judge or magistrate has a wide discretion in setting the non-parole period, “which cannot be reduced to a mathematical formula”: Taylor at [19.3], citing Inge v The Queen [1999] HCA 55; 199 CLR 295 at 316 (Kirby J); Lowe at 610, 620 and 625.
The reasons of the magistrate were as follows:
I am required to reset the non-parole period. The present non-parole period expires a 6 September 2019. The non-parole period was two years and two months of a three-year and five month term. That is a little over 60% of the head sentence. Having added nine months to the overall term, proportionality is maintained by adding five months to the non‑parole period.
This approach involved the rejection of the submission by counsel for the appellant that no additional time should be added to the non-parole period that had been set by Burns ACJ.
The submissions for the appellant were twofold. The first criticism made by counsel for the appellant was that his Honour has been concerned to maintain proportionality, rather than to consider more broadly the prospect of rehabilitation and the need for community protection. Counsel submitted that a mechanical or mathematical approach was impermissible: Millard v The Queen [2016] ACTCA 14 at [66]. This involved the submission that the reasons indicated that such a mechanical or mathematical approach was adopted. The second component of the submission was that even if such a mechanical or mathematical approach had not been adopted, nevertheless, the information about rehabilitation of the appellant (referred to above) was such that a different relationship between non-parole period and head sentence should have been adopted than that adopted by Burns ACJ.
The submissions of the respondent referred to the volume of work in the Magistrates Court and the comments of Kirby P in Acuthan v Coates (1986) 6 NSWLR 472 at 478‑479.
I am not satisfied that there was in fact the application of a mechanical or mathematical approach. It is correct to say that his Honour did adopt the same proportional relationship between the head sentence and the non-parole period as that adopted by Burns ACJ. If read with an eye keenly attuned to the detection of error then it is possible to read the magistrate’s reasons in a way that suggests a purely mathematical approach. However, I do not consider that his extemporaneous reasons indicate that either his Honour considered himself bound to do so or that the exercise was a purely mathematical one. Once again, care must be taken not to impose an unreasonably strict standard for the giving of reasons, particularly in circumstances where the submissions made on the point were not elaborate.
So far as the second aspect of the argument was concerned, namely that the circumstances as at the date of sentencing were such that a different relationship between non-parole period and head sentence should be adopted, I do not accept the appellant’s submission. As I have endeavoured to point out earlier, the information given to his Honour in relation to rehabilitation was limited. The approach taken by the magistrate was consistent with accepting that the appellant had some prospect of rehabilitation, but not particularly strong evidence about the prospects of rehabilitation being successful. The setting of the non-parole period in the same manner as Burns ACJ involved setting the non-parole period at 63% of the head sentence. That was in the middle of the commonly adopted proportion of a sentence required to be served prior to grant of parole and appropriately reflected a degree of leniency having regard to the possibility of rehabilitation, but not such a degree of leniency as might be appropriate where the prospects of rehabilitation were obviously good and favouring the flexibility to grant parole at an early stage. The nature of the material before the magistrate concerning rehabilitation was not such as to indicate that this approach involves any error.
Conclusion
As both grounds of appeal that were argued have been rejected, the appeal must be dismissed. The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 30 August 2019 |
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