Zachary Holmes v The King
[2025] VSCA 136
•20 June 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0012 |
| ZACHARY HOLMES | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | LYONS and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May 2025 |
| DATE OF JUDGMENT: | 20 June 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 136 |
| JUDGMENT APPEALED FROM: | [2023] VCC 2224 (Judge Palmer) |
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CRIMINAL LAW – Sentence – Appeal – Dangerous driving causing serious injury (charge 1) and failure to render assistance (charge 2) – Total effective sentence of 3 years’ imprisonment – Non-parole period of 2 years – Charge 2 sentence was 2 years and 6 months’ imprisonment – Whether sentence imposed on charge 2 manifestly excessive – Applicant’s guilty plea, youth, limited criminal history and good rehabilitation prospects – Victim seriously injured – Applicant fled collision scene in self-preservation – General deterrence appropriately prominent in sentencing – Applicant’s moral culpability not at lower end – Sentence within range – Leave to appeal refused.
Clarkson v The Queen (2011) 32 VR 361; DPP (Vic) v OJA (2007) 172 A Crim R 181; Lai v The King [2023] VSCA 151; R v Kilic (2016) 259 CLR 256, applied.
Abbott v The Queen (2021) 96 MVR 225; Al-Anwiya v The Queen (2022) 101 MVR 447; Bankal v The Queen [2019] VSCA 171; Sarikaya v The Queen (2015) 73 MVR 1; Stewart v The Queen (2018) 83 MVR 535; Tokay v The Queen (2014) 69 MVR 24; Worboyes v The Queen (2021) 96 MVR 344, referred to.
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| Counsel | |||
| Applicant: | Mr J O’Connor | ||
| Respondent: | Mr RL Gibson KC | ||
Solicitors | |||
| Applicant: | May Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
LYONS JA
T FORREST JA:
The applicant pleaded guilty in the County Court to one charge of dangerous driving causing serious injury. He was also charged with failing to render assistance after a person sustained serious injury and in circumstances where the applicant knew — or ought to have known — that the accident occurred and resulted in that affected person’s serious injury.[1]
[1]Contrary to s 61 of the Road Safety Act 1986.
He was sentenced to a term of imprisonment on 4 December 2023.
The details of the sentences imposed are set out in the table below.
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Dangerous driving causing serious injury | 5 years | 1 year | 6 months |
| 2 | Fail to render assistance | 10 years or 1200 penalty units | 2 years and 6 months | Base |
| Total effective sentence: | 3 years’ imprisonment | |||
| Non-parole period: | 2 years | |||
| Pre-sentence detention declared: | 43 days | |||
| Section 6AAA Statement: | Total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 6 months. | |||
| Other Relevant Orders: 1. Licence cancellation and disqualification for 4 years from date of sentence. | ||||
The applicant seeks leave to appeal against sentence directed solely at the sentence imposed on charge 2. The proposed ground of appeal is expressed as follows:
In all the circumstances, the sentence imposed on charge 2 is manifestly excessive when regard is had to:
(a)[t]he applicant’s plea of guilty and its inherent utility;
(b)the [a]pplicant’s youth;
(c)limited criminal history;
(d)the [a]pplicant’s excellent compliance on supervised bail and his excellent prospects for rehabilitation.
Summary of offending[2]
[2]This summary is largely taken from the Summary of prosecution opening for plea, dated 17 October 2023, which were the agreed set of facts, and from viewing the CCTV footage of the collision which was also tendered on the plea.
At 12:48 pm on 24 August 2022, the applicant was driving north on the South Gippsland Highway at Cranbourne in his mother’s Ford Falcon Sedan. The applicable speed limit was 80 kph. The applicant was travelling at approximately 130–133 kph. He was travelling in close proximity to a Volkswagen driven by his then-partner, Jacinta Pace-Bordman. Road conditions were slippery and wet.
The South Gippsland Highway at this location is a dual carriageway separated by a raised grass median strip. A gap in the median strip is allowed for southbound vehicles to turn right into Clairmont Avenue.
As the applicant approached the intersection with Clairmont Avenue, a Toyota Hiace van driven by Stephen Wyatt was either stationary within the median strip or travelling slowly in that vicinity, waiting to execute a right-hand turn into Clairmont Avenue.
Mr Wyatt waited for north-bound traffic to clear and commenced to execute his right turn. He was confronted by the applicant’s vehicle, still travelling at high speed, as was his partner’s Volkswagen. The applicant braked late and skidded at high speed onto the left side of the Toyota. A witness described the speed of both the Ford and Volkswagen as ‘way faster than the normal speed’.
At the time of the collision, the Ford was travelling at between 105–109 kph after braking from 130–133 kph. The Toyota was travelling at between 18–27 kph.
The Toyota sustained heavy impact and rolled over and then onto its side, 29 metres from the point of impact. The Ford came to rest on a grass verge about 17.5 metres from the point of impact. CCTV footage captured the collision from two angles. The applicant can be seen leaving his heavily damaged Ford perhaps 5–10 seconds after impact, apparently uninjured. He was only about 12 metres from the wrecked Toyota. By his plea, the applicant accepts that he knew — or ought to have known — that the driver of the Toyota was seriously injured.
While all this was occurring, Ms Pace-Bordman braked the Volkswagen heavily and turned left into Clairmont Avenue. She became stationary. The applicant sprinted approximately 40 metres from the wreckage and entered the Volkswagen through the front passenger side door. Ms Pace-Bordman rapidly drove off very shortly thereafter. Insofar as we could tell, the applicant, after exiting the Ford, paid no attention to the wrecked Toyota or its driver.
Mr Wyatt was attended to by a person who was managing a nearby COVID-19 clinic. He was unresponsive and had turned blue. There was a strong smell of petrol, and heroic witnesses entered the Toyota and pulled the victim out through the drivers’ door. Paramedics arrived and took over care for Mr Wyatt. He was revived and admitted to the Alfred Hospital with the following injuries:
(a)cervical vertebra (C6) anterior inferior tear drop fracture requiring a hard collar for 6 weeks;
(b)thoracic (T5) vertebral body 3 column fracture and anterior longitudinal ligament tear at T5/T6 level requiring spine fusion surgery on 29 August 2022;
(c)lumbar vertebra – left L4 and L5 transverse process fractures that were managed conservatively;
(d)right posterior 6th rib fracture. Left 4th, 5th and 8th to 11th ribs fracture that were managed conservatively;
(e)bilateral pneumothoraxes with left haemothorax and pulmonary contusions;
(f)right sided intercostal drain insertion on admission and removed on 30 August 2022. Multiple left sided drain for delayed pleural collection eventually requiring surgery. Video assisted thoracoscopy for drainage, washout and left pleurodesis;
(g)grade 1 splenic laceration that was managed conservatively;
(h)bilateral adrenal haemorrhage; and
(i)left pubic rami fracture with haematoma requiring protected weight bearing for 12 weeks.[3]
[3]Summary of prosecution opening for plea, [21].
Mr Wyatt spent approximately 5 weeks in the intensive care unit at the Alfred Hospital. He was discharged to the Eastern Private Hospital for rehabilitation on 10 October 2022. As at the date of the plea, his recovery was incomplete.
Ms Pace-Bordman drove the applicant to her sister’s house. He was then driven to Werribee to speak to his father. He called the police and said that he was involved in the accident, but hung up when his then location was sought. Ms Pace-Bordman shaved his head, but, belatedly, common-sense prevailed and he handed himself in at 8:15 pm. He made a no-comment record of interview.
The plea and sentence
Victim impact statement
A victim impact statement was read aloud to the court. Mr Wyatt described some of the emotional and financial impacts of the offending:
(a)he has lost his ability to work;
(b)he cannot properly care for his disabled wife;
(c)he cannot walk far, lift heavy items or bend without pain;
(d)he has lost recreational enjoyment; and
(e)he is now socially isolated and no longer looks forward to an enjoyable retirement after 50 years of hard work.
Applicant’s submissions on the plea
The applicant was 21 years old at the time of sentence. His childhood was characterised by parental substance abuse, regular house moves, periods of homelessness and a lengthy involvement with child protection. He has three full siblings and four half-siblings. He has fathered two young children with Ms Pace-Bordman. In December 2019, he was found guilty in the Dandenong Children’s Court of armed robbery, theft and unlawful assault. He was placed on probation. He has completed about half of a roof installation apprenticeship and hopes to complete it. Since being released on bail, he has worked at labouring jobs including at Limestone Australia. The judge noted that the applicant’s employer Mr Durack ‘[spoke] highly of [him]’.
The applicant has a long history of illegal drug use including methamphetamine, although this may have diminished in recent times.
On the plea, the applicant’s counsel argued for a combination sentence involving a sentence of imprisonment (necessarily of 12 months or less) and a lengthy community correction order (‘CCO’). Counsel contended that:
(a)the offending was at the mid-range of seriousness;
(b)the applicant’s offending was the product of an overreaction to an argument with Ms Pace-Bordman and that he was fleeing from her at the time of driving;
(c)he is a young offender and rehabilitation would usually be a more significant sentencing consideration than general deterrence;
(d)his childhood was marred by unlawful parental behaviour; and
(e)his prospects for rehabilitation were good. He had a reasonable employment history and performed well on bail.
Respondent’s submissions on the plea
The prosecutor submitted that the appropriate disposition was a prison sentence with a non-parole period. Moral culpability and objective gravity of the offending were said to be mid-range, and a review of criminal sentencing practices revealed that sentences for failing to render assistance had moved upwards since the maximum penalty was increased from 2 years to 10 years in 2005.[4]
Sentencing considerations
[4]The prosecutor referred to Stewart v The Queen (2018) 83 MVR 535; [2018] VSCA 55 (‘Stewart’); Wassef v The Queen [2011] VSCA 30; Tokay v The Queen (2014) 69 MVR 24; [2014] VSCA 285 (‘Tokay’).
The judge comprehensively summarised the circumstances of the offending and its aftermath, the impact on the victim Mr Wyatt, the maximum penalties (5 years’ imprisonment on charge 1, 10 years’ imprisonment on charge 2) and the applicant’s subjective circumstances.[5] We shall not repeat these matters. His Honour found that current examples of sentencing in similar cases revealed:
(i)General deterrence will often be the primary sentencing consideration for driving offences involving the death or serious injury of another person;
(ii)Just punishment and denunciation are also important considerations;
(iii)A custodial sentence will typically be appropriate for offences of this kind except where an offender’s moral culpability is at the lower end of the range of seriousness;
(iv)An offender’s moral culpability is reduced where an accident is caused by momentary inattention or misjudgement; and
(v)Drivers who fail to render assistance can usually expect the imposition of a substantial term of imprisonment.[6]
[5]Reasons, [2]–[15].
[6]Reasons, [16].
This application
Applicant’s submissions
In written submissions, the applicant rehearsed many of the matters put on the plea:
(a)the plea of guilty had an inherent utility, made at an objectively early stage prior to the committal mention. That it was indicated during the time of pandemic-related court delays, enhanced its utility;
(b)the applicant had a limited criminal history, his personal circumstances were such as to attract the operation of Bugmy[7] considerations, he did well on the court integrated support services program (‘CISP’) bail and had ‘good prospects’ for rehabilitation as evaluated by the judge;
(c)his youth ought to act in powerful mitigation of sentence. It is ‘a primary consideration’ and as a consequence is ‘usually far more important than general deterrence’. The judge erred in allowing general deterrence to overwhelm other critical factors going to sentence;
(d)the applicant contacted and surrendered to the police, thus facilitating the course of justice; and
(e)whilst the judge’s characterisation of the offending was at mid-range, certain aggravating factors were absent — the applicant did not leave the victim for dead without assistance; he did not have a history of poor driving; he did not dispose of the vehicle and set out to obscure his involvement;[8] and he did not have prior history of relevant offending.
[7]Bugmy v The Queen (2013) 249 CLR 571.
[8]We note, however that the applicant did abandon his wrecked vehicle on the verge of the South Gippsland Highway — disposal was hardly practical.
The applicant took us to comparable cases and reviewed them.[9] Ultimately, he submitted that in several cases, sentences for significantly worse offending of failing to render assistance attracted similar sentences to that imposed on the applicant.
Respondent’s submissions
[9]Neskovski v The Queen (2022) 100 MVR 12; [2022] VSCA 86; Al-Anwiya v The Queen (2022) 101 MVR 447; [2022] VSCA 181 (‘Al-Anwiya’); Abbott v The Queen (2021) 96 MVR 225; [2021] VSCA 149 (‘Abbott’); Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169 (‘Worboyes’); Sarikaya v The Queen (2015) 73 MVR 1.
The respondent contended that the cases reviewed generally support the proposition that an imprisonment sentence of 2 years and 6 months was well within range. This is in circumstances where his spur-of-the-moment decision to flee was operative for eight hours, he shaved his head during that time — which could only have been to avoid detection — and the activities were callous, only mitigated by one thought: self-preservation.
Consideration
The judge correctly remarked upon the following aspects that fell in the applicant’s favour:
(a)the early plea of guilty and its utilitarian value, enhanced by Worboyes’ considerations;
(b)the applicant’s youth, limited criminal history and the associated finding of good prospects for rehabilitation;
(c)the applicant’s distressing early-life hardship, leading to the engagement of Bugmy considerations;
(d)the applicant’s good performance on CISP bail;
(e)there was no strong need for specific deterrence; and
(f)the objective gravity and moral culpability were at the mid-range, albeit moral culpability was reduced somewhat by Bugmy considerations.
We have reviewed various cases referred to in discussion as comparable cases, although we observe that often there are differences that render the comparison of little assistance. Whilst they provide some indication of the range of sentences reasonably available to a sentencing judge, they do not provide the boundaries of such a range.[10] We have summarised these cases below.
[10]R v Kilic (2016) 259 CLR 256, 267–8 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ); [2016] HCA 48. See also DPP (Vic) v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, Ashley JA agreeing at 206 [71], Redlich JA agreeing at 206 [72]); [2007] VSCA 129.
(a)In Stewart v The Queen,[11] this Court upheld a sentence of 4 years for a charge of failing to stop after an accident. The applicant collided with a bicyclist who was thrown over the roof of the driver’s side of the car. The victim was seriously injured and the applicant left the victim ‘for dead’ in relatively isolated circumstances. The sentencing judge found the applicant’s objective culpability to be between mid and high range, a finding the Court of Appeal thought quite favourable to the applicant. The applicant’s vehicle was on the wrong side of the road and the applicant was a disqualified driver driving an unregistered vehicle. The applicant sped away from the collision scene. She sought to avoid police intervention. At the County Court, she pleaded guilty, had genuine remorse, admitted using ice the night before the accident, and was 24 years old with no indictable prior convictions. The Court of Appeal considered that the 4-year imprisonment sentence for failing to stop was within range, as was the total effective sentence of 6 years with a 4-year non-parole period. The court remarked that
[11](2018) 83 MVR 535; [2018] VSCA 55 (‘Stewart’).
[t]he principles of general deterrence and just punishment were important in this case, and the need for general deterrence was heightened by the prevalence of offending of this kind …[12]
[12]Stewart (2018) 83 MVR 535, 544 [23] (Weinberg and Coghlan JJA); [2018] VSCA 55.
(b)In Bankal v The Queen,[13] the accused’s car was struck by a motorcycle. The accused was not the cause of the accident, however he fled the scene. The motorcycle rider was killed. Other help was at hand and the accused remained at the scene for 60–80 seconds. He pleaded guilty. In upholding the sentence of 3 years and 3 months, the Court of Appeal said:
[13][2019] VSCA 171 (‘Bankal’).
Yet the applicant made no attempt whatsoever to investigate the extent of [the victim’s] injuries, let alone [made] any attempt to render any assistance to him. Indeed, the applicant appears to have shown no concern at all for [the victim’s] plight, remaining at the collision scene for only a very short time. As the respondent’s counsel pointed out, the applicant’s offending did not occur from a fleeting or momentary decision to leave. He was forced by the consequences of the collision to exit his vehicle — he then walked around the car and freed the dog — but he did not render assistance.
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In more recent times — all other things being equal — it has not been unusual for sentences of three to four years’ imprisonment to be imposed for the offence of failing to render assistance after a motor vehicle accident in which a person was seriously injured or killed, sentences of a similar order routinely being imposed for the allied offence of failing to stop after an accident (although, it must be acknowledged, it is also not unusual for lesser sentences to be imposed).[14]
[14]Ibid [36], [38] (Maxwell P and Priest JA) (citations omitted).
The court cited Wassefv The Queen[15] in support of the proposition that the need for general deterrence arose in offences of failing to stop after an accident.[16]
[15][2011] VSCA 30.
[16]Ibid [27]–[28] (Redlich JA, Maxwell P agreeing at [1]); Bankal [2019] VSCA 171, [39].
(c)In Tokay v The Queen,[17] a sentence of 2 years and 6 months was imposed for failing to render assistance after a plea of guilty to that and an associated dangerous driving causing serious injury offence.[18] The applicant pleaded guilty and had a poor driving record. At paragraph [26], Santamaria JA (with whom Weinberg JA agreed) said this:
[17](2014) 69 MVR 24; [2014] VSCA 285.
[18]In Tokay, the total effective sentence for the offences of dangerous driving causing serious injury and failing to render assistance was 3 years and 2 months, and was upheld by the Court of Appeal: Tokay (2014) 69 MVR 24; [2014] VSCA 285.
As the sentencing judge noted, the maximum penalty for a contravention of s 61(3) of the Road Safety Act 1986 (Vic) has increased fivefold since June 2005. The maximum is now 10 years. That maximum penalty reflects serious community concern and disapproval of the failure to stop and render assistance. Several judges of the court have described the reprehensible nature of the offence, particularly in circumstances where the victim has suffered serious injury, and have referred to the fact that offenders must expect a substantial term of imprisonment.[19]
[19]Tokay (2014) 69 MVR 24, 31 [26] (Santamaria JA, Weinberg JA agreeing at 25 [1]); [2014] VSCA 285 (citations omitted).
(d)In Abbott v The Queen,[20] the applicant successfully appealed against a sentence of 4 years (18 months cumulative) for failing to stop and render assistance. Additionally, he was sentenced for negligently causing serious injury and driving while disqualified. He had been riding an unregistered dirt motorcycle when he collided with a pedestrian. At the point of collision, Abbott was knocked from his motorcycle, but he remounted and fled the scene. His victim was dreadfully injured. Abbott was aged 23 at the time of offending, pleaded guilty at an early stage and was belatedly remorseful. He had evaded police during the early stages of the investigation and was in breach of a CCO and a licence disqualification. He had not been to gaol before. The court substituted a sentence of 2 years and 6 months on the failure to stop and render assistance charge. The appeal against the 5-year imprisonment on the negligently causing serious injury charge was dismissed and a new total effective sentence of 6 years’ imprisonment with a non-parole term of 4 years was imposed. The court made this observation concerning current sentencing practices for the offending of failing to stop and render assistance:
In Wassef, a sentence of 3 years and 3 months’ imprisonment was upheld in this Court. Redlich JA said:
He knew that he had struck the cyclist in circumstances where it was likely that the victim would have been injured. It was his legal responsibility to remain at the scene.
Knowing of these circumstances, he deliberately fled from the scene, presumably to protect himself. Drivers who, in breach of their duty, depart the scene of an accident in circumstances where it is likely to be inferred that they did so to avoid the consequences of unlawful conduct, cannot expect that the courts will give weight to exculpatory explanations for why they have done so which are proffered after the event. They must expect the imposition of substantial terms of imprisonment.
The sentences imposed in other cases are not precedents, however, they may illuminate the applicable principles and show how offending against s 61 has been viewed by the courts. It is possible to discern from the cases that the section is designed to force people to stop and render assistance and the extent of the injuries is relevant to the assessment of the gravity of the offending. Breaches of s 61(3) are regarded very seriously and substantial terms of imprisonment have been imposed.[21]
(e)In Al-Anwiya v The Queen,[22] the 20-year-old applicant had been driving and struck and killed a 73-year-old pedestrian. The applicant immediately left the scene of the collision. He was returned to the scene by his family and friends. He was sentenced in the County Court to 8 months’ imprisonment for failing to stop and 6 months’ imprisonment for failing to render assistance, 2 months of which was made cumulative.[23] On both charges he was also sentenced to a 2-year CCO. The applicant sought leave to appeal against sentence. In dismissing the appeal, this Court (Priest and Beach JJA) commented that the individual sentences were lenient and that, after an order for cumulation, the total effective sentence was ‘extremely moderate’.[24]
(f)Worboyes v The Queen[25] was another example of a relatively low sentence (6 months’ imprisonment) for this type of offence[26] but is explicable given the unusual facts. Worboyes had injured a spectator during an informal ‘burnout’ exhibition. The crowd turned on him. He left the scene after initially stopping. His sentence appeal was dismissed.
(g)Sarikaya v The Queen[27] concerned a more serious example of this offending involving a longer sentence. Sarikaya was sentenced to 4 years and 9 months after being found guilty by a jury. Sarikaya struck an 89-year-old pedestrian on the footpath as he was reversing. Immediately after the collision, Sarikaya drove off leaving the victim unattended and, after having left the scene, attempted to obscure his involvement including by giving false accounts to a neighbour.
[20](2021) 96 MVR 225; [2021] VSCA 149.
[21]Abbott (2021) 96 MVR 225, 243–4 [81]–[82] (Priest and Niall JJA); [2021] VSCA 149 (citations omitted).
[22](2022) 101 MVR 447; [2022] VSCA 181.
[23]In Al-Anwiya, the total effective sentence was 10 months’ imprisonment and a 2-year CCO for the offences of dangerous driving causing death, failing to stop after a motor vehicle accident and failing to render assistance. The sentence was upheld by the Court of Appeal: Al-Anwiya (2022) 101 MVR 447, 456 [37]; [2022] VSCA 181.
[24]Ibid 455 [31] (Priest and Beach JJA).
[25](2021) 96 MVR 344; [2021] VSCA 169.
[26]Failing to stop and render assistance after motor vehicle accident.
[27](2015) 73 MVR 1; [2015] VSCA 236.
We agree with the judge’s analysis of current sentencing practices. For convenience, we shall repeat that analysis:
(i)General deterrence will often be the primary sentencing consideration for driving offences involving the death or serious injury of another person;
(ii)Just punishment and denunciation are also important considerations;
(iii)A custodial sentence will typically be appropriate for offences of this kind except where an offender’s moral culpability is at the lower end of the range of seriousness;
(iv)An offender’s moral culpability is reduced where an accident is caused by momentary inattention or misjudgement; and
(v)Drivers who fail to render assistance can usually expect the imposition of a substantial term of imprisonment.[28]
[28]Reasons, [16].
Grounds of manifest excess are usually difficult to establish.[29] In the absence of identifiable error, the sentence imposed must be seen to be wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of his or her sentencing discretion.[30] The sentence itself must bespeak some underlying error.[31]
[29]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157.
[30]Ibid.
[31]Lai v TheKing [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
We are not satisfied that the applicant has established this proposed ground of appeal. We consider that the judge was correct to give prominence to general deterrence as a sentencing consideration. The applicant’s moral culpability is not at the lower end of the range of seriousness and the accident was not the product of momentary inattention or misjudgement. As we have said, the CCTV footage does the applicant no favours at all. He fled from the scene, apparently without thought for the welfare of the person that, through his dangerous driving, he had grievously injured.
We further consider that a review of current sentencing practices for offences committed under s 61(3) of the Road Safety Act does not assist the applicant’s cause.[32] The sentence imposed was comfortably within the range of sentences available to his Honour in the exercise of his sentencing discretion.
[32]As referred to in paragraph [25] of these reasons.
Conclusion
The application for leave to appeal against sentence will be refused.
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