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1. The appellant, Mr Rabea Fares, and his wife, co-offender Ms Lina Faris, were each convicted by a jury of the following three offences: (a) Attempt to obtain a financial advantage by deception contrary to s 332 of the Criminal Code 2002 (ACT) by virtue of s 44 (attempt) of the Criminal Code. (b) Be knowingly concerned in an attempt to obtain a financial advantage by deception contrary to s 332 of the Criminal Code, by virtue of s 44 (attempt) and s 45 (knowingly concerned) of the Criminal Code. (c) Attempt to obtain a financial advantage by deception contrary to s 332 of the Criminal Code by virtue of s 44 (attempt) of the Criminal Code.

2. On 22 March 2024, Acting Justice Berman (the sentencing judge) sentenced the appellant and Ms Faris: DPP v Faris; DPP v Fares [2024] ACTSC 115. The following table records the sentences imposed against each offender: Appellant Ms Lina Faris Accumulation Obtain a financial CC2021/10576 CC2021/10573 advantage by deception 1 year and 6 months 1 year and 6 months – s 332, Criminal Code (attempt) Obtain a financial CC2021/10575 CC2021/10572 3 months advantage by deception 1 year and 6 months 1 year and 6 months – s 332, Criminal Code (knowingly concerned in attempt) Obtain a financial CC2021/10577 CC2021/10574 3 months advantage by deception 1 year and 6 months 1 year and 6 months – s 332, Criminal Code (attempt) Overall sentence 2 years of 2 years of imprisonment imprisonment with a to be served by way of non-parole period of 1 an Intensive Correction year. Order

3. Accordingly, the appellant becomes eligible for parole on 21 March 2025.

4. The appellant appeals against the sentences imposed by the sentencing judge on the following grounds: 1. Ground 1: the sentence was manifestly excessive; 2. Ground 2: the disparity between the sentences of the appellant and his co-offender is one which gives rise to a justifiable sense of grievance; 3. Ground 3: the primary judge erred by failing to give adequate reasons for his decision; and 4. Ground 4: the primary judge erred by failing to have regard to the appellant’s assessment for suitability for an intensive corrections order.

5. A fifth ground of appeal included in the notice of appeal was abandoned.

Facts on sentence

6. The sentencing judge set out the facts relevant to the appellant as follows at [1]-[4], [8]- [14]. They are not in dispute on appeal: 1․ On 27 February 2020, two vehicles collided on Eucumbene Drive. A silver BMW convertible driven by Adam Kilani ran up the back of a black Audi SUV which was being driven by Lina Faris with her husband, Rabea Fares, in the front passenger seat. 2․ The three people in the two vehicles made insurance claims. Those claims were dishonest because, although most people would describe a collision between two motor vehicles as an accident, this was no accident at all. 3․ In truth, Mr Kilani deliberately drove his BMW into the back of the Audi, which was stationary at the time. This was done as part of a plan hatched between the three people in the cars to profit by making dishonest claims to their insurers. 4․ Although superficially in good condition, an expert motor vehicle examiner was able to determine that in the time leading up to the collision, the Audi had developed a number of faults which would have been made obvious to the driver through warning lights on the dashboard. More spectacularly, the BMW, which had been bought for $25,000, was insured for $138,000. … 8․ Turning now to Rabea Fares, he is to be sentenced for: 1․ agreeing with Ms Faris to attempt to dishonestly obtain a financial advantage from Suncorp Insurance by deception in relation to the claim made for damage to the Audi; 2․ being knowingly concerned in Mr Kilani's attempt to dishonestly obtain a financial advantage from NRMA Insurance in relation to the claim made for damage to the BMW; and 3․ attempting to dishonestly obtain a financial advantage from NRMA Insurance by deception in relation to the personal injury compulsory third party insurance claim made for injuries which Mr Fares said he suffered. 9․ What led to the various claims not being paid and, ultimately, their conviction, was a combination of bad luck, bad planning, and a poor understanding of how experts could determine that what the offenders said about the circumstances of the collision was untrue. 10․ Although Mr Kilani claimed that he did not know Mr Faris, by coincidence, one of the police officers who attended the collision had some years earlier been to an address where both Mr Kilani and Mr Fares were working as painters. 11․ Further, they supplied their mobile telephone numbers to that police officer, and call charge records, together with information stored on the Audi’s infotainment system, revealed a number of telephone calls between those two telephone numbers leading up to the collision. 12․ Ms Faris said that she was driving at about 60 kilometres an hour at the time of the collision, but a very observant motorist, running late for an appointment, noticed the Audi travelling slowly shortly before the collision, and expert evidence revealed that it was stationary when the BMW ran into it. 13․ Mr Kilani was driving his motor vehicle at 30 kilometres an hour, below the speed limit, before applying his brakes and driving his BMW towards the back of the Audi, not away from it, as might be expected. 14․ Mr Kilani initially claimed that he was a passenger in the BMW and that his sister was driving it. This was revealed very quickly to be a lie. Mr Kilani changed his story so that he said his sister arrived at the collision scene shortly after it occurred. But Ms Faris told police and insurance investigators that the driver of the BMW was a woman. This was obviously part of the prearranged plan, but her lie about the gender of the driver was obvious once Mr Kilani changed his story in response to overwhelming evidence showing that he was the driver. Sentencing remarks

7. The sentencing judge considered the objective seriousness of the offending. His Honour took into account that the staged motor vehicle accident, in furtherance of the insurance fraud, required the attendance of emergency services, which would have diverted resources away from people in genuine need. The offending was described as involving significant planning. His Honour observed that the conduct in pursuit of the fraud continued after the staged accident in the form of false insurance claims and interviews, which involved the offenders perpetuating lies and false information. His Honour identified that the offenders stood to gain a significant financial benefit, recording the value of the insurance claims the subject of the conduct. His Honour noted that there was no evidence that the offenders had significant debt and determined that the offences were more likely to have been motivated by greed.

8. The sentencing remarks record the subjective circumstances of each offender. Ms Faris had a minor criminal history, had an unstable childhood, was the primary caregiver for her children and was experiencing health issues, namely chronic fatigue and polycystic ovary syndrome. She suffered from “severe depression, anxiety, confusion in thoughts, and stress”. The appellant had a more significant criminal history. He was born in Jordan, experienced a good upbringing and was previously self-employed. He had no physical or mental health issues.

9. The sentencing judge referred to s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT), being the mandatory consideration of the probable effect of any sentence on an offenders’ family or dependants. His Honour noted that hardship to others need not be exceptional to be considered, citing DPP v Moala (No 3) [2023] ACTSC 306 at [47]-[48]. His Honour noted that he was required to consider that the co-offenders shared four children and that the effect upon them of the imposition of periods of full-time imprisonment was compelling in circumstances where the offending warranted such an outcome. His Honour found that Ms Faris was the primary caregiver to their children and that no other family member would be able to take on that role in her absence. His Honour noted that the family were dependant on the appellant’s income and that if he was sentenced to full-time imprisonment “they will suffer at least financially”. However, his Honour observed that if “breadwinners could not be sent to jail, then the law would soon cease to have a deterrent effect”.

10. The sentencing judge could not determine whether the appellant or Ms Faris was the primary instigator of the offending, recording that “there is little to distinguish between them apart from the issue of hardship to their children, which explains the difference in the sentencing outcomes for the two offenders”.

11. In respect of the injuries suffered by the co-offenders, the sentencing judge found that the likelihood of injury in a staged crash would have been contemplated by the co-offenders and accordingly, they should not benefit on sentence “from the fact that what they envisaged would likely happen turned out to have happened”. The sentencing judge considered that the co-offenders had not demonstrated remorse. Rather both continued to assert their innocence, which his Honour considered warranted personal deterrence, moderated to some degree by the injuries they suffered which might “give them pause” before committing similar offences again. The sentencing judge considered that a modest degree of accumulation between the sentences was required to reflect the fact that there were multiple false insurance claims made in relation to the one staged motor vehicle accident.

12. The sentencing judge made specific reference to the prospect of making an intensive correction order with respect to both co-offenders at [47]-[49]: 47. Counsel for both offenders conceded that sentences of imprisonment were required but submitted that they should be served by means of intensive correction orders. 48. In the case of Ms Faris, whilst a sentence of full-time imprisonment is deserved, the hardship which would be occasioned to her children should she be sent to jail is such that I accept Mr Ager's submission as to how her sentence of imprisonment should be served. 49. I have reached a contrary conclusion regarding Mr Fares. A sentence of other than full-time imprisonment would not be appropriate in the circumstances of this case. The effect of his imprisonment upon his children, whilst significant, is not such that I should impose upon him a sentence which fails to reflect the objective gravity of this offending. Standard of review

13. The relevant legislative framework governing appeals against a decision of a single judge of the Supreme Court is found in pt 2A of the Supreme Court Act 1933 (ACT). In particular, s 37E(2)(a) establishes jurisdiction and s 37O(7) provides the powers of the Court of Appeal in sentence appeals. 37E Appellate jurisdiction (1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal. (2) The following matters may be brought before, and heard by, the Court of Appeal: (a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself); 37O Orders on appeal (7) In a criminal matter, the powers of the Court of Appeal in an appeal against sentence (whether by the prosecution or defendant) include the following powers: (a) to increase or decrease the sentence; (b) to substitute a different sentence.

14. The Court may only intervene in a sentence on appeal if a House v The King [1936] HCA 40; 55 CLR 499 error is identified in the original sentence. The High Court in House held that: It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

15. The Court of Appeal in R v Duffy & Ors [2014] ACTCA 53; 297 FLR 359 at [53] reaffirmed: There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so “manifestly excessive” or “manifestly inadequate” or “outside the range of available sentences” or “dramatically inappropriate”) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified: Dinsdale v The Queen (2000) 202 CLR 321 per Gaudron and Gummow JJ at [22]; Wong v The Queen (2001) 207 CLR 584 at [58]; Hili v The Queen (2010) 242 CLR 520 (Hili) at 58-59.

16. For the reasons that follow, we do not consider error has been established under any of the grounds of appeal.

The appeal

17. The appellant conceded that the nature of the offending was such that the “threshold” contained in s 10 of the Crimes (Sentencing) Act was crossed. That is, having regard to possible alternatives, no penalty other than imprisonment, was appropriate. The primary complaint of the appellant was, that unlike the co-offender, he was not directed to serve the period of imprisonment imposed upon him by way of intensive correction order.

18. The appellant submitted that the sentencing judge was required to undertake an assessment mandated by ss 11 and 78 of the Crimes (Sentencing) Act as to the relative merits of full-time imprisonment and an intensive correction order, in light of the purposes of sentencing articulated at s 7 of the Crimes (Sentencing) Act, and that the sentencing judge’s failure to do so constituted an error of law.

19. This being the principal error alleged, it is convenient to deal first with appeal ground four.

Ground 4: the primary judge erred by failing to have regard to the appellant’s assessment for suitability for an intensive corrections order Overview

20. The appellant submitted that the sentencing judge failed to consider the offender’s suitability assessment; namely that he was assessed as suitable for an intensive correction order by ACT Corrective Services. The appellant contended that this failure infected the sentence with error and warrants re-sentencing by this Court. For the reasons that follow, we do not agree.

Relevant legislation

21. It is helpful to set out the relevant provisions of the Crimes (Sentencing) Act: 10 Imprisonment (1) This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment. (2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. (3) If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless— (a) the court orders otherwise; or … 11 Intensive correction orders (1) This section applies if an adult offender is convicted of an offence and the court imposes a sentence of imprisonment. (2) If the sentence of imprisonment is for not more than 2 years the court may order that the sentence be served by intensive correction in the community (an intensive correction order). (3) The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to— (a) the level of harm to the victim and the community caused by the offence; and (b) whether the offender poses a risk to 1 or more people or the community; and (c) the offender’s culpability for the offence having regard to all the circumstances. 77 Intensive correction orders—eligibility (1) The court must not make an intensive correction order for the offender unless satisfied that— (a) an intensive correction order is suitable for the offender under section 78; and (b) it is appropriate for the offender to serve the sentence by intensive correction; and (c) the offender has given informed consent to serving the sentence by intensive correction. (2) An offender gives informed consent for subsection (1) (c) if the offender consents after the offender is given— (a) a clear explanation of the intensive correction order that contains sufficient information to enable the offender to make a balanced judgment about whether or not to consent to serve the sentence by intensive correction; and (b) an opportunity to ask any questions about the order, and those questions have been answered and the offender appears to have understood the answers. 78 Intensive correction orders—suitability (1) The court must not make an intensive correction order for the offender unless the court has considered— (a) a pre-sentence report, if any, prepared for the offender in the proceeding and is satisfied, having considered possible alternatives, that only a term of imprisonment of not more than 4 years is appropriate for the offender; and (b) an intensive correction assessment for the offender. (2) In deciding whether to make an intensive correction order for the offender, the court must consider the following: (a) the intensive correction assessment; (b) any medical report about the offender given to the court; (c) any evidence given by the person who prepared the intensive correction assessment; (d) any evidence given by a corrections officer about the offender. (3) Subsection (2) does not limit the matters that the court may consider. (4) In considering the intensive correction assessment, the court must consider any indicators of unsuitability mentioned in table 46D, column 3 that are stated in the assessment to apply to the offender. (5) The court may make, or decline to make, an intensive correction order for the offender despite— (a) any recommendation in the intensive correction assessment; or (b) any evidence given by the person who prepared the intensive correction assessment or a corrections officer. (6) The court must record reasons for its decision to make, or decline to make, an intensive correction order for the offender if the intensive correction assessment recommends that the offender— (a) is suitable but the court decides not to make an intensive correction order for the offender; or (b) is not suitable but the court decides to make an intensive correction order for the offender. (7) Failure to comply with subsection (6) does not invalidate the intensive correction order. The appellant’s submissions

22. The appellant acknowledged that, by virtue of s 78(5) of the Crimes (Sentencing) Act, a court may impose or decline to impose an intensive correction order notwithstanding a recommendation contained in an assessment. However, the appellant argued that the assessment report is an expert opinion regarding suitability, and that this supports a reading of s 78(6)(a) as imposing a mandatory consideration of the suitability assessment with specific reasons required if a court decides not to impose an intensive correction order. The requirement to record reasons, the appellant contended, required “genuine consideration to be given to the suitability report if there is to be a departure from the suitability assessment”.

23. The appellant relied on Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 296 ALJR 107 in which the High Court considered the New South Wales legislative framework in relation to intensive correction orders. The majority of the High Court, per Gordon, Edelman, Steward and Gleeson JJ (Kiefel CJ, Gaegler and Jagot JJ in dissent) determined that the failure of the sentencing judge to take into account a relevant consideration required under the Crimes (Sentencing Procedure) Act 1999 (NSW) (the NSW Sentencing Act), in determining whether or not to impose an intensive correction order, was a jurisdictional error.

24. The appellant acknowledged that the provisions of the NSW Sentencing Act which govern the imposition of intensive correction orders in that jurisdiction are not replicated entirely in the Crimes (Sentencing) Act. Nonetheless, the appellant characterised Stanley as persuasive authority that “should not be departed from”. The outcome in Stanley, the appellant contended, required this Court to endorse an approach to the making of intensive correction orders in this jurisdiction, that required sentencing judges to engage “meaningfully” with assessments made as to an offender’s suitability for an intensive correction order.

25. Uncontroversially, the appellant submitted that the Crimes (Sentencing) Act, like the NSW Sentencing Act as endorsed in Stanley, sets out a three-step process where a sentence of imprisonment is to be imposed and the making of an intensive correction order falls to be considered. The three-step process was identified as follows: (i) First, a determination that a sentence of imprisonment is warranted in accordance with s 10; (ii) Secondly, a determination of the appropriate length of sentence; and (iii) Thirdly, where the issue arises, consideration of whether to make an ICO.

26. The appellant submitted that the effect of this process in this instance, was that the sentencing judge, having determined the s 10 “threshold” was crossed and where the appellant was assessed as suitable, was bound to consider whether the appellant should serve the sentence by way of an intensive correction order, by reference to those matters contained in s 78(2). The failure to do so, it was said, applying the reasoning in Stanley, amounted to legal error. The appellant conceded, citing Eaglen v Hayward [2023] ACTSC 304; 382 FLR 344, that if there was no suitability assessment, there would be no requirement to consider s 78(2) even where the s 10 “threshold” had been crossed.

27. The appellant sought to invoke what was said in Stanley at [80] when submitting that the failure of the sentencing judge to consider s 78 represented a failure to undertake a mandatory task for the purposes of determining the third step in the process. The appellant argued that the three-step process required engagement with the substance of the intensive correction order assessment report. The sentencing judge failed to engage with the report at all and thus failed to consider whether the s 7 purposes of sentencing could be achieved by the making of an intensive correction order, which it was said, amounted to an error of law.

28. Finally, the appellant identified that s 78(7) expressly states that a failure to comply with the requirement under s 78(6) to provide reasons does not invalidate an intensive correction order. The provision does not extend to ‘saving’ a sentence of imprisonment imposed where there is a failure to provide reasons for declining to make an intensive correction order after an offender is found suitable. The respondent’s submissions

29. The respondent argued that the appellant’s reliance on Stanley was misconceived, pointing to the differences between the legislative regimes and specifically to s 77(1) of the Crimes (Sentencing) Act. This section, the respondent submitted, directed toward ‘eligibility’ for an intensive correction order, operates as a disentitling provision. The provision precludes the court from making an intensive correction order unless satisfied of all the matters at sub-ss (a), (b) and (c). The respondent contended that a sentencing judge must be satisfied as to each of those matters before an intensive correction order can be made. The effect of s 77(1) is that if any one of the three factors is not satisfied, an offender is ineligible for an intensive correction order and any further consideration pursuant to s 78 is irrelevant.

Determination

30. In this instance, the sentencing judge did not err in his approach to sentencing the appellant.

31. The sentencing judge having determined that an intensive correction order was not an appropriate sentencing disposition due to the objective seriousness of the offending, was not required to further engage with the appellant’s suitability for an intensive correction order by reference to s 78.

32. As was observed by this Court in The Queen v DK [2016] ACTCA 7 at [30], once a court has imposed a term of imprisonment in accordance with s 10(2) of the Crimes (Sentencing) Act, “the offender remains at risk of serving that sentence in full-time custody until the sentence has been completed”. Where a period of imprisonment is imposed in accordance with s 10(2), that sentence is to be served by way of full-time detention “unless… the court orders otherwise” pursuant to s 10(3). The court may so order by imposing sentences of imprisonment that are alternatives to full-time imprisonment, provided for in Crimes (Sentencing) Act, being an intensive correction order (s 11), a suspended sentence order (s 12) or a Drug and Alcohol treatment order (s 12A).

33. It is perhaps trite to observe that those factors which influence a determination in accordance with s 10(2) may operate to influence a determination of whether an alternative to full-time imprisonment is appropriate in all the circumstances.

34. The making of an intensive correction order is subject to legislative constraints which limit the circumstances in which this alternative to full-time imprisonment can be imposed. For example, an intensive correction order is not available for a sentence of imprisonment that is for more than four years: s 11(3), Crimes (Sentencing) Act.

35. If a court is “considering whether to make an intensive correction order” for an offender, pt 5.4 of the Crimes (Sentencing) Act applies. It is this part of the Act which deals with an offender’s eligibility (s 77) and suitability (s 78) for an intensive correction order. There are, as has already been identified above at [21], three factors that underpin eligibility (suitability, appropriateness and informed consent). A sentencing judge must be satisfied as to all three factors in order for an offender to be eligible for an intensive correction order. One of those factors is that the court “must not” make an intensive correction order unless satisfied that it “is appropriate for the offender to serve the sentence by intensive correction”: s 77(1)(b). The terms of s 77(1) make plain that an offender could be suitable for an intensive correction order under s 78 and could have given informed consent to serving the sentence by intensive correction order, but if a court determines that it is not appropriate for the sentence to be served by intensive correction order, an offender is rendered ineligible.

36. After taking the differing degrees of hardship into account as between the co-offenders, the sentencing judge plainly ruled out the possibility of an alternative to full-time imprisonment for the appellant in light of the objective seriousness of the offending.

37. The sentencing judge’s consideration of the objective seriousness of the offending sits squarely within that which s 77(1)(b) contemplates. Put another way, a determination that it was inappropriate to depart from the default position in s 10(2) because the objective seriousness of the offending demanded that the sentence of imprisonment be served full-time was a consideration within the remit of s 77(1)(b). Having formed that view, the appellant was ineligible for an intensive correction order and his Honour did not need to consider the appellant’s suitability at all.

38. The analysis in Stanley does not assist the appellant because of the substantively different statutory regimes as between NSW and the ACT with respect to the making of intensive correction orders.

39. Both legislative regimes make clear that the discretion to impose an intensive correction order rests on the sentencing judge first being satisfied, having considered possible alternatives, that no other penalty, other than imprisonment, is appropriate: ss 10 and 11 of the Crimes (Sentencing) Act, ss 5 and 7 of the NSW Sentencing Act. As Stanley makes clear, an intensive correction order is not one of the “possible alternatives” contemplated at this first stage of the sentencing process, the High Court observing at [62]: The possibility of an ICO does not arise unless and until the sentencing court has first determined that no penalty other than imprisonment is appropriate and has sentenced an offender to imprisonment.

40. Division 2 of the NSW Sentencing Act headed “Restrictions on power to make intensive correction orders” contains s 66 which was at the centre of the High Court’s consideration and imposes upon a sentencing judge “specific mandatory considerations” to make, or to refuse to make, an intensive correction order. Section 66(1) requires the court to treat community safety as the “paramount consideration” with s 66(2) explaining how the sentencing judge must engage with the paramount consideration of community safety. The majority in Stanley stated at [65]-[66]: 65. The power to make, or refuse to make, an ICO is discretionary. However, as the parties accepted, that conferral of power comes with a corresponding duty. The court will come under a duty to consider whether to make an ICO where that matter is properly raised in the circumstances of the case, and where the disentitling provisions identified below are not engaged. This is consistent with the general principle that, where a jurisdiction is conferred and "created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter". 66. Once the power to make an ICO is enlivened, the sentencing court must address the requirements in the Sentencing Procedure Act relevant to the imposition of such an order. Citations omitted. Emphasis added.

41. Relevantly the High Court went on to identify the disentitling provisions in the NSW Sentencing Act, which included a prohibition on the making of an intensive correction order for certain offences and certain offenders, where the term of imprisonment exceeds for an aggregate sentence, three years or where an offender resides or intends to reside interstate.

42. The appellant’s attempt to draw parallels with the mandatory, “paramount consideration” contained in s 66 of the NSW Sentencing Act and the failure by the sentencing judge to engage with s 78 of the Crimes (Sentencing) Act, did not grapple with the effect of the provisions in this jurisdiction. Section 77(1) of the Crimes (Sentencing) Act identifies three separate considerations, each necessary for eligibility, none of which trumps the other. There is no iteration of s 66 of the NSW Sentencing Act in the Crimes (Sentencing) Act. There is no overarching “paramount consideration”, to which other considerations are to be subordinated, that a sentencing judge in this jurisdiction must have regard to when determining whether to make or not make, an intensive correction order. The suitability of an offender for such an order, for example, is not a consideration to which other considerations are subordinated.

43. Section 11(2) of the Crimes (Sentencing) Act permits the court to make an intensive correction order if the sentence of imprisonment is for not more than two years. Section 11(3), which is as close to s 66 of the NSW Sentencing Act as the Crimes (Sentencing) Act approaches, empowers the court to make an intensive correction order where the sentence of imprisonment imposed is for more than two years but not more than four years, but only if the court considers it appropriate, having regard to considerations such as harm caused by the offence and the level of risk an offender presents the community.

44. But a consideration of those factors in s 11(3) is specific to the length of a sentence of imprisonment and is not a paramount consideration that requires consideration in any or every case where a sentencing court is considering whether to make an intensive correction order.

45. Of course, the power to make an intensive correction order pursuant to s 11(2) and (3) relies on an offender being eligible for such an order pursuant to s 78.

46. The sentencing judge did not rule out making an intensive correction order on the basis that the appellant was not suitable. His Honour ruled it out on the basis that it would fail to reflect the seriousness of the offending, effectively determining that the making of such an order, was not appropriate. This determination did not necessarily rest on a consideration of the appellant’s subjective circumstances or on those mattes referred to in the assessment report as to his suitability for an intensive correction order. It was a determination in answer to the complaint by the appellant that the sentencing judge did not have regard to the purposes of sentencing set out in s 7. The determination that the objective seriousness of the offending would not be adequately reflected by the making of an intensive correction order reflected a consideration of many of the purposes of sentencing expressed in s 7.

47. Those matters that might have been informed by “genuine engagement” with the intensive correction order assessment report by the sentencing judge, identified by the appellant as his history with corrective services, his risk of re-offending and the “overall assessment”, all stood to be considered as factors which influenced his suitability. A position made clear by the effect of s 78(2)(a) and s 78(4) which directs a court, when considering the intensive correction assessment to consider “indicators of unsuitability mentioned in table 46D, column 3 that are stated in the assessment to apply to the offender”. Those indicators at table 46D, column 3 include all of those matters the appellant submitted ought to have been considered by his Honour had he genuinely engaged with the assessment report.

48. The three factors underpinning an offender’s eligibility at s 77 are akin to disentitling provisions. The explanatory statement that accompanied the insertion of s 77, by virtue of the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT), referred to s 77(1) as setting out the “criteria” for making an intensive correction order. An intensive correction order cannot be made if any one of the criteria is not satisfied. They are hurdles that must be cleared before a court can exercise the discretion to order that a sentence of imprisonment be served “otherwise” pursuant to s 10(3) and s 11(2) or (3).

49. The sentencing judge, having determined that a sentence of imprisonment served by intensive correction order would fail to reflect the gravity of the offending, was not required to go on to “genuinely engage” further with the appellant’s suitability and the assessment directed toward it. The offender’s suitability could not trump the determination the sentencing judge made as to the appropriateness of the alternative to full-time imprisonment. The offender’s suitability did not ‘cure’ that which the imposition of an intensive correction order would fail to observe.

50. In contrast to s 66 of the NSW Sentencing Act, the appellant’s suitability, in circumstances where the sentencing judge determined him to otherwise be ineligible, was not a mandatory, paramount consideration. The sentencing judge was not mandated to consider the suitability of the offender and the terms of s 78, having determined that he was not satisfied that it was appropriate for the appellant to serve the sentence by intensive correction. In light of the finding made by the sentencing judge as to the appropriateness of an intensive correction order, consistent with the task s 77(1) required, the appellant’s suitability for such an order was not “integral to the function of choosing between full-time detention and intensive correction in the community” (Stanley at [81]) in the way that an assessment under s 66 of the NSW Sentencing Act was held to be.

51. The sentencing judge, having determined in accordance with s 10(2) that no other penalty was appropriate and the power to make an intensive correction order was enlivened, addressed the requirements in the Crimes (Sentencing) Act relevant to imposition of such an order. Concluding that such an order was not appropriate, s 77(1)(b) was not satisfied rendering s 77(1)(a) and (c) unnecessary to consider. Unlike the sentencing judge in Stanley, the sentencing judge did not misconceive the function or fail to comply with a condition upon the exercise of the discretion to depart from the default position in s 10(3).

52. The requirement in s 78(6) for the court to record reasons for its decision, in this instance, declining to make an intensive correction order for the appellant when the assessment found him suitable stands alongside the eligibility factors in s 77(1). It is clear from a fair reading of the sentencing remarks that the sentencing judge was aware that the appellant and the co-offender had been assessed as suitable for intensive correction. The determination that such an outcome for the appellant would fail to reflect the seriousness of the offending was clearly the reason his Honour declined to make an intensive correction order. That reason was clearly recorded. The demand in s 78(6) did not require, in those circumstances, the sentencing judge to engage substantively with the suitability factors in s 78(2); the appellant’s ‘suitability’ not being the foundation of the sentencing judge declining to make the order.

53. Accordingly, we do not consider the absence of any reference by the sentencing judge to the factors contained in s 78(2) including the suitability assessment to be an error of law.

54. This ground of appeal has not been established.

Ground 3: the primary judge erred by failing to give adequate reasons for his decision

55. The appellant also complained that the sentencing judge’s reasons were inadequate. The appellant submitted the sentencing judge failed to give adequate reasons such that a proper understanding of the basis of the decision not to make an intensive correction order cannot be reached. On the appellant’s behalf it was submitted that he was left to speculate as to why his co-offender was to serve her term of imprisonment by way of intensive correction order and he was not.

56. We do not agree. The sentencing judge left no doubt as to the basis upon which the alternative to full-time imprisonment was not imposed in the appellant’s case.

57. The adequacy of reasons has been the subject of considerable analysis by this Court useful to set out for the purposes of assessing the merit of this ground of appeal.

58. In R v UG [2020] ACTCA 8; 281 A Crim R 273 the Court of Appeal observed at [63]-[64]: 63. Neither the Sentencing Act nor the general law requires a sentencing judge to give lengthy reasons. The delivery of ponderous reasons that rehearse every conceivable consideration should be avoided as it is inimical to the prompt sentencing of offenders in a manner that is clearly communicated to the community and victim. We agree with the following observations of the Court of Appeal in Chin-Charles v The Queen [2019] EWCA Crim 1140, albeit that the observations concern sentencing within a different statutory framework (at [7]–[8]): 7. There has been a tendency in recent years, understandable but unnecessary, to craft sentencing remarks with the eye to the Court of Appeal rather than the primary audience identified by Parliament. This has led to longer and longer remarks. It is not unusual to find the equivalent of a judgment, with extensive citation of authority, detailed discussion of the relevant guidelines, expansive recitation of the various arguments advanced and a comprehensive explanation of the resolution of factual and legal issues. This should be avoided. … 8. The task of the Court of Appeal is not to review the reasons of the sentencing judge as the Administrative Court would a public law decision. Its task is to determine whether the sentence imposed was manifestly excessive or wrong in principle. Arguments advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper. Judges take into account all that has been placed before them and advanced in open court and in many instances, have presided over a trial. The Court of Appeal is well aware of that. 64. There was no error in the way in which the sentencing judge expressed his reasons for sentence. The fact that there was no reference to some matters and only brief reference to others does not, of itself, permit an inference that his Honour failed to take into account all the evidence that was relevant to an assessment of the objective seriousness of the offending conduct.

59. The Court of Appeal per McCallum CJ (with whom Collier J agreed), in Garay v The Queen (No 3) [2023] ACTCA 2 observed with respect to the adequacy of reasons in the context of a judge alone trial at [138]: It will be a rare case in which the adequacy of the reasons can be determined by reference to the structure of the judgment alone. The provision is concerned not with the quality of the writing but with the quality of the reasoning, which must necessarily be informed by the issues in the case. The statute does not impose a requirement that the judgment be reasoned beautifully; only that the reasoning process be exposed. It is trite that, in determining whether that has occurred, the appellate court must read the judgment fairly, as a whole.

60. More recently in Porter v The Queen [2024] ACTCA 9; 21 ACTLR 122 the Court of Appeal (Mossop, Baker and Bromwich JJ) summarised the principles in relation to adequacy of reasons on sentence at [28]-[31]: 28. As both parties submitted, the starting point for consideration of the first ground of appeal is with the duty of a judge to provide reasons for their decision. 29․ Although there is no statutory requirement for a judge to give reasons for a decision on sentence (cf s 68C(2) of the Supreme Court Act 1933 (ACT)), the common law requires that such reasons be given. The purpose of this requirement is so that justice may be seen to be done (both by the parties and the wider public), and to enable an appellate court to ascertain the reasoning on which the decision is based for the purpose of determining any appeal against the decision: Wainohu v New South Wales [2011] HCA 24; 243 CLR 181 at [54] – [58]; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [42]. 30․ The extent of the reasons which will be required varies “according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision”: DL at 12 [32]. The reasons given do not need to be elaborate: IFTC Broking Services Limited v Commissioner of Taxation [2010] FCAFC 22 at [4] quoting Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 386; Beale v Government Insurance Office of NSW (1987) 48 NSWLR 430 at 443. 31․ However, it is necessary for the reasons to demonstrate that the judge “engage[d] with the case presented”, “expose[d] his or her reasoning on points critical to the contest between the parties”, “[made] findings as to material questions of fact”, and “explain[ed] why evidence or material has been rejected”: Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295 at [20], citing inter alia, Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40], DL v The Queen [2018] HCA 26; 266 CLR 1 at [130] – [131], Beale at 431 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257 – 258.

61. Against the background of those observation and those principles, the complaint as to the adequacy of the reasons produced by the sentencing judge can be readily dismissed.

62. The reasons of the sentencing judge left no doubt as to the conclusion he reached that the objective seriousness of the offending warranted the imposition of a sentence of imprisonment. This was a position conceded by counsel who appeared in the sentencing hearing for each of the co-offenders. His Honour carefully set out at [34]-[39] what he considered to be the circumstances of hardship with respect to each co-offender before concluding that Ms Faris was the primary carer for their children: 34․ Section 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) requires me to take into account the probable effect any sentence will have on the offenders’ family or dependents. Hardship to third parties does not have to be exceptional before it can be taken into account: see DPP v Moala (No 3) [2023] ACTSC 306 at [47]-[48] per McCallum CJ. This issue cannot be considered in relation to each offender in isolation. They have the same family and dependents. 35․ Should one offender receive a sentence of full-time imprisonment then the consequences for the offenders’ children are of such significance that it may be the case that the other offender receives a sentence other than full-time imprisonment no matter how deserved a sentence of full-time imprisonment would be. There is always something a bit distasteful about offenders such as the present relying on hardship to their children in circumstances where they committed those offences together in full knowledge that their children would suffer if they were both sent to jail. 36․ Nevertheless, the effects on the children were their parents both sentenced to full-time custody are very important to deciding the appropriate sentences in the present case. 37․ I note in this context that Ms Faris has been the primary caregiver to her family and there is no evidence that there are other family members who could take on this role. The offenders’ elder daughter gave evidence today. There is no real prospect of she and her sister, both studying at the moment, giving up their studies to look after their pre-teen brothers. 38․ Of course, even if Ms Faris receives a sentence of other than full-time custody, there will still be consequences for the children if Mr Fares is sent to jail. The family depends on his income, and they will suffer at least financially. However, it is sadly the case that when the breadwinner of a family is sentenced to jail for serious criminal behaviour, as a result, other innocent people may suffer. If the consequence of that consideration were that breadwinners could not be sent to jail, then the law would soon cease to have a deterrent effect. 39․ Whilst I take into account the probable effect of a sentence of full-time imprisonment imposed upon Mr Fares, it may still be the case that such a sentence is required in all the circumstances of this case.

63. This careful explanation informed the conclusion that the sentencing judge arrived at with respect to the making of an intensive correction order in the case of each co-offender. The position of the appellant’s co-offender as the primary carer for their two younger children, and the absence of evidence that they could reasonably be cared for by other family members, was plainly the basis upon which the co-offender’s sentence of imprisonment was ordered to be served by intensive correction order. This was not the case for the appellant. He was not the primary carer. While a sentence of imprisonment served full-time would have a “significant” effect upon his children, his Honour determined at [49] that in circumstances where the appellant was not the primary carer, anything other than a full-time period of imprisonment would not reflect the gravity of the offending.

64. The sentencing judge exposed his reasoning as to the critical considerations. His explanation of the difference in outcome as between the co-offenders was expressed with clarity and certainty. The reasoning which was the foundation for his determination that the appellant would not serve the sentence of imprisonment imposed upon him in the community was entirely transparent; the objective seriousness of the offending told against that outcome and the hardship occasioned to the appellant’s children arising from his full-time imprisonment, was not such as to warrant an outcome that did not properly reflect the objective seriousness of the offending. Each of those considerations was comprehensively recorded in what were, ex tempore sentencing remarks.

65. The appellant sought to advance an argument that s 78(5) required the sentencing judge to engage with the suitability assessment. The appellant conceded this aspect of the complaint overlapped with the matters raised in ground four. We have already observed that in this instance, s 78(6) required no more than that which the sentencing judge did.

66. The reasons expressed by the sentencing judge leave no room for speculation as to the basis upon which each offender was sentenced. The basis for the different outcome as between them was sufficiently clear and adequately explained.

67. We do not consider the complaint as to the adequacy of the reasons to have merit. This ground of appeal has not been established.

Ground 2: the disparity between the sentences of the appellant and his co-offender is one which gives rise to a justifiable sense of grievance

68. The appellant contended, given the nearly identical nature of the offending, that the disparity in how the sentences were ordered to be served gives rise to a “justifiable sense of grievance”. The appellant submitted that the “sole ground” of distinction between the co-offenders identified by the sentencing judge, being the level of hardship that would be occasioned to their children by the imposition of sentences of full-time imprisonment, should have resulted in the making of an intensive correction order in his case, as it did for the co-offender.

69. There is no proper basis for the complaint made with respect to disparity for the reasons that follow.

70. It has long been acknowledged that it is desirable for offenders who are party to the commission of the same offence to have, if other things are equal, the same sentence imposed upon them: Lowe v the Queen [1984] HCA 46; 154 CLR 606 at [3]. However, “[o]ther things” are not always equal and where there are substantial differences in the subjective circumstances of co-offenders, or their role in the offending was markedly different, the sentences should reflect those differences: Pikula-Carroll v The Queen [2022] ACTCA 12 at [9].

71. As the respondent observed, citing McColl JA in Gill v R [2010] NSWCCA 236 at [58], an appellant faces “considerable difficulty” invoking the parity principle where “the sentencing judge was fully aware of the sentences imposed upon a co-offender, and the reasons for the sentences, and indicates in the sentencing remarks why the judge is departing from the co-offender’s sentences”. The sentencing judge was acutely aware of the requirement to consider the parity principle, as revealed by the following statements at [40]-[41]: 40. It is difficult to see who was the prime mover behind this offending. Certainly Ms Faris was the person who engaged with insurance investigators and the like, but that was likely to have been because she spoke English well, whereas her husband did not. 41. Neither offender should have a justifiable sense of grievance when the sentences I will impose upon them are compared. That said, there is little to distinguish between them apart from the issue of hardship to their children, which explains the difference in the sentencing outcomes for the two offenders.

72. There was, as his Honour observed, little that distinguished the offenders in terms of the role they played in the offending, their prospects for rehabilitation and the need to protect the community from their conduct. As the sentencing judge also observed, the appellant had a more significant criminal history than his co-offender, which included a period of imprisonment imposed upon him for an act of indecency.

73. The appellant’s submissions took a broad-brush approach to the critical point of difference between the co-offenders, namely the effect of a sentence of full-time imprisonment on their children according to the roles the co-offenders played within the family unit.

74. The evidence before the sentencing judge demonstrated two things with respect to the co-offender to which we have already referred. First, that she was the primary carer for their four children, two of whom were “pre-teens” and secondly, that no other family member was able to care for the pre-teen children. The co-offender’s status as the primary carer of their children was a compelling factor in the assessment his Honour was required to make pursuant to s 33(1)(o) of the Crimes (Sentencing) Act. The imposition of a period of full-time imprisonment upon the co-offender in circumstances where the appellant was also facing a period of imprisonment would have had, in the circumstances, a particular and profound effect upon the children.

75. The appellant’s circumstances were materially different to the co-offender’s. The sentencing judge was satisfied that the appellant’s children would experience “significant” hardship were he to be sentenced to a period of full-time imprisonment, by virtue of their financial reliance upon him. His Honour clearly took this factor into account. But the appellant was not primarily responsible for the children’s care. The evidence revealed that the consideration of hardship with respect to each co-offender was not equal.

76. The sentencing judge acknowledged that the co-offender “deserved” a sentence of full-time imprisonment though considered the hardship occasioned to her children by that outcome warranted the imposition of a more lenient alternative. This was a view well open to the sentencing judge and gave effect to the need to ensure individualised justice.

77. The effect upon the appellant’s children should he be sentenced to a period of full-time imprisonment was not to the same extent as the co-offender. Accordingly, in circumstances where the seriousness of the offending required a period of imprisonment to be served full-time, the appellant did not have the same case for leniency to be extended to him. The disparity between the appellant and the co-offender was entirely rational and founded in the findings his Honour made with respect to the subjective circumstances of each co-offender. No error has been identified in relation to the transparent and justifiable disparity between the co-offenders.

78. There is no substance to the claim that the sentence imposed upon the appellant created a “justifiable sense of grievance”. This ground of appeal has not been established.

Ground 1: the sentence was manifestly excessive

79. This ground of appeal appeared to rely primarily on a characterisation of the appellant’s sentence as “out of step” with comparable outcomes. The appellant provided a table of comparative cases said to demonstrate the departure of the sentence imposed upon him from usual or current sentencing practise. The appellant contended that the sentence being “out of step” combined with the disparity in sentencing outcomes, the hardship to the appellant’s family and the failure to consider his suitability for an intensive correction order would lead to a conclusion that the sentence was manifestly inadequate. For the reasons that follow, we do not agree.

80. The principles relating to a claim of manifest excess are well known, and were summarised by this Court in Tracey v The Queen [2020] ACTCA 51 at [37]-[38]: 37. The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76]. 38. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

81. In Zdravkovic v The Queen [2016] ACTCA 53; 19 ACTLR 223, the Court of Appeal in considering identification of manifestly excessive sentences remarked at [51]-[52]: 51. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen [2012] ACTCA 26 at [61]. 52. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.

82. In the context of the way this ground has been framed by the appellant it is useful also to observe what was stated by this Court in The Queen v Omari [2022] ACTCA 4 at [57]: 57. Although consideration of sentences imposed in comparable cases may be useful, care must be taken with respect to the range revealed by the cases referred to, noting that current patterns of sentencing do not cap the upper and lower ranges of a possible sentence: Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [83]; and Barbaro v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Further, care must be taken to consider whether cases referred to are truly comparable, given the objective and subjective differences between cases and the need to render individual justice: R v Todoroski [2010] NSWCCA 75 at [26]. See generally R v Duffy where this Court observed: [92] Comparable cases from the relevant jurisdiction are of most interest because, even where the maximum available penalties in different jurisdictions are the same, 'unifying principles' may be expressed slightly differently and sentencing patterns may differ between jurisdictions. Further, a sentencing pattern that is disclosed by comparable cases from the relevant jurisdiction is not determinative because consistency in sentencing is not demonstrated by, and does not require, numerical equivalence: Hili. Nevertheless, current sentencing patterns can provide some evidence of the usual sentencing range and may provide some support for an argument that the sentence under appeal fell outside the available sentencing range.

83. An appellant alleging manifest excess might commonly be able to identify cases where other offenders sentenced for the same or like offending have been dealt with more leniently. It is not the task of an appellate court to identify a manifestly excessive sentence by resort to an assessment of mathematical equivalence or indeed because an appeal court would have imposed a more lenient sentence. The limitations of comparable cases are well accepted and there is no single correct sentence for an offence.

84. As the respondent observed the table relied upon by the appellant to some extent served to undermine the claim of manifest excess; it demonstrated that in almost every case the offender was required to serve a period of full-time imprisonment and in some cases, the period imposed was longer than that imposed upon the appellant.

85. Only one of the decisions in the table relied on by the appellant related to a sentence for the offence provision under which the appellant was sentenced (s 332 of the Criminal Code), being R v Samani [2016] ACTSC 257. This was a sentencing outcome brought to the sentencing judge’s attention and indeed was referred to by his Honour. Not dissimilar to the present matter, Samani involved insurance fraud via a staged motor vehicle accident. The offender’s sentence of 22 months of imprisonment was suspended after he had served 6 months of full-time imprisonment and upon entering a good behaviour order for two years. An appeal brought by the offender was dismissed: Samani v The Queen [2017] ACTCA 23. The offender had no criminal history and made full admissions to investigating police.

86. The other cases recorded in the table relied on by the appellant involved sentences imposed for the offence of theft, obtaining property by deception and obtaining a financial advantage by deception. The table revealed variation in the sentences that have been imposed for these offences, some longer than that received by the appellant with the majority requiring at least a portion of the sentence to be served in full-time custody. A notable exception would be DPP v Librando [2024] ACTSC 100, an outcome that saw the offender sentenced to a three-year intensive correction order for two counts of theft. The offending involved the offender processing fraudulent transactions while employed as a receptionist at an aged care facility. The offender’s subjective circumstances demonstrated an abusive and traumatic upbringing and significant mental health issues including previous suicide attempts. The sentencing judge determined that the offender’s moral culpability was reduced and that her mental health would result in full-time imprisonment weighing more heavily upon her.

87. Neither Samani or Librando revealed the sentence imposed upon the appellant to be manifestly excessive. There are clear differences in the subjective circumstances of each offender.

88. The appellant and the co-offender were sentenced with respect to three offences each carrying a maximum penalty of 10 years of imprisonment, a fine of $140,000 or both. As the sentencing judge observed the co-offenders stood to obtain a considerable financial benefit from the conduct they engaged in. The conduct not only included a plan to make false insurance claims, but the conduct also involved a staged motor vehicle collision that required the attendance of police, paramedics and the fire brigade. The offending was planned and premeditated and included the continuation of the deception after the staged motor vehicle collision, in furtherance of financial gain. The sentencing judge was correct to assess the offences as “significant” and “serious”.

89. The appellant’s complaint that his sentence is different from other sentences is as the respondent suggested, unexceptional, there being no single correct sentence for an offence and noting the limitations of using comparable sentences on appeal: the measure of manifest excess is not “capped and collared by the highest and lowest sentences for similar sentences hitherto imposed” (DPP v OJA [2007] VSCA 129; 172 A Crim R 181 at [30]).

90. In the context of the appellant’s submissions, it is useful to observe that which was explained in Markarian v The Queen [2005] HCA 25; 228 CLR 357, when the High Court stated at [31]: It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

91. The sentence imposed on the appellant against the background of the conduct he deliberately engaged in, his subjective circumstances and the maximum penalty that applied, was not unreasonable or plainly unjust. Applying the ‘yardstick’ approach to the circumstances of this matter revealed the outcome to be within the available range and indeed reflected a just and reasonable approach by the sentencing judge. Conclusion

92. The appellant has failed to establish any ground of appeal. Accordingly, the appeal should be dismissed.

Orders

93. For those reasons, we make the following order: (1) The appeal is dismissed.

I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: O Ferguson Date: 24 January 2025