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Parties: Joshua Higgins (Appellant) The Queen (Respondent)

Representation: Counsel K Ginges (Appellant) K McCann (Respondent)

Solicitors Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent)

File Number: ACTCA 44 of 2021 Decision under appeal: Court: Supreme Court of the Australian Capital Territory Before: Burns J Date of Decision: 26 August 2021 Case Title: R v Higgins (No 2) Citation: [2021] ACTSC 202 THE COURT

Introduction

1. The appellant, Mr Joshua Higgins, has appealed against the sentence imposed by a judge of this Court for the offence of manslaughter in relation to the killing of Mr Jae-Ho Oh (victim): R v Higgins (No 2) [2021] ACTSC 202 (R).

2. The offence is contrary to s 15 of the Crimes Act 1900 (ACT) (Crimes Act) and the prescribed maximum penalty is imprisonment for 20 years. The appellant was sentenced to eight years and six months’ imprisonment, with a non-parole period of five years and three months.

3. The grounds of appeal include two specific errors and a generalised allegation of manifest excess.

Before the sentencing judge

4. The relevant background facts were set out by the sentencing judge (at R [4]–[23]). It is unnecessary to repeat them in any detail.

5. It suffices to note that, at the time of the offence, the appellant was 30 years old. He had been friends with the victim for several years. Both were heavy users of alcohol.

6. On 9 March 2019, the appellant arranged to stay at his house in Canberra. The next morning, the appellant stayed at the victim’s townhouse, and they both became drunk. Indeed, the appellant had consumed between 20 and 30 standard drinks.

7. Although contested at trial, the appellant’s version of events was as follows. On the relevant night, the appellant woke with his pants down around the area of his penis and the victim on top of him. The victim admitted to touching him and then started yelling at the appellant, telling him to “fuck off”. The victim ran to the kitchen and grabbed a knife and came back at the appellant and wrestling took place. The victim cut his own leg before the appellant obtained the knife from him. The victim then got up and went to the kitchen and got another knife and, after the appellant grabbed his hand, the victim dropped the knife.

8. The above facts were disputed at trial, but what is clear is that, during the fatal incident, the appellant stabbed the victim multiple times. A forensic pathologist identified 34 separate injuries to the victim, including eight sharp force injuries to his face and 14 stab wounds to the back of his neck, and his buttocks, upper thigh, and elbow.

9. Immediately after the incident, the appellant ran to a nearby unit complex and asked that police be called. They arrived and the appellant was taken into custody and charged with murder.

10. The sentencing judge found that the appellant “caused the death of the victim by a dangerous and unlawful act or acts” and the appellant’s conduct was in response to his perception of an assault and threat to kill by the victim, which was influenced by his PTSD and heavy intoxication: R [18]–[21]. Although the sentencing judge also found that the appellant did not have time to come up with the version of events which he gave to police, his Honour also noted that the jury were evidently satisfied beyond reasonable doubt that the appellant was not acting in self-defence. In this regard, the sentencing judge noted that it was consistent the jury’s verdict that the appellant believed it was necessary for him to defend himself, but that what he did was not a reasonable response in the circumstances as the appellant perceived them: R [13]–[14].

11. At a criminal case conference held in November 2020, the appellant, through his legal representatives, offered to plead guilty to the offence of manslaughter. This offer was rejected by the Crown.

12. Following a 21-day trial, the jury acquitted the appellant of the charge of murder, but found the appellant guilty of the charge of manslaughter and he was sentenced as set out at [2] above.

Grounds of appeal

13. The grounds of appeal are as follows:

(a) The learned sentencing Judge erred by: i. Failing to impose a lesser sentence under s 35A of the Crimes (Sentencing) Act 2005 for the applicant assisting in the administration of justice, other than by reason of the applicant’s plea offer at the case conference; ii. Failing to provide an appropriate discount on sentence under s 35A of the Crimes (Sentencing) Act 2005 (namely, that the 15% reduction in the sentence was, in all circumstances, inadequate). (b) The learned sentencing Judge erred by failing to give full effect to and apply the principles in R v Verdins & Ors [2007] VSCA 102 to the circumstances of the case, including in respect of the impact of the applicant’s underlying mental conditions and his experience in custody. (c) That the sentence was otherwise manifestly excessive.

Ground 1: Extent of discount under s 35A

14. As can be seen, the two aspects of the first ground relate to the discount applied to the sentence by application of s 35A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

15. As is evident from its general terms, s 35A provides the Court with a discretion to impose a lesser penalty upon an offender having regard to the degree of assistance provided in the administration of justice, including pre-trial disclosure and in circumstances where a trial has been conducted in an efficient, expeditious, and pragmatic manner by the defence: see, e.g., R v Williams-Savage [2021] ACTSC 271 (at [51] per Mossop J); R v Langi (No 2) [2021] ACTSC 239 (at [27] per Mossop J).

16. It is clear that a sentencing judge’s failure to indicate the quantum and effect of any discount given under s 35A pursuant to s 37 of the Sentencing Act will amount to an appealable error: Urlich v The Queen [2019] ACTCA 30; (2019) 14 ACTLR 267 (at 278-279 [46]–[53] per Murrell CJ, Loukas-Karlsson and Bromwich JJ).

17. At sentencing, counsel for the appellant submitted the discount pursuant to s 35A should be 25 per cent. He explained why as follows (T13.25–37):

My submission is your Honour would, in this case, allow a discount of 20 per cent. Now, of course, that's not under section 35, because section 35 speaks of the plea being entered as opposed to an offer for a plea that's rejected. But there is recent case law, and your Honour will be aware of it, that states that such a discount can be given under section 35A. I've also submitted that Mr Higgins ought to be given the benefit of another discount under section 35A in terms of the way the trial was run. I opened with submitting to your Honour that this was a trial in which significantly complex legal and factual issues would have to be determined by the jury. But the way in which the trial was run meant that those issues could be canvassed and dealt with in a hearing that - and I can't now recall. I think it was three to four weeks of evidence. So a reasonably shortish trial, considering that it was a murder trial dealing with all of these issues. Many witnesses weren't required to be called, weren't extensively cross-examined. I would submit that the trial was run efficiently, despite the fact that these very complex and difficult issues had to be tested and were tested, and that your Honour could increase the discount under 35A up to 25 per cent or even beyond.

18. The Crown accepted that the offer to plead to manslaughter could be reflected in a discount pursuant to section 35A, however noted that the case for “the offence of manslaughter was overwhelming”: T37.29–38. In written submissions, the Crown also recognised that some weight should be given to considerations such as the way the offender conducted the trial through his legal representatives to facilitate appropriately the course of justice.

19. The sentencing judge accepted the appellant’s offer to plead guilty to manslaughter at Criminal Case Conference warranted a reduction pursuant to s 35A and reduced the head sentence by 15 per cent (R [35]–[36], [39]).

Failure to take into account conduct of trial

20. The appellant submits that, given that the 15 per cent discount was apparently given exclusively for the offer to plead, there was an evident failure to discount on account of the way the trial was conducted by the defence. Relatedly, the appellant asserts that if the sentencing judge did intend to discount on account of the way the trial was run, the failure to give effect to that intention, manifested error.

21. For the following reasons, these submissions must be rejected.

22. As was explained in Blundell v The Queen [2019] ACTCA 34 (at [12]–[14] per Murrell CJ, Elkaim and Rangiah JJ), a discount for a plea of guilty associated with a Criminal Case Conference would “almost always” be within the range 15 per cent to 20 per cent. In allowing a 15 per cent discount, the sentencing judge had gave full weight to the unrealised utilitarian value of the plea. That is, he gave the appellant a reduction that would have been available had there been no necessity for a trial at all.

23. The consideration of whether some further discount should be given by reason of the manner in which the trial was conducted occurred in this context. Having regard to the sentence reduction for the unrealised utilitarian value of completely avoiding the need for a trial, it was a case in which any further increase in the discount to take account of the manner in which the trial was conducted would need to be clearly justified.

24. Although the sentencing judge did not explicitly refer to the conduct of the defence when referring to the s 35A discount, this does not necessitate the conclusion that the sentencing judge failed to take it into account to the extent it had any relevance. Sentencing remarks need not be elaborate and it is unnecessary to structure them as a checklist “to avoid the prospect of an ‘armchair appeal’ at a later stage seizing upon any missing reference as evidence of error”: Taylor v R [2020] NSWCCA 46 (at [86] per Davies J, with whom Johnson and Price JJ agreed); Firth v The Queen [2018] NSWCCA 144 (at [61] per Wilson J, with whom Simpson AJ and Bellew J agreed).

25. The absence of specific reference to the submission is unsurprising as it cannot be said that the appellant’s conduct of the trial was such that it was a consideration of any moment. The sentencing judge had sat through a 21-day trial. It is unrealistic to form the view that the manner of the conduct of the trial would not have been well apparent to his Honour.

26. The appellant submits that the issues at trial were confined, thereby substantially reducing the length of the trial, and avoiding complexity. It is noteworthy, however, that the defence did not elaborate on this submission before the sentencing judge in any detail. Indeed, the matters said to constitute assistance in the administration of justice remain somewhat Delphic even following the appeal. It is an unpromising start to an argument impeaching the exercise of discretion when the extent of the utilitarian value of the alleged relevant matter was not made clear when the discretion was called upon to be exercised.

27. Despite this want of a descent into the detail by the appellant, the Crown accepts that the appellant did not dispute the following at trial:

(a) the appellant and victim were friends and consumed alcohol and drugs together;

(b) the appellant was the person in the residence with the victim;

(c) the alcohol and drugs that were consumed by the victim and appellant; and

(d) there was a physical altercation.

28. Given the overwhelming nature of the evidence, it might be thought there is a degree of understatement in remarking that the utilitarian value of these concessions was not significant.

29. Further, it is important not to decontextualise such concessions that were made in the overall conduct of the defence. Notwithstanding the evidence to the contrary, including the manner of the victim’s death, the large volume of blood inside the residence, and the appellant’s conduct and statements to police immediately following the victim’s death, the appellant went to trial disputing causation. At trial, considerable time was spent cross-examining Professor Johan Duflou, as well as the first responder who performed CPR on the victim, so as to test various theories suggesting that the cause of death was a heart attack or the result of CPR having been performed (both as to the actions of pumping the victim's chest and moving him over shards). A cursory examination of the record demonstrates that this is a case far removed from those when a discount has been applied where a trial has proceeded by way of agreed facts, or admissions tendered at trial: c.f. R v Daniel (No 2) [2021] ACTSC 117.

30. As noted above, the Crown conceded in written submissions before the sentencing judge, that “some weight” should be given to considerations such as the way “the offender conducted the trial through his legal representatives to appropriately facilitate the course of justice”. But the fact that this Crown submission was not expressly referred to by the sentencing judge does not evince error. The trial was not conducted in a notably efficient, expeditious, and pragmatic manner. It is evident that the sentencing judge did not consider the narrowing of issues, such as they were, to be of any significance (a conclusion that was not only clearly open, but unremarkable in the circumstances).

31. Further, during the course of oral submissions on the appeal, a complaint was made that the sentencing judge denied procedural fairness in not apprising the appellant that the Crown “concession” would not result in a further discount. But apart from the difficulties with the additional discount argument already addressed above, it is evident that the appellant had every opportunity of explaining why and how the conduct of the defence case was such as to have been of real significance in his Honour’s synthesis of all relevant factors. There was no denial of procedural fairness.

Discount of 15 per cent for offer to plead to manslaughter

32. The appellant asserts the discount of 15 per cent afforded for the offer to plead guilty to manslaughter was lower than what was reasonably appropriate in all the circumstances.

33. It is worth commencing by noting the principled approach in considering such an argument. In R v Stambolis [2006] NSWCCA 56; (2006) 160 A Crim R 505, Howie J relevantly observed (at 514 [12]):

I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused’s plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15.

34. In making reference to this passage, the New South Wales Criminal Court of Appeal stated in Merrick v R [2017] NSWCCA 264 (at [105] per Gleeson JA, Beech-Jones, and Fagan JJ):

As this passage recognises, the underlying consideration upon which a sentencing judge may allow a discount … in respect of the unrealised utilitarian value of plea which is offered but not accepted, is that of fairness to the offender. Further, it must be recognised that the refusal of a sentencing judge to afford any discount on account of an offer to plead guilty that was not accepted is an exercise of discretion that can only be interfered with on the basis stated in House v R (1936) 55 CLR 499.

35. The sentencing judge is under no general obligation to apply a discount for a guilty plea offer pursuant to s 35A and any discount to be applied for the offer to plead guilty to manslaughter was ultimately a discretionary matter for the sentencing judge informed by all the circumstances of the case.

36. The danger in relying on analogy with other cases where discounts have been applied is evident in the submissions exchanged in relation to R v Daniel (No 2). In their opening submissions, the appellant cited the case as indicative of the fact that the discount given in this case of 15 per cent was lower than was reasonably appropriate. Equally, however, the respondent relied upon the same case, among others, to demonstrate that the discount was well within range. In reply, the appellant conceded that, although relevant, the case does not chart a range.

37. It is worth noting the particular circumstances of R v Daniel (No 2). The offender received a discount of approximately 20 per cent in circumstances where he offered to plead guilty to causing grievous bodily harm, for which he was ultimately convicted, and assisted in the administration of justice. However, in that case, counsel for the offender, upon the commencement of the trial, conceded that if the offence of causing grievous bodily harm fell to be considered, all the elements of s 25 of the Crimes Act were made out, and the trial could proceed on a sole discrete issue of recklessness. As such, the prosecution acknowledged that the offender had conducted his defence in a manner consistent with his admission and the earlier offer to plead guilty to the alternative charge, and had unquestionably assisted with the administration of justice.

38. The extent of assistance with the administration of justice was not present here. What is determinative in considering this ground is that the discount applied by the sentencing judge of 15 per cent was clearly within the range of discounts open and no error is evident.

Ground 2: Failing to give “full effect” to and apply “the Verdins principles”

39. The second ground is described as a failure “to give full effect to and apply the principles” in R v Verdins [2007] VSCA 102; (2007) 16 VR 240 (Verdins) to the circumstances of this case; that is, the circumstances of the case warranted a substantial reduction in moral culpability and general deterrence.

40. The principles in Verdins were comprehensibly set out by this Court in Ngata v The Queen [2020] ACTCA 18 (Ngata) (at [18]–[21] per Burns, Loukas-Karlsson JJ, and Walker AJ) including, relevantly, the following:

41. There is no dispute that the principles enunciated in Verdins are applicable to sentencing proceedings in the ACT (see Monfries v The Queen [2014] ACTCA 46; 68 MVR 385; R v So [2014] ACTSC 316). Verdins recognised that a person suffering a mental impairment is entitled to have that taken into account as a relevant sentencing consideration, even though it falls short of amounting to a defence or allowing access to specific sentencing orders relying on the presence of a mental impairment. The non-exhaustive list of principles expressed in Verdins, at [32], state that a finding of mental impairment, whether a diagnosable mental illness or not, may be relevant in the following ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment. (Citations omitted). … 20. These considerations will be weighed along with other applicable sentencing considerations; at times they will pull in opposite directions. For example an offender’s mental impairment may make an offender an inappropriate vehicle for general deterrence, yet the offending may be so heinous that the need for general deterrence cannot be entirely disregarded (Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465). Weighing these factors in the balance is part of the process of instinctive synthesis (Markarian v The Queen [2005] HCA 25; 228 CLR 357). It is neither possible nor desirable to attempt to strictly quantify the weight attached to the various factors.

42. The appellant submits, in particular, that there was a failure to recognise the impact of the appellant’s mental health conditions on the moral culpability of the conduct, the need for specific deterrence, and the sentence of imprisonment weighing more heavily upon the appellant than it otherwise would have for a person in normal health. Further, it is contended that the sentencing judge failed to acknowledge the impact that this period of full-time imprisonment would have upon the appellant’s ongoing PTSD, and that the appellant’s “unaddressed” PTSD and substance abuse would be best addressed by way of an extended period of parole.

43. This ground must be rejected for the following reasons.

44. The principles set out in Verdins are not expressed in mandatory or unqualified terms; nor do they impose a presumption. Rather, what is recognised is the potential effect, in any given case, of a mental disability: see Aslan v R [2014] NSWCCA 114 (at [34] per Simpson J, with whom Adams and McCallum JJ agreed).

45. As the above extract from Ngata makes clear, where one or more of the circumstances identified in Verdins exists, a discretionary evaluation as to its significance takes place as part of the broader sentencing process. The alleged failure of the sentencing judge to reflect “adequately” the “inevitable vulnerability” of the appellant in custody is not warrant for this Court to interfere with the sentencing discretion by his Honour unless House v R error is demonstrated.

46. This is not a case where the sentencing judge failed to consider the appellant’s mental health conditions as part of the process of instinctive synthesis. His Honour accepted there should be “some” reduction in the appellant’s moral culpability and that general deterrence should be moderated on account of his diagnosis of PTSD: R [33]–[34]). The sentencing judge then went on to consider that the appellant may present a risk to the community as a result of his unaddressed PTSD and substance abuse, stating that the appellant could not “afford to take the risk of using intoxicants against [his] background of underlying mental health conditions associated with [his] PTSD” and that he needs to “seriously and rigorously address [his] PTSD by undertaking appropriate psychiatric and/or psychological treatment”: R [33]–[34].

47. Moreover, his Honour identified that the appellant had experienced difficulties while in custody, including difficulties seeing his daughter during COVID restrictions and that he had been assaulted while in custody, noting that the appellant wanted to undertake the Solaris programme to address addiction problems in the Alexander Maconochie Centre (AMC): R [30].

48. The appellant attacks this aspect of the reasons, stating that there “was a need to acknowledge the exacerbating effect that the assaults experienced by the appellant in custody would have upon his PTSD … by a recognised reduction in the custodial component (at least) in his prison sentence.”

49. But such a criticism does not do justice to the sentencing judge’s reasoning. Considering the above remark contextually, it is apparent that the sentencing judge took account of the appellant’s mental health conditions to the extent his Honour considered them to be of significance, and also took account of the likely consequence of a sentence of imprisonment on the appellant. The fact his Honour did not explicitly address these matters by reference to the Verdins taxonomy does not establish that the matters the appellant relies upon were not considered as part of his Honour’s broader consideration of the relevance of the appellant’s mental health conditions to the overall sentencing task.

50. This ground is, in truth, a complaint as to the weight the sentencing judge gave to the sort of matters identified in Verdins, including the appellant’s PTSD and substance abuse, and the fact that he had been assaulted on several occasions in the AMC. Error is not made out on this ground.

Ground 3: Manifestly excessive

50. This ground, of course, invokes error in the nature of the fourth proposition in House v R. The principles which apply to determining such a ground need not be repeated. It suffices to note that, 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.

51. In both the written submissions and in oral submissions, it was contended that the total effective sentence is manifestly excessive when considering the ultimate sentence (and associated non-parole period) imposed by the sentencing judge against the circumstances in which the offence occurred, the sentencing judge’s assessment of mid-level objective seriousness, and the subjective circumstances of the appellant calling for significant leniency.

52. As noted above, for an offence which carries a maximum penalty of 20 years’ imprisonment, the appellant received a sentence of eight years and six months’ imprisonment, with a non-parole period of five years and three months. Taking into account the 15 per cent discount described above, the notional starting point for the sentence was 10 years, with an associated undiscounted non-parole period of six years and two months.

53. In order to understand this residual ground, it is important to have a full appreciation of the approach taken by the sentencing judge in assessing the objective seriousness of the offence, the appellant’s moral culpability, the need for general deterrence, the appellant’s risk to the community, and the appellant’s subjective circumstances.

54. In considering the objective seriousness of the offence, the sentencing judge noted that all offences of manslaughter are serious criminal offences, which involve the unlawful taking of a human life. Recognising, however, the varying objective gravity of the offence of manslaughter, the sentencing judge expressly identified the following factors in determining the objective seriousness of the offence (at R [22]):

(a) the offence occurred in the victim’s own home and involved multiple inflictions of wounds using a knife and a sound bar; (b) the appellant was subject to perceived provocation and physical attack by the victim, causing him to initially to fear for your own life; yet, his attack upon the victim went on for much longer than would have been reasonably necessary to defend himself;

(c) the appellant struck the victim on one or more occasions with the sound bar when he was disarmed and slumped on the floor;

(d) the number of wounds sustained by the victim; and

(e) the fact that the incident was not the subject of any premeditation or planning.

55. The sentencing judge then went on to assess the appellant’s moral culpability for the offence. Contrary to the appellant’s submissions that there was a “significant reduction in moral culpability”, the sentencing judge considered that “some reduction” in the appellant’s moral culpability was appropriate by reason of his PTSD. Equally, the sentencing judge considered that the effects of the appellant’s PTSD warranted the moderation of the importance of general deterrence in sentencing. Furthermore, his Honour treated the appellant’s intoxication as a neutral matter, noting the circumstances of the present offence and the fact that the appellant was reacting to aggressive conduct on the part of the victim. Finally, as stated above, these factors are to be considered in the light of the fact that is was consistent with the jury’s verdict that, although the appellant believed, at the time he inflicted the fatal wounds on the victim, that it was necessary for him to do in self-defence, it was an unreasonable response in the circumstances as the appellant perceived them: R [14].

56. The sentencing judge concluded that the appellant’s moral culpability was in the lower half of the mid-range: R [23]. The appellant correctly concedes that this overall finding as to culpability was open to the sentencing judge

57. In considering the risk the appellant posed to the community, the sentencing judge considered the report of Dr Allnutt dated 20 July 2021. Dr Allnutt opined that if the appellant remained engaged in psychiatric/psychological treatment and remained abstinent from substances in the community, his risk is manageable; however, his risk would increase if he were to relapse into substance use. The sentencing judge concluded (at [34]):

It is clear beyond any doubt that you need to stop consuming alcohol and illicit drugs such as methylamphetamine. You cannot afford to take the risk of using intoxicants against your background of underlying mental health conditions associated with your PTSD. You also need to seriously and rigorously address your PTSD by undertaking appropriate psychiatric and/or psychological treatment.

58. With regard to the appellant’s subjective circumstances, the sentencing judge expressly took into account, inter alia, the following subjective matters:

(a) the appellant had been subject to supervision by ACT adult corrections in the past, and his response to supervision was satisfactory;

(b) the appellant experienced anxiety as a child, and was diagnosed with Attention Deficit Hyperactivity Disorder and was, until recently, medicated;

(c) the appellant expressed regret and remorse for his actions;

(d) the appellant had been assaulted on several occasions in the AMC; and (e) the appellant understood that it is critical that he address his alcohol and drug abuse, and had undertaken multiple courses within the AMC directed towards your rehabilitation.

59. Taking into account all these circumstances, the sentencing judge concluded that a sentence of imprisonment was the only appropriate disposition for this offence, and noted that both the Crown and the appellant’s counsel urged the need for a lengthy parole period to ensure that the appellant is closely supervised as he attempts to comply with his treatment plan in the community: R [38].

60. Viewed in its totality, the approach of the sentencing judge was orthodox and unexceptionable. The result does not suggest manifest error. Indeed, in the light of the objective seriousness of the offence and the appellant’s subjective circumstances, the sentence imposed was well within the appropriate range of sentences open to the sentencing judge.

Orders

61. Counsel for the appellant cogently put everything he could put on behalf of the appellant, but it follows from the above that the appeal must be dismissed.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson and Justice Lee.

Associate:

Date: 31 May 2022