(2012) 225 A Crim R 481
Cahyadi v R [2007] NSWCCA 1
[2016] HCA 17
R v Burton [2008] NSWCCA 128
R v Hamid (2006) 164 A Crim R 179
[2006] NSWCCA 302
R v Mulato [2006] NSWCCA 282
R v Williams [2004] NSWCCA 246
(2004) 148 A Crim R 325
The Queen v De Simoni (1981) 147 CLR 383
Source
Original judgment source is linked above.
Catchwords
(2012) 225 A Crim R 481
Cahyadi v R [2007] NSWCCA 1[2016] HCA 17
R v Burton [2008] NSWCCA 128
R v Hamid (2006) 164 A Crim R 179[2006] NSWCCA 302
R v Mulato [2006] NSWCCA 282
R v Williams [2004] NSWCCA 246(2004) 148 A Crim R 325
The Queen v De Simoni (1981) 147 CLR 383[1981] HCA 31
Zreika v R [2012] NSWCCA 44
Judgment (10 paragraphs)
[1]
The applicant's subjective case
The applicant did not give or call any oral evidence. He relied upon the tender of a report by Dr Richard Furst, forensic psychiatrist, and letters by his himself, a sister, an uncle, and a friend.
Dr Furst's report included some disparaging statements made by the applicant about the victim to which the Crown took objection. Counsel for the applicant did not object to his Honour ordering that the Evidence Act 1995 (NSW) applied and making an order under s 136 to limit the use of such statements to the fact that the applicant had made them; they not being evidence of their truth. [1]
The judge noted that the applicant had been in a relationship for 16 years prior to his relationship with the victim. His Honour noted that the previous relationship had ended acrimoniously and he attributed blame to his former partner, "just as he sought to blame the present victim". The judge said he would "not give any weight to either of those untested assertions".
His Honour recounted that the applicant's upbringing was unremarkable. He left school in Year 10 and had been a hardworking man since. He had no alcohol, gambling or illegal drug issues, nor did he have any significant medical or other physical problems.
The judge found it "somewhat difficult" to determine whether there were any mental health issues. His Honour said that Dr Furst's opinion had been "constructed on an assumption of the accuracy of the history which has not been proved". He continued:
"[69] The offender, therefore, has not proved on the balance of probabilities any relevant mental health issues other than possibly the adjustment disorder with depressed mood noted by Dr Furst - but which is explicable by reference to his being detained in custody as much as anything else."
The applicant's criminal history was regarded as one that disentitled him to the leniency appropriate to first offenders. The applicant was aged 48 at the time of sentencing. Aside from offences as a juvenile there were convictions for assaults and assault occasioning actual bodily harm in 2005 and 2008 for which he received a fine, a suspended sentence of imprisonment, and a good behaviour bond. The applicant had served a prison term in 1989 for offences of larceny as a servant and illegally using a motor vehicle.
Relevant to the second ground of appeal is his Honour's rejection of submissions that the applicant was remorseful and his consideration of the applicant's rehabilitation prospects. He said:
"[72] It was submitted on behalf of Mr Moore that his belated pleas of guilty, and the contents of the references, would entitle the Court to conclude, on the balance of probabilities, that he was remorseful for his actions. The Court of Criminal Appeal has frequently observed that a sentencing Judge is entitled to regard with scepticism second hand expressions of remorse. This is how I regard those expressions in the instant case. The pleas of guilty were late. The statements to the relatives and friends are self-serving. I am not satisfied on the balance of probabilities that those second hand expressions of remorse are, in fact, genuine as opposed to Mr Moore being sorry for the position in which he finds himself.
[73] Remorse is one factor to be taken into account in relation to assessing an offender's prospects for rehabilitation.
[74] Another factor is why it was that an offender in fact offended as he did. There is no clear explanation for that in the present case. This is a very concerning matter.
[75] Other factors are an offender's involvement with alcohol or illegal drugs, other like criminal offending, his work history, and the strength of his family support.
[76] On balance, I regard Mr Moore's prospects for rehabilitation as being guarded. They would not, however, be enhanced by a longer period on parole. And in any event the sentence to be imposed will have a significant period on parole."
The judge said that "both general and specific deterrence are fully engaged".
His Honour allowed for a reduction of 10% for the applicant's pleas of guilty, noting that they were entered late.
He backdated the aggregate sentence to 10 November 2016 because the applicant had been in custody since his arrest. [2]
[2]
Ground 1 - error in assessment of objective seriousness of Counts 1 and 4
The judge said the following as to the objective seriousness of the offences:
"[61] In terms of the objective seriousness for offences of their kind, in my opinion, the first offence is at the mid-range, the second offence is just below the mid-range, and the third offence is significantly into the upper-range.
[62] The first and second offences are aggravated by the actual or threatened use of a weapon. Each of the offences is aggravated by the very substantial harm to the victim's life generally."
[3]
Count 1 - causing grievous bodily harm with intent to do so
Counsel for the applicant accepted that the threat of harm to the victim was significant, but the actual injuries she sustained were towards the lower end of the scale of "grievous bodily harm". Counsel also accepted that this offence was aggravated by the degree of planning and in this regard, she referred to "creating the weapon, bringing it to the location and using it during the offence". [3]
It was submitted that the "appropriate" finding in respect of the grievous bodily harm offence in Count 1 was "below the mid-range of objective seriousness".
The submissions included a comparison of the term of the indicative sentence (8 years reduced by 10% to 7 years, 2 months) with the prescribed standard non-parole of 7 years. If such a comparison was useful (which, with respect, I do not accept), it is more relevant to Ground 3 of the appeal (manifest excess).
The Crown identified a concession made by counsel who appeared for the applicant in the District Court in the following exchange with the sentencing judge: [4]
"RAJALINGAM: … I'm talking about count 1. I don't understand my friend to be suggesting that this is the worst case category, in the worst case category of offending. It's up there. It's a matter for the Court.
HIS HONOUR: Yes. He made a weapon. He went to the trouble of making a weapon and then drove and lay in wait. It's over the midrange and significantly so.
RAJALINGAM: Yes. I don't wish to be heard in relation to that aspect unless my friend is suggesting it's a worst case category."
There is force in the Crown's contention that the Court would be wary about entertaining submissions that are contrary to the manner in which the case was conducted in the court below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460.
Counsel for the applicant's attention was drawn to authority in this Court for the proposition that there is a breadth of conduct and consequences comprehended by s 33. Johnson J cited R v Williams [2004] NSWCCA 246; (2004) 148 A Crim R 325 at [51]; Heron v R [2006] NSWCCA 215 at [54] for this proposition in AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481 at [69]. His Honour also (and helpfully) reviewed the variety of factors that may bear upon the seriousness of such an offence (at [68]-[74]).
Counsel accepted that aside from the level of gravity of the victim's injuries there were a number of aspects of the applicant's offence that rendered it a serious example of its type. However, she placed great emphasis on the level of injuries and maintained her submission that the judge's assessment was erroneous.
The factors that rendered this offence as one of significant seriousness include that the applicant clearly planned his attack by constructing the weapon he used and by attending the victim's residence to lie in wait for her at an early hour of the morning. His attack was sustained and brutal and inflicted substantial pain and suffering with enduring consequences; consequences which must constantly remind the victim of her horrific ordeal. [5]
The attack upon the victim was unprovoked, uncalled for, and unjustified. It occurred in the context of the agreed fact that the relationship had ended and the victim had cut off contact with the applicant, something he apparently could not accept.
Counsel for the applicant has raised a valid point in relation to the characterisation of the objective seriousness of an offence contrary to s 33 of the Crimes Act. The relative gravity of harm caused is a pertinent aspect and here it is less than can be encountered in other cases. But this is not determinative.
The assessment of the objective seriousness of an offence has been said to involve a "broadly based discretion", and is "classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts": R v Mulato [2006] NSWCCA 282 at [37] (Spigelman CJ, with the concurrence of Simpson J at [46]).
The finding that this offence fell within the mid-range was one that was well open to be made.
[4]
Count 4 - Use offensive weapon with intent to commit an indictable offence, namely intimidation
Counsel for the applicant submitted that the assessment of the objective seriousness of this offence would involve consideration of the type of weapon used, the purpose of the presence or use of the weapon, the intention, and any harm caused (without breaching the principles in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31).
Counsel submitted that whilst the weapon was a car, the purpose of its use was to intimidate the victim, and the threats of harm to this effect shortly prior to the "accident" make out the essential element of the offence. However, it was submitted that the offence occurred "spontaneously" and the acceleration towards the power pole only occurred for a few seconds with the brake being applied just before impact. Moreover, it was noted that the victim did not sustain any injury. [6] These submissions were maintained and emphasised at the hearing.
The applicant's contention was that the assessment of objective seriousness for this offence should have been one of "well below mid-range". [7]
This offence needs to be viewed in its entire context. It occurred after the victim had been bashed repeatedly to the head and body with a pole, sustaining grievous bodily harm. She was then held captive by the applicant for the next four hours as he drove around various suburbs of Sydney, in the course of which he made threats that he would end his or both their lives. She was concussed, vomiting, and screaming. She tried to escape, but was forcibly dragged back inside as the car was driven away.
When they arrived back at Westmead he announced, "I'm going to kill us both" and drove at the power pole. The fact that he backed off from applying maximum acceleration a brief moment before impact, and applied the brake (whether deliberately or intuitively for self-preservation is unknown) a split second before impact is of very little significance. Using a weapon with intent to intimidate someone will often not take much time. But in this case, after all that had occurred in the preceding hours, the form and level of intimidation of the victim was extreme.
The judge's finding that the objective seriousness of this offence was "significantly into the upper range" was well supported by the evidence and one that was well open to be made.
[5]
Conclusion
As the findings of objective seriousness of each of the offences in Counts 1 and 4 were open to be made, Ground 1 must be rejected.
[6]
Ground 2 - assessment of prospects of rehabilitation and likelihood of re-offending
Counsel for the applicant submitted that there were a number of positive matters that should have led to a finding that the applicant had "good or excellent prospects of rehabilitation" and that he was "unlikely to reoffend". [8]
Counsel listed the following factors as warranting a finding far more favourable to the applicant than his Honour's conclusion that the prospects of rehabilitation were "guarded": [9]
(a) Support of his sister, aunty, uncle and long-term friends.
(b) Limited criminal history.
(c) Engagement with a psychologist in custody.
(d) No evidence of prior domestic violence with the victim or other previous partner.
(e) Lack of major mental illness.
(f) No substance abuse issues.
(g) No antisocial values.
(h) Strong work history, both prior to incarceration and also in custody.
(i) Lack of gaol infringements.
(j) Assessment of Dr Furst confirming low risk of reoffending.
The opinion of Dr Furst last mentioned was rejected because the sentencing judge was not prepared to accept the "contextual or exculpatory" history that the applicant had provided the doctor. There is nothing unreasonable about his Honour accepting that approach.
It is true to say that there was no evidence of prior domestic violence in the applicant's previous relationship, but the judge noted that it ended acrimoniously and that in the history provided to Dr Furst, the applicant attributed blame on his former partner for the ending of the relationship, just as he had sought to blame the present victim in a fashion contrary to the agreed facts.
The judge specifically referred to a number of other matters in the list above: no alcohol, gambling or illegal drug issues; no proven relevant mental health issues; a criminal history as a juvenile that was not held against him, and adult convictions for offences that the judge accepted were not serious. Further, it is clear that the judge had regard to the applicant's work history and his family support.
In oral submissions, counsel attempted to characterise the applicant's motivation for the offending as deriving from his perception of having been mistreated by the victim during their relationship. She acknowledged that it was open to the judge to give minimal weight to the account given to Dr Furst, but submitted that the agreed facts provided some explanation, albeit not an excuse, for the offending. She acknowledged that there was no (acceptable) evidence that the applicant's perception was correct. [10]
Engagement with a psychologist while in custody was further emphasised in oral submissions in this Court, but that was dependent upon the applicant's account to Dr Furst; there was no report from the psychologist. Assuming there was such engagement, there was no evidence as to whether it had anything to do with identifying the causes of the applicant's offending or directed to the avoidance of reoffending. One of the authors of a reference which was in evidence had written that the applicant had "sought counselling to manage his emotions", but the applicant's letter to the judge said nothing about that.
The judge was right to be concerned about the lack of a clear explanation for why the applicant offended as he did. In the absence of any oral evidence, the documentary material provided a flimsy basis for the applicant to discharge his onus of establishing these mitigating factors on the balance of probabilities.
The judge's approach to these issues was entirely open on the evidence. I would reject Ground 2.
[7]
Ground 3 - manifest excess
Counsel's submissions in respect of this ground relied, in part, upon the success of the previous grounds. They also included a contention that the applicant's expressions of remorse should have been accepted but there is no ground of appeal asserting such error and, more importantly, it was perfectly open to the judge to reject a claim of remorse based upon untested self-serving statements.
Statistics and an examination of other cases were said to support the proposition that the indicative sentences and the aggregate sentence were all manifestly excessive.
The reliance upon statistics does not assist the applicant. Handed up at the hearing of the application were statistics compiled by the Judicial Commission of New South Wales for "Aggregate/Effective - Terms of Sentence" imposed for each of the three offences. The Commission's website provides an explanation of the composition of such statistics. [11] What was provided to the Court are aggregate or total effective sentences imposed in multiple offence sentencing exercises but for completeness they also include sentences imposed for a single offence. But where they are for aggregate or total effective sentences, counsel for the applicant has not provided the Court with any information as to what the other offences were, and what the actual sentence for the offence in question was.
There are other problems with the applicant's reliance upon statistics. They include, that where an offender has pleaded guilty and received some reduction of sentence on that account, what the extent of the reduction was. In this case, the applicant's indicative sentences were reduced by 10%. How are they to be compared with other sentences (assuming that were possible) where there is a question as to whether such sentences were reduced and, if so, by how much?
The comparative exercise with other cases is also attended by difficulties; the first of which is that there are only three cases.
Secondly, the summary provided of the case of Majzoub v R [2019] NSWCCA 94 only refers to six offences for which the offender was sentenced after trial. There were an additional five offences to which the offender had pleaded guilty that were included in the aggregate sentence imposed. The mixture of offences is different to that in the present case. Further, none involved a maximum penalty as high as 25 years as the offence in Count 1 in the present case does.
Thirdly, in Nguyen v R [2019] NSWCCA 87, there were three offences: aggravated kidnapping occasioning actual bodily harm; intimidation; and assault occasioning actual bodily harm. There was no grievous bodily harm and no offence with a maximum penalty of 25 years or a standard non-parole period.
Finally, in R v Burton [2008] NSWCCA 128, counsel for the applicant invites this Court to make a comparison with a sentence imposed by this Court (differently constituted) upon upholding a Crown appeal. Discounts for pleas of guilty were all greater than in this case. The maximum penalties for the offences were lower and there were no standard non-parole periods. Moreover, the resentencing by this Court factored in the double jeopardy principle which was subsequently abolished by the insertion of s 68A into the Crimes (Appeal and Review) Act 2001 (NSW) on 24 September 2009. [12]
At the hearing, counsel for the applicant acknowledged the limited utility of the cases and the statistics "because they're a blunt tool". [13] That acknowledgement was appropriate.
The maximum penalties and, in relation to Count 1, the standard non-parole period, are relevant guideposts to assess the indicative sentences. The aggregate sentence must be one that was open to be imposed in the application of the principle of totality; as to the latter see Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64].
Given the gravity of the applicant's offending and the findings by the judge as to objective seriousness, with full recognition of the force of the mitigating factors that stood in the applicant's favour, I am not of the view that there was any error in the manner in which the indicative sentences were assessed. A sentence of 8 years as the starting point for a "mid-range" offence for which the maximum penalty is 25 years; 6 years for a "just below mid-range" offence for which the maximum penalty is 20 years; and 8 years for a "significantly into the upper range" offence for which the maximum is "10 years" were within the discretion of the sentencing judge. I have put the "10 years" in quotation marks because that is what the judge was led by the Crown to think was the prescribed maximum; it is in fact 12 years.
More pertinently for the appeal (because it is against the aggregate sentence only), I am not of the view that there was any error in the degree by which the indicative sentences were partially (notionally) accumulated. The discounted sentences of 7 years and 2 months, 5 years and 5 months, and 7 years and 2 months required a reasonable degree of partial accumulation. This is clearly not a case in which the sentence for one offence could comprehend the criminality of any of the other offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27].
Ground 3 must be rejected.
[8]
Orders
I propose the following orders:
1. Time to file Notice of Application for Leave to Appeal is extended to 25 July 2019.
2. Leave to appeal against sentence is granted.
3. The appeal is dismissed.
[9]
Endnotes
Proceedings on Sentence, 17 July 2018, p 7(46).
The arrest in fact occurred on 11 November 2016.
Applicant's written submissions (AWS), par 64.
Proceedings on Sentence, 17 July 2018, p 16(32).
It is unsurprising that the victim impact statement said as much.
AWS at pars 78-81.
AWS at pars 82.
AWS at par 90.
His Honour's reasons for this conclusion have been quoted earlier at [35].
Tcpt, 16 October 2019, pp 11-12.
"Explaining the Statistics", , accessed 29 October 2019.
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 (NSW).
Tcpt, 16 October 2019, p 14(45).
[10]
Amendments
05 November 2019 - Name of Crown amended
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 November 2019
Parties
Applicant/Plaintiff:
Moore
Respondent/Defendant:
R
Legislation Cited (5)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009(NSW)
Solicitors:
Velasquez Legal (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2016/337006
Decision under appeal Court or tribunal: District Court
Citation: R v Paul Phillip Moore [2018] NSWDC 228
Date of Decision: 24 August 2018
Before: Colefax SC DCJ
File Number(s): 2016/337006
[This headnote is not to be read as part of the judgment]
Mr Paul Phillip Moore (the applicant) pleaded guilty to three offences: cause grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) Crimes Act 1900 (NSW) (Count 1); detain with intent to obtain an advantage, namely a psychological advantage, and immediately beforehand occasion actual bodily harm, contrary to s 86(2)(b) (Count 2); and use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1)(a) (Count 3).
The course of conduct in which the offences were committed began when the applicant ambushed his ex-partner outside her house, beating her around the head and body with an improvised metal pole. He then forced the victim into her own car, which he proceeded to drive around the suburbs of western Sydney, all the while making threats to kill himself, or to kill them both. On one occasion, the victim tried to escape when the car was stopped at a set of traffic lights, but the applicant pulled her back into the car by her ponytail. The ordeal ended four hours later when the applicant crashed the car into a telephone pole.
The applicant was sentenced to imprisonment for 12 years, with a non-parole period of 9 years. He raised three grounds in his application for leave to appeal against his sentence:
1. The sentencing judge erred in his assessment of the objective seriousness of Counts 1 and 4.
2. The sentencing judge failed to accurately assess the applicant's prospects of rehabilitation and likelihood of reoffending.
3. The sentence imposed is manifestly excessive.
The Court (Macfarlan JA, Johnson J and R A Hulme J) granted leave to appeal, but dismissed the appeal, holding:
(1) The sentencing judge did not err in his assessment of the objective seriousness of Count 1 because:
(a) There is a breadth of conduct and consequences comprehended by s 33: [1] (Macfarlan JA), [2] (Johnson J), [51] (R A Hulme J).
AM v R [2012] NSWCCA 203; (2012) 225 A Crim R 481 at [69] (Johnson J), citing to R v Williams [2004] NSWCCA 246; (2004) A Crim R 325 at [51], Heron v R [2006] NSWCCA 215 at [54], referred to.
(b) Factors increasing the seriousness of the offence included planning, duration, brutality, infliction of pain, lack of provocation, and that it occurred in the context of the ending of a domestic relationship. The gravity of the injury caused is a pertinent, but not determinative, aspect of the assessment of the objective seriousness of a s 33 offence: [1] (Macfarlan JA), [2] (Johnson J), [53]-[55] (R A Hulme J).
(2) The sentencing judge did not err in his assessment of the objective seriousness of Count 4 because:
(a) That the offence occurred spontaneously and involved a few seconds of accelerating a car and then braking is of little significance when viewed in its entire context. Using a weapon with intent to intimidate someone will often not take much time: [1] (Macfarlan JA), [2] (Johnson J), [59]-[62] (R A Hulme J).
(3) The sentencing judge did not err in making findings about the applicant's prospects of rehabilitation and risk of re-offending:
(a) It was open on the evidence for the judge to approach the issues relating to the establishment of mitigating factors in the way he did: [1] (Macfarlan JA), [2] (Johnson J), [70], [72] (R A Hulme J).
(4) The sentence imposed was not manifestly excessive because:
(a) Statistics and cases are of limited utility where the materials lack key information or where the case is not directly comparable: [1] (Macfarlan JA), [2] (Johnson J), [76]-[82] (R A Hulme J).
(b) There was no error in the manner in which the indicative sentences were assessed having regard to the maximum penalties and the standard non-parole period (in relation to Count 1): [1] (Macfarlan JA), [2] (Johnson J), [83]-[84] (R A Hulme J).
(c) There was no error in the degree by which the indicative sentences were partially accumulated, as it was clearly not a case where the sentences for one offence could comprehend the criminality of any of the other offences: [1] (Macfarlan JA), [2] (Johnson J), [85] (R A Hulme J).
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, referred to.
Judgment
MACFARLAN JA: I agree with R A Hulme J.
JOHNSON J: I have had the advantage of reading the judgment of R A Hulme J. I agree with his Honour's reasons and proposed orders.
These additional observations relate to the claim of manifest excess. The applicant committed a combination of serious offences against the victim, all of which emanated from a relationship which had ended. The applicant used a combination of physical violence and the infliction of fear and extreme psychological distress against the victim in a course of criminal conduct which occupied several hours. Understandably, the victim feared for her life at various points along the way of this terrifying morning.
The applicant had no entitlement to intrude upon the victim's life at all given the end of their relationship, let alone commit serious crimes of physical and psychological violence against her.
These were domestic violence offences committed against a former partner. The offences reflected the applicant's exercise of control and domination over the victim, these being common features of domestic violence offences: Cherry v R [2017] NSWCCA 150 at [76]-[77].
As the sentencing Judge observed, specific and general deterrence were important factors on sentence in this case together with the requirement for powerful denunciation by the community of such conduct and recognition of the harm done to the victim as a result of these offences: R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302 at [86]; Cherry v R at [76].
The applicant's offences called for an appropriately stern sentencing response to mark the gravity of the offences and to serve the purposes of sentencing contained in s.3A Crimes (Sentencing Procedure) Act 1999. The aggregate sentence was not manifestly excessive.
R A HULME J: Paul Phillip Moore (the applicant) has applied for leave to appeal in respect of a sentence imposed in the District Court at Parramatta.
When an indictment was presented on 13 February 2018, the applicant pleaded guilty to the offences in Counts 1 and 2, not guilty to an offence in Count 3, but guilty to an alternative offence in Count 4. The Crown accepted those pleas in full satisfaction of the indictment.
On 24 August 2018, his Honour Judge Colefax SC imposed an aggregate sentence of imprisonment for 12 years with a non-parole period of 9 years.
The details of the offences, including the sentences the judge would have imposed if he were not imposing an aggregate sentence, were as follows:
Count 1
Cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for such an offence is 25 years and there is a standard non-parole period of 7 years.
Indicative sentence: 7 years, 2 months with a non-parole period of 5 years, 4 months.
Count 2
Detain with intent to obtain an advantage, namely a psychological advantage, and immediately beforehand occasion actual bodily harm, contrary to s 86(2)(b) of the Crimes Act. The maximum penalty is 20 years.
Indicative sentence: 5 years, 5 months.
Count 4
Use offensive weapon with intent to commit an indictable offence, namely intimidation, contrary to s 33B(1)(a) of the Crimes Act. The maximum penalty is 12 years.
Indicative sentence: 7 years, 2 months.
The indicative sentences were 10% less than they otherwise would have been because of the utilitarian value of the applicant's pleas of guilty.
The Notice of Application for Leave to Appeal was filed two days out of time and so the applicant seeks an extension. The application should be granted as the delay was very slight and the Crown does not oppose it.
The applicant seeks leave to appeal on the following grounds:
1. The sentencing judge erred in his assessment of the objective seriousness of Counts 1 and 4.
2. The sentencing judge failed to accurately assess the applicant's prospects of rehabilitation and likelihood of re-offending.
3. The sentence imposed is manifestly excessive.