R v Strezovski [2007] VSCA 260

Court of Appeal (Vic)|2007-11-21|Before: VINCENT, REDLICH, KELLAM JJA

Criminal law - Sentencing - False imprisonment - Attempted thefts - Thefts - Parity - Whether Tsiaras principles applied - Whether ill health taken into account sufficiently - Whether insufficient allowance for Renzella pre-sentence detention - Application to rely upon fresh evidence refused - Manifest excess - Appeal dismissed.

1 I agree, for the reasons advanced by Kellam JA, that the appeal against sentence should be dismissed.

2 For the reasons of Kellam JA which I have read in draft, I also would dismiss the appeal against sentence.

**3 On 13 March 2007, in the County Court at Melbourne, the appellant pleaded guilty to one count of false imprisonment (count 1), one count of attempted theft (count 2), and one count of theft (count 3).

4 The appellant was 33 years of age at the time of sentencing. He admitted to six prior convictions. In April 2002 he had been convicted of offences of burglary and theft and of particular relevance was the fact that on 18 September 2002 at the County Court at Melbourne he had been convicted of robbery, causing injury intentionally and theft of a motor car and sentenced to a term of imprisonment of 18 months with nine months of such sentence being partially suspended for a period of two years.

5 After hearing a plea in mitigation on 20 April 2007, the sentencing judge imposed the following terms of imprisonment on 4 May 2007:**

His Honour directed that four months of the sentence imposed on count 2 and two months of the sentence imposed on count 3 be served cumulatively upon the sentence imposed upon count 1 and upon each other. This created a total effective sentence of 21 months. His Honour ordered that nine months of the term of imprisonment be partially suspended for a period of two years, leaving a period of 12 months' imprisonment to be served immediately. A period of 14 days was calculated as pre-sentence detention.

6 Having been granted leave to appeal his sentence on 3 August 2007, the appellant now seeks to overturn the sentence imposed upon him and relies upon 11 separate grounds, a number of which are, in effect, no more than particulars of ground 1. That ground contends that the individual sentences imposed are manifestly excessive, as is the term of imprisonment ordered to be served before the balance of the sentence is to be suspended. I shall return to the detail of the grounds of the appeal after I have described the circumstances of the appellant's offences.

**7 At approximately 2 am on Sunday 7 September 2003 the victim was walking along Brighton Road St Kilda. The appellant's co-offender, Samantha Butler, was driving a two-door Hyundai motor vehicle. That car was registered in the appellant's father's name. Butler stopped the car alongside the victim and offered him a lift home. The victim accepted that offer and entered the vehicle. Butler then executed a u-turn and subsequently headed towards St Kilda, that is to say, in the opposite direction from where the victim wished to go. Soon thereafter she produced a long-bladed knife, threatened the victim and demanded his watch, wallet and keys. He complied. Butler demanded that the victim provide her with the PIN number of the victim's EFTPOS card and made a number of mobile telephone calls as she drove to St Kilda. As she did this she slapped the victim's right thigh with the knife causing him to suffer a small cut over the knuckles of his right hand. Subsequently she drove to a house in St Kilda where she stopped. The appellant and another unknown male entered the car and sat in the rear seat, the victim remaining in the front passenger seat.

8 The appellant and the unknown male remained seated in the rear seat whilst the car was driven by Butler to various locations around Melbourne. Between the hours of 7.33 am and 10.04 am a total of 26 attempts to steal money from the victim's account with the National Bank was made by Butler attending at automatic teller machines in various suburbs including South Melbourne, Port Melbourne and Williamstown. While she did so the victim remained in the car with the appellant and the unknown male sitting in the rear. The Crown case is that the appellant was acting in concert with Butler in the course of her attempts to steal money using the victim's EFTPOS card. The total attempted theft amounted to $2,980. Count 2 relates to those attempted thefts and is a rolled-up count.

9 The third count of theft is a rolled-up count relating to four successful withdrawals from two ATMs by Butler. The total amount of the thefts was $710. The Crown case in relation to count 3 was that the appellant was acting in concert with Ms Butler.

10 The victim stated that during the attendances at each of the ATMs the male seated behind him, who was the unknown male, had held the seatbelt worn by the victim so tightly that he was strapped back into his seat. That male also held his left hand on the doorknob of the passenger door so that he could not open it. The victim was told that under no circumstances was he allowed to look sideways or upwards and he was told he was to keep his head down at all times.

11 In the course of the morning Butler drove the car to a Shell service station near the Westgate Bridge. As Butler attempted to attend the ATM at that service station for the purpose of further attempted theft, the victim was told by one of the men to get into the rear seat of the car. The appellant moved from the rear of the car into the driver's seat whereupon the victim climbed over him and was able to escape out of the driver's side door. He yelled for help from nearby members of the public. Butler returned to the car and sat in the passenger seat with which the appellant drove the car away at a fast rate of speed. Count 1 relates to the period of time that the victim was in the car from the time the appellant entered the car until the escape of the victim.

12 The appellant was arrested by police on 8 July 2004 when he attended at the St Kilda Criminal Investigation Office by prior arrangement. It is apparent that Butler had been interviewed earlier and charged with offences arising out of the events of 7 September 2003. Upon being interviewed, the appellant admitted being present in the car in the course of the morning of that day, but denied any knowledge of, or involvement in, the crimes. He said he had no recollection of Butler getting out of the car to go to any ATM. He recalled the victim being in the car but denied having had any conversation with him. He said that most of the time in question he was sleeping, being then under the influence of heroin. He said that the keys to his father's car had been loaned to Butler by the unknown male without his knowledge.**

**13 The appellant was aged 30 years as at the date of the commission of the offences. He was born in Australia, his parents being Macedonian. The family returned to live in Macedonia when the appellant was aged 10 years. He left school at approximately 15 years of age and attended trade school and then commenced work as a boiler maker. During this time civil war erupted in the area where he lived in Macedonia and, in 1992, in order to avoid national service he escaped to Bulgaria and soon thereafter came to live in Australia with his fraternal uncle. He was then aged 19 years. He worked thereafter as a labourer for a period of time.

14 A psychological report prepared by Ms Carla Lechner and dated 11 April 2007 was tendered before his Honour. It contained a history provided by the appellant that subsequent to his return to Australia he was 'close to coming to becoming engaged' but that prior to the engagement the relationship had ended. The appellant provided a history to Ms Lechner that his proposed fiancé had psychological problems but 'to avoid embarrassment' her family spread rumours that he was a drug user and had cheated on her. This was said by the appellant to mark the start of his depression. The appellant informed Ms Lechner that approximately one year after the ending of this relationship he stopped working, began associating with 'the wrong people' and started using drugs. The appellant provided a history that at first he was a cannabis user but later became a heroin user. During the first 18 months of his heroin use he smoked heroin, but thereafter for a further 18 months he used heroin intravenously. During this period he was unable to sustain employment and he said it was during this period that the offences in question took place. Ms Lechner's report stated that after being charged with the offences now under consideration, the appellant was remanded, 'this marking the end of his drug habit'. Her report noted that the appellant had been stabilised on a methadone program for some time. She stated that the appellant had suffered anxiety and depression for a number of years but that this had not been diagnosed until 2005 when the appellant was assessed by a psychologist, Mr Mackinnon. It would appear that subsequently the appellant was referred to a psychiatrist, Dr Lewis, in early 2006. Although reports of both Mr Mackinnon and Dr Lewis dated 12 October 2005 and 12 April 2006 respectively were provided to Ms Lechner, they were not tendered before his Honour. Moreover, it should be observed that Ms Lechner was of the understanding that the appellant had no prior criminal history. In addition, the version provided to her by the appellant of the circumstances of the offence was that he got into the car driven by Butler and that he believed the victim was a 'customer' of hers and that she intended to drop him off somewhere.**

**15 The grounds of appeal upon which the appellant relies are as follows:

1. The individual sentences imposed are manifestly excessive as is the term of imprisonment to be served before the balance of the sentence is suspended.

2. The degree of cumulation of the sentences imposed upon counts 2 and 3 upon the head sentence, count 1, is excessive.

3. The sentences imposed infringe the principle of parity in that they fail to adequately reflect the differences in role and matters personal as between the appellant and the co-accused Butler.

4. The learned sentencing judge erred in that he failed adequately or at all to apply the principles enunciated in Tsiaras (and later explained in Verdins) in respect of the appellant's mental state at the time of offending and at the time of sentencing.

5. The learned sentencing judge erred in that he failed to have adequate or any regard to the appellant's addiction to heroin.

6. The learned sentencing judge erred in that he failed to give any weight to the evidence of the effect of the appellant's ill health and disabilities upon the question of whether or not those factors would make imprisonment more burdensome to the appellant.

7. The learned sentencing judge erred in that he failed to give sufficient allowance for the term of imprisonment (three months) served by the appellant upon charges of which he was later acquitted.

8. The learned sentencing judge failed to give appropriate weight to the matters put in mitigation, inter alia:

c. to the appellant's further prospects of rehabilitation;

9. The learned sentencing judge erred in that he failed to give sufficient weight to the plea of guilty and the timing thereof.

10. The learned sentencing judge erred in concluding that in this case 'general deterrence is the most important consideration ... '.

16 In addition and by ground 11 the appellant seeks leave to rely upon evidence which was not before the sentencing judge relating to a back injury suffered by the appellant in April 2007 as a result of a fall, and whilst he was in custody. The fall resulted in a disc protrusion. The injury was suffered between the date of the plea and the date of sentence. It is submitted that the nature and the extent of the injury were not known at the time of the sentence and thus a matter which properly impacts on the question of the burden of the appellant undergoing imprisonment was not taken into account. Leave is sought to adduce evidence in support of this ground.

17 It is convenient to deal with the grounds asserting specific error and the matters raised by ground 11 before returning to the question of manifest excess raised by ground 1.

18 Ground 3 is that the sentences imposed infringe the principle of parity in that they fail to reflect adequately the differences in the role in the offending and matters personal as between the appellant and the co-accused Butler.

19 It is submitted that the culpability of the appellant is of a relatively low order compared with that of Butler. First it is argued that the appellant joined in the offence of false imprisonment at a time when that offence had been in progress for some considerable time in connection with Butler. Secondly it is submitted the evidence is that the appellant did very little 'in terms of any direct contact' with the victim who was falsely imprisoned. It is submitted that the count of attempted theft which attracted a term of imprisonment of six months involved a total sum of $2,980 and that it was the co-accused Butler who attempted to use the EFTPOS card physically. It is submitted further that insofar as the count of theft is concerned that the fact that the thefts were carried out physically by Butler and that there is no evidence that the appellant received any of the stolen money, are relevant matters in terms of culpability, as is the fact that the appellant was affected by heroin and accordingly his judgement was affected adversely.

20 The appellant argues that Butler had 58 prior convictions including a number of convictions for crimes of violence as compared with his seven prior convictions. In addition reliance is placed upon the fact that Butler was not charged with attempted theft and that no part of her sentence on the theft count was made cumulative with the sentences imposed on other counts, as was the case with the appellant's sentence. It is submitted that when consideration is given to the fact that there were 88 days of imprisonment to be considered in favour of the appellant on a Renzella[1] basis, that the appellant 'received at least as heavy a sentence as Butler'. Reliance upon such a mathematical calculation is, of course, of little assistance. It was appropriate for his Honour, as he did, to give consideration, to such 'dead time'. However as Callaway JA pointed out in R v Kotzmann:[2]**

There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody ...

21 In my view the argument advanced in support of error by way of disparity has little substance. First I reject the proposition that the culpability of the appellant was as limited as that submitted before us. By acting in concert with Butler in the false imprisonment of the victim, and in the attempted thefts and thefts in which she engaged, the appellant played a major part. Clearly the effect of his presence in the car ensured that Butler was able to access ATMs without the victim escaping from the car. Secondly, and although Butler did have a substantial criminal history, she also had an appalling background of institutionalisation, neglect and abuse from the age of 8 years. The sentencing judge observed that she was a socially isolated and vulnerable individual and that she had never had a long term stable relationship; such relationships as she had had being characterised by violence. Although it is true that the sentencing judge stated that the prospects of rehabilitation in her case were guarded, it is nevertheless apparent that the encouragement of such rehabilitation was at the forefront of the judge's sentencing considerations. Butler was sentenced to a term of imprisonment of 18 months on the count of false imprisonment and to imprisonment for nine months on the count of theft. She was not presented on a count of attempted theft, but she was sentenced to three years' imprisonment on a count of armed robbery and 12 months' imprisonment on a count of recklessly causing injury. After cumulation, including cumulation of six months of the term of imprisonment imposed on the count of false imprisonment on the term of imprisonment imposed on the count of armed robbery, Butler was sentenced to a total effective sentence of imprisonment for four years for her part in the offending. In addition one year of a restored suspended sentence relating to unrelated matters was ordered to be served cumulatively upon that sentence making a total effective sentence of five years of which three years were directed to be served before Butler became eligible for parole. Obviously issues of totality were of particular relevance in the sentencing of Butler. In my view it is not appropriate to dissect the individual sentences and the cumulation applied in Butler's case, which involved altogether different sentencing considerations, in order to assert disparity. On the appellant's plea his counsel submitted that the 'notional maximum' penalty to be imposed on the count of false imprisonment was 18 months' imprisonment, and on the count of theft was nine months imprisonment. In my view the individual sentences imposed upon the appellant and the effective head sentence of 21 months' imprisonment, nine months of which was suspended, cannot be said to reflect disparity or to justify any sense of grievance on the part of the appellant.

22 This ground is that the sentencing judge failed 'adequately or at all' to apply the principles enunciated in Tsiaras[3] (as later explained in Verdins[4]) in respect of the appellant's mental state at the time of offending and at the time of sentencing. The evidence before his Honour as to the mental state of the appellant consisted of a psychological report prepared by Ms Carla Lechner in respect of her examination of the appellant on 5 April 2007. Ms Lechner obtained a history from him that the break up of the appellant's relationship marked 'the start of his depression'. She said in her report:

Mr Strezovski stated that he has been suffering anxiety and depression for a number of years, but that this was not diagnosed until 2005 when he was assessed by Mr Mackinnon. He did not receive treatment, however, until he saw Dr Lewis in 2006. He was trialled on a number of anti-depressant medications, but this did not alleviate his symptoms. He is now not taking medication, but remains low in mood.

She considered that the appellant presented with symptoms consistent with a dual diagnosis of heroin dependency and clinical depression.

23 In the course of the plea before his Honour counsel for the appellant submitted that:

In the context of someone who has been suffering depression for a long period of time, no doubt used drugs in the period that he did use drugs to in some way self-medicate that condition, a person who has stopped using drugs and is seeking treatment for his depression and anxiety which he is, that in that context there has to be some moderation of the principles of general and specific deterrence as part of the overall rehabilitative regime.

24 His Honour referred to the submission made by counsel for the appellant in the following terms:

Mr Mandy relied upon the principles set out in the well known passage in R v Tsiaras [1996] VicRp 26; (1996) VR 398, however, that is a case where the prisoner suffered serious mental illness. Mr Mandy submitted mental illness per se called for application of these principles and cited the recent decision of R v Sebalj [2006] VSCA 106 namely to what extent your condition can be shown to have affected your mental capacity at the time of this offending. This has not been established. In the history taken by Dr Lechner she notes your use of heroin just prior to the offending and that you were "on the nod" or "half asleep". This assertion is at odds with your active participation in the crime that lasted some two to three hours. Ms Lechner notes that your anxiety and depression followed the break up of your relationship. That may be so as your condition was not apparently diagnosed until 2005, but it was not until last year that another practitioner, Dr Lewis, began your treatment thereafter.

**25 Verdins had not been decided as at the date of the sentencing of the appellant. As was noted in Verdins, the sentencing principles associated with Tsiaras are not, and were not intended to be, applicable only to cases of serious psychiatric illness. What matters in any given case is not the label to be applied to the psychiatric condition, but whether and to what extent the condition can be shown to have affected the offender's mental capacity at the time of offence or at the time of the sentence. His Honour was not satisfied that the condition of anxiety and depression to which Ms Lechner referred did affect the mental capacity of the appellant at the time of the offending. In my view he was entitled to come to this conclusion. The evidence that the appellant suffered from impaired mental functioning by reason of any anxiety and depression as at the time of the offending and as at the time of sentencing was limited indeed. Such opinion as Ms Lechner was able to form as to the mental state of the appellant at the time of the offending was based entirely upon the history given to her by the appellant. Furthermore there was no evidentiary basis upon which his Honour could conclude that by reason of any mental impairment suffered by the appellant, a term of imprisonment might weigh more heavily on him than on a normal person, or that there was any serious risk of imprisonment having a significant adverse effect on his mental health.[5]

26 The history as provided to Ms Lechner was vague as to dates and times and as to detail of the effect of any anxiety and depression upon the appellant. Furthermore the description of the circumstances of the offence given by the appellant to her was palpably inconsistent with his plea of guilty to the offences on the presentment.

27 There was little evidence before his Honour that any anxiety and depression suffered by the appellant at the time of the offence was such that it reduced the moral culpability of the offending conduct. There was little evidence before his Honour as to the nature and severity of the symptoms exhibited by the appellant, and to the effect of those symptoms on the mental capacity of the appellant at the time of the offending. Furthermore, at the time of the report produced by Ms Lechner, it should be observed that the appellant had ceased to take all medication. He told Ms Lechner that he felt 'fine'. She observed that he was experiencing symptoms of depression and 'may need medical review or attendance for a second opinion with respect to appropriate medication'. In my view at the time of sentencing, the evidence of mental disorder or abnormality, or an impairment of mental function, which was of sufficient relevance to be the subject of the application of Tsiaras principles was scant indeed.**

28 A submission was made before his Honour upon the plea, and by supplementary memo following the plea but before the handing down of sentence, that the appellant was toothless in his upper jaw and that by reason thereof his burden of serving a prison sentence would be greater. No medical evidence was put before his Honour in support of that submission. His Honour dealt with this submission as follows:

Mr Mandy submitted, and by a supplementary memo, that since you are toothless in your upper jaw and therefore are unable to chew that this results in the need for you to take soft food. This, it is submitted, would make incarceration more burdensome for you than for co-prisoners. He also identified the consequences that your lack of upper jaw teeth would make it more difficult for you to communicate with other prisoners. The Crown does not accept that these consequences would follow. In R v Boyes [2004] VSCA 97 the Court of Appeal held that the true test was whether incarceration would be more burdensome upon the prisoner because of his condition than to remain free (see paragraphs 20 and 46). In that case the test was not satisfied. Later in R v Van Boxtel [2005] VSCA 175 this approach was not followed. Rather the test was whether the offender's ill health will make imprisonment a greater burden than a person of normal health. Later in R v Kovak [2006] VSCA 229 the Court of Appeal followed the Van Boxtel reasoning, so as I understand it the test is still undecided. Boyes has not been overruled. In any event I am not satisfied that your condition satisfies either test.

**29 R v Van Boxtel[6] makes it clear that there are two different ways in which ill health may be a factor mitigating punishment. They are those stated by King CJ in R v Smith:[7]

Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

30 In my view the sentencing judge did not fall into error in concluding, on the material before him that loss of teeth in the upper jaw of the appellant was not a medical condition that would make imprisonment a greater burden for the appellant.**

31 It is asserted on behalf of the appellant that the sentencing judge erred in that he failed to give sufficient allowance for the term of imprisonment served by the appellant upon charges, of which he was later acquitted. In the course of the plea, his Honour was informed that the appellant had been detained in custody between 1 March 2004 and 27 May 2004 in relation to unrelated charges of which the appellant was later acquitted. In his sentencing remarks and after having referred to mitigating factors, his Honour said:

In addition I recognise that you underwent a term of imprisonment of almost three months in 2004 for another matter of which you were found not guilty. I am obliged and do take that sentence of imprisonment into account when I determine what is the appropriate term of imprisonment in respect of these offences.

**32 It is submitted on behalf of the appellant that whilst his Honour said that he took such 'dead time' into account, the sentences actually imposed demonstrate that he did not, or did not adequately take into account the 88 days served in custody in relation to unrelated matters. Indeed it is submitted before us by counsel for the appellant that 'when one takes into account the three months' imprisonment served for offences of which the appellant was ultimately acquitted, one way of looking at the sentences would be to simply put that three months onto the sentences imposed'. It is argued that looked at in such a manner the effective sentence imposed by his Honour was 24 months with a term of 15 months' imprisonment to be served before suspension of the remaining sentences.

33 As stated above his Honour stated that he did take into account the period of detention served on remand by the appellant in relation to unrelated matters. However whether the full amount of such period of detention should be taken into account, as is assumed by the submission of the appellant now under consideration is another matter altogether. As stated above there can be no question that a person on remand who is subsequently acquitted should have what is in effect a 'bank balance' on which to draw in relation to subsequent offences.[8] As stated by Vincent JA in R v McMahon[9]:**

... reduction in an otherwise appropriate sentence to take account of what is often referred to as "dead time" is not a mathematical exercise and in a number (of cases) allowance has been made for less than the full period involved.

**35 On behalf of the appellant it is submitted that the sentencing judge erred in concluding that in this case 'general deterrence is the most important consideration...'.

36 In the course of his sentencing remarks and after referring to the submission made before him on behalf of the appellant that a sentence of imprisonment should be fully suspended, his Honour said:**

These are serious offences. You have previously undergone a sentence of imprisonment. While your rehabilitation is underway, and therefore the need for specific deterrence is to be moderated accordingly, it must still remain among those factors affecting my assessment of what an appropriate sentence is in this case. However, general deterrence is the most important consideration of the factors in this case. (The victim) was a soft target. He was terrorised by three offenders over a period of almost between two and three hours, and for an additional period prior to that by Butler. (Emphasis added.)

37 It is submitted by the appellant that by elevating general deterrence to the most important sentencing consideration his Honour failed to have sufficient regard to the other important matters which affected sentence. In my view there is nothing in this ground. His Honour gave consideration to the issues of rehabilitation, remorse, delay, the appellant's role in the offending and other matters personal to the appellant. In my view, in the circumstances of the case, his Honour was entitled to consider that the issue of general deterrence was the most significant of a number of factors considered by him in the synthesis of his sentencing function. The impugned statement of his Honour in that regard did no more than say that.

38 Ground 11 relates to evidence that the appellant suffered a back injury as a result of a fall between plea and sentence. Leave is sought to adduce evidence in support of this ground. By affidavit sworn 1 August 2007 the appellant's solicitor deposed that immediately prior to the handing down of the sentence and whilst the appellant was in the dock the appellant informed him for the first time of the injury sustained. The appellant said that he had sustained injury on either 28 or 29 April 2007 when he sat on a stool which collapsed under him. The sentencing judge was not informed of this matter. Subsequent to being provided with that information the solicitor for the appellant wrote to the medical officer at the Melbourne Assessment Prison advising of the appellant's complaint of back injury. By further affidavit of 13 November 2007 the appellant's solicitor exhibited a report from Dr Neville who, it would appear, is a general practitioner who provides medical services to Loddon Prison. Dr Neville examined the appellant recently and observed marked stiffness and local tenderness in the lower part of the his back. The CT scan obtained in June 2007 demonstrated a 'small to moderate posterior midline' disc protrusion at the L2-L3 level in addition to apophyseal joint arthritis producing moderately severe canal stenosis. Dr Neville states:

The import of this condition is that it is an acute injury and causes ongoing pain and stiffness. The swelling is likely to improve with time. In the interim, Mr Strezovski will continue to require pain relief using both simple analgesics (paracetamol for example) and opiate medications orally. He has been given certification of this condition and is permitted to work at selected tasks as long as he is accorded appropriate consideration, including rest breaks.

**39 The principles relating to the admission of 'fresh evidence' were spelt out by Redlich JA in R v Nguyen.[10] In limited circumstances, this Court may permit the leading of evidence of matters or events which have occurred since sentence was imposed to enable it to reconsider a sentence in the light of the additional evidence. In my view, the proposed fresh evidence does not throw significant new light on facts which existed at the time of sentence,[11] nor would it justify the interference of this court in the sentence imposed.

40 Accordingly, I would not grant leave to admit the fresh evidence.**

**41 I turn now to ground 1, the ground of manifest excess, and to grounds 2, 5, 7, 8 and 9 which are, in effect, particulars of ground 1.

42 Ground 5 articulates the complaint that the sentencing judge failed to have adequate or any regard to the appellant's addiction to heroin. It is clear that the judge recognised the fact that the appellant was a drug user. He remarked specifically upon the fact that the appellant had used cannabis and heroin for a period of three years before undertaking a methadone program. He referred to the drug dependence of the appellant and noted the fact that the appellant had taken steps to rehabilitate himself by engaging in a methadone program. He also noted the history taken by Dr Lechner of the appellant's use of heroin just prior to this offending. In my view it is apparent that the sentencing judge was well aware of the fact and the relevance of the appellant's addiction to heroin. To the limited extent that the appellant's use of heroin could be seen to be a mitigating factor there is no reason to believe that it was not given proper consideration by his Honour.

43 Complaint is made that the sentencing judge failed to give any weight to the effect of the evidence of the appellant's ill health. As stated above in [28 ] the judge gave consideration to the evidence of ill health which was before him, that the appellant had no teeth in his upper jaw. He did not consider that that condition of the appellant satisfied either of the tests set out in R v Van Boxtel or R v Kovak. In my view, and as stated above, his Honour was entitled to take that view. On the evidence before him there was no reason to conclude that the disability caused by the missing teeth of the appellant was such that imprisonment would be a greater burden than might otherwise be the case for him.

44 In ground 8 it is contended that the sentencing judge failed to give appropriate weight to matters put in mitigation; those matters being remorse, rehabilitation to the date of sentence, further prospects of rehabilitation, delay and the appellant's mental state. I have referred already to the way in which his Honour dealt with the mental state of the appellant under ground 4. His Honour stated specifically that he accepted remorse on the part of the appellant, which was reflected by his plea and by statements made to Ms Lechner. As stated above, he gave specific attention to the question of rehabilitation and stated that the period of imprisonment that was to be served immediately by the appellant was reduced in order to not 'negate' his rehabilitation process. As to the matter of delay his Honour set out the date of the commission of the offence, the date of arrest and interview, the date that the appellant was charged, the date of the committal and the date of the plea of guilty. He said:**

Sentencing principles enunciated by the High Courts of this country require me to hold this delay in your favour. You faced an uncertain future with the anxiety attendant upon this delay.

In my view it cannot be said that his Honour failed to give appropriate weight to the abovementioned matters.

**45 In ground 9 the appellant submits that the sentencing judge gave insufficient weight to his plea of guilty and the timing thereof. As stated above, his Honour referred specifically to the plea of guilty and accepted that it reflected remorse. In the course of the plea the appellant's counsel stated to the judge that the plea of guilty was not made 'at the earliest possible opportunity'. There had been a contested committal. Although his Honour said nothing about the timing of the plea it is clear that he relied upon the plea as evidence of remorse. Ground 9 reveals no error.

46 I return to ground 1 which is to the effect that the individual sentences imposed are manifestly excessive, as is the term of imprisonment to be served before the balance of the sentence is to be suspended. In my view a sentence of 15 months' imprisonment on the count of false imprisonment cannot be said to be manifestly excessive. It is apparent that for a period of some hours whilst Butler drove from place to place the appellant played a crucial part in the continuing false imprisonment of the victim. It was a terrifying experience for the victim, who justifiably feared for his life. He suffered significant emotional consequence by reason thereof. The evidence before his Honour was that the victim was diagnosed as suffering from post traumatic stress disorder in consequence of the crime committed. The count of attempted theft was a rolled-up count involving numerous attempts to steal. The appellant provided vital assistance to Butler by insuring that the victim did not leave the motor car whilst the attempted thefts took place. A sentence of six months' imprisonment in all the circumstances cannot be said to be manifestly excessive and the same can be said for a sentence of three months' imprisonment in relation to count 3, a rolled-up count of theft.

47 Ground 2 of the grounds of appeal is that the cumulation of four months of the six month sentence imposed on count 2 and two months of the three months' imprisonment imposed on count 3 is an excessive amount of cumulation. In my view, taking into account the fact that both counts were rolled-up counts in relation to a series of attempted thefts and thefts which took place over some hours during which the appellant provided vital support to Butler the cumulation cannot be said to be excessive in the circumstances.

[8] R v Kotzmann [1999] VSCA 27; [1999] 2 VR 123 at 137.

[10] [2006] VSCA 184, [35] to [38].

[11] R v Eliasen (1993) 53 A Crim R 391 at 394; R v Rostom [1996] VicRp 60; [1996] 2 VR 97 at 101.

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