Stuckey v R

1. [1]

   MITCHELMORE JA: I agree with McNaughton J.

2. [2]

   IERACE J: I agree with McNaughton J, both as to the finding of error and that no lesser sentence is warranted.

3. [3]

   McNAUGHTON J: The applicant seeks leave to appeal against the aggregate sentence imposed upon him by his Honour O’Brien AM DCJ (the sentencing judge) on 13 December 2024, in the District Court of New South Wales sitting at Nowra. The applicant is 31 years old. At the time of offending he was 29 years old and at his sentence he was 30 years old.

4. [4]

   The applicant was sentenced for a number of offences, as set out in the table below at [5] (with one qualification). The applicant had pleaded guilty to three offences in the Local Court. Three further offences were before the sentencing judge by way of a s 166 Certificate (Criminal Procedure Act 1986 (NSW)). The s 166 Certificate offence which appears in the table below carries a reduced maximum penalty of 2 years (s 168(3) Criminal Procedure Act 1986). The remaining two s 166 Certificate offences (which have not been included in the table below) related to driving a motor vehicle and were dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). There were also three further offences before the sentencing judge by way of two Form 1s (pursuant to s 33 of the Sentencing Act).

5. [5]

   The sentencing judge imposed an aggregate sentence of six years and nine months imprisonment with a non-parole period of four years and two months (that being 61.7% of the aggregate sentence). The sentence was back dated to commence on 29 September 2023. The offences, maximum penalties, applicable standard non-parole period (SNPP), indicative terms and Form 1 matters are set out in the following table:

6. [6]

   The appeal is within time.

7. [7]

   The applicant relies on a single ground of appeal:

The Sentence Proceedings

1. [8]

   The applicant was committed for sentence on 21 June 2024. Following some adjournments, the sentencing hearing took place on 6 December 2024.

2. [9]

   The Crown tendered documents including a statement of Agreed Facts, the applicant’s criminal history, and his custodial history. A Victim Impact Statement from the victim of the specially aggravated break and enter offence was tendered separately and read aloud by the victim.

3. [10]

   The applicant tendered material including a report from a clinical neuropsychologist (Dr Jeff Rogers), a letter from a treating psychologist (Ms Anne Reuter), character references and letters of support, as well as a letter from the applicant. The applicant also gave evidence at the hearing and was cross-examined.

4. [11]

   Written submissions were provided by both the Crown and the applicant.

5. [12]

   There was a further brief mention before the sentencing judge on 11 December 2024, at which supplementary submissions on a discrete point were provided and documents were tendered in relation to the applicant’s attendance at a residential drug rehabilitation facility.

6. [13]

   The Remarks on Sentence were delivered on 13 December 2024.

7. [14]

   The sentencing judge summarised the agreed facts in the Remarks on Sentence as follows. The victims’ names have been anonymised. In the sub-headings I have added details to clarify which offences relate to the relevant portions of the agreed facts.

8. [15]

   In order to consider the single ground of appeal, it is necessary to set out the structure, together with some of the detail, of the remarks on sentence.

9. [16]

   The sentencing judge first set out the details of the offences including the maximum penalties, and where applicable, the standard non-parole period.

10. [17]

    At [6], the sentencing judge stated that it was necessary to assess the objective seriousness of the offending conduct “by reference to the maximum penalty prescribed by the Parliament, the facts and circumstances of the offending, relevant common law principles and the [Sentencing Act]”. His Honour quoted Harrison CJ at CL in R v Dawson [2022] NSWSC 1632 at [10] that:

11. [18]

    At [7], the sentencing judge stated that the sentences imposed must be proportionate to the gravity of the offending and in doing so have regard to their factual circumstances and the subjective features of the offender.

12. [19]

    The sentencing judge at [8] referred to the purposes of sentencing set out in s 3A of the Sentencing Act, to which his Honour must pay attention. At [9], the sentencing judge stated he must undertake an instinctive synthesis and that factors will frequently pull in different directions, citing Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27].

13. [20]

    The sentencing judge then set out the agreed facts summary, as set out above at [14].

14. [21]

    Having set out general sentencing principles, the sentencing judge then turned to the sentencing principles specifically applicable to the offences themselves.

15. [22]

    The next section was headed “General principles and objective seriousness of the break and enter offences”. The sentencing judge noted that both break and enter offences and specially aggravated break and enter offences are serious, with the latter more so given the maximum penalties. He stated that both general and specific deterrence are important, shown by the maximum penalties and the standard non-parole period. His Honour noted the wide range of criminal activity encompassed by such offending, citing Lovell v R [2006] NSWCCA 222, and pointed to the appropriateness of taking into account the relative seriousness of the serious indictable offence committed following the break and enter, which in this matter, all involved the serious indictable offence of larceny which carries a maximum penalty of 5 years’ imprisonment.

16. [23]

    At [38]-[40] of the Remarks on Sentence, the sentencing judge stated:

17. [24]

    The sentencing judge noted that circumstances of special aggravation in the Nowra matter were that the applicant was armed with a dangerous weapon and knew persons were present in the house. His Honour also noted that the threatened use of the imitation firearm is a matter which aggravated the seriousness pursuant to s 21A(2)(c) of the Sentencing Act, noting that “use” is not otherwise included in the offence of being armed or in possession. That the firearm was only an imitation firearm did not diminish the seriousness of the conduct. The sentencing judge noted, however, that the applicant appears almost immediately to have appreciated the seriousness of his conduct when he returned to retrieve his phone, during which time he apologised to the victim and sought to explain his conduct.

18. [25]

    He then assessed the “objective seriousness” of the break and enter offences as follows:

19. [26]

    The next section of the remarks on sentence was headed “General principles and objective seriousness of the armed robbery offence”. In this section, the sentencing judge referred to the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111. His Honour noted that offences of this type identified in the guideline by Spigelman CJ generally meant the imposition of between four and five years’ imprisonment for the full term. In that case “common features” of such offences were identified as including a young offender with little or no criminal history; weapon like a knife capable of killing or inflicting serious injury; limited degree of planning; limited if any actual violence but a real threat thereof; victim in a vulnerable position such as a shopkeeper or taxi driver; small amount taken; and a plea of guilty, the significance of which was limited by a strong Crown case.

20. [27]

    His Honour then went on to observe in the instant matter that the applicant was not a young person, he had been convicted of similar offences as well as offences of violence and others, and that a plea of guilty had been entered in the Local Court. The sentencing judge then stated that “having regard to the matters I have identified, I have concluded this offence falls below the mid-range of objective seriousness for offences of its type but not at the bottom of the range.” (I note in passing that the phrase “having regard to the matters I have identified” close to the determination of objective seriousness may suggest a problem similar to the one identified in the ground of appeal. However, the context would appear to be slightly different, and no issue is taken with this passage by the applicant).

21. [28]

    The sentencing judge then dealt with the driving offences where a penalty was to be imposed.

22. [29]

    The next section of the Remarks on Sentence dealt with the impact on the victims. Amongst other things the sentencing judge detailed the difficulties faced by the victims of the specially aggravated break and enter offence as a result of the trauma occasioned to them by the offending. Whilst observing their ongoing distress and anxiety, his Honour found that this harm did not qualify as “substantial” within the meaning of s 21A(2)(g) of the Sentencing Act (noting that he did not intend in any way to diminish the trauma and harm felt by the victims).

23. [30]

    In the next part of the remarks, the sentencing judge turned to the applicant’s subjective case under a heading “The offender’s subjective case”. The sentencing judge noted that the applicant was 30 years old, the middle child of three and he grew up in the Nowra area. His mother told Dr Rogers he was diagnosed with attention deficit hyperactivity disorder, Asperger’s syndrome and severe learning difficulties during his childhood. He had difficulty focussing at school and was prescribed Ritalin for a number of years. He reported that whilst attending Nowra High School, he was sexually assaulted by a learning support teacher on multiple occasions during Years 7 and 8, in relation to which, he told Dr Rogers, he had recently filed a formal report. Following these assaults, he reported experiencing heightened anxiety and low mood. He left school in Year 8 at the age of about 13 or 14 years and started to use cannabis heavily.

24. [31]

    The sentencing judge did not accept that the Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 principles were enlivened. First, because the disadvantage did not rise to the level contemplated by that decision, nor was there any demonstrated causal link between any such disadvantage and his offending such as would reduce his moral culpability. The sentencing judge stated “[T]hat is not to say his background and personal circumstances are not a relevant and important aspect of his subjective case to which I will have regard.”

25. [32]

    The sentencing judge noted Dr Rogers’ opinion that the alleged childhood sexual abuse was highly traumatic for the applicant and that he appeared to meet the diagnostic criteria for post-traumatic stress disorder, and the abuse would likely have impaired his social, emotional and moral development. His Honour also noted Dr Rogers’ opinion that the applicant suffers from a mild neurocognitive disorder which is stable and enduring, and that he has a reduced capacity for reasoning and judgment including inhibition, consequential thinking and problem solving abilities.

26. [33]

    The sentencing judge referred to the principles concerning mental health conditions and sentencing, citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178]. The sentencing judge stated he was satisfied that given the applicant’s mental health difficulties and mild cognitive impairment that his moral culpability was somewhat reduced and that the applicant was a less appropriate vehicle for general deterrence than might otherwise be the case.

27. [34]

    The sentencing judge continued to outline the applicant’s background, noting that his parents separated when the applicant was about 15 or 16. He first lived with his father who drank to excess, then returned to Nowra to live with his mother. He commenced abusing methamphetamine when he was around 17 or 18. From about that time his interaction with the criminal justice system commenced.

28. [35]

    The applicant met his former partner at 21 or 22 through mutual drug use, but they subsequently supported each other to cease using. Together they have two children, 7 years and 4 years old, both of whom reside with the applicant’s former partner. He maintained a pro-social life for four to five years, but when his relationship started to deteriorate his methamphetamine use increased. This led to him leaving the family home and his drug use escalating. The sentencing judge noted that he had not used drugs since his most recent return to custody (albeit I note that more recent information indicates he had failed a prescribed drug test only a few days prior to the sentencing hearing).

29. [36]

    Importantly, within the subjective case portion of the remarks, the sentencing judge stated:

30. [37]

    The sentencing judge found genuine remorse, and that the applicant had some insight into how his use of drugs contributed to his offending. He noted the early stages of recovery can involve progress and regress in equal measure and that the applicant had made real efforts to commence his rehabilitation. His Honour concluded his prospects of rehabilitation “lay somewhere between guarded and hopeful”.

31. [38]

    The sentencing judge regarded the applicant’s time at a residential rehabilitation facility (from which he was discharged nine days before completing the program) as quasi custody, and gave him an allowance of 50% of that time, being 51 days, which was included in the backdating of the sentence.

32. [39]

    The sentencing judge then found the s 5 Sentencing Act threshold crossed for all but the driving offences and referred appropriately to principles of totality when dealing with multiple offences. His Honour then set out the indicative terms both before and after taking into account the 25% reduction to reflect the applicant’s pleas of guilty before setting out the aggregate term of 6 years and 9 months.

33. [40]

    Finally, his Honour made a finding of special circumstances to reduce the applicant’s non-parole period below the statutory ratio based on the applicant’s need for an extended period of supervision, treatment and intervention upon his release into the community. As noted, taking into account the two Form 1s, the non-parole period was set at 4 years and 2 months imprisonment.

Submissions on appeal

1. [41]

   The applicant pointed to decisions of this Court which makes it clear that, contrary to what was stated in R v Ponfield (1999) 49 NSWLR 327; [1999] NSWCCA 435, an offender’s criminal history is not relevant to an assessment of the objective gravity of any offence.

2. [42]

   The applicant submitted that the sentencing judge erred in referring to Ponfield without qualification, making no reference to the developments of the law since that case which circumscribed the effect of that authority. It was contended that, as set out at [23] above, the sentencing judge erred in specifically identifying the Ponfield decision as providing assistance in the assessment of the objective seriousness of the break and enter offences, in particular referring to the applicant’s past history of like offences. The applicant noted that the Crown had also referred to Ponfield in its written submissions before the sentencing judge and had failed to refer to the authorities qualifying the application of Ponfield in respect of past criminal history.

3. [43]

   The applicant contended that in taking into account adversely to the applicant that he had a history of like offending, the sentencing judge necessarily assessed the three break and enter offences as being objectively more serious than his Honour would have otherwise assessed them had he applied the law correctly.

4. [44]

   The respondent argued that any apparent deficiency in the structure of the remarks on sentence should pay due regard to the workload of the sentencing judge, albeit at the same time, in contrast, pointed to the sentencing judge’s “careful use of language”. It was clarified at the oral hearing of the appeal that the judgment could not be regarded in any way as ex tempore.

5. [45]

   The respondent submitted that whilst the impugned passages were to be found under a heading of “General principles and objective seriousness of the break and enter offences”, it is clear that matters such as general and specific deterrence, which were obviously not related to the determination of objective seriousness, were also included under that heading. Further, it was argued that in the section of the Remarks on Sentence where both general principles and objective seriousness were dealt with, “seriousness” or “overall seriousness” were used when dealing with the Ponfield judgment, but “objective seriousness” was used when dealing with a factor relating specifically to the assessment of objective seriousness. The Crown argued “When referring to ‘overall seriousness’ his Honour must therefore have been referring to an assessment of the comparative seriousness of the case at hand, and not of the objective seriousness of the of the individual offences.”

6. [46]

   In oral argument, the Crown referred to the decision of Hawat v R [2020] NSWCCA 121 where the same sentencing judge was found not to have misused the guideline judgment of Henry in his sentencing remarks in an allegedly similar fashion.

Consideration of single ground of appeal

1. [47]

   It is not in dispute that the early guidance set out in Ponfield has been qualified by several judgments of this Court and is now to be regarded as outdated. Those decisions make clear that, contrary to what was stated in Ponfield, an applicant’s prior criminal history cannot increase the objective seriousness of an offence: see for instance R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [23]-[25]; Kelly v R [2017] NSWCCA 82 at [58]; and Dickinson v R [2016] NSWCCA 301 at [14]-[19].

2. [48]

   Most recently, the limited guidance provided by Ponfield has been helpfully discussed in some detail in MacBlane v R [2025] NSWCCA 52 by both Garling J at [2]-[22] and Sweeney J at [33]-[36]. As stated by Garling J at [21]-[22]:

3. [49]

   The question to be determined in this case is thus whether, on a fair reading of the impugned portion of the remarks, that is, without scrutinising them with a fine-tooth comb attuned to identifying error, the sentencing judge fell into error. Did the sentencing judge permissibly refer to the applicant’s criminal history as simply one of a number of factors bearing generally upon sentencing for offences of this kind (as, for example in Hawat or Dickinson) or was the reference to the criminal history impermissibly included as a matter bearing upon the objective gravity of the offences (as, for example, in Kelly)?

4. [50]

   I am of the view that his Honour did fall into error. As noted above, the sentencing judge referred to the presence of “any” of the Ponfield factors which “increased the seriousness of the offending”. This wording came from Ponfield itself – and within Ponfield is clearly directed to the presence of factors which increase objective seriousness. Further, the impugned passage in the sentencing remarks appears under the heading “General principles and objective seriousness of the break and enter offences.” Whilst there was some initial reference to some general principles, including a reference to deterrence, his Honour then moved to consider matters relevant to the determination of “objective seriousness”. His Honour then referred to the decision in Ponfield without qualification. His Honour nominated, “several factors which the guideline judgment referred to […]” which included, amongst other things, that “the offender has a prior record of like offences” which is a clear reference to one of the factors identified in Ponfield at [48](iii): “the offender has a prior record particularly for like offences”. Further, at the conclusion of this section of the remarks the sentencing judge set out his findings in relation to the “objective seriousness of the break and enter offences”.

5. [51]

   In the context of the judgment as a whole, it is difficult to see how the reference to “the seriousness of the offending” or the “overall seriousness” means anything other than the “objective seriousness of the offending” given the structure of the document, the references to objective seriousness in the relevant section of the remarks, the unqualified reference to Ponfield, and that the applicant’s subjective case, including his criminal history, was dealt with separately, in an entirely different section of the remarks.

6. [52]

   Ground one is made out.

Resentence

1. [53]

   Having found error, it is necessary to exercise the sentencing discretion afresh.

2. [54]

   At the hearing of the appeal, three affidavits were read on behalf of the applicant relevant to the re-exercise of the discretion: one affirmed by the applicant himself on 24 October 2025, one by his ex-partner and mother of his children affirmed on 10 November 2025; and one by the applicant’s solicitor affirmed on 24 October 2025.

3. [55]

   The applicant acknowledged he failed a prescribed drug test in custody on 5 December 2024 and set out how an increased dosage of buprenorphine had since assisted him. He has participated in the Involuntary Drug and Alcohol Treatment Program (IDATP) which he has found helpful. He candidly stated he had been sober for [only] two months, even though no further positive drug test had been revealed by the evidence. The applicant also set out that he had found pursuing the civil claim relating to abuse he had suffered as a child had made some days in custody especially difficult. He has found speaking to a psychologist helpful.

4. [56]

   The applicant has been working most of the time in custody, for five or six days a week.

5. [57]

   He misses his two children and wants to be a better father. He enjoyed undertaking a “Mini Dads at a Distance” program in custody. His mother used to visit once a month but since moving to his current correctional centre, she has been unable to visit because of the distance involved.

6. [58]

   When he leaves custody, his goal is to have 50/50 custody of his children. He accepts it will be difficult to stay sober out in the community, but he now has more tools to cope with feelings and urges that come with his addiction.

7. [59]

   The applicant’s ex-partner set out the emotional, physical and financial toll on her whilst the applicant is in custody. She currently works three jobs and has little time to spend with their children. It is easier for her and the children when the applicant is out of custody.

8. [60]

   The applicant’s solicitor’s affidavit annexed copies of the applicant’s Corrective Services case notes, Justice Health file and a Corrective Services Custodial History report, confirming the information provided by the applicant himself.

9. [61]

   In submitting that the Court would form the opinion that a less severe sentence is warranted in law, the applicant pointed to the undisturbed factual findings of the sentencing judge including that the significance of general deterrence was reduced because the applicant’s moral culpability was reduced, and that his offending was not aggravated by his criminal history. The applicant submitted that the sentencing judge’s findings otherwise reflected that the applicant had a strong subjective case including a “relevant and important” background of a difficult childhood and ongoing mental health issues; genuine remorse and some insight into his rehabilitation challenges; existing efforts towards rehabilitation; and prospects of rehabilitation “between guarded and hopeful”. Further, it was noted that the applicant’s subjective case gave rise to an undisturbed finding of special circumstances for the purpose of supporting his drug rehabilitation, mental health treatment and community reintegration.

10. [62]

    The applicant contended that an assessment of the objective seriousness of the three break and enter offences which properly does not take account of the circumstances of the applicant’s history of like offending, together with the positive findings about the applicant’s subjective case, leads to the conclusion that lesser indicative sentences for those three offences are warranted.

11. [63]

    In oral argument, it was also specifically submitted that the indicative sentence for the Bomaderry break and enter offence was clearly too high given that the jurisdictional maximum was 24 months, and the pre-discount indicative sentence was 20 months, even though the sentencing judge had found the objective seriousness to be “below the mid-range of objective seriousness but not at the bottom of the range”.

12. [64]

    The applicant also submitted orally that the applicant’s criminal history of like offending was less extensive than the remarks on sentence indicated. That is, not only was it an error to take it into account, it was also not as extensive as it may first appear. Two of the three break and enter offences were committed when the applicant was a child in 2012 and 2013, and the one further break and enter offence was committed in August 2014, namely ten years before the current offending. He has no history of specially aggravated break and enter offences. Other offending which could potentially be regarded as similar involved two offences on the same date in November 2017, again many years before the current offending. The applicant further pointed to an approximately five-year period between 2018 and 2023 where the applicant ceased most of his criminal offending save for some driving offences. Finally, the applicant pointed to some additional hardship in custody revealed by the applicant’s affidavit as a result of dealing with his civil claim concerning his childhood abuse.

13. [65]

    Consequently, the applicant submitted that a lesser aggregate sentence and corresponding non-parole period giving effect to the finding of special circumstances, is appropriate.

14. [66]

    The respondent submitted, to the contrary, that the Court would find that no lesser sentence is warranted in law. In relation to the Austral break and enter offence, it drew to the Court’s attention the relatively high value of the goods and the fact there were two incursions, separated by some time. The premises was also left in some disarray. In relation to the Bomaderry offence, the respondent pointed to the fact that two separate locations were the subject of a break in, and the value of the goods stolen was significant.

15. [67]

    In relation to the specially aggravated break and enter offence, the respondent noted that this culminated in the applicant, who had already broken into the victim’s home, threatening him with a replica pistol and demanding money. The respondent pointed out that breaking into a person’s house, at night, knowing that people are home, while armed with a dangerous weapon, in and of itself, is a very serious criminal activity. Presenting the dangerous weapon, when confronted by the homeowner, and demanding money, significantly elevated the seriousness, and the respondent further submitted, would also properly ground a charge of aggravated armed robbery. If he had been so charged, the respondent contended, the guideline in Henry would have been a relevant guidepost, that being a range of between 4 years to 5 years, albeit that range is for the less serious offence of armed robbery rather than aggravated armed robbery. Furthermore, the Henry guideline does not contemplate the offence involving the additional and significant factor of the offending occurring in the victim’s home. The respondent made clear that this comparison is simply to point out the objectively serious nature of the offending, in the context of the same maximum penalty.

16. [68]

    The significant trauma from such a specially aggravated break and enter offence, whilst expected, was referred to by the victim in his Victim Impact Statement. The respondent submitted that this demonstrated the need to place meaningful weight upon one of the purposes of sentencing as set out in s 3A(g) of the Sentencing Act, “to recognise the harm done to the victim of the crime and the community”.

17. [69]

    The respondent contended that all these matters mean that in none of the break and enter matters would the Court come to a different conclusion in relation to the objective seriousness of the offending, nor conclude that a lower indicative term is warranted.

18. [70]

    Further, the respondent submitted that none of the applicant’s subjective factors operated to “overly mitigate” the sentence, and apart from his early pleas of guilty, his subjective case was not a “particularly favourable one”.

19. [71]

    Finally, the respondent submitted that the three cases referred to by the applicant (Kelly; McCabe v R [2016] NSWCCA 7; and MacBlane) in fact indicated that not only were the indicative sentences in the instant case well within range, they were, in some respects, quite generous.

20. [72]

    I adopt the factual findings and findings of objective seriousness of the sentencing judge. In doing so I note explicitly, given the error identified above, that I have not taken into account the applicant’s criminal history in the assessment of the objective seriousness of the break and enter offences. I too afford the full 25% discount for the early pleas of guilty and would make a finding of special circumstances. Further, as conceded by the applicant on sentence, his prospects of rehabilitation remain properly described as “somewhere between guarded and hopeful”. I have also taken into account the other matters put before the Court in submission and by way of affidavit.

21. [73]

    As stated in AA v R [2024] NSWCCA 132 at [4] (Ward P and Wilson J):

22. [74]

    With one exception, I am of the view that, notwithstanding the error found to have occurred as identified in the single ground of appeal, the sentences indicated by the sentencing judge are nevertheless appropriate. In addition, I would add, in accordance with s 54B Sentencing Act, in relation to the specially aggravated break and enter, a non-parole period of 2 years and 7 months is indicated.

23. [75]

    The one exception is that, in my view, the indicative sentence for the Bomaderry offence is too high. The indicative sentence of 20 months (prior to discount) and a sentence of 15 months (after discount), for a below mid-range offence in light of the jurisdictional maximum of 24 months shows that the sentencing judge fell into error in this respect. I would indicate a sentence, taking into account a discount of 25%, of 8 months.

24. [76]

    The question then is whether a lesser aggregate sentence is warranted in law and should have been passed. After some deliberation, in my view the answer is ‘no’. Whilst I acknowledge the applicant’s mild cognitive impairment such that his moral culpability is somewhat reduced and also acknowledge that he is a less appropriate vehicle for general deterrence than might otherwise be the case, I also note the number of offences, which include an armed robbery, two separate break and enter offences, a specially aggravated break and enter offence, and two offences of stealing committed across the span of one week. This is a significant episode of overall criminality and requires recognition by way of meaningful notional accumulation. Further, as noted, one of the break and enter offences involved more than one incursion, and another involved more than one location. There are also the matters on the Form 1s, the largely unremarkable subjective case, and the lack of leniency afforded by the applicant’s criminal history. I also take into account the applicable maximum penalties, the standard non-parole period where relevant, and the principle of totality. Further, in my view, the discount provided by the sentencing judge to reflect the finding of special circumstances in relation to the non-parole period was relatively generous.

25. [77]

    In all the circumstances, I am of the view that no lesser sentence is warranted in law.

26. [78]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss the appeal.