R v Bates[2021] QCA 229

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P AND BOND JA:  On 18 October 2021, the Court, by majority, granted leave to appeal, allowed the appeal, varied the sentence which had been imposed and required restitution to be made.  As ultimately expressed, the orders of the Court were:

   1. (a)
      Leave to appeal granted.
   2. (b)
      Appeal allowed.
   3. (c)
      Vary the orders of Rosengren DCJ by setting aside the parole release date and, instead, ordering that the appellant be released on parole on 18 October 2021.
   4. (d)
      The appellant pay restitution in the name of R and K Bulk Haulage Pty Ltd, in the sum of $18,000, to be paid to the Registrar of the District Court at Toowoomba, for payment to the complainant on count 4 of the indictment, such sum to be paid within 6 months.
   5. (e)
      In the event that the appellant fails to pay such restitution, he shall attend before the District Court of Queensland at Toowoomba on the 26 April 2022 to show cause why imprisonment should not be enforced because of his failure to comply with the order.
2. [2]
   These are our reasons for making those orders.
3. [3]
   We have had the advantage of reading in draft the judgment of Mullins JA which explains her Honour’s reasons for concluding that the application for leave to appeal against sentence should have been refused.  Her Honour’s identification of the facts and of the way in which the sentencing judge dealt with the issues before her permits us to express our reasons in a summary way.
4. [4]
   The appellant was 22 at the time of offending and 23 at the time of sentencing.  His plea of guilty was an early plea.  He did not have a criminal history.  He had the support of his family and excellent references.  He had taken positive steps towards rehabilitation in that he had moved away from the area and the people with whom he had been associating when he was using illicit drugs and had stopped using illicit drugs.  He had established his own business and had a partner who had two young children for whom he was the primary breadwinner.
5. [5]
   Those considerations engaged the sentencing principles explained in R v Kelley [2018] QCA 18 and R v Hamstra [2020] QCA 185.  Only the latter case was drawn to the attention of the sentencing judge.
6. [6]
   In R v Kelley, the offender was 23 years old at the time of he committed an assault occasioning bodily harm, which was to be regarded as a domestic violence offence in the circumstances.  He pleaded guilty to the offence.  Morrison JA (with whom Sofronoff P and Philippides JA agreed) observed:^[1]

“[43] In the face of that assessment of the position one might have expected that, in coming to the conclusion that a sentence of actual custody was required, the learned sentencing judge would have had to take into account the well-established sentencing principles that call for the seriousness of the offending conduct to be balanced against the fact that the offender was a youthful first offender, with an unblemished record, good character, and excellent prospects of rehabilitation.^[2]  The position was expressed by Fraser JA in R v Hopper; Ex parte Attorney-General (Qld):^[3]

‘The second matter referred to by the sentencing judge as favouring a non-custodial sentence was the respondent’s youthfulness.  The sentencing judge referred to R v Mules, in which the President, with whose reasons Keane JA and Mullins J agreed, observed that the previous decision in R v Horne made it clear that because the rehabilitation of young offenders is in the interests of the community, “youthful offenders with limited criminal histories and promising prospects of rehabilitation who have pleaded guilty and co-operated with the administration of justice, even where they have committed serious offences … should receive more leniency from courts than would otherwise be appropriate.”  The sentencing judge also took into account the long experience of the Courts, to which Burbury CJ referred to in Lahey v Sanderson in a passage quoted in R v Lovi, “that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed” so that it had been universally accepted by the Courts in England, Australia and elsewhere ‘that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed.’

…

[47] Whilst Mr Kelley did not fit into the band of youthful offenders who are teenagers, or even up to 21, he was not far from that age, and was described, without demur, by the prosecutor as ‘relatively young … albeit not a teenager but still in his early 20s at the time’.^[4]  At one point in the history of the Penalties and Sentences Act 1992 (Qld), those under 25 were included in the category of youthful offenders: see s 9(4) as it was enacted in 1992.  The subsequent repeal of that provision did not remove youth as a relevant consideration, nor, in my view, could it be seen as a statutory indicator that those in their 20’s were no longer considered youthful for sentencing purposes.^[5]

[48] In any event there is no magic figure that defines a youthful offender for the purposes of that principle.  For example, offenders in their teens may readily be described as youthful, but so also might an offender who was 20 or 21 at the time of the offence and 22 to 23 at sentence.^[6]  It must also be borne in mind that the age of the offender is but one of a number of factors to be weighed.”

7. [7]
   And in R v Hamstra, the offender pleaded guilty to one charge of wilful damage, and another charge of wilfully and unlawfully setting fire to something situated so that a building was likely to catch fire from it.  He was 18 years old at the time of the offending.  Sofronoff P, with whom Fraser and McMurdo JJA agreed, observed:^[7]

“The objective facts of the offending were serious.  However, in the case of a youthful first offender who has demonstrated that, in terms of personal deterrence, imprisonment would serve no purpose, I can find no principle of sentencing which requires the applicant to serve any time in prison.  Further, before a short sentence of a few months is imposed, particularly on a youthful first offender, serious consideration has to be given to what useful purpose will be served by such a punishment.  When a judge is considering such a course, it is essential to consider how an order of that kind can stand with the principle that imprisonment is a punishment of last resort.  There are cases in which a short sentence is required; it is critical, however, to identify with precision the purpose to be served by the imposition of the sentence of imprisonment that was imposed, one of imprisonment for three years.  However, having regard to the applicant’s previous and subsequent character, as well as the delay of years before he was sentenced, that sentence should be suspended forthwith.”

8. [8]
   In the present case, the sentencing judge observed that the appellant was 22 at the time of the offending, and 23 at the time of the sentencing and did not have a criminal history.  Her Honour acknowledged that the appellant was to be sentenced on the basis that he was a relatively young man still who had taken positive steps towards his rehabilitation.  However her Honour then explained her approach to those considerations in these terms (emphasis added):

“While these [considerations] are incapable of negating the gravity of the offending, it obviously raises some relevant considerations.  They cannot overshadow the need for a sentence that properly reflects the appropriate punishment for the offending and to have regard to the matters of general deterrence.  In other words the fact of your relative youth, whilst it is a consideration, it cannot operate to reduce a sentence that is so distorted as to bear no proper relationship to the sentencing principles to be applied to the particular offending.

While imprisonment is a punishment of last resort, in my view a sentence involving a short term of actual custody is required.  As I have explained, the objective facts of your offending were serious, and the paramount sentencing consideration here is general deterrence.  Members of our community, whether or not in the grip of substance abuse, must know that if they commit this sort of offending, they will very likely go to jail.  Having said this, for a 23 year old who has not encountered the criminal justice system before, the requirement to serve six months of actual custody, in my view, involves a real and substantial punishment, coupled with the threat of the balance of the sentence being activated.  While this is well under the third, in my view a period of actual custody more than this may jeopardise your prospects of rehabilitation without corresponding advantages in terms of personal or general deterrence.”

9. [9]
   In our view, the sentencing remarks reveal that her Honour’s sentence cannot have been arrived at by a proper application of the sentencing principles to which we have referred.
10. [10]
    First, her Honour regarded a sentence which did not involve actual custody as not within the range of a proper exercise of the sentencing discretion because it would be a distortion of the sentencing principles to be applied.  As R v Kelley and R v Hamstra make clear, that view was wrong.  The sentencing judge should have accepted the submission advanced to her by counsel for the Crown that it was open to her to structure a sentence which did not involve actual custody.
11. [11]
    Second, we consider that identification of general deterrence as the paramount sentencing consideration and the justification for requiring 6 months actual custody in the context of a head sentence of imprisonment could not be regarded as a proper application of the sentencing principles explained in R v Hopper; Ex parte Attorney-General (Qld)^[8] and in R v Hamstra.  There was nothing, in the particular circumstances of this case, which suggested that reformation of this youthful first offender with good prospects of rehabilitation should not have been regarded as the dominant consideration in determining the appropriate punishment to be imposed, and certainly in determining whether actual custody was required.  Her Honour should have concluded that general deterrence was sufficiently reflected in the imposition of the 3 year head sentence and should have asked herself, having regard to the sentencing principles identified in R v Hopper; Ex parte Attorney-General (Qld) and in R v Hamstra, whether any useful purpose would be served by requiring the short period of actual custody.
12. [12]
    In our view, the sentencing discretion miscarried and it was open to this Court to re-sentence the appellant.
13. [13]
    Within the framework we have explained, we agree with the sentencing judge that the appropriate head sentence, having regard to the relevant considerations identified by her, was a sentence of 3 years imprisonment.  That sentence sufficiently reflected the importance of general deterrence.  At the time of hearing of the application before this Court, the appellant had served almost 3 months actual custody.  No useful purpose was served by requiring the appellant to serve any further actual custody and, accordingly, we ordered the appellant’s immediate release on parole.
14. [14]
    During the course of argument, counsel for the appellant confirmed that the offer of restitution made before the sentencing judge was still made.  It was appropriate then to make orders requiring restitution.
15. [15]
    MULLINS JA:  On 23 July 2021 Mr Bates pleaded guilty to two counts of unlawfully using a motor vehicle to facilitate the commission of an indictable offence (counts 1 and 3), one count of break and enter premises and steal (count 2) and one count of arson (count 4).  For the arson, he was sentenced to imprisonment for three years.  He was given concurrent sentences for the other offences, namely imprisonment for 18 months for the break and enter premises and steal and six months for each of the unlawful use of a motor vehicle to facilitate the commission of an indictable offence.  The parole release date was fixed at 22 February 2022.
16. [16]
    The ground for the application is that the sentence imposed was manifestly excessive.  The particular aspects that are relied on to support that ground are that the learned sentencing judge did not place any (or sufficient) weight on the fact that restitution was able to be paid immediately by Mr Bates and did not place sufficient weight on the antecedents of Mr Bates and the references provided on his behalf.  In addition, Mr Bates raises an error in the calculation of the time to be served, as the sentencing judge indicated that Mr Bates would be released on parole after serving six months in actual custody, but the parole release date was set after he would have served a period of seven months.  Mr Bates’ counsel concedes that, if the sentence leave application is unsuccessful, the error in fixing the parole release date may be rectified by a re-opening of the sentence.

The offending

17. [17]
    Mr Bates had been employed in early 2019 as a diesel mechanic by a transport company.  In February 2020 he was spoken to about his work performance and attitude.  He ceased employment on 28 February 2020.  In May 2020, he was told not to come back to the depot.  His friend and co-offender was working for a subcontractor of the transport company as a driver between December 2019 and March 2020 and would attend the depot during that period.  After Mr Bates left this employment, he expressed to the co-offender that he wanted to steal a truck from the transport company.
18. [18]
    A second co-offender was with Mr Bates and the co-offender on 4 June 2020 at Mr Bates’ home.  They had drinks.  They were working on the second co-offender’s Toyota Prado.  At about 6.11 pm Mr Bates drove his vehicle to the transport company’s depot and observed the premises before leaving five minutes later.  The drinking continued and progressed to using methylamphetamine.  Later in the evening, Mr Bates told the second co-offender that he had to pick up a Toyota Landcruiser and fetch his diagnostic computer from the business he worked at, namely the transport company.  The second co-offender agreed to attend with Mr Bates.
19. [19]
    At about 3 am on 5 June 2020 Mr Bates and the second co-offender left Mr Bates’ home in a Toyota Rav4 wagon which had been stolen from the transport company’s depot earlier in the evening by an unknown person.  They towed a cage trailer as Mr Bates said he needed to collect a toolbox.  When they arrived at the depot, there was a white Toyota Landcruiser utility parked outside the front of the workshops and Mr Bates told the second co-offender to start the Landcruiser while Mr Bates went to get the diagnostic computer and other tools he had at work.  Mr Bates told the second co-offender to push the quarter glass open and the key would be in the ignition.  Mr Bates then drove into the depot in the Rav4 wagon.  The second co-offender found the key in the ignition of the Landcruiser and started up the vehicle.
20. [20]
    Mr Bates entered the office building of the depot by breaking the louvre blinds of the back window, stole a CCTV camera box and then entered the workshop of the depot and stole a number of tools and the diagnostic computer which he placed in the cage trailer attached to the Rav4 wagon.  Mr Bates drove the Rav4 wagon from the premises and told the second co-offender to follow him.  They drove about one kilometre up a dirt road where Mr Bates detached the cage trailer from the Rav4 wagon and directed the second co-offender to attach the cage trailer to the Landcruiser.
21. [21]
    Mr Bates then poured petrol from a 20 litre drum onto the Rav4 wagon and trailed the petrol away from the vehicle.  He lit a piece of cardboard with a lighter and threw it onto the petrol trail.  He told the second co-offender that he did this because of the fingerprints in the wagon.  Mr Bates entered the Landcruiser and the second co-offender drove back to Mr Bates’ home.  The second co-offender agreed to allow Mr Bates to store the items stolen from the transport company in the second co-offender’s storage container and Mr Bates drove the Landcruiser to the storage container.  With the assistance of both co-offenders, Mr Bates put the stolen property into the storage container.
22. [22]
    The sentence proceeded on the basis that Mr Bates knew the Rav4 wagon had been stolen and he used that vehicle to commit count 2 and that conduct was the subject of count 1.  Mr Bates’ breaking and entering the office of the transport company and stealing property from the office and the workshop was the subject of count 2.  He was a willing passenger in the Landcruiser and later operated that vehicle, knowing that it had been stolen and that was the subject of count 3.  He deliberately set fire to the Rav4 wagon and that was the subject of count 4.
23. [23]
    By the afternoon of 5 June 2020, police enquiries revealed that the Landcruiser had been located on CCTV footage at the storage facility that showed Mr Bates and the two co-offenders unloading equipment from the Landcruiser and a caged trailer and stowing it in a storage container.  A search warrant was executed at the storage container and among the items recovered was the transport company’s CCTV which revealed Mr Bates’ attendance at the transport company in his vehicle at 6.11 pm and observing the premises.
24. [24]
    The second co-offender was interviewed by police on 15 June 2020 and later provided a statement, as did the other co-offender.  A search warrant was executed by police at Mr Bates’ home on 22 June 2020.  His mobile telephone was seized which contained messages between Mr Bates and another person in which Mr Bates expressed anger over his termination from the transport company and the financial predicament that it placed him in.  He expressed an intention to get revenge on the business.  Mr Bates declined to be interviewed.

Mr Bates’ antecedents

25. [25]
    Mr Bates was 22 years old at the time of the offending.  He did not have a prior criminal history.
26. [26]
    The sentencing judge was informed that in the QP9s there was an estimate of the Rav4 vehicle being worth an amount of $18,000 and Mr Bates had, with the assistance of his parents, been able to get together with the sum of $18,000.  It had not been paid prior to the day of sentencing, as Mr Bates’ lawyers did not have bank account details, but a cheque could be written on the day of sentence or within a very short period of time to pay the restitution.
27. [27]
    Mr Bates had not told his parents of the charges earlier than April 2021.  They provided a reference to the court dated 22 July 2021 expressing their distress at the seriousness of the offences committed by Mr Bates, but indicating that it was out of character, setting out his extensive volunteer work for community organisations, family members and neighbours.  They indicated that their family was offering Mr Bates all the support he needed to move forward and make the future a success both in being a good citizen and working in his own mobile diesel mechanic business.
28. [28]
    There were seven other references.  One was from his parents’ neighbour who had known Mr Bates since he was nine years old and trusted him to work on his property and repair his machinery.  One referred to his participation in the Australian Navy Cadets between 2012 and 2017 during which he achieved the senior cadet rank of Petty Officer and was described as “a responsible, enthusiastic teenager who was dedicated to his cadet service”.  Other references referred to his service to the Rural Fire Brigade as a junior volunteer member while still at high school and as an adult volunteer member after he attained 18 years.
29. [29]
    After being charged, Mr Bates moved away from the people with whom he was associating when he offended and stopped using illicit substances which he had commenced to do in the months prior to the offending.  His use of drugs, including methylamphetamine, had increased in the period shortly before the offences.  Mr Bates’ instructions to his counsel for the sentencing were that he had given up drugs (with family support) by going “cold turkey”.  Mr Bates started his mobile diesel mechanic business in the town to which he relocated and three of the references were from people who use the services of his business and speak highly of his skills and the trust placed in him to repair and maintain their machinery.
30. [30]
    Mr Bates has a partner who has two young children and he provides the primary income in that relationship.

Sentencing remarks

31. [31]
    Mr Le Grand of counsel who was the prosecutor before the sentencing judge (and appears on behalf of the respondent on this application), had submitted for a sentence on the arson to reflect Mr Bates’ overall criminality of imprisonment between two and one-half years and three years, in reliance on R v Griffiths [2009] QCA 264.  Mr Le Grand had conceded that, on the basis Mr Bates was relatively young, had no prior criminal history, entered early guilty pleas and was in a position to make substantial restitution for the uninsured vehicle, it was open for the sentences to be structured in a way that involved actual custody or in a way that would have him released on immediate parole.  Counsel who appeared for Mr Bates before the sentencing judge submitted to the sentencing judge that a sentence that did not involve a period of actual custody was open to the sentencing judge and suggested a sentence of two years’ imprisonment with an immediate parole release date coupled with an order for restitution.
32. [32]
    The sentencing judge noted Mr Bates’ early guilty pleas and referred to his antecedents.  The sentencing judge took into account the authorities of R v Collins [2003] QCA 154, Griffiths, R v Anthony [2020] QCA 79 and R v Hamstra [2020] QCA 185.  After summarising the facts of the offending from the agreed statement of facts, the sentencing remarks included the following.
33. [33]
    There were no issues of parity, as the two co-offenders were not charged with arson.  The prosecution case against Mr Bates was a strong one, as he was identified by CCTV footage at the storage facility.  The Rav4 was uninsured and destroyed completely and had a replacement value of around $23,000.  The diagnostic computer was not recovered and had a value of about $1,700.  The two co-offenders had onsold some of the items stolen by Mr Bates, but many others were recovered.  Mr Bates had not paid any restitution, but was in a position to make restitution in an amount of about $18,000.  This was serious offending with two of the offences carrying a maximum of life imprisonment.  The offending was premediated and planned as a means of revenge.  Mr Bates enlisted his co-offenders for his own “selfish and misguided purposes”.  Mr Bates was principal offender and the setting alight of the Rav4 was a deliberate act.
34. [34]
    Punishment that fairly reflected the seriousness of the offending, general and specific deterrence, community protection and the community’s denunciation of this kind of conduct had to be balanced with the factors in Mr Bates’ behaviour.  These were the early pleas of guilty, lack of a prior criminal history and the matters gleaned from the numerous references, including that Mr Bates operates his own business, he had been in relatively constant work after completing an apprenticeship after leaving school, has been a member of various community groups and now was in a relationship.  He was no longer using illicit drugs.
35. [35]
    Mr Bates must be sentenced on the basis that he is a relatively young man who has taken positive steps towards his rehabilitation, but those considerations “cannot overshadow the need for a sentence that properly reflects the appropriate punishment for the offending and to have regard to the matters of general deterrence” nor operate to produce a sentence “that is so distorted as to bear no proper relationship to the sentencing principles to be applied to the particular offending”.  While imprisonment is a punishment of last resort, a sentence involving a short term of actual custody was required for Mr Bates, as the objective facts of his offending were serious and the paramount sentencing consideration is general deterrence.  The actual custodial component of the sentence has been reduced to a period of six months which is under the usual one-third of the head sentence to take account of the various mitigating features.  No order for restitution was made.

Was the sentence manifestly excessive?

36. [36]
    The real issue on this application is whether the conclusion of the sentencing judge that some component of actual custody was required to be served by Mr Bates was outside the proper exercise of the sentencing discretion in the circumstances.
37. [37]
    Mr Kissick of counsel on behalf of Mr Bates submits that the sentencing judge gave too much weight to general deterrence and insufficient weight to rehabilitation and did not explain why a sentence that allowed Mr Bates who was a youthful offender with excellent prospects of rehabilitation to remain in the community was not preferable to a sentence that required him to serve six months in custody.  In addition, as this was the first offending by Mr Bates, it was not clear from the sentencing remarks why there was a need generally for community protection.
38. [38]
    Even though Mr Le Grand accepted before the sentencing judge that the sentence could be structured, so that no actual custodial component was required, he submits in this court that the weight given by the sentencing judge to the various factors was within the sentencing judge’s discretion, and the sentence that was ultimately imposed was therefore not manifestly excessive.
39. [39]
    The comparable authorities of Collins, Griffiths and Anthony where each offender appealed successfully against a custodial component of a sentence for arson of a motor vehicle can be distinguished from the circumstances applicable to Mr Bates’ offending.  It is unnecessary to consider Hamstra which was not a true comparable authority, as it concerned an 18 year old offender who pleaded guilty to the offence of endangering particular property by fire where the maximum penalty was 14 years’ imprisonment and the offender did not intend to set fire to the building.
40. [40]
    The offender in Collins was 18 years old when he and a co-offender took a car and drove it to bushland.  The co-offender set fire to the car to destroy their fingerprints.  A workman had seen Mr Collins driving the car and when the offender was questioned by police, he implicated himself and the co-offender and was prepared to give evidence against the co-offender.  He could make restitution of $1,000 for the value of the car.  He pleaded guilty to unlawful use of a motor vehicle and arson on an ex officio indictment.  On appeal, the substituted sentence was 120 hours community service and probation for three years.  Convictions were recorded and the offender was ordered to pay restitution of $1,000.
41. [41]
    In Griffiths, the offender was 20 years old when he set fire to a motor vehicle belonging to a family where he was angered by the mother’s accusing him of having an improper interest in her daughter.  There was nothing to connect him to the offence, but he was remorseful and two weeks after he offended, he voluntarily confessed to the police.  He pleaded guilty to an ex officio indictment.  There was a delay in the prosecution of the offence that was not due to the offender.  The offender had demonstrated maturity and responsibility in the meantime.  The sentencing judge had overlooked the significance of the confession.  At first instance, he had been sentenced to two years’ imprisonment to be suspended after six months for an operational period of two years. He had already served two months by the time his appeal was heard.  The case was not one of “premeditated revenge” but “an impulsive act borne of immaturity”.  On appeal, the sentence was suspended immediately and he was also ordered to pay restitution of $3,150.
42. [42]
    The sentence imposed on the offender in Anthony was imprisonment of two years to be suspended after eight months for an operational period of two years.  The offender’s friend had purchased a utility for $7,500 and decided to destroy the utility and collect the insurance money.  He procured the offender to help him who in turn asked for assistance from an acquaintance who picked him up and drove him to the utility for which the offender had the keys.  The offender drove the utility to the bush with the acquaintance following him.  The offender doused the utility with petrol and set it alight and the acquaintance then drove him home.  The offending was caught on video and both men were charged with arson.  The offender was 21 years old at the date of offending with no prior criminal history who pleaded guilty on the first day of the trial.  As the sentencing judge had made two errors in sentencing, the offender was re-sentenced on appeal where the sentence remained two years’ imprisonment, but he was released immediately on parole.  He had spent four or five days in custody before being released.  The offender was described as “a youthful first offender with a previously excellent character” who had shown actual rehabilitation since he offended due to his own efforts.
43. [43]
    Mr Bates was also a first offender with an excellent work history (apart from his work for the transport company in the months before he left that employment).  Mr Bates was not as young as the offender in Collins and a little older than the offenders in Griffiths and Anthony.  Provided Mr Bates can remain drug free, he has excellent prospects of rehabilitation.  The distinguishing feature of Mr Bates’ offending is that it was premeditated and took some planning.  It involved him checking on the transport company’s premises before he procured the co-offenders to assist him as the principal offender in achieving the revenge on his former employer by breaking into the employer’s premises and stealing property.  The arson of the motor vehicle was intentionally committed by Mr Bates to avoid detection.  The fact that Mr Bates was using methylamphetamine leading up to the offending may explain why he offended in a way that was described by his parents and his parents’ neighbour in their references as out of character and was relevant to his prospects of rehabilitation, but it does not reduce the criminality of his offending.
44. [44]
    The four offences were committed in one protracted period of offending and Mr Bates’ sentence for the arson reflected his overall criminality for all offences.
45. [45]
    The offer of restitution was relevant to Mr Bates’ remorse, particularly to the extent that he was proposing to make the payment, but the degree of that remorse was unclear when it was not apparent before the sentencing judge how much of the sum of $18,000 was being contributed by Mr Bates’ parents.
46. [46]
    The sentencing judge recognised the mitigating factors in favour of Mr Bates by limiting the custodial component of the effective head sentence of three years’ imprisonment to one-sixth of that sentence.  General deterrence for any disenchanted former employee who may wish to cause property damage and loss to the former employer was an appropriate sentencing consideration.  I therefore could not conclude that the sentencing judge was in error in balancing the mitigating factors with the objective seriousness of the offending for the outcome that a period of six months of the sentence must be served by Mr Bates in actual custody.
47. [47]
    I would therefore have refused application for leave to appeal against sentence.