R v Hughes[2025] QCA 72

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 3 November 2023 the applicant pleaded guilty to one count of manslaughter committed on 5 February 2021 when he killed 22 year old Ms Board.  The applicant was sentenced to imprisonment for 12 years.  He was also disqualified from holding or obtaining a driver’s licence absolutely from 3 November 2023.  A presentence custody declaration was made in respect of the period of 998 days that the applicant had been held in custody between 8 February 2021 and 2 November 2023.

Abandonment of sentence leave application

2. [2]
   Legal Aid Queensland (LAQ) filed an application for leave to appeal against sentence on the applicant’s behalf within time on 8 November 2023.  Around the same time, the applicant’s grandmother with the assistance of his aunt retained Connolly Suthers Lawyers (CSL) to consider an appeal on behalf of the applicant.  On 13 November 2023 CSL advised the Court of Appeal registry they were representing the applicant.  LAQ subsequently confirmed with the registry that CSL was acting for the applicant.  On 9 February 2024 CSL received an advice from the barrister they had briefed and conferred with the applicant on 19 February 2024.  According to the solicitor from CSL, during that conference the applicant confirmed to that solicitor that he did not wish to proceed with his appeal.  The applicant sent a letter to CSL dated 19 March 2024 in which he stated he relieved the named solicitor of CSL “of his legal representation that he was assisting [the applicant] with”.  The solicitor sought clarification from the applicant’s aunt that the applicant intended to abandon the appeal and that was confirmed by the aunt on 3 April 2024 who spoke to the grandmother rather than the applicant.  The notice of abandonment of the sentence leave application filed on 8 November 2023 was signed by the solicitor at CSL and filed in the registry on 16 April 2024.
3. [3]
   In the meantime, the applicant’s application for legal aid was received by LAQ on 23 February 2024 and Mulcahy Ryan Lawyers received a grant of aid from LAQ effective from 28 March 2024 to provide a merit assessment advice for the sentence leave application.
4. [4]
   The applicant filed an affidavit sworn on 18 September 2024 in which he explained that he probably did agree with the solicitor from CSL that he would no longer proceed with the appeal or discontinue the appeal and that there would be paperwork for him to sign.  The applicant stated, however, that he was of the view that he would keep fighting the sentence by applying for legal aid rather than wasting any more of his grandmother’s money on private solicitors.  He no longer wanted CSL to be his lawyers but intended applying to LAQ for legal representation instead.  That was why he applied for legal aid after the conference on 19 February 2024.  At no time did he give instructions to his grandmother or his aunt to tell the solicitor at CSL to abandon or stop his appeal, as that was not what he wanted.
5. [5]
   Under r 69(4) of the Criminal Practice Rules 1999 (Qld) the Court may set aside the abandonment of an application for leave to appeal and reinstate the application if the Court considers it necessary in the interests of justice.
6. [6]
   As explained by Keane JA in R v MBC [2008] QCA 263 at [4]-[6], there must be a good reason for reinstating a sentence leave application which has been abandoned.  It is apparent from the applicant’s affidavit that he never intended to abandon his sentence leave application but did not wish CSL to continue to act.  There appears to have been some miscommunication between the applicant and his family members about his intention or misunderstanding by his family members about the applicant’s intention only to terminate the retainer with CSL rather than abandon the appeal.  That intention of the applicant was manifested by his immediately applying for legal aid after the conference with the solicitor from CSL and the terms of his letter dated 19 March 2024 sent to CSL.  The applicant had pleaded guilty to a serious offence and a significant term of imprisonment had been imposed for that offending.  For the purpose of the reinstatement application, it is not necessary to consider in detail the applicant’s prospects of success on the sentence leave application when he did not intend to abandon it.  It is in the interests of justice in the applicant’s circumstances for the Court to set aside the notice of abandonment of the sentence leave application and reinstate the application for leave to appeal against sentence.

Grounds of appeal

7. [7]
   The applicant applies for leave to appeal against his sentence on the ground that it was manifestly excessive arising from any one or more of the following reasons:

   1. the sentencing judge erred in determining the notional starting point on sentence was greater than 12 years;
   2. the sentencing judge erred in failing to place adequate weight on the applicant’s youth or otherwise allowed other factors on sentence to overwhelm the consideration of youth such that it was not sufficiently taken into account;
   3. the sentencing judge erred in failing to take into account the role of Mr Clubb, the driver of the stolen vehicle, in causing the applicant to lose control of his car as a relevant matter or otherwise as a matter to which greater weight should have been given; and
   4. the sentencing judge erred in taking into account on the sentence the factual matters of the prior involvement of the applicant with Clubb such that it overwhelmed other considerations that favoured a lesser sentence.
8. [8]
   The overarching ground of appeal is that the sentence was manifestly excessive.  As there are four identified reasons advanced for the manifest excess that are also expressed in terms of errors made by the sentencing judge, it is necessary to address whether any such errors were made by the sentencing judge.

Circumstances of the offending

9. [9]
   The applicant was part of Facebook messenger group entitled MOB.  Members of this group would discuss stolen cars in Townsville, exchange details of sightings of stolen cars and some members (including the applicant) would engage in pursuits of stolen cars.  During these pursuits, members would make group phone calls to describe the chase and coordinate with others.  The person by the name of Clubb was known to the applicant.  On a number of occasions over the 12 months preceding the date of the offence, the applicant had engaged in pursuits of vehicles driven by Clubb.
10. [10]
    On the night of the offence, the applicant was driving his Holden Statesman vehicle.  The applicant had two passengers in his car who were also members of the MOB group.  He became involved in a pursuit of a stolen Hyundai i30 some time prior to 10.00 pm.  The Hyundai was initially driven by one Newman.  When Newman was driving, the cars lapped a block several times at speed.  Clubb was inside a residence which he left and threw a set of shock absorbers at the Statesman which struck it.  Clubb hopped into the Hyundai and was driven away.  A short time later, Clubb swapped into the driver’s seat of the Hyundai.
11. [11]
    The applicant drove to a car park on Riverway Drive to inspect the damage to the Statesman done by the shock absorbers.  The applicant told his passengers and the other MOB group members that he believed his cousin was in the Hyundai.
12. [12]
    Clubb was driving the Hyundai onto Riverway Drive past the car park where the applicant was situated and was seen by the applicant who said words to the effect that, if his cousin was in that car, he was “going to get him”.  The applicant drove the Statesman out of the car park and sped along Riverway Drive in pursuit of the Hyundai.  Someone in the Statesman initiated a group call on the MOB messenger group.
13. [13]
    For the purpose of the sentence the prosecution had compiled CCTV footage that followed the progress of the Statesman and the Hyundai from Riverway Drive to Ross River Road where the fatal incident occurred.  It was a period of two minutes from the time the applicant left the car park until the Statesman collided with Ms Board’s motorcycle.  The sentencing judge who watched the CCTV footage described the manoeuvres of the vehicles and the fatal collision as follows:

“For the last few hundred metres before reaching Ross River Road both vehicles were travelling at high speed, changing lanes and moving in and out of traffic. As you approached the intersection of Riverway Drive and Ross River Road the traffic lights displayed a green signal to travel straight through the intersection and a red turn arrow for the right turn onto Ross River Road. Clubb used the inside turn lane to turn against the red signal onto Ross River Road, narrowly missing another car travelling through the intersection. You used the third lane, which is not designated as a turn lane, to turn across the intersection against the red signal onto Ross River Road. From this point to the point where Ms Board died was a distance of about 700 metres or, in terms of time I am told, around two minutes’ travel. It is accepted from this point on both cars were travelling at between 120 kilometres an hour and 130 kilometres an hour in a stretch of road speed limited to 60 kilometres per hour; in other words, at least twice the allowed speed for that stretch of road.

But it was not only speed involved in your driving. You continued to change lanes and overtake other road users. You were able to catch up to the Hyundai and you were travelling extremely closely to the rear of the Hyundai. That is made clear by the statement of facts but the footage, which has been played in court today, demonstrates that proposition amply. At around the same time, Clubb’s passengers at the time were yelling at Clubb to slow down. He braked heavily, causing the Hyundai to jerk. You continued to drive the Statesman extremely close to that vehicle.

When eventually the front bumper bar of your vehicle connected with the rear of the Hyundai, your vehicle started to swerve and slid across the centre island onto the wrong side of the road and collided with a motorcycle being ridden by Ms Board. Both vehicles were propelled into the fence outside the Weir State School. The Hyundai sped away and was later dumped at Garbutt. The members of the MOB group were notified of the crash over the group call and immediately attended the scene, along with other members of the public, who had witnessed or heard the crash.

Ms Board suffered what are described as catastrophic injuries. The first responders were not able to locate a pulse and she was later declared deceased.”

14. [14]
    After the applicant emerged from the Statesman, he directed one of the members of the group to retrieve the dash camera from the Statesman.  The following day a member of the group provided the applicant with the dash camera.  The applicant removed the memory card, broke it, put it in a dish where another person sprayed it with aerosol, and the applicant attempted to set it on fire with a lighter.  The sentencing judge drew the inference (that is not challenged) that the applicant attempted to destroy the SIM card to conceal evidence of the true nature of his driving in the lead up to the incident.  It was treated as post-offence conduct that negated any suggestion of willingness to cooperate with the police in the immediate aftermath of the incident.

Applicant’s antecedents

15. [15]
    The applicant was 25 years old at the date of the offence.  He had one entry in his criminal history for an assault occasioning bodily harm.  He had an extensive traffic history.  He had previously been disqualified from driving and, at the time of the offending, was subject to late night driving restrictions.  The offence was not committed in breach of those restrictions.  The applicant had a prejudicial upbringing.  Both his parents were drug addicts and the applicant’s father died in a traffic accident.  The applicant was raised by his grandparents.  His grandfather died in 2008 and he has remained close to his grandmother.  The applicant left school at year 9 and worked in casual, short-term and unskilled occupations.  He was unemployed at the date of the offence.
16. [16]
    For the purpose of the sentencing, the applicant was assessed by neuropsychologist Dr Zeeman and psychologist Ms Jones.  As a result of those reports, the sentencing judge accepted that the applicant was genuinely remorseful and had developed a post-traumatic stress disorder.  The applicant also had a range of other conditions for which he was medicated.  He had been the victim in 2022 of a very serious assault in prison.  The sentencing judge accepted that the combination of the applicant’s conditions with the feature that he was a target in custody made prison more burdensome for him.  The applicant had applied himself constructively whilst in custody.

Sentencing remarks

17. [17]
    There was a timely plea of guilty.  After recording the background to the driving on the night of the offence and the circumstances in which the applicant and Clubb were known to each other and set out the facts of the offending, the sentencing judge stated:

“It has been suggested in written submissions that you were acting as a vigilante, but you were not acting out of any sense of personal injustice, outrage or even grievance. You were acting for the thrill of the chase and, to your enduring shame, for the amusement in some perverse way of the other members of this group. The description of what you were engaged in doing as some sort of act of vigilantism is quite wrong. You are no champion of the community and any suggestion to that effect should be cast aside as utter nonsense. Even if you were to be properly described as a vigilante, such conduct has no place in any civilised society, and if actually a case involving vigilante conduct, any such person should expect a serious reaction from the court in the interests of preserving the rule of law.

The correct characterisation of your conduct is that you were engaged deliberately in unlawful conduct, driving at such speed and in such a dangerous manner that something like the terrible tragedy which resulted here must be seen to have been an almost inevitable consequence of your intentional conduct. Protection of the community and deterrence are here prominent sentencing objectives that I must give effect to through the imposition of sufficiently condign punishment.”

18. [18]
    The applicant conceded before the sentencing judge that his offending was the result of a deliberate course of conduct. There is therefore no challenge to the sentencing judge’s characterisation of the applicant’s dangerous driving and speeding as deliberate that killing another user of the road was “an almost inevitable consequence”.
19. [19]
    The sentencing judge did not consider any of the cases to which he had been referred by counsel on the sentencing as truly comparable.  The sentencing judge proceeded to assess the objective seriousness of the applicant’s offending and give credit for the factors in mitigation.  The sentencing judge concluded:

“Having regard to your timely plea of guilty, your genuine remorse, your relative youth at the time of this offence, your limited criminal history, your family background, the consequences to you of your offending including the feature that prison is and will continue to be more burdensome to you than to others, the efforts you have made in custody, the positive signs which I accept exist for your rehabilitation, the low risk which also I accept of you committing this type of offence again, and the presence of support and plans for you on your release, I reduce the head sentence I would otherwise have imposed and arrive at the sentence I am about to impose.”

Did the sentencing judge make any of the asserted errors?

20. [20]
    Reason (a) was expressed in the amended notice of appeal as an error by the sentencing judge in determining the notional starting point on sentence was greater than 12 years.  The submission made on the hearing of the application refined this error in terms that, in failing to indicate the starting point above 12 years, the sentencing judge had not made clear the reasoning for imposing a sentence of 12 years and that deficiency in the reasons made the sentence of 12 years’ imprisonment excessive on its face.  Reason (a) suggests the premise that a sentencing judge is required to determine the notional starting point before making deductions for mitigating factors.  That premise is contrary to the instinctive synthesis approach required by Markarian v The Queen (2005) 228 CLR 357 at [37] that the sentencing judge must “take account of all of the relevant factors and to arrive at a single result which takes due account of them all”.  There was no error made by the sentencing judge in terms of reason (a).
21. [21]
    The assertion in reason (b) that the sentencing judge failed to place adequate weight on certain factors favourable to the applicant does not itself raise an appellable error, as submissions on weight given to mitigating factors are relevant only to the question of whether the ultimate sentence was manifestly excessive.  See the similar observations made in R v BEJ [2024] QCA 135 at [35]-[36].
22. [22]
    Reason (c) misconceives the relevance of Clubb’s role to the applicant’s criminality.  The applicant was properly sentenced by the sentencing judge on the basis that his conduct that resulted in the death of Ms Board was due to his deliberately driving at such speed and in such a dangerous manner that the tragedy of Ms Board’s death was the inevitable consequence of his deliberate conduct.  There was no error in the sentencing judge not giving some attribution of blame to Clubb in sentencing the applicant for his criminal conduct.
23. [23]
    Reason (d) is based on an asserted error that the sentencing judge placed greater weight than should have been given to the applicant’s prior involvement with Clubb.  This reason ignores the sentencing judge’s use of those factual matters to provide context for the incident that resulted in the death of Ms Board that supported the trial judge’s finding that the applicant’s dangerous driving in chasing Clubb’s vehicle was deliberate.  Reason (d) has no foundation in the sentencing remarks when the sentencing judge made an express statement that the applicant was not being sentenced for his prior conduct which was being involved in pursuits of stolen vehicles, including engaging in pursuit of vehicles driven by Clubb.

Sentences for manslaughter caused by driving

24. [24]
    It is only relevant to refer to authorities for the offence of manslaughter caused by dangerous driving and not authorities for dangerous operation of a vehicle causing death with a circumstance of aggravation, as the maximum penalty for the latter offence is imprisonment for 20 years whereas the maximum penalty for manslaughter is life imprisonment.
25. [25]
    The primary judge noted in the sentencing remarks that reference had been made to R v Folland [2004] QCA 209, R v Clark [2009] QCA 361, R v Robertson [2010] QCA 319, R v Derks [2011] QCA 295, R v Pavey-Rees [2020] QCA 29, R v Kirke [2020] QCA 53 and R v YTZ; Ex parte Attorney-General (Qld); R v YTZ [2023] QCA 87.  The last-mentioned case can be put aside for any use as a yardstick, as the sentence was imposed on a youth who was 17 years and 6 months old at the date his grossly negligent driving killed two people.  Even though for the purpose of the sentencing, the maximum penalty for manslaughter was detention for life because of the finding made under s 176(3)(b) of the Youth Justice Act 1992 (Qld), the sentencing still proceeded in accordance with the principles applicable to the sentencing of youth under that Act.
26. [26]
    The offender in Folland was acquitted of murder but found guilty of manslaughter after the trial and sentenced to nine years’ imprisonment with a serious violent offence declaration.  There had been an altercation between the offender and the victim who left the front of the house, crossed the road and was on or adjacent to the footpath on the opposite side of the road.  The offender got into his motor vehicle, reversed it into a light pole away from the victim and then drove the vehicle forward partly on the footpath until it struck the victim who died at the scene.  The acquittal for murder was attributable either to the jury not being satisfied beyond reasonable doubt that the offender had the requisite intention for murder (because the driving was negligent) or on the basis of provocation.  The appeal against conviction was dismissed.  The trial judge in sentencing the offender considered his conduct demonstrated a high level of violence.  The sentence leave application was refused.  The circumstances of the offending in Folland are distinguishable from the applicant’s deliberate course of dangerous driving.
27. [27]
    Even though the offender in Clark pleaded guilty to two counts of manslaughter by driving onto the footpath in a reckless manner and killing two teenage boys after she took various prescription drugs in excess of their therapeutic dosage, her sentence was reduced to nine years’ imprisonment on the basis that her reckless driving was irrational (rather than deliberately anti-social) due to her bipolar disorder which reduced her moral culpability and the need for general and personal deterrence.
28. [28]
    The offender in Robertson was 47 years old when he exchanged insults with the victim who was not known to him while they were both driving their cars out of the carpark of a bottle shop.  The offender was enraged by the victim’s insults and for about 20 or 30 seconds and over a distance of about one kilometre, the offender drove after the victim’s car, colliding with the rear at a speed which was less than 60 km/h.  The victim accelerated to get away to at least 70 to 80 km/h as they drove up a rise in the road and the offender deliberately rammed the rear of the victim’s car several times.  When the cars were then travelling downhill, the offender repeatedly drove his car into the rear of the victim’s car.  The final collision occurred when the offender’s car was travelling at 120 or 140 km/h and the driver’s side of his vehicle collided with the passenger side of the victim’s car or it was an off-centre collision.  The victim’s car spun out of control and collided with a light pole.  The victim was killed and his four passengers were injured.  The offender left the scene.  When spoken to by police, he was not interested in the welfare of the people in the victim’s car.
29. [29]
    The offender in Robertson was charged with one count of murder, one court of dangerous operation of a motor vehicle causing grievously bodily harm with circumstances of aggravation and three counts of assault occasioning bodily harm.  At the commencement of the trial the offender pleaded not guilty to murder but guilty to the alternative charge of dangerous operation of a motor vehicle causing death whist excessively speeding and leaving the scene of the accident which was not accepted by the prosecution in discharge of the murder count.  The offender pleaded guilty to dangerous operation of a vehicle causing grievously bodily harm in respect of one of the passengers but pleaded not guilty to the three counts of assault occasioning bodily harm in respect of the other three passengers.  The offender gave evidence that it was not until the last collision that the victim lost control of his car.  The offender stated that he did not intend to kill or do serious harm to the occupants of the victim’s car.  He was found not guilty of murder but guilty of manslaughter and guilty of the three charges of assault occasioning bodily harm.  Provocation was not a factor in the verdict of guilty for manslaughter.  His sentence for the manslaughter of 14 years’ imprisonment was reduced to 12 years’ imprisonment on appeal on the ground it was manifestly excessive.  Likewise, his sentence for the dangerous operation of a vehicle causing grievous bodily harm was reduced from 12 years’ to 10 years’ imprisonment.  Fraser JA (with whom Holmes JA agreed) noted at [35] that there was a need for a deterrent sentence which denounced the offender’s conduct for his grossly culpable driving which caused the death of one young man, the grievous bodily harm of another and the injuries to three other passengers.  His offending arose out of “an extravagant overreaction” to the insults from the victim but was not in the worst category of dangerous driving or criminal negligence.  The aggression of the offender in Robertson explained his offending, even though it was no excuse for the offending, and his criminal negligence can be contrasted with the applicant’s deliberate conduct in driving in the manner in which he did where the inevitable consequence was a fatality.
30. [30]
    An error was made by the sentencing judge in Derks in imposing a global sentence on the offender for manslaughter when the other offences which resulted in the additional criminality could not be the subject of a serious violent offence declaration.  The offender who was 21 years old when he offended with a “most concerning” criminal and traffic history was therefore successful on the appeal in being resentenced.  The sentence of 13 years’ imprisonment for manslaughter was reduced to 11 years and the sentence imposed on another count of two years was ordered to be served cumulatively on the sentence for manslaughter and a parole eligibility date was fixed that took into account that the cumulative sentence of two years’ imprisonment was not for a serious violent offence.  The offender committed a series of offences involving stealing, unlawfully using a motor vehicle and dangerous operation of a motor vehicle over a period of a few days.  He committed the manslaughter after attracting the attention of the police at a breath test site whilst he was driving a vehicle he had stolen and then, when he was being followed by the police, he drove in the wrong direction on one lane of the Bruce Highway into the path of ongoing traffic accelerating up to 140 km/h where the speed limit was 80 km/h.  He travelled about 580 metres before hitting the victim’s vehicle head on and killed the completely innocent driver who was on her way to work.  His BAC was estimated to be about 0.22 per cent.  He pleaded guilty to all the offences including manslaughter at the committal hearing.  McMurdo P (with whom White JA and Fryberg J agreed) considered at [35] that the manslaughter was a grave example of the offence and that 11 years’ imprisonment for the offence of manslaughter was appropriate for the many exacerbating and few mitigating features of the offending.  Again, it was the intoxication of the offender, though not an excuse, that provided some explanation for the offending.
31. [31]
    The offender in Pavey-Rees was unsuccessful in seeking leave to appeal against the sentence of 10 years’ imprisonment imposed for manslaughter on his guilty plea.  He was 21 years old when he offended with a relevant prior criminal history, as he committed the offence on the day he was released from prison on parole for offences which included dangerous operation of a motor vehicle.  Even though he was disqualified from holding or obtaining a driver’s licence, he took the V6 Holden Commodore in which his mother had driven him home for a drive, when he collided with a telephone box and then a fence.  He zigzagged through back streets, overtook at speed, and entered a roundabout from the wrong side of the road.  On seeing a police car, he did a U-turn and the police car activated its lights and sirens.  A speed camera showed the offender’s vehicle was travelling at 152 km/h.  He continued to drive erratically and the fatal collision occurred when he crossed onto the wrong side of the road to overtake a heavy vehicle and struck the vehicle driven by the victim.  Five seconds prior to impact, the offender’s vehicle was travelling at 101 km/h.  The distance from the damaged fence to the fatal crash was 7.5 km.  He ran away from the crash scene.  His explanation for his conduct was that, after hitting the telephone box, he was afraid of being returned to prison and sped up after seeing the police car.  The sentencing judge had taken into account the offender’s youth and associated immaturity and lack of foresight.  There was no alcohol or drugs involved in the offending.  Holmes CJ (with whom Morrison and McMurdo JJA agreed) observed at [20] that the sentence was a heavy one for an offender of his youth but was within a proper exercise of the sentencing discretion.  Despite the offender’s prior relevant criminal history, the youth and immaturity of this offender which contributed significantly to his offending distinguishes this offending from the applicant’s deliberate offending conduct.
32. [32]
    The circumstances of the offending in Kirke committed by a 17 year old in the course of a home invasion who was driving away from the scene when the victim who had come to the rescue of those being robbed was struck by the vehicle make that decision distinguishable from the applicant’s offending.
33. [33]
    On the hearing in this Court, the applicant also relied on R v Glenbar [2013] QCA 353 which was not separately relied on before the sentencing judge but was summarised in detail in Pavey-Rees at [13]-[14].  It is not surprising that it was not put before the sentencing judge as a comparable authority as the aggravating aspect of that offending was that the offender had a BAC of between 0.16 and 0.22 per cent when he struck and killed two pedestrians when he failed to take a bend while being chased by the police because he had been speeding and he had been convicted of driving with a BAC above the legal limit on two occasions in the preceding eight months and the BAC on the second occasion was 0.127 per cent.

Was the sentence manifestly excessive?

34. [34]
    The essence of the applicant’s submissions was that the ultimate sentence of 12 years’ imprisonment did not sufficiently take account of the mitigating factors identified by the sentencing judge.
35. [35]
    As the above analysis of the cases concerning sentences for vehicular manslaughter show, the sentencing judge observed correctly that none of the cases to which his Honour was referred was truly comparable to the applicant’s offending.  What distinguished the applicant’s offending conduct was that he was not intoxicated in any way, there was no legitimate purpose for him to be driving his vehicle in pursuit of Clubb’s vehicle, and his dangerous driving and driving at speed was done deliberately for “the thrill of the chase”.  It was a most serious aspect of the applicant’s offending that a completely innocent user of a public road was killed because of the deliberate manner of driving by the applicant where it was inevitable that such a tragedy would occur from that course of driving.  This made the applicant’s offending objectively at the more serious end of manslaughter offences committed by driving a vehicle.  The distinguishing features of the applicant’s offending mean that his sentence was not manifestly excessive in comparison to the sentences in the cases analysed above.  Community protection, general deterrence and denunciation of the applicant’s conduct were significant purposes in sentencing the applicant.  Even allowing for the mitigating factors expressly listed by the sentencing judge, the applicant cannot show that the sentence of 12 years’ imprisonment which was the subject of a serious violent offence declaration was unreasonable or plainly unjust in his circumstances and in all the circumstances of his offending.

Orders

36. [36]
    The orders which should be made are:

1. The notice of abandonment of application filed on 16 April 2024 is set aside and the notice of application for leave to appeal against sentence filed on 8 November 2023 is reinstated.
2. Application for leave to appeal against sentence is refused.

37. [37]
    BROWN JA:  I agree with Mullins P.
38. [38]
    HENRY J:  I agree with Mullins P.