On an appeal by a convicted person against sentence, it is for the appellant to satisfy the Court of Appeal that the sentencing judge was in error. This burden is distinct from the burden on the DPP in a Crown appeal against undue leniency, and authorities decided in the context of Crown appeals must be read in that context.
A sentencing judge does not err by expressing caution about an offender's rehabilitation prospects where the rehabilitative efforts appear to have been motivated by pending court appearances, provided the judge accepts the evidence of ongoing rehabilitation. DPP v Leach [2003] VSCA 96, which concerned the weight to be given to rehabilitation and mercy in sentencing, must be read in its context as a Crown appeal against undue leniency and does not support the proposition that full suspension is the only available course where rehabilitation prospects are positive. A sentence of actual incarceration of less than one-tenth of the maximum penalty for a serious instance of intentionally causing injury is merciful rather than excessive.
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