Abdifar v The Queen

[2012] VSCA 66

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0401

SAM ABDIFAR
	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	WEINBERG JA and HOLLINGWORTH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 February 2012
DATE OF JUDGMENT:	19 April 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 66
JUDGMENT APPEALED FROM:	R v Abdifar (Unreported, County Court of Victoria, Judge Pilgrim, 18 October 2010)

---

CRIMINAL LAW – Sentencing – Total effective sentence of 7 years and 6 months for multiple offences related to two home invasion incidents – Whether sentencing judge had proper regard to bipolar condition – Sentence of 6 years’ imprisonment for second aggravated burglary manifestly excessive – Resentenced to 4 years’ imprisonment for that offence – Sentencing judge had moderated and cumulated other individual sentences after treating second aggravated burglary as base sentence – Sentence of 2 years’ imprisonment for intentionally causing serious injury required increase – No change to overall total effective sentence – Non-parole period of 5 years and 9 months not manifestly excessive

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Valos Black & Associates
For the Respondent	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

1. I agree with Hollingworth AJA.

HOLLINGWORTH AJA:

Introduction

1. The appellant appeals against a total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 9 months, which was imposed on him on 18 October 2010, following his plea of guilty to the following offences:

Charge	Offence	Maximum	Sentence	Cumulation
1	Aggravated burglary	25 years’ imprisonment	4 years’ imprisonment	1 year
2	Theft	10 years’ imprisonment	18 months’  imprisonment
3	Common assault	5 years’ imprisonment	6 months’ imprisonment
4	Criminal damage	10 years’ imprisonment	1 year’s imprisonment
5	Causing injury intentionally	10 years’ imprisonment	2 years’ imprisonment
6	Common assault	5 years’ imprisonment	6 months’ imprisonment
7	Aggravated burglary	25 years’ imprisonment	6 years’ imprisonment	Base sentence
8	Causing serious injury intentionally	20 years’ imprisonment	2 years’ imprisonment	6 months
9	Possession of drug of dependence (steroid)	5 years’ imprisonment	3 months’ imprisonment
10	Possession of drug of dependence (MDMA)	5 years’ imprisonment	3 months’ imprisonment

Charge	Offence	Maximum	Sentence	Cumulation
Summary offence	Possession of prohibited weapon (crossbow)	2 years’ imprisonment	6 months’ imprisonment
Summary offence	Possession of property reasonably suspected of being proceeds of crime ($4,125)	2 years’ imprisonment	6 months’ imprisonment
Total effective sentence			7 years and 6 months’ imprisonment
Non-parole period			5 years and 9 months’ imprisonment

1. The appellant’s two co-offenders, Serkan Kahya and Niko Lauina, were sentenced on 29 April 2011, by a different County Court judge.  Kahya has appealed against his sentence, on the ground of disparity with the appellant’s sentence.  Given the nature of Kahya’s appeal, which was heard immediately after this appeal, it is convenient to set out the facts of the entire offending here, in order to understand the respective roles of the co-accused. 

1. The primary victim, Michael Di Stella, met the appellant through a mutual acquaintance, some weeks before the offences occurred.  After buying drugs from the appellant, Di Stella owed him $1,750. 

1. On 13 January 2010, Di Stella told the appellant that he planned to stop using drugs, and would not be buying any more from him.  The appellant demanded that, by 17 January 2010, Di Stella repay the $1,750 debt, as well as a further $1,400 which Di Stella owed to a mutual acquaintance.

1. On 16 January, Di Stella paid $1,400 to the appellant.  Over the next few days, the appellant tried, unsuccessfully, to contact Di Stella regarding the outstanding balance.  Di Stella largely ignored the appellant’s messages.

1. On 18 January, the appellant told his friend, Kahya, that he was having trouble recovering the money from Di Stella.  Kahya told the appellant that he had his back covered, and could organise help if it was needed.

1. Around 7:20am on 19 January, the appellant, Kahya and Lauina forced their way into Di Stella’s apartment, wearing hoods, and carrying a 2 foot long metal pole.  At that time, Di Stella was at work, but his flatmate, Christopher Corse-Scott, was at home (Abdifar charge 1, Kahya charge 1 - aggravated burglary).

1. The appellant demanded to know where Di Stella was.  The appellant took a knife from the kitchen, and held that and one of the poles over Corse-Scott, leading him to fear he was going to be stabbed (Abdifar charge 3 - common assault). 

1. Kahya and Lauina searched the apartment for Di Stella.  When they found that he was not there, at the appellant’s instruction they ransacked the apartment.  The appellant smashed the air-conditioning unit with his pole (Abdifar charge 4 - criminal damage). 

1. At the appellant’s direction, Kahya and Lauina took various items of property from the apartment, including a computer, jewellery and Di Stella’s safe.  The total value of property taken was almost $62,000 (Abdifar charge 2, Kahya charge 2 - theft).  

1. The appellant warned Corse-Scott against calling the police.  He threatened to find Di Stella’s parents if police became involved.  He also told Corse-Scott to tell Di Stella to call him. 

1. This whole incident occurred over about 20 to 30 minutes.

1. After the three offenders left the apartment, Corse-Scott rang Di Stella, who came home.  Corse-Scott and Di Stella went downstairs, looking for the offenders.  When they found them, there was an argument between the appellant and Di Stella.  Di Stella asked for his property back.  The appellant demanded the combination for the stolen safe.  During the argument, the appellant assaulted Di Stella by hitting him forcefully with a rolled-up umbrella.  The appellant also slapped Di Stella hard on the side of the head, causing a ruptured eardrum (Abdifar charge 5 – causing injury intentionally).  The assaults occurred in the presence of Kahya and Lauina (Kahya charge 3 – common assault).

1. The appellant sprayed Zippo lighter fluid over Di Stella’s chest, shoes and pants, held up an unlit lighter, and threatened to set Di Stella on fire unless he disclosed the combination to his safe (Abdifar charge 6 - common law assault).  Di Stella gave him the number.

1. Di Stella returned to work, but did not call the police, because Corse-Scott had told him of the appellant’s threat to find his parents.

1. Later that day, a mutual acquaintance told Di Stella that the appellant would return the stolen property if Di Stella paid him $2,300 (being the money still owing, plus interest).  Corse-Scott subsequently gave the appellant $2,200 on Di Stella’s behalf, but the appellant did not return the property.  He later told Di Stella he would do so the following evening.

1. On the evening of 20 January, Di Stella’s friend, Melissa Doyle, came to his apartment for dinner.  The appellant, Kahya and Lauina arrived around 7:30pm.  Believing that the appellant had come alone to return his property, Di Stella released the downstairs security door, to allow Abdifar to enter.  He asked Doyle to wait in his bedroom.  The appellant and Kahya entered Di Stella’s apartment, each carrying 2 foot long metal poles, accompanied by an unarmed Lauina (Abdifar charge 7, Kahya charge 4 - aggravated burglary). 

1. The three offenders approached Di Stella.  The appellant said that nothing was up for negotiation.  He and the co-offenders began beating Di Stella with the poles, and also kicking and punching him, to the head, body and neck (Abdifar charge 8, Kahya charge 7 – causing serious injury intentionally).  Di Stella fell to the ground and began convulsing.  He lost muscular control of his arms and was unable to protect himself.  His whole body was shaking.  He feared he would be killed.

1. Hearing Di Stella being attacked in the next room, Doyle called ‘000’.  As she was calling, Kahya discovered her hiding in the wardrobe; he grabbed her and she screamed and struggled.  He told her to shut up and took her phone from her  (Kahya charge 6 – theft).  He slammed the wardrobe door, and kept her locked inside (Kahya charge 5 – false imprisonment).  

1. During a pause in the attack, and fearing what was about to happen next, Di Stella ran onto the balcony, and jumped onto the balcony below.  He managed to get away, seriously injured, eventually crawling on all fours. 

1. Di Stella suffered closed head injuries, a haemorrhage in his right eye, fractured right and left heels, and multiple lacerations and contusions.  He needed surgery on his feet and stitches to his face.  He was unable to walk or work for a number of months, and lost his job as a result.  At the time of sentencing, he was suffering from chronic pain, and had developed post-traumatic stress disorder and depression.

1. On 4 February, police raided the appellant’s house, and found 5 vials of steroids (Abdifar charge 9), 77 tablets containing MDMA (Abdifar charge 10), a crossbow (Abdifar summary charge), and $4,125 in cash, suspected of being the proceeds of crime (Abdifar summary charge).

1. When arrested, Kahya was found to be in possession of a small quantity of the drug Alprazolam (Kahya charge 8 – possession of drug of dependence).

1. The appellant sought leave to appeal on the following grounds:

1.The sentence of six years imposed on charge 7 (aggravated burglary) was manifestly excessive given the circumstances and the connexion between the offending and the appellant’s serious mental illness.

2.The head sentence and non-parole period are manifestly excessive.

3.The sentencing judge erred in taking into account in sentencing matters with which the appellant was not charged, namely that he had threatened Di Stella’s family and that he had threatened to set fire to Di Stella.

4.The sentencing judge erred in not taking into account in sentencing the moderation of general deterrence and the additional burden of imprisonment arising from the appellant’s serious mental illness.

1. On 2 November 2011, Neave JA granted leave to appeal in respect of grounds 1 and 4.  Her Honour refused leave for grounds 2 and 3.  The appellant has filed a notice of election in relation to those two grounds.

The appellant’s mental condition

1. There was no dispute that the appellant has been suffering for some years  from bipolar disorder.   

1. The appellant alleges that the sentencing judge did not take his bipolar condition into account in two specific ways: first, as moderating the need for general deterrence; secondly, that his bipolar disorder would make imprisonment more burdensome.

1. Dr Lester Walton provided a psychiatric report on behalf of the appellant, dated 7 September 2010, in which he expressed the following opinions:

1.Sam Abdifar has an established diagnosis of bipolar disorder which has at times reached psychotic proportions (mania). 

Mr Abdifar has a lengthy history of polysubstance abuse, especially stimulant drugs, which are well-recognised as aggravating a mental illness such as bipolar disorder. 

Mr Abdifar is of normal intelligence with no cognitive deficit. 

2.…  it certainly is my view that this man’s psychiatric condition has made a central contribution to his offending.

…

4.It does seem that the current treatment regime is effective, that is, a combination of mood stabilising and tranquilising medications.  Mr Abdifar will require ongoing psychiatric follow up, whether prison based or in the community.  …

5.If my hypothesis is correct that this man’s mental disorder has made a relevant contribution to his offending, then it follows logically that if his illness is brought under control, that ought to lower the risk of recidivism, and I am pleased to report that Mr Abdifar does seem to be suffering from a treatment‑responsive condition and that he is compliant with treatment.

6.In my view it is open to the sentencer to invoke those principles enunciated in Verdins.  Mr Abdifar was mentally ill at the times of his offending and the management of his condition remains a current consideration.  Simply because Mr Abdifar relapsed into drug abuse again does not necessarily indicate a long-term poor prognosis specifically in that regard but whether or not he remains drug-free certainly does have implications for his mental health and his risk of reoffending.  Mr Abdifar is suffering from an uncommon major mental disorder which may be seen as relevant to ameliorating the general deterrent aspects of sentencing.  When psychotic, Mr Abdifar would not appreciate the specific deterrent component of any particular disposition but because persons achieve relative normality between episodes of more severe mood disturbance when the underlying condition is a bipolar disorder, there is no reason to suspect that Mr Abdifar may not fully appreciate specific deterrence during those periods.  …

1. Dr Walton did not explain on what material he had relied, in forming the opinion that the appellant’s psychiatric condition had made ‘a central contribution’ to his offending.  Since his report contained no description of the circumstances of the offending, or the appellant’s symptoms at the relevant times, it is not clear on what factual basis he formed his opinion.  Fortunately for the appellant, the prosecutor said that he was instructed to accept that there was a link ‘to some degree’ between the bipolar condition and the offending, and the matter was not explored further.  It is not appropriate for us to disregard that concession by the Crown, even though it would have been preferable for the sentencing judge to have required a proper explanation of the precise role which the bipolar disorder was said to have played in the offending.  The need to explore that issue is particularly great where, as here, there is an alternative or additional explanation for the offending, namely, the appellant’s longstanding abuse of drugs.

1. The sentencing judge did have regard to Dr Walton’s report, some of which he quoted in his sentencing remarks.  In relation to mental health, his Honour concluded:

58.Your mental health compromised by your drug use has impaired your mental functioning.  I have no doubt of that.  I must take into account and adjust what otherwise I may have done because of the sadness of your mental health, something over which you really haven’t got control, but then you compromise it by abusing drugs.  … [Verdins case] set out a non-exhaustive list of ways in which impaired mental functioning may reduce an offender’s moral culpability.  Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had an effect on impairing the offender’s ability to exercise appropriate judgment, impairing your ability to make calm and rational choices or to think clearly, making the offender disinhibited.  That’s the very thing bipolar does.  When you are on a high, you are disinhibited.  Impairing the offender’s ability to appreciate the wrongfulness of the conduct, obscured in the intent to commit the offence or contributing casually to the commission of the offence.  All of those things apply to you.

59.…. I accept that … you have been diagnosed as having bipolar disorder and as I have just commented, you have compromised this by polysubstance abuse.

1. It is true that the sentencing judge did not specifically refer to the appellant’s bipolar condition, either in the context of general deterrence or the burden of imprisonment.  But was he in error in not doing so?

1. In the course of the plea hearing, defence counsel read out the part of the decision in R v Verdins[1], which listed the various ways in which impaired mental functioning may be relevant to sentencing.  He then argued that ‘some, if not all’ of the Verdins factors ‘weigh pretty heavily’ in the appellant’s case.  He argued that the appellant was not an appropriate vehicle for general deterrence, given his psychiatric illness:

I don’t say that general deterrence is eliminated, Your Honour, in this case, it still operates, obviously, but it needs to be sensibly moderated in the case of an offender like Mr Abdifar with a mental disorder.[2]

[1][2007] 16 VR 269.

[2]T32.

1. The prosecutor submitted that the only Verdins factors which might even have some role to play in this case were those relating to moral culpability and general deterrence.  And, given the severity of the offending, he submitted that condign punishment and general deterrence both still had a very significant role to play in this sentence.

1. In Verdins, the Court of Appeal said that whether general deterrence was to be moderated or eliminated as a sentencing consideration depended on the nature and severity of the symptoms exhibited by the offender, and the effect of the impaired mental condition on the mental capacity of the offender, whether at the time of offending or at the date of sentence or both. 

1. It is clear both from his sentencing remarks and the plea transcript that the sentencing judge did not take issue with any of Dr Walton’s evidence, and accepted that the appellant’s mental condition played a significant role in his offending.  It is true that his Honour did not explicitly mention the extent to which he thought that general deterrence needed to be moderated, having regard to the appellant’s bipolar condition.  But then, his Honour did not mention general deterrence at all in his sentencing remarks.  Nor, for that matter, did he mention specific deterrence, denunciation or punishment.  The sentencing judge was a very experienced trial judge, and it is inconceivable that he did not have regard to such fundamental sentencing principles, even though he did not make express reference to them.  In all the circumstances, I am not persuaded that his Honour failed to appropriately moderate the need for general deterrence.   

1. As far as the appellant’s ‘burden of imprisonment’ argument is concerned, in Verdins, the court said that the existence of a relevant condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.  But, it is still necessary to consider the evidence in each case, not to simply assume that a person with any relevant condition will always find imprisonment more burdensome.

1. As to the impact of imprisonment, defence counsel had submitted:

… he obviously has a psychiatric illness which any given sentence, it would be my submission, would weigh more heavily on him than it would on a person of normal health.  A person suffering obviously from bipolar disorder will find each day in prison a bit more of a burden than a person would of normal health.[3]

[3]T33.

1. But there was no evidence to support such a bald assertion.  The prosecutor accepted Dr Walton’s observation to the effect that there had been some past onerousness, in that the appellant had been in the St Paul’s Psychiatric Unit at Port Phillip Prison, from 19 March until 10 May 2010, and in the Charlotte Management Unit at one point.  But, whilst in the psychiatric unit, the appellant had been placed on a mood-stabilising agent and tranquiliser ‘with significant benefit.’  He had subsequently been moved into the general prison population, where his condition was being effectively managed with medication.  The prosecutor disputed that, going forward, imprisonment would be any more onerous for the appellant than for a person without bipolar disorder, and there was no evidence to substantiate defence counsel’s contrary submission. 

1. In the circumstances, the sentencing judge was not required to find that imprisonment would be more burdensome for the appellant than for a person of normal health.  No error has been demonstrated in that regard.

Whether aggravated burglary sentence manifestly excessive

1. Appeal ground 1 alleges that:

The sentence of six years imposed on charge 7 (aggravated burglary) was manifestly excessive given the circumstances and the connexion between the offending and the appellant’s serious mental illness.

1. Charge 7 was the second aggravated burglary offence, which occurred when the appellant and his co-offenders returned on 20 January.

1. At the plea hearing, the prosecutor submitted that the second aggravated burglary was ‘particularly grave offending at the high end’ for the offence.  Defence counsel did not address the seriousness of the separate offences, merely submitting that the offending in general was ‘more in the mid range’.  He did refer the judge to some sentencing statistics for aggravated burglary, which showed median sentences in the vicinity of 2 years’ imprisonment.

1. The sentencing judge had the following to say about the seriousness of the aggravated burglary offending:

56.Mr Abdifar, your offending in this instance is very serious indeed.  Not only do you inveigle to steal [Di Stella’s] home and create havoc on 19 January 2010, but you again, with others, returned armed with metal poles and inflicted horrendous injuries on [Di Stella] on 20 January.

57.Aggravated burglary attracts 25 years’ imprisonment as a maximum.  Your offending is at the higher end of house invasion offending.  Your behaviour was deplorable.  Mr Abdifar, not only have you stolen this fellow’s property, much of which has not been recovered, you smashed the air-conditioning unit and threatened to damage other property.  Not content with this atrocious behaviour, you have terrified his friends, [Corse-Scott and Doyle], and further you threatened to harm [Di Stella’s] family, all in all appalling behaviour.

…

59.… Your offending in this instance is very serious indeed.  You arrived armed with others and at least on one occasion with ignitable fluid and threatened to set [Di Stella] on fire after dousing him.  That is a particularly aggravating fact.

1. The sentencing judge has, in these paragraphs, brought together in summary form what he regarded as the most serious aspects of the offending.  In doing so, he has somewhat blurred the lines between the various offences, including the two aggravated burglaries. 

1. His Honour did not explain what it was about the second aggravated burglary that required a 6 year term, compared to the first aggravated burglary, for which he imposed a 4 year term.  Nor did he explain why he treated the second aggravated burglary as the base sentence, rather than the charge of intentionally causing serious injury (charge 8).  

1. In appeal ground 3, the appellant contends that the judge inappropriately treated the threats to harm Di Stella’s family, and to set Di Stella on fire, as aggravating his criminality, contrary to the principles laid down in R v Di Simoni[4] and R v Newman and Turnbull[5], in circumstances where that could have been the subject of a separate charge of threatening to inflict serious injury.  Given the rather confusing way in which his Honour combined the various matters in paragraphs 57 and 59 of his sentencing remarks, there seems to be some force in that submission, at least in relation to the threats to harm Di Stella’s family.   

   [4](1981) 147 CLR 383.

   [5][1997] 1 VR 146.

1. As to the threat relating to the lighter fluid, because that was in fact the subject of a separate charge of common assault (charge 6), the Di Simoni principle has not been offended in that regard.  Although it would have been inaccurate to treat this as an ‘aggravating fact’ in relation to the aggravated burglary, on a fair reading of the relevant paragraphs I do not think the judge was doing more than explaining why he regarded the whole course of offending as very serious.

1. Both aggravated burglaries were undoubtedly serious examples of the offence.  On each occasion, the appellant came to Di Stella’s flat with two others, armed with metal bars, with the clear intention to steal and/or assault.

1. But the 6 year sentence imposed for charge 7 was higher than 98% of sentences imposed where aggravated burglary was the principal offence.

1. Although care must be taken in relying on sentencing statistics, it is not irrelevant that the median sentence for aggravated burglary imposed between 2004-2005 to 2008-2009 was two years, and the highest sentence imposed during that period for the offence was seven years.[6] 

   [6]Sentencing Advisory Council, Sentencing trends in the higher courts in Victoria 2004-2005 to 2008-2009, figure 8.

1. Having regard to the appellant’s plea to aggravated burglary, as well as to his bipolar condition, genuine remorse, limited prior criminal history, and good prospects of rehabilitation, a sentence of 6 years’ imprisonment was outside the range of sentences reasonably available to the sentencing judge. 

1. I would set aside the sentence of 6 years’ imprisonment on charge 7, and resentence the appellant to 4 years’ imprisonment for that offence.

Manifest excess

1. Appeal ground 2 asserts that the total effective sentence and non-parole period are manifestly excessive, for different reasons. 

Total effective sentence

1. The total effective sentence of 7 years and 6 months’ imprisonment is said to be too high, because it is based on the manifestly excessive sentence for charge 7.[7]

   [7]In so far as paragraph 30.2 of the appellant’s written case also refers to a failure to give proper mitigating weight to the matters referred to in paragraph 28 of that document, those matters were all raised in the context of the manifest excess in the sentence for charge 7.

1. At the plea, the prosecution had suggested a total effective sentencing range of 6 to 8 years’ imprisonment, with a non-parole period of between 5 and 7 years.  Defence counsel had not suggested any specific range, merely that the sentence should be ‘more in the mid range in terms of this sort of offence.’

1. The sentencing judge chose to treat charge 7 as the base sentence, and that necessarily influenced the way in which he structured the orders for cumulation.  On the other hand, in sentencing the co-offenders, Judge Hicks treated the charge of intentionally causing serious injury as the most serious of the charges, and used it as the base sentence. 

1. For charge 8, the appellant received a very light sentence of 2 years’ imprisonment, only 6 months of which was cumulated on the base sentence.  Given how light the sentence for charge 8 was, I infer that the sentencing judge must have adopted the approach of ‘moderating and cumulating’ the sentences for the multiple offences in respect of each of the home invasion incidents.[8] 

   [8]As to the concept of ‘moderating and cumulating’, see the discussion by Weinberg JA in the recent decision in DHC v The Queen [2012] VSCA 52, [85]-[98], concerning the approaches taken in DPP v Grabovac [1998] 1 VR 664 and R v Izzard (2003) 7 VR 480.

1. Once an individual sentence imposed for what was a component of a single episode of offending has been found to be excessive, the entire sentencing discretion may need to be re-opened, depending on the circumstances; otherwise there could be structural problems with the overall sentence.  That is especially so if the particular individual sentence was the base sentence, or the subject of a total or partial order for cumulation.[9]

   [9]Smith, Garcia and Andreevski v The Queen [2012] VSCA  5, [1] (Ashley JA).

1. During the course of oral submissions, we warned the appellant that, if the sentencing discretion was re-opened, it was possible that the court would increase the sentence for charge 8, in such a way as to maintain the current total effective sentence.  Counsel informed the court that the appellant was aware of that possibility, but wished the appeal to continue.

1. Having regard to the nature and seriousness of the attack, and the extent and severity of the injuries to Di Stella, in my opinion the charge of intentionally causing serious injury was the most serious of the offences.  I would set aside the sentence of 2 years’ imprisonment, and resentence the appellant to 5 years’ imprisonment, for charge 8.  I would treat the sentence for charge 8 as the base sentence, and order that there be cumulation of 18 months of the sentence for charge 7.  I would otherwise affirm all other sentences and orders for cumulation. 

1. This would result in the total effective sentence remaining as 7 years and 6 months’ imprisonment.

Non-parole period

1. The appellant argues that the non-parole period of 5 years and 9 months, being just under 77% of the head sentence, was an unjustifiably high proportion of the head sentence, given the early plea, remorse, family support and prospects for rehabilitation, and the fact that the appellant had never before been imprisoned.  Further, he argues that given his vulnerability to substance abuse and his psychiatric illness, the parole period of 21 months provided insufficient support and supervision.  There is no merit in either of those arguments. 

1. The question is not whether this court would have imposed the same non-parole period as the sentencing judge did, but whether it was open to the judge in the exercise of sound discretionary judgment.  Here, the non-parole period – both as a percentage of the head sentence, and in actual duration – cannot be said to be clearly outside the range reasonably open to the sentencing court. 

1. I would affirm the non-parole period set below.

- - - - -