Amos, Edward James v The Queen

Criminal Let.? - appez l fron senter.ce - whether

sentence

xcesslire

xhether

sen tenc ing

Judge

e r red

ix ipos ing

cumukt ive

sen tences

cons ide ra t ions

which

apply

i n f i x i r q non-parole perlod.

Probat ion and Parole Act

1983

(N.S.W.)

Probilt ion and Parole Regularions	19E4	(M.S.X.	)
>.CT G32E of 1984
McGregor, Lockhart and Kellp JJ.

_ _

28 March 1984

Canberra

I N THE FEPERllL	COURT	OF	A U S T M L I A	)
)

AUSTRALIFJ?	CPZ'ITAL	TZXZITORY	)	No.	A.C.T .	G328 of l984
)

DISTRICT REGISTRY	)
1

GiXTERAL

D I V I S I O N

)

__.

THE

COURT

ORDERS

TFAT:

Tie appeal

allowea.

Tne sencencn

of t h r e e years imprisonment

for the offence sf

breaking

enxer ing and steeling;

of f i v e

y e x s

i n p r i s o n e e n t

f o r the offence of assazlt acd of

f i v e y e z s imprisonaen:

f s r

Eke

o f f e n c e of

Lezaininc zith i n t e n t t o hold Cor a5vancaqe be

cor?flrIrled.

3 .

3 . The crdcr of the Supreme Court of the .L.C.T. that the

SenLences of five years imprisonment in respecr; of ea31 of

the offences of asseulr; and of detainrng wish intent to hold

for

adirantage be served concurrently

aut to be cumulative

upon the sentence

three years imprisonment for breaking

enterin?

and

scealinq

mzkir?g a toed uf

eight

years

imprisonment se confirmed.

There be substituted a non-parole period

of four pears for

the non-parole period of

six years fixed

by the Supreme Court

of the 4.C.T.

Settlement and entry

of orders is dealt wiLh in Order 36 of

the Federal Couri: Rules.

Fespcndent

The sentences

imposed

the

a p p e l l a n t

for

thrse

c f fences vere

respecr;i- ;ely

three year:'

imprisonmenr;. five pears'

imprisonment

and

five years' inprisonmenr;.

The last tzo

sentences :<ere t o be

concurrent

but

cumulaiivc upon

t h e f i r s t

sen tence ,

makinu a

t o t a l of

ei?ht ::ears.

Flis Honour

iired a

non-paroie period

s i x y e a r s .

The l is t

nf Eh? tw?ntp o r

sa rniscellanenus objc-r ts and

...

Cash,

i;he

s u b j e c t nf

r.he

f l r s t

o f f e n c e

committed

on 5 February

1984 need

nor

he r e f e r r e d ro i n d e t a i l .

I note that no quns Here

. . jtolen as

parr, of Ehar,..Qffenre.

It i s

nor; now suugested r h a t

t-be head

sentences

are excessis-e i n themselves.

"he uccxlnds of

appeal ZE argued were -

That

his Honour

e r r e d i n law

aLterna t i ; ; e ly in the

P-ccrci'e

his d i s c r e t i o n

i-n o rde r ina

that

the sentences

fcfi- the

of fences

o f

a s sau l t

w i c h

i n t e n r

t o

r o b

and

cletalninu f n r

advantaue

be served

?LE the e x p i r a t i o n

of the

sEntenTP f c r

break.

ent.?r and s r e a l ,

3 .

That his

Honour erred i n lax? i n

f i x i n ?

non-parole

period

KhiCh Seek5 t o c o u n t e r a c t	r.he reduct ion of che same to Gh-ich
L

Ghe

a p p e l i a n t

nay become

e n t i t l e d hy v i rcue

o i the

s a i d 2ct

and Requlat l

7 ons.

one

e n t e r p r i s e and

cha t

this should

hav?

been

reconnlzerl

making

the

sen tences

concurren t .

r e f e r r e d

t n 3 ~ n .

- ~ . W ~ v i . i X e

'1956) 7 3 M.N,

(1q.S.M.)

579 at

p . 5 8 3 ;

The C.lueen 77.

Carex:

( 1 9 7 5 )

S . A . S . R .

575

ac p.577

and

Bentham

(1971) 1

? .B.

3 5 7 .

submitted that

t h e t r ia l Judge

gave

insuff ic ient

weight

t he

proposicions

advanced

i n

t h e s e a u t h o r i t i e s .

contended

fur ther

that i n

mahnq t he

s en tences

cumula t ive

h i s

Honour

r;ave

d i sp ropor r iona te

weiuhhr; C O

t h e

r e t r i b u t i v e

opposed t-r.

the

reformative elernent

o€ punishment.

Counsel ' s

econd

argument

for

the

appel lant

re l ied

the

dec i s ion

t h e F u l l

r o u r t

c h i s Courr;

Pai-cinen

' 7 .

The

6 Fehruary 1985; unrepor t ed ) .

He submir ted

tha t

t r i a l

Judge

had

increased

the

l ngth

of the

non-parole

per iod

counterac t

r;he e f f e c t

on it

Gjhich

c e r t a i n

l e u i s l a r i o n

i n

TJev

Snuth

Males

would

br inu

about

v iz .

reduce

Ehe non-parole pericmd

f i x e d by

t h e t r i a l

Judqe.

- _ _ .

. .

. -

Counsel

€or

the

Crojun submlcted

that The head

sentences

i n a l l

r e spec t s

=e re

app ropr i a t e .

r e f e r r e d - t o

D u f f

7 7 .

3. 3 R

PLLR 663

t o support h is

aruument that Khat had

t o he

conqiderfld

vas

t h e

t o t a l i t y

r;h? sentences

inposed i n

r e s p e r c

t h e

of fences .

d i d noc

s e e k

t o

conr;es:

thzr;

the

t r ia l Jurlcre had

indeed

increased

the

nor , -parole

per iod

f fset

rer luccicm

vhich

xould

cake

place

pursuant

the

!le=

South

Rales

_ I

l e g i s l a t i o n r e f e r r e d

t o i n Pai7;inen.

5 .

It is approprlate to make some reference cc. :he

facts In

thls case as they yere

considered by the learned trial Jl.ria?, ?e

accepted that the appellant had been a heroin addict Cct!- a

years; that he was heavily in dc-bt to his suppliers and thar: ’ne

lmdertook the commission of these crimes as a means of payinu a

de5t he owed to suppliers f o r herclin he had recelred. The

suppliers, nr one of them, according

to the appellant, instructed

him to come to Canberra and to enter certain premises vhere he might expecr; to fdnd 40 pistols or hand

suns, to “acci_uire“ them

and take them back to Sydney and qive them to the suppliers. l?--e

appellant said in evidence

that they put to him in fact chat this

would be

a way to pap the debr;. No mention was

made of a safe.

i.e. rAerein the uuns minht

be found. The suppliers gave hun a

shocgun. Therfafcer the appellant invited. hi? sister to dr<ve him to Canberra. Qn Monday 6 €‘ekruarp 1984 he and hls si+:?t-

entered firsr; the dvellinq house of hnrlrew

Coppin in zhe s r ~ h . ~ c >

of Huqhes. saw a safe there,

bur =ere unable to chpen XF ~ P C . ~ I . , Z F

they did not have appropriate equipmenr;.

He - then srnle

che

. __

. ..

articles includinq cash, the subject

of the first

char??. Wirh

his sister.

left zhe premises, having decided to return tke

followinq day. On

7 February 1984 the appellant and his

.zIster

returned with the intention

of breakinq open the safe

anC

stealing the hand guns which apparently

they expected to find in

it. ‘riorj.ever,

the son af the

o ~ ~ c - L - ,

also naned ?-ndrec; Cnppln.

w a s at hone. Hlen he

answered the door he

=as confronted h? the

appellant xho pointed zhe shotaun at hlm.

vas crriered back

into the houze and asked for

a key to the safe. He Faid that

did not have this; buc be also said there were

20 or 30 uuns,

referring, as I ~n-xlrrs-czr~G

hi ln .

to the contents of thc safe.

ldhile the appellant "kept the qun on him" his m-ists were ried behind him by Tania Lmos with a tape and a belt. A pillov case

vas

placed over his

heae and he xa5

p m on a bed. Then the

appellant left the house CO endeavour to acquire ozy-aceqlene equipment to cut open che safe. F-t about 1.30 p.m. Lhat day

hdrew Coppin escaped and alerted

t're police. The prisoners

decamped, began drivinq	to Sydney but had	an accidenr: at Fictnn.
Their arrest followed.

I have not attempted to

?~?c

Gut all the fac ts m r

complecely to re-state

the arqumencs

of counsel.

Tile tesl uenerelly to be applied as :.G

xjhether. offencss

are

part

of a sinule

enterprise

has

been

discussed

and

authorisies

referre6 to in

the

Reasons

Fox J. earlier

mentioned.

H i s Honour,--in

- that relard quor:ed the

words of hiells

J. in nicker

v. kshion

11974) 65 L . S . J . S .

(S.A.)

150 at p.151.

On thls aspect. in point, hi5 Honour said -

"I am of the oprnion

rhat. uniess the circumstances

are exceptional or the offences in quescion are the

rerminal

product

srpara te

and

lndependenx

courses

of criminal conduct that

h a p p m

to ha-e

occurred torrether, a Court

not,

ordinarily

justiried

inposinu

cllrnulative aentenres of

imprisonmenc f o r nffences that are

of a similar

charactfr or 9rdinaril.i

associated an& that simply

represent facers of onc- course af c&nduct.

I note

a l s o che viers

ar;tributed ro 9ray C.

in C a r e i r ' q1.1pra)

that “there is no hard and fast rule either

Gay”. However, In

opinion. the

h e t t r r vier af the

facts in thi5 cas,?

is that.

far as

the appellant is concerned, rhe operatlons- meanino the

offences committed on

6 and 7 February 1984, wet-? nor. and shoul6

not be accepred as only one enterprise.

~t is

r o be nored rhe

appellant went

t o Canberra to sceal

auns, entered the premises on

the first occasion. did not steal the guns but made

axap vlch

miscellany of objects earlier referred to including cash. On the next day. halring recurned to open the safe. he detained forcibly Andrew Coppin using the shotuun for that purpose and. then left

the premises in order to obtain Khat

he thought might be suitable

equipment; to open the

safe. in my opinion the learned trial Judae

was quite entitled to reaard these effences

as not

part of the

one

enterprise

and

to trezt Them

accordinqly as separate

incidents.

iJpon ny readina of the facts that, vith respecc. is

the better view.

iio:Jever,

it mav well be thac this

1s nest

inconsiatent :?ith regarding, from the point of view of Tan?-a Amos. the events as @ne entecpr<se. Eccordincrly-L I see no error

b:J

the trral Judqe in treatinq the offences. so far

as he did,

separately, and fixing sencences

Idhich he directed should be

served cumulatively.

I note that he did however order thac che

offences of 7 February 1984 be served concurrently.

tn the second argument. it

not dlspuced. nor

souaht to be contested, that in fact the trial Judge dld adopt the expedient of increasinu the len9t;h

of the non-parole pericd

to anticipace the reauctlon xkch it GjCNuld

then suffer p1ir.suan.t

to New South Hales legislacion. T h ~ s

leqislation is referred to

In detail

in tile derision

nf F,=ivir?en ( s ~ ~ p r a )

p a r c i c u l a r l v

t 5 e

Probation ani Fzole Act l983

(H.S.W.)

and the Probation and

Parole

Requations

l984 (N.S.W.).

Bowen

C. J. , one of tl?e

majority in the dc-clsion, espressed the followinu

v i m -

‘ I . . . .I have come to the conclusion chat it rmuid

incorrecr;

f o r a

sentencing judge in the Australian

Capital Territory to increase the period cjhich he

would otherlcise h?.ve

fixed as a non-parole perigd,

bp reason of the entitlement

to remission ( s u b j ~ c c

to forfeiture).

I‘

In his Reasons his Honour

a l s o referred t o the decision in

P?cina

O’Brien ( C o u r t

of Criainal Appeal in New Sourh

tualc-s:

3 Map

1984: unreporced) bp a maiorirry (Streec C.J. and Lusher J..

Cantor J. dissencinu).

His Honcrur noted that the Viccorian Court

Criminal Ap~eal in The

Oue?n v .

Y;?tes ( 2 5 Septemkr l f l E 4 . ;

unreported) and the South

Btustt-alian Court of rriminal Appeal in

-I

Rea. 7:

Srennan

( 2 3 Tebruary 19A4: unreporced) reached a similar

result on corresponding

thouuh

not

identical

egislative

provisions.

. . - - . - _-

I auain express the view Lhac it is unforcunatc- thar: a

Judne nf

the Supreme Court 02

the Pwstralian Capital Terricorp,

after considering

the facts hefcre him

and, in pzrticular, hzvinu

an opporcunitp

to hear and see che accused.

as he did in

t h i s

case, is frustrated in his

attempc t n f i x a non-parole peric15 by

the application of

ueneral legislacion xhich calces no accvmt of

the individual .-aSe and

is Fassd elsewhere.

Accordingly. . SO

far as the

non-parole

pericrd

i s

concerned.

I would uphold

the appeal consls tenr ,

w i t h Faivinen and

would substitute for the 6 pear	non-paro	le	per	iod	a 'per iod	of 4
years.

The o r d e r s I propose are as fo l lows -

The

appea l b t upheld.

The

sentences nf three

yea r s

ana

f ive

y e a r s a r e

confirmed as	15 the	d e c i s i o n char. they	be s e r v d	I
cumulat ively.

1 -

I .

Tlie

non-parole period

n f six yeat-,5 is oarled 5-3

that there should	be	it ncjn-parole	period	of fcd1.11-
pears.

IN TEE FEDE4AL COURT OF

AUSTRALIAN CAPITAL TZRRITORY	NO.	A.C.T. c - 3 2 ~	of 1964
DISTRICT REGISTRY
GENEX& DIVISIOW

ON APPEX FROM THE SUFFEME CrJUET OF

THE AUSTFALIAN CAPITAL

TEi?.RITORP

Appellant

Respondent

McGreqor, Lockhart and Kellg	JJ
Canberra
28 March 1985

REASONS

FOR

J U D G E N T

LOCKHART J.

- _.

This is an appeal

from sentences imposed In che Supreme Court

the Australian Capical Territory on three charqes

whlch -,he

appellant pleaded guilty. One offence was for breaking, enterinq and

stealing-on 6 February 1964.

One =as for asszult upon one P-ncirew

Coppin with intent to rob him commicted on 7 February and

r;he other

was for detaming Andrew CopFin vith

mtenr: to hold him for the

appellant's advantege. also

cornnitEed on 7 February.

For the first offence.

thc? learned sentenclng Judqe sentenced

the appellant tG three years imprisonment and for each

of the ocher

offences,

five

pears

imprlsonment,

the

1atr;er to be served

concurrently but to be cumulative upon the first, making a total of

eiFht years. A non-parole period of six years

was fixed.

The appellanc appealed to this Court on six grounds. Tne

first

three

grounds

appeal

asserted

that

che

sentences

were

manifestly excessive. They were abandoned before

us.

The fourth

ground was that his Honour erred in ordermg that

the sentences for

the offences of assault

wich incent to rob and

detaming for advantege

be cumulative

on the sentence for breaking, entering

ancl stealing.

The fifth and sixth grounds

of appeal raise essencially one point,

namely, that in sentencing the appellanr; the sentencing judge erred	111
law in having regard to the reductions in che non-parole period	CO

whhlch the appellant may become entitled under che Probation and Parole

Act 1983

cf the Staze of

New South Haales

and the regulatlons made

I .

under that Act.

The facts are sr;ated by

che presi2ing Judge so I

need nct

refer to them in any detail.

The

appellant's sister was also charged

wich

the three

offences'to which I have referred and she too has pleaded gullty.

The

sentencin?

Judge sencenced the appellant's sister to one year's

imprksonment for

the offence of br-eak.;ing,

entering and stealing on 6

February

and for each

the

other

offences,

to three

years

imprisonment, the last

be served concurrently 5ut to be cumuiative

upon the sentence

o? one year, inaking a total of four pears.

;

non-parole perlod

of two years and

SIX months was fixed.

The appellant's sister also appealed to this Court from che

sentences imposed in t'ne Supreme Court and her appeal was heard

by a

Courr:

differently constituLed: Bowen C.J.,

Fox and BlacLAurn JJ.

Judgment was qven

by that Court on 6 February this year. The Court

held, by a majority, that the sentencing Judge erred

in sentencing the

appellant's sister

by having regard to reductions in

the non-parole

period to	which she may become entitled under the Probation and Parole
Act_ 1983	New South Hales and the regulations made theerem-der. The

appeal was	allowed on that ground only 2nd a fresh non-parole perlod	, I
was fixed.

I propose to consider first, the argument advanced on behalf

of the appellant that the sencencing Judqe erred in

law and in the

1 ,

exercise of his discretion in directing that the offences for assault

with intent

to rob and for decalning

f o r advantage. altinough to

served concurrently, were

be cumulative upon the offence

- .. ___.

breaking, entering and stealing. It was submitted that

the three

offences in respect of

which the appellant was convicted were part

"one enterprise" within the test laid down in

g- v. Melville (1956) 73

W.N.

(1t-S.H.)

579 per Street C.J. at

p. 581,

or alternatively, were

offences "arising out of the same

facts" - 8. v. Carev

(1975) 11

S.A.S.R.

575 per Bray C.J.,

at p. 577 and therefore that

all r;he

sentences should have been concurrent.

The learned Sentencing Judge

held

chat

the offence committed on

6 February was sufficiently

separate and lndependent from

che conduct of 7 February to warrant th2

conclusion

that the

three

offences

were

not

part

the

one

enterprise.

In the appeal

to this Court by the appellanc's sister,

Fox J.

(with whose reasons

Brjwen C.J. agreed, but Blackburn J. dissented)

said that

regarded the offeoces as being

all part of Lhe one

activity. Nevertheless,

his

Honour did not think that it had been

established tiiat

the sentencing Judge erred in reaching the contrary

view, dou-htless beczuse his Honour thought Lhat it was open for the

sentencing Judge on the material before him to approach the matter

he did, especially as "there

i5 no hard and fast rule

eit'ner way" - 3-

v. Carev (supra) per Bray

C.J.

Fox J. declined to interfere with the

head sentence imposed by che sentencing Judge. This was the view

which commended itself to Bowen C.J. Blackburn

J., on zhe other hand,

agreed with the course taken

the sentencing Judge,

treating the

events of the seconc? day

8 s separate from those of Lhe flrst day and

as requiring cumulative senLencec. Their i-icnours were, of cgurse,

1 '

considering that question

with

reference to the

appeal, not of the

appellant. but of his sister.

__.

I see

no purpose in expressing my view on chat quescion in

relation to this appeal. It is sufficient LO say that it has not been demonstrated that his Honour fell into error in treating che offences

on the second day

as separate from the ofience of the first day.

Counsel

for

tne

appellant

then

submitted

that;,

maklng

sentences cunwlative, there is nevertheless

a limi~ation imposed by

the necesslty LG

keep the dul-atlon of ;he

sentences qiven =t the o?e

time within reasonable and proper bounds. He placed some rellance

. .

upon a passage from the

judy~~w;~t

of Fox J. in the appeal involving the

appellant's sister that tends in this direction.

It'

was submitt,&

that regard must

be hzd to the appropriateness of the total punishment

for the whole course of

the crime and reliance was placed upon the

judgment of the Court

of Appeal in R_. v. Bentham (1973) 1 Q.B. 357 at

p. 363.

It wiis

submizted that, in making the sentences cumulative,

the sentencinq Judge gave insufficient weight to these matters

a d

gave disproportionate weight to the retributive element

in punishment

and

insufficient

weight

the

reformative

element.

I am nor:

persuaded that	this criticism of	the senxencing Judge's reasons are
well founded.

There remains the grounds

of zppeal that the sentencing Judge

erred in having reoard to reductlon in zhe Ron-parole

period-to which

the appellant may become entitled under the Probation and Parole

Bcc

1983

( N . S . k J . )

and the regulations made chereunder.

It seems clear to

me, and the contrary was

not- -suggested by counsel

for the Crowm, that

che non-parole period Gas determlned by his Honour bp

adding to the

period which would otherwise have been fixed an

&bunt

estimated to

cwnteract the effect

regulation 18

of zhe Probation and Parole

Regulations 1984 (IC.S-W-)

This regulation was made pursuant to S. 25

the Probation

and

Parole

Act

1983 (N.S.W.).

The effect of

regulation 18	is co provide for a reauccion in non-parole perlods as
determlned bp	the Courts by an amount which, In general, corresponds

proporcionatsly with che

remissions applicable to nead sentences

under

the

Prison Regulations (1958)

( X . S . k i . ) ' ,

Tne exact amount

the

reduction o€

the head sentence and non-parole period depends on the

behaviour

in prison of the convicted person and

a number of other

matters which occur or may occur after sentence.

; l

The question in this appeal is xhether his Honour

uas correct

i	in making the upward adjustment to which	I	have referred.	Tiis
1

question was considered by a

Full Cousc

of this Court differently

constituted in Paivinen v. g. also on appeal from sentences imposed. in

the Supreme Court of the Australian

Capital Terrltory. The Full Court

gave judgment on

6 February 1985 and held by a majoricy, (8owen C.J.

and Fox

J.;

Blackburn J.

dissenting) that it is Impermissible for a

sentencing Judge in the Australlan Capital Territory to increase the

non-parole period that he would otherwise have fixed by reason

of an

entitlement to remLssions alchough this entiLlement	may be subject cc
forfeiture.

A similar resulc was arrived at

lr. relation CO corresponding,

although not identical,

?revisions

in South kustralie.by che Court

Criminal Appeal in E- v. Brennan, t19847. 36 S.A.S.R. 78 and by che

Court of Criminal Appeal of

New South Kale5 in E. v. O'Erien, E19843 2

N.S.W.L.R.

449, and by the Victorian

Courr; of Criminal

Appeal, sittlzg

as a ben6h of five, in g. v. Yates, (10.85) V.R. 41.

Applichticn for special leave to appeal from the judgment

the Full Court in Paivinen

1 ~ s

Seen filed with the EiGh Courr; and we

are informed that

it has been 1lsr;ed for hearina next month. Tne

parties to this appeal ere entlcled to hzve the appeal determined 5y

tins Court notwienscandmg the pendlnq applicaeion for special leave

1 .

to sppeal to the High Cour t i n Paxvin-n.

Tn my opinion, thr

appropriate course for us to take 1 s to follow Paivinen. It follows

that

the

appeal

must

allowed.

This leaves

for

our

consideration

the

length

the

non-parole perlod fixed by the sentencing Judge. It is common ground that. if his Honour had taken the course which was later approved In

Paivinen, the non-parole period would have been fixed at	four, not six
years.

I N THE

FEDERAL

COURT OF

AUSTRALIA

)

AUSTRALIAN

CAPITAL

TERRITORY

)

NO.

ACT G 3 2 8 Of 1984

DISTRICT	REGTSTRY	)
1
GENERAL	DIVISION	)

ON APPEAL FROM THE

SUPREME

COURT

THE

AUSTRALIAN

CAPITAL

TERRITORY

BETWEEN:

EDWARD JAMES AMOS

A p p e l l a n t

AND :

THE

QUEEN

R e s p o n d e n t

CORAM:

I . l c G r e g o r ,

Lockhart,

Kel ly

DATE:

28 March

1 9 8 5

EX TEMPORE

REASONS

FOR

JUDGMENT

r e l a t ion to t h e non-parole

period and I

agree i n t h e orders

proposed.

I agree also w i t h t h e reasons for Judgment of t h e

l e a r n e d

pres id ing

J u d g e

and

L o c k h a r t J.

3 .

I ,

2espcndent

This 1 s an appsal from sentences imposed, ir? t:?e Suprmt Court of the Austrslian Capital Terrlcory on tnree ckar~ts

CO which che

appellant pleaded Tuilty.

Gne offence was f o r b reaung- . encerinq &?c

stealing. on 6 Fehruar57 1984. One was for assault upon cr.? Andre=

Coppin w i t h intenc co rob him cornmlcted G.? 7 CEbruary and T:?E ct.?.;r

i1&3 for detaiqincr B.tdrt.w Copp~r, Wit?> n c e n c to hold p . 1 ~ f o r che

appeilanc's acivznteq.e, ~ l s o

c o r i c z e d sn

I February.

The apF3llant

appealee to

thls C o u r t

on six grctnis.

I :le

first

three

Grounds

a p ~ ~ z 1 .

asserzed

that

zhe

sentegces

:~ f l re

rnanifestlp

ezces51ve.

Tnty were ahndcr:e? before us.

The fc~:-:h

ground was

chzc nls Honour erred in ordering rhzc

tne sentences for

the offences

of assadlt with

incenr: to rob and decainicg

f o r ZCvanLage

be cumulative

the sentence for breakinq. enterlng and sceallng.

"he fifth and sixth grounds

appeal raise essentlallp

one poln'- ,

nzmely, that m sentencing the appell2nt the sentencing judge erred

II?

law In

having regard

to the reductlcns in the con-2arole period ? o

which eke appellant

may become entitled under

c?-? Drc3ar;ion and Psr31e

Act 1983

of the State of Mew South Kales

ar!d tke regulacion5

mad€

uiider

t n a t Act.

l l

1 3

I I

The

a p p e l l a n t ' s

s l s t e r

2150 appezled CO -tnls Courc f r n z

t h e

Sent.'eRC€S Inposed I n

the Supreine COUKC ard k e r EpFeal

was heerc 5:; a

- -

C o u r t

d l f f e r e n t l p

c o n s t i t u t e d :

?,oven

C.J.,

_Fox and

Slacl~3urr. ;d.

' I

judgment was 9l;ren hy ~ k a t

Court on 6 February

t h s yea r .

The Ccurt

!	helS.	by a m a j o r i t y , tb-ac she sen tenc lnq Jucge	erred	i n seztepcinc T h e
l
I

a p p e l l a n c ' s

s i s t e r

having

r e q a r d

reduct icrs

che

non-l ;arcle

p e r i e d to which

she m a y become

rn t l c l ed unde r

the Probat lon and

Parole

1983

Xew S o u ~ n Xaies and

che

regulacions

oale thereunder .

IS?

aFpez1 was

sl lowed on thar; ground

only

and

a fresh

.?on-parole

per

lod

was f x e d .

I propcse tc

cons ice r f l r s c , zne arcument

advanced

' l r :

De:?alf

C:?=

a p p e i l m t thee

the

s e n t e n c i n c 212692 erred.

~n l a w and

i n cbe

Exercise

his

a i s c r e c i c n

i n d i r e c C l n q

t h z c

o f fences

f o r

e s s t ~ u l z

w i t h intent

10 rob

and f o r

d e c 5 l n i n g

f o r

advanta~e,

a l t n o c c h

t c Le

servec? concur ren t ly ,

were

t o S e

cuniclative

upon ?:-:e

of fence

breaking.

enterincr a d z te- l ing .

I t c125

submitted tha t

t h e t k t ~

of fences ir. r e s p e c t of

which

tne alspel lant was

c o m i c t e d wefe parr: =.f

"one enterprise" within ehe test k i d do~m

i n R_. v .

Melv l l l e

il?56) 73

a .

- m

t h e a p p e a l t o t h i s C o c r t

the

z a p e l l a n t ' s

s i s te r ,

=c:-

2 .

(with

whose reasons

EGGEII C.J. ac reed .

bac Elackhr: .

U. Lisseri.eC>

sald

that he

r iga rdec eh% o f i e q c e s

as being

a l l ?art

of tr.=

? * e

activity.

Neverthelesc. nis

t.:c.nokr d l c noc

t k n k

t h s c

h26 h s F n

established

rhat

the sence tx ln? J u i T e e r r e d

i n

L-eaching the

ccr . r r r ry

view,

dou5t l sss

because

hls H C R G L ~ thouqht

Lhat

it %is

ope:

f o r t h e

sentenclng Judqe

on the inaterial

be fo re h i m t o a2proach cne

n a z ~ e r

d i d ,

e s 9 e c i a l l p as

"there i s no

hard and. f a s t ru l e e l t h e r wall"

Carev

(supra) per Bray C.J.

Fox J. declined.

e o i n t e r f e r e

w i t h

c h e

head

sentence

imposed

che

s e n t e n c i n g

J u d p .

Tais was

c'ne vlew

I I

which commen&d

icself t o Eowen C.J.

Blackburr. J.. on ehe o ther

hand.

aTreed with

the course taken by che

sencenclng

Judge ,

t rea t ing

the

even t s of the

second

day

as s e p a r e t e f r m tFLose

che firs-, dzy and

r e q u i r l n q

c u m u l a t i v e

s e z t e n c e s .

E e i r

?onoc;-s

w ~ c e , cf

course,

cons ide r ing tkac

ques t ion with

r e f e r e n c e

t o

t h e

a p p e t l ,

riot

the

a p p e l l a n t ,

buc

his

s l s t z r -

_ _

I see

no pu rpose

i n

expressing m y view on

k a t qJesr;xor. i n

r e l a z l o n

t o

t h i s a p p e a l .

I t

s u f f i c l e n t

5a:v

tha t

has

nox

been

demonscrated that h i s Honocr

f e l l i ? t G e r r c r ~n treacinc t h e of-fences

on t h e second. dzy as separac= f r ~ m

the of fence SI

t h e firs-, da57

5 .

upon a passaue

from

tke ? u c q e r . t cf Fox c!. ir: the LSFeei I ~ - J C ~ - Z >

- . L 2

- - -

L L - C

a p p e l l a n z ' s

s i s t e r

t h a t

t e n d s

13 thls

d l r e c t i c z .

I t

w a s scznrtrzc

t h a t regard must 3e had. t o the appropr i a t eness o f

Eke total p~1n;onmer.t

f o r

t h e

x h o l e

c o u r s z

the crime

and

relizr.ce

w a s placed

LLor. =?Le

judoaent of che Courc of Appeal

l n R . v. Sentham (lS73j 1 Q.B.

357 a c

p . 3 6 3 .

Ir: was

sukmitted tha-,, lr. mekinq

t h e

s e n t e r x e s

c e x i a t i v e ,

t h e

s e n t e n c i n g

Judae

qave

i n s u f f i c i e n t

welght

t o

t h e s e

m z c t e r s

ane

gave

ci isproporr ionace

weiqfir;

CO the r e t r l b u t - v e

eleme:,t

In ?c:?Sknezz

a n d

i n s u f f i c i e n t

weictk

the

reformetive

e ierrent .

a m

rtot

persuaded. zkzt	ehis c r i t i c i s m of	che sentenc ing	Judge ' s	reasons	are
well founded.

' I

I .

!	5.
!

behzvlour In prison of r;he cnnvlcted person apd a numDer c,i .ccLer

natters whlch occur

CIK aay G C C U ~

a f t e r

SP-~C:CIICE.

I :

The question in xhis aFseal is whether his F;o?our vas c ~ c r e c c

in mz!-:inT the upxard adjustner.rr to which I k-ce referred. 1115 question was considered by a Full Court of thls Clurr; differtr .Clg conscltuted In Palvinen v. R_- also on appeal Zrom sentences F~?oc,ej. rn

the SuFreme Court

of t h e Australlan Capltal Terrlccry. The Full COLCL

gave judgmer?t on 6 February 1995 and held by e m!oriSp,

(Bowzn C.;.

and Fox J.; Blackburn J. dissenting) t k t it is imsermissrble f o r a sentenclng JudOe i n the Australlar? Capltal TerriLory CO increase t h e non-parole period t'nat he would. otheryise have fixed by reason of an entztlement t o remissions althouch this m c i t l e n e n t aay be sub:ect tc

forfeiture.

A slmrlar result wzs arrlved at ~ r !

relatlon to cot-responalnq,

although not Identical,

provisior,s in Sou~h

kustralla by cne Cour t of

Crimlnal Appeal in R . v.

Srennan. C198411 36 S.h.S.2. 78 arid S! Lhe

Court of Criminal Appeal

of New South Kaies in

g. v. O'Srien, Cl5S43 2

N.S.W.L.R.

449. and by the Victorian C o K r t of Criminal Appeai. sitcins

as a bench

of five. I n E.

Pates, ( l 9 E 5 ) V . R .

41.

appeal to the High

Ccc:?-- In

Pauvincn.

In my

3pln.sn.

_ _ _ _

..a

appropriate course for us to

r2 .e

t o follow Paivlnen.

I c ? G : - : X S

that the appeal must be allowefi.

Tnls

leaves

for cur

conslderation

the

lesgcn

of the

non-parole perlod frxed

by the sencencina Judge.

It i s common Frcur,d

that, lf his Honour had taken tne course which

wils later approved in

Paivinen. the non-parole period would have been fixed	at four,	nor: s ~ x
years.

In	my oplnzon, the appeal should be allowed, but only In

relatlon to the non-parole perzod and a non-parole period

four

years substituted. I agree wlth the orders proposed by	tine prtsldzng
Judge.

I N THE

FEDERAL

COURT

AUSTRALIA

) )

AUSTRALIAN

CAPITAL

TERRITORY

)	NO. ACT G328 Of 1984

DTSTRICT REGISTRY

GENERAL

DIVISION

ON APPEAL FROM THE

SUPREME

COURT

THE

AUSTRALIAN

CAPITAL

TERRITORY

BETWEEN:

EDWARD JAMES AMOS

A p p e l l a n t

AN2 :

QUEEN

THE

R e s p o n d e n t

CORAM:

M c G r e g o r ,

L o c k h a r t ,

Kelly

DATE:

28 March 1985

EX TEMDORZ

REASONS

FOR

JUDGMENT

KELLY J:

agree

t h a t t h e appeal s h o u l d be

allowed

i n

r e l a t i o n to t h e non-parole

period and I

agree i n t h e orders

proposed.

I agree also w i t h the reasons for ~ u d g m e n t

t he

learned presrdrng Judge and of

Lockhar t J.

[1984] FCA 319

28 Mar 1984