and Jason Tregenza v The Queen
[2015] VSCA 163
•25 June 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2014 0186 | |
| JASON TREGENZA | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, WEINBERG and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 June 2015 |
| DATE OF JUDGMENT: | 25 June 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 163 |
| JUDGMENT APPEALED FROM: | DPP v Tregenza (Unreported, County Court of Victoria, Judge Sexton, 18 February 2014 (Conviction), 7 March 2014 (Sentence)) |
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CRIMINAL LAW – Appeal against conviction and sentence for intentionally causing serious injury – Whether applicant participated in assault – No solid obstacle to guilty verdict – No error in directions to jury – No error in sentence – Principle of parity engaged by reduction in co-offender’s sentence on appeal in separate proceeding – Whether necessary to maintain relativity between co-offenders as fixed by sentencing judge – Appeal allowed – Applicant re-sentenced to six years and six months imprisonment with a non-parole period of four years and three months.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Thomas | Grigor Lawyers |
| For the Crown | Ms D I Peikusis | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
WEINBERG JA
OSBORN JA:
Following a 12 day trial, the applicant and Christine Picone (‘Picone’) were convicted on one charge of intentionally causing serious injury.[1] The Crown case was that the applicant and Picone, together with Picone’s son, M (‘M’), were acting in concert in assaulting the victim, Douglas Farquhar. Alternatively, the applicant was said to have aided and abetted the Picones.
[1]The co-accused, Christine Picone, was convicted of 1 count of intentionally causing serious injury and was sentenced to a total effective sentence of 6 years 6 months’ imprisonment with a non-parole period of 4 years 6 months in the County Court. On 4 September 2014 Picone was granted leave to appeal against sentence by Weinberg JA on the ground that the sentence imposed was manifestly excessive. On 5 February 2015 the Court of Appeal allowed the appeal and re-sentenced Picone to 5 years’ imprisonment with a non-parole period of 3 years. M was dealt with in the Children’s Court.
Following a plea hearing conducted on 21 February and 3 March 2014 the applicant was sentenced on 7 March 2014 as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Intentionally causing serious injury
[Crimes Act 1958 s 16]20 years [Crimes Act 1958 s 16] 7 years - Total Effective Sentence: 7 years Non-Parole Period: 5 years Pre-sentence Detention Declared: 15 days 6AAA Statement: N/A Other relevant orders: § Forensic Sample Order Appeal against conviction
The applicant seeks leave to appeal against his conviction on the following grounds:
(a) the verdict is unsafe and unsatisfactory;
(b)the learned trial judge failed to direct the jury as to the evidence of Rachel Lincoln that she had been threatened following giving evidence at the committal in circumstances where the jury may have erroneously believed that the applicant had threatened her;
(c)the learned trial judge failed to adequately direct the jury in relation to the elements of the charge of intentionally causing serious injury;
(d)the learned trial judge failed to adequately direct the jury in relation to the evidence of recognition of the applicant by Rachel Lincoln; and
(e)the learned trial judge erred in failing to adequately direct the jury as to the statement recounted by Rachel Lincoln that Christine Picone had said ‘get him, Gonzo’ during the incident.
Overview of facts and proceedings
The victim, Douglas Farquhar (‘Farquhar’), had been in an on-and-off-again relationship with Rachel Lincoln (‘Rachel’), with whom he had a daughter named Chanelle. The applicant has two children with his former partner, the co-accused, Picone, a son and a daughter.
Chanelle had spent time with the applicant’s family and was friends with the applicant’s daughter, E.
Relations between Picone and Farquhar had been bad for some time. In the lead up to the incident on 30 October 2011, Picone had posted negative material about Farquhar on Facebook.
On the evening of Sunday 30 October 2011, the applicant and his son, M, were in each other’s company a very short time before the assault. Picone was walking E and Chanelle home to Rachel’s house when she learned that Farquhar was present at Rachel’s house. Farquhar did not live at that address. Picone then telephoned M and arranged with him to come at once to Rachel’s home and to assault and seriously injure Farquhar. The applicant was either with M when this plan was formulated, or shortly afterwards joined in the plan. The applicant and M arrived at Rachel’s house but stayed out of sight.
Picone arrived at Rachel’s home and requested Rachel to ask Farquhar to come out to the front of the house. He did so. Picone then persuaded him to come further down the driveway towards her. At that stage, the applicant and M appeared. Picone called out, ‘get him, Gonzo’. ‘Gonzo’ was the applicant’s nickname.
Farquhar ran from the scene and was chased into the backyard and then over the side fence into a neighbour’s adjoining property. The applicant, M and Picone caught Farquhar and assaulted him by punching him, kicking him and stomping on his head. In the course of doing so they had armed themselves with various items including a crowbar and a vacuum cleaner. The applicant then pulled Picone away from the victim, causing the assault to end.
Farquhar was taken by ambulance to hospital where he was placed in an induced coma. He received fractures to his nose, right eye socket and jawbone as well as broken teeth and a concussion. He also suffered multiple bruises and abrasions, with one deep laceration down to the bone on his shin. He provided a victim impact statement which outlined ongoing physical pain as well as emotional and psychological trauma.
Issue for the jury
The applicant denied that he was present or participated in the assault on Farquhar. The sole issue for the jury was whether the applicant was one of the three persons who had participated in the assault upon Farquhar.
Ground 1 — The verdict is unsafe and unsatisfactory
In his written case, the applicant submitted that there was evidence from two sources which precluded a jury, acting reasonably, from being satisfied beyond reasonable doubt of the applicant’s guilt. The first was said to be the evidence of Chanelle Lincoln as to her observations of who was present at the time of the assault upon the victim, Farquhar. The second was the alibi evidence of the applicant’s parents, Patricia Tregenza and Peter Tregenza.
It is necessary to refer briefly to the direct evidence that the applicant was one of the three assailants. The victim, Douglas Farquhar, identified the applicant and Picone as two of the three assailants who attacked him on the night in question. He was quite firm in his recognition of the applicant as being one of the assailants. He said that as they ran towards him they said they were going to kill him. His identification of the applicant was supported by the witness Rachel Lincoln who had known the applicant for a few years prior to the attack. She identified the three assailants as Picone, the applicant ‘Gonzo’ whom she knew as the former de facto husband of Picone, and M. Ms Lincoln confirmed the truthfulness of the content of two statements to the police and her evidence at committal wherein she had said that when the conversation between Farquhar and Picone became heated, she heard Picone say ‘get him, Gonzo’ as the applicant and M ran up the driveway towards the victim.
At the commencement of oral argument, counsel for the applicant properly conceded that, contrary to the written case, there was nothing in the VARE of Chanelle Lincoln which precluded the jury’s finding. Chanelle had arrived at the premises of Rachel Lincoln together with E and Picone. In her VARE she said that she and E were in the driveway at the front at the time that Picone and Farquhar commenced to argue. She said that she became frightened and she and E then left the premises on their bikes. She did not observe any part of the assault. It was thus rightly conceded that her evidence placed no obstacle in the path of the jury’s verdict. Before leaving Chanelle’s evidence we should observe that there were various parts of her account which were inconsistent as to how long she had remained in the vicinity of the Lincoln house. In her VARE she stated that, as she and E were leaving the vicinity of the premises, Picone came running towards them as they crossed the road. Given the timing of events, it is highly unlikely that Chanelle did not observe the three persons who pursued Farquhar up the driveway. Her account was likely to have conveyed the impression to the jury that she was not forthright in claiming that she had not observed either of the persons who ran up the driveway to chase the victim.
It is also convenient to refer at this point to the course followed by the co-accused, Christine Picone. She pleaded guilty to a charge of recklessly causing serious injury before the jury and not guilty to intentionally causing serious injury. She gave evidence in her defence. She testified that she spoke with M as she was walking to Rachel Lincoln’s house with E and Chanelle and told him to meet her at Rachel’s house. When she arrived she asked Rachel to get ‘Dougie’ to come out and talk to her. While she was talking with Farquhar in the driveway two persons came running up the driveway from behind her. Initially she said that she did not see either of them and was knocked to the ground. By the time she got up, they had passed through the gates leading to Rachel Lincoln’s backyard. She followed them. She looked over the fence to see her son, M standing over Farquhar. She got over the fence and told M to stop hitting Farquhar. She said that when Farquhar tried to get up she gave Farquhar a kick. She then left the scene and went home. She claimed not to have seen the second male but repeatedly said that the applicant was not the second male. She admitted in cross-examination that she had made a statement to the police in which she had told police that neither the applicant nor her son had attended at Rachel Lincoln’s house on the night in question. She admitted that she had lied in denying that her son was there. She claimed in evidence that she did not know that her son or any other person was hiding around the corner. She denied saying to them ‘get him, Gonzo’ when they ran past her. It was also highly likely, if not inevitable, that the jury would have concluded that Picone was not being truthful when she claimed to be unaware of the identity of the male who accompanied her son when they ran up the driveway and who joined with her and M in assaulting Farquhar.
We turn to the second body of evidence that the applicant maintained was a solid obstacle to a guilty verdict. It was submitted that there was, at the very least, a reasonable possibility that the alibi evidence of the applicant’s parents, Patricia and Peter Tregenza was truthful and reliable. We do not agree. The jury had the benefit of seeing and hearing those witnesses. Their evidence did not provide a reason why the jury was bound to acquit the applicant.[2]
[2]See R v Nguyen (2010) 242 CLR 491; SKA v The Queen (2011) 243 CLR 400.
On the appeal, counsel for the applicant submitted that the assault upon Farquhar occurred some time between 7:00 and 8:00pm on the evening of 30 October 2011. The applicant’s mother, Patricia, made a statement on 2 November 2011 that the applicant had returned to their home on the night in question between 7:00 and 7:30pm. During the appeal attention was drawn to parts of her evidence in which she said that she was not sure of the time. Counsel for the applicant accepted that her evidence as to the time at which her son came home was attended by considerable uncertainty. The applicant’s father, who had also made a statement on 2 November, had said that his son arrived home between 7:10 and 7:15pm. In evidence he said it was ‘six or seven or something like that.’ He acknowledged it could have been later because he was not looking at his watch. Counsel for the applicant fairly conceded in oral argument that there was also a degree of uncertainty in his account as to the time when the applicant returned.
The applicant was driving a motor vehicle. It appears that his parents’ home was a short drive from Rachel Lincoln’s home. Given the imprecision as to the time when he returned to his parents’ home, it is plain that their evidence could not negate the reasonable possibility that the applicant had been one of the three persons who assaulted Farquhar.
Apart from the direct evidence that the applicant was the third assailant, there was also a body of circumstantial evidence that supported that conclusion. Clearly, it was a strong Crown case. The applicant made no attempt on the appeal to suggest that the evidence was otherwise insufficient to support the verdict. The evidence of Mr and Mrs Tregenza, either separately or in combination, did not oblige the jury to entertain a doubt as to the applicant’s guilt.[3]
Ground 2 — The learned trial judge failed to direct the jury as to the evidence of Rachel Lincoln that she had been threatened following giving evidence at the committal in circumstances where the jury may have erroneously believed that the applicant had threatened her
[3]R v Klamo (2008) 18 VR 644, 653 [38]–[40] (Maxwell P with whom Vincent and Neave JJA agreed); King v The Queen [2014] VSCA 107, [46] (Weinberg JA with whom Redlich JA and Sifris AJA agreed).
In the evidence of Rachel Lincoln she recounted an incident which occurred after she had given evidence at the committal of the applicant and had been put on the same bus as Farquhar. She testified as follows:
[H]e started telling me that — telling me that I done the right thing by going to court and telling the truth and that, and then he told me he found out my address and that he was threatening this person to get my address and that he was gunna come after me, he and his missus got an email through Facebook to get my address, so I moved houses and then I find out they’re trying to track me down again.
In the absence of the jury the prosecutor raised a concern that the witness may have been understood to be referring to a threat made by the applicant and the co-accused, Picone. That did not appear to be counsel for the applicant’s impression. The trial judge was uncertain as to the effect of the evidence. It was not until the following week after that evidence was given that the witness returned to court on a voir dire and stated explicitly that it was Douglas Farquhar who had made those threats to her. Following the voir dire, counsel for the applicant stated that he had read and re-read the witness’s testimony and that it was clear to him that she was saying that the threats had come from Douglas Farquhar. He elected not to explore this issue further when the witness was recalled before the jury for further cross-examination on other matters. Neither did counsel for the applicant seek any direction from the learned trial judge in relation to this matter and no discharge of the jury was sought. Despite this, the applicant now submits on appeal that a miscarriage of justice has arisen. There was no forensic advantage, it was said, to trial counsel seeking to explore and clarify the issue in further cross-examination of the witness. Alternatively he should have requested a direction from the trial judge that it was Farquhar and not the applicant who had threatened the witness.
Counsel for the respondent on the appeal submitted that Lincoln’s explanation on the voir dire served only to confirm what was, in any event, quite clear from the evidence before the jury. The witness was referring to a conversation she had had with the victim, Farquhar, in which he had threatened her. Counsel further submitted that the only person named by the witness immediately before that evidence had been given was ‘Dougie’ and in the context of the evidence all references to ‘he’ must have been to ‘Dougie’. He also pointed to a further piece of evidence in the narration by the witness to the effect that the person making the threats was to meet his wife ‘Karina’ with his baby daughter and a son when they got off the bus. It was said that it would have been obvious to the jury that this was a reference to Farquhar’s wife, as the applicant did not have a wife by that name.
There is, in our view, considerable force in the respondent’s submission and the conclusion reached by the applicant’s counsel at trial that the witness was saying that Farquhar had made threats against her. Furthermore, this Court will not readily intervene where counsel makes a forensic decision to follow a particular course.[4] Viewed objectively, there were at least two sound reasons why counsel for the applicant made the choice that he did. First was the danger associated with suggesting to the jury that another interpretation of the witness’s evidence was that the applicant and Picone had threatened her. Second, the witness gave other evidence on the voir dire to the effect that the applicant and Picone had also threatened her and had tried to find her. Counsel for the applicant was rightly anxious to ensure that such evidence did not emerge before the jury. This was not a circumstance in which the trial judge should have given a direction designed to favour the accused when counsel was opposed to the course of raising the possibility that her evidence could be so understood. Under s 15 of the Jury Directions Act 2013, which governs this trial, the trial judge was only obliged to have given such a direction if she had been satisfied that there was a need to do so to avoid a substantial miscarriage of justice. No such need arose.
[4]Flora v The Queen (2013) 233 A Crim R 320, 327 [35] (Redlich, Weinberg and Coghlan JJA).
This ground fails.
Ground 3 — The learned trial judge failed to adequately direct the jury in relation to the elements of the charge of intentionally causing serious injury
In accordance with his obligation under the provisions of the Jury Directions Act experienced defence counsel advised that he did not require the trial judge to give the jury a direction regarding the definition of ‘serious injury’. Notwithstanding that submission, and the fact that the victim had plainly suffered a number of serious injuries as a result of the assault upon him and that those injuries were not in issue in the trial, counsel for the applicant now submits that the trial judge erred in failing to direct the jury as to the meaning of serious injury. He submits that the content of the direction as to intent was meaningless without an explanation to the jury of what constituted serious injury. Without such a direction, it was said that the jury would not have understood what in fact it was that the applicant had intended or foreseen. There is, in our view, no substance in this submission. It was the Crown case that the injuries that were intended were the very ones inflicted upon the victim and that those injuries were serious.
Included in the judge’s directions was a question trail which had been settled with counsel. The jury was directed that the prosecution was required to establish beyond reasonable doubt three questions. The first question was whether it was satisfied that Mr Farquhar had suffered a serious injury. As to that, in the written instruction on the question trail provided to the jury it was said by the trial judge that it was not in issue that Mr Farquhar had sustained serious injury. The second question was whether the applicant had caused the serious injury. In the written instruction the trial judge briefly summarised the respective contentions of the prosecution and the defence on that issue. The third question was whether the applicant had ‘intended to cause the serious injury’. In the written instruction the judge summarised the prosecution case on this issue as follows.
His intention was clear from the plan that was made, the words that he uttered and the acts that he himself did, knowing that M was also assaulting Mr Farquhar and that Ms Picone joined them.’
The defence case was summarised as follows:
Mr Tregenza was not there. There was no plan and he did not do the acts or say the words so he had no such intention.
During oral argument, counsel for the applicant advanced a new and discrete submission. He pointed to evidence that the applicant had been seen to be pulling Picone away from the victim. That evidence, it was said, gave rise to the need to more fully explore what injuries the applicant had intended to inflict and whether he had intended to cause the injuries that were in fact inflicted. That submission also cannot be sustained. As it was pointed out in argument, there was evidence that the applicant had possession of the large steel crowbar, described by a witness as a ‘stick’ which was used to inflict injury. The fact that the applicant may have pulled Picone away from the victim occurred at the end of the assault and after the serious injuries had been inflicted. It came too late to be characterised as evidence of the applicant’s withdrawal from his complicity in the assault. There was no basis upon which to explore the hypothesis that the applicant did not intend to cause any of the serious injuries inflicted. The trial judge did not err in acting upon the submission of defence counsel that the issues in the trial did not call for a direction as to the meaning of serious injury.
Ground 4 — The learned trial judge failed to adequately direct the jury in relation to the evidence of recognition of the applicant by Rachel Lincoln
Rachel Lincoln testified that she had observed that the applicant known as ‘Gonzo’ was involved in the assault. She said that she had known the applicant for about as long as she had known Picone, namely, for a few years. In cross-examination, she agreed that the contact that she had with the applicant was very limited but she maintained she knew what the applicant looked like. In her charge, the trial judge reminded the jury of the witness’s evidence concerning her limited contact with the applicant.
On appeal, it was submitted that the requirements set out in Domican v The Queen[5] and R v Sindoni[6] were not complied with in that the trial judge had not properly isolated and identified for the benefit of the jury matters of significance which might reasonably be regarded as undermining the witness’s reliability in identifying the applicant. It was submitted that the trial judge should have identified the weaknesses in her identification evidence by directing the jury that the evidence had failed to disclose how often and in what circumstances the witness had come to meet and see the applicant. In oral argument, this submission was only faintly pressed. It was conceded that trial counsel had not required such a direction from the trial judge in accordance with s 15 of the Jury Directions Act.
[5](1992) 173 CLR 555.
[6](2011) 211 A Crim R 187, 205–6 [65].
It was not surprising that no such request was made. The matters upon which it is now said the trial judge should have directed the jury were not explored by defence counsel in cross-examination of the witness. It was not suggested that her ability to recognise the applicant was affected in the ways suggested on appeal. The trial judge gave comprehensive and appropriate directions regarding identification evidence and its dangers. This ground is without merit.
Ground 5 — The learned trial judge erred in failing to adequately direct the jury as to the statement recounted by Rachel Lincoln that Christine Picone had said ‘get him, Gonzo’ during the incident
The prosecution, having been given leave to cross-examine Rachel Lincoln, led evidence as to the content of her police statement in which she recounted that she heard Picone say ‘get him, Gonzo’ to the two men chasing after Farquhar. Later, during that same cross-examination, Lincoln stated that she was not sure whether this was something which she had heard or whether it was something which she had been told by Farquhar that Picone had said. It was submitted that, if the witness had only been told this by Farquhar, the evidence was inadmissible and the trial judge should have directed the jury that they could not in that circumstance use the statement against the applicant.
Experienced defence counsel did not object to this evidence when it was given. It was not explored in cross-examination. The applicant’s counsel sought no direction from the trial judge. Again there were sound forensic reasons why no objection was taken to this evidence and no direction sought. Even if the witness was recounting what she had been told by Farquhar, the evidence would have been admissible as a prior representation by Farquhar. The applicant was, if anything, favoured by the absence of such a direction as it did not draw attention to how the statement may have been used if it came from Farquhar. Instead, the jury was left with Ms Lincoln’s vague recollection about the utterance. No direction having been requested, the trial judge was under no obligation to give such a direction in order to avoid a substantial miscarriage of justice.
The application for leave to appeal against conviction must be refused.
Appeal against sentence
The applicant seeks leave to appeal against sentence on the following ground:
(a) the learned sentencing judge failed to give adequate weight to the prospects of rehabilitation of the applicant in setting the non-parole period.
The applicant submitted that a non-parole period of five years on a head sentence of seven years, when the applicant’s prospects for rehabilitation were found to be reasonable and his risk of reoffending to be low to medium, could not be justified.
By the time of the hearing of the appeal, the applicant’s co-offender, Picone, who had been sentenced to 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months’ imprisonment, had successfully appealed against her sentence on the ground that it was manifestly excessive. Her sentence had been reduced to 5 years’ imprisonment with a non-parole period of 3 years. In allowing Picone’s appeal, Priest and Beach JJA observed:
As we have said, the appellant previously has never been imprisoned. Although, perhaps, limited, she showed some measure of remorse by pleading guilty to recklessly causing serious injury. Moreover, she has two children who lived with her, and who were dependent upon her. The available material suggested that the appellant was a good mother, who would suffer great distress as a result of her 13 year old daughter being deprived of her care for a period of years. She herself had been subjected to violence at the hands of an abusive partner, from whom she had separated. Further, the appellant suffered from ‘chronic adjustment disorder with mixed anxiety and depressed mood’, resulting from the physical, sexual and verbal abuse perpetrated upon her by her former partner. Although that condition did not reduce her moral culpability, the sentencing judge accepted that this condition would make the appellant’s time in prison more burdensome.[7]
[7]Picone v The Queen [2015] VSCA 5, [12].
As a consequence of the outcome of that appeal, the applicant was granted leave to rely upon a new ground of appeal in these terms:
The sentence imposed upon the applicant in comparison with the sentence imposed upon the co-accused (on re-sentencing) offends the principle of parity.
The sentencing judge had found the applicant and Picone to be equally culpable. She had nonetheless imposed different sentences. The applicant’s head sentence and non-parole period were each six months more than that of his co-offender.
Counsel for the respondent fairly conceded on the appeal that it would be necessary to reduce the applicant’s sentence in order to satisfy the principle of parity. It was further submitted, however, that we were not obliged to preserve the same relativity between the co-offender’s sentence and the applicant’s sentence as had been fixed by the sentencing judge. The applicant further submitted that we should not distinguish between the applicant and Picone and should impose the same sentence as Picone had received on appeal.
We accept the respondent’s submissions that we are not bound to maintain the same relativity between the applicant and Picone’s sentences.[8] The sentencing judge, however, presided over the trial of both co-offenders and had the benefit of a full plea in mitigation by both offenders. Therefore we consider that we should approach the matter on the basis that the distinction drawn by her Honour between the co-offenders should be maintained, in the absence of some identifiable error or further fact which necessitates a different course.
[8]R v Guthrie [2006] VSCA 192; R v Sibic [2006] VSCA 296.
The applicant was 37 at the time of the offence and 39 years of age at the time of sentence. He had two prior convictions that were relevant, being that of recklessly causing injury in 2009, for which he received a bond, and a breach of an intervention order in 2011, for which he received a $1,000 fine. He had never previously been incarcerated. The applicant had a strong employment history and, although separated from Christine Picone for some four years, had maintained regular involvement with his family. He provided references attesting to his good character and was able to point to the fact that he had continued in the community on bail from November 2011 until his conviction in February 2014 without incident.
On the appeal, the applicant sought to make much of the fact that the sentencing judge had found the co-offender Picone to be at medium risk of reoffending while the applicant’s risk was assessed to be at low to medium. Attention was drawn to the fact that Picone was also the instigator of this offence. That said, the applicant did not have available to him the compelling constellation of mitigating circumstances which led the Court of Appeal to the conclusion that the original sentence imposed upon Picone was manifestly excessive.
In our view there is no aspect of the sentence imposed upon the applicant that is manifestly excessive. However, as the respondent acknowledges, there should be a reduction in the applicant’s sentence in order to satisfy the principle of parity. We would therefore grant leave to appeal on ground 2, allow the appeal and set aside the sentence fixed below. Approaching the question of the relativity between the sentences of the applicant and Picone in the way we have explained at [41] above, error has already been identified by the Court of Appeal in the sentence imposed on Picone.
The appellant Picone’s appeal having been allowed in large part because of mitigating circumstances that existed in her case alone which the Court of Appeal did not consider had received sufficient emphasis, we do not regard it as necessary to preserve the same differential as was fixed by the sentencing judge between her sentence and that of Picone. We would therefore fix a sentence of 6 years and 6 months’ imprisonment with a non-parole period of 4 years and 3 months.
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