Baleiovalau v The Queen

[2015] NSWCCA 305

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Baleiovalau v R [2015] NSWCCA 305

Hearing dates:

19 November 2015

Decision date:

02 December 2015

Before:

Gleeson JA at [1];
Bellew J at [78];
R S Hulme AJ at [79]

Decision:

1   Grant leave to appeal.

 

2   Appeal allowed.

 

3   The sentence imposed in the District Court on 21 August 2014 is quashed.

 4   The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years commencing on 11 April 2012 and expiring on 10 April 2014, with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. The Court notes that the applicant is now eligible for release on parole.

Catchwords:

CRIMINAL LAW – appeals – sentencing – applicant sentenced to term of imprisonment for attempted robbery offence committed in 2004 contrary to s 97(2) of the Crimes Act 1900 (NSW) – accumulation of sentence for 2004 offence on earlier sentence for similar armed robbery offences in 2005 resulted in an overall term of 12 years with an overall non-parole period of 10 years – whether sentencing judge erred in assessment of objective seriousness of 2004 offence – whether judge failed to give effect to principle of totality – whether overall term of sentence in proportion to overall non-parole period excessive – whether judge erred by comparing applicant’s circumstances with those of an alleged co-offender

  CRIMINAL LAW – appeals – sentencing – resentence – likely sentence imposed if applicant dealt with for all offences at same time – finding of special circumstances on the basis of accumulation

Legislation Cited:

Crimes Act 1900 (NSW) s 97
Criminal Appeal Act 1912 (NSW) s 6(3)

Cases Cited:

Baleiovalau v R [2009] NSWCCA 153
Barrett v R [2011] NSWCCA 213
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Kentwell v R [2014] HCA 37; 252 CLR 201
LG v R [2012] NSWCCA 249
Mill v The Queen [1988] HCA 70; 166 CLR 59
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Todd [1982] 2 NSWLR 517
Wu v R [2011] NSWCCA 102; 211 A Crim R 88

Category:

Principal judgment

Parties:

Tomu Baleiovalau (Applicant)
Regina (Crown)

Representation:

Counsel:
W Hunt (Applicant)
H Baker (Crown)

  Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/139741

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

21 August 2014

Before:

Lakatos SC DCJ

File Number(s):

2013/139741

Judgment

1. GLEESON JA: On 2 December 2013 the applicant, Tomu Baleiovalau, pleaded not guilty to an indictment alleging an offence, contrary to s 97(2) of the Crimes Act 1900 (NSW), of attempted robbery while being armed with a dangerous weapon, namely a firearm, committed on 16 December 2004 at Regents Park (the 2004 offence).

2. The maximum penalty for the offence is imprisonment for 25 years.

3. Following a trial in the District Court before a judge alone (Lakatos SC DCJ), the applicant was found guilty on 28 July 2014.

4. On 21 August 2014 the judge sentenced the applicant to imprisonment for 5 years with a non-parole period of 3 years, commencing from 11 April 2013. The earliest date the applicant is eligible for parole is 10 April 2016.

5. The applicant seeks leave to appeal against the severity of the sentence imposed on the following grounds:

1. The sentencing judge erred in his assessment of the objective seriousness of the offending.

2. The sentencing judge failed to give any meaningful effect to the principle of totality in the sentence that he imposed.

3. The sentencing judge erred by undertaking a comparison between the objective and subjective circumstances in relation to Mr Taotala and the applicant when there was no proper basis to do so.

4. The sentence was manifestly excessive.

Factual background

6. The sentencing judge found the facts of the offending to be as follows.

7. On 16 December 2004, the applicant and two other masked men entered the Commonwealth Bank at Regents Park at about mid-morning. The applicant's face was not covered. One of the applicant's co-offenders was holding a pistol and the other was holding a sledgehammer. The sledgehammer was used by one of the co-offenders on the windows of the tellers' area to gain entry. The offenders also attempted to gain entry to the tellers' area by the discharge of a shot from the pistol, which, by ricochet, caused a minor injury to the arm of a customer who was attending the bank at that time.

8. A short time later, the offenders ran out of the bank, without any cash, and they were seen to drive off in a car, the licence plate of which was noted by several witnesses. The getaway car, a Nissan Silvia, was found a short time later. It contained articles of clothing on which the applicant's DNA was present. The clothing matched the description of that worn by one of the offenders as depicted in the CCTV footage of the attempted bank robbery (the Regents Park robbery).

9. The applicant was first interviewed in relation to the Regents Park robbery in January 2008. He participated in a record of interview and denied any knowledge of the offences.

10. The applicant was not arrested in relation to the 2004 offence until 6 May 2013. At that time he was serving a term of imprisonment in relation to other aggravated armed robbery offences, contrary to s 97(2) of the Crimes Act, and an offence of conspiracy to commit aggravated armed robbery. Those offences were committed in the period February to April 2005 (the 2005 offences).

The alleged co-offender

11. Mr John Taotala, an alleged co-offender in the Regents Park robbery, was also charged with the offence of aggravated attempted robbery. In addition, Mr Taotala was charged with an offence committed on 15 December 2004 involving the motor vehicle used in the Regents Park robbery. That offence involved the robbery of a Nissan Silvia motor vehicle whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act.

12. Mr Taotala pleaded not guilty to the indictment containing those charges and was tried jointly with the applicant before Lakatos SC DCJ. He was found not guilty of aggravated attempted robbery. Ultimately he was found guilty of armed robbery of the Nissan Silvia whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 20 years.

13. On 21 August 2014, Lakatos SC DCJ sentenced Mr Taotala to a term of imprisonment of 4 years with a non-parole period of 2 years.

The 2005 offences

14. It is necessary to briefly refer to the 2005 offences and the sentences imposed upon the applicant, having regard to ground 2 of the appeal which relies upon the totality principle.

15. On 24 January 2007 the applicant pleaded guilty to an indictment containing the 2005 offences.

16. Count 1 concerned robbery in company involving approximately $40,005, the property of the Qantas Staff Credit Union Ltd, on 25 February 2005 at Hurstville, while armed with a dangerous weapon, being a shortened rifle (the Hurstville robbery). There were three co-offenders. They were all disguised, wearing scarves and caps and gloves. A sledgehammer was used to smash the glass window near the teller area. One of the offenders was armed with a sawn-off .22 rifle. He chased and threatened a customer with the rifle, who attempted to take his photo.

17. Count 2 concerned the robbery in company involving two motor vehicles the property of Parkside Automobiles Pty Ltd on 12 April 2005 at Arncliffe, while armed with a dangerous weapon, being a shortened 12-gauge self-loading shotgun (the Parkside robbery). There were at least three co-offenders. One offender threatened staff with a shotgun. The applicant was holding a handgun and also made threats to the staff (although the pistol was later found not to be in working order). The offenders left with two stolen cars, one of which was driven by the applicant

18. Count 3 concerned a conspiracy with three identified persons between 10 and 13 April 2005 to commit a further robbery on the Qantas Staff Credit Union at Hurstville while armed with a dangerous weapon, namely a shortened 12-gauge self-loading shotgun (the conspiracy).

19. Tupman DCJ found that each of the offences in their own way was very serious. Her Honour considered the offences well above the circumstances referred to in the guideline case of R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry). Her Honour found special circumstances on the basis that a longer period was required for integration into the community and partial accumulation.

20. On 30 August 2007 Tupman DCJ sentenced the applicant as follows:

Count 1 (the Hurstville robbery): Imprisonment for a term of 6 years 6 months commencing on 12 April 2006 and expiring on 11 October 2012 with a non-parole period of 4 years 6 months commencing on 12 April 2006 and expiring on 11 October 2010.

Count 2 (the Parkside robbery): Imprisonment for a term of 6 years 6 months commencing on 12 April 2010 and concluding on 11 October 2016 with a non-parole period of 3 years 6 months commencing on 12 April 2010 and expiring on 11 October 2013.

Count 3 (the conspiracy): Imprisonment for a term of 5 years 6 months commencing on 12 April 2008 and concluding on 11 October 2013 with a non-parole period of 3 years 6 months commencing on 12 April 2008 and expiring on 11 October 2011.

21. As a result of partial accumulation and concurrence the total effective sentence imposed by Tupman DCJ was 10 years 6 months commencing on 12 April 2006 and expiring on 11 October 2016 with an effective non-parole period of 7 years 6 months commencing on 12 April 2006 and expiring on 11 October 2013. The sentence was reduced by 20% for the utilitarian value of the pleas of guilty. The sentence was also partially accumulated on sentences imposed in 1999 in respect of similar armed robbery offences (the 1999 offences). The commencement date of the sentence on count 1 of the 2005 offences was 12 months after the applicant’s arrest, that is from 12 April 2006.

22. An appeal to this Court against the severity of the sentence imposed by Tupman DCJ on grounds which included an asserted failure to have proper regard to the principle of totality was unsuccessful: Baleiovalau v R [2009] NSWCCA 153.

The applicant’s subjective case

23. The applicant was born in Fiji on 13 February 1980. He was 24 years old at the time of the 2004 offence and 34 years old on sentence. The applicant was the eldest of three sons who came to Australia with his mother when he was about 11 or 13 years of age. The judge said (ROS 16):

He has had a patchy educational experience. He has had a history of drug abuse since his late teens. He had his primary education in Fiji, secondary education at Punchbowl Boys High School where he left due to problems without completing Year 10. He has never worked outside of prison. He has found it difficult after the times he spent in custody to adjust after being released from prison.

24. A report dated 6 August 2014 from a clinical psychologist, Mr Peter Champion, expressed the view that the applicant became peer dependent in adolescence and associated with peers who were involved in serious crimes, such associations being likely to add to a distortion of his attitudes and values.

25. The applicant has a criminal history for similar robbery offences in 1997 dealt with in the Children’s Court, and in 1999 dealt with in the District Court. For the 1999 offences, he was sentenced to 8 years imprisonment with a non-parole period of 5 years commencing on 6 October 1999.

26. The psychologist recorded that the applicant had been ambivalent about his release on parole in October 2004, because he was concerned about his ability to cope in the community.

27. The psychologist expressed the view that the applicant may have become institutionalised, noting that in the last 15 years the applicant had been in custody for almost all but 6 months.

28. The psychologist could only rate the applicant’s prognosis as guarded, and poor in the event of a relapse into drug use or social dislocation, including loss of accommodation and/or family support networks.

The sentencing judgment

29. The judge noted that the offending was aggravated as the applicant had been on conditional liberty for similar offences at the time of the 2004 offence (ROS 6). He accepted that the 2004 offence was “essentially the same period of criminality, going over about four months” as the 2005 offences (ROS 9-10). He observed in relation to the 2005 offences (ROS 9-10):

Those robberies I note included the use of disguises, scarfs, clubs, a sledge hammer and a sawn-off 22 riffle [sic]. Her Honour judged the offences in the middle of the range of objective seriousness. In relation to one of the offences the robbery of a motor vehicle her Honour found the specific purpose was to use the vehicle in a further armed robbery of which the offenders stood charged. In that sense there is that connection between the two offences which I have dealt.

In the course of the robbery Mr Baleiovalau, the offender, held a gun pointed at the victims of that robbery and phones were ripped from the walls. As I say in this regard there is resonance in the facts which I found in the present two cases.

….

I have been furnished with the Court of Criminal Appeal judgment as to those matters and I note as to those matters as the Crown asked because the observation is correct, that at paras 10 through to 13 the similarity of the facts which I will broadly summarise, are self-evident.

30. The judge found that the applicant was not a young offender without criminal history; a working firearm was presented; the firearm was discharged and a person was injured. Accordingly the judge considered the Henry guideline should be put aside (ROS 20).

31. The judge found that there was significant planning in relation to the offending. He accepted that there was only limited violence in the sense that minor injuries were occasioned to a bystander. Nonetheless his Honour found that the possession and discharge of a pistol in a public place would cause significant fear and trauma to the person actually injured and those who witnessed it. He found that the victims, particularly the bank tellers, were in a vulnerable position and so were the customers of the bank (ROS 20-21).

32. The judge noted that a number of aggravating factors referred to in the Henry guideline were engaged to “some extent”, including the presence of a loaded pistol, significant planning, the use of force - both the discharge of the pistol and the use of the sledgehammer - and that the applicant was in company, there being three co-offenders involved (ROS 21).

33. While the judge accepted that the applicant was unarmed, he found beyond reasonable doubt that the applicant was aware of the presence of a dangerous weapon, that it was loaded and knew of a possibility that it might be discharged (ROS 25-26).

34. The judge referred to the evidence of the psychologist which has been already mentioned (ROS 16-17). He was unable to make any finding about the applicant’s prospects of rehabilitation (ROS 19).

35. The judge referred to R v Todd [1982] 2 NSWLR 517; Mill v The Queen [1988] HCA 70; 166 CLR 59; and Wu v R [2011] NSWCCA 102; 211 A Crim R 88. He found that there were delays in the investigation and prosecution of the 2004 offence and the effects of the delay were “not insignificant” (ROS 21-22). He did not accept that the applicant was in a state of uncertain suspense, in the absence of evidence from the applicant on the sentencing hearing (ROS 24). He found that the applicant had not taken any active steps prior to May 2013 to undertake the Violent Offenders Program (ROS 27).

36. The judge accepted the evidence of the psychologist that the applicant had become institutionalised, having spent almost 15 years in custody (ROS 27).

37. The judge made a finding of special circumstances to deal with any remnants of the applicant’s drug abuse and imposed the sentence already indicated (ROS 29). He added:

… of course there is in a sense a notional of [sic] accumulation of sentences given the fact that I have taken into account issues of totality (ROS 29).

Ground 1: Objective seriousness of the offending

38. Ground 1 asserts that his Honour erred in his assessment of the objective seriousness of the offence.

39. The applicant points to the passage in his Honour’s remarks on sentence (set out at [29] above), where he referred to Tupman DCJ having assessed the 2005 offences in the middle of the range of objective seriousness and observed that there was a resonance in the facts of the present cases involving the applicant and Mr Taotala.

40. The applicant accepts that the connection found by the judge between the 2005 offences and the 2004 offence was justified. The complaint which is made is that the judge lost sight of the significant differences between the offences and as a result erred in his assessment of the objective seriousness of the 2004 offence as being the same as the 2005 offences.

41. The applicant points to the following differences: his more active role in the Parkside robbery; the fact that the firearm was not pointed at the victims during the Regents Park robbery; and that the Regents Park robbery appears “more spontaneous”, due to it being first in time and the offender not covering his face or carrying a weapon.

42. The Crown submitted that the sentencing judge did not merely adopt Tupman DCJ’s finding in relation to the objective seriousness of the 2005 offences. While the judge accepted that the applicant was unarmed, the Crown emphasised the judge’s finding that the applicant knew that there was a dangerous weapon present, that it was loaded and knew of the possibility that it might be discharged.

Decision

43. It bears repeating that the characterisation of the degree of objective seriousness of an offence is a matter for the sentencing judge as Spigelman CJ explained in Mulato v R [2006] NSWCCA 282 at [37]:

This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion.

Simpson J expressed similar observations at [46].

44. Here the judge correctly identified and took into account the factors referred to the Henry guideline relevant to the assessment of the objective seriousness of the offence. I accept the Crown’s submission that the features of the Parkside robbery were not of such a difference to distinguish the 2005 offences from the 2004 offence.

45. The Regents Park robbery was a serious example of an offence of that kind. It involved the applicant attempting to rob a bank with two other masked men. Significant planning was involved and force was used in an attempt to gain entry to the teller area. The firearm was discharged and a customer was injured; fortunately, only a minor injury. Undoubtedly, the bank staff and other customers were traumatised and placed in real danger. Although the applicant himself was unarmed, the applicant knew, as his Honour found, that there was a dangerous weapon present, that it was loaded and of the possibility that it might be discharged.

46. The finding that the 2004 offence was in the middle of the range of objective seriousness was open to the judge.

47. Ground 1 is not made out.

Ground 2: Principle of totality

48. Ground 2 asserts that the judge did not give any meaningful effect to the principle of totality.

49. The applicant accepts that the judge correctly identified the applicable principles with respect to the issue of totality and expressly stated that he had taken into account issues of totality.

50. The complaint made is that his Honour failed to apply those principles, because the effect of the sentence imposed on the applicant for the 2004 offence was to increase both the overall term by 18 months and the effective non-parole period by 2 years 6 months.

48. Further, although the sentence on the 2004 offence carries a non-parole period of 60% of the total term, for the aggregate sentence on the 2004 and 2005 offences the proportion is approximately 83%.

49. It was submitted that a significant degree of concurrency with the sentence imposed for the 2005 offences was appropriate to reflect the overall criminality of the offending given: the time span within which the four offences were committed between December 2004 and April 2005; the degree of similarity in the modus operandi employed by the applicant and his co-offenders; and the absence of any stolen items in the 2004 offence and the conspiracy charge dealt with by Tupman DCJ. In oral argument, counsel for the applicant also relied on the significant delay in the prosecution of the 2004 offence.

50. The Crown emphasised that the judge’s decision whether to accumulate in respect of multiple offences is fundamentally an exercise within the discretion of the sentencing judge: LG v R [2012] NSWCCA 249 at [24]; R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] (Simpson J). Reference was also made to the well-known observations of Howie J (Adams and Price JJ agreeing ) in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].

Decision

54. When sentencing the applicant for the 2004 offence it was necessary for the judge to ensure that the aggregation of all of the sentences is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 307-308 (McHugh J).

55. As Howie J explained in Cahyadi v R at [27]:

… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

56. The issue in the present case is whether the accumulation is too great. This has two aspects: both the effective non-parole period and the overall term. The totality principle is not limited to the fixing of a non-parole period: Mill v The Queen at 66.

57. It may be seen from the concluding remarks of Lakatos SC DCJ (set out at [37] above) that his Honour intended “a notional accumulation of sentences”. This would have been consistent with his Honour’s findings that the period of criminality involving the 2004 and 2005 offences was essentially the same and that the applicant was not responsible for the significant delay in the prosecution of the 2004 offence.

58. However, as the applicant correctly pointed out, there was nothing “notional” in the accumulation of the sentence for the 2004 offence on the earlier sentence on the 2005 offences. The effect of the accumulation by extending the overall term by 18 months and the non-parole period by 2 years 6 months was inconsistent with his Honour’s stated intention. In particular, his Honour seems to have overlooked that the accumulation of the sentence on the 2005 offences meant that for the overall term of the sentence (12 years), the proportion of the non-parole period (10 years) was in the order of 83%. That outcome was unexplained by his Honour. It seems that his Honour may have overlooked it. The outcome was excessive and unwarranted.

59. Ground 2 is made out.

Ground 3: Comparison of related offenders

60. Ground 3 as amended asserts that the judge erred by comparing the applicant and Mr Taotala when determining the sentence to be imposed upon the applicant. This ground accepts that the applicant and Mr Taotala were not co-offenders, having regard to the not guilty verdict for Mr Taotala on the charge for the Regents Park robbery. The applicant’s complaint is directed to the various observations by the judge in the remarks on sentence comparing the individual circumstances of the applicant and Mr Taotala.

61. The Crown submits that in the context of parallel criminal proceedings for related offences, it was inevitable that the sentencing judge would make some mention of the similarities and points of distinction between the two offenders.

Decision

62. In my view there is no foundation to this complaint. The judge expressly acknowledged that he was sentencing the applicant and Mr Taotala for separate offences (ROS 18) in relation to which different penalties operated (ROS 29). He identified the facts relating to the individual offences and referred to the different applicable maximum penalties.

63. Insofar as the judge mentioned similarities and differences between the circumstances of the applicant and Mr Taotala, his Honour was not undertaking a comparison of the applicant’s offending or subjective circumstances with those of Mr Taotala. On a fair reading of the remarks on sentence, his Honour was merely outlining the relevant circumstances and nature of the offending of each of the applicant and Mr Taotala, and the nature of their respective subjective case. Where there were differences in their individual circumstances it was inevitable that the judge would describe them as such.

64. Ground 3 has not been made out.

Ground 4: The sentence was manifestly excessive

65. Ground 4 asserts that the sentence which was imposed was manifestly excessive. Counsel for the applicant accepted that it was unnecessary to deal with this complaint if error is otherwise established under any of the other grounds of appeal. That may be accepted.

66. Error having been found in respect of ground 2, the terms of s 6(3) of the Criminal Appeal Act 1912 (NSW) apply. Accordingly, it is the duty of this court to exercise the sentencing discretion afresh: Kentwell v R [2014] HCA 37; 252 CLR 201 at [42]-[43] (French CJ, Hayne, Bell and Keane JJ). It is not incumbent on the applicant to demonstrate that the sentence imposed was manifestly excessive.

Is some other sentence warranted in law?

67. In exercising the sentencing discretion afresh, the proper approach in accordance with R v Todd and Mill v The Queen is to assess what would have been the likely sentence imposed if the applicant had been dealt with for all offences at the same time.

68. The objective features of the applicant’s offending and the evidence of the applicant’s subjective circumstances which was placed before Lakatos SC DCJ, has been summarised above. The applicant did not seek to place before this Court any evidence of his circumstances post sentence. While the attempted armed robbery did not succeed, the judge correctly found that it was a serious offence involving significant planning, the use of force and the discharge of a firearm by a co-offender.

69. The applicant’s counsel referred to the statistics in the period January 2008 to December 2014, for attempted robbery offences, armed with a dangerous weapon. The most recent statistics for the period April 2008 to March 2015 show that, in superior courts, 8 out of 16 offenders (50%) had a term of imprisonment imposed upon them that was less than the 5 year total term imposed upon the applicant.

70. However, the statistics upon which reliance was placed do not assist. As the Crown correctly pointed out, the statistics are of particularly limited use in the present case given the small number of offenders sentenced. The applicant was only one of two offenders to plead not guilty and a significant aggravating factor in the applicant’s case is that the offence was committed whilst he was on parole for similar offences.

71. In the present case, it is necessary to consider the effect of partial accumulation of the sentence on the 2004 offence on the ratio between the overall non-parole period and the overall term of the sentence: Barrett v R [2011] NSWCCA 213 at [29] (Hidden J; Whealy JA and Johnson J agreeing).

72. In my view, if the 2004 and 2005 offences had been dealt with at the same time, the likely overall term would have been about 11 years. An appropriate overall non-parole period would have been about 8 years.

73. Although the term of 5 years imposed by Lakatos SC DCJ was otherwise appropriate, I am persuaded that a lesser sentence than that imposed by his Honour was warranted in law in terms of partial accumulation and concurrency on the 2005 offences.

74. Having regard to the partial accumulation of the sentence on the 2005 offences that I would propose in the following paragraph, I would also make a finding of special circumstances to ensure an appropriate overall non-parole period for the 2004 and 2005 offences.

75. Accordingly, I would propose a non-parole period of 2 years commencing from 11 April 2012 and ending on 10 April 2014 with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. It follows that the applicant would be now eligible for release on parole.

76. I acknowledge that the orders I propose will result in the total non-parole period being about 73% of the total sentence rather than the 71% resulting from the orders of Tupman DCJ and that this result gives little effect to the finding of special circumstances made by her Honour. A lesser percentage could be arrived at by delaying the start of the sentence imposed by Lakatos SC DCJ and providing for a longer balance of term than I propose. However, given the length of the effective non-parole period and total sentence consequent on what I have proposed, I am not persuaded that such a change is required or would be of benefit to the applicant. Undoubtedly the matter is complicated by the sentence which Tupman DCJ originally imposed.

Conclusion

77. There should be a grant of leave to appeal as an error in the sentencing process has been made out on ground 2. I am persuaded that a lesser sentence is warranted in law. The orders that I propose are as follows:

1   Grant leave to appeal.

2   Appeal allowed.

3   The sentence imposed in the District Court on 21 August 2014 is quashed.

4   The applicant is sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years commencing on 11 April 2012 and expiring on 10 April 2014, with a balance of term of 3 years commencing on 11 April 2014 and expiring on 10 April 2017. The Court notes that the applicant is now eligible for release on parole.

78. BELLEW J: I agree with Gleeson JA.

79. R S HULME AJ: I agree with the orders proposed by Gleeson JA and with his Honour’s reasons.

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Decision last updated: 02 December 2015