Curley v The State of Western Australia - [2009] WASCA 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CURLEY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 48

CORAM: OWEN JA
WHEELER JA
MILLER JA

HEARD: 11 FEBRUARY 2009

DELIVERED : 27 FEBRUARY 2009

FILE NO/S: CACR 97 of 2008

BETWEEN: STANLEY RONALD CURLEY
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JOHNSON J
File No  :INS 196 of 2007

Catchwords:

Criminal law - Sentence - Parole - Whether trial judge correct to refuse parole - Sentencing Act 1995 (WA) s 89(4) - Turns on own facts

Legislation:

Sentencing Act 1995 (WA), s 6(2), s 89(4)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr S B Watters & Ms C K O Majeks
Respondent: Mr B Fiannaca SC

Solicitors:

Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Moody v French [2008] WASCA 67; (2008) MVR 322
Ugle v The State of Western Australia [2007] WASCA 199

OWEN JA: I have read the reasons that Miller JA intends to publish. I agree with those reasons and with the conclusion that the appeal should be dismissed. I wish to add a few short comments on a couple of aspects of the appeal.
There was a single ground of appeal. Originally, the appellant complained that the sentencing judge had inadvertently been led into error concerning the effect the sentence would have on outstanding parole days 'such that' her discretion miscarried. As a matter of grammar and sentence structure the challenge is limited to consideration of the problem raised by the outstanding parole days. During the hearing it became apparent that the appellant did not intend the ground to be so limited. The court gave leave for the ground to be amended by removing the words 'such that' and substituting the word 'and'. Care needs to be taken to ensure that grounds of appeal are drafted to reflect the gravamen of the challenge.
Nonetheless, as Miller JA has pointed out, the challenge remained primarily based on the proposition that the sentencing judge was inadvertently led into error concerning the 'breach days' that could later be served on parole. Although there was an error there is no indication that the sentencing judge was influenced by it or that it had an effect on the ultimate decision to decline parole eligibility.
This appeal presents a stark reminder of the true nature of the appellate function. It does not matter whether the appellate judges might have reached a decision different from that arrived at by the sentencing judge. The question is whether the sentencing judge fell into error in exercising the discretion that is at the heart of the sentencing process. For the reasons already expressed the 'breach days' problem does not constitute appealable error.
Nor, in my view, has the appellant demonstrated any other error encompassed by the broad terms of the amended ground of appeal. In Ugle v The State of Western Australia [2007] WASCA 199 I discussed some aspects of the parole regime, including its rehabilitative role. I referred to the 'glimmer of light' in what otherwise appeared to be a dark and hopeless prognosis for the offender in that case. I do not resile from anything I said in Ugle. But it still remains necessary to demonstrate error before an appellate court can intervene.
At the hearing of this appeal I asked counsel to identify the factor or factors that represented the 'glimmer of light' and which had not properly been taken into account by the sentencing judge. The only matter that

counsel could identify was the appellant's age. But this was something the sentencing judge took into account. Her Honour said:
I have given consideration to whether the fact you are 24 or only 24 is sufficiently [sic] of itself to grant you a parole order but in circumstances where everything else points against it I don't believe, notwithstanding your age, that the factor alone is a sufficient justification.

I cannot discern any other area in which her Honour erred in her appreciation of the factors that were relevant and material to the exercise of the sentencing discretion. Accordingly, I can see no sufficient basis on which this court could intervene.
WHEELER JA: I agree with Miller JA.
MILLER JA: The appellant was tried before Johnson J and a jury in the Supreme Court at Perth for the offence of aggravated armed robbery. He pleaded not guilty to the offence, but was convicted by verdict of the jury. He was sentenced on 19 June 2008 to imprisonment for 6 years. The sentencing judge declined to make an order for eligibility for parole.
The appellant appeals against the decision of the sentencing judge to refuse parole.

The facts

The facts of the case were recorded by the sentencing judge when she pronounced sentence. Her Honour said that the facts had been canvassed in great detail over the course of a three‑day trial, but that they could be summarised as follows.
At about 10.15 pm on 6 May 2007, the appellant and a co‑offender entered the premises of Jennifer Mary Kamper and Stuart Francis Kamper in Kewdale. Another co‑offender stayed in a vehicle, which was parked a short distance away.
It was the intention of the appellant and his co‑offenders to burgle the house of Mr and Mrs Kamper and to steal property from it. To avoid being discovered, the appellant placed a cap over an external light and altered the direction of light sensors, so that the lights would not be activated. He then attempted to enter the house by going to a number of windows and to a door. He was unable to get in, but he was able to see into the house. In the study, he saw items that he considered worth stealing.

The appellant's activities awoke the occupants of the house. Although the appellant and his co‑offender knew that the occupants had awoken, they persisted with their intention to break in.
The appellant could see the occupants of the house within it. Notwithstanding this, he took a paving brick and threw it through patio doors. This enabled him and his co‑offender to enter the house. The co‑offender held Mr Kamper at bay whilst the appellant went to the study to steal property.
Mrs Kamper was between the appellant and the study. The appellant pushed her aside in order to enter the study. She fell heavily to the ground and she sustained injury. In particular, she suffered extensive bruising and pain in the left hand and the shoulder.
Mr Kamper told the appellant that he had called the police, but the appellant ignored this information. The appellant took cash, wallets and computer items from the study and both he and his co‑offender left the house through the doors that had been smashed.

Sentencing

The sentencing judge described the offence as having arisen out of a degree of organisation. Her Honour instanced the interference with the light sensors, disguises which were worn by the appellant and his co‑offender and a screwdriver which had been taken to the scene. A car was left sufficiently close to the scene to enable a quick exit.
The sentencing judge said that it was an appalling fact that the appellant was prepared to break into the premises, despite knowing that the occupants were in there and were aware of his presence outside the house. She said that the appellant knew that there was every likelihood of a confrontation, as indeed eventuated. In her opinion, the appellant did not care one way or the other whether anybody was in the house and was prepared to go to considerable lengths to enter and steal property. The sentencing judge continued:
To describe this offence as serious is to state the obvious. Having your home burgled is something that everyone dreads. Having your home invaded by armed intruders right before your eyes is almost beyond comprehension to the average member of the community. Sadly, home invasions have ceased to be uncommon events in our society.
It is hardly surprising that Mrs Kamper described herself as hysterical at the point where you and your co‑offender violently entered her home. Mr Kamper said he was a bit shaken but I have no doubt that that was a gross understatement in a situation where he was being prevented from someone wielding a brick from going to the aid of his wife who was confronting the other intruder.
I consider this offence to be at the upper end of the scale for offences of this type. It is clear from the evidence of Mr Woods and the verdict of the jury that you were the offender who entered the study, assaulted Mrs Kamper, causing her bodily harm, and stole the property. When apprehended you declined to be interviewed by police, which is your right, but there was certainly no immediate demonstration of remorse.
You persisted in your plea of not guilty to trial where you gave a version of events which in my view was inherently incredible and which was rejected by the jury as entirely false. The consequence of that is that you have shown no remorse for your conduct and absolutely no acceptance of responsibility and can be given no deduction from the sentence for those factors.
The sentencing judge noted the appellant's personal circumstances. He was 24 years of age at the time of sentencing and he had an extensive criminal record. As a child, he had eight convictions for burglary (15 counts) and convictions for assault, assault occasioning bodily harm, attempted robbery and robbery. As an adult, he had four convictions for burglary (six counts). Each of the adult convictions for burglary resulted in sentences of immediate imprisonment. Between March 2003 and June 2007, the appellant was sentenced to more than 5 years' imprisonment for a variety of different offences.
A pre‑sentence report indicated that the appellant had a poor supervision history with the Department of Corrective Services. As an adult, he had been given three parole orders, all of which had been cancelled or suspended due to reoffending. He had failed to comply with the obligations which were set under the orders. Further, at the time of commission of the offence the subject of the indictment, he was subject to a parole order. He had been released from custody on 19 January 2007. Although he initially reported as directed, when issued with an instruction to report, approximately one month later, he failed to comply. Further, he failed to reside at his nominated parole address and urinalysis testing revealed positive use of amphetamines and methylamphetamines. His last contact with the department was on 15 February 2007, following which his whereabouts were unknown. His parole order was suspended on 21 February 2007 and he was apprehended on 16 May 2007 for various offences, one of which was the subject of the indictment. This resulted in the cancellation of his parole order.
The appellant's prior breaches of parole had occurred in 2004 and 2002 respectively. When released to parole on 19 July 2004 (due to expire on 17 August 2005), he initially complied with reporting obligations, but the order was suspended after one month, by reason of allegations of reoffending and his failure to advise the supervising officer of his whereabouts. The order was cancelled by the Parole Board on 7 September 2004. When released on 22 July 2002, he had an expiry date of 28 November 2002. He complied with his parole obligations for the first two months, but then failed to report as directed and, when charged with an offence on 13 November 2002, his parole order was suspended.
The sentencing judge reviewed the content of the pre‑sentence report. It revealed that the appellant minimised his involvement in the offence the subject of the indictment. He did not appear to accept any responsibility for it. Although there was a statement of remorse in the sense that the appellant said that he felt sorry for what had happened to his victims, the sentencing judge considered that statement of remorse to be 'long overdue [and] difficult to accept'.
The sentencing judge referred to other aspects of the pre‑sentence report. Its summary included the following passage:
Mr Curley presents as a young Aboriginal man who comes before the Court facing serious offences. He has an entrenched pattern of serious offending behaviour, which appears to be escalating, with reference to the violent nature of the current matter before the Court. Mr Curley did not demonstrate any insight into his offending behaviour, and minimised his involvement in the present matters. This disposition inhibits his ability to express any legitimate level of victim empathy. It has been noted in the past that he has difficulty empathising with others due to the rigid perception style he has formed, whereby he believes himself to be the victim.
Mr Curley's offending past reflects very unfavourably, being now well established for his relatively young age and noting the period of time he has spent in custody to date. Subsequent to his release from custody on three separate occasions, it has been only a matter of time before he has engaged in the same type of offending behaviour. Although Mr Curley is able to recognise the high‑risk environment that his current peers represent, he does not appear to have the desire or any real strategies in place to avoid this risk and consequently his involvement in antisocial behaviour.
Due to Mr Curley's poor response to all previous supervision Orders, at this juncture he is considered a marginal candidate for community supervision. During his most recent Parole Order he demonstrated very little compliance before disengaging completely, whilst also proceeding to commit a string of serious offences. This is not unlike his performance on previous Orders, and the increase in the level of violence involved in his more recent offences is cause for grave concern. His offending behaviour and attitude indicates a flagrant disregard toward authority and he has demonstrated his inability to sustain the requirements of community supervision. Although Parole supervision is geared to provide structure and support for reintegration into the community, Mr Curley has apparently not benefited from this intervention in the past.
The author of the pre‑sentence report concluded with a philosophical observation. She thought that it might be a greater risk for the appellant to be released into the community without any restrictions or structure in place and therefore suggested that an order for parole might provide an appropriate structure for his reintegration.
It must be said that this observation does not fit with the legislative intention that a judge may, in certain circumstances, decline to make a parole eligibility order. Parole would always be granted if the philosophy of the writer of the report was correct.
The sentencing judge gave credit to the appellant for his relative youth (24 years) and for his difficult upbringing. She noted also his substance abuse and suggested that, whilst in custody, the appellant might attend drug rehabilitation courses. A letter from the appellant to the sentencing judge indicated that the appellant intended to undertake vocational courses whilst in prison and her Honour thought that this would be of assistance to him.
There is no challenge to the sentence of 6 years' imprisonment which was imposed. It was what the sentencing judge referred to as a 'lengthy term of imprisonment', which incorporated a 'strong personal and general deterrent component [which also was] sufficiently punitive to account for the gross breach of safety and privacy of the home involved in the commission of [the] offence'.
The sentencing judge considered that it was inappropriate to order that the appellant be eligible for parole. Her Honour noted that s 89(4) of the Sentencing Act1995 (WA) provides that a court is not required to make an order for parole eligibility if it considers that the offender should not be eligible because of at least two of four factors. Her Honour found two of those factors to be present. She expressed the view that she had 'no hesitation' in concluding that the offence of which the appellant had been convicted was a serious one. Her Honour also found that when released from custody under previous parole orders, the appellant had failed to comply with those orders. Not only this, but at the time of the commission of the offence in question, the appellant was on parole. Her Honour then said:
On the basis of the information available to me I am led inescapably to the conclusion that you represent a serious risk to the community. The Full Court of this court has held that one of the more important considerations when considering parole eligibility will be the offender's prospects of rehabilitation and the question whether or not that sentencing objective will be assisted by making a parole eligibility order.
In my view your prospects of rehabilitation are exceedingly poor based on the material that I have before me and are unlikely to be assisted in any substantial way, if at all, by making a parole order. The fact that release on parole might provide controls which inhibit in some way and to some small degree your return to offending is not the same as concluding that the offender's prospects of rehabilitation will be assisted by a parole order.
In relation to the factors identified in section 89 subsection (4) I am also of the view that your record can be described as serious although such a conclusion does not sway the balance against a parole order as in my view the two factors to which I have already referred of themselves support such a conclusion. I have given consideration to whether the fact that you are 24 and only 24 is sufficiently of itself to grant you a parole order circumstances where everything else points against it I don't believe, notwithstanding your age, that that factor alone is a sufficient justification.
...
In making the determination as to parole eligibility I am required to take into account all relevant considerations including the factors to which I have referred. Having done so, I have reached the conclusion that a parole order should not be made in your circumstances.

Appeal

Leave to appeal was granted on 4 November 2008. An order was also made that the appellant be at liberty to adduce additional evidence at the hearing of the appeal. That evidence is in the form of an affidavit of Peter Ben Cassidy, sworn 27 October 2008. It relates to the issue of the number of 'breach days' the appellant is required to serve. The affidavit annexes a letter from the Acting Manager of the Sentence Information Unit of the Department of Corrective Services. It reveals that the appellant will be required to serve the 6‑year term imposed by the sentencing judge and will then serve the non‑parole period of a 12‑month term, following which he will be eligible for release to parole on that term. Four hundred and forty‑three days of parole were cancelled on 16 May 2007. Those 443 days will have been served concurrently by the time the appellant's sentence concludes and he is eligible for release in relation to the 12‑month term.
The ground of appeal was amended at the hearing of the appeal to read:
Ground 1
1.The learned sentencing Judge was inadvertently led into error concerning the effect the sentence would have upon outstanding 'breach of parole days', and her discretion miscarried when she refused to make a parole eligibility order.
The argument for the appellant is based primarily on the proposition that the sentencing judge was inadvertently led into error by the prosecutor concerning the existence of 'breach days' that could later be served on parole.
At the sentencing hearing, the prosecutor made the following observations:
In relation to the issue of parole eligibility, it is noteworthy I submit that the offender was released to parole on 19 January 2007 and that parole was suspended on 21 February 2007, not more than a couple of days over one month later, and as your Honour has noted, his performance on each of his three parole provisions has been poor and his parole has been cancelled.
The state submits in all of the circumstances that this offender ought not be made subject to parole for this offence, noting in making that submission that the offender still has 443 days of parole which can give him that opportunity, provided that he demonstrates some change whilst in prison.

The sentencing judge then questioned the prosecutor, and the following exchange occurred:
JOHNSON J: All right. Can I just stop you there. So if he is given a fixed term he will serve that first and then serve whatever period before there is a decision made as to whether he should be released again in relation to other offences, or he simply has to serve those 443 days no matter what.
BARBER, MR: No, your Honour, my understanding is that he is presently serving those days. There remain 443 and the Prison Release Board as it now is can make a decision to release him.
JOHNSON J: In relation to those days.
BARBER, MR: Yes.
JOHNSON J: But if he is sentenced today to a fixed term with no parole, would he not commence serving that term?
BARBER, MR: Yes, your Honour, he would.
JOHNSON J: Right, and what I meant was that at the conclusion of that term he would then commence serving 443 days in relation to which the Parole Board can, if they wish, release him again.
BARBER, MR: Yes, your Honour, that's my understanding.
JOHNSON J: So there remains the opportunity to release him on parole at the end of his fixed term in any event.
BARBER, MR: Yes, your Honour, that's my submission.
When the sentencing judge imposed sentence upon the appellant, no mention was made of the 443 'breach days'.
Counsel for the appellant contends that the error made by the prosecutor in relation to the breach days impacted upon the sentencing judge's decision not to grant parole. It is said that, as the decision was based upon a factual misunderstanding, the discretion to refuse parole was not properly exercised. It is conceded that at least two of the relevant factors contained in s 89(4) of the Sentencing Act1995 were triggered, but it is contended that the decision to refuse parole should be set aside and the appellant should be resentenced with eligibility for parole.
The respondent concedes that the sentencing submissions made by the prosecutor were not legally correct and that the 443 'breach days' could not be served as parole days upon the appellant's release from imprisonment. However, it is submitted that the sentencing judge was fully entitled to decline to order eligibility for parole by reason of the fact that at least two of the requisite factors under s 89(4) of the Sentencing Act1995 were present. The submission is that there was no causal link between the prosecutor's submission in relation to the breach days and the sentence which was ultimately passed. There was no mention by the sentencing judge in her sentencing comments about the possible effect of parole breach days and it is submitted that the issue did not impact upon the exercise of the discretion to decline an order for eligibility for parole.
Reference was made at the hearing of the appeal to the clear intimation by the sentencing judge during sentencing submissions that the appellant was unlikely to be ordered to be eligible for parole.

Section 89(4) of the Sentencing Act 1995 (WA)

Section 89 of the Sentencing Act1995 was the subject of detailed consideration in Moody v French [2008] WASCA 67; (2008) MVR 322. Section 89(1) and s 89(4) are in the following terms:
(1)A court sentencing an offender to a fixed term may order that the offender be eligible for parole in respect of that term by making a parole eligibility order.
...
(4)A court may decide not to make a parole eligibility order in respect of a fixed term imposed on an offender if the court considers that the offender should not be eligible for parole because of at least 2 of the following 4 factors -
(a)the offence is serious;
(b)the offender has a significant criminal record;
(c)the offender, when released from custody under a release order made previously, did not comply with the order;
(d)any other reason the court considers relevant.
In Moody v French, Steytler P, Wheeler, McLure and Buss JJA construed the section in the following way, at [47] ‑ [48]:
Section 89(1) gives to the court a power to order that an offender be eligible for parole. However, that section must be read with s 89(4), which provides that a court may decide not to make a parole eligibility order if it considers that the offender should not be eligible for parole because of at least two of the four factors identified in that section. Accordingly, the word 'may' in s 89(1) is merely used to confer a power which is to be exercised in accordance with the provisions of s 89(4): Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134 - 135 (Windeyer J); Channel Seven Perth Pty Ltd v 'S' [2007] WASCA 122; (2007) 34 WAR 325 [19] (McLure JA).
The combined effect of those subsections is that the court is required to make a parole eligibility order if only one or none of the four factors identified is present. The preponderance of authority reflects this by holding that the court's discretion whether or not to make a parole eligibility order is enlivened only if two or more of the four factors identified in s 89(4) are present: Kearney v The State of Western Australia [2006] WASCA 251 [27] (Buss JA, Roberts-Smith & Pullin JJA concurring); Piccolo [13] (Wheeler JA), [23] (Pullin JA), although cp Miller JA [62]; Ugle [50] (Owen JA, Wheeler JA concurring), Miller JA contra [72]; and cp the ex tempore reasons in Pickett v The State of Western Australia [2004] WASCA 291 [7] (McKechnie J, Miller J agreeing & McLure J agreeing generally).
In the present case, the sentencing judge concluded that she should decline to make an order for eligibility for parole because at least two of the four factors identified in s 89(4) were present. They were those identified in s 89(4)(a) and s 89(4)(c).

Was the offence committed by the appellant properly described as 'serious'?

In Moody v French, Steytler P, Wheeler, McLure and Buss JJA said, at [53]:
[T]he seriousness of the offence must be judged in the context of offences which, in every case, justify a sentence of immediate imprisonment. That construction is consistent with the provisions of s 6(2) of the Sentencing Act. Section 6(1) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that:
The seriousness of an offence must be determined by taking into account ‑
(a)the statutory penalty for the offence;
(b)the circumstances of the commission of the offence, including the vulnerability of any victim of the offence;
(c)any aggravating factors; and
(d)any mitigating factors.
In the present case, the offence committed by the appellant was undoubtedly serious within the meaning of s 89(4)(a) and s 6(2) of the Sentencing Act1995. The statutory penalty for the offence was life imprisonment.
The circumstances of the commission of the offence I have already described. The victims of the offence were extremely vulnerable, one of them was injured, and the offence was aggravated by the fact that the appellant was well aware that there were occupants within the house at the time he broke in.
There were few mitigating factors that could be considered favourable to the appellant. His age (24 years) was a matter of mitigation (it was described by the sentencing judge as 'the only factor in his favour') and he had been subjected to a difficult upbringing. The sentencing judge considered that there was no aspect of the offence which would mitigate the penalty otherwise to be imposed and I respectfully agree. There was no genuine remorse or (as the sentencing judge described it) any 'credible expression of responsibility' which could mitigate the serious of the offence.
In my opinion, the sentencing judge was quite correct to conclude that s 89(4)(a) of the Sentencing Act1995 had been made out.

Had the offender when released from custody under a release order previously made complied with that order?

I have already made reference to the appellant's history of release on parole. He had been the subject of three parole orders as an adult, and each had been cancelled or suspended due to reoffending or failure to comply with obligations.
In those circumstances, the sentencing judge was correct to conclude that s 89(4)(c) of the Sentencing Act1995 had been made out.

Other matters

The sentencing judge concluded that the appellant represented a serious risk to the community. His prospects of rehabilitation were described as 'exceedingly poor'. That assessment was based on materials before the sentencing judge and, in my opinion, was correct.
The court was referred to Ugle v The State of Western Australia [2007] WASCA 199, where Owen JA (with whom Wheeler JA agreed) said, at [55]:
A significant (but not the only) aspect of parole is, and always has been, its rehabilitative role. It has to be borne in mind that a court does not grant parole: it makes an offender eligible for release on parole at some time in the future. The sentencing judge is required to prognosticate circumstances which may be relevant to the offender at the time when he or she would be eligible for release, thus recognising a relationship between punishment of the offender on the one hand and the need to consider factors leading to the offender's rehabilitation on the other. The purpose of the prognosis is to enable some preliminary consideration of the question, whether, in terms of rehabilitation of the offender, he or she is likely to benefit from serving the relevant portion of the sentence under supervision in the community.
Owen JA found in that case, at [63], 'glimmers of light in the darkness and hopelessness that seems to represent [the appellant's] life'. He had avoided serious offending for reasonably long periods.
In the present case, I can find no glimmer of hope for the appellant. His prospects of rehabilitation were so poor as to count against any glimmer of hope for him.
I should add that the sentencing judge could also have concluded that s 89(4)(b) of the Sentencing Act1995 had been made out, in that the appellant had a significant criminal record. Four convictions (six counts) for burglary between 27 March 2003 and 23 September 2005 were recorded on the appellant's record of adult convictions. They were all serious offences and each resulted in sentences of imprisonment being imposed. In addition, there was a long record of convictions as a juvenile, including convictions for burglary, assault, assault occasioning bodily harm, attempted robbery and robbery.
Had the sentencing judge wished to do so, she could, in my opinion, have declined to order eligibility for parole by reason of the fact that s 89(4)(b) was also made out.

Did the question of 443 'breach days' have any effect?

During the sentencing submissions, the question of service of the 'breach days' was certainly raised. The sentencing judge understood that there would be an opportunity to release the appellant on parole at the end of his fixed term, in any event.
As I have already explained, the sentencing judge was led into error in this regard. However, the question is whether the error impacted in any way upon the ultimate decision to decline to order eligibility for parole.
In my opinion, the question of service of 'breach days' had no effect upon the sentencing judge's ultimate decision to decline to order eligibility for parole. Her Honour refused parole because she considered at least two of the four factors contained within s 89(4) of the Sentencing Act1995 to have been made out. In my opinion, she was quite correct in this regard. It did not matter whether or not the appellant was to serve the 443 'breach days' concurrently or whether he would have the opportunity to serve them on parole at the end of his fixed term. The sentencing judge did not advert to the matter in any way during the course of imposing sentence. There is nothing to indicate that she was influenced by it.
In fact, it seems that the sentencing judge took the view that there was no point in releasing the appellant on parole at all. Her Honour said:
The author of the report considers that there would be an even greater risk to release you into the community without any restrictions or structures in place. On that basis alone it was suggested that you be afforded the opportunity of a period of parole supervision to provide structure for your reintegration. It seems to me, based on your previous behaviour, that this would only provide the merest delay in your reoffending.
I am of the opinion that the appellant has failed to make out the ground of appeal. I would dismiss the appeal.