DPP v Fernandez; R v Fernandez
[2003] VSCA 14
•18 February 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| DIRECTOR OF PUBLIC PROSECUTIONS | No. 172 of 2002 |
| v. | |
| JIMMY EDISON FERNANDEZ | |
| THE QUEEN | |
| v. | |
| JIMMY EDISON FERNANDEZ | No. 21 of 2002 |
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JUDGES: | PHILLIPS, C.J., PHILLIPS, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2003 | |
DATE OF JUDGMENT: | 18 February 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 14 | |
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Criminal law – Sentencing – Armed robbery, aggravated burglary and false imprisonment – Undertakings given to assist in prosecution of co-offender – Undertakings not honoured after sentence passed – Appeal by D.P.P. for re-sentencing – Appeals allowed and offenders re-sentenced – Subsequent events brought to account – Cross applications for leave to appeal against sentence dismissed – Crimes Act 1958 s.567A(1A),(4A), Sentencing Act 1991 ss.5(2B), 103.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. and Mr. C.J. Ryan | K. Robertson, Solicitor for Public Prosecutions |
| For the Respondents/Applicants | Mr D. Grace, Q.C. | The Office of David Grace, Q.C. |
PHILLIPS, C.J.:
I shall ask my brother Phillips to give the first judgment in this matter.
PHILLIPS, J.A.:
We have before us two separate appeals by the Director of Public Prosecutions against sentence and two separate applications for leave to appeal against sentence by the respondents to the Director’s appeals. In what follows, I refer to the respondent/applicants as “respondents”. The relevant sentences were imposed in the County Court on 31 January 2002.
The respondent Jimmy Edison Fernandez, who was born on 11 December 1981, is now 21 years of age and at the time of the relevant offending he was 19 years old. His brother, the respondent Mauricio Fernandez, was born on 20 December 1983. He is now 19 years old and at the time of the offending was 17. The two respondents were presented in the County Court with a co-offender, Matthew Chircop (born on 9 February 1982). In due course Chircop too gave notice of application for leave to appeal against sentence, but that application was subsequently abandoned.
On 23 January 2002 the two respondents and the co-offender Chircop pleaded guilty to a presentment containing one count of aggravated burglary (count 1), two counts of armed robbery (counts 2 and 3), four counts of false imprisonment (counts 4, 5, 6 and 7) and one count of theft (count 8). The maximum penalty for aggravated burglary and armed robbery is in each case 25 years' imprisonment and for false imprisonment and theft, 10 years' imprisonment. The respondent Jimmy Fernandez admitted one previous court appearance, on 15 September 1999, when three charges were found proven. The matter was dealt with without conviction, it being adjourned for a year upon his entering into a good behaviour bond. The other respondent Mauricio Fernandez had no previous convictions. The co-offender Chircop admitted three previous appearances in the Children’s Court when seven
charges were found proven, but again the matters were dealt with without a conviction being recorded. On the last occasion, on 25 January 1999, Chircop was none the less placed on probation for a period of twelve months.
After pleas in mitigation on behalf of the three offenders, in the course of which both the respondents gave evidence, the learned sentencing judge sentenced each of the respondents as follows: on count 1 (aggravated burglary) to three years' imprisonment; on each of counts 2 and 3 (armed robbery) to four years' imprisonment; on each of counts 4, 5, 6 and 7 (false imprisonment) to eighteen months' imprisonment. All these sentences were to be served concurrently and in addition, and cumulatively, they were sentenced on count 8 (theft) to three months' imprisonment. The total effective sentence was therefore four years and three months and a non-parole period was fixed at two years and three months. A declaration was made that eight days had already been served by way of pre-sentence detention.
The co-offender Chircop was sentenced as follows: on count 1 (aggravated burglary) to three years and four months' imprisonment; on each of counts 2 and 3 (armed robbery) to five years' imprisonment; on each of counts 4, 5, 6 and 7 (false imprisonment) to two years' imprisonment. All such sentences were to be served concurrently and in addition, and cumulatively, Chircop was sentenced on count 8 (theft) to four months' imprisonment. In the result the total effective sentence was five years and four months' imprisonment and a non-parole period was fixed at three years and six months. Again, eight days were declared as already served by way of pre-sentence detention.
On 14 February 2002 each of the respondents filed notice of application for leave to appeal against sentence. The respondent Jimmy Fernandez claimed that the sentences were manifestly excessive and that the judge gave undue weight to the principle of general deterrence and insufficient weight to his age, his plea of guilty and his prospects for rehabilitation. Further, he claimed, the judge had given insufficient weight to the respondent’s undertaking to give evidence against another man to whom I shall refer as G and who, it was asserted to police, had been acting with the other three in the offending. The respondent Mauricio Fernandez claimed that the sentences were manifestly excessive, that the judge erred in failing to order that he be detained in a youth training centre instead of being imprisoned in an adult prison, and that both the total effective sentence and the non-parole period infringed the principle of totality.
In respect of each of the respondents and on 15 July 2002 the Director of Public Prosecutions filed notice of appeal, taking one ground only: that the sentence imposed was of less severity because of an undertaking given by the respondents to assist the authorities in investigating and prosecuting an offence and the respondents had failed to fulfil the undertaking: as to which see s.567A(1A) of the Crimes Act 1958. Certainly it appears from the judge’s sentencing remarks that he did impose lesser sentences on the respondents because of the undertakings, which both of them gave in the course of their evidence on the plea, to assist in the prosecution of the fourth man, G. The judge’s failure to follow the statutory admonition in s.5(2AB) of the Sentencing Act 1991 is of no present consequence: see s.103 of the Sentencing Act. It is now on affidavit that the respondents did fail to fulfil the undertakings they gave to the sentencing judge and that, in consequence, the proceedings against G were withdrawn: see the affidavit of Wade David Telley sworn 17 February 2003. Accordingly, and in reliance upon s.567A(4A), the Director now claims that the sentences imposed on the respondents below should be quashed and the respondents re-sentenced, and re-sentenced to longer sentences than were imposed in the County Court. For their part, the respondents rely upon the affidavits which they themselves have sworn, also on 17 February, claiming that in refusing to assist in the prosecution of G they acted only out of fear for their own safety.
Once outlines of submission were filed, it became apparent that Mr Grace, for the respondents, accepted that, in view of the failure of the respondents to honour the undertakings given to the sentencing judge to assist the authorities in prosecuting G and the terms of s.567A(4A), the sentences imposed fell to be quashed and his clients re-sentenced (and, I would add, that seems to me to be so whatever the reason for their failing to honour those undertakings). But the task of re-sentencing, Mr Grace submitted, was at large, with the result that it was no longer necessary for him to pursue the applications for leave to appeal against sentence. So much can be accepted, I think, particularly as the Director did not suggest otherwise: if the sentences fall to be quashed under s.567A(4A), the sentencing discretion is re-opened and this Court is then at large. Of course that does not mean that the Director’s appeals could not be dismissed if at the end of the day this Court was minded not to alter at all the sentences imposed below but simply to confirm them; but Mr Grace went even further, submitting that we might consider that lesser sentences were appropriate, for example by preferring the option of a youth training centre to an adult prison for the younger at least of the two respondents.
On the matter of re-sentencing, Mr Grace repeated much of what was said to the learned sentencing judge on the pleas in mitigation that were made below or, to the extent that it was not repeated, he relied upon what was said then. In addition, on behalf of the respondent Jimmy Fernandez, he relied upon the respondent’s own affidavit which, in paragraph 5, deposed to an assault committed on him by another prisoner, by stabbing, on 16 November last while he was in prison. The result, he asseverated, was a four-inch long cut to his neck. We were shown the scar left by the cut which, the respondent said, required some 16 stitches. After treatment in the prison hospital, Jimmy Fernandez had been transferred to the prison at Beechworth for his own safety. Though occurring subsequent to sentence below, the assault was something which Mr Grace said could properly be brought to account when this Court came to re-sentence – and again that was not contested by the Director.
For his part the Director properly informed the Court, for the sake of fairness, that the respondent Mauricio Fernandez was assisting police with their inquiries into certain unrelated events that occurred in November 2001 when by mere chance the respondent heard two gun shots nearby, quite possibly coming from the house next door to his. The respondent provided a statement to police and gave evidence at the committal in July 2002 of a man who has been charged with murder. This assistance was, of course, given after sentence was passed below but it too was something, the Director said, that could be brought to account when this Court was re-sentencing.
The offending
It is necessary now to spell out in some detail the circumstances of the offending. All of the offences were committed in the one extended episode on 24 February 2001, save for the theft of the car which was previous. According to the sentencing remarks, it was some two or three weeks earlier and when Mauricio Fernandez and the co-offender Chircop were walking dogs in a paddock at the rear of the relevant premises in Deer Park that they smelled the odour of cannabis plants and heard a buzzing noise which they correctly interpreted as emanating from a hydroponic cultivation system in the shed at the rear of the premises. Looking over the fence, they saw plants growing in the back yard and assumed, correctly, that they were being illegally cultivated. On a daily basis thereafter Mauricio Fernandez walked past the rear of the premises to see who was there and what security precautions were taken. Plans were made by him and Chircop to raid the premises and take away the plants growing in the rear and to remove the hydroponic equipment and any other marijuana found on the premises. They assumed that the owner was likely to have money at his house as a result of his illegal activities in relation to cannabis. In his interview with police, Mauricio Fernandez said that he made inquiries of a friend about who was the owner of the property and what sort of person he was, and as a result of the information gained, it was decided that he might well be a person who would actively and seriously resist any attempt at theft. I shall refer to the owner/occupier of the premises as M.
Mauricio Fernandez then recruited his brother Jimmy into the venture and Chircop, it seems, recruited the fourth man, G. Plans were made and preparations taken. Chircop obtained a theatrical mask to wear and the others, black balaclavas. All equipped themselves with gloves. It was decided that weapons would be used: a sawn-off 22 bolt action rifle, a sawn-off double barrelled shotgun, an air rifle and a machete, the last for the purpose of cutting down the plants in the back yard and the shed. It was decided also that a station wagon should be stolen so that the proceeds from the raid could be carried away and the theft of that vehicle, which occurred on 21 February, became count 8 on the presentment. According to what Chircop told the police when they interviewed him, the offenders made the assumption that if his cannabis plants and money were stolen M would not complain to the police because of the illegality of the enterprise in which he was apparently engaged.
As it happened, on 24 February M left the premises at about four in the morning to go fishing. He left in the house his wife Julia, her daughter Narelle who was then 17 years old, and his nephew Robert De Bono and his wife and their child Aaron, who was some five years old. The De Bonos had but recently arrived from Malta on a visit for some weeks to Australia and Mr De Bono had brought $16,000 with him to finance the stay, some $15,000 of which, or thereabouts, was in a pocket in a suit in the bedroom in which he and his wife and child were staying.
As to how the raid was carried out on the morning of 24 February, I quote the following from the reasons for sentence (from which the foregoing has largely been taken) save that I continue to refer to the male owner-occupier of the premises as M and to the fourth of the offenders as G:
“At approximately 6.00 a.m. in the morning of 24 February the three of you and G, having recently stolen the car to which I have referred, and having cut your way through the chain at the entrance to the paddock, arrived at the rear of the premises. The weapons were intended to be used against M if he put up serious armed resistance. Jimmy Fernandez, Mathew Chircop and G were the first to leap over a high back fence of the premises and they moved into the back yard. As they did so, Chircop, who at that time was carrying a shotgun, slipped and the weapon discharged. On hearing this, the occupants of the house all got out of bed and Robert De Bono went out into the back yard of the premises. He was then set upon by Jimmy Fernandez, Mathew Chircop and G and he was punched and kicked to the ground. Mauricio Fernandez had trouble negotiating the back fence and apparently arrived on the scene after Mr De Bono had been beaten and who at that stage was being dragged inside by the other men.
As the three of you together with G entered the house [M’s wife] was trying to ring the police but one of you prevented her from doing that and then all the occupants were ordered to get down on the floor including the pregnant Mrs De Bono who was later provided with a chair when she disclosed her condition.
Screaming demands were made on [M’s wife] to reveal whether or not there was money in the house and where it was and demands were made for jewellery and other valuables at the same time. All of these demands were made when the weapons were pointed at the occupants. When [M’s wife] protested that they did not have a safe and that their money was in the bank, G slapped her face and when Mr De Bono went to her assistance, one of you hit him over the back of the head with the butt of a gun, stunning him and he had to hold on to a wall to stop himself falling. Apparently, G was the most aggressive in his demands and threats and at one stage he threatened to cut the hands off the child, Aaron, if his demands were not met.
As a result of the threats made, Robert De Bono decided to divulge the fact that he had money in his bedroom. G took him to the bedroom. When De Bono pointed to the suit where the money was, G could not find it so he struck De Bono with the butt of his shotgun on the right shoulder. Once the money was removed, De Bono was taken back into the kitchen and again hit in the back of the head with the butt of a shotgun held by G. It would appear from the statements of the victims and from the records of interview conducted by the police with the three of you, that the various weapons changed hands during the 30 to 45 minutes that you were on the premises. As a result of this final blow to the head, De Bono was knocked unconscious to the ground. Whilst he was on the ground, he was kicked in the left knee by G.
It seems clear from the statements made by the victims that Chircop was becoming concerned at the way things were going and tried to placate the victims. Mauricio Fernandez, being armed with a cleaver, concentrated on removing the marijuana plants from the rear of the premises and the shed and he removed the hydroponic equipment. Notwithstanding this, he was inside the house at various times and was well aware of what was going on. He along with Jimmy Fernandez and G ransacked the house and removed a considerable amount of jewellery and other valuables to the extent of some $20,000.
In addition, M’s shoes were taken and a purse belonging to [M’s daughter]. In that purse was a credit card which was used in the following weeks on some 40 occasions, causing her considerable financial embarrassment and inconvenience as stated in her victim impact statement.
Continual demands were made on [M’s wife] for the keys to the garage and the shed at the rear of premises and she was taken outside and forced at gunpoint to try and open these buildings. When she was unable to do so, she handed the keys to one of you and whilst an attempt was made to open the shed with the keys, she was able to make her escape and ran to a nearby neighbour’s house and called the police. When her absence was discovered, it was decided by the three of you and G to flee the premises. Before [M’s wife] was taken out of the shed, she had said that her husband would be home at 6.30 a.m. and apparently G made the threat that someone would be waiting for him when he got home and that he would be shot.
After leaving the scene, the stolen car was dumped in Deer Park and the stereo system, speakers and CD player that were installed in it were taken from it and it was left with various dents, scratches and marks on it and on the dashboard scratched the words ‘Fuck you mum’.”
Rejecting claims by the offenders to police that some lesser sum was at issue, the judge found that about $15,000 in cash had been stolen, in addition to the other items taken when the house was ransacked. The respondents and Chircop were arrested on 10 May 2001, but by that time none of the stolen items could be recovered save for one piece of jewellery.
Following the raid, both Mr and Mrs De Bono were taken to a local hospital where he was treated for lacerations to his left ear and left finger. Although his wife was found to have suffered no critical injuries, she suffered significant emotional trauma. The child Aaron, too, was not surprisingly significantly unsettled after the events of 24 February, and M’s wife, who apparently suffered some bruising, remained considerably upset at the loss of many sentimental items of jewellery that previously belonged to her deceased son. She had counselling. Her daughter Narelle, who lost a credit card, suffered financial embarrassment and significant emotional trauma as a result of the raid. On the plea below it seemed to be common ground that the raid on the premises, which lasted some 40 to 45 minutes, had been altogether terrifying for the victims, although (I should add) according to what the judge was told G had apparently been the most aggressive of all.
The offenders
In sentencing the respondent Mauricio Fernandez, the younger of the two brothers, the judge noted that, though of Chilean parents, he had been born in this country. Employed as a labourer at the same cleaning company that employed his father and brother, he had as a boy had a difficult relationship with his father who was sometimes violent and, having experienced some learning difficulties at school, he was barely literate. After leaving home in about 1998, he had since achieved some measure of reconciliation with his father, in that they were now working together. A comprehensive report dated 18 January 2002 was given in evidence from Mrs Lefkovitz, the psychologist. Since leaving school, the respondent had been employed in the main and had been in his present job for the last three years. His current employer, one Edmonds, gave evidence on the plea that he was “an excellent employee”. Earlier abuse of alcohol was now under control, but ongoing abuse of marijuana, the judge accepted, was a significant factor in the commission of these offences.
Although the psychologist described the respondent as somewhat immature and easily led, Mauricio Fernandez had been for some time in an apparently stable relationship with a young woman who was pregnant at the time of the plea below and due to give birth to their first child in a matter of weeks. (The child has since been born.) There were no prior convictions alleged (or indeed previous court appearances) and the judge accepted that the respondent’s “chances of successful rehabilitation are good”. The respondent had expressed remorse, co-operated with police and made an early plea of guilty. Importantly to the appeal under s.567A(1A), his Honour concluded:
“Perhaps even more significantly you have given an undertaking to assist the prosecution in relation to their case in relation to G. I am told that the evidence you will give at his committal which is due to take place next month will be important evidence for the Crown.”
In sentencing the respondent Jimmy Fernandez, by then 20 years old, the judge noted his prior appearance in the Magistrates' Court on 15 September 1999 and the bond then entered into. Again there was a report from a psychologist, this time Mr Ian Joblin dated 16 January 2002, and of course the respondent’s upbringing was not dissimilar to that of his younger brother. He, too, left home when he was in Year 10 because of difficulties with his parents. Since then he had been gainfully employed by and large and was currently working for Mr Edmonds as a cleaner at the Melbourne Market. As the judge put it, Mr Edmonds gave this respondent “a glowing testimonial as an employee”. Though using marijuana until recently, the respondent had had no significant problem with either alcohol or drug abuse. He was now married to the young woman with whom he had been in a relationship since he was 17 years old: they were married in March 2000 and there was a son born in September of that year. His Honour noted that although this respondent had not been as frank as his brother with the police, nevertheless he did co-operate with them and made an early plea of guilty. Again he said:
“Further, and most significantly, you have given an undertaking to assist the prosecution in the Crown’s case against G. Likewise, your evidence will be important for the Crown in that prosecution.”
The judge accepted that the respondent’s remorse was genuine and accepted that his “chances of rehabilitation are also good and that as a young offender a custodial sentence must only be imposed as a last resort”.
When sentencing Chircop, the judge noted the previous offences which were theft and driving offences. Born of Maltese parents, Chircop too left school at Year 10 and had worked at various occupations since then. Having actively pursued an early skill in soccer and having had some success as an apprentice chef, he had suffered a vicious attack with a machete soon after turning 18. The attack was by gatecrashers at an 18th birthday party he was attending and he was seriously injured, so much so that for a year he was significantly disabled, while slowly recovering. (In fact he recovered completely only shortly before the present offending.) He still had a problem with marijuana, although significant steps have more recently been taken towards giving up the use of drugs. He, too, had been co-operative with police, admitting his part in the offences: he had expressed his remorse and made an early plea of guilty. The judge was satisfied that his “prospects for rehabilitation are good” but, as he was not prepared to assist in the prosecution of G, the judge concluded:
“Your refusal to assist the prosecution in its case against G will disentitle you to a reduction of your sentence such as that [which] will be extended to the Fernandez brothers.”
The sentences
In sentencing, his Honour dealt expressly with the submission that non-custodial sentences should be imposed, a submission made in turn by the respective counsel of all three offenders. Alternatively, it had been submitted, any sentence of detention should be served in a youth training centre, not an adult prison. After considering the factors in mitigation and the relative youth of the three offenders and, on the other hand, the nature of the offences, their gravity and the way in which they were carried out, his Honour concluded that a custodial sentence in adult prison was appropriate. Despite the claim now made by one respondent in his notice of application that this was inappropriate, I see no error in the exercise of the sentencing discretion in that respect. These were very serious offences, and while the offenders were each of them relatively young, they were not of such immaturity as to make altogether inappropriate a sentence in an adult prison. There was significant premeditation, planning and preparation; there was the previous theft of the vehicle for the purpose of carrying out the raid on the premises: the raid involved the invasion of a private home where the occupants were terrorised for more than half an hour; those occupants included women, one of whom was pregnant, and a very young child; the occupants were assaulted more than once; and weapons were not only carried but wielded, weapons all of which must have been quite frightening to the victims (even if, as was later claimed, the machete was carried only to cut the plants). In short, I agree with the Director’s submission that these were serious examples of the offences in question. Given the maxima prescribed by Parliament, the sentences imposed must be taken as owing much to the mitigating circumstances. To my mind, these sentences were well within the range of sentences reasonably open to the judge in the proper exercise of the sentencing discretion and that they were to be served in an adult prison was entirely appropriate.
Mr Grace submitted that, in considering the sentences imposed in the County Court, we should not conclude that the difference between the sentences imposed on the respondents and the sentences imposed on Chircop was attributable solely to the undertakings given by the respondents to assist the authorities in prosecuting G: he submitted that there were other differences in their circumstances to account for the lighter sentences, differences which were just as relevant now that the undertakings to assist had fallen away. But I am not so sure. It seems to me that it was difficult to distinguish between the three offenders who presented for sentence below, or at all events difficult to distinguish meaningfully in favour of the respondents. For example, while Chircop had three previous court appearances they were in the Children’s Court and none had led to a conviction; Jimmy Fernandez had had one court appearance and that too had not led to any conviction although he had been placed on a bond. Moreover, while undoubtedly Chircop had been in some previous trouble, it was he (it was said to the judge on the plea) who during the raid got a chair for the pregnant woman and sought to assure the terrified victims that they would not be harmed. It was Chircop, too, who had but recently recovered from the very nasty machete attack on him about a year earlier. Of course there were differences in the personal circumstances of the two respondents and the co-offender Chircop; such differences are to be expected but I am not persuaded that they were such that any meaningful distinction could be drawn between them for the purposes of sentencing.
Now, of course, we have events subsequent to the sentencing below which go in favour of the respondents. Mauricio Fernandez has given evidence at the committal of a man who faces one count of murder and appears likely to give evidence at the trial. Jimmy Fernandez has suffered the assault in prison which necessitated sixteen stitches and left him with a scar on his neck. Mr Grace submitted that this assault flowed from the undertaking to give evidence to assist in the prosecution of G, but the assault came nine months after it was announced in open court at the committal proceeding that the respondents were not willing to give evidence and the charges against G were withdrawn, with the result that the link between the two is, I think, speculation. That however does not make the attack altogether irrelevant to our task of re-sentencing, for it still bears upon the manner in which the respondent is likely to serve his time in gaol even if he is not the object of continuing retribution or revenge.
In renewing the plea in mitigation on behalf of the respondents, Mr Grace emphasised the contents of the psychologists’ reports, of Mrs Lefkovitz in relation to Mauricio Fernandez and of Mr Ian Joblin in relation to the other respondent. I have considered the contents of these reports and looked again at what was said on behalf of the respondents when the pleas were made to the sentencing judge below. At the end of the day and having regard to the circumstances of the offending as well as the circumstances of each of the offenders, I do not think that a distinction can sensibly be drawn, for sentencing purposes, between the two respondents. Nor, subject to one further consideration, do I think that any distinction can sensibly be drawn, for sentencing purposes, between the two respondents and Chircop. I am not persuaded that the respondents should receive any lesser sentences than did Chircop and in all of the circumstances I think it would be entirely appropriate (subject to the further consideration I have mentioned) if, after quashing the sentences passed in the County Court, this Court sentenced the respondents as was Chircop. Mr Grace accepted that considerations of double jeopardy were not relevant, and I agree; for when the Director appeals under s.567A(1A) he is appealing because of default on the part of the respondent to abide an undertaking which has served to procure for him some credit in sentencing, credit to which, in the light of subsequent events, he was not entitled.
The further consideration I have mentioned is this. Events that have occurred since the sentencing in the County Court do seem to me to require some modification of what otherwise would be the case. The assistance given by Mauricio Fernandez to the authorities in the prosecution of the man charged with murder deserves encouragement and the serious attack on Jimmy Fernandez merits attention. Were it not for these further events I would have imposed on the two
respondents the same sentences as were imposed in the County Court on Chircop. Instead, I would impose those sentences on the respondents after reducing the sentences on counts 2 and 3 by four months. When the order for cumulation made in respect of count 8 is confirmed, the total effective sentence is of 5 years' imprisonment (instead of 5 years and 4 as imposed on Chircop) and of that I would fix 3 years and 3 months as the non-parole period. The calculation of pre-sentence detention, when made to this day, falls to be adjusted to allow for the time which has elapsed since the respondents were first sentenced in the County Court on 31 January 2002.
I think that the applications for leave to appeal against sentence, which were not in fact pursued, should be formally dismissed. If the other members of the Court agree in these reasons for judgment, the Director’s appeals will of course be allowed and, in that event, respondents’ counsel sought a certificate under s.15 of the Appeal Costs Act. I do not consider that such a certificate would be appropriate given that these appeals, which were brought under s.567A(1A), were occasioned solely by the respondents’ own failure to honour the undertakings they gave to the sentencing judge.
PHILLIPS, C.J.:
I agree.
O’BRYAN, A.J.A.:
I agree.
PHILLIPS, C.J.:
The orders of the Court are:
The applications for leave to appeal against sentence stand dismissed.
The appeals of the Director of Public Prosecutions are allowed and the sentences passed below are quashed.
The respondents are each re-sentenced as follows:
Count 1 - 3 years and 4 months' imprisonment;
Count 2 - 4 years and 8 months' imprisonment;
Count 3 - 4 years and 8 months' imprisonment;
Counts 4, 5, 6 and 7 - 2 years' imprisonment on each count;
Count 8 - 4 months' imprisonment.
The Court directs that the sentence on count 8 be served cumulatively on the sentence on count 2, making for a total effective sentence of 5 years. The Court fixes non-parole periods of 3 years and 3 months.
In respect of each of the respondents the Court declares that the period of 392 days is the period of pre-sentence detention already served by the respondent as part of the said sentences and directs that this declaration and its contents be entered in the records of the Court.
The application for an Appeal Costs Act certificate is refused.
The orders made in the court below touching disqualification from driving are confirmed.
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