DPP v McClelland
[2008] VSCA 168
•4 September 2008
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 6 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DARREN JOHN McCLELLAND |
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JUDGES: | ASHLEY and NEAVE JJA and MANDIE AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 August 2008 | |
DATE OF JUDGMENT: | 4 September 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSCA 168 | |
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CRIMINAL LAW – Director’s appeal against sentence – Respondent pleaded guilty to offences on two separate presentments, including aggravated burglary and attempted armed robbery – Offending in second presentment occurred while respondent on bail for offending in first presentment – History of similar offending – No cumulation order in relation to counts on second presentment – Whether sentence manifestly inadequate – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Respondent | Mr M J Croucher | Haines & Polites |
ASHLEY JA:
I agree with Neave JA, for the reasons which she gives, that this appeal should be allowed. I agree also that the respondent should be re-sentenced as her Honour proposes, such sentences reflecting the conservative approach which, for reasons often explained, is taken when a Director’s appeal is allowed.
NEAVE JA:
The respondent, Darren John McClelland, pleaded guilty to several counts on two separate presentments, including two counts of aggravated burglary, one count of attempted armed robbery and three counts of theft.
After hearing a plea in mitigation of sentence, a County Court judge sentenced him on 22 November 2007, as follows:[1]
[1]Reasons [77], [83].
on Presentment T02070553 (‘the first presentment’)
· Count 1 (aggravated burglary) – 16 months’ imprisonment;
· Count 2 (theft) – six months’ imprisonment;
· Count 3 (theft) – eight months’ imprisonment;
· Count 4 (theft) – eight months’ imprisonment;
on Presentment W02072550 (‘the second presentment’)
· Count 1 (aggravated burglary) – 28 months’ imprisonment;
· Count 2 (attempted armed robbery) – 20 months’ imprisonment; and
· Count 3 (being a prohibited person in possession of an unregistered firearm) – 12 months’ imprisonment.
The respondent also pleaded guilty to a summary charge of dealing with property suspected of being the proceeds of crime and was sentenced to six months’ imprisonment for that offence.[2]
[2]Reasons [77].
Her Honour ordered that each of the sentences imposed in relation to the counts on the first presentment and the summary charge be served concurrently with each other.[3] She treated the sentence imposed on the aggravated burglary covered by count 1 on the second presentment as the base sentence and ordered that four months of the sentence imposed for attempted armed robbery (count 2 on that presentment) be served cumulatively on the sentence imposed on count 1 and all other sentences imposed on that presentment. The effect of her Honour’s orders was therefore that the sentences imposed in relation to the second presentment were to be served wholly concurrently with those imposed on the first presentment, resulting in a total effective sentence of 32 months’ imprisonment. Her Honour fixed a non-parole period of 12 months.[4]
[3]Reasons [83].
[4]Reasons [79].
In relation to count 4 on the first presentment, the learned trial judge below ordered that any driving licences or permits held by the respondent be cancelled and that he be disqualified from obtaining any such licence or permit for a period of 28 months from 22 November 2007.[5] Her Honour also made compensation, disposal, forensic sample and forfeiture orders.[6]
[5]Reasons [80].
[6]Reasons [84]-[86].
The Director of Public Prosecutions now appeals against the sentences imposed on each count, the total effective sentence and the non-parole period on the ground of manifest inadequacy.[7]
[7]Crimes Act 1958 s 567A.
Circumstances of the offending
Presentment T02070553
The offences covered by the first presentment occurred in the following circumstances. Count 1 (aggravated burglary) occurred on 20 August 2005 at a residence in Sunshine West. At about 12.25 pm the respondent and two unidentified co-offenders arrived at the house in a car belonging to the respondent’s parents and parked it in the drive-way. The respondent and one of his co-offenders levered open the security door of the home using a jemmy bar and then one or both of them kicked in the front door. Twelve year-old Francis Vo (‘Francis’) was alone at home.
Francis went to investigate the commotion at the front door and only narrowly avoided being hit by the door as it was kicked open. The respondent and his co-offenders entered the house and the respondent immediately told Francis to lie on a nearby couch, which he did because he ‘didn’t [want to] get hurt’. The respondent covered Francis’s face with cushions and told him not to watch what he and his co-offenders were doing.
The respondent and one of his co-offenders then ransacked the house looking for items to steal. During this process, damage was done to various items in the house (for example, a glass display cabinet in the entryway was pushed over).
Count 2 (theft) related to items taken away by the respondent and his co-offenders. These items were:
· a 51 cm Konka television;
· a black computer tower with flat screen monitor;
· a Sanyo stereo/CD player; and
· an aluminium money box filled with coins.
The value of this property was estimated to be $2000.
The three offenders then drove off, but the events were reported to the police by a passer-by and by Francis. None of the property stolen from the residence has been recovered and the victim is not insured.
The theft covered by count 3 occurred four days later, on 24 August 2005. At approximately 3.10 pm the respondent drove his parents’ car into the gated yard of McLeod Rail, a private company with premises in West Footscray. He parked the car in an open garage on the site, loaded a Kawasaki generator into the vehicle and then drove away. The generator, which was subsequently recovered, was valued at $2000.
Count 4 (also a count of theft) occurred at about 1.00 am the next morning. The respondent stole a white Ford Falcon station wagon from outside a private address in Sunshine West. The owner of the vehicle, Glen Armstrong, heard the car take off and immediately reported the theft.
At approximately 4.55 am on the same morning, the police drove by premises in Sunshine West which were frequented by the respondent, and saw the respondent getting out of the stolen car. When the respondent saw the police, he ran into the house through the back door, and in doing so injured his neck on a nail used to hold the door closed. The respondent retrieved a suitcase containing a HP computer hard-drive, ran into the backyard and threw the suitcase over the fence. The police recovered the car and the stolen Kawasaki generator at the premises.
The car’s ignition was damaged and the seats were stained with blood. The owner’s insurer indemnified him for this damage in the amount of $1,419.64.
The summary charge of dealing with property suspected of being the proceeds of crime relates to one Kenwood and two Sony stereo faces found by the police in the stolen car. These items did not belong to the offender or the owner of the stolen Falcon.
The respondent was later taken to Western General Hospital for treatment for his neck injury. He was charged without interview following surgery.
Presentment W02072550
The offences covered by the second presentment took place at a time when the respondent was on bail for the offences covered by the first presentment, and were as follows. Count 1 (aggravated burglary) occurred on 7 April 2007, at approximately 12.30 am. The respondent knocked on the front door of a home in Mounsey Street, Sunshine West. He was wearing jeans, a hooded jacket, cap and sunglasses and carried an imitation handgun and a baseball bat. Three women aged 33, 38 and 69 were at home, as well as a 31-year-old man and five children aged between three and eight years of age. When the door was opened by one of the women, the respondent pushed his way past her and entered the house.
Count 2 (attempted armed robbery) occurred when the respondent moved into the kitchen and pointed the imitation gun at Tuan Mai (the 31-year-old male), who was seated in that area. The respondent shouted ‘Give me the money, give me the money’. Mr Mai replied that there was no money. He recalled thinking at first that the gun was real, and feeling very scared.
The respondent then grabbed two handbags that were on top of an ironing board and attempted to walk back out the front door. Mr Mai tackled the respondent, causing him to drop the gun and baseball bat. Two of the women helped Mr Mai and one of them began to hit the respondent with the baseball bat. He managed to escape out the front door, leaving behind a sneaker, torch, cap and the two handbags.
As a result of the respondent being found guilty of indictable offences on each of 18 July 2006, 10 November 2006 and 7 February 2007, he was a prohibited person under s 3 of the Firearms Act1996 at the time of this offending. This gave rise to count 3, the offence of being a prohibited person in possession of an unregistered imitation firearm pursuant to s 5 of the Firearms Act1996.
Sentencing reasons
In her sentencing reasons, the learned judge said that the maximum terms of imprisonment applicable to the offences of aggravated burglary (25 years),[8] attempted armed robbery (20 years),[9] theft (10 years)[10] and possession of an unregistered firearm (15 years)[11] reflected the ‘serious nature and gravity of the crimes’.[12] She said that in the case of count 1 and count 2 on the first presentment the gravity of the respondent’s offending was aggravated by the presence of 12-year-old Francis. In the case of the second presentment the offender’s efforts at disguise, use of a baseball bat and imitation firearm, and the presence of young children were aggravating features in relation to the attempted armed robbery count.
[8]Crimes Act 1958 s 77(2).
[9]Crimes Act 1958 s 321P(1)(a).
[10]Crimes Act 1958 s 74(1).
[11]Firearms Act 1996 s 5(1A). Her Honour also alluded to the maximum penalties for the other relevant offences.
[12]Reasons [14].
Her Honour referred to victim impact statements made by eight of the victims[13] of the offences and said that she was satisfied that the respondent’s offending ‘has had a profound and detrimental effect on each of [his] victims’.[14] In the case of the attempted armed robbery count on the second presentment, the victim believed that the imitation firearm was a genuine one and was very frightened. Her Honour also referred to the fact that the offences covered by the second presentment were committed while the respondent was on bail for the first presentment offences, and that there were a number of pending matters in the Magistrates’ Court covering the period 17 March 2007 through to 17 April 2007. Some of these pending matters related to similar types of offending, including aggravated burglary and attempted burglary, theft of a motor vehicle, possessing a controlled weapon, charges for going equipped to steal and dealing with property suspected of being the proceeds of crime. She noted that these pending matters were relevant to the respondent’s prospects of rehabilitation and his likelihood of re-offending.
[13]L Vo, M Mai, T Mai, B Mai, N Nguyen, V To , V Vo and K Mai.
[14]Reasons [66].
As mitigating factors, her Honour took account of the impact on the respondent of his mother having a violent partner when he was a child and his difficulties at school, the respondent’s guilty plea and the fact that he was truly remorseful. She said he had a supportive relationship with his mother and his family and loved his daughter.
Her Honour had before her a report from Ms Maryann Alabakis, CREDIT[15]/Bail Support Program case manager, who commented that ‘Mr McClelland has good community networks and support and has been observed to make and experience significant changes’ and that he had successfully completed the CREDIT/Bail Program. Her Honour also received a report from Mr David Conti, a counsellor and psychologist at the Drug and Alcohol Counselling Service for the Western Region, expressing the view that
the recovery from substance misuse is a gradual process though with continued support and Mr McClelland’s express commitment to maintain a drug free lifestyle the prognosis for Mr McClelland seems positive.
[15]‘Court Referral and Evaluation for Drug Intervention and Treatment’.
Her Honour also had regard to reports dated 24 May 2007 and medical notes prepared for Centrelink dated 3 May 2007 from Dr Jagoda, the respondent’s treating doctor. Dr Jagoda said that the respondent’s condition had initially been diagnosed as drug-induced psychosis but that he was now being treated for schizophrenia and bipolar disorder. Dr Wijesinghe, a psychiatrist to whom Dr Jagoda had referred the respondent, also considered that the respondent had a schizophrenic illness and was severely depressed, with suicidal thoughts.
A Forensicare report dated 18 July 2007 was ordered for the purposes of sentencing. In that report Dr Ong, a Senior Registrar at Forensicare[16], said that
Mr McClelland has a long history of poly-substance use, mainly opiates, amphetamines, cannabis and more recently prescription medication. Whilst he has made some effort to address this problem by linking in with an experienced general practitioner as well as drug and alcohol counselling service DAS West, there is little doubt that Mr McClelland’s recent methamphetamine (“ice”) use has had ongoing repercussions in terms of persistent low grade psychotic symptoms and problems with affective (mood) instability.
Psychiatrically, Mr McClelland’s psychotic symptoms and mood problems can be explained by his use of methamphetamines (“ice”) which is known to have prolonged effects lasting for many months after use. Less likely is the presence of an underlying process such as schizophrenia, though this will bear monitoring.
At present, whilst Mr McClelland appears to be somewhat motivated to change his lifestyle and address his substance use problems, it should be noted that one can expect that there will be relapses during his attempts at moving away from his previous lifestyle. The main motivating factors for Mr McClelland’s decision to change his lifestyle appear to be the upcoming court date as well as the desire to be a better parent to his daughter.
If Mr McClelland were to receive a custodial sentence, I would respectfully suggest that he be assessed by prison psychiatric services so that he may be placed on appropriate psychiatric medication if his psychotic symptoms persist. He is also at risk of suffering from a depressive episode and the possibility of deliberate self harm needs to be monitored. He should also be encouraged to participate in appropriate drug and alcohol courses whilst in prison.
[16]The Report was prepared by Dr Kevin Ong and co-signed by Dr Danny Sullivan.
On the basis of these reports, her Honour concluded that the respondent suffered from a serious mental illness at the time of offending and at the time of sentence, though she noted that there was uncertainty as to whether it was a drug-induced or a pre-existing mental illness. Her Honour said that she was satisfied that there was a serious risk of imprisonment adversely affecting the respondent’s mental health and that, having regard to the illness, the principles of general and specific deterrence should be modified. After referring to the principles in R v Tsiaras[17] and R v Verdins[18] the learned judge said that she would impose a shorter sentence than would otherwise be the case, having regard to these matters. [19]
[17][1996] 1 VR 398 (‘Tsiaras’).
[18](2007) 16 VR 269 (‘Verdins’).
[19]Reasons [68].
Her Honour referred to the respondent’s criminal history (which is set out at paragraph [50] below) and to matters then pending in the Magistrates’ Court. She said that
those pending matters go very much to your prospects of rehabilitation and your likelihood of re-offending and they are relevant in that regard and that is how I have taken them into account in sentencing you today. However, they must be balanced against the times when you have been in the community and made considerable efforts to access relevant supports, including DAS West, to seek treatment for your many health issues, including mental health issues and drug problems. On the matters that have been placed before the court on this hearing, I am satisfied that at times, you have made promising starts in your plan to deal with your problems and to beat your addiction and at times your efforts have given the court optimism. What I do have concerns about is your further re-offending if you resort to drugs and related lifestyle. However, I do fix an appropriate sentence to maximise your chances of your rehabilitation.[20]
[20]Reasons [64].
After considering all of the above matters, as well as general and specific deterrence, the need to protect the community and the principles of totality and proportionality, her Honour sentenced the respondent as set out above.
Submissions
Counsel for the Director of Public Prosecution submitted that in this case virtually all of the criteria in R v Clarke[21] were applicable. Although the learned sentencing judge had described the offending as ‘serious’, neither the individual sentences nor the total effective sentence imposed were consistent with that assessment. Even when the offender’s mental illness was taken into account, the sentences imposed on the individual counts (particularly for the aggravated burglaries) and the total effective sentence were manifestly inadequate.
[21][1996] 2 VR 520, 522.
Having regard to the gravity of the offending, the fact that the respondent was on bail for the offences in the first presentment when he committed the offences covered by the counts in the second presentment and his lengthy history of prior offending, both the individual sentences and the total effective sentence revealed such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle.[22] The Court should allow the appeal in order to lay down principles to guide other courts in imposing sentences for the relevant offences[23] and to maintain adequate standards of punishment. The sentences were so disproportionate to the seriousness of the crime as to shock the public conscience[24] and allowing the appeal was necessary to ensure uniformity in sentencing.[25]
[22]Everett v R (1994) 181 CLR 295, 300.
[23]Griffiths v R (1976) 137 CLR 293, 310.
[24]R v Osenkowski (1982) 30 SASR 212, 213.
[25]Everett v R (1994) 181 CLR 295, 306.
Counsel for the Director contended that the total effective sentence was inadequate because of the approach which the learned sentencing judge had taken to accumulation of individual sentences. The offences covered by counts 3 and 4 on the first presentment occurred four and five days (respectively) after the offences covered by counts 1 and 2 on that presentment. In these circumstances, it would have been appropriate for her Honour to order total or partial cumulation of the sentences imposed on counts 3 and 4 on the sentences imposed on counts 1 and 2 in the first presentment.
Further, although her Honour referred to s 16(3C) of the Sentencing Act 1991,[26] she does not appear to have applied the provision. Section 16(3C) provides that
Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
[26]Reasons [75]. Her Honour appears to have thought that she could not order partial cumulation or (more correctly where s 16(3C) applies) partial concurrency.
Her Honour had ordered that the term of four months’ imprisonment imposed on count 2 in the second presentment should be served cumulatively on the base sentence and other sentences in that presentment, but she had not considered whether she should depart from the presumption in s 16(3C) that the sentences imposed in relation to the offences in the second presentment should be served cumulatively on the sentences imposed for the offences in the first presentment. The effect of the sentences imposed by her Honour was that the respondent would serve no additional term of imprisonment for the offences in the second presentment, although they were committed approximately 20 months later, while the respondent was on bail.
Counsel for the respondent submitted that the Crown should not be permitted to contend that her Honour’s reasons disclosed any sentencing error, because such errors were not relied upon in the Crown’s Notice of Appeal.[27] It is unnecessary to decide whether the Crown should be permitted to amend its Notice of Appeal, because counsel for the Crown conceded that the Court should determine the appeal on the sole ground of manifest inadequacy.
[27]R v Cardona [1998] 2 VR 126.
Counsel for the respondent said that the sentences imposed on the individual counts were relatively light, but submitted that they were within the range of sentences that could be imposed for these offences. He said that her Honour had taken ‘an unorthodox approach’ in failing to order any cumulation between the sentences imposed in relation to the first and second presentments but submitted that the total effective sentence reflected the fact that the respondent was ‘terribly afflicted’ by his mental illness and that her Honour had properly taken account of the principles in Tsiaras and Verdins.
It was open to her Honour to impose the sentences that she did, because of the respondent’s efforts to overcome his addiction, the adverse effect of imprisonment on his mental health and the need to sensibly moderate the principles of general deterrence and specific deterrence because of his psychotic disorder.
Counsel also submitted that her Honour had had the opportunity to observe the respondent when she had considered his previous bail applications She had properly given weight to favourable reports from his counsellor at Drug and Alcohol Services West and imposed a total effective sentence which would give him some hope of recovery and rehabilitation. This was consistent with the approach in R v Osenkowski[28] in which King CJ commented that
[it] is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[29]
[28](1982) 30 SASR 212.
[29]Ibid 212-213. These comments were approved by this court in DPP v Rowe [2005] VSCA 178. See also DPP v Leach [2003] VSCA 96, [48] (Eames JA).
In relation to the non-parole period, counsel for the respondent said that the offender’s counsel at the plea hearing had submitted that her Honour should fix a shorter than usual non-parole period. In response to that submission counsel for the Crown had said that ‘we don’t necessarily argue against what [counsel] submits in terms of non-parole period. No doubt a parole period will be hopefully utilised by the prisoner, and hopefully beneficial to the community in the end.’
Further, counsel for the respondent said that sentences which had been imposed on the respondent in the Magistrates’ Court in December 2007 had extended the respondent’s non-parole period by two months. Having regard to the principle of double jeopardy, the non-parole period should not be further extended, even if the Court might otherwise have regarded the non-parole period imposed by her Honour as manifestly inadequate.
To summarise, the respondent’s counsel submitted that, having regard to the respondent’s mental illness, his efforts to overcome his drug addiction, the sentencing judge’s discretion to exercise mercy,[30] and the principle of double jeopardy which applies to Director’s appeals, the Court should dismiss the appeal.
[30]Ibid, [48] (Eames JA).
Conclusion
It is unnecessary to set out in detail the principles which govern Crown appeals against sentence.[31]
[31]DPP v Everett (1994) 181 CLR 295. See also R v Clarke [1996] 2 VR 520, 522; DPP v Josefski [2005] VSCA 265; DPP v Bright (2006) 163 A Crim R 538.
In this case the learned sentencing judge had to sentence an offender who had committed serious offences and had a long history of similar offences, but was suffering from a mental illness. Her Honour’s sentencing reasons were comprehensive and she obviously took great care in sentencing the respondent. Nevertheless I consider that the Crown appeal must be upheld.
The sentences imposed by her Honour for the aggravated burglary counts and the attempted armed robbery were undoubtedly at the lower end of the scale. The offender was convicted and sentenced to 20 months’ imprisonment for attempted armed robbery. The Sentencing Snapshots published by the Sentencing Advisory Council shows that between 2002-2003 and 2006-2007, the median sentence imposed for attempted armed robbery was two years.[32] The respondent was sentenced to 16 months’ imprisonment for the aggravated burglary count on the first presentment and to 28 months’ imprisonment for aggravated burglary count on the second presentment. According to the relevant Sentencing Snapshot, the median term of imprisonment for aggravated burglary between 2002-2003 and 2006-2007 was two years.[33]
[32]Sentencing Advisory Council, Sentencing Snapshoot No 36: Sentencing trends for attempted armed robbery in the higher courts of Victoria, 2002-03 to 2006-07 (December 2007) Sentencing Advisory Council website < Advisory Council, Sentencing Snapshoot No 38: Sentencing trends for aggravated burglary in the higher courts of Victoria, 2002-03 to 2006-07 (December 2007) Sentencing Advisory Council website < type="1">
In my opinion the individual sentences imposed by the learned sentencing judge were manifestly inadequate, even when account is taken of the respondent’s guilty plea, his mental illness and her Honour’s view that he had made a promising start in overcoming his drug addiction.
I also consider that the total effective sentence of 32 months and the non-parole period of 12 months were manifestly inadequate, having regard to the gravity of the offences, their effect on the victims and the principles of general and specific deterrence and denunciation. The total effective sentence imposed by her Honour on the offences in the first presentment gives no weight to the fact that the first two counts on the first presentment were separated in time from the third and fourth counts and involved separate victims. Further, her Honour’s failure to order any cumulation between the sentences imposed on the first and second presentment means, in effect, that the respondent received no additional term of imprisonment for offences committed approximately 20 months apart, which involved offending against different victims. The sentences imposed gave no weight to the fact that the sentences covered by the second presentment occurred during the period when the respondent was on bail for the offences covered by the first presentment.
In my opinion both the total effective sentence and the non-parole period ‘shock the public conscience’ and reveal such manifest inadequacy or inconsistency in sentencing standards as to show that her Honour must have erred in principle.
Her Honour did not find that the respondent’s moral culpability was affected by his mental illness. However in re-sentencing him it is necessary to moderate application of the principle of general deterrence because of his psychosis. I have also taken account of her Honour’s finding of fact that imprisonment may have a significant adverse effect on his mental condition. Her Honour did not specifically find that imprisonment would be more burdensome on the respondent because of his mental illness, but that appears to be implicit in her reasons.
It is also necessary to take account of the respondent’s lengthy history of prior convictions. Convictions prior to the first presentment occurred between 21 January 1994 to 14 February 2002. Convictions prior to the second presentment covered the period to 7 February 2007. These included 11 convictions for burglary and three for attempted burglary, 13 convictions for theft, one conviction for armed robbery, three convictions for handling stolen goods and two for dealing with property suspected of being the proceeds of crime, and one conviction for possessing a controlled weapon without excuse.[34] I refer below[35] to sentences imposed on the respondent on 12 December 2007, in relation to the matters pending in the Magistrates’ Court , which were also mentioned by her Honour.
[34]Reasons [61].
[35]See paragraph [56].
I would re-sentence the respondent on Presentment T02070553 as follows
·Count 1 (aggravated burglary) – two years’ imprisonment;
·Count 2 (theft) – three months’ imprisonment;
·Count 3 (theft) – eight months’ imprisonment;
·Count 4 (theft) – eight months’ imprisonment; and
·on the summary charge of dealing with property suspected of being the proceeds of crime – six months’ imprisonment.
I would order that six months of the sentence imposed on count 3 be cumulated on the sentence imposed on count 1, thus leaving the presumption of concurrency to apply to the other sentences. On this presentment the respondent would therefore have to serve a maximum term of two years and six months’ imprisonment.
On Presentment W02072550 I would re-sentence the respondent as follows
·Count 1 (aggravated burglary) – two years’ imprisonment;
·Count 2 (attempted armed robbery) – two years’ imprisonment; and
·Count 3 (being a prohibited person in possession of an unregistered firearm) – 12 months’ imprisonment.
I would treat the sentence imposed on count 1 of the first presentment as the base sentence. As I have said s 16(3C) applies a presumption of cumulation to the sentences imposed for the offences in the second presentment, because they were committed while the respondent was on bail. In relation to the second presentment I would therefore order that 16 months of the sentence imposed on each of count 1 and count 2 and 10 months of the sentence imposed on count 3 should be served concurrently with each other and with the sentences to be served on the first presentment. This amounts to a total effective sentence of four years.
Her Honour imposed a shorter than usual non-parole period in order to give an opportunity for the respondent to be supervised for a significant period after release. Although I have upheld the submission that the 12-month non-parole period fixed by her Honour was manifestly inadequate, the Crown did not oppose a shorter than usual non-parole period at the plea hearing.
Counsel for the respondent informed the Court that on 12 December 2007 a total effective sentence of nine months’ imprisonment was imposed for matters which were pending in the Magistrates’ Court at the time her Honour imposed the
sentences against which the Director has appealed. Eight months of that sentence was ordered to be served concurrently with sentences imposed prior to 12 December 2007 and a new non-parole period of nine months was fixed in respect of all sentences the respondent was to serve. Under that sentence the respondent will become eligible to apply for parole on 12 September 2008.
Section 14 of the Sentencing Act 1991 requires this Court to fix a new non-parole period in respect of the sentences imposed by this Court and the sentences imposed by the Magistrate on 12 December 2007. I would fix a new non-parole period of two years and two months in respect of all the sentences the respondent is to serve.
Pursuant to s 18 of the Sentencing Act 1991 I would declare that 424 days be reckoned as time served in relation to this sentence and that a declaration to that effect be entered on the Court record.
MANDIE AJA
I agree with Neave JA.
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