Felton v The Queen

[2010] NSWCCA 79

New South Wales
Court of Criminal Appeal

CITATION:	Felton v R [2010] NSWCCA 79
HEARING DATE(S):	10/02/201
JUDGMENT DATE:	7 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 2; Harrison J at 49
DECISION:	1. The application for leave to appeal is granted and the appeal is allowed. 2. The sentences imposed in the District Court are quashed. 3. The following sentences are imposed: Count 1: A fixed term of 15 months to date from 20 March 2008 and that expired on 19 June 2009. Count 2: A fixed term of 15 months to date from 20 June 2008 and expired on 19 September 2009. Drive disqualified: A fixed term of 6 months to date from 20 September 2009 and to expire on 19 March 2010. Dangerous driving: A fixed term of 6 months to date from 20 January 2010 and to expire on 19 July 2010. Count 3: A non-parole period of 12 months to commence on 20 March 2010 and to expire on 19 March 2011 with a balance of term of 12 months to commence on 20 March 2011. The applicant is to be released to parole on 20 March 2011. It is to be a condition of his parole that he take any medication prescribed by a medical practitioner for his mental condition in accordance with the direction of the practitioner.
CATCHWORDS:	CRIMINAL LAW - Sentence - take and use vehicles and traffic offences - whether offences in most serious category - whether sentences manifestly excessive in total
LEGISLATION CITED:	Crimes Act 1900 - ss 19A, 154(1)(a) Crimes (Sentencing Procedure) Act 1999 - s 61 Criminal Procedure Act 1986 - s 166
CATEGORY:	Principal judgment
CASES CITED:	Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 R v Twala (NSWCCA, unreported, 4 November 1994) R v Helmsley [2004] NSWCCA 228 R v Engert (1995) 84 A Crim R 67 R v Wright (1997) 93 A Crim R 48 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
PARTIES:	Shaun Peter Felton v Regina
FILE NUMBER(S):	CCA 2008/13003
COUNSEL:	J A Girdham - Crown R Mathur - Applicant
SOLICITORS:	S Kavanagh - Crown S O'Connor - Applicant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2008/13003
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	17/12/2008

2008/13003

McCLELLAN CJ at CL
HOWIE J
HARRISON J

FRIDAY 7 MAY 2010

Shaun Peter FELTON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court. The applicant was sentenced by Nield DCJ (the Judge) on 17 December 2008 for three counts of take and drive a conveyance without the consent of the owner (“take and drive”) contrary to s 154A(1)(a) of the Crimes Act. There were also before the court two related matters of drive manner dangerous to the public (“dangerous driving”) and drive whilst disqualified, both being dealt with pursuant to s166 of the Criminal Procedure Act. In addition the applicant asked the Judge to take into account in relation to the third count of take and drive a charge of receiving on a Form 1. The maximum penalty for the offence of take and drive is imprisonment for 5 years. The maximum penalty for dangerous driving is imprisonment for 12 months and for drive whilst disqualified 2 years.

3 The sentences imposed were as follows:

1. Count 1: For the take and drive committed on 8 June 2007, a term of imprisonment of 1 year 10 months and 15 days to commence on 20 March 2008 and expire on 3 February 2010 with a non-parole period of 1 year 3 months to expire on 19 June 2009. 2. Count 2: For the take and drive committed between 25 and 26 May 2008, a term of imprisonment of 2 years 3 months to commence on 20 June 2009 and expire on 19 September 2011, with a non-parole period of 18 months to expire 19 December 2010. 3 Count 3: For the take and drive committed between 25 and 27 May 2008, and taking into account the Form 1, a term of imprisonment of 3 years to commence on 20 September 2011 and expire on 19 September 2014, with a non-parole period of 9 months to expire on 19 June 2012. 4 Charge 4: For the offence of drive in a manner dangerous committed on 27 May 2008 a term of imprisonment of 9 months to commence on 20 September 2010 and expire on 19 June 2011, with a non-parole period of 6 months to expire on 19 March 2011. 5 Charge 5: For the offence of driving whilst disqualified committed on 27 May 2008, a term of imprisonment of 1 year and 6 months to commence on 20 September 2010 and expire on 19 March 2012, with a non-parole period of 12 months to expire 19 September 2011.

The effective total sentence was 6 years and 6 months, with a total non-parole period of 4 years and 3 months. He is eligible for release to parole on 20 June 2012.

4 The grounds of appeal filed on behalf of the applicant were:

1. His Honour erred in determining a sentence based on the characterisation of Counts (sic) 4 and 5 as “worst class,” and to the exclusion of relevant mitigating features.

2. His Honour erred in failing to take into account the Applicant’s mental illness and disorder.

3. His Honour erred in failing to correctly apply the principle of totality.

Facts

5 The facts for each count are as follows.

Count 1

6 At about 5.30pm on 8 June 2007 the applicant took a motor vehicle, a Holden Camira without the owner’s consent. The vehicle taken was involved in a collision with another motor vehicle and the applicant abandoned it. Police later located the vehicle in the middle of Woy Woy Road with extensive front-end damage. There were three passengers trapped in the other vehicle who were later conveyed to hospital with chest and shoulder pain. Police interviewed the applicant on 30 May 2008, during which the applicant denied any involvement.

Form 1 – receiving

7 Between 5.15pm on 20 June 2007 and 8.35am on 21 June, the applicant and three young persons attended a real estate agency. The young persons entered the premises and carried out a Canon printer, fax machine and a large amount of keys. They discarded the property on a vacant block directly next door to the premises. Approximately one week later the applicant and one of the young persons returned to the vacant block and collected the Canon printer. They both returned the printer to the applicant’s residence. About 6.30pm on 19 July 2007 Anti Theft police attended the applicant’s address and asked him about the matter. He said he didn’t know anything about the break-in but did purchase a Canon printer off “two kids”, suspecting that it was stolen.

Count 2

8 Between 9.00pm on 25 May and 7.30am on 26 May 2008 the applicant took a motor vehicle, a Mazda Sedan, without the owner’s consent. At about 1.45am on 27 May 2008 highway patrol police saw this vehicle on the Central Coast Highway at Kariong. The vehicle had two occupants at the time. Police lost sight of the vehicle before it could be stopped.

Counts 3, 4 and 5

9 At about 9.00pm on 25 May 2008 the owner of a Ford Courier Utility parked his vehicle in a vacant block at the intersection of Wisemans Ferry Road and the Pacific Highway, Somersby. The vehicle was secured and left unattended. Between this time and 2.00am on 27 May 2008 the offender took the motor vehicle without the owner’s consent.

10 The vehicle was observed being driven in the following circumstances. At about 2.00am on 27 May 2008 Anti Theft Police sighted the vehicle being driven by a single male driver, later identified as the applicant. Police commenced pursuit of the vehicle, activating all warning lights and sirens. Police noticed that the vehicle was being driven in a “convoy”, following a second vehicle, a white Ford Courier Utility. Both vehicles failed to make any attempt to stop for police. They appeared to have little regard for the road rules, or the safety of the public or police.

11 The first of the vehicles eventually turned into the car park of a nursing home where it was driven towards a large fence surrounding the car park. As police pulled up alongside the stolen vehicle, it collided with the front passenger side of a police vehicle. Police were able to exit via the driver’s side of the vehicle and arrest the offender, a juvenile. Upon being arrested the young person stated to police that the applicant was driving the other white utility.

12 Police then engaged in a second pursuit with the vehicle driven by the applicant. He was pursued through Umina Beach and onto Empire Bay Drive, where his vehicle reached speeds of about 150kph in the marked 70kph zone. Several times the applicant crossed to the incorrect side of the road and cut corners. At one point the applicant braked heavily on a left hand bend and attempted to reverse into a police vehicle, causing police to cross to the incorrect side of the road to avoid a collision.

13 The pursuit continued with the applicant’s vehicle reaching speeds of 120kph in a 60kph zone, then 100kph in a 50kph zone and 100kph in a 70kmph zone. The applicant evaded road spikes by crossing onto the incorrect side of the road. He approached night road works with traffic diversions in place. Police terminated the pursuit and the applicant continued through the road works at high speed causing workers to jump for cover behind railings and road plant. The applicant used both sides of the road and drove through newly paved bitumen. Police re-engaged pursuit after clearing the road works and noticed the applicant again crossing onto the incorrect side of the road when negotiating corners. The applicant continued at speeds double and occasionally more than double the speed limit. The offender again avoided road spikes.

14 The applicant turned left near the Ocean Beach SLSC car park and drove down a lane way against the correct traffic flow and entered Umina Beach SLSC car park where he travelled through it at speeds of 90kph. He travelled down an un-named access road towards a ‘skate park’. He then drove through a narrow opening onto a Recreation Reserve and continued driving. In order to do this the applicant squeezed between two metal barriers, causing considerable damage to the vehicle and the barriers. At this point the pursuit was terminated to avoid damage to the police vehicle.

15 The applicant was at all times a disqualified driver and is disqualified from driving until 30 January 2024. He was later arrested and initially denied any involvement in the car chase.

The applicant’s subjective case

16 The applicant was aged 28 years, being born on 9 April 1981. He has a bad traffic record as well as a substantial criminal record dating from 1996. According to the Judge’s sentencing remarks, the applicant has been dealt with for 54 offences including 37 in the Children’s Court, 11 in the Local Court and 6 in the District Court. In addition he has had 13 offences taken into account when sentenced in the District Court. He has been dealt with for 18 offences of take and drive motor vehicles across all jurisdictions. He has been dealt with in a court for 28 traffic offences of which 3 were for driving without a licence, 16 for driving whilst disqualified, 1 for driving in a manner dangerous and 2 for driving at a speed dangerous.

17 The applicant has served numerous terms of imprisonment. The Judge’s sentencing remarks state that for the 9 years between 31 May 1999 and 30 May 2008 the applicant has been out of custody on 9 occasions, the longest being for a period of 10 months, and the total period at liberty being about 2 years and 9 months. The applicant has twice had parole revoked. He was on bail when he committed the last three offences.

18 There are only two significant subjective matters. The first is that the applicant will spend his sentence on protection by reason of the fact that he has previously been sexually assaulted in custody. Although the applicant gave evidence before his Honour that he spent 23 hours of each day in the cells, an affidavit tendered before us indicates that he shares a cell with another inmate and has a job as an Activities Clerk in which position he organizes social activities within the prison. He hosts events and helps to organise variety shows. Presumably, therefore, prison does not present itself in quite the same degree of harshness as it did at the time he was sentenced.

19 The second subjective matter is the applicant’s mental health. As there is a ground relating to this factor, I will consider it later.

Ground 1

20 The complaint is that his Honour erred in finding that the offences of dangerous driving and drive while disqualified were in the worst category. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 it was stated at 478:

The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R (1987) 61 ALJR 525 at 527; 74 ALR 1 at 5. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognisably outside the worst category.

21 The argument is that, having regard to the subjective factors relevant to the applicant, including his mental illness and harsh gaol conditions, the offences could not be regarded as being in the worst category. Reliance was placed upon what Badgery-Parker J said in R v Twala (NSWCCA, unreported, 4 November 1994). His Honour stated:

………………….The argument that was put to us involved the proposition that because it is possible to envisage, and indeed to find in the court files, cases which are worse than the present case, it necessarily follows that the present case is not one appropriate to the imposition of the maximum sentence. I reject that approach. However, in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)……………

22 That statement was made in considering the offence of murder and the provision that was then found in s 19A of the Crimes Act and now in s 61 of the Crimes (Sentencing Procedure) Act 1999. There is considerably more scope for a variation in the particular factual circumstances in a crime of murder than there is in either an offence of driving in a manner dangerous or drive whilst disqualified. In the latter offence there are very few factual considerations that might apply when trying to determine the seriousness of a particular offence.

23 Counsel for the applicant suggested that driving immediately after being disqualified by a court might be a more serious case than the present case of drive while disqualified. In respect of the dangerous driving charge she submitted that there was nothing about the facts that brought it within the worst category. She noted that a history of previous convictions could not make the specific offences more serious. While that is true, the applicant’s record would as a matter of aggravation justify a sentence at the top of the range appropriate to the objective seriousness of the offence. A sentence that denounced the applicant’s conduct and acted as a specific deterrent to the applicant was appropriate notwithstanding the applicant’s subjective considerations.

24 If the offences were in the worst category, it does not follow that the maximum penalty ought not to be imposed simply because of the offender’s subjective considerations. As Badgery-Parker J indicated in the passage quoted above, in determining whether the offence is in the worst category no regard is given to subjective mitigating factors. Those factors of course are relevant in deciding whether the maximum penalty should be imposed, having first determined that the offence is in the worst category. Subject to the issue of the applicant’s mental illness, I do not see that his Honour was in error in refusing to mitigate the sentences if he were correct in finding that they were in the worst category.

25 I do not see why a reduction must be given for the harsh conditions of imprisonment to a persistent offender who should be aware that by offending he will be returned to custody and have to spend his imprisonment in harsher conditions. If the threat of return to custody and the harsh prison environment does not deter him from future offending, then the court might be entitled to have regard to preventative detention if the offender presents as a serious enough risk to the community. There is nothing in Veen (No 2) that indicates preventative detention is not an appropriate aim of punishment provided that there is a proper foundation for it and provided that the sentence is not disproportionate to the objective seriousness of the offence in order to achieve that purpose.

26 But in any event I do not believe that the applicant should understand that, whenever and however he offends, he will be entitled to an automatic reduction in any sentence of imprisonment imposed upon him because of the nature of his custody. Eventually the stage must be reached that the court will not take that factor into account as a mitigating factor. The Judge said he took it into account, but that may have been a generous finding in the applicant’s case.

27 In my opinion it was open for his Honour to find that the offence of dangerous driving was in the worst category. The dangerous driving offence had aspects that did bring it in the worst category, including the driving in “convoy” with another vehicle also being driven dangerously, that he engaged in a second course of leading the police in pursuit and that he put members of the public in actual danger in travelling through the road works. There was an absence of facts that mitigated the commission of that offence. Whatever may be the relevance of the applicant’s mental illness, it had no impact upon his culpability for that offence. The applicant simply has not the slightest regard for the traffic rules or the requirement that he be the holder of a valid licence.

28 The offence of drive while disqualified does not lend itself to significant variations in seriousness. It is possible to imagine a case where the driving was a result of some humanitarian consideration, for example, to deliver a person to hospital or was a result of some other emergency. The example given by counsel of contumelious conduct in the face of a court disqualification might give rise to a case in the worst category. However, there was nothing particular about the present case that made the offence more serious than the usual case of disqualified driving once the applicant’s record is disregarded apart from the fact that he was on bail. However, having regard to his record as an aggravating factor, a more severe sentence was warranted than might generally be the case.

29 However, it is the totality of criminality involved in charges 3 to 6 that is important. Subject to the relevance of the applicant’s mental illness, a severe sentence was to be imposed upon the applicant for taking and using a motor vehicle while disqualified from driving and using that vehicle to drive dangerously. The argument that the sentences for charges 4 and 5 were excessive is somewhat technical having regard to the fact that they were ordered to be served concurrently. On general principles I do not understand how the criminality in driving dangerously was not increased by the fact that the driver was disqualified at the time. The Judge should have made the sentences partly cumulative. But in my view an effective sentence of 18 months for those two offences was not excessive as a measure of their objective seriousness. Whether the sentences are excessive having regard to the applicant’s subjective circumstances will be considered later.

Ground 2

30 The complaint is that the Judge failed to take into account the applicant’s mental illness. The applicant was suffering from the following mental disorders: chronic Post Traumatic Stress Disorder arising from past events, including being raped in gaol; depression; anxiety and substance abuse. He was said to have attempted suicide on forty-seven occasions. He is alleged to “self-medicate” by the use of illegal substances. It was asserted that at the time of the offending he had a mistaken belief that he had contracted the HIV virus and this led him to recommence the use of alcohol and illegal drugs. He has been involved in numerous rehabilitation courses including spending 15 weeks at the William Booth Clinic.

31 It is submitted that his Honour erred by failing to have regard to the applicant’s mental condition because he dismissed it as having no causal link to the offending. His Honour stated:

The offender enjoys good physical health, albeit that he has suffered a fracture of the wrist, which has left him with reduced movements of the wrist. However he does not enjoy good mental health as revealed by the reports exhibits 1 and 2. He has recently been treated for seizures, see exhibit 3. He has been diagnosed as suffering from post-traumatic stress disorder, see exhibits 1 and 2. Although I accept his mental state is unstable, I cannot see any relationship between his state of mental health and his commission of the subject offences.

32 It is trite that an offender’s mental illness can be a relevant factor in sentencing notwithstanding that it is unconnected to the offending for which the offender is being sentenced. The fact that the mental condition is unconnected to the offending means that it does not impact upon the offender’s culpability so as to diminish the objective seriousness of the offending. However, it can still be relevant in that it may indicate that the offender is not a suitable case for general deterrence or that gaol will bear more harshly upon the offender because of the mental illness: R v Hemsley [2004] NSWCCA 228. In the present case the applicant’s mental illness did not bear upon his criminal culpability and there was no evidence that it had any bearing on the nature of his imprisonment.

33 However, it is also trite that an offender does not receive a lesser sentence simply because he suffers from a mental illness: R v Engert (1995) 84 A Crim R 67. That is because it may be that the mental illness means that the offender presents a danger to the community or indicates that specific deterrence may be appropriate where, for example, the offender refuses to take appropriate medication.

34 Where the offender acts with knowledge of what he is doing despite the fact that he suffers from a mental illness, it does not follow that the offender is not a suitable vehicle for a deterrent sentence: R v Wright (1997) 93 A Crim R 48 at 51. The fact that the applicant self-medicates with alcohol and drugs does not lessen his culpability for his offending or indicate that general deterrence should not be a highly significant factor.

35 Although his Honour was in error in dismissing the relevance of the applicant’s mental illness simply because it was unconnected with the offending, it does not seem to me that this approach resulted in any significant error in the exercise of his discretion. In light of the applicant’s criminal and traffic record, the nature of the driving and the fact that the applicant clearly understood the criminality of his conduct, there was no error in finding that general deterrence was a relevant factor. Personal deterrence was also a highly significant factor.

36 I would not conclude that the applicant generally presents as a danger to the community, but that simply means it was unnecessary to fashion a sentence that involved protection of the community or preventative detention. There is nothing in the sentencing remarks that indicates his Honour sought to impose a sentence based upon preventative detention. I would reject this ground of appeal. I do not believe the applicant’s mental illness was a factor that warranted any particular leniency being granted to him.

Ground 3

37 The complaint is principally with the sentences imposed for charges 3, 4 and 5 and the fact that the sentence for count 3 (take and use) was made cumulative upon the offences in charges 4 (dangerous driving) and 5 (drive disqualified). I have already indicated that in my opinion there was no justification in making the sentences for charges 4 and 5 totally concurrent.

38 The argument is that, because each of these offences had the common element of “drive”, it was an error in principle and contrary to Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 for his Honour to impose a sentence for count 3 that was to be served cumulatively upon the sentence for charges 4 and 5. The following passage from Pearce was relied upon:

[40] To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.

39 Although the three offences in charges 3-5 technically had a common element of driving, they were dealing with different circumstances surrounding the applicant’s driving. The offence of take and use, was concerned with driving a vehicle without the consent of the owner. Charge 4 was concerned with the fact that the applicant was driving while disqualified. Charge 5 was concerned with the manner of driving. The applicant was not being punished three times for driving. In fact there is no offence of “driving a vehicle” and he was not being punished for that activity. The offences were distinct and separate acts of criminality that arose from the fact that he was driving a vehicle. I do not believe that the passage in Pearce quoted above required that the sentences be at least partly concurrent. There was no element of double punishment involved.

40 It was further argued that the offences involved “one course of conduct which gave rise, in effect to only one victim”. With respect I do not understand the submission. There was one victim insofar as the owner of the vehicle was concerned. But that says nothing about whether the offences could, or should, be dealt with by concurrent sentences. In my opinion his Honour was entitled to make what orders he thought were appropriate so far as concurrence or accumulation was concerned provided that at the end of the day the overall sentence was appropriate to the total criminality involved in the three offences. In my opinion there was no error in making the sentence for count 3 cumulative upon the sentences for charges 4 and 5. The only error was that the sentences for charges 4 and 5 were made concurrent.

41 Although there was no separate ground that the sentences imposed were manifestly excessive, I am concerned at one aspect of his Honour’s sentences. There is an increase in the term imposed for each of the take and use offences as well as some accumulation in the sentences. There was no difference between the offences of take and use in terms of their objective seriousness. There are very few variations in the manner in which the offence of take and use can be committed. It will be a relatively rare situation that one example of the offence can be more serious than another. In any event there was nothing in the facts in counts 1 and 2 that indicated that the penalty for count 2 should be higher than for count 1. Nor could the inclusion of the offence of receiving, having regard to the facts of that matter, nor the fact that the applicant was on bail have resulted in a penalty for count 3 that was so much greater than count 1. It is not appropriate in my opinion to increase the penalty for an offence because it is a second offence and then make that offence partly cumulative with the first offence.

42 In the pre-Pearce sentencing regime it was not uncommon for sentences for similar offences to be increased, offence by offence, so that the last offence carried the penalty for all offences because all the sentences were made concurrent. But that is no longer an appropriate way of achieving totality. It is erroneous for sentences for individual offences of the same type to be increased, simply because they happen to be a second or third offence and then for them to be made cumulative upon one another, as his Honour did, because in effect it results in double counting.

43 His Honour imposed a sentence of 22 months 15 days for the first take and drive, 2 years and 3 months for the second and 3 years for the third taking into account the matter on the form 1. As I have indicated I do not understand how the sentences for the three offences could differ except so far as the third charge took into account the receiving and the fact it was committed on bail. But those factors could not justify a sentence of 3 years having regard to the maximum penalty of 5 years and a discount of 25 per cent.

44 In my opinion the overall sentence is manifestly excessive and that is largely due to the increasing sentences for the take and drive offences. His Honour determined that the total sentence should be 6 years 6 months. But that had to be the overall sentence after the application of a 25 per cent discount for the pleas of guilty. It is difficult to determine what the starting sentence was before the application of the discount, a matter that raises some concern about how the sentences were determined. It was somewhere between 8½ years and 9 years. Such a starting point was manifestly excessive in my opinion.

45 It is important to note that, when sentencing for multiple offences, the discount has to apply to the overall sentence imposed and not just the individual sentences. This of course may be difficult when there are different discounts applicable to different sentences. A rigid application of Pearce means that the sentence for each offence, including any applicable discount, is determined and then attention paid to the issue of totality. But in considering totality the sentencer must not lose sight of the discount that has to apply to the total sentence and not just the individual sentences. Where all sentences are made concurrent, of course the problem does not arise. But where individual sentences are accumulated, either in whole or part, the discount can be eroded.

46 In my opinion the appropriate end point is an overall sentence of 6 years reduced by 25 per cent to give a total sentence of 4 years. The sentence takes into account the fact that the applicant’s custody may be somewhat harsher by reason of his protective status. The Judge found special circumstances, with hesitation. I doubt that this decision was justified in light of his findings as to the likelihood of re-offending and lack of motivation to reform. However, I am not prepared to find special circumstances generally as in my opinion the applicant should spend at least 3 years in custody for the offences he committed. A parole period of 12 months is adequate for the applicant to receive some assistance by way of supervision. In coming to this view I have taken into account the applicant’s affidavit filed in this Court.

47 I am imposing fixed terms for all offences except count 3. These sentences are the equivalent of a non-parole period in each case. A fixed term is chosen because of the sentence to be imposed on count 3 that will include a parole period. I have found special circumstances in fixing the non-parole period in count 3 by reason of the accumulation of sentences. The question of cumulation and concurrency has been driven by what is required having regard to totality. The discount for the plea has been taken into account in the over-all sentence imposed rather than the individual sentences. The sentences correspond with the order in which the Judge sentenced the applicant.

48 I propose the following orders:

1. The application for leave to appeal is granted and the appeal is allowed.

2. The sentences imposed in the District Court are quashed.

3. The following sentences are imposed:

1. Count 1: A fixed term of 15 months to date from 20 March 2008 and that expired on 19 June 2009.
2. Count 2: A fixed term of 15 months to date from 20 June 2008 and expired on 19 September 2009.
3. Drive disqualified: A fixed term of 6 months to date from 20 September 2009 and to expire on 19 March 2010.
4. Dangerous driving: A fixed term of 6 months to date from 20 January 2010 and to expire on 19 July 2010.
5. Count 3: A non-parole period of 12 months to commence on 20 March 2010 and to expire on 19 March 2011 with a balance of term of 12 months to commence on 20 March 2011.

The applicant is to be released to parole on 20 March 2011. It is to be a condition of his parole that he take any medication prescribed by a medical practitioner for his mental condition in accordance with the direction of the practitioner.

I agree with Howie J.

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