Hall v R

[2017] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Hall v R [2017] NSWCCA 260
Hearing dates:	6 September 2017
Decision date:	03 November 2017
Before:	Payne JA at [1]; McCallum J at [2]; Wilson J at [3]
Decision:	(1)   Grant an extension of time until 23 June 2017 to file the notice of appeal against sentence. (2)   Grant leave to appeal against sentence. (3)   Appeal against sentence allowed. (4)   Sentence imposed in the District Court is quashed. (5)   In lieu thereof, Timothy Leigh Hall is sentenced to imprisonment for a term of 10 years, commencing on 16 December 2012 and expiring on 15 December 2022, with a non-parole period of 7 years to expire on 15 December 2019.
Catchwords:	CRIMINAL LAW – sentence appeal – appeal out of time following successful appeal by co-offender – element of offence treated as aggravating feature – application of the parity principle
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Barlow v R (2008) 6 A Crim R R v Imbornone [2017] NSWCCA 144 R v Speechley (2012) 221 A Crim R R v Qutami [2001] NSWCCA 353; (2001)127 A Crim R 369 Sorensen v R [2016] NSWCCA 54
Category:	Principal judgment
Parties:	Timothy Leigh Hall (Applicant)  Crown (Respondent)
Representation:	Counsel: Mr P. Lange (Applicant) Ms S. Dowling SC (Respondent)   Solicitors: B. Wrench – Murphy’s Lawyers (Applicant) C. Hyland – Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/108748
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 6 December 2013 Before: Craigie SC DCJ File Number(s): 2012/108748

Judgment

1. PAYNE JA: I have read the judgment of Wilson J in draft. I agree with her Honour’s reasons and the orders she proposes.

2. MCCALLUM J: I agree with Wilson J.

3. WILSON J: The applicant stood trial jointly with Michael Christian Sorensen in the District Court at Parramatta between 1 October 2013 and 15 October 2013, before Craigie SC DCJ and a jury of twelve. The indictment contained five counts, three of which were charged jointly against both accused men, with one further charge brought against each individually. The jury returned verdicts of guilty with respect to each charge.

4. On 2 June 2014 his Honour sentenced both the applicant and Sorensen for the counts on the indictment, together with an additional related charge against the applicant of supplying a prohibited drug, to which he had entered a late plea of guilty, imposing aggregate terms of imprisonment upon each pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). A sentence of 12 years imprisonment was imposed upon the applicant, to date from 16 December 2012 and expiring on 15 December 2024. A non-parole period (“NPP”) of 8 years was fixed; the NPP expires on 15 December 2020. The sentence imposed upon Sorensen for four offences, not including the supply offence that applied only to the applicant, was the same.

5. The charges and indicative sentences are set out below.

Charge	Offence	Indicative Sentence
1 (Applicant)	Armed with a weapon (knife) with intent to commit an indictable offence, namely to assault Ms L on 5 April 2012 in Penrith NSW. s 114(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 7 years imprisonment	3 years
2 (Sorensen)	Armed with a weapon (baseball bat and knife) with intent to commit an indictable offence, namely to assault Ms L on 5 April 2012 in Penrith NSW. s 114(1)(a) Crimes Act 1900 (NSW) Maximum penalty: 7 years imprisonment	3 years
3 (Jointly charged)	Assault and commit act of indecency in company on 5 April 2012 in Penrith NSW. s 61M(1) Crimes Act 1900 (NSW) Maximum penalty: 7 years imprisonment (SNPP 5 years)	3 years NPP 2 years and 3 months
4 (Jointly charged)	Assault occasioning actual bodily harm in company on 5 April 2012 in Penrith NSW. s 59(2) Crimes Act 1900 (NSW) Maximum penalty: 7 years imprisonment	3 years and 3 months
5 (Jointly charged)	Detain without consent with intent to obtain advantage, namely to obtain advantage by punishing and humiliating the victim at the time the actual bodily harm was occasioned on 5 April 2012 in Penrith NSW. s 86(3) Crimes Act 1900 (NSW) Maximum penalty: 25 years imprisonment	10 years
6 (Applicant separately)	Supply prohibited drug (methylamphetamine) on 5 April 2012 in South Penrith NSW. s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) Maximum penalty: 15 years imprisonment	2 years 9 months (with 10% reduction for guilty plea)

6. On 17 November 2015 this Court (constituted by Ward JA, Adams and Bellew JJ) heard an appeal against both conviction and sentence filed by the co-offender. In the judgment delivered on 14 April 2016 the Court dismissed the appeal against conviction, but upheld the appeal against sentence: Sorensen v R [2016] NSWCCA 54.

7. The offender Sorensen was resentenced by the Court. Ward JA concluded:

“Taking into account those [objective and subjective] matters, the respective maximum penalties and, as to count 3, the standard non-parole period, as well as the principle of totality, and applying, as the primary judge did, a high degree of concurrency, I propose the following indicative sentences:

on count 2, 3 years’ imprisonment;

on count 3, 3 years’ imprisonment with a non-parole period of 2 years, 3 months;

on count 4, 2 years’ imprisonment;

on count 5, 8 years’ imprisonment,

aggregated to an overall sentence of 10 years’ imprisonment commencing on 24 May 2013 with a non-parole period of 7 years expiring on 23 May 2020.”

8. In light of that decision, the applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal (significantly out of time) against the sentence imposed upon him. The proposed ground 1 mirrors the ground of appeal (being ground 2A) accepted as having been made out with respect to Mr Sorensen; ground 2 is in the alternative. The grounds advanced are:

1. “In sentencing the appellant [sic], the learned trial judge erred in taking into account the vigilante nature of the offence as an aggravating factor because an element of the offence charged pursuant to s 86(3) of the Crimes Act 1900 (NSW) was “to obtain gratification by punishing and humiliating” the complainant.

2. In the alternative to Ground 5 [sic – ground 1], the parity principle requires the appellant [sic] to be resentenced having regard to the Court of Criminal Appeal’s re-exercise of the sentencing discretion in relation to the appellant’s [sic] co-accused, Mr Sorensen in Sorensen v R [2016] NSWCCA 54”

The Crown Case on Sentence

9. Both the applicant and the respondent Crown accept that the Crown case was accurately summarised by Ward JA (with Adams J and Bellew J agreeing) in Sorensen v R at [8]-[14]:

“[8]   On 5 April 2012, Ms L, with two other women (Raquel and Michelle), drove from Wollongong to the Pioneer Tavern in Penrith to meet Mr Hall (someone known to Raquel). (Neither Raquel or Michelle was called to give evidence at the trial.) When they left the Pioneer Tavern, they drove to a number of places including Mr Sorensen’s house (where the assaults against Ms L occurred) and Mr Hall’s house. (I interpose to note that Ms L gave evidence that at both those places she smoked some of the drug “ice” with Mr Hall.)

[9]   While the group was at Mr Hall’s house, one or more of the women tried to steal some jewellery that belonged to Mr Hall’s mother (Ms Turner). When they went back to Mr Sorensen’s house, the other two women told Mr Hall that Ms L had stolen the jewellery. It was the Crown case that, as a result of that allegation, Ms L was hit, punched, forced to remove her clothes, touched around her breasts and her stomach, and told to lie on the floor and crawl around like a dog. Ms L gave evidence that a number of threats were made to her and that she feared for her life. She suffered a number of injuries.

[10]   At some point during the course of the assaults at Mr Sorensen’s house the other two women left. In the morning, Ms L was forced to drive to Ms Turner’s house where she was made to apologise for having stolen the jewellery. Mr Hall, Mr Sorensen and Ms L then went to a service station to put petrol in the car, at which point Ms L was able to make her escape.

[11]   The precise time line of the relevant events is not altogether clear.

[12]   Ms L gave evidence that she and the other two women left Wollongong at about 6pm on 4 April 2012; that it took around about 2 to 3 hours before they got to the Pioneer Tavern; and that they were still around the area of the Pioneer Tavern around 11-12 o’clock that night. After going to various places, including Mr Hall’s house where the jewellery was taken, the group ended up at Mr Sorensen’s house (for the second time that evening). Ms L’s evidence (consistent with what, according to the doctor who later examined Ms L in hospital, she reported after her escape) was that she was first assaulted at about 2.30am/3am. The visit to Ms Turner’s house was in the morning. There was some conflict in the evidence as to whether it was still dark when the three went to Ms Turner’s house. Ms Turner placed the visit as being at about 6.30-7am in the morning, which is consistent with the evidence of a woman who lived in a granny flat at the property (Ms Marshall). A visit at around that time is also consistent with the time at which a bystander (Ms Maybury) assisted to jump start Ms L’s car outside Ms Turner’s house before the group went to the service station and with the time at which the group ended up at Werrington service station and Mr Sorensen and Mr Hall were arrested.

[13]   The events at the service station occurred at about 7.45am. Mr Sorensen was arrested at that time. Ms L was taken to Nepean Hospital. According to the hospital records she presented for examination at the hospital at about 8.24am on 5 April 2012.

[14]   Ultimately, in the course of sentencing, the trial judge found that the period of detention was for some hours from some indeterminate time after midnight and concluding sometime after daylight on the day the arrests were recorded by the police.”

10. The facts of the additional charge faced by the applicant were that he supplied the complainant with a small amount of methylamphetamine.

11. The applicant’s criminal history was before the sentencing judge. It contained entries against the applicant commencing with a drink driving offence in 2001, when he was aged 17 years old. The applicant had convictions in 2004 for offences of possess implements to enter and drive conveyance, goods in custody, carry cutting weapon, take and drive conveyance without consent (2 counts), and drive manner dangerous. Fines and sentences of periodic detention were imposed, although the latter were varied on appeal to suspended sentences and community service orders. He was also dealt with in 2004 for malicious damage.

12. In 2005 the applicant was called up for breaches of those community based sentences, and periods of imprisonment were imposed, the longest such sentence being one of 2 years imprisonment.

13. He was also dealt with in that year for other driving offences, including driving whilst disqualified, an offence for which the applicant was sentenced to imprisonment for 3 months with a 3 year disqualification from driving. A further such charge later in the year attracted a sentence of 6 months imprisonment and a cumulative disqualification of 2 years.

14. The applicant spent a month in prison in 2007 following his conviction for introducing a syringe to prison.

15. In 2009 the applicant was sentenced for a 2007 offence of specially aggravated kidnapping, a term of 4 years and 3 months imprisonment being imposed upon him, with a NPP of 2 years and 3 months. That sentence took into account a number of other crimes, including aggravated break enter commit serious indictable offence, larceny, and take and drive without consent. The sentencing judgment relevant to those offences was part of the material before Craigie SC DCJ.

16. In 2010 the applicant was charged with break enter steal, break enter with intent, and possess prohibited drug, receiving terms of imprisonment for those offences in 2011.

17. The applicant’s Corrective Services history recorded numerous instances on which the applicant had been penalised for prison offences when in custody, including fighting, intimidation, and drug offences. After his admission to custody with respect to these offences the applicant incurred six such institutional charges.

18. A pre-sentence report (“PSR”) that was before the Court noted that the 30 year old applicant had breached all periods of supervision by Community Corrections to which he had previously been subject, frequently as a result of drug use. The applicant reported problematic use of illicit drugs, having commenced drug use at age 17 with cocaine, ecstasy and methylamphetamine. The latter drug remained a problem for him. The applicant was diagnosed in 2005 with Rapid Cycling Bi-Polar Disorder; whilst in custody he was compliant with the medication regime prescribed him, but he ceased taking medication in the community, preferring to use illicit drugs. He asserted that he would take necessary medication in the future, and he had the support of his mother with that and other goals, such as employment.

19. As to the offences, the applicant told the author of the PSR that he was innocent.

20. Psychiatric and psychological reports were requested from Justice Health by the sentencing court. Professor David Greenburg conducted psychiatric examinations of the applicant in November 2013 and January 2014, providing two reports in which he concluded that the applicant suffered Bi-polar Disorder (being a provisional diagnosis) and a Poly-substance Dependence Disorder. At the time of his first examination of the applicant Professor Greenburg concluded that he was a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 (NSW); his condition had stabilised by the time of the second consultation and the applicant was no longer regarded as mentally ill.

21. The forensic psychologist who assessed the applicant concluded that he fell within the medium – high risk category for recidivism.

22. A victim impact statement from Ms L set out the terrible consequences for her as a result of the ordeal to which she was subjected.

The Applicant’s Case on Sentence

23. The applicant relied upon a psychiatric report prepared for sentence by Dr Olav Nielssen, who saw him in December 2013. The applicant was in an acutely manic state at that time, with his speech grandiose and uninhibited. Like Professor Greenburg, Dr Nielssen concluded that the applicant had a Bi-polar Mood Disorder (then in a manic phase) and a Substance use Disorder. In a supplementary report of February 2014 (made after a review of documentation only) Dr Nielssen recorded the earlier instances on which the applicant had been psychiatrically assessed, and noted that the opinions expressed by treating medical staff were consistent with his own.

24. The applicant did not give evidence on sentence.

The Conclusions of the Sentencing Judge

25. In jointly sentencing the applicant and Sorensen his Honour set out the facts of the offending conduct consistent with the verdicts of guilty returned by the jury, and noted the additional charge against the applicant of supplying a prohibited drug, being methylamphetamine. His Honour concluded that the detention of Ms L commenced at some time after midnight, concluding when she made her escape and secured police assistance at about 7.45 am that same morning. He referred to R v Speechley (2012) 221 A Crim R and the factors relevant to be taken into account in a case involving kidnapping. His Honour said,

“The Court [in Speechley] held that offences pursuant to s 86 when committed as a form of vigilante action also require condemnation to reflect general deterrence on sentence. There are some aspects of that factor in the present matter. It was said that motivation of that type is capable of bearing in other ways on the determination of sentence.”

26. The sentencing judge continued (after a reference to Barlow v R (2008) 6 A Crim R),

“In order to avoid any perception of double counting of the aggravating feature and the kidnapping it is necessary that much of the offending will, after individual assessment require recognition as very serious but also intimately related offending in the course of, an ongoing course of criminality. That will require consideration of whether a requisite degree of concurrence is to be applied. The formulation nonetheless leaves any assessment of totality in the criminality for both offenders, as very grave, albeit with a dominating concern to properly assess the totality of all the indictment counts within the frame work of the related and very serious offence of specially aggravated kidnapping” (ROS 16-17).

27. He went on to detail the subjective cases of both offenders.

28. The sentencing judge found that both the applicant and Sorensen had engaged in a grave course of criminality and had shown no remorse for the suffering inflicted on Ms L. He had regard to the principles of totality, and of parity, and to those matters referred to in s 3A of the Crimes (Sentencing Procedure) Act. Of the applicant his Honour said,

“As to the offender Hall, although younger he was the initiator of the violence and of the gross humiliation heaped upon the victim. His persistence in the assaults and the level of brutality places him in an at least equally culpable position to that of his older and more criminally experienced offender. I have noted his recent and, I infer, past history of mental illness. As previously stated, I have not found any such mental illness to have been established as more probable than not, and present at the time of the offences” (ROS 33).

29. Whilst the sentencing judge referred to the differing features of the respective cases for each offender, he concluded that the level of offending of each was of the same high order, notwithstanding some differentiation between the acts of each individual, and having regard to the fact that the offences were committed in furtherance of a joint criminal enterprise. He concluded,

“The outcome in distilling of all matters [including the additional charge for the applicant] is an effective parity between the two offenders’ sentences.”

30. In considering count 5, the offence of specially aggravated kidnapping, the sentencing judge observed,

“I find that the detention came about as an act of quasi-vigilantism on the part of the offenders. I regard that as an aggravating circumstance.”

The Sentence Appeal

31. In his sentence appeal to the Court of Criminal Appeal Sorensen complained that the sentencing judge was in error in finding that the “quasi-vigilantism” was an aggravating feature, and in making that finding when an element of the offence of specially aggravated kidnapping was “to obtain gratification by punishing and humiliating” Ms L. The applicant seeks to make the same complaint, relying alternatively on a parity argument to contend for a reduction in sentence.

32. The Crown accepts that the conclusions of this Court in Sorensen v R provide a basis for the Court to grant the applicant leave to appeal, uphold his appeal, and resentence him. Having regard to the finding of the sentencing judge as to parity, the Crown submits that lesser indicative sentences are warranted with respect to counts 4 and 5, and a lesser aggregate sentence is warranted in law.

Consideration

33. As the Crown has fairly conceded, the conclusions of this Court in Sorensen v R are such that the applicant should be granted an extension of time in which to bring his application, and be granted leave to appeal. His appeal should be upheld, and the sentence imposed in the District Court quashed.

33. At [128] – [129] of Sorensen v R Ward JA said (with the agreement of Adams and Bellew JJ),

“However, having properly recognised the need to avoid double counting the aggravating factor of the quasi-vigilantism in relation to the other offences when considering the totality of the offending (that being overshadowed by the specially aggravated kidnapping) (see [105], [108] above), his Honour nevertheless expressly referred to quasi-vigilantism as an aggravating factor for the count 5 offence, when the aggravation itself formed part of the charge. Punishment and humiliation were necessary parts of the offence of specially aggravated kidnapping as pleaded on the indictment. It could not properly be regarded as an aggravating factor on sentencing for an offence of which it formed part.

Therefore, even though the extent to which and the manner in which that factor was taken into account in determining the sentence for count 5 is not clear, I am of the opinion that his Honour erred in finding that the quasi-vigilante nature of the count 5 offence was an aggravating factor. Ground 2A is made out. In those circumstances it falls to this Court to re-sentence Mr Sorensen in line with the principles in Kentwell v The Queen[2014] HCA 37; (2014) 252 CLR 601.”

35. The same error was made with respect to the applicant.

36. As a consequence of the error, it will be necessary to resentence him.

37. On resentence, the applicant tendered a further report from Dr Nielssen dated 5 September 2017. The doctor took a history from the applicant in which he said of the offences, “someone took my mother’s jewellery and I have handled it the wrong way”. He referred to having been “in a bad place mentally” at the time as a consequence of a relationship breakdown, and to having been “all over the place” because of drug use.

38. The applicant said that his condition now was much improved due to the effectiveness of the medication he had been taking. He felt that he had attained a level of maturity and “grown up”, and was now in a positive relationship, with employment prospects in his mother’s business. The applicant’s mother similarly told Dr Nielssen that the applicant had a new relationship and that it was anticipated that he would work in the family business upon release.

39. The applicant referred to having completed an “aggression management course” in custody, and to be enrolled in “an addiction course”. The applicant had employment making furniture. His security classification had been reduced.

40. Dr Nielssen confirmed his earlier diagnoses, although noted that the applicant’s bi-polar and substance use disorders were in remission. He thought that, as a result of consistent treatment in custody, the applicant’s future prospects were improved, although he cautioned that release to the community could “trigger an episode of mania”, as could illicit drug use, the risk of which remained. The doctor suggested that the applicant may benefit from treatment by long acting injectable medication, and close supervision on release.

41. The applicant relies upon the report of Dr Nielssen to argue that this Court should impose a sentence “more benevolent” than that imposed upon Sorensen, if not in its term then in the ratio of sentence. Although no such argument was advanced in the written submissions in support of the application, the applicant submitted at the hearing of the matter that the supply offence for which the applicant alone was sentenced was not a particularly serious offence, and should not have operated so as to lead to the imposition of equivalent sentences as between the applicant and Sorensen, who had a longer criminal history than did he.

42. As the applicant stated in his written submissions, and in arguing for reinstatement of parity, it was plain from the sentencing judgment of the District Court that “the applicant’s sentence was determined with express relativity to Sorensen’s”. Until oral arguments put at the hearing of the application, the applicant had not sought to take any issue with the approach to parity taken by the sentencing judge.

43. For my part, I see no legitimate basis upon which to take a different approach to that taken to parity at first instance. There were differences in the cases of the two offenders, but not of such a nature as to require differentiation in sentence. Indeed, such a conclusion appears implicit in the applicant’s written submissions, wherein he submitted that “the Court should quash the applicant’s sentence and re-exercise the sentencing discretion having express regard to the fresh sentence imposed on Mr Sorensen”.

44. Of Sorensen’s case Ward JA said, at [140] – [144],

“As to subjective matters, the pre-sentence report dated 5 December 2013 disclosed a history of an unstable upbringing as well as a lengthy history of criminal conduct. Mr Sorensen accepts that he has spent over half his life in custody. Significantly, at the time of the offence he was on parole for the offence of maliciously inflicting grievous bodily harm.

Mr Watson-Munro, a consultant forensic psychologist whose report was tendered on Mr Sorensen’s behalf at the sentencing hearing, concluded that Mr Sorensen had exhibited signs indicating he was suffering from major depression and was in remission from a poly-substance abuse disorder. His criminal history included a series of offences committed after having consumed illicit substances. It is apparent from the evidence that he is, as his Honour described him, a seasoned criminal and seasoned drug abuser.

Mr Watson-Munro recommended cognitive behavioural therapy to address and develop relapse prevention strategies in a number of areas in effect to provide Mr Sorensen with the basic skills for living in society as a normal citizen. Mr Watson-Munro also noted Mr Sorensen’s commitment to his partner and to his partner’s infant daughter.

Mr Sorensen had, as referred to earlier, provided a letter to the sentencing judge asserting his determination to cease using drugs and to use the motivation of a potential for a normal family life to strengthen his resolve to avoid further offending. There was, however, no expression of remorse for the suffering meted out to Ms L nor did Mr Sorensen accept his guilt. Mr Sorensen’s prior record and poor prospects of rehabilitation require a sentence that focusses on specific deterrence and community protection.

The sentencing judge considered that Mr Sorensen had a “glimmer of insight in him that he had wasted far too much of his life in custody as he now approached middle age, with looming powerful indications that he has become institutionalised” and thus he should be subjected to a longer period on parole “which, if productive, will be for the good of the community” and accordingly found special circumstances that justified a variation of the statutory formula in s 44 of the Crimes (Sentencing Procedure) Act. I am sceptical that such special circumstances are present, there being little, if any evidence to justify a finding that there are significant positive signs which show that if Mr Sorensen is given a longer period on parole rehabilitation is likely to be successful, as opposed to being a mere possibility (R vTuuta[2014] NSWCCA 40; (2014) 239 A Crim R 399 at [56]-[57]). However, the Crown did not in this Court submit that his Honour erred in this regard or that, in resentencing, no such finding should be made. In the circumstances I have slightly reduced the non-parole period from that which would follow from applying the s 44 formula.”

45. Each offender had a criminal history, amongst which were convictions for violent offences similar to that before the Court. Each had offended whilst subject to conditional liberty. Each had a long history of illicit drug use. Each has mental health issues. The applicant is younger, and his criminal history is not quite as extensive but, as the sentencing judge observed,

“[…] although younger he was the initiator of the violence and the gross humiliation heaped on the victim.”

46. The applicant additionally had a fifth charge for sentence, which reflected his offence of supplying a small amount of methylamphetamine to Ms L during the course of the relevant events. Whilst not a gravely serious example of such an offence, neither is it so trivial as to largely disregard it when considering parity, and resentence.

47. Having regard to all of the relevant features of the respective cases of each, I would approach the re-sentencing exercise on the basis that the principle of equal justice requires the imposition of an equal sentence overall.

48. I do not regard anything in Dr Nielssen’s report as altering that conclusion. Much of what Dr Nielssen reports is what was in turn reported to him by either the applicant or the applicant’s mother. This Court has repeatedly warned of the caution with which untested statements to third parties should be treated: R vQutami [2001] NSWCCA 353; (2001)127 A Crim R 369 at [58] – [59]; R v Imbornone [2017] NSWCCA 144 at [57]. Whilst I am prepared to accept that the applicant has hopes for a stable future on the basis of his new relationship and employment prospects, his past history would suggest that his prospects remain guarded.

49. Dr Nielssen reports that the applicant is currently medicated, and his present intention is to remain compliant with any medication regime. There remains however, as pointed out by Dr Nielssen, a risk of relapse into illicit drug use, with the possible consequence of the applicant ceasing to take necessary medication. A return to a criminal lifestyle thus continues to be a possibility.

50. These were extremely grave offences, as this Court concluded in Sorensen v R. A significant custodial penalty was required to serve the purposes of sentencing outlined in s 3A of the Crimes (Sentencing Procedure) Act. Having regard to the principle of parity, and noting the requirements of totality, I would impose the same aggregate sentence of 10 years imprisonment upon the applicant as that imposed by this Court upon Sorensen. Taking into account the need for close supervision on release I would make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act to permit a very modest extension to the NPP that would otherwise apply. The indicative sentences I propose are:

1. count 1: imprisonment for 3 years;

2. count 3: imprisonment for 3 years;

3. count 4: imprisonment for 2 years;

4. count 5: imprisonment for 8 years; and

5. count 6 of the indictment of 25 September 2013: imprisonment for 2 years and 9 months.

51. The orders, and sentence I propose are:

1. Grant an extension of time until 23 June 2017 to file the notice of appeal against sentence.

2. Grant leave to appeal against sentence.

3. Appeal against sentence allowed.

4. Sentence imposed in the District Court is quashed.

5. In lieu thereof, Timothy Leigh Hall is sentenced to imprisonment for a term of 10 years, commencing on 16 December 2012 and expiring on 15 December 2022, with a non-parole period of 7 years to expire on 15 December 2019.

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Decision last updated: 07 November 2017