R v Cowan

[2008] NSWCCA 124

New South Wales
Court of Criminal Appeal

CITATION:	R v Cowan [2008] NSWCCA 124
HEARING DATE(S):	21/4/08
JUDGMENT DATE:	4 June 2008
JUDGMENT OF:	Bell JA at 1; Barr J at 45; Buddin J at 46
DECISION:	Appeal allowed. For orders see paragraph [44]
CATCHWORDS:	CRIMINAL LAW – multiple armed robbery offences - SENTENCING – Crown appeal – whether sentence for one offence adequately reflective of criminality involved in commission all offences.
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Johnson v R [2004] HCA 15; 78 ALJR 616 Markarian v R [2005] HCA 25; 228 CLR 357 Mill v R (1988) 166 CLR 59; Pearce v R [1998] HCA 57; 194 CLR 610 Postiglione v R (1997) 189 CLR 295 R v Collins [2005] NSWCCA 198 R v Henry [19999] NSWCCA 111; 46 NSWLR 346 R v Thomas [2007] NSWCCA 269 R v Wall [2002] NSWCCA 42
PARTIES:	Regina (Appellant) Gilbert Wolford Cowan (Respondent)
FILE NUMBER(S):	CCA 2007/00005196
COUNSEL:	G Rowling (Crown) M Ramage QC (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) J Krajcik (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/1025 07/11/0418
LOWER COURT JUDICIAL OFFICER:	Puckeridge DCJ
LOWER COURT DATE OF DECISION:	4/10/07 5/10/07

CCA 2007/00005196

BELL JA
BARR J
BUDDIN J

Wednesday 4 June 2008

R v Gilbert Wolford COWAN

Judgment

1 BELL JA: This is a Crown appeal against the inadequacy of sentences imposed on the respondent in the District Court following his conviction of a large number of armed robbery offences.

2 On 4 October 2007, after trial, the respondent was sentenced for 14 offences, which occurred on Christmas Day 2005 (the Woolwich Pier Hotel offences). The overall sentence imposed for these offences was nine years’ imprisonment with a non-parole period of five years and six months. The following day the respondent was sentenced by the same Judge for a further series of armed robberies to which he had pleaded guilty in the Local Court. These consisted of five offences of armed robbery under s 97(1) of the Crimes Act 1900 (NSW), one count of aggravated armed robbery involving the use of a firearm under s 97(2), and one count of possession of a prohibited weapon. In relation to these offences, which occurred between 1 January and 15 February 2006 (the January and February offences), the respondent asked the Judge to take into account under s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) a further 22 armed robbery offences and one offence of breaking, entering and stealing.

3 The Judge sentenced the respondent to terms of imprisonment in respect of the January and February offences that were subsumed by the sentences for the Woolwich Pier Hotel offences. The effective non-parole period was extended by six months and 15 days.

The facts - the Woolwich Pier Hotel offences

4 The respondent, in company with at least two other men, entered the Woolwich Pier Hotel in the early hours of 25 December 2005. The manager of the hotel and a number of young employees were inside the premises cleaning up after closing. Each of the robbers was armed: one had a knife, one had an axe and one had a replica pistol. Their faces were covered with balaclavas or similar disguises. One of them forced the manager into the office, pointed a gun against her head and demanded that she open the safe. He threatened to chop her fingers off if she did not comply. At another point in her ordeal he threatened her, saying, “do you want this axe through your forehead?” She was struck to the back of her head and was kicked after she fell to the floor. He stole $24,179.90 from the safe. In the meantime the other robbers took charge of the staff, directing them to lie on the floor and demanding that they hand over items of personal property. The demands were accompanied by threats of violence. Personal property was stolen from several of the staff.

5 It is not known which of the three robbers assaulted the manager. The respondent was convicted of this and the other offences on the basis of his participation in the joint criminal enterprise.

6 Count 1 charged the respondent with the robbery of the manager. Counts 2, 3, 4, 7, 9 and 10 charged the armed robbery of each of the staff members who had handed over personal property to the robbers. Counts 5, 6, 8, 11, 12 and 13 charged the armed assault with intent to rob of the members of staff whose property had not been taken. Count 14 charged the theft of the motor vehicle that was used by the robbers to flee from the scene. The offences in counts 1 – 13 were contrary to s 97(1). Each carried a maximum penalty of 20 years’ imprisonment. The offence in count 14 was contrary to s 154A(1)(b) and carried a maximum penalty of five years’ imprisonment.

7 The Judge found that the offences were objectively serious. He commented on the following features in this respect: they were committed in company; they involved the use of a number of weapons; the victims had been threatened and were vulnerable because they were working late at night and the offence was planned, involving the use of a stolen vehicle, weapons and disguises.

8 The Judge imposed concurrent sentences in relation to each armed robbery, specifying that the non-parole period (five years and six months) was to date from 1 June 2006 and to expire on 30 November 2011. The balance of term (three years and six months) will expire on 31 May 2015. On each of the counts of assault with intent to rob while armed the respondent was sentenced to a sentence which was wholly concurrent with the sentences imposed for the armed robbery offences and comprised a non-parole period of five years and six months and a balance of term of two and a half years. A fixed term sentence of four years’ imprisonment was imposed for the larceny of the motor vehicle. This sentence, too, was wholly concurrent with the sentences imposed on counts one to 13.

The sentencing of the co-offenders for the Woolwich Pier Hotel offences

9 The Judge sentenced a co-offender, Christopher Carr, for his role in the Woolwich Pier Hotel offences. Christopher Carr pleaded guilty to two counts of armed robbery (including the armed robbery of the manager) and to two counts of armed assault with intent to rob arising out of the incident. Ten related offences were taken into account on a Form 1. The sentences were discounted to reflect the utilitarian value of Carr’s plea of guilty. Christopher Carr was sentenced to a non-parole period of four and a half years for the armed robbery of the manager, with a balance of term of three years. The ten Form 1 offences were taken into account in sentencing him for this offence. He was sentenced for the second armed robbery count to a non-parole period of four and a half years with a balance of term of two years and three months. This sentence was wholly concurrent with the sentence imposed on the first count. For the remaining two counts of assault with intent to rob, Christopher Carr was sentenced to concurrent sentences that were subsumed by the sentence imposed on count one.

10 On 13 December 2007 the Judge sentenced John Carr for his role in the Woolwich Pier Hotel armed robberies. John Carr had been jointly arraigned with the respondent on the indictment containing the 14 counts. On the fourth day of the trial he pleaded guilty to each of the counts. He asked the Judge to take into account matters on a Form 1 in sentencing him for the offence involving the robbery of the manager. He was sentenced for this offence to a non-parole period of five years, with a balance of term of three years. In relation to count 2, a further armed robbery offence, he was sentenced to a non-parole period of five years, with a balance of term of two and a half years. This sentence and all the remaining sentences (which were of the same length or less than the sentence for the offence in count 2) were wholly concurrent with the sentence imposed on count 1.

11 There was no distinction between the culpability of the three offenders in relation to the Woolwich Pier Hotel offences. There was no relevant distinction between the three, having regard to their age or history.

12 The Crown has not appealed against the inadequacy of the sentences imposed on Christopher Carr or John Carr.

The January and February offences

13 The January and February armed robbery offences (including those specified in the three Form 1 schedules) all followed a similar pattern. The respondent entered shop premises and threatened a member of staff with a knife (in one case a screwdriver), demanding that the cash from the cash register be handed to him. In some instances he took property belonging to the shop assistant in addition to the cash in the till. On more than one occasion the shop assistant was taken at knifepoint to a storeroom and made to hand over the contents of his or her bag.

14 On those occasions when the respondent stole personal property belonging to the shop assistant he was charged with separate offences under s 97(1) in respect of the property belonging to the business and the property belonging to the assistant. In the period between 1 January 2006 and the date of his arrest, on 15 February 2006, the respondent committed 26 armed robbery offences under s 97(1) and one aggravated offence under s 97(2), which involved the use of a pistol. The 27 offences related to 17 separate events.

15 The majority of the armed robbery offences committed over this period were taken into account on a Form 1 under s 33 of the Sentencing Procedure Act. There were three Form 1 documents. The first, dated 4 October 2007, specified eight armed robberies that were committed between 1 and 9 January 2006 (the first Form 1). The second specified eight armed robbery offences that were committed between 4 and 11 February 2006 (the second Form 1). The third specified six armed robberies which were committed between 17 January and 4 February 2006 and one break, enter and steal offence, which occurred in July 2005 (the third Form 1).

16 The first offence was the armed robbery of David Warat, at the Regent Hotel, Kingsford, on 1 January 2006. The respondent approached Mr Warat, who was working behind the counter in the bottle shop, and threatened him with a knife, demanding that he open the cash register and give him the contents. During the course of the robbery Mr Warat was required to lie on the floor. The respondent removed the cash from the till and took Mr Warat’s iPod, which was lying next to it. The Judge was asked to take the first Form 1 into account in sentencing for this offence. He sentenced the respondent to a non-parole period of four years to date from 31 January 2008 and to expire on 30 January 2012. The balance of the term was two years, which will expire on 30 January 2014.

17 The second offence was the further armed robbery of Mr Warat at the Kingsford Hotel, which was committed on 17 January 2006. The respondent again approached Mr Warat at the counter of the bottle shop, and produced a knife, saying, “I’m back again. Open the till”. Mr Warat did as he was instructed. The respondent removed $250 in cash from the till and demanded that Mr Warat hand over his wallet, which he did. The robbery of the wallet was separately charged and was taken into account on the third Form 1. The Judge sentenced the respondent to a non-parole period of four years, which will date from 31 January 2008, with a balance of term of two years to expire on 30 January 2014.

18 The third offence was the armed robbery of Maria Ferrer, at the Best Cellars Liquor Store, Darlinghurst, which was committed on 15 February 2006. The respondent entered the liquor store and produced a small silver coloured handgun, directing Ms Ferrer to “give me all you’ve got”. He took $241 from the till and ran from the store. Minutes later he was arrested and the police located a silver coloured firearm in the course of searching his motor vehicle. This was an aggravated offence charged under s 97(2) and carried a maximum penalty of 25 years’ imprisonment. The respondent asked the Judge to take into account the second Form 1 in sentencing him for this offence. He was sentenced to a non-parole period of four years and four months to date from 15 February 2008 and to expire on 14 June 2012. The total term of the sentence was six years and six months, which will expire on 14 August 2014.

19 The fourth offence was the possession of a prohibited firearm (the firearm located at the time of his arrest on 15 February 2006), under s 7(1) of the Weapons Prohibition Act 1998. This offence has a maximum penalty of 14 years’ imprisonment. The Judge sentenced the respondent to a non-parole period of three years to date from 15 February 2008 and to expire on 14 February 2011. The balance of term is 18 months and will expire on 14 August 2012.

20 The fifth offence was the armed robbery of Subhash Gupta at Anita’s Newsagency in Surry Hills, which was committed on 10 January 2006. The respondent came behind the counter of the newsagency and took hold of Mr Gupta. He produced a knife and said “get down, get down. Open the till”. Mr Gupta opened the till and the respondent took an amount of cash between $600 and $700. He then ran out of the store. He was sentenced to a non-parole period of three years to date from 31 January 2008 with a balance of term of two years and three months, which will expire on 30 April 2013.

21 The sixth offence was the armed robbery of Geoff Schmaman, an assistant working at the Godfreys vacuum cleaner store, Bondi Junction. This offence occurred on 8 January 2006. The offender approached Mr Schmaman and produced a knife, which he pressed against Mr Schmaman’s abdomen. He instructed him to open the till. He then directed Mr Schmaman to lie down, which he did. The respondent took the cash from the till and ran from the shop. He was sentenced to a non-parole period of three years to date from 31 January 2008, with a balance of term of two years and three months, which will expire on 30 April 2013.

22 The seventh offence was the armed robbery of Robert Said, who was working at the Uber Stone Clothing store, Paddington. The respondent approached Mr Said, who was standing behind the counter and produced a knife, which he pointed towards Mr Said’s stomach. He instructed him to open the till, which he did. The respondent removed about $280. He asked Mr Said for his wallet. Mr Said said he did not have any money in his wallet. The respondent walked Mr Said at knifepoint into the storeroom in order to retrieve the wallet. He removed $60 in cash from it and then left the store. The latter offence was separately charged and was recorded on the third Form 1, which was taken into account in sentencing him for this offence. He was sentenced to a non-parole period of four years to date from 31 January 2008 with a balance of term of two years, which will expire on 30 January 2014.

23 The respondent was apprehended on 15 February 2006 and he was refused bail. His parole was revoked and he served the balance of parole until 1 June 2006, which was the date on which the sentences for the Woolwich Pier Hotel offences were fixed to commence.

The structure of the sentences

24 It will be noted that the sentences for the January and February offences are structured such that for offences one, two, five, six and seven the sentences were fixed to commence on 31 January 2008 and were thus partially accumulated on the sentences imposed for the Woolwich Pier Hotel offences. The sentences for the two offences committed on 15 February 2006, which was the date of the respondent’s arrest, were fixed to commence from that date. They were, thus, accumulated on the sentences imposed for the other offences by 15 days. The reason for this very modest degree of accumulation is not entirely clear.

25 The Judge allowed a discount of 25 per cent to reflect the utilitarian value of the pleas of guilty in each case.

26 The Judge said of the structure of the sentences for the January and February offences:

“I proposed to date the sentence from 31 January 2008. A sentence from 31 January 2008 was proposed because of the number of offences which occurred in January, and I considered it appropriate even though the commencement date was in the future but well within the period of imprisonment for which the prisoner has been sentenced on 4 October of this year, because that date reflects – that is, 31 January 2008, or at least 31 January – reflects the fact that a number of offences were committed in January.” (ROS 05/10/07 2-3)

…

So as we be clear in relation to this, the actual period of the sentence yesterday, that is, following the jury verdict, was for the period from 1 June 06 to 31 May 2015. I had set a non-parole period in relation to those offences of five and a half years, which would have brought it up – that is, the non-parole period – to 30 November 2011. The sentences which I have imposed on these charges, it is correct, have to take into account the plea of guilty. And as I have stated, I consider that so far as the plea of guilty, considering the criminality involved, but requiring that there be additional punishment for those offences, that it is more appropriate to, if you like, add on the non-parole period. In effect, the non-parole period would expire on 14 June 2012. And that is a date which, Madam Crown, I have selected, in particular, having regard to the fact that there would still be a requirement, I consider, that he acquire some skills in his fortieth year, to live independently. In effect, he would still be on parole from 15 June 2012 up until 31 May 2015. And for the reasons which I stated in the sentence yesterday, I consider that it is appropriate that there be some time allowed for him to acquire some skills to live independently.” (ROS 05/10/07 13-14)

The respondent’s subjective case

27 The respondent was aged 32 at the date of sentence. He had a lengthy criminal record dating back to when he was aged 16 years. He had been fined for offences including resisting arrest and assaulting police. Thereafter he had been dealt with in the Children’s Court for offences ranging from breaking, entering and stealing, stealing motor vehicle and a variety of driving offences. As an adult he had been convicted of breaking, entering and stealing and sentenced to perform 200 hours’ community service. On a subsequent occasion he was sentenced to imprisonment for the offence of breaking, entering and stealing. In December 2000 he was convicted of aggravated robbery and breaking and entering with intent to steal and sentenced in the District Court to imprisonment for five years, with a non-parole period of three years. In October 2005 he was sentenced by the Local Court for offences, including the possession of prohibited drugs and shoplifting, to seven months’ imprisonment, commencing on 15 September 2005, with a non-parole period of three months to expire on 14 December 2005. He had been at liberty on parole for less than a fortnight at the date of the commission of the Woolwich Pier Hotel offences.

28 The respondent had an unfortunate childhood. He never knew his father. He was principally raised by his grandparents. He described to the probation officer a childhood characterised by physical and emotional abuse. He had left home at the age of 13 years. At around this time he commenced abusing alcohol and not long after this he moved to the abuse of heroin, cannabis and other drugs. He had never been in paid employment. His Honour observed that:

“He has lived on social welfare benefits and the proceeds of crime which he says has been necessary for the purpose of fuelling his drug habit. He has, then, from the age of thirteen, received no guidance other than from institutions, or prison authorities, whilst he has been serving various sentences.” (ROS 04/10/07 6.5)

The Crown appeal

29 The Crown appeals against each sentence imposed for the Woolwich Pier Hotel offences and each sentence imposed for the January and February offences as manifestly inadequate. The Crown submitted that the sentencing for both sets of offences was attended by patent error and that the structure of the sentences produced an effective sentence that was an inadequate reflection of the respondent’s criminality.

30 The Crown asserted that it was an error to make each of the sentences for the Woolwich Pier Hotel offences concurrent. In the result, it was said, no greater punishment was imposed upon the respondent for the armed robbery of 14 people than for the armed robbery of one. The second asserted error was the Judge’s failure to differentiate between the armed robbery offences, the robbery of the manager being more objectively serious because of the extent of the violence and the amount stolen. It was submitted that the Judge failed to apply the principles explained in Pearce v R [1998] HCA 57; (1998) 194 CLR 610.

31 Mr Ramage QC, who appeared for the respondent, submitted that the sentences for the Woolwich Pier hotel offences were “unusually harsh and severe”. This submission drew on the pattern of sentencing for cases in the category to which the Henry guideline judgment applies. He also pointed to the sentence of four years for the car stealing offence. The maximum penalty for this offence is five years. The Crown conceded that a fixed term of four years for the theft of a motor vehicle may appear harsh, but it was submitted that in the context of this sentencing exercise it remained unduly lenient because the structure of the sentences was such that the respondent had received no additional punishment for the offence.

32 The respondent did not appeal against the severity of any of the sentences imposed for the Woolwich Pier Hotel offences.

33 I will return to a discussion of the Henry guideline judgment in dealing with the January and February offences. For the present, it is sufficient to observe that the Woolwich Pier Hotel offences fell well outside the category of case to which the Henry guideline applies. The submission that the sentences for the armed robbery offences were unusually harsh and severe is unsustainable. Each was an offence committed by offenders acting in company, wearing disguises, armed with an array of weapons carrying out the planned robbery of commercial premises. The robbery of the manager involved a considerable degree of violence.

34 The Woolwich Pier Hotel offences formed part of one episode of criminal offending. In cases involving multiple victims it will often be appropriate to provide some measure of accumulation in sentence, but this is not an invariable rule. The question is whether the sentence for one offence adequately reflects the criminality involved in the commission of the other offences: Mill v R (1988) 166 CLR 59; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. The High Court has emphasised on more than one occasion the flexibility which is to be allowed to sentencing judges: Johnson v R [2004] HCA 15; 78 ALJR 616 per Gummow, Callinan and Heydon JJ at 624, [26]; Markarian v R [2005] HCA 25; (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at 1055, [27]. In my opinion, the sentence of nine years which was imposed for the offence charged in count 1 is capable of adequately reflecting the criminality involved in the series of offences that were committed by the respondent in the course of this episode. It was not an error of principle to determine that the remaining sentences would be served concurrently. It is to be noted that no Crown appeal has been brought against the sentences imposed on Christopher and John Carr. The sentences imposed on John Carr, after allowance for the discount reflecting his late plea, were comparable to those imposed upon the respondent.

35 The central issue raised by the Crown’s appeal was his Honour’s approach to the sentencing of the respondent for the January and February offences. The Crown challenged the structure of the sentences and asserted that his Honour erred in two respects and that these errors led to sentences that were inadequate. The first claimed error was the discount of 25 per cent for the pleas of guilty. The vice in this, it was said, was that it overlooked that the Henry guideline assumes a discount of 10 per cent for a late plea of guilty. Mr Ramage QC complained that the Crown had taken a different position at the sentencing hearing, on which occasion the Crown Prosecutor acknowledged that a discount at the top of the range was appropriate. (T’cpt 14/09/07 18.34) At the sentencing hearing the Crown Prosecutor drew to the Judge’s attention the fact that the range promulgated in the Henry guideline assumed a discount of 10 per cent to reflect a late plea of guilty. (T’cpt 14/09/07 18.40) There is no inconsistency in the approach taken by the Crown.

36 To the extent that a sentencing judge applies the Henry guideline in dealing with an offender for a s 97(1) offence, it is necessary to take into account the fact that the range includes a 10 per cent discount for a late plea of guilty. It follows that, in the application of the guideline, no more than 15 per cent ought be allowed on account of a plea of guilty entered at the first opportunity: R v Collins [2005] NSWCCA 198, [16]; R v Thomas [2007] NSWCCA 269 per Basten JA at [26] and Rothman J at [96]. This is not to say that the Judge necessarily erred in discounting the sentences by 25 per cent. This is because the range promulgated in the Henry guideline was not appropriate in sentencing this offender for multiple armed robbery offences that were committed while he was on parole, he having previously been convicted of serious offences, including aggravated armed robbery.

37 In a case in which the judge determines that the circumstances of a s 97(1) offence, or of the offender, or both, require the imposition of a sentence exceeding the range promulgated in the Henry guideline it is open to him or her to allow a discount of 25 per cent to reflect the utilitarian value of a plea of guilty entered at the first opportunity. What is required is that the sentence bear an appropriate relationship to the Henry guideline in the sense that the increment is a proper reflection of the extent to which the offence is more aggravated than the category of case to which the guideline is directed.

38 The second error of which the Crown complained was the asserted failure to take into account the Form 1 offences consistently with the principles explained in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ at [40]-[42]. The Crown illustrated this by pointing to the fact that the same sentence was imposed in respect of the first and second offences, each of which was committed against Mr Warat at the Kingsford Hotel in similar circumstances. However, in respect of the first offence, the Judge was required to take into account eight additional armed robbery offences detailed in the first Form 1.

39 The Judge explained that he was imposing the same sentence in relation to the second offence because the respondent had targeted the bottle shop as an easy mark, and Mr Warat was vulnerable. Each of the shop assistants was vulnerable in the way that Mr Warat was vulnerable. As I understand his Honour’s reasons, it was that targeting Mr Warat on the second occasion made this offence more deserving of punishment than the similar offences because of the likely impact on Mr Warat of being held-up on two occasions over a short interval. The sentences imposed for each of the offences in which his Honour was asked to take into account offences on a Form 1 were higher than the sentences imposed for offences five and six. I do not accept that the Judge overlooked the fact that it was necessary to take into account the Form 1 offences. It remains that the sentences imposed for each of the armed robberies involved a very modest increment on the guideline range, which given the respondent’s age, history and that he was on parole at the date of their commission exhibited marked leniency. Nonetheless, I do not hold that the individual sentences are manifestly inadequate.

40 The strength of the Crown’s challenge to the sentences imposed for the January and February offences is to their structure.

41 Mr Ramage submitted that it was open to the Judge to view the entire episode from Christmas Day 2005 to 15 February 2006 as a single episode of offending and, having regard to the principle of totality, to determine that the sentences for the later offences should be subsumed in the sentence for the Woolwich Pier Hotel offences, subject to the modest increase in the non-parole period.

42 The effect of the Judge’s sentencing order was that the sentences for the January and February offences were subsumed in the sentences for the Woolwich Pier Hotel offences. This was a clear error. The January and February offences were discrete, serious offences which involved a number of victims. It was necessary that the sentences be accumulated in some measure in order to ensure that the respondent is punished for them. The principle of totality required that the extent of accumulation of be telescoped such that the overall sentence is just and appropriate: Postiglione v R (1997) 189 CLR 295 per McHugh J at 307-308. However, considerations of totality did not justify this sentencing order.

43 The principles that the Court applies in the determination of appeals brought by the Crown are collected by Wood CJ at CL in R v Wall [2002] NSWCCA 42 at [70]. It is not necessary to restate them. The structure of the sentences imposed for the January and February offences produces a result that is so plainly unjust that it is necessary for the Court to intervene to redress it. Because this is an appeal by the Crown it is appropriate to exhibit restraint in re-structuring the sentences so as to produce an aggregate sentence that is at the lower end of the range.

44 I propose to structure the sentences such that the effective aggregate sentence will be one of 11 ½ years. To the extent that the Judge found special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act in relation to individual sentences, this was not the subject of challenge on the appeal. Taking into account the effect of the accumulation that I propose, it is necessary to reduce the non-parole period for the aggravated armed robbery offence. This will result in an effective non-parole period of eight and a half years, which is slightly below 75 per cent of the aggregate sentence. A non-parole period of three years is appropriate in order to give effect to the sentencing judge’s intention that the respondent have the benefit of a lengthy period of supervision on parole. For these reasons the orders that I propose are as follows:

ORDERS
1. Allow the appeal, confirm the sentences imposed in the District Court on 4 October 2007 in respect of the 14 convictions for the offences charged in the indictment presented on 30 April 2007.
2. Vary the orders made by the District Court on 5 October 2007 with respect to the commencement dates of each of the sentences and in relation to the third offence with respect to the proportion between the non-parole period and the balance of the term as follows:
Offence 1 - armed robbery – 1 January 2006 (taking into account the eight offences on the first Form 1) – the respondent is sentenced to a non-parole period of four years to commence on 1 June 2008. The non-parole period will expire on 31 May 2012. The balance of the sentence is two years and will expire on 31 May 2014;
Offence 2 - armed robbery – committed 17 January 2006 – the respondent is sentenced to a non-parole period of four years to date from 30 November 2008. The non-parole period will expire on 29 November 2012. The balance of the sentence is two years and will expire on 29 November 2014.
Offence 5 – armed robbery – committed 10 January 2006 – the respondent is sentenced to a three year non-parole period to date from 30 November 2009. The non-parole period will expire on 29 November 2012. The balance of the sentence is two years and three months and will expire on 28 February 2015.
Offence 6 – armed robbery – committed 8 January 2006 – the respondent is sentenced to a non-parole period of three years to date from 30 November 2009. The non-parole period will expire on 29 November 2012. The balance of the sentence is two years and three months and will expire on 28 February 2015.
Offence 7 – armed robbery – committed 4 February 2006 (taking into account the seven offences on the third Form 1) the respondent is sentenced to a non-parole period of four years to date from 1 June 2010. The non-parole period will expire on 31 May 2014. The balance of the sentence is two years and will expire on 31 May 2016.
Count 4 – possession of prohibited firearm – the respondent is sentenced to a non-parole period of three years to date from 1 June 2011. The non-parole period will expire on 31 May 2014. The balance of the sentence is one year and six months and will expire on 30 November 2015.
Offence 3 – aggravated armed robbery – committed 15 February 2008 (taking into account the eight offences on the second Form 1) the respondent is sentenced to a non-parole period of three years and six months to date from 1 June 2011. The non-parole period will expire on 30 November 2014. The balance of the sentence is three years and will expire on 30 November 2017.

45 BARR J: I agree with Bell JA.

46 BUDDIN J: I agree with Bell JA.

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