R v Gauci - [2017] SASCFC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GAUCI
[2017] SASCFC 166
Judgment of The Court of Criminal Appeal
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Hinton)
13 December 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
On 16 June 2016, the appellant was arrested and charged with aggravated robbery. A day earlier, he intercepted his victim as she was walking away from an ATM machine in John Street, Salisbury, having just checked her account balance. He wrestled her purse away from her and made off.
At the time of committing the offence the appellant was on parole. As a result of his arrest his parole was cancelled under s 74 of the Correctional Services Act 1982 (SA) and he commenced serving the unexpired portion of the sentence of imprisonment in relation to which he had been on parole – a period of one year eight months and two days.
On 30 June 2017, the sentencing Judge imposed a head sentence of three years and two months with a non-parole period of two years, commencing from “the expiration of your cancelled parole on 17 February 2018.” The effect of the sentence imposed and orders made was that the appellant was subject to an effective head sentence of four years, ten months and two days with an effective non-parole period of three years, eight months and two days commencing on 16 June 2016.
The appellant advanced two grounds of appeal: (i) whether, in ordering that the non-parole period of two years be cumulative on the cancelled period of parole, the sentencing Judge set the non-parole period without having regard to the total period of imprisonment that the appellant was liable to serve as required by s 32(2) of the Criminal Law (Sentencing) Act 1988 (SA); (ii) whether, the effective non-parole period being approximately 75 per cent of the head sentence, it was manifestly excessive.
Held per Curiam:
1. The sentencing Judge did not fix a non-parole period in relation to the total period of imprisonment that the appellant was to serve as required by s 32(2). Accordingly, the sentencing discretion has miscarried and the appellant should be sentenced afresh. No need arises to consider the second ground of appeal (at [13]-[21]).
2. The appellant should be sentenced to a total period of imprisonment of four years, ten months and two days commencing 16 June 2016 with a non-parole period of three years and three months commencing 16 June 2016 (at [38]-[39]).
Criminal Law (Sentencing) Act 1988 (SA); Correctional Services Act 1982 (SA), referred to.
R v Lyberopoulos [2017] SASCFC 139, considered.

R v GAUCI
[2017] SASCFC 166
Court of Criminal Appeal: Blue, Stanley and Hinton JJ
THE COURT:

This is an appeal against sentence.
On 15 June 2016, as Ms Richens was walking away from an ATM machine in John Street, Salisbury, having just checked her balance, the appellant intercepted her. With one hand he grabbed her arm, with the other he grabbed her purse. He attempted to pull her toward his car. She resisted. He wrestled her purse away from her and made off.
The appellant was arrested the following day. He was charged with aggravated robbery.[1] He pleaded guilty in the Magistrates Court and was committed to the District Court for sentence.
[1] Criminal Law Consolidation Act 1935 (SA) s 137(1).
At the time of committing the offence the appellant was on parole. As a result of his arrest his parole was cancelled under s 74 of the Correctional Services Act 1982 (SA) with effect on 16 June 2016 and he commenced serving the unexpired portion of the sentence of imprisonment in relation to which he had been on parole – a period of one year eight months and two days.
On 30 June 2017 the appellant was sentenced in the District Court for the aggravated robbery he committed on 15 June 2016. The sentencing Judge imposed a head sentence of three years and two months with a non-parole period of two years, commencing from “the expiration of your cancelled parole on 17 February 2018.”
The effect of the sentence imposed and orders made was equivalent to the appellant being subject to an effective head sentence of four years, ten months and two days with an effective non-parole period of three years, eight months and two days commencing on 16 June 2016.
Two questions arise for determination in this appeal:
1.whether, in ordering that the non-parole period of two years be cumulative on the cancelled period of parole, the sentencing Judge set the non-parole period without having regard to the total period of imprisonment that the appellant was liable to serve as required by s 32(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act);
2.whether the effective non-parole period being approximately 75 per cent of the effective head sentence, it was manifestly excessive.
Did the sentencing Judge comply with s 32(2) of the Sentencing Act?
The appellant’s first ground of appeal focuses upon the following paragraph in the Judge’s reasons:
But for your plea of guilty, I would have imposed a sentence of four-and-a-half years. I reduce that by almost 30% to three years and two months. The sentence will be cumulative on the cancelled parole. In fixing a non-parole period I have had regard to your genuine remorse, your abstinence from drugs whilst in custody and the family support you will have upon your release. I fix a non-parole period of two years also cumulative on the cancelled parole.
The appellant contends that this passage in the Judge’s reasons makes plain that she did not have regard to the command contained in s 32(2) of the Sentencing Act.
The following propositions apply to sentencing an offender who is not a youth for a state offence committed whilst that offender was on parole for a state offence or offences and where at the time of imposing sentence for the fresh offence (i.e. that committed whilst the offender was on parole) the offender is serving the balance of the sentence in relation to which he was on parole (the pre‑existing sentence) and in relation to whom the appropriate form of punishment for the fresh offence is immediate imprisonment:
1.The head sentence imposed for the fresh offence must be cumulative upon the pre-existing sentence or sentences.[2]
[2]    Sentencing Act, s 31(2).
2.As proposition (1) is mandated by the Sentencing Act, a sentencing court will, in determining the appropriate head sentence for the fresh offence, take into account the period of imprisonment to be served by the offender under the pre-existing sentence. That is not to say that the offender receives any discount in being sentenced for the fresh offence derived from the fact that he or she must serve the balance of a sentence of imprisonment for his or her prior offending. It is merely to recognise that imprisonment for the period of the balance of the sentence in relation to which the offender was on parole is relevant to the assessment of the deterrent, punitive and rehabilitative purposes of the sentence imposed for the fresh offence.
3.Having arrived at the head sentence for the fresh offence and if it has been determined that it is inappropriate to suspend such sentence, the court must specify the date on which or time at which the head sentence is to commence or is to be taken to have commenced.[3] If the court fails to specify the date on or the time at which the head sentence for the fresh offence is to commence or be taken to have commenced, the head sentence for the fresh offence will commence upon the expiration of the pre-existing sentence.[4]
[3]    Sentencing Act, s 30(1). “Sentence” in s 30(1) means the head sentence and does not include the non-parole period, hence the commencement of non-parole periods is dealt with separately and expressly in s 30(4).
[4]     Sentencing Act, s 30(6)(b), s 31(2).
4.By virtue of the fact that the offender was on parole at the time of committing the fresh offence he or she will not, as at that point in time, be subject to an existing non-parole period. That is because the non-parole period in relation to the offence or offences for which the offender was on parole will have been cancelled.
5.Once a sentencing court imposes a sentence of imprisonment for the fresh offence and does not suspend that sentence, s 75 of the Correctional Services Act 1982 (SA) is engaged. The unexpired sentence is not subject of an extant non-parole period. The court is required by s 32(1)(a) to fix a single non-parole period in respect of both the pre-existing sentence and the new sentence. Section 32(1)(a) provides:
(1)     Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period; or
…
Subsection 32(2) of the Sentencing Act is also engaged. It provides:
Where the sentence of imprisonment is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
Thus, the sentencing court must impose a non-parole period for the total period of imprisonment that the offender is by virtue of the new sentence and the balance of the pre-existing sentence liable to serve and not simply for the fresh offence.
6.The operative effect of s 32(2) of the Sentencing Act is that an offender who is charged with an offence committed whilst on parole and sentenced to an immediate period of imprisonment for such offence need not apply under s 32(3) of the Sentencing Act for a new non-parole period to be fixed in relation to the offences for which he was on parole because in being sentenced for his or her fresh offending a non-parole period encompassing all extant sentences will be fixed. Thus an offender will only ever have one non-parole period.
In R v Lyberopoulos[5] Hinton J accurately summarised the principles that ordinarily govern the determination of a non-parole period:[6]
… It is settled that a non-parole period reflects the minimum proportion to the head sentence that must be served to achieve the purposes of the head sentence. In Power v The Queen Barwick CJ, Menzies, Stephen and Mason JJ said with respect to the Parole of Prisoners Ordinance 1971 (ACT) (but no less applicable to Part 3 Division 2 of the Sentencing Act):
To read the legislation in the way we have suggested fulfills the legislative intention to be gathered from the terms of the Act, i.e. to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.
In Lowe v The Queen Gibbs CJ said:
No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.
And in The Queen v Robinson, in a passage referred to with approval by Dawson, Toohey and Gaudron JJ in Bugmy v The Queen, King CJ said:
... it seems to me that in deciding whether to fix a non-parole period and in determining its length, the South Australian courts should be guided by the ordinary principles of sentencing. A judge may consider that in a particular case justice requires that the offender spend a minimum period in confinement or that the crime was so outrageous that the conscience of the community would be affronted by the offender’s early release. He may consider that a minimum period of confinement is necessary to deter the offender or others from future criminal activity. He may in assessing the sentence have been influenced by the need to protect the community from the criminal propensities of the offender and may consider that this can be achieved only by a minimum period of detention. He may believe that prospects of the offender’s reformation may be enhanced by a stiff period of detention, although in this regard the Judge would doubtless have in mind the point made by Bray C.J. in Reg. v. Collingridge that the Parole Board is in a better position than the Court to estimate the effect of imprisonment on the offender and the extent to which release under supervision will promote his prospects of rehabilitation. These and other considerations arising out of the accepted sentencing principles may incline a Judge to fix a non-parole period, and, if he decides to do so, should guide the exercise of his discretion as to its duration.
(footnotes omitted.)
[5] [2017] SASCFC 139.
[6] R v Lyberopoulos [2017] SASCFC 139 at [65]-[67].
The task contemplated by s 32(2) is, however, different. It is tempting to treat that task as having two parts, one that seeks to achieve the purposes of the fresh sentence and the other that seeks to address what further portion of the pre‑existing sentence needs be served in order that the purposes of the pre-existing sentence be achieved, but such approach is plainly erroneous. The totality of the period of imprisonment is to be considered and the question asked: what minimum portion needs be served to achieve the purposes of punishment bearing in mind the old and new offending and the total period of imprisonment to be served. The task is not amenable to any greater prescription if for no other reason than that the prior sentence is not revisited. An important factor will be the failure to respond to parole in the past. Thus in fixing a non-parole period under s 32(2) it will be necessary for a sentencing judge to be acquainted with the circumstances relevant to the imposition of the prior offence, the reasons of the judge who imposed sentence, the factors relevant to the commission of the fresh offence and the personal circumstances of the offender. Further, it will be particularly relevant to know to what extent the offender responded to the prison experience and to parole in addition to any explanation for the fresh offending and breach of parole and for the failure of the deterrent effect of the prior sentence and the threat of return to prison.
We turn to the present appeal. The sentencing Judge structured the non‑parole period such that it was only to commence in the future on 17 February 2018 upon the expiration of the prior sentence. For the reasons given above, the combined effect of ss 32(1) and 32(2) is to require a single non-parole period to be fixed in respect of the combination of the balance of the pre-existing sentence and the new sentence. Ordinarily this will require the single non-parole period to commence on the date from which the offender’s parole in respect of the pre-existing sentence was cancelled. It is not necessary for the purposes of this appeal to determine whether there might be exceptional circumstances in which there would be power and it would be appropriate to order that a non‑parole period commence on the expiration of the pre-existing sentence because there were no exceptional circumstances in the present case.
It appears that the Judge overlooked the requirements of ss 32(2). During the course of submissions the prosecutor argued that the non-parole period should not commence “until after the expiration of the current sentence to give adequate reflection to the gravity of the offending before your Honour.” Defence counsel had contended that the non-parole period should commence as of the date that the appellant was taken into custody. No-one referred the Judge to ss 32(2) of the Sentencing Act. The sentencing Judge appears to have acceded to the prosecutor’s submission. With respect to the prosecutor and the Judge, the submission was misconceived. It is predicated on the assumption that the non‑parole period was to relate solely to the fresh offending.
Secondly the Judge did not state that she turned her mind to the question of what minimum portion of the total period of imprisonment would achieve the purposes of punishment in the sense explained above. Early in her reasons the Judge referred to the appellant’s “unexpired parole” and reminded herself that “[a]ny sentence I impose must be cumulative on that period of unexpired parole.” That statement accords with s 31(2) of the Sentencing Act. However, the word “sentence” in s 31(2) does not include the non-parole period. Section 32(2) makes that plain.
Thirdly, nowhere in her reasons did the Judge refer to the offending that resulted in the imposition of the sentence for which the appellant was on parole. That suggests that the Judge did not consider the previous offending, the sentence imposed and the reasons for the imposition of that sentence as relevant to the imposition of a non-parole period for the total period of imprisonment; as if her task in setting a non-parole period was confined to setting the appropriate non‑parole period only for the fresh head sentence she imposed.
Fourthly, the sentencing Judge said:
You committed this offence shortly after being released on parole in September 2016. Whilst on parole, you started using cannabis with a mistaken belief that this would assist you in not succumbing to your heroin addiction again. You did not report to your parole officer because you were concerned about returning positive drug tests and again being returned to gaol. As a result, you panicked and, in your words, went on the run. You reverted to using heroin and the culmination of your ongoing heroin use and having to pay for accommodation whilst on the run meant that you committed this offence in a desperate attempt to obtain money.
Mr Gauci, I accept that you are generally remorseful for your offending. I have had regard to the letter of apology that you have written to the victim and also the letter you have written to the court. I have also had regard to the comprehensive psychological report from Mr Balfour dated 26 May 2017 in which you expressed your contrition for this offending. Your remarks to Mr Balfour show some insight into this offending.
Mr Balfour in his report referred to an earlier report dated 12 February 2004 which I also received and to which I have also had regard. Mr Balfour believes that your main criminogenic risk factor is your chronic opiate addiction. His view is that you have become increasingly socially dislocated and institutionalised into the criminal justice system. He noted that your past periods of imprisonment have not had any significant long term personal deterrent effect upon you re-offending. He considers that your prognosis to cease offending is poor. However, he said you are now displaying some evidence of what he called prison burnout due to having served many years of incarceration. He also notes that you have expressed your desperation to break your offending cycle and you are highly motivated to participate in rehabilitation. Mr Balfour considers that parole is an important mechanism for your rehabilitation and consideration should be given to you having a lengthy period to allow you to be rehabilitated.

These paragraphs are obviously relevant to the appellant’s prospects of rehabilitation and any assessment of the likelihood that he will respond to parole. When the Judge turned to sentence she said:
Mr Gauci, your offending was undoubtedly serious. Your victim was an elderly woman who was simply carrying out her daily affairs and your conduct was frightening for her and has obviously had an ongoing, adverse impact upon her. Furthermore, you have in the past received substantial periods of imprisonment for serious offences and that has not deterred you from re-offending. Your offending was also committed when you had only recently been released on parole. Principles of both general and person deterrence and indeed the protection of the community need to be emphasised in my sentence.
On the other hand, you have expressed your remorse for your offending and your desire to cease offending. Whilst I accept those sentiments are genuine, your pattern of previous offending does not instil much confidence in the court that you will upon release, abstain from using illicit drugs and cease offending. However, you have also shown some insight into your offending and you are at an age now where I suspect you are genuinely intent on not returning to that way of life. Any sentence I impose must emphasise principles of personal deterrence.
Mr Balfour advised that the appellant had become institutionalised into the criminal justice system. He considered that successive longer prison sentences would only reinforce the appellant’s institutionalisation “until he becomes totally dislocated from life in the community.” He observed that the appellant still had links in the community but that those links were “being eroded and strained by his lengthy imprisonment”. Despite considering the appellant’s prognosis poor, Mr Balfour considered “the main deficit in Mr Gauci’s rehabilitation is that he has not worked closely with a forensic psychologist who is experienced and skilled in assisting criminal recidivists.” He thought that the appellant’s rehabilitation would take in the region of two to three years and that he would benefit from a lengthy period on parole and being an outpatient with the Forensic Mental Health Service which would allow him to access specialist forensic psychological services.
No challenge was made to the opinions expressed by Mr Balfour. The Judge said nothing to suggest that she was in disagreement. It is likely that the Judge accepted Mr Balfour’s opinion and considered a non-parole period of approximately five eighths of the fresh sentence appropriate, overlooking the fact that she was required to impose a non-parole period in relation to the total period of imprisonment. Had it been otherwise, she may be expected to have said something to suggest that she felt constrained in some way in the weight she could give to Mr Balfour’s opinion, particularly when one has regard to Mr Balfour’s view regarding the appellant becoming institutionalised and that longer periods in custody risked the diminishment of his support in the community.
For these reasons, the first ground of appeal is made out and the sentencing discretion miscarried. No need arises to consider the second ground of appeal. We proceed to sentence afresh.
Sentencing afresh
The maximum penalty for the offence of aggravated robbery was life imprisonment.
We have set out the circumstances of the offending above. The offence was aggravated by the fact that Ms Richens was over the age of 60 years.
The immediate physical harm sustained by Ms Richens amounted to some soreness in her arm and shoulder. However it is the ongoing anguish and anxiety that weighs greatly with her. In her victim impact statement she tells how she “is constantly looking over [her] shoulder in fear of this happening again.” She is nervous about going out, fearful whenever she goes to the bank, and worried about those around her when she shops. When she talks about what occurred she still gets upset. Obviously this was a traumatic experience for Ms Richens that has ongoing affects.
We have read the transcript of submissions made in mitigation on behalf of the appellant and both of Mr Balfour’s reports. We adopt the sentencing Judge’s summation of the appellant’s personal circumstances. She said:
You are now 40 years old. Your parents separated when you were young. Your father, while close to your two sisters, had a more distant relationship with you. Your father is now deceased.
You have always had, and continue to have, a close and loving relationship with your mother. Of note, during your childhood there was an incident where a neighbour shot his wife causing considerable distress to you and your family.
You completed Year 10 at school, leaving school in Year 11 to obtain full-time employment at a service station as a console operator and tyre fitter. You were continually employed in this capacity until about the age of 21. At that time, you and your then de facto partner had prematurely born twins, who subsequently died. You and your partner were grief-stricken and as a result you were introduced by your father to heroin. It was the genesis of a significant and longstanding addiction to that drug. Whilst you and your former de facto partner subsequently had a son, now aged 16, and a daughter now aged 19, your relationship irreparably broke down. You still have a good relationship with your former partner and you are close to, and proud of both your children.
Your heroin addiction has characterised much of your life. It has led you to offend and caused you to spend many years incarcerated. It has also undermined your ability to work. For the last 15 years, you have been intermittently on the methadone program. However, since being remanded in custody since 2016, I am told you have stopped using heroin and methadone.
The sentencing Judge then referred to the appellant’s explanation for his offending quoted above and to which we have had regard.
The appellant’s antecedents betray the hold his addiction has had over him. His convictions for dishonesty and property offences including criminal trespasses are numerous. No doubt many if not all of the sentences imposed were intended to deter him from future offending. They have failed to do so. To the extent that leniency has been extended to him he has failed to respond.
At the time of committing the aggravated robbery the appellant was on parole for the offences of serious criminal trespass in a place of residence and theft. Those offences were committed on 10 November 2014. The appellant was on parole at that time as well.
The appellant was sentenced for the serious criminal trespass in a place of residence and theft offences on 9 September 2015. The sentencing Magistrate summarised the circumstances of this offending as follows:
On the 10^th of November last year you committed two very serious offences. The first of those was that you entered into a place of residence, a person’s house in other words, with the intention of committing theft and secondly you did commit theft. You took, or certainly you were in the course of taking, from that house a number of items.
It seems from what I was told in relation to the facts that you were interrupted in the course of committing the offences by the homeowner’s brother and you pretended to be effectively a good Samaritan, checking on the property, having noticed that it appeared to have been broken into because there was a broken pane of glass on the door. You left the property but when it was determined that someone had indeed broken in and had taken or had prepared items to be taken, follow-up enquiries were made by the police and you were identified and I think you might have admitted that you were the individual concerned.
I accept that it was a spur of the moment decision to do what you did. I accept that underlying the offending, and this has been a common theme throughout your adult life, was your use of illicit substances, and that of course is an all too common feature of persons such as yourself that come before the court charged with offences of this nature.
Pursuant to s 18A of the Sentencing Act the Magistrate imposed the one penalty of 12 months imprisonment for both offences reduced from 16 months on account of the appellant’s pleas of guilty. That 12 months was to be served cumulatively on an unexpired sentence of one year, seven months and 23 days, resulting in a total period of imprisonment of two years, seven months and 23 days. A non-parole period of 10 months was fixed.
No appeal was instituted against that sentence. The non-parole period was barely a third of the head sentence. Clearly the Magistrate was motivated to provide the appellant with a lengthy period on parole in order that he may have the benefit of supervision and other assistance that the Department of Correctional Services may be able to provide.
Before the Magistrate counsel for the appellant submitted that his prospects of rehabilitation were bright. The Magistrate noted that the appellant had made promises of reform and rehabilitation. The Magistrate said:
… I accept that those statements on your part are made sincerely and with every present intention of you fulfilling those promises. However, I have to be realistic about that. It is likely that similar promises have been made by you or on your behalf, on earlier occasions when you have been subject to sentencing for serious offences of this type.
We accept that the appellant’s offending on 15 June 2016 was not premediated, but borne of his perceived desperate circumstances.
Clearly general deterrence attracts great weight in sentencing for offences such as that committed by the appellant. People using automatic teller machines of any age are vulnerable, the young and the elderly particularly so. Here specific deterrence also attracts significant weight.
In his 2017 report Mr Balfour stated:
In my initial psychological report on him, I described Mr Gauci’s prognosis as being poor (i.e. on a prognosis rating scale of poor, fair, and good). Unfortunately, the reality is that little has improved in his life since I last assessed him that would cause me to review my prognosis from being poor. He has an entrenched drug addiction. Overcoming a drug addiction is very similar to recovering from a chronic physical illness with a remitting physical course. He is now displaying some evidence of prison “burnout” due to having served many years of incarceration. I also believe that he is desperate to break his offending cycle; and is highly motivated to participate in rehabilitation. His rehabilitation will be a lengthy process (i.e. two to three years).
Mr Gauci is very remorseful regarding his offending behaviour. He has exhibited victim empathy. He is deeply ashamed of his actions because he has stooped to a new moral low by targeting an elderly woman as a victim. He never thought he was capable of preying on the vulnerable elderly.
I believe that parole is an important mechanism for rehabilitating a prisoner. I would therefore respectfully suggest to the court that some consideration be given to him having a lengthy parole period to allow him to be rehabilitated despite him viewing parole as being a problem.
The reference to Mr Gauci viewing parole as being a problem is to a statement he made to the effect that in the past he has on occasion preferred to serve his full sentence rather than face the pressures that come with parole. That is not encouraging. Neither is the fact that he was on a lengthy period of parole when he committed the offences subject of this appeal.
We do not consider that the appellant’s prospects of rehabilitation are good. Like the Magistrate we consider that he may genuinely believe in his commitment to change, but his history provides little comfort. His professed insight has not so far translated to effective action. Four matters, however, provide some hope – the fact that according to Mr Balfour he is beginning to suffer “prison burnout” and find it more difficult to serve periods of imprisonment; that he is not only drug free but has weaned himself off the methadone program; that he previously had little in the way of drug and alcohol counselling; and that he has not had the benefit of the intensive assistance of a forensic psychologist. We also bear in mind the risk to the appellant of his losing his support in the community and that it is desirable to avoid reinforcing his institutionalisation and risking him becoming totally dislocated from the community.
In all the circumstances the head sentence imposed by the sentencing Judge for the aggravated robbery is appropriate (i.e. imprisonment for four and a half years reduced by 30 per cent to three years and two months). That sentence must be served cumulative upon the unexpired portion of the sentence imposed by the Magistrate on 9 September 2015 (one year, eight months and two days) resulting in a total period of imprisonment of four years, ten months and two days commencing on 16 June 2016.
We fix a non-parole period of three years and three months commencing on 16 June 2016.