R v James; James v The Queen

[2014] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v James; James v R [2014] NSWCCA 311

Hearing dates:

3 December 2014

Decision date:

15 December 2014

Before:

Basten JA at [1];
McCallum J at [17];
R A Hulme J at [62]

Decision:

Orders made 3 December 2014:

(1) Dismiss the Director's appeal.

(2) Grant leave to the offender to appeal and allow his appeal.

(3) Quash the sentence passed at first instance and, in substitution therefor, sentence the offender to a term of imprisonment with a non-parole period of 12 months commencing on 19 November 2013 and expiring on 18 November 2014 and a balance of term of 6 months expiring on 18 May 2015.

(4) Direct that the offender be released to parole immediately.

Order made 15 December 2014:

(5) Revoke the non-publication order made on 3 December 2014.

Catchwords:

CRIMINAL LAW - sentencing - Crown appeal - offender's sentence reduced for assistance to authorities including undertaking as to future assistance - appeal on ground of failure to fulfil the undertaking - dispute as to alleged failure - proper approach to determining that issue

CRIMINAL LAW - sentencing - application for leave to appeal against sentence by offender - judge nominated maximum penalty as starting point - no basis to support imposition of maximum penalty

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 50, 95, 350
Criminal Appeal Act 1912 (NSW), s 5DA
Criminal Legislation (Amendment) Act 1992 (NSW), Sch 3
Judiciary Act 1903 (Cth), s 35A

Cases Cited:

Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR 372
Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 at [43]
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Olbrich [1999] HCA 54; 199 CLR 270
Regina v O'Brien (Court of Criminal Appeal, 10 June 1993, unreported)
Regina v Stavropoulos [2007] NSWCCA 333

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (appellant)
Regina (respondent in offender's appeal)
Dean Andrew James (respondent in Crown appeal; applicant in own appeal)

Representation:

Counsel:
L. Brasch (Applicant)
G. Rowling (Crown)
Solicitors:
P. Wiggins (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/165209

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-11-26 00:00:00

Before:

Maiden SC DCJ

File Number(s):

2013/165209

Judgment

1. BASTEN JA: There are two matters before the Court arising out of the sentencing of Mr James on a charge of being an accessory after the fact to an aggravated robbery. The first appeal was brought by the Director of Public Prosecutions under the Criminal Appeal Act 1912 (NSW), s 5DA(1). That section confers a right of appeal to this Court "against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking."

1. In the second matter, the offender sought leave to appeal against the sentence imposed for that offence. The offender was sentenced on 26 November 2013. The alleged failure to comply with the undertaking was said to have occurred on 13 May 2014 when the offender "declined to give evidence" against a co-accused. The Director's appeal was lodged promptly on 20 May 2014. The offender's application for leave to appeal against sentence (mistitled "Notice of Appeal") was only filed on 20 November 2014, that is, less than two weeks before the hearing in this Court. The delay in filing the application for leave to appeal was not explained, but counsel advised the Court that relevant extensions of time had been granted and that the last had not expired. That may be accepted.

1. The principal ground of the offender's appeal was that the sentencing judge erred by commencing his calculation with "the notional starting point of the sentence as five years being the maximum penalty for the offence." The Crown Prosecutor presented (understandably) little more than token resistance to this ground. Where a person is serving a non-parole period of 20 months and there is a simple challenge to the sentence, the administration of justice requires that the appeal be listed promptly.

1. The difficulty was resolved in the present case because the Court was able to deal at the hearing with both the Director's appeal and the application by the offender. Orders were made which resulted in the offender being entitled to immediate release on parole. Reasons were reserved.

1. I agree with the reasons given by McCallum J both with respect to the Director's appeal and with respect to the offender's application. The following observations concern the unsatisfactory statutory provision with respect to the circumstances addressed in s 5DA.

Section 5DA - failure to fulfil undertaking

1. Section 5DA was inserted in the Criminal Appeal Act by an amendment in May 1992: Criminal Legislation (Amendment) Act 1992 (NSW), Sch 3(2). It was, no doubt, at least in part a response to the express recognition in recent decisions of this Court that an offender may obtain leniency on the ground that he or she cooperated with law enforcement authorities and, further, had indicated a willingness to cooperate in the future: see R v Cartwright (1989) 17 NSWLR 243; R v Gallagher (1991) 23 NSWLR 220. (The difficulties which can arise in giving effect to these principles were noted in Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR at [30] by French CJ, Hayne, Kiefel and Bell JJ.) In Regina v O'Brien (Court of Criminal Appeal, 10 June 1993, unreported), Gleeson CJ stated:

"A practical difficulty that arises from time to time concerns cases in which offenders, in return for offers to co-operate with law enforcement authorities, have received reduced sentences on that account, and have subsequently failed to comply with their undertakings. In some circumstances where the offer of future assistance has been an offer to give evidence, and an offender has actually or constructively refused to give evidence when the occasion arose, the offender might expose himself to charges of contempt of court, or of perjury. More commonly, however, the problem has arisen in the context of attempts by the prosecuting authorities to have this Court intervene to correct or adjust the original sentence so that it reflects the sentence that would have been imposed if the offer of assistance had not been made. In such cases difficult questions have arisen as to the conditions which must be satisfied before the Court may intervene. It was in an endeavour to meet those difficulties that s 5DA was enacted."

1. After noting that the power conferred by s 5DA(2) was discretionary, Gleeson CJ noted that "problems may arise as to the exercise of the discretion", for example, where an offender refuses to cooperate because of duress. He continued:

"The purpose of s 5DA is not punitive. The purpose is to enable this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where the sentencing process can be seen, with the benefit of hindsight, to have miscarried by reason of the circumstances set out in the section."

1. Read in context, the comment that the section was not "punitive" should be understood as meaning that the offender was not to be punished for submitting to duress. Put neutrally, the offender has, by his or her own conduct, become disentitled to a benefit which had been conferred on the basis of a future contingency which has not come to pass. The public interest pursuant to which the benefit was conferred has been lost, but the offender was under no obligation, it may be assumed, to act in the public interest.

1. In another sense, however, the effect of intervention by the Court is undoubtedly punitive: in circumstances where a discount of up to 25% may be granted for assistance to authorities, some or all of which may relate to future assistance, the failure to fulfil an undertaking may result in a significant extension of a custodial sentence. This may be highly relevant in circumstances where there is a factual dispute as to whether the power in s 5DA is engaged. The offender submitted that the Director needed to prove non-fulfilment to the criminal standard.

1. The attraction to an offender of the benefit which may be obtained by proffering assistance to law enforcement authorities, combined with the very real possibility that the assistance will not ultimately be forthcoming, has resulted over the last 22 years in a significant number of cases in which s 5DA has been invoked by the Director. There have, however, been very few cases in which there has been a factual dispute as to whether the section was engaged.

1. Broadly speaking, factual disputes may arise at four points, namely:

(a)   whether an undertaking has been given;

(b)   the content of the undertaking;

(c)   the discount given for the undertaking, and

(d)   whether the undertaking has not been fulfilled.

1. The first two disputes will often arise together. An issue which arose in O'Brien was whether an undertaking needed to be in written form: the Court held that it did not. If there is no written undertaking, there may well be disputes as to whether an undertaking has in fact been given, and as to the related issue, namely its content. Although there may be some expectation that further assistance will be forthcoming (by giving evidence against co-offenders), either no undertaking had been given or not one as to the content of which the Court could be satisfied: Regina v Stavropoulos [2007] NSWCCA 333. In the course of giving the principal reasons in that case Hall J, at [57], set out the terms of a commonly used form of undertaking. It is common practice now for an undertaking to be given in writing, although that may not always occur.

1. So far as the third issue is concerned, the Crimes (Sentencing Procedure) Act 1999 (NSW) expressly requires that a court imposing a lesser sentence on account of assistance to authorities must state, where a discount is given for both past and promised future assistance, the amount by which the penalty has been reduced for each reason: s 23(4)(c). Absent such an indication, in a case where the undertaking has not been fulfilled, this Court is significantly hampered in determining by what amount the sentence should be increased.

1. As explained by McCallum J, this case turned on the ability of the Director to prove the fourth factual element, namely that the undertaking had not been fulfilled. The procedure for varying a sentence, pursuant to s 5DA, is fraught with difficulties where such an issue requires resolution. Some difficulties arise at the factual level: this Court is an inappropriate forum for the determination of factual disputes. The procedure appears to have worked in the past because there have been few factual disputes and certainly none, so far as this Court or the parties are aware, as to whether there has been a failure to honour the undertaking. On one view, which the Court was not prepared to entertain, the dispute as to the telephone conversation between two prosecution officers and the offender could only be resolved by each of three people giving oral evidence and being cross-examined.

1. The second kind of difficulty is one of a principled nature. Because the consequence of failing to give an undertaking may be a significant increase in the offender's penalty, it is unsatisfactory that both factual and discretionary issues should be dealt with for the first time in this Court, from which there is no right of appeal. Indeed, as most cases will involve no issue of general principle, there is no real likelihood of any challenge to the order made by this Court: cf Judiciary Act 1903 (Cth), s 35A.

Non-publication order

1. At the outset of the hearing of the appeal the Court made an order suppressing publication of the identity of the offender. Given the circumstances as to the trial of the co-offender and the order for the release of the offender on parole, the Court cannot be satisfied that such an order remains reasonably necessary, as required by the Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8. Accordingly the order made on 3 December 2014 should be revoked.

1. McCALLUM J: On 26 November 2013, Dean James was sentenced for an offence of being an accessory after the fact to an aggravated robbery. The sentence was reduced by 25 per cent for assistance to law enforcement authorities, as allowed under s 23 of the Crimes (Sentencing Procedure) Act 1999. The reduction appears to have reflected both past assistance and an undertaking to give assistance in the future.

1. On 3 December 2014, the Court heard two appeals against that decision. One was an appeal by the Crown under s 5DA of the Criminal Appeal Act 1912 on the ground that the offender failed to fulfil the undertaking as to future assistance. The second was an appeal brought by the offender against the original sentence. For convenience, I will refer to the offender as the applicant.

1. At the conclusion of the hearing, the Court made orders determining both appeals, reserving its reasons. The orders were:

(2)   That the Crown appeal be dismissed.

(3)   That leave to appeal be granted to the applicant and that his appeal be allowed.

(4)   That the sentence passed at first instance be quashed and, in substitution therefor, that the applicant be sentenced to a term of imprisonment with a non-parole period of 12 months commencing on 19 November 2013 and expiring on 18 November 2014 and a balance of term of 6 months expiring on 18 May 2015.

(5)   That the applicant be released on parole immediately.

1. These are my reasons for joining in the making of those orders.

1. At the proceedings on sentence, the Crown relied on a written statement of facts which may be summarised as follows. At about 2am on 24 May 2013 the victim, Jason Terry, drove to a service station at Warners Bay. The applicant and his co-offender, Sean O'Brien, arrived shortly afterwards. The applicant spoke to the victim near the petrol bowsers. They shared a cigarette and the applicant offered to sell some drugs to the victim. The victim agreed and they arranged to meet at a nearby parking lot. At the meeting point, the applicant got into the victim's car, sitting in the front passenger seat. The co-offender stayed in the applicant's car with the applicant's two dogs.

1. The applicant and the victim spoke for 10 to 15 minutes. The conversation was "of a personal and intimate nature". The co-offender approached the car, opened the door and began to repeatedly punch the victim to the head and face. He held an object to the victim's neck and repeatedly said 'Give me your money'. The victim did not see the object, as it was dark, but thought it was a knife. The applicant then grabbed the victim around the neck, pulling him back towards himself. The victim felt like he was being suffocated. The co-offender continued to assault the victim repeatedly, punching him to the face and body and screaming at him to give him money. The victim tried to hold onto his wallet, which was in his back pants pocket, and begged the offenders to leave him alone and let him go home. They responded "We're going to slash your tyres and if you go to the police we'll come after you" (the statement of facts does not specify which offender made that statement).

1. The applicant kept saying to the victim not to go to the police. He then slashed the rear left tyre of the car. The offenders left in the applicant's car having taken sunglasses, a gold chain, a packet of cigarettes, a bag of clothing and the victim's car key with them. The victim walked home where he woke his mother and informed her of the assault. He then went to hospital.

1. The offenders were identified a few days later on CCTV footage seized by police. When approached by police the applicant made admissions to being present while the co-offender robbed a man and named the co-offender. He also gave approval for police to search his property. He agreed to participate in an electronically recorded interview during which he made "full and frank admissions" to assisting the co-offender to leave the scene of the robbery.

1. In a later interview, the applicant told police that, during the assault, he attempted to protect the victim from the co-offender by pulling him towards himself. He admitted to grabbing the victim around the throat but said it was in an effort to cover him up whilst he was being punched by the co-offender. He said the gold chain which was around the victim's neck had previously broken and the co-offender must have grabbed it. The applicant told police that he was scared the victim would report the incident and that he would be sent to gaol. As a result he told the victim not to go to the police. He took the victim's car keys and punctured the left rear tyre to stop the victim from being able to go to the police. He told police the co-offender threw the victim's car key away. The applicant said that he and the co-offender then left and went to the premises of a local drug dealer where they sold the gold chain in exchange for drugs. He admitted to police that he had been drinking prior to the incident and had also taken some drugs. The applicant told police that it was never his intention to rob the victim. He admitted that he assisted the co-offender to leave as he was scared the victim would report the incident to police. The victim suffered minor cuts and bruising to his face and neck and bruising and ongoing pain to his right leg.

1. The applicant was charged with being an accessory after the fact to the aggravated robbery committed by the co-offender. The circumstance of aggravation was the infliction of actual bodily harm. The aggravated robbery carried a maximum penalty of imprisonment for 20 years: s 95 of the Crimes Act 1900. As an accessory after the fact to that offence, the applicant was liable to imprisonment for a maximum of 5 years: s 350 of the Act.

1. The applicant was arrested on 28 May 2013. At that time, he was on parole, having been released on parole on 28 February 2013. Following his arrest, he was refused bail and remained in custody until he was sentenced. On 27 June 2013 the parole order was revoked, requiring the applicant to serve the balance of term of his earlier sentence until 29 November 2013.

1. The sentence proceedings came before Maiden DCJ on 19 November 2013. The applicant had legal representation arranged for that day but terminated the retainer of both the barrister and the solicitor on the morning of the hearing. The hearing proceeded with the applicant being unrepresented.

1. The material before the sentencing judge included a report from Mr Constable, a psychologist who had been treating the applicant for a number of years for anxiety and depression against a background of sexual abuse at a Catholic boys' home as a child. The report recorded the applicant's belief, with which the psychologist agreed, that the applicant had turned to drugs as a way of coping with the sexual abuse. The judge accepted that evidence.

1. There was also a report initially prepared for the Drug Court by a registered nurse employed in the Drug Court programme. The report spoke favourably of the applicant's engagement with that programme, stating that although he struggled with abstinence, "his honesty and motivation was high" and that he engaged in counselling "with good insight and eagerness to participate in his recovery". His participation in the programme was terminated, not due to non-compliance but to his "inability to consent to a treatment variation" after the health team suggested fulltime residential rehabilitation. The sentencing judge accepted that the applicant has "considerable skills and the support of persons around him" but noted that it was his drug dependence which had led to the criminal behaviour for which he stood to be sentenced.

1. The applicant has an extremely lengthy criminal record reflecting his long-term addiction to drugs.

1. On the strength of the material put forward on behalf of the applicant, the judge found that he had "a very difficult upbringing". As to the circumstances of the offence, the judge accepted that the applicant had acted so as to protect the victim from further harm from the co-offender.

1. The Crown did not submit that the applicant's offending fell within the worst category of offences of that kind. The sentencing judge nonetheless imposed a sentence which started at the maximum penalty of 5 years. The judge then allowed a discount of 25% for the plea entered in the Local Court and 25% for assistance to authorities, giving a total term of 30 months. As to the discount for assistance to authorities, his Honour did not differentiate between past and future assistance: cf s 23(4)(c) of the Crimes (Sentencing Procedure) Act. In determining the level of discounts to be allowed, and their combined effect, the judge did not refer to any of the statutory provisions or to any authorities in this Court on the subject. He simply accepted concessions made by the Crown.

1. The judge found that there were special circumstances warranting a departure from the statutory ratio of the non-parole period to the balance of term based on the fact that the applicant's period in custody would be difficult due to his decision to give evidence against his co-offender. On that basis, his Honour specified a non-parole period of 20 months. The sentence was fixed to commence on 19 November 2013 (the date of the sentence hearing), which allowed concurrency of only 11 days with the balance of term to be served for the previous sentence after the parole order was revoked. That is not relied upon as a separate ground of appeal by the applicant but is noted in support of a ground of appeal that the sentence was manifestly excessive. In the result, it was not necessary for this Court to consider that ground.

1. The trial of the co-offender commenced on 12 May 2014. The victim gave evidence on that day. The Crown had attempted to have the applicant brought to court to give evidence the following day but was informed by the court that the applicant would be attending only by video-link. After an unsuccessful attempt to confer with the applicant by video-link, the Crown ultimately spoke to him by telephone at 9.20am on the day on which he was due to give evidence. The conversation was not recorded electronically. The only evidence before this Court as to what was said is a typed version of the solicitor's handwritten notes of the conversation. The handwritten notes were not in evidence before this Court. The typed notes are annexed to affidavits filed within the last month. There is no evidence to suggest that they were provided to the applicant at any earlier point in time for his review or consideration.

1. On their face, the notes are an incomplete account of the conversation. The applicant does not accept their accuracy and has sworn an affidavit setting out his recollection of the conversation where it differs relevantly from that recorded in the notes. He denies that he did not intend to give evidence in accordance with his undertaking.

1. Taking the notes at face value, it may be accepted that they provide some evidence that the applicant was reluctant to give evidence and that he was warning the Crown that there was more to the story than was reflected in the version recorded by police. At no point, however, is he recorded as having made any unequivocal statement refusing to give evidence or refusing to give evidence in accordance with his statements to police. When pressed on that issue, the Crown relied upon two statements recorded in the notes, as follows:

"You are better off not calling me

I will smash you out of the water".

And, later,

"I am going to buckle your case".

1. The applicant disputed the accuracy of the notes as to those statements. It is necessary to put his version in context. The applicant said that he had wanted to speak with the prosecutor earlier and that he and his wife had made many attempts to contact the office of the DPP to that end. He was upset that the prosecutor who called him on the day of the trial was not aware of that. He said to the prosecutor:

"There are things concerning the victim and myself knowing each other prior to the incident and that my co-accused knows it all."

1. His recollection of the first statement set out above was that he said words to the effect:

"you are better off not calling me.

What Sean and the defence know will smash you out of the water".

1. He denied saying the words:

"I am going to buckle your case."

He says his words were:

"It will buckle your case".

1. The applicant's account reveals a real possibility that at least parts of the conversation were misheard, misunderstood or wrongly transcribed in significant respects. Even disregarding his evidence, it is clear that the notes give an incomplete account of the conversation. Further, even if the words spoken were precisely as recorded by the solicitor, this Court is in no position to assess the significance of the particular statements relied upon by the Crown. The Crown has not directed any submissions to a comparison of what was said during the telephone conference with the evidence the applicant had undertaken to give. The appeal rests on the contention that the remarks set out above in themselves establish a failure to fulfil the undertaking to give evidence in accordance with the applicant's statements to police.

1. The Crown relies on an affidavit sworn by the trial advocate stating that, after the telephone conversation, he "formed the view that the [applicant] did not intend to give evidence in accordance with his undertaking and decided not to call him as a witness in the prosecution". That view is irrelevant to the issue raised by this appeal, which is whether it is established that the applicant failed to fulfil his undertaking.

1. At the proceedings on sentence, the applicant gave evidence verifying his statements to police referred to in the undertaking. Nothing in the notes of the conversation with the applicant on the morning of the hearing provides any basis for concluding that the applicant was going to resile from that version of events if called as a witness in the trial. There is simply no basis on which this Court can determine what he would have said in evidence (had he been called) and whether that evidence would have fulfilled his undertaking. As already noted, the applicant denies in his affidavit relied upon in the appeal that he did not intend to give evidence. He states that he accepts that he gave the undertaking and that at all times he intended to honour it. He notes, correctly, that he is not in a position to comment on the trial advocate's decision not to call him as a witness.

1. The victim's evidence in the trial did not identify either offender in clear terms. At the very least, the applicant could have given evidence as to his presence at the relevant time and as to the identity of the co-offender, linking them to the victim's evidence as to what occurred.

1. The trial advocate did not tell the trial judge that the applicant had refused to give evidence. At no stage was the applicant in fact called to give evidence, whether in the absence or the presence of the jury. In the appeal, the Crown accepted that the applicant could have been called in the trial, at least on a voir dire. He frankly acknowledged that the decision not to do so was due to impracticalities (specifically, a difficulty establishing an audio-visual link).

1. The power of this Court under s 5DA to vary a sentence that the sentencing judge reduced because of an undertaking to assist law enforcement authorities is enlivened only if the Court is satisfied that the person has failed wholly or partly to fulfil the undertaking. Plainly, the Act contemplates that this Court must reach a state of being actually satisfied of that fact. The Crown accepted that the Court would have to be "comfortably satisfied" of that fact. For my part, I consider it to be a matter which, by parity of reasoning with the decision of the High Court in R v Olbrich [1999] HCA 54, would have to be established beyond reasonable doubt but it is not necessary to determine that issue in the present appeal. For the reasons I have explained, on either approach, I am not satisfied that the applicant failed to fulfil his undertaking. On the strength of that conclusion, it followed that the Crown appeal had to be dismissed.

1. As to the applicant's appeal, the first ground is:

His Honour erred by nominating the notional starting point as five years being the maximum penalty for the offence.

1. In my view, this ground is clearly made out. The Crown did not submit that the applicant's conduct was within the worst category and the judge made no finding to that effect. His Honour said:

Because of the nature of the seriousness of the offence of robbery which this matter applies to, the court must find that it is of a high level of seriousness and thus the court is of the view based upon the lengthy history of the offender that the court should impose a maximum term of 5 years.

1. Those remarks suggest that the decision to start at the maximum was informed by two considerations: the seriousness of the offence committed by the co-offender and the applicant's criminal record. The seriousness of the robbery was undoubtedly relevant but was not determinative of the seriousness of the applicant's offending, especially in the face of his Honour's finding that the applicant acted so as to protect the victim from further harm from the co-offender.

1. Further, the judge had made a number of findings that were capable of mitigating the sentence. I accept that his Honour was not obliged to reduce the sentence on that account but a decision not to do so warranted explanation. It is possible that, although the judge recorded the maximum penalty of 5 years at the outset of his remarks, he overlooked that factor in stating the starting point of 5 years. On any analysis, in my view it was wrong to start at that point.

1. The second ground of appeal is:

His Honour erred in the manner in which he used the offender's criminal record.

1. As already stated, having referred to the seriousness of the offence to which the applicant was an accessory after the fact, the judge said "thus the court is of the view based upon the lengthy history of the applicant that the court should impose a maximum term of 5 years". Whilst it is not entirely clear from those remarks what relevance his Honour attributed to the criminal record, they suggest an approach inconsistent with authority. His Honour appears to have relied upon the prior convictions to impose a sentence greater than the range appropriate to the particular offence, which his Honour assessed as being of "a high level of seriousness", without finding that it was of the highest (worst) level of seriousness.

1. From the same remarks, it can be concluded that the judge did not take into account the subjective mitigating factors found in favour of the applicant, which is the basis of ground 3 in the appeal.

1. In all the circumstances, I am satisfied that error has been established and that the applicant's appeal must be allowed. It is necessary for this Court to exercise the sentencing discretion afresh: Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 at [43].

1. The seriousness of the applicant's criminality lay in the fact that, knowing the co-offender had assaulted the victim by punching him repeatedly in the head and demanding money, he assisted the co-offender to flee by slashing a tyre of the victim's car and driving the co-offender away from the scene. It was undoubtedly a serious offence but it was by no means the worst case.

1. An assessment of the subjective case is difficult. The applicant's criminal history and the ongoing challenge he evidently faces resisting the insidious call of addictive drugs do not augur well for his prospects of rehabilitation, as reflected by his experience with the Drug Court programme. However, the force of that consideration is tempered to some degree by the fact that his use of drugs in the first place reflects the devastating impact of childhood sexual assaults at the hands of a Catholic brother entrusted with his care at a tender age.

1. As already noted, the judge fixed the sentence to commence on the date of the sentence hearing. That was notwithstanding the fact that the Crown had suggested an earlier starting date of 9 October 2013, the date on which the plea was entered in the Local Court.

1. The applicant tried to make a submission to the judge that the sentence should start earlier (so as to allow greater concurrence) but the judge interrupted him, accusing him of being unable to answer the question and telling him not to say anything further. In fact, it is clear from the transcript that the applicant was about to address the issue of concurrency appropriately, submitting that, whilst on parole (before his arrest) he had been undertaking a TAFE course and "going really well". He has expanded upon that evidence in an affidavit sworn in the appeal and relied upon on the issue of re-sentence.

1. In all the circumstances, I consider that a sentence of three years is warranted.

1. The Crown did not take issue with the two discounts allowed by the sentencing judge. In light of my conclusion that the applicant did not fail to fulfil the undertaking, I consider it appropriate to allow the same discounts, giving a sentence of 18 months with a non-parole period of 12 months. The applicant has already served that period since the date on which he was sentenced. Had the appeal been heard earlier, the Court would have been required to direct his release on parole at the expiration of that period: see s 50 of the Crimes (Sentencing Procedure) Act. Accordingly, upon the determination of his appeal, he was entitled to be released on parole immediately.

1. Those were my reasons for joining in the orders set out above. I agree with Basten JA that the non-publication order should be revoked.

1. R A HULME J: I agree with McCallum J.

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Decision last updated: 19 December 2014