R v Johnson - [2004] NSWCCA 76

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Johnson [2004] NSWCCA 76

FILE NUMBER(S):
60435/03

HEARING DATE(S): 5 March 2004

JUDGMENT DATE: 13/04/2004

PARTIES:
Crown - Respondent
Applicant - Raymond Johnson

JUDGMENT OF: Simpson J Kirby J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0727

LOWER COURT JUDICIAL OFFICER: Blackmore DCJ

COUNSEL:
Crown - E Wilkins
Applicant - P Boulten SC

SOLICITORS:
Crown - S Kavanagh
Applicant - C Watson

CATCHWORDS:
application for leave to appeal against severity of sentence
resist officer in execution of duty
possess housebreaking implements
possess unlicensed firearms
possess prohibited handgun
subjective circumstances
antecedent criminal record
correction of commencement dates of sentences

LEGISLATION CITED:
Crimes Act 1900, s58
Crimes (Sentencing Procedure) Act 1999, Division 3, Part 3, s21A, s44

DECISION:
i. Leave to appeal against each sentence granted
ii. Appeal against each sentence allowed in the following respects: count 1: sentence quashed; in lieu thereof, the applicant be sentenced to imprisonment for a fixed term of fifteen months, commencing on 31 July 2002
counts 2 - 5: all sentences to be adjusted so that they commence, respectively, on count 2: 31 July 2002
count 3: 31 July 2003
count 4: 31 July 2003
count 5: 31 March 2004
Otherwise, appeals against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60435/03
SIMPSON J
KIRBY J
BELL J
Tuesday 13 April 2004

REGINA v Raymond JOHNSON

Judgment

THE COURT: This is an application for leave to appeal against the severity of sentences imposed upon the applicant by Judge Blackmore in the District Court on 24 April 2003, following the applicant’s pleas of guilty to a series of charges on an indictment. The charges and the sentences imposed were as follows:
count one: resist officer in execution of duty: imprisonment for two years with a non-parole period of eighteen months commencing on 30 August 2002;
count two: possess housebreaking implements: imprisonment for three years with a non-parole period of two years and three months commencing on 30 August 2002;
count three: possess unlicensed firearm (Parabellum semi-automatic 9mm pistol): imprisonment for four years with a non-parole period of three years commencing on 30 August 2003;
count four: possess unlicensed firearm (La Franchi SPA Brecia 12 gauge shotgun): imprisonment for a fixed term of two years commencing on 30 August 2003;
count five: possess prohibited handgun (“Thunderblaster”): imprisonment for five years with a non-parole period of two years commencing on 30 August 2004.
In relation to the last count the sentencing judge was asked to, and did, take into account, pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, two further offences listed on a Form 1. These were an offence of having in custody goods that may reasonably be suspected of having been stolen or otherwise unlawfully obtained, and having custody of a knife in a public place.
The maximum penalty applicable to count one is imprisonment for five years; for count two, imprisonment for seven years; and for counts three, four and five, imprisonment for 14 years.
It will be observed that the commencement dates of the sentences were, to some extent, staggered, the sentences in relation to counts three and four made partially concurrent with those imposed in relation to counts one and two, and the sentence imposed in relation to count five made partially concurrent with those imposed in relation to counts three and four. The overall length of the sentences imposed is imprisonment for seven years with a non-parole period of four years, with a commencement date of 30 August 2002.
facts
All offences were committed on 1 February 2001. At 8.55 pm on that day in Cleveland Street Sydney, officers of the State Protection Group of the NSW Police Service stopped a four wheel drive vehicle in which the applicant was a passenger. A bench warrant for the applicant’s arrest was current, the applicant having failed to appear in the District Court on 26 November 1997 in relation to a number of charges of breaking, entering and stealing.
The arresting officers instructed the applicant to alight from the vehicle and put his hands in the air. He was in the process of leaving the vehicle, without his right hand in the air. Police repeated the instruction more than once. The applicant was arrested. In the statement of facts put before the sentencing judge it was asserted that he was “forcibly arrested with the accused resisting”. The nature and detail of the resistance was not specified. This was the conduct which gave rise to the first count on the indictment.
The applicant was searched. He was in possession of a lock picking gun and other lock picking devices. This gave rise to the offence the subject of the second count on the indictment. He was also in possession of a stun gun, which is a prohibited weapon and is the subject of count five. He was also in possession of a NSW Police identification badge, signifying the rank of inspector, and a serrated blade knife. It was possession of these items that gave rise to the two offences on the Form 1. The applicant was also in possession of other items of a suspicious character, but as these did not ultimately result in any specific charges, they should be disregarded. Later in the evening police executed a search warrant at the home of the applicant’s son, where the applicant was temporarily residing. In the bedroom occupied by the applicant they found the nine-millimetre pistol (the subject of count three) and the shotgun (the subject of count four). Also in the premises and located on the execution of the search warrant was a large variety of firearms, ammunition and associated paraphernalia. However, again, these were not the subject of any specific charge and play no part in the present application.
There was plainly some level of struggle on the applicant’s arrest, as a result of which he was taken to St Vincent’s Hospital. Records of the Emergency Department of that hospital were in evidence. They may reasonably be described as terse. Under the heading “Presenting Problem” the following appears:
“A/A in police custody. Kick to face, lac to r temporal region, ? bleeding from both ears, hard collar instu. Denies loc.”
Under the heading “Nursing Assessment Data” appears the following:
“Pt alert, orientated, well perfused. In police custody. Pt removed hard collar at triage.”
In a box on the preceding page the “presenting problem” is identified as “flank pain”.
Although the applicant was arrested at the scene, on 1 February 2001, and remained in custody until sentencing, the earliest of the sentences was specified to commence on 30 August 2002. This was because, by the time he was sentenced by Blackmore DCJ, the applicant was serving sentences imposed on 5 June 2001 by Gibson DCJ in respect of offences committed in March 1995. The longest of those sentences was expressed to commence on 1 February 2001, with a non-parole period to expire on 30 August 2002. (It was agreed that the latter date was erroneous, and should have been 30 July of the stated year.) Blackmore DCJ commenced the sentences for the present offences at the expiration of the non-parole period imposed by Gibson DCJ.
subjective circumstances
The information before the sentencing judge as to the applicant’s subjective circumstances was extremely scanty. He was born on 31 January 1946 and, at the time of sentencing, was fifty-seven years of age. He was fifty-five at the time of the offences. He had a lengthy criminal record, commencing in October 1956, when he was ten years of age and charged with receiving. For this offence he was committed to an institution. The record discloses a series of offences of dishonesty, including, in 1959, two charges of assault and robbery. Thereafter, the record continues (with some breaks, sometimes where the applicant was in custody) until 1981 when he was sentenced to three years’ imprisonment with a non-parole period of eighteen months. No further convictions appear until June 2001 when the applicant was sentenced to imprisonment for two years on charges of stealing and of possession of housebreaking implements. (These were the sentences imposed by Gibson DCJ.) Appeals to this Court against the conviction and sentences were dismissed (R v Johnson [2002] NSWCCA 492, unreported, 6 December 2002). In August 2003 the applicant was sentenced to imprisonment for twelve months on two charges of possession of falsified foreign government passports.
The applicant’s son Aaron (who had been driving the vehicle when the applicant was arrested, and with whom the applicant had been staying) gave evidence in the sentencing proceedings. He described the applicant’s condition on the evening of his arrest. He said his father was bleeding from the ears, and that he suffered pain and discomfort for “quite a few weeks, probably into months” afterwards.
He gave evidence of the applicant’s plans, on release, to live in Proserpine, Queensland, with his wife, and of his ambition to build a boat to use for a scuba diving business. He referred to a previous incident, in 1997, in which the applicant had voluntarily surrendered to authorities a twelve gauge pump action shotgun of which the family had then had possession.
Mr Johnson jr also spoke of the hardship being experienced by his father in gaol, particularly having regard to his age relative to the age of the bulk of the prison population; of the use of drugs by many inmates, in which his father does not share; of his difficulty sleeping; of the differences between his favoured means of passing time compared with those of other inmates; and of his fear of the level of violence in the prison.
The applicant himself did not give evidence. Instead, he provided the sentencing judge with a four page typed statement in which he reiterated much of what had been said by his son and restated the hardships experienced by a prisoner of his age. He made particular reference to his being forced into the vicinity of smokers, he being a non-smoker, and the discomfort this caused him; he referred to violence and drug use, and to the need to be constantly on guard; to inadequacies in the provision of such basic items as food, bed linen, and hot water; and to the noise levels in the gaol. He noted that, as a remand prisoner not then having been sentenced, he was held in maximum security conditions which he found oppressive and distressing. He referred to sudden transfers from one prison to another, interfering with family contact. He referred to the difficulties inherent in sharing a cell with a person selected by the authorities with whom he might be incompatible.
The transcript of the sentencing proceedings discloses that an affidavit sworn by the applicant’s wife was in evidence. This affidavit was not in the papers put before this Court, and neither of the parties was in possession of a copy. The Court was told that it contained the applicant’s wife’s evidence, consonant with that given by his son, that the applicant had, during a gun amnesty, voluntarily surrendered a firearm.
the remarks on sentence
The sentencing judge recounted the facts, principally drawing on the agreed statement of facts which had been put before him. He described the items found as revealing that the applicant “was in possession of an arsenal of weapons”. He noted that that gave “a particular sinister character” to his possession of other items. Presumably, in saying this, his Honour was referring, relevantly, to the possession of the police identification badge. He considered that the number of weapons possessed by the applicant put a complexion on the individual offences different from that each would have had if committed in isolation.
His Honour referred to the applicant’s “extensive criminal history” and said of it the following:
“What can be said, the offender’s criminal history does not entitle him to any positive consideration on sentence. Further, he has committed, yet again, a series of offences for which he has previously been convicted. [His Honour referred to five previous convictions for possession of housebreaking implements.]
Such a history brings into play the potential of maximum penalty to be applied. He continues to disobey the law with regard to this offence and other offences, it is a very serious aggravating feature with regard to this sentence.”
His Honour expressed some scepticism about the applicant’s prospects of living a law-abiding life on his release, but recognised that the passing of time and the ageing process might bring that about. He referred to the pleas of guilty, which he said could not be regarded as having been entered at the earliest reasonable opportunity, except for the fact that they were apparently arrived at by a process of negotiation. Nevertheless he recognised the utilitarian nature of the pleas and determined that the sentences should be discounted by an amount in the range of 20%. He then noted the seriousness of the offences and said:
“… to assault a police officer in the execution of his duty is a serious matter.”
He then moved to the applicant’s assertion that he had been roughly treated in the arrest with the result that he was taken to the hospital. Of this he said:
“He has tendered a hospital record to support that contention, which it does, although I note that the hospital records did not accept the offender’s reported injuries when observed on examination, they were apparently not visible. Ultimately, he was not committed to hospital but released to the custody of police later that night.”
He adverted to the applicant’s typewritten statement and acknowledged the applicant’s isolation in prison and that his fellow inmates were both difficult and dangerous. While saying that he would bear this in mind in sentencing him, he also observed that:
“It might have been more helpful if he achieved that level of recognition and realisation before committing his most recent offences.”
His Honour found that, pursuant to s44 of the Crimes (Sentencing Procedure) Act, special circumstances existed justifying departure from the ratio there specified between non-parole and parole periods.
the application for leave to appeal against sentence
Six grounds were pleaded in the application. They were framed as follows:
“Ground 1His Honour erred by finding that ‘the offender’s criminal history does not entitle him to any positive consideration on sentence’.
Ground 2His Honour erred by finding that the offender’s criminal history ‘brings into play the potential of maximum penalty to be applied. He continues to disobey the law with regard to this offences (sic) and other offences, it is a very serious aggravating feature with regard to this sentence’.
Ground 3His Honour erred by sentencing the applicant in relation to Count One, a charge of resisting an officer in the execution of his duty, as if it was in fact a charge of assaulting a police officer.
Ground 4His Honour erred by finding that ‘the hospital records did not accept the offender’s reported injuries when observed on examination, they were not visible.’
Ground 5His Honour erred by ordering that the sentences should commence on 30 August 2002.
Ground 6The sentences imposed were manifestly excessive.”
grounds 1 and 2
Grounds 1 and 2 asserted "errors of principle" by the sentencing Judge in his remarks concerning Mr Johnson's criminal history. His Honour described that history in these terms: (R/S 8)
"The offender has an extensive criminal history dating back to 1956. Generally, his convictions which have extended from then until the present, with some notable periods when he has not been convicted for any offences, relate to possession of house breaking implements and break and entering premises and stealing. However his criminal history also includes offences for possession of firearms.
In 1981 he was convicted on possession of a shortened firearm. There appears to be an absence in convictions from 1981 until 2001, when looking at the record. However, that impression is somewhat misleading. He was sentenced to imprisonment for 3 years in 1981 and he was due to appear in 1997 for a number of offences of having house breaking implements in his possession, committed in 1995. He was finally dealt with for those matters in 2001 and sentenced to two years imprisonment with a non-parole period of 18 months. I refer to those matters as the 2001 offences. That sentence concluded on 30 January 2003."
Having adverted to Mr Johnson's arrest on 1 February 2001 on the charges which are the subject of this appeal, his Honour then said this: (R/S 9)
"What can be said, the offender's criminal history does not entitle him to any positive consideration on sentence. Further, he has committed, yet again, a series of offences for which he has previously been convicted. In particular he has been convicted for another offence of possession of the house breaking implement. He has been convicted of this offence on 5 occasions and imprisoned before for this offence on two separate occasions and confined to an institution for the same offence when a juvenile.
Such a history brings into play the potential of (the) maximum penalty to be applied. He continues to disobey the law with regard to this offence and other offences, it is a very serious aggravating feature with regard to this sentence." (emphasis added)
These remarks, according to the applicant, contain three "errors of principle":

First, the phrase "the offender's criminal history does not entitle him to any positive consideration on sentence" is presumably a suggestion, according to the applicant, that Mr Johnson's criminal record should not result in any mitigation of sentence. However, the criminal record included long gaps where there were no convictions. Accordingly, it was not a case, on the applicant's submission, in which "no positive consideration or leniency could be extended".
Secondly, the phrase "such a history brings into play the potential of (the) maximum penalty to be applied" betrayed a further error. The circumstances of the offence and the long gap between convictions did not call for a consideration of the maximum penalty.
Thirdly, that in the context of these two errors, his Honour then said that the applicant's prior criminal record was "a very serious aggravating feature". That was a further error, it was submitted, because it could only mean that his Honour had increased the sentence by reason of the prior criminal record.

Before dealing with the first and second suggested errors, reference should be made to a factual difference between the applicant and the Crown. Counsel for the applicant, in written submissions, repeated a submission made to the sentencing Judge that Mr Johnson had not been convicted for a period of 17 years (between 1981, when he was sentenced for various offences, and 1997, when he failed to answer his bail for offences committed in 1995). The Crown suggested, and his Honour found, that the period extended from Mr Johnson's release in 1984 to the time at which he again offended, that is 1995 (a period of 10-1/2 years). In the course of argument Counsel for Mr Johnson moderated his position, suggesting that custodial records established that the applicant was in fact released in October 1982, not September 1984.
Dealing with the first suggested "error", on any view there was a significant gap in the criminal record of Mr Johnson, whether 10 -1/2 years or somewhat longer. A gap in convictions may suggest that a return to crime is less likely (Ryan v The Queen (2001) 206 CLR 207 at 288). It may provide a basis for inferring that there are reasonable prospects of rehabilitation. Depending on the circumstances, leniency may be warranted.
However, Mr Johnson's criminal record, even taking account of the gap, could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime. Leniency was plainly unwarranted, as his Honour said. The nature of the offences committed before 1984 and after 1995 amply justified that view. There was no error of principle in respect of the first matter.

The second and third suggested errors criticise phrases used by his Honour which do require interpretation in order to understand what was being said. What was meant in saying that "such a history brings into play the potential of (the) maximum penalty to be applied" and that such history was "a very serious aggravating feature"? Can it be inferred, as the applicant contends, that his Honour sentenced more harshly because of Mr Johnson's criminal past?
His Honour was sentencing Mr Johnson in the context of the recently introduced provision of the Crimes (Sentencing Procedure) Act 1999 s21A. That section, relevantly, is in these terms:
“21A Aggravating, mitigating and other factors in sentencing
(1)General In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a)the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b)the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c)any other objective or subjective factor that affects the relative seriousness of the offence.
The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law.
(2)Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(d)the offender has a record of previous convictions,
…
The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence.
(3)Mitigating factors …
(4)The court is not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so.
(5)The fact that any such aggravating or mitigating factor is relevant and known to the court does not require the court to increase or reduce the sentence for the offence.”
In terms of s21A(2)(d), Mr Johnson had a record of previous convictions. That record was, therefore (subject to s21A(4)), an "aggravating factor" to be taken into account in determining the appropriate sentence (although, as set out in s21A(5), not necessarily increasing that sentence).
What is a "rule of law" for the purposes of s21A(4)? No guidance is given by the Act, or by authority. However, it is reasonable to regard a sentencing principle, established by the common law, and not abrogated by the Act, as such a law.
In R v Veen [No 2] (1988) 164 CLR 465, the High Court considered the impact of the criminal history of an offender upon sentence. The majority (Mason CJ, Brennan, Dawson and Toohey JJ) wrote: (at 477)
“There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 643 at 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalty.”
Howie J, in R v Shankley [2003] NSWCCA 253, expressed the principle in Veen [No 2] in these words: (para 31)
"The effect of the prior criminal record of the offender, where it is relevant to sentencing, is not to increase the objective seriousness of the offence committed but rather that 'retribution, deterrence and protection of society may indicate a more severe sentence is warranted'."
Here the applicant made the following submission, having again referred to the gap in convictions between the early 1980's and 1995.
"... Thus there were reasons in this case to find that the applicant was capable of leading long periods of crime free existence, that he understood the nature and seriousness of the punishment that was to be imposed upon him and that there were reasonable prospects that he would not return to his criminal activity. This was not a case where the applicant's moral culpability showed a dangerous propensity that required the imposition of condign punishment to give effect to specific deterrence. The applicant had not been to jail since the early 1980s. Any substantial jail sentence imposed on this man who is no longer young was likely to bring about substantial specific deterrence."
His Honour, in using the phrase "aggravating feature", may have been adverting to s21A(2)(d), or he may have been alluding to the principle in Veen [No 2] although, with respect, using language which was not entirely apposite. The criminal record of Mr Johnson, and especially the repetition of certain offences, was capable (as his Honour recognised), of "illuminating" the "moral culpability" of the applicant, and demonstrating the need for deterrence, particular and general. The applicant's five previous convictions for the possession of household implements demonstrated a need for a sentence which would deter him from committing such an offence again. The same can be said of the charges relating to firearms. Viewed in the light of his criminal history, his actions demonstrated "a continuing attitude of disobedience to the law". We believe his Honour was saying no more than that in the passage from his remarks which has been criticised. As such, his remarks conformed to Veen [No 2] and were warranted by the criminal history.
There remains one matter. It was said, in the context of the second suggested "error", that the circumstances of the offence did not warrant his Honour referring to "the maximum penalty" being brought "into play".
Obviously a sentencing Judge, when fixing an appropriate sentence, must have regard to the maximum penalty (R v Zamagias [2002] NSWCCA 17, per Howie J para 11; R v Shankley [2003] NSWCCA 253) recognising that the maximum is directed at the worst class of case (Ibbs v The Queen (1987) 163 CLR 447 at 451/2). The charge of being in possession of implements of housebreaking related to the applicant’s possession of lock-picking devices and a lock-picking gun. This was an objectively serious case of an offence contrary to s114(1)(b) of the Crimes Act. His Honour had regard to the applicant’s antecedent criminal history with respect to the sentence to be imposed for it. His remarks do not suggest that he took it into account in a manner inconsistent with the statement of the majority in Veen [No 2] that is set out at paragraph 34 above. It is to be noted that the maximum sentence was not imposed for this or for any of the offences.
In our view there were no errors of principle. We would dismiss Grounds 1 and 2.
ground 3
The applicant was charged with, and pleaded guilty to, resisting a police officer in the execution of his duty. That offence is created by s58 of the Crimes Act 1900 which is in the following terms:
“58Assault with intent to commit a serious indictable offence on certain officers
Whosoever:
assaults any person with intent to commit a serious indictable offence, or
assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or
assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,
shall be liable to imprisonment for 5 years.”
At the commencement of his remarks on sentence the judge correctly stated the charge. However, towards the end of the sentencing remarks, when moving to a consideration of the seriousness of the various offences and the sentences he was about to impose, his Honour said:
“to assault a police officer in the execution of his duty is a serious matter.”
Again, one page further on, when imposing the sentences, his Honour said:
“In relation to the offence of assaulting a police officer …”
The statement of facts gives no information about the manner in which the applicant was said to have resisted arrest. The police made it clear that Mr Johnson was under arrest. He was asked to get out of the car with his hands up. He failed to put his right hand in the air, despite repeated requests from the police. He had a concealed weapon (a stun gun), as well as a knife (in a pouch around his waist). It was a dangerous situation. Upon his refusal to raise his right hand, he was forcibly arrested. He resisted, asserting that he was physically injured in the struggle.
We accept the submission of senior counsel for the applicant that, generally speaking, an assault on a police officer would be regarded more seriously than resisting arrest. To describe the offence as one of “assault” was to elevate the offence to which the applicant pleaded guilty.
In response, counsel for the Crown pointed out (i) that during the early part of the sentencing remarks the judge clearly and accurately identified the offence; (ii) that s58 is headed “Assault with intent to commit a serious indictable offence on certain officers”; and (iii) that s58 creates a number of offences, all carrying the same maximum penalty of imprisonment. She argued that the criticised passages in the sentencing remarks should properly be seen as no more than a shorthand way of referring to the offence to which the applicant pleaded guilty.
We do not think the error can be explained away so easily. The Court is satisfied that an assault ought generally to be regarded more seriously than a charge of resisting arrest. The fact that the error was made twice, and at the very time the length of the sentence to be imposed was being considered and sentence then passed adds weight to the inference that his Honour misdirected himself in relation to the nature of the offence for which he was sentencing the applicant. The Court is satisfied that there is substance in this ground. Where it takes the applicant is a matter for later consideration.
ground four
Ground 4 concerns an alleged error by the sentencing Judge in respect of the injuries said to have been suffered by Mr Johnson in the course of his arrest. It should be noted that there was no evidence to suggest that the police had used more force than was reasonably necessary in effecting that arrest, such that the injuries might be regarded as a matter in mitigation. Nonetheless, it was suggested on behalf of the applicant, that his Honour was sceptical about the nature of the injuries in fact sustained.
We have above set out what appeared in the hospital records and the judge’s reference to them. Plainly, his Honour was sceptical about the applicant’s case in relation to the injury suffered by the applicant. In our opinion, the scepticism was not warranted. Firstly, the description of the “presenting problem” clearly indicates lacerations to the right temporal region. In another box, it is identified as “flank pain”. The question mark which precedes the reference to bleeding from both ears may well mean that such a condition was not observed on examination, but that does not lead to the conclusion that the reported injury was not accepted in the hospital records. The applicant’s son gave evidence of bleeding from both ears, and this was not challenged. In our view the statement by his Honour was not warranted by the evidence. That gives rise to a question as to what impact the error had on the sentence. In our opinion, this error takes the applicant’s case nowhere. Acceptance of the detail of the applicant’s claims of injury would not have made any difference to the sentence. Nor did the scepticism expressed operate to extend the sentence.
ground 5
The Crown concedes that an error occurred in the specification of the commencement date, because of the miscalculation by Gibson DCJ in sentencing the applicant in relation to the earlier offences. The sentences should be corrected to allow the applicant credit for the month by which the commencement of the sentence was wrongly delayed. That means that (absent any other variation) the sentences imposed in respect of counts one and two will commence, not on 30 August 2002, but on 31 July 2002; the sentences imposed in respect of counts three and four will commence, not on 30 August 2003, but on 31 July 2003; and the sentence imposed in respect of count five will commence, not on 30 August 2004, but on 31 July 2004. The expiration dates, both of the head sentences and non-parole periods, must be correspondingly corrected.
ground 6
In support of this ground, senior counsel for the applicant pointed to the sentences imposed by Judge Gibson as well as those now under consideration. The combined sentences involve a total period of imprisonment for eight years, six months and twenty-nine days, with a non-parole period of five years, six months and twenty-nine days. These sentences, although they involve seven separate charges, relate only to two separate incidents, the first on 25 March 1995 and the second on

1 February 2001. Prior to that, the last charges the applicant faced were for offences committed on 4 October 1977. The applicant was then thirty-one years of age.

Further, senior counsel pointed out that, in the light of Blackmore DCJ’s stated intention to allow a discount for the pleas of guilty of about 20%, his starting point can be calculated to have been approximately eight years and nine months. He contended that this was manifestly excessive.
After careful consideration this Court has concluded that this last submission should not be accepted. The level of the applicant’s criminality was high. He was in possession of a prohibited weapon and of a knife in a public place and of two unlicensed firearms, as well as a false identification representing that he held police officer status. We do not think the total of the sentences has been shown to be outside the range of a sound sentencing discretion.
What remains for consideration is the error in relation to the categorisation of the first count. In our opinion, his Honour did overstate the nature of the first offence for which the applicant was to be sentenced. In relation to that count, we would quash the sentence, and re-sentence the applicant to a fixed term of imprisonment for 15 months. The reason for imposing a fixed term is that the sentence will be wholly subsumed in the sentences applicable to the remaining counts. Unfortunately for the applicant, that makes no difference to the overall sentence. All other sentences must be varied, but only so as to adjust the commencement dates.
The orders the Court proposes are:

Leave to appeal against each sentence granted:
Appeal against each sentence allowed in the following respects:
count 1:sentence quashed; in lieu thereof, the applicant be sentenced to imprisonment for a fixed term of fifteen months, commencing on 31 July 2002;
counts 2 – 5: all sentences to be adjusted so that they commence, respectively, on:
count 2: 31 July 2002
count 3: 31 July 2003
count 4: 31 July 2003
count 5: 31 March 2004.
Otherwise, appeals against sentence dismissed.

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LAST UPDATED: 21/04/2004