R v Kapitano

[2012] QCA 288

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kapitano [2012] QCA 288

PARTIES:

R
v
KAPITANO, Darren Glen
(applicant)

FILE NO/S:

CA No 176 of 2012
DC No 480 of 2011
DC No 237 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2012

JUDGES:

Holmes and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.  Application for leave to appeal against sentence granted.

2.  Appeal allowed to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 12 years imprisonment for three counts of armed robbery and three counts of attempted armed robbery – where applicant had extensive criminal record – where applicant pleaded guilty – where offences committed whilst at large – where applicant will have to serve another two years and two months on sentence from which he absconded – where applicant was a heroin addict who had undergone rehabilitation and who had actively assisted in the rehabilitation of others – whether the sentence imposed was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(2)(l), s 156A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Booth [2001] 1 Qd R 393; [1999] QCA 100, not followed
R v Brown[2003] QCA 372, considered
R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered
R v Keating [2002] QCA 19, considered
R v King [2003] NSWCCA 352, considered
R v Matthewson [2001] QCA 4, considered
R v Rose [2002] QCA 134, considered
R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, considered
R v Styles [2003] QCA 374, considered
Re Attorney-General’s Application [No 1] under s 26 of the Criminal Procedure Act (R v Ponfield) (1999) 48 NSWLR 327; [1999] NSWCCA 435, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S R Lewis for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. HOLMES JA:  I have read the reasons for judgment of Atkinson J and agree that the sentence of 12 years imprisonment was, in the circumstances of this case, manifestly excessive.  I agree with the orders her Honour proposes.

2. FRASER JA: I have had the advantage of reading the reasons for judgment of Atkinson J.  I agree with those reasons and with the orders proposed by her Honour. 

3. ATKINSON J: On 18 June 2012, the appellant Darren Glen Kapitano pleaded guilty in the District Court to three counts of armed robbery, three counts of attempted armed robbery, one count of receiving stolen property with a circumstance of aggravation, and one count of dangerous operation of a motor vehicle with a circumstance of aggravation.

4. He was sentenced to 12 years imprisonment on each of the six counts of armed robbery and attempted armed robbery, two years imprisonment for the count of receiving, and on the count of dangerous operation of a motor vehicle, he was imprisoned for five years and his driver’s license disqualified absolutely.  He also pleaded guilty to five summary offences: driving without a licence, failing to take reasonable care and precautions in respect of a syringe or needle, failing to stop a motor vehicle, assaulting or obstructing a police officer, and failing to properly dispose of a needle and syringe.  On each count he was imprisoned for one month.

5. All sentences were to be served concurrently with 821 days spent in pre-sentence custody declared to be time spent under the sentence then imposed.

6. He seeks leave to appeal the sentences of 12 years imprisonment imposed on counts 1 to 6.

7. After he has served those sentences he will be required to serve a further two years and two months imprisonment of a sentence imposed in New South Wales and a sentence transferred from Queensland to New South Wales for the following reasons.

8. The offences of which he was convicted were committed while he was at large.  In May 2002, he had been convicted of two counts of armed robbery in company, 10 counts of armed robbery, two counts of attempted armed robbery and one count of dangerous operation of a motor vehicle, on various dates in April and May 2001.  He was given a head sentence of 13 years with a declaration that they were serious violent offences, which was reduced to 11 years on appeal due primarily to his cooperation with authorities.  The full-time release date under that sentence was 13 May 2012.

9. That sentence was transferred to New South Wales on 5 April 2006.  Once transferred he was dealt with in New South Wales for seven counts of robbery armed with an offensive weapon which were committed in April 2001 before the Queensland offences for which he was at that time serving a sentence.  He confessed to those crimes once he was serving the term of imprisonment for the Queensland offences.  He was sentenced to four years imprisonment on each count, to be served concurrently with the last four years of the sentence transferred from Queensland, i.e., from 14 May 2008 until 13 May 2012 with a parole eligibility date of 13 May 2011.

10. However, he absconded from custody on 12 March 2010 while on a release programme at TAFE for educational purposes.  Within six days of absconding, he committed the further offences of armed robbery.

    Circumstances of offending

11. At about 1.00 pm on 18 March 2010, the applicant entered an Express Foodstore on the Gold Coast.  After asking the cashier for change, he then said that he had a condition, and asked for money for medication while reaching for his pocket and warning that he had a handgun.  The cashier gave him $380 and he left.  He later admitted to police that he entered the store with the intention of obtaining money for drugs and had a plastic gun.

12. At about 11.00 am on the following day, he went to a supermarket on Chevron Island and, after the one customer in the store left, approached the cashier with a needle and syringe filled with dark red fluid.  He told the cashier that he had AIDS and threatened to stab her with the needle unless she gave him the contents of the till.  She walked backwards, saying she would call the police, and when she picked up the phone the accused left the store.  He later admitted entering the store with a syringe full of blood to obtain money for heroin.

13. At about 11.34 am, the applicant entered a pharmacy in Southport and made similar threats to a 20 year old female pharmacy assistant with the needle full of blood.  She gave him the contents of the till, totalling $500, and when he demanded she lifted the till tray to show that there was no money under the till.

14. At about 2.15 pm, the applicant went to a surf shop in Miami where he again threatened the shop assistant, who was a 16 year old girl, with a “needle full of AIDS”, saying that he would stab her regardless of whether she called the police, because he needed the money.  She gave him $675 and he left.  The total obtained from the three robberies was $1,555.

15. At about 5.15 pm, the applicant entered a newsagent in Palm Beach, where he purchased a drink and then pulled a plastic replica black hand-gun out of his pants and threatened the owner, demanding the money from the till.  When the owner recognised that it was only a plastic replica and refused, he left the store.

16. The following day, on 20 March 2010, at about 1.28 pm he went to a liquor store in Burleigh Heads and threatened the store assistant with the needle, saying it had HIV in it; however, she threw a bag at him and demanded that he leave, which he did.

17. On 22 March 2010, the applicant was apprehended in a police pursuit of his vehicle.  He was found with a debit card, HSBC card and UK driver’s licence not belonging to him.  In the course of the chase, he was travelling approximately 80 km/h in a 50 km/h zone, veering onto the wrong side of the road, making erratic turns and failing to stop at a stop sign, until eventually colliding with another vehicle on a roundabout, which was driven by a 78 year old woman.  The accused lost control of the vehicle and after crashing fled on foot.  The two passengers in the vehicle had to be removed by police and were treated for minor injuries; the elderly female driver with whom the applicant collided suffered minor bruising and chest pain and was released from hospital seven hours later.  A certificate of analysis indicated that he had 0.13 mg/kg of Morphine and 0.02 mg/kg of Codeine, levels indicative of recent use of heroin.

    The sentence imposed

18. The sentencing judge had regard to the seriousness of the offences committed whilst at large, that the applicant pleaded guilty to an ex-officio indictment, that he had distressing personal circumstances, the significant steps taken towards rehabilitation, the effect on the victims, that he had written letters of apology to them, that the offending took place over a short period of time and no actual violence was used, the report of the psychologist, Dr Barling, that the applicant was institutionalised from his incarceration at a very young age and that he would be required to serve the unexpired part of the sentence in New South Wales cumulatively.  His Honour correctly regarded personal deterrence and protection of the community as the most important sentencing principles in this case.  The application for leave to appeal is not based on any perceived error in the factors to be taken into account in the exercise of the sentencing discretion but rather that taking those factors into account and the relevant comparative sentences the sentence imposed was manifestly excessive.

    Personal circumstances

19. The applicant was born on 12 April 1971, and so was 38 years of age at the time he committed the offences.  He has changed his name several times, from Balazs to Bryzak, to Thomas, and now to Kapitano.

20. The applicant has an extensive criminal history that commenced in his childhood and continued with such consistency through his adulthood that he has spent only 18 months of his adult life out of custody.

    Offences as a child

21. The applicant’s lengthy criminal history commenced when he was 13 years of age.  From 1984 to 1988, he came before the Children’s Court 15 times, accumulating various convictions for offences involving a motor vehicle: unlawful use of a motor vehicle (22 counts), attempted unlawful use of a motor vehicle (1 count), dangerous driving (1 count), breaking and entering (8 counts); dishonesty offences: stealing (4 counts), forgery (12 counts), uttering (12 counts), receiving (2 counts), attempted false pretences (1 count); escaping from custody on one occasion, and attempting to escape lawful custody on another; and violent offences: unlawful wounding (1 count), assault occasioning grievous bodily harm (1 count), and unlawful assault (1 count). 

    Offending as an adult

22. His offending continued as an adult.  From May to August 1988, he committed various offences including possessing a motor vehicle with a circumstance of aggravation, breaking and entering and stealing.  In December of that year, he committed assault occasioning bodily harm.  In 1989, he again broke and entered a dwelling with intent, committed assault with intent to prevent detention and possessed a motor vehicle with intent to deprive amongst other motor vehicle related offences including dangerous driving and unlawful use of a motor vehicle on two separate occasions.  For those offences he was sentenced in April 1990 to 18 months’ imprisonment.  In December 1990, he escaped from legal custody.

23. In December 1992, he was convicted of wilful and unlawful damage to property, for which he was sentenced to one month imprisonment.

24. In 1994, he again engaged in motor vehicle and dishonesty offences and committed assault occasioning bodily harm and was placed on probation for two years from October 1995.  That probation order was breached one month later when he broke and entered a dwelling with intent and committed stealing and false pretences, and again in February 1996 when he again broke and entered a dwelling, unlawfully used a motor vehicle and stole.  He was given a head sentence for these offences of three and a half years with a parole eligibility date after 18 months.  That parole eligibility period was reduced to 12 months on appeal.

25. In 1997, he committed various minor offences including possession of a pipe, using threatening, abusive or insulting words and breach of probation order for which he was dealt with in the Magistrates Court and fined and imprisoned for nine months with a non-parole period of three months.

26. In January 1998, he was charged and convicted of receiving, unlawful use of a motor vehicle, breaking and entering a dwelling with intent, stealing and the unlawful use of a motor vehicle with a circumstance of aggravation.  On those charges he was sentenced to three years imprisonment, to be served concurrently with his previous sentence, and was eligible for parole from December 1998.

27. He also has an extensive traffic history with 20 entries between July 2000 and May 2001, five entries between May and July 1994, and eight entries between August 1988 and November 1989.

    Mitigating features

28. The applicant argues that leave to appeal should be granted and the appeal allowed on the basis that the sentence of 12 years was manifestly excessive in all of the circumstances.  In particular, he relies on the following mitigating factors.

29. Dr Norman Barling is a registered psychologist with 26 years experience in clinical practice.  He examined the applicant on 18 April 2012, prior to his sentence.  Following testing, he found that the applicant suffered from Post-Traumatic Stress Disorder, is likely to be self-harmful and had a very high level of neuroticism, with a “poor prognosis” and “modest” treatment goals.  He is likely to experience psychosocial problems in society upon his eventual release, however he has made positive progress in his rehabilitation from heroin dependency, and with ongoing psychological and rehabilitative support he may be able to contribute to society.  He does not otherwise suffer from any intellectual disability; Dr Barling described him as of above average intelligence. 

30. The applicant had an unfortunate childhood.  One of his sisters died when he was 16, the other was murdered when he was 21, and his mother died when he was 25.  Upon his mother’s death, he discovered that the man he thought was his biological father in fact was not.  He was frequently beaten by that man.  He was first institutionalised when he was nine years old for accompanying older boys on a “joy ride”.  He was later held in various youth centres, including the Warilda Children’s Home, the Leslie Wilson Youth Centre, Boys Town and Westbrook Training Centre.  During his time in correctional care he was bullied, beaten and kept in solitary confinement for infractions.  He was first detained in an adult prison at 15 years of age, where, for his own protection he reported that he was placed in a 5 x 2 metre cage at the Boggo Road Prison.  He has, as already mentioned, spent most of his adult life in correctional facilities.  Dr Barling suggested that his institutionalisation is consequent upon his treatment at an early age.

31. The applicant has also had a substance addiction since 1992, and has exhibited suicidal tendencies.  He has been taking anti-depressant medication since 1993.

32. The applicant has expressed remorse for his actions, including sending letters of apology to each of the complainants.

33. The applicant has also made a significant contribution to his own rehabilitation and to the progress of others while in prison.  He has completed a Diploma of Management and had the support of a Pastor with whom he had regular contact at the Prison Fellowship.  He also completed courses in Mental Health First Aid and Peer Support, as well as a Certificate 1 in Construction.  He is a member of the Volunteer Peer Support Network and the Prisoner Advisory Committee.  While in prison, he has volunteered within educational programmes and acted as a counsellor and mentor for other prisoners, and assisting them with legal processes.  He also set up two programs to assist young prisoners: Bicycles Behind Bars, a program under which prisoners build bicycles for the Starlight Foundation and victims of crime, and Making A Difference, which gives young prisoners access to anger management programs, budgeting advice and traineeships, amongst other services, as well as involving them in community projects.  He has written detailed manuals for these programs as well as an autobiographical, quasi-philosophical or inspirational book of 34 pages.  The Prison Services Manager described him as “inspirational in his work and support” for other prisoners.

34. The offences involved, although involving threats, did not involve actual violence and to that extent were less serious than those of which he has been previously convicted.  When a complainant reacted or refused to give him the money, he did not attack them with the syringe but rather immediately left the premises.  He was cooperative with police and participated in an interview in respect of all counts except the receiving matter.

    Comparative cases

35. There are a number of cases which suggest that the range of offending of this nature, in the case of young offenders without significant criminal histories, might be between six and eight years.

    Younger offenders

36. In R v Styles,[1] a sentence of six years imprisonment for armed robbery of various small stores using a large ten-inch knife and a blood-filled syringe.  The stores robbed were three convenience stores and a mixed business store.  Similar sums of money were stolen, and although fewer premises were affected, the applicant in that case conducted some of the robberies in company, and on each occasion his face was wholly or partially obscured.  He had a similarly troubled childhood, having run away from home at age nine and lived in the street for several years.  At [18] of the judgment, Williams JA with whom Muir and Holmes JJ (as their Honours then were) agreed said that a “review of the comparable cases indicates that a sentence in the range six to seven years is appropriate for this type of offence”.  However, the offender in that case was considerably younger and not affected by the lengthy criminal history with which the applicant in this case has to contend.

    [1][2003] QCA 374.

37. R v Keating,[2] was a case of remarkably similar facts to those at hand, which suggests that, except for the age of the current applicant, a sentence in the vicinity of eight years would be appropriate.  In that case, the applicant had been convicted of seven counts of armed robbery, two of attempted armed robbery and one of unlawful use of a motor vehicle, committed over a period of nine days.  In addition, he was convicted of one count of common assault and one count of fraud. The robberies targeted small business such as florists, newsagents or pharmacies, with the applicant armed with a syringe full of blood.  As with the current applicant, no actual violence was used in the robberies, and where resistance was offered the applicant left without obtaining any money.  The applicant was also addicted to heroin, and the victims were mostly relatively young females.  He also had a lengthy and serious criminal history including serious fraud charges and assault, receiving and unlawful use of a motor vehicle.  The applicant was, however, substantially younger, being only 23 years of age.  Thomas JA, with whom McPherson JA and Ambrose J agreed, said that the appropriate range would be between eight and 10 years.  The sentence of eight years was reduced to seven and a half years on other grounds not relevant to this appeal except that they show that the court should have regard in imposing sentence to the overall term of imprisonment which will be served.[3]

    [2][2002] QCA 19.

    [3][2002] QCA 19 at p 10.

1. The applicant in this case was 38 years of age at the time of his offending and so does not have the youth of the applicants in the cases discussed above in his favour. 

   Older offenders

2. The applicant in R v Brown[4] was 37 years of age at the time of the offending.  He was convicted of eight counts of armed robbery and sentenced to nine years imprisonment, which was not disturbed on appeal.  Unlike the applicant in the instant case, seven of the eight robberies were committed on financial institutions, with only one being on a small business, namely a travel agent.  As a consequence, the revenue extracted from the robberies was considerably greater than in this case, at $37,520.95.  The applicant used a gun on some occasions and a knife or syringe on at least one other.  That applicant also had a lengthy criminal history, although it appears not as extensive as the current accused, involving dishonesty offences, as well as two assaults and unlawful use of a motor vehicle.  That imbalance may be adjusted for the fact that Brown did not suffer from the same substance addiction as the current applicant.  Brown was given some credit for the role he played in apprehending a sex offender, but that was balanced against an apparent motivation to kill that offender, and lacked the degree of goodwill involved in the present applicant’s extensive positive activities while in custody.  Brown, like the current applicant, cooperated with police and expressed remorse through letters of apology. 

   [4][2003] QCA 372.

3. The applicant in R v Rose,[5] was 41 years of age at the time he committed 11 robberies, eight of which were armed and one with personal violence, and one attempted armed robbery, along with nine lesser counts.  The robberies were committed while on parole, and involved the use of a syringe filled with blood as a threat.  His sentence of 10 years was not disturbed on appeal.  However, notably the sentence of 10 years was imposed in respect of only one armed robbery, which involved a bank, and he was sentenced to nine years imprisonment on the other counts, which involved smaller establishments: liquor vendors, a supermarket, a fast food store and a railway station.  He had such an extensive criminal history that Fryberg J observed that “[i]t is something of a wonder that he was able to commit so many offences because most of his time since 1992 has been spent in gaol.”

   [5][2002] QCA 134.

4. Finally, in R v Matthewson,[6] a sentence of 10 years for eight counts of armed robbery, two of which were in company, together with nine counts of burglary, was not disturbed on appeal.  That applicant was of a not dissimilar age of 30 at the time of the offences, and the robberies involved small convenience stores, a pharmacy and a fast food store.  In the course of the robberies he stole a similar, although slightly larger, amount of money, $2,800.  He used a knife to demand money, but no actual violence was used.  As with the current offences, the robberies were amateurish and lacking in planning.  The offences of burglary involved stealing furniture from antique shops and electrical goods and other items from other commercial premises.  The total of those goods came to $30,000.  The defendant was also a heroin addict and had a criminal history, although not as serious as the current applicant, involving stealing, unlawful use of a motor vehicle, and other offences that were committed predominantly over the course of one year.

   [6][2001] QCA 4.

5. The circumstances of offending in Brown were worse than those in the current case, and although the applicant’s criminal history in that case was not as extensive, it was still lengthy and not accompanied by the same extent of mitigating factors which the sentencing judge in this case had before him.  In Matthewson the applicant stole more property but was slightly younger and had a significantly less serious criminal history.  Rose committed more serious offences and whilst on parole while the applicant committed his offences whilst at large.  Committing offences whilst at large must be seen as even more serious than committing offences whilst on parole.

   The effect of a cumulative sentence

6. In Re Attorney General’s Application No 1 (Ponfield),[7] the New South Wales Court of Criminal Appeal set out a list of factors that reflect “enhanced seriousness in the quantum of sentence”.  They included that “[t]he offence is committed whilst the offender is at conditional liberty on bail or on parole”.  In R v King,[8] Grove J, with whom Handley JA and Adams J agreed, expressly extended that factor to cases where offences are committed whilst at large, although noting that such an extension went without saying.  His Honour said at [38]-[39]:

   “It is true that the tabulation of factors in the guideline judgment in ReAttorney General’s Application No 1 (Ponfield) (1999) 45 NSWLR 327 does not include a factor in terms of the offence being committed whilst the offender is at large after escaping from lawful custody. However, the first stated factor of enhanced seriousness is commission of an offence whilst at conditional liberty on bail or parole and it scarcely would need expression that it is, in a scale of seriousness, above that to commit an offence when one is not lawfully at liberty at all.

   I recognise that counsel for the respondent does not contend that the status of the respondent as an absconder from detention is not capable of being regarded as an aggravating feature, but to foreclose submissions in the future, I would expressly state that “offence committed whilst the offender is unlawfully at large” should notionally be added to the table in Ponfield.”

   [7](1999) 45 NSWLR 327 at [48].

   [8][2003] NSWCCA 352.

7. Ponfield was a “guideline” judgment and therefore must be considered with circumspection for the reasons set out by the High Court in Wong v The Queen[9] and Markarian v The Queen.[10]  Nevertheless it helpfully sets out that offending whilst at large is an aggravating factor.

   [9](2001) 207 CLR 584 at [74]-[75].

   [10](2005) 228 CLR 357 at [37]-[39].

8. This is also balanced by, as the sentencing judge recognised, the cumulative aspect to the current sentence which will require him to serve the balance of his previous sentence in New South Wales once released from his current term of imprisonment in Queensland. The result would be the same were he an absconder from a sentence being served in Queensland because of the effect of s 156A(1)(a)(i), (b)(iv) and (2) of the Penalties and Sentences Act 1992 (Qld) which would require the court to impose a cumulative sentence.

9. The principle of totality generally requires that the whole of the effective sentence imposed be appropriate to the criminality of the offending, either by allowing sentences to be served concurrently or by reducing the length of cumulative sentences.[11] The sentence in this case cannot be ordered to be served concurrently and the sentencing judge in this case was not sentencing for the offending behaviour which led to the applicant’s imprisonment in New South Wales and so the totality principle cannot be strictly applied but s 9(2)(l), which requires the court to have regard to “sentences already imposed on the offender that have not been served” is nevertheless relevant to the appropriate sentence to be imposed.

   [11]Mill v The Queen (1988) 166 CLR 59 at 63.

10. Section 156A was introduced with a suite of amendments to the Penalties and Sentences Act.[12]  There has been some disagreement about whether and how the totality principle should operate in the face of these amendments.

    [12]Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld) s 8.

11. In R v Booth,[13] McPherson JA, with whom Thomas JA and White J (as her Honour then was) agreed, determined that this legislative provision had the effect of abrogating the effect of the totality principle:

    “Section 156A(2) now requires that the sentences for the subject offences must be ordered to be served cumulatively upon any other term of imprisonment that the offender is liable to serve. Did the application of the totality principle nevertheless require his Honour here to adjust the head sentence by reducing its duration so as to offset the impact of the change in the law effected by s 156A(2)? In my respectful opinion, it did not. … It would have been a wrong exercise of the sentencing discretion to attempt to circumvent that quite specific legislative direction by reducing the sentence currently being imposed so as to reinstate the practice which s 156A(2) has plainly displaced. In the present context, the only relevant function of the totality principle in sentencing for offences committed some time apart formerly was to offset the impact of ordering them to be served cumulatively. Ordering that they be cumulative is what the sentencing judge is now required by s 156A(2) to do in the case of sentences for offences committed on parole.”

    [13][2001] 1 Qd R 393 at [20].

12. In Booth, White J added what has been described as the astute observation, while generally agreeing with the principal judgment, that:

    “It must be kept in mind that notwithstanding the new serious violent offence provisions, s 9(1) still applies when sentencing such an offender who must be punished ‘in a way which is just in all the circumstances.’”[14]

    [14][2001] 1 Qd R 393 at [30].

13. In R v Shillingsworth,[15] Williams JA, with whom Thomas JA and White J agreed, determined with reference to Booth that the amendments to the Act made in 1997 must be read subject to the general considerations enunciated in s 9 of that Act. His Honour said:

    “The amendments made to the Penalties and Sentences Act in 1997 must be read as subject to the guidelines set out in s 9 of that Act. The legislature must be taken to have recognised that those guidelines would continue to apply to the new sentencing regime. In addition to s 9(1)(a) referred to by White J in Booth, for present purposes s 9(2)(l) and (m) are of particular significance. When imposing sentence in this case the court was obliged by those provisions to have regard to “sentences already imposed on the offender that have not been served” and “sentences that the offender is liable to serve because of the revocation of orders made under this or another Act for contraventions of conditions by the offender”. Those provisions were not expressly referred to in the majority judgment in Booth, and the reasoning in Booth must be read in the light of that.  The essential proposition in the passage from the reasoning of McPherson JA quoted above is that the ‘totality principle’ derived from Mill cannot directly apply. That is undoubtedly correct. The sentencing judge ought not to endeavour to assess the overall criminality of the past and present offences and impose a sentence which reflects that total criminality. The function of the sentencing judge in the circumstances is to impose a sentence having regard to the criminality of the current offences. But in determining the appropriate penalty for that criminality the sentencing judge is required by s 9 of the Penalties and Sentences Act to place the sentence in its proper context, namely that the sentence will be imposed in circumstances where it will be cumulative upon completion of the sentence imposed for the past offences.”

    [15][2002] 1 Qd R 527 at [26].

14. In R v Cowie, McPherson JA, Keane JA and McMurdo J discussed the cases that had gone before and affirmed in their joint judgment that both the consequences of amending legislation and s 9 of the Penalties and Sentences Act should be taken into account in fixing the appropriate sentence.  Their Honours said:[16]

    “[W]e accept that the inevitable declaration [that the offender has been convicted of a serious violent offence] is relevant in the consideration of what sentence is “just in all the circumstances” in order to fulfil the purpose of sentencing which is prescribed by s 9(1), consistently with what was said in Shillingsworth and Herford.”

    [16][2005] QCA 223 at [19].

15. It must follow that, despite the observations made specifically in relation to the operation of s 156A in Booth, the sentence imposed must have regard to the fact that the applicant has two years and two months left to serve on a sentence in New South Wales once the current sentence has been served.  It is therefore necessary to consider what sentence would be just in all the circumstances given the cumulative sentence which will necessarily follow it.

    Conclusion

16. It appears from the comparative sentences referred to above that the appropriate sentence for offending of this type by an offender with the applicant’s unenviable criminal record whilst at large but who nevertheless has all of the mitigating factors in his favour including a plea of guilty on an ex officio indictment, being a heroin addict who had undergone rehabilitation and who had actively assisted in the rehabilitation of others and who did not commit the offences in company or disguised and who did not use actual violence and who will have to serve another two years and two months imprisonment cumulatively would have been 10 years imprisonment.  It follows that the sentence imposed of 12 years was manifestly excessive.

17. I would grant the application for leave to appeal the sentences imposed on counts one to six on the indictment, allow the appeal only to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.