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R v Kendrick

R v Kendrick

Case [2015] QCA 27 6 March 2015

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Kendrick [2015] QCA 27

PARTIES:

R
v
KENDRICK, Nathan John
(applicant)

FILE NO/S:

CA No 136 of 2014
DC No 17 of 2012
DC No 236 of 2012
DC No 61 of 2014
DC No 62 of 2014
DC No 63 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Beenleigh

DELIVERED ON:

6 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

20 October 2014

JUDGES:

Fraser and Morrison JJA, and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     The application for leave to appeal is granted.

2.     The appeal is allowed.

3.     In respect of each of Counts 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, set aside the order that the applicant be imprisoned for a period of four years.

4.     In lieu thereof, sentence the applicant in respect of each of Count 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, for a period of three years.

5.     Direct that the terms of three years imprisonment are to be served concurrently with each other, but cumulatively to the term of four years imprisonment on the activation of the suspended sentence, but noting that the terms of imprisonment activated on the suspended sentence are to be served concurrently with each other.

6.     Set aside the orders made on 2 May 2014 that the date the applicant is eligible for parole be fixed at 1 March 2016.

7.     Order that the date the applicant is eligible for parole be fixed at 15 October 2015.

8.     Otherwise affirm the orders made on 2 May 2014.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – THE TOTALITY PRINCIPLE – where the applicant was convicted of three counts of armed robbery in company, one count of armed robbery and one count of unlawful use of a motor vehicle – where for the four counts involving robbery the applicant was sentenced to four years imprisonment, to be served concurrently, but cumulative on a previously suspended sentence imposed in 2012 – where the applicant was sentenced in 2012 with a head sentence of five years which was suspended after 12 months for an operational period of five years – where as a result the applicant was now serving eight years imprisonment, four years which was previously suspended, along with the additional period of four years – where the applicant was to serve one-third of the sentence before becoming eligible for parole – where the applicant does not contend that there was demonstrable error in principle by the learned sentencing judge – where the applicant contends that the new cumulative sentence has a crushing effect on him as he is of a young age – whether the cumulative sentence offended the totality principle

Penalties and Sentences Act 1992 (Qld), s 147

Azzopardi…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kendrick

Details

AGLC: R v Kendrick [2015] QCA 27
Case: [2015] QCA 27
Decision Date: 6 March 2015

CaseChat Overview and Summary

The applicant was convicted of three counts of armed robbery in company, one count of armed robbery, and one count of unlawful use of a motor vehicle. Following his conviction, the applicant was sentenced to four years imprisonment, to be served concurrently, but cumulatively on a previously suspended sentence imposed in 2012. The applicant had been sentenced in 2012 with a head sentence of five years which was suspended after 12 months for an operational period of five years. As a result, the applicant was now serving eight years imprisonment, four years of which was previously suspended, along with the additional period of four years. The applicant was to serve one-third of the sentence before becoming eligible for parole. The applicant did not contend that there was demonstrable error in principle by the learned sentencing judge but contended that the new cumulative sentence had a crushing effect on him as he was of a young age and thus, the sentence offended the totality principle.

The court was required to determine whether the cumulative sentence imposed on the applicant offended the totality principle. The court considered the effect of the sentence on the applicant, including his age and the effect of the sentence on him. The court noted that the applicant did not challenge the sentence in principle, but rather, the effect of the cumulative sentence on him. The court considered the totality principle, which requires that the sentence imposed on the applicant should not be disproportionate to the offence committed. The court found that the cumulative sentence imposed on the applicant did indeed offend the totality principle.

The court allowed the appeal and set aside the order that the applicant be imprisoned for a period of four years in respect of each of Counts 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014. In lieu thereof, the court sentenced the applicant in respect of each of Count 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, for a period of three years. The terms of three years imprisonment were to be served concurrently with each other, but cumulatively to the term of four years imprisonment on the activation of the suspended sentence. The court also set aside the orders made on 2 May 2014 that the date the applicant was eligible for parole be fixed at 1 March 2016 and ordered that the date the applicant was eligible for parole be fixed at 15 October 2015. The court otherwise affirmed the orders made on 2 May 2014.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. In respect of each of Counts 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, set aside the order that the applicant be imprisoned for a period of four years.

4. In lieu thereof, sentence the applicant in respect of each of Count 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, for a period of three years.

5. Direct that the terms of three years imprisonment are to be served concurrently with each other, but cumulatively to the term of four years imprisonment on the activation of the suspended sentence, but noting that the terms of imprisonment activated on the suspended sentence are to be served concurrently with each other.

6. Set aside the orders made on 2 May 2014 that the date the applicant is eligible for parole be fixed at 1 March 2016.

7. Order that the date the applicant is eligible for parole be fixed at 15 October 2015.

8. Otherwise affirm the orders made on 2 May 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Kendrick [2015] QCA 27

Most Recent Citation

R v Coleman [2015] QCA 176

Cases citing this decision · 27 of 27 shown

R v Sharp
[2023] QCA 253 Para 15

…o the principle of totality, nonetheless as a matter of practicality, the two principles are often conflated, and considered together.” [28][2015] QCA 27 at [40].…
JMC v Commissioner of Police
[2023] QDC 228 Para 19

…to consider whether the total period of imprisonment adequately and fairly represented the totality of the offending involved.[11] [11] R v Kendrick [2015] QCA 27, [34]-[37].…
Enright v Queensland Police Service
[2023] QDC 91 Para 19

…referred at length to the decision of the Court of Appeal in R v Kendrick [1] and the cases referred to therein in the judgment of Morrison JA. [1][2015] QCA 27.…
Jones v Queensland Police Service
[2022] QDC 281 Para 11

…der what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice. [21]   [19] The Queen v Kendrick [2015] QCA 27. [20] The Queen v Kendrick [2015] QCA 27 at [31]-[41]. [21] See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had re…
R v Wilson
[2022] QCA 18 Para 6

…v CCT .[19] It is not necessary in this case to discuss how the principle is to be applied in such circumstances.) [9][2014] QCA 206. [10][2015] QCA 27. [11](2020) 4 QR 110 at [9] – [15]. [12][2021] QCA 278 at [215] – [233]. [13](1997) 189 CLR 295 at 307 – 308. [14](1988) 166 CLR 59 at 64 – 66 (Wilson, Deane, Da…
LPN v Queensland Police Service
[2021] QDC 276 Para 12

…der what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice.”[15] [13] The Queen v Kendrick [2015] QCA 27. [14] The Queen v Kendrick [2015] QCA 27 at [31]-[41]. [15] See for example, R v Coleman [2015] QCA 176 Ann Lyons J (with whom Fraser JA and Gotterson JA a…
WPT v QPS
[2021] QDC 250 Para 27

…what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice.”[16]   [14] The Queen v Kendrick [2015] QCA 27. [15] The Queen v Kendrick [2015] QCA 27 at [31]-[41]. [16] See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard…
McIntyre v Commissioner of Police
[2021] QDC 163 Para 9

…entence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.” [15][2015] QCA 27, at [65] – [66]. [16][2014] QCA 219, at [12].…
Owl v Queensland Police Service
[2021] QDC 5 Para 25

…v Booth [1995] QCA 478; R v Mickelo [1995] QCA 468; R v Cutajar (1995) 85A Crim R 280; R v Margaritis ex parte A-G (Qld) [2014] QCA 219; R v Kendrick [2015] QCA 27.…
Penhaligon v Queensland Police Service
[2020] QDC 289 Para 25

…der what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice.”[14] [12] The Queen v Kendrick [2015] QCA 27. [13] The Queen v Kendrick [2015] QCA 27 at [31]-[41]. [14] See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had rega…
R v Morrison
[2020] QCA 187

…lowed R v Hill [2017] QCA 177, considered R v Kalaja [2017] QCA 123, considered R v Kendrick (2015) 249 A Crim R 176; [2015] QCA 27, considered R v Lewis , Unreported, Brown J, SC No 377 of 2016, 9 March 2018, followed R v Meerdink [2010] QCA 273, cited R v Nunn [2019] QCA 100, cited R v Orley [2013] QCA 119, co…
Sauney v Commissioner of Police
[2019] QDC 200

…As noted in R v Kendrick :[12] [12][2015] QCA 27.…
BHN v Queensland Police Service
[2019] QDC 129 Para 1

…busy court [9] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
Trott v Commissioner of Police
[2018] QDC 165 Para 1

…ciple”[12] and it appears to me to be the appropriate sentence in all the circumstances. [12]See Mill v The Queen (1988) 166 CLR 59; R v Kendrick [2015] QCA 27.…
Norwood v Queensland Police Service
[2018] QDC 170 Para 1

…Qld) s 155. [7]Cf. The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
R v Hill
[2017] QCA 177 Para 1

…Lyons J agreed) in R v Baker [2011] QCA 104 at [35] – [47]. More recently the totality principle was discussed in R v Kendrick [2015] QCA 27; 249 A Crim R 176 at 185 [31] – 188 [41].…
PFM v Queensland Police Service
[2017] QDC 210

…, ex parte Attorney-General (Qld) [2014] QCA 206 R v Fairbrother; ex parte Attorney General (Qld) [2005] QCA 105 R v Kendrick [2015] QCA 27, [31]-[41] Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 COUNSEL: M Dickson for the Appellant J Sheridan for the Respondent SOLICITORS: N…
R v McAnally
[2016] QCA 329 Para 3

…which that total period is attributable .’” [27] R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, at [19]. See also R v Kendrick [2015] QCA 27, at [34]. [28]With whom Holmes and Gotterson JJA concurred. Emphasis added; internal footnotes omitted.…
Addo v Senior Constable Jacovos
[2016] QDC 271 Para 1

…scretion.[36] [36] The Queen v Baker [2011] QCA 104 at [47] Atkinson J (with whom the President and Lyons J agreed), affirmed by The Queen v Kendrick [2015] QCA 27 at [54].…
Chevathen v Queensland Police Service
[2016] QDC 270

…LR 59 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 The Queen v Kendrick [2015] QCA 27 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219 R v Herbert [2013] QCA 62 Murray v The Queen [2015] QDC 219 COUNSEL: J. Trevino for the appellant N. Fri…
R v Crouch; R v Carlisle
[2016] QCA 81 Para 2

…ird of the sentence, or at some other time, will always turn on the particular circumstances of the individual case. [11][2016] QCA 11, [48]. [12][2015] QCA 27, [43].…
Komar v Commissioner of Police
[2016] QDC 79 Para 1

…fect of the sentence, bearing in mind its cumulative aspects, and to ensure that it is not disproportionate to the overall offending ( R v Kendrick [2015] QCA 27 at 55 and 57).…
Green v Queensland police Service
[2015] QDC 341 Para 2

…dy adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’. [6][2015] QCA 27 at [31]-[41]. [7][2014] QCA 2006 at [19].…
R v Parker
[2015] QCA 181 Para 3

…. No justification then exists for a more severe sentence, proportionality and just deserts defining the outer limits of punishment.”[20] [17][2015] QCA 27. [18][2005] VSCA 286, per Eames JA at [20] (Charles and Buchanan JJA agreeing). [19][2011] VSCA 372; (2011) 35 VR 43 at [62] (Coughlan and Macaulay AJJA agre…
R v Coleman
[2015] QCA 176 Para 13

…assistance in terms of the principles of totality which the learned sentencing judge was required to consider in relation to the sentence imposed. [5][2015] QCA 27.…
Spizzirri v Commissioner of Police
[2015] QDC 222 Para 1

…inciples. [7]See R v Beattie at [19] and the authorities there referred to; see also the discussion in the reasons of Morrison JA in R v Kendrick [2015] QCA 27 at [34]-[38].…
Szucs v Queensland Police Service
[2015] QDC 190 Para 15

…ect the fact that a number of sentences are being imposed. The former approach is generally preferable, but the latter is available (see R v Kendrick [2015] QCA 27).…

View all 27 citing cases →

Cases cited in this decision · 26 of 26 shown

R v Gordon
[2022] ACTCA 48 Para 4

…olmes and Gotterson JJA concurred. [34]Citing Mill v The Queen (1988) 166 CLR 59 at 63-64; R v Todd [1982] 2 NSWLR 517 at 519-520. [35]Citing R v Gordon (1994) 71 A Crim R 459 at 466 per Hunt CJ at CL ( Gordon ); Postiglione v The Queen (1997) 189 CLR 295 at 308 ( Postiglione ) ; R v Hunter [2006] 14 VR 336 at [30]…
Fridey v The Queen
[2014] VSCA 271 Para 10

…theless as a matter of practicality, the two principles are often conflated, and considered together.[46] [45] Azzopardi at [69]. [46] Fridey v R [2014] VSCA 271, at [38] per Weinberg, Whelan and Beech JJA.…
R v Margaritis; Ex parte
[2014] QCA 219 Para 13

…entence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.” [70][2014] QCA 219, per Muir JA, PD McMurdo J and P Lyons J concurring.…
R v Beattie; Ex parte Attorney-General (Qld)
[2014] QCA 206 Para 4

…minality involved in all of the offences to which that total period is attributable .’[35]” [32] R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, at [19]. ( Beattie ). Emphasis added. [33]With whom Holmes and Gotterson JJA concurred. [34]Citing Mill v The Queen (1988) 166 CLR 59 at 63-64; R v Todd [19…
R v Leighton
[2014] QCA 169 Para 5

…shed on the basis that it involved a very young offender with only one minor conviction, and who was not on parole at the time. [55] R v Leighton [2014] QCA 169. [56]With whom Gotterson JA and Henry J agreed. [57] Leighton at [23].…
R v Lacey
[2013] QCA 318 Para 11

…iveness may be produced if care is not taken to assess the overall effect of the imposition of cumulative penalties.’” [66] R v Lacey [2013] QCA 318 ( Lacey ). [67] Lacey at [55]-[57] referring to Wilson J in R v Lacey [2013] QCA 292 at [55]-[57].…
R v Lacey
[2013] QCA 292 Para 11

…sition of cumulative penalties.’” [66] R v Lacey [2013] QCA 318 ( Lacey ). [67] Lacey at [55]-[57] referring to Wilson J in R v Lacey [2013] QCA 292 at [55]-[57].…
R v LAE
[2013] QCA 189 Para 4

…ordon ); Postiglione v The Queen (1997) 189 CLR 295 at 308 ( Postiglione ) ; R v Hunter [2006] 14 VR 336 at [30] ( Hunter ); see also R v LAE [2013] QCA 189 at [35]-[37] ( LAE ).…
Rouge v The Queen
[2013] VSCA 160 Para 9

…( Azzopardi ) [43]With whom Coghlan and Macaulay AJJA agreed. [44] Azzopardi at [63]-[64] (citations omitted). See also Rouge v R [2013] VSCA 160.…
Azzopardi v The Queen
[2011] VSCA 372

…ties and Sentences Act 1992 (Qld), s 147 Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43; [2011] VSCA 372, considered Director of Public Prosecutions v Grabovac [1998] 1 VR 664, considered Fridey v The Queen [2014] VSCA 271 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, co…
R v Schmidt
[2011] QCA 133

…[47]See the review by Fryberg J in R v Schmidt [2011] QCA 133. M Wilson J agreed with Fryberg J, but Muir JA declined to enter upon the question.…
R v Baker
[2011] QCA 104 Para 2

…has fallen into error by not properly applying the totality principle. It therefore falls to this Court to re-sentence the applicant. [62] R v Baker [2011] QCA 104 at [47], per Atkinson J, McMurdo P and Peter Lyons J concurring. ( Baker )…
R v Gabriel
[2010] NSWSC 13

…offended the totality principle Penalties and Sentences Act 1992 (Qld), s 147 Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen (2011) 35 VR 43; [2011] VSCA 372, considered Director of Public Prosecutions v Grabovac [1998] 1 VR 664, considered Fridey v The Queen [2014] VSCA 271 Johnson v The Queen (2004) 78 A…
R v Norden
[2009] QCA 42 Para 5

…mination of that discretionary judgment. [15]That situation does not alter simply because the order is made in combination with others.”” [64][2009] QCA 42 at [13]-[15].…
R v Morrow
[2006] QCA 305 Para 1

…isorder. On that basis her sentence of five years, suspended after 10 months was reduced to four years suspended after nine months. [58] R v Morrow [2006] QCA 305.…
R v Hunter
[2006] VSCA 129

…ttorney-General (Qld) [2014] QCA 206, considered R v Gordon (1994) 71 A Crim R 459, considered R v Hunter [2006] 14 VR 336; [2006] VSCA 129, considered R v Lacey [2013] QCA 318, considered R v LAE (2013) 232 A Crim R 96; [2013] QCA 189, considered R v Leighton [2014] QCA 169, considered R v Margaritis; Ex parte At…
R v Sullivan
[2005] VSCA 286 Para 8

…urrently being served derives from a breach of parole.[41]’” [39] R v Greenslade [2004] VSCA 213 per Batt JA at [30]. [40] R v Sullivan [2005] VSCA 286. [41] R v Sullivan [2005] VSCA 286, at [20].…
R. v. Greenslade
[2004] VSCA 213 Para 8

…ication in circumstances where, as here, the sentence currently being served derives from a breach of parole.[41]’” [39] R v Greenslade [2004] VSCA 213 per Batt JA at [30]. [40] R v Sullivan [2005] VSCA 286. [41] R v Sullivan [2005] VSCA 286, at [20].…
Johnson v The Queen
[2004] HCA 15

…secutions v Grabovac [1998] 1 VR 664, considered Fridey v The Queen [2014] VSCA 271 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Baker [2011] QCA 104, consi…
R v Styles
[2003] QCA 374 Para 2

…the applicant was disguised and armed. After a committal the offender absconded and was at large for about four and a half years. [51] R v Styles [2003] QCA 374. ( Styles ) [52]There was an additional count of attempted break and enter in respect of which he was sentenced to 12 months imprisonment, to be served c…
Pearce v The Queen
[1998] HCA 57 Para 12

…hat they will be stifled; in fact the contrary is the case given his addiction. [68] Director of Public Prosecution v Grabovac [1998] 1 VR 664 at 665. See also R v Lomax [1998] 1 VR 551. [69] R v Cutajar; ex parte A-G (Qld) [1995] QCA 570, at [8] per McPherson JA; Baker at [41].…
Postiglione v the Queen
[1997] HCA 26

…CA 15, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Baker [2011] QCA 104, considered R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, considered R v Gordon (1994) 71 A Crim R 459, considered R v Hunt…
R v Cutajar
[1995] QCA 570 Para 12

…tor of Public Prosecution v Grabovac [1998] 1 VR 664 at 665. See also R v Lomax [1998] 1 VR 551. [69] R v Cutajar; ex parte A-G (Qld) [1995] QCA 570, at [8] per McPherson JA; Baker at [41].…
Mill v The Queen
[1988] HCA 70

…Queen [2014] VSCA 271 Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, considered Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, considered R v Baker [2011] QCA 104, considered R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA…
House v R
[1936] HCA 40 Para 2

…ur must in some way have erred in the consideration he was required to give to whether that total was just and appropriate.[74] [74] House v The King (1936) 55 CLR 499,505.…
House v The King
63 WN 176 Para 2

…nce that his Honour must in some way have erred in the consideration he was required to give to whether that total was just and appropriate.[74] [74] House v The King (1936) 55 CLR 499,505.…

Legislation cited in this decision · 1

Penalties and Sentences Act 1992 (Qld)
147 2 mentions (from Para 5)

CITATION:	R v Kendrick [2015] QCA 27
PARTIES:	R v KENDRICK, Nathan John (applicant)
FILE NO/S:	CA No 136 of 2014 DC No 17 of 2012 DC No 236 of 2012 DC No 61 of 2014 DC No 62 of 2014 DC No 63 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Beenleigh
DELIVERED ON:	6 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	20 October 2014
JUDGES:	Fraser and Morrison JJA, and Henry J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. In respect of each of Counts 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, set aside the order that the applicant be imprisoned for a period of four years. 4. In lieu thereof, sentence the applicant in respect of each of Count 1-3 on Indictment 62/2014 and Count 1 on Indictment 63/2014, for a period of three years. 5. Direct that the terms of three years imprisonment are to be served concurrently with each other, but cumulatively to the term of four years imprisonment on the activation of the suspended sentence, but noting that the terms of imprisonment activated on the suspended sentence are to be served concurrently with each other. 6. Set aside the orders made on 2 May 2014 that the date the applicant is eligible for parole be fixed at 1 March 2016. 7. Order that the date the applicant is eligible for parole be fixed at 15 October 2015. 8. Otherwise affirm the orders made on 2 May 2014.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER – THE TOTALITY PRINCIPLE – where the applicant was convicted of three counts of armed robbery in company, one count of armed robbery and one count of unlawful use of a motor vehicle – where for the four counts involving robbery the applicant was sentenced to four years imprisonment, to be served concurrently, but cumulative on a previously suspended sentence imposed in 2012 – where the applicant was sentenced in 2012 with a head sentence of five years which was suspended after 12 months for an operational period of five years – where as a result the applicant was now serving eight years imprisonment, four years which was previously suspended, along with the additional period of four years – where the applicant was to serve one-third of the sentence before becoming eligible for parole – where the applicant does not contend that there was demonstrable error in principle by the learned sentencing judge – where the applicant contends that the new cumulative sentence has a crushing effect on him as he is of a young age – whether the cumulative sentence offended the totality principle Penalties and Sentences Act 1992 (Qld), s 147 Azzopardi…