R v Lay

[2006] NSWCCA 45

CITATION:	R v Morgan Joseph Lay [2006] NSWCCA 45 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15 February 2006
JUDGMENT DATE:	6 March 2006
JUDGMENT OF:	James J at 1; Buddin J at 2; Hall J at 41
DECISION:	1 Crown appeal allowed. 2 Sentences imposed in the District Court quashed. 3 In respect of count 10 on the second indictment and taking into account the 12 matters on the Form 1, the respondent is sentenced to a non-parole period of 2 years and six months to commence on 21 January 2004 and to expire on 20 July 2006. A total term of 3 years and six months to commence on 21 January 2004 and to expire on 20 July 2007 is fixed. In respect of counts 17 and 30 on the first indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 April 2005 and to expire on 20 October 2006. A total term of 2 years and six months to commence on 21 April 2005 and to expire on 20 October 2007 is fixed. In respect of counts 1, 2 and 3 on the second indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 July 2005 and to expire on 20 January 2007. A total sentence of 2 years and six months to commence on 21 July 2005 and to expire on 20 January 2008 is fixed. In respect of all other matters, being counts 8, 9, 10, 15, 16, 23, 24, 31 and 32 on the first indictment and counts 4, 5, 6, 7, 8 and 9 on the second indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 January 2006 and to expire on 20 July 2007. A total term of 3 years and six months to commence on 21 January 2006 and to expire on 20 July 2009 is fixed. The total effective non-parole period is thus one of 3½ years and the total sentence is one of 5½ years. 4 The respondent is thus eligible for parole on 20 July 2007.
CATCHWORDS:	Crown appeal - multiple offences of break, enter and steal - application of principles in Pearce v The Queen - issues of parity - role of Crown at sentence hearing - delay in finalising proceedings
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1996-97) 189 CLR 295 R v Chad (CCA(NSW), 13 May 1998, unreported) R v Eustice [2004] NSWCCA 14 R v Knight [2005] NSWCCA 253 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wall [2002] NSWCCA 42 R v Weldon & Carberry (2002) 136 A Crim R 55
PARTIES:	Regina Morgan Joseph Lay
FILE NUMBER(S):	CCA 2005/1892
COUNSEL:	Ms J Girdham (Crown) Ms G Bashir (Respondent)
SOLICITORS:	S Kavanagh (Solicitor for Public Prosecutions) S O'Connor (Legal Aid Commission)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	05/51/0143 & 04/51/0158
LOWER COURT JUDICIAL OFFICER:	Coorey DCJ

2005/1892

JAMES J
BUDDIN J
HALL J

MONDAY 6 MARCH 2006

REGINA v Morgan Joseph LAY

Judgment

1 JAMES J: I agree with Buddin J.

2 BUDDIN J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act against the asserted inadequacy of sentences imposed in the District Court upon the respondent.

3 The respondent, who was arrested on 21 January 2004, was committed for trial on 33 charges in all. There were 29 charges of break, enter and steal; 2 charges of attempting to break and enter with intent to steal; one charge of breaking and entering with intent to steal and one charge of larceny.

4 On 14 May 2004 an indictment containing all those charges was presented against the respondent. The respondent pleaded guilty to 9 counts of break, enter and steal contrary to s 112(1) of the Crimes Act and 2 counts of attempting to break and enter with intent to steal contrary to s 113(1) and s 344A of the Crimes Act (the first indictment). The respondent pleaded not guilty to the 22 remaining matters which were then listed for trial. On 31 January 2005 the respondent pleaded guilty to 9 further counts of break, enter and steal and one count of larceny contrary to s 117 of the Crimes Act. His Honour was requested to take into account 11 further offences of break, enter and steal and one offence of break and enter with intent to steal, which were placed on a Form 1 document.

5 In all the respondent stood for sentence in respect of 18 offences of break, enter and steal, 2 offences of attempted break, enter and steal and one offence of larceny, together with the 12 matters on the Form 1 document.

6 The maximum penalty for each of the offences of break, enter and steal is 14 years imprisonment. The offence of attempting to break and enter with intent to steal and the offence of break and enter with intent to steal each attract a maximum penalty of 10 years imprisonment and the offence of larceny attracts a maximum penalty of 5 years.

7 In respect of count 10 on the second indictment and taking into account the 12 matters on the Form 1 document, the respondent was sentenced to a term of 3 years imprisonment commencing on 21 January 2004 and expiring on 20 January 2007, with a non-parole period of 2 years to commence on 21 January 2004 and to expire on 20 January 2006. In respect of counts 17 and 30 on the first indictment, a period of 2½ years imprisonment with a non-parole period of 1 year 9 months was fixed in each case. Both terms were ordered to commence on 21 July 2004. The head sentence in each case was ordered to expire on 20 January 2007 and the non-parole period in each case on 20 April 2006.

8 In respect of counts 1, 2 and 3 on the second indictment, a term of 2½ tears imprisonment with a non-parole period of 12 months was fixed in each case. The head sentence and non-parole period in each case was ordered to commence on 21 October 2005. In each case the head sentence was ordered to expire on 20 April 2008 and the non-parole period on 20 October 2006. In respect of all other matters (of which there were 15 in all), fixed terms of 9 months to commence on 21 January 2006 and to expire on 20 October 2006 were fixed. These latter sentences were thus totally subsumed within the sentences imposed in respect of counts 1, 2 and 3 of the second indictment. The total effective sentence was thus one of 4 years 3 months with a non-parole period of 2 years 9 months.

9 Several other offenders were dealt with in relation to some of the same offences. The details of those cases were before the sentencing judge who made specific reference to them. Ms Kerrie-Ellen Knight, who was dealt with for a total of 36 matters, received an overall effective sentence of 4½ years imprisonment with a non-parole period of 3 years. She sought leave to appeal against those sentences to this Court. Although error was found to have infected the sentencing process, the court re-sentenced the applicant in such a fashion as to produce exactly the same overall effective sentence. A claim that the sentences in their overall effect were manifestly excessive was specifically rejected: R v Knight [2005] NSWCCA 253. Mr Jeffrey Scott received an overall effective sentence of 2 years imprisonment with a non-parole period of 9 months in respect of 13 offences. It is common ground that the sentences imposed upon him, by reason of his quite different circumstances, assume no significance in the present proceedings. It will be necessary however to return in due course to consider the relevance of the sentences imposed upon Ms Knight.

10 Almost all of the offences committed by the respondent were committed in company with Ms Knight. That being so, it is convenient to rely upon this Court’s recitation of the facts in her application for leave to appeal, with some minor modifications. I have also placed alongside the counts which appear in the indictment against Ms Knight the corresponding counts against the respondent and have indicated whether they appear on one of the indictments or on the Form 1 document. The matters in relation to the respondent appear in square brackets.

Count 1 (s.112(1) Offence) – [Count 1 - Second Indictment] : Between 6.00 pm on 19 May 2002 and 5.00 pm on 20 May 2002, the Respondent and co-offenders (to whom later reference will be made) went to the premises of Donald Wallace in Rifle Range Road, Uralla. The premises comprised a large shed used as a dwelling. The Respondent and co-offenders forced entry through a window to a dwelling and stole a Honda XR100 motorcycle, a motorcycle helmet, a Bosch electric drill, an AG electric drill and a Philips stereo. To remove the motorcycle, a chain which secured it to a post was cut. None of the property, which was worth approximately $4,300.00, has been recovered.
Count 2 (s.112(1) Offence) – [Count 2 - Second Indictment]: Between 12.00 pm on 25 May 2002 and 10.00 am on 26 May 2002, the Respondent and co-offenders went to the premises of Malcolm Hughes at Bridge Street, Uralla, where the business of an agricultural stockist and repairer was carried on. Entry to the premises was gained by forcing open the aluminium sliding front door using a jemmy bar or similar item. The Respondent and co-offenders tampered with an alarm before stealing two chain saws and a chain saw carry bag, a wheel brace kit, two rattle guns, four bulk bags of dog and cat food and $300.00 cash. None of the property, which was worth approximately $2,860.00, has been recovered.
Count 3 (s.112(1) Offence) – [Count 3 - Second Indictment] : Between 7.15 pm on 30 May 2002 and 6.30 am on 31 May 2002, the Respondent and co-offenders went to the premises of Dale Menser situated at Ebor Road, Ebor. The premises operated as the Ebor Hilltop Roadhouse. Entry was gained to the Roadhouse by forcing open a window using a jemmy bar or similar item. The premises were ransacked with drawers being emptied and their contents thrown on the ground. The Respondent and co-offenders stole 40 packets of cigarettes, five packets of biscuits, phone cards to the value of $180.00, a Makita electric drill, a Hitachi electric planner, a 13-piece box set of screwdrivers and $250.00 in cash. None of the property has been recovered.
Count 4 (s.112(1) Offence) – [Count 6 - Second Indictment] : Between 4.00 pm on 7 June 2002 and 7.30 am on 8 June 2002, the Respondent and co-offenders went to the premises of Paul Walsh at Bridge Street, Uralla. The premises operated as Walshs Quality Meats. Entry to the premises was gained by the forcing of the back door. The premises were ransacked with papers being thrown all over the floor. The Respondent and co-offenders stole a number of meat trays and a quantity of meat, some butchers’ knives and some associated sharpening steels together with $130.00 in cash. None of the property, which was worth approximately $1,300.00, has been recovered.
Count 5 (s.112(1) Offence) – [Count 4 - Second Indictment] : Between 8 and 12 June 2002, the Respondent and co-offenders went to the premises of Mr James Blore at 38 Hill Street, Uralla. The premises operated as the Uralla Tyre Service. Entry to the premises was gained by climbing onto the roof, forcing open a skylight and removing a glass panel. A rear window was open from inside the premises. The Respondent and co-offenders ransacked the office in the premises, before using oxy-acetylene equipment to cut into an antique safe in an office. From there, seven blank cheques were stolen together with a number of other items including tyre levers. On 1 July 2003, police located one of the stolen tyre levers in rocks adjacent to the former home of Ms Knight, but none of the other property has been recovered.
Count 6 (s.112(1) Offence) – [Count 5 - Second Indictment] : On or about 8 June 2002, the Respondent and co-offenders went to the premises of Robin Moon at 54 Bridge Street, Uralla. The premises operated as Moon’s Bakery. The Respondent and co-offenders smashed a wall panel at the rear of the premises to gain entry. Once inside, the Respondent and co-offenders ransacked the premises, stealing a cash box containing $99.00 cash and some cakes. None of the property has been recovered.
Count 7 (s.112(1) Offence) – [Form 1] : On or about 9 June 2002, the Respondent and co-offenders when to the premises of Sheree O’Halloran in Salisbury Street, Uralla. The premises operated as a hairdressing business. Entry to the premises was gained by forcing open a side window using a jemmy bar or similar item. The premises were ransacked with papers being strewn over the floor. Scissors and associated hairdressing equipment were stolen together with some wine and $30.00 cash. None of the property has been recovered.
Count 8 (s.112(1) Offence) – [Count 8 - First Indictment] : Between 7.00 pm on 9 June 2002 and 6.00 am on 10 June 2002, the Respondent and co-offenders went to the premises of Chris Feltham at 18N Derby Street, Walcha, where the business of Mountain Motors was conducted. Entry to the premises was gained by cutting a padlock to a side door and opening the door. The premises and vehicles located at the premises were ransacked. Every vehicle in the workshop was entered. Oxy-acetylene equipment was used to cut open the safe. The sum of $3,500.00 in cash was taken from the safe and a camera and pair of binoculars were taken from the premises. None of the property has been recovered.
Count 9 (s.112(1) Offence) – [Count 10 - First Indictment] : Between 2.00 pm on 9 June 2002 and 7.15 am on 10 June 2002, the Respondent and co-offenders went to the premises of Helen Stace at 1W Fitzroy Street, Walcha. The premises operated as Market Fresh. Entry to the premises was gained by forcing open a rear roller door using a jemmy bar or similar item. The premises were ransacked and a money box containing approximately $100.00 in cash was stolen. None of the property has been recovered.
Count 10 (s.112(1) Offence) – [Count 9 - First Indictment] : On or about 10 June 2002, the Respondent and co-offenders went to the premises of John Watts at 108W Fitzroy Street, Walcha. The premises operated as the Walcha Tyre Service. The Respondent and co-offenders gained entry to the premises by cutting a padlock from the front door and opening the door. Thereafter, the premises were ransacked and papers were scattered about. Ammunition, knives, a jump-starter kit and $100.00 in cash were stolen. None of the property, which was worth approximately $700.00, has been recovered.
Count 11 (s.112(1) Offence) – The respondent was not charged in relation to this matter.
Count 12 (s.112(1) Offence) – [Count 7 - Second Indictment] : On or about 10 June 2002, the Respondent and co-offenders went to the premises of Carol Rose at 15W Fitzroy Street, Walcha. The premises operated as a hairdressing salon. Entry to the premises was gained by forcing a door lock. The office was ransacked and the cash register was broken open. Scissors, a hairdryer, hair clippers, several carry bags and beauty products were stolen. On 1 July 2003, police located the bag containing beauty products in rocks adjacent to the former home of Ms Knight. None of the other property, which was worth approximately $5,000.00, has been recovered.
Count 13 (s.117 Offence) – [Count 8 - Second Indictment] : On or about 10 June 2002, the Respondent and co-offenders, while in the building at 15W Fitzroy Street, Walcha, entered a partitioned area occupied by Jayde Goodwin and used as a beautician’s business. Entry was gained by climbing over an internal wall. An ear piercing kit and beauty products were stolen from the premises. On 1 July 2003, police recovered the ear piercing kit and beauty products in rocks adjacent to the former home of Ms Knight.
Count 14 (s.112(1) Offence) – [Count 9 - Second Indictment] : On or about 10 June 2002, the Respondent and co-offenders went to the premises of Lyn Laurie in Derby Street, Walcha. The premises operated as the “Toys in Town” toy shop. Entry to the premises was gained by cutting through a gridlock which covered a rear window and forcing the window open. The premises were ransacked with papers being strewn over the floor. Several children’s toys were stolen. None of the property has been recovered.
Count 15 (s.112(1) Offence) – [Form 1] : On or about 10 June 2002, the Respondent and co-offenders went to the premises of Anja Kermode at 13W Fitzroy Street, Walcha. The premises were used as a children’s clothes and goods supplier trading as “Pipsqueaks” . Entry to the premises was gained by forcing a rear aluminium sliding door using a jemmy bar or similar item. The premises were ransacked and clothing was thrown about. Children’s clothing, a child’s carry bag and compact discs were stolen. None of the property has been recovered.

Count 16 (s.113(1) Offence) – [Count 15 - First Indictment] : Between 6.00 pm on 18 June 2002 and 7.00 am on 19 June 2002, the Respondent and co-offenders went to the premises of John Collins at 76 Bridge Street, Uralla. The premises operated as Collins Downtown Meats. Entry to the premises was gained by cutting a lock from a rear door and then entering through this door to a toilet area. An internal window was smashed, but the offenders were not successful in further entering the premises. No items were stolen.

Count 17 (s.113(1) Offence – [Count 16 - First Indictment] : On or about 18 June 2002, the Respondent and co-offenders went to the premises of Patricia Fuller at 78 Bridge Street, Uralla. The premises operated as The Green Apple Fruit Shop. The offenders attempted to gain entry to the premises by attacking a padlock on the rear door using bolt cutters. When unsuccessful, the offenders went to the front of the premises and smashed a glass panel on the front door and cut a metal grille using the bolt cutters. However, the door was deadlocked and the offenders were unable to enter the premises. No property was taken.

Count 18 (s.112(1) Offence) [Count 17 - First Indictment]: Between 11.00 pm on 18 June 2002 and 9.00 am on 19 June 2002, the Respondent and co-offenders went to the premises of John Wooldridge, trading as John Wooldridge Real Estate, at 48A Bridge Street, Uralla. The premises operated as a real estate and secondhand goods agency. Entry to the premises was gained by the use of a jemmy bar or similar item to force the aluminium front doors. The premises were ransacked. A rifle scope, some throwing knives, a number of rings and $670.00 cash were stolen from the premises. Upon the execution of a search warrant upon the Respondent’s home on 15 July 2003, a throwing knife belonging to Mr Wooldridge was located next to the Respondent’s bed. No other property has been recovered.

Count 19 (s.112(1) Offence) – [Count 10 - Second Indictment] : Between 11.00 pm on 20 June 2002 and the morning of 21 June 2002, the Respondent and co-offenders returned (see Count 18) to the premises of John Wooldridge, trading as John Wooldridge Real Estate, at 48A Bridge Street, Uralla. Entry to the premises was gained by forcing open the front aluminium doors by using a jemmy bar or similar item. The premises were ransacked before an angle grinder was used to cut into a safe. A number of grinding disks lay on the floor and white dust was spread though the office. Jewellery worth approximately $32,500.00 together with $10,000.00 in cash was stolen from the safe. The Respondent had smoked a cigarette while in the premises, leaving the butt in a rear toilet.

Count 20 (s.112(1) Offence) – [Form 1] : On or about 8 July 2002, the Respondent and co-offenders went to the premises of Sophie Brown at 11690 Waterfall Way, Ebor. The premises operated as the Ebor Hotel/Motel. Entry to the premises was gained by forcing open a side door using a jemmy bar or similar item. The premises were ransacked and a large quantity of alcohol and cigarettes together with about $100.00 in cash was stolen. None of the property has been recovered.

Count 21 (s.112(1) Offence) – [Form 1] : On or about 8 July 2002, the Respondent and co-offenders returned (see Count 3) to the premises of Dale Menser at Ebor Road, Ebor. The premises operated as the Ebor Hilltop Roadhouse. Entry to the premises was gained by smashing a side window and removing a piece of timber. The premises were ransacked and a large quantity of cigarettes was stolen together with some electric tools and $115.00 in cash. None of the property has been recovered.

Count 22 (s.112(1) Offence) – [Form 1] : Between 2.30 pm on 6 July 2002 and 8.20 am on 8 July 2002, the Respondent and co-offenders went to the premises of Michelle Kellett at 16 Cudgery Street, Dorrigo. The premises operated as Moy and Darby Stock and Station Agents. Entry to the premises was gained by forcing open the front aluminium door using a jemmy bar or similar item. The premises had been ransacked with drawers being pulled open and papers strewn over the floor and desks. An angle grinder was used to cut open a free-standing safe in the office on the premises before removing its contents. A Canon digital camera (worth $1,000.00) and $500.00 in cash were stolen. None of the property has been recovered.

Count 23 (s.113(1) Offence) – [Form 1] : On 8 July 2002, the Respondent and co-offenders went to the premises of Anthony Noble at 46 Hickory Street, Dorrigo. The premises operated as Phil Noble Motors. Entry to the premises was gained by forcing open the front aluminium door with a jemmy bar or similar item. Although entering the premises with the intention of stealing therefrom, an alarm was activated and the offenders fled the scene. No property was taken.

Count 24 (s.112(1) Offence) – [Count 24 - First Indictment] : Between 11 and 12 July 2002, the Respondent and co-offenders entered the premises of Property New England in Uralla by forcing the front door with a jemmy bar or similar item. Once inside, the Respondent ransacked the office, stealing a quantity of cash and a white-mesh women’s shoulder bag. An unsuccessful attempt was made to access a wall safe by cutting into it with an angle grinder. A search of Ms Knight’s home pursuant to a search warrant on 15 July 2003 revealed the white-mesh women’s shoulder bag hanging over her bedhead.

Count 25 (s.112(1) Offence) – [Count 23 - First Indictment] : On or about 12 July 2002, the Respondent and co-offenders returned (see Count 17) to the premises of Patricia Fuller at 78 Bridge Street, Uralla. The premises operated as The Green Apple Fruit Shop. Entry to the premises was gained by removing the lock from the rear security door before removing the lock and latch from the rear door. The premises were ransacked and $20.00 in cash was stolen. None of the property has been recovered.

Count 26 (s.112(1) Offence) – [Form 1] : Between 5.30 pm on 19 July 2002 and 8.30 am on 20 July 2002, the Respondent and co-offenders went to the premises of Graeme Shiels at 131-143 Bradley Street, Guyra. The premises operated as Guyra Smash Repairs. Entry to the premises was gained by forcing open the front aluminium door using a jemmy bar or similar item. The premises and vehicles contained in the premises were ransacked with books, files and the contents of drawers being strewn about the office. A rechargeable torch and a money box containing about $5.00 was stolen. None of the property has been recovered.

Count 27 (s.117 Offence) – [Form 1]: Between 6.00 pm on 19 July 2002 and 8.00 am on 20 July 2002, the Respondent and co-offenders, while in the building at 131-143 Bradley Street, Guyra, entered the office of Gregory Burgess. Mr Burgess operated a garage business from the same premises as the smash repair business conducted by Mr Shiels. Mr Burgess’ office and vehicle, which was parked inside the premises, were ransacked. A steering wheel kit and $160.00 in cash were stolen. None of the property has been recovered.

Count 28 (s.112(1) Offence) – [Form 1] : Between 5.30 pm on 19 July 2002 and 8.00 am on 20 July 2002, the Respondent and co-offenders went to the premises of John Truscott trading as Truscott Rural Traders, at Moore Street, Guyra. Entry to the premises was gained by forcing the front aluminium door with a lock on an internal door then being cut open. The premises were ransacked and a carry bag, high-pressure water cleaner, a number of wrist watches, some lollies and $40.00 in cash were stolen. None of the property has been recovered.

Count 29 (s.112(1) Offence) – [Form 1] : Between 5.30 pm on 19 July 2002 and 9.30 am on 20 July 2002, the Respondent and co-offenders went to the premises of Michael Jackson trading as Jackson Livestock and Property, at 100 Bradley Street, Guyra. Entry to the premises was gained by forcing open the front door with a jemmy bar or similar item. The premises were ransacked with a jemmy bar or a similar item being used to force open filing cabinets. An angle grinder was used to cut open a safe on the premises. Dust lay everywhere and documents from the safe were strewn about the office. A Fuji digital camera and $4,000.00 in cash were stolen. None of the property has been recovered.
Count 30 (s.112(1) Offence) – [Count 32 - First Indictment] : At about 2.00 am on 21 August 2002, the Respondent and co-offenders went to the premises of Wesfarmers Landmark Boulton at 3N Derby Street, Walcha. An agency of the Westpac Bank was located in the same building. There was an unsuccessful attempt to gain entry to the premises by forcing a rear window. Thereafter, entry to the premises was gained by forcing open a side window using a jemmy bar or similar item. The offenders disabled the movement sensor, alarm key pad and telephone system. The alarm system was smashed from the wall. The premises were ransacked and the sum of $210.00 in cash was stolen. A jemmy bar or similar item was used to open a safe. None of the property has been recovered.

Count 31 (s.112(1) Offence) – [Count 30 - First Indictment] : Between 6.00 pm on 20 August 2002 and 2.30 am on 21 August 2002, the Respondent and co-offenders returned (see Count 8) to the premises of Chris Feltham at 18N Derby Street, Walcha. The premises operated as Mountain Motors. These premises had been broken into by the Respondent and others on 9-10 June 2002 (Count 8). Entry to the premises was gained by cutting a padlock on the side door and opening the door. The premises were ransacked and hand tools were stolen together with a set of shock absorbers, a wallet, a torch, and other items, including $10.00 cash. On 8 July 2003, a search warrant was executed at the home of Ms Knight. One of the items which had been stolen (the torch) was located in her bedroom. The other property taken from the premises (worth about $4,000.00) has not been located.

Count 32 (s.112(1) Offence) – [Count 31 - First Indictment] : Between 5.00 pm on 20 August 2002 and 2.30 am on 21 August 2002, the Respondent and co-offenders went to the premises of Anthony Elder at 5W Fitzroy Street, Walcha. The premises operated as AB Elder Real Estate. Entry to the premises was gained by forcing the lock on the front door with a jemmy bar or similar item. The premises were ransacked and a camera, $20.00 in cash and other items, including a brown carry bag, were stolen. On 1 July 2003, police recovered the brown carry bag and some of the items stolen from these premises.

11 It is to be observed that apart from those 31 matters which they committed together, and the one matter with which the respondent was not charged, Ms Knight committed four further offences between November 2002 and May 2003. She also asked that two further offences of goods in custody, which appeared on a Form 1 document, be taken into account. On the other hand, the respondent committed two further offences of break, enter and steal which were dealt with on the Form 1 document that were not charged against Ms Knight.

12 The respondent was born on 29 November 1981 and was thus aged 20 at the time he committed the offences in question. He has a criminal record which commenced in 1998 when a community service order was imposed upon him in respect of an offence of dangerous driving occasioning grievous bodily harm. Other less serious driving offences attracted pecuniary penalties. In the same year he also received a community service order in respect of an offence of cultivating a prohibited plant and other less serious drug offences. In 1999 he was fined for drug offences of a similar kind. In December 2000 he received a sentence of 2½ years imprisonment with a non-parole period of nine months in respect of an offence of armed robbery. That sentence was ordered to be served in a Juvenile Detention Centre. He was thus on parole at the time of the commission of the present offences. In 2001 he was fined and disqualified from driving for 12 months for a driving offence. In October 2002 he was placed on a bond for three years for possessing a prohibited drug and in 2003 he was fined for behaving in an offensive manner.

13 The respondent had an unsettled upbringing. His parents separated when he was less than two years of age. His mother raised him for a period of time until he was, according to a pre-sentence report which was in evidence, “farmed out to an extended family around the State”. By the age of 15 he was living in a flat on his own. He is now reported to have a close relationship with his mother and other family members. The respondent had little contact with his father, who was apparently a drug addict, as he was growing up. There had nevertheless been a reconciliation between them. His father’s death in late December 2003 of cancer had a traumatic impact upon the respondent.

14 The respondent left school at the age of 15 without any formal qualifications. His employment record is best described as patchy. When he has worked it has been in labouring jobs. He is said to have work available as a bricklayer upon his release from custody.

15 The respondent commenced using cannabis at the age of 12. By the time he committed these offences he had graduated to using amphetamines and was apparently spending $700-$800 per week on that drug alone. He was also using ½ oz. of cannabis each week. He had also been abusing alcohol since he was 15. At the time of sentence the respondent was in a stable relationship which had produced a young son.

16 The Crown’s principal submission was that the sentences which were imposed were manifestly inadequate. In support of that submission, the Crown pointed to a number of features of the case which indicated that the respondent’s conduct had not been met with appropriate penalties.

17 In the present context it is convenient to repeat what was said in R v Knight (supra) about the offending in that case. There Johnson J (with whom Mason P and Barr J agreed) adopted the sentencing judge’s characterisation of the offences, which was in the following terms:

The offences were committed within rural country towns or in parts of the rural community. They were committed at times when the businesses conducted from the premises could be expected to be closed and sometimes for a long weekend. An escape route was always identified before each job. And the offender’s motor vehicle was always used because she was the only one who had a motor vehicle.

Some of the offences involved repeat visits. Some of the offences involved the use of oxy-acetylene equipment, grinders, other equipment and the use of gloves. Clearly, not one of these offences was a spur of the moment decision but the result of planned activity. They can, in my view, properly be described as jobs in that sense.

I have already noted that in relation to a number of the offences premises and cars were ransacked.

The items that were stolen generally were items of a household usage value and readily able to be sold or swapped for drugs, which is what happened. (par 65)

Johnson J then continued:


In considering the break, enter and steal offences under s.112(1) Crimes Act 1900 it is appropriate to refer to the guideline judgment of this Court in Re Attorney-General’s Application (No. 1) Under Section 26 of the Criminal Procedure Act; Regina v Ponfield and Ors (1999) 48 NSWLR 327. There is some overlap between aggravating factors identified in Ponfield and those contained in s.21A(2) Crimes (Sentencing Procedure) Act 1999 . It is appropriate to have regard to both the guideline judgment and s.21A in approaching the question of sentence.

In the present case, the seriousness of the s.112(1) offences was enhanced by the following factors referred to in Ponfield by Grove J (Spigelman CJ and Sully J agreeing) at paragraph 48:

(a) the Applicant stood for sentence with respect to a multiplicity of offences of break, enter and steal committed over a period of four months – this was a series of criminal acts (s.21A(2)(m));

(b) the offences were the result of professional planning, organisation and execution – this was planned or organised criminal activity (s.21A(2)(n));

(c) the offences were accompanied by vandalism or significant damage to property, including damage to safes and doors;

(d) repeat incursions were made into four premises - Counts 3 and 21; 8 and 31; 17 and 25; 18 and 19 and

(e) the value of the property taken in some offences was substantial. (pars 99-100)

18 To that list of aggravating features may be added the fact, as has been noted, that the present respondent committed the offences whilst on parole for armed robbery. In assessing the respondent’s objective criminality it is also necessary to have regard to the maximum penalties provided for by the legislature. Due consideration must also be given to the fact that a number of matters of a similar nature appear on the Form 1 document: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.

19 The Crown also contended that in directing that “[the sentences] be served wholly or substantially concurrently” his Honour failed to give proper effect to the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. It was submitted that the consequence of that failure was the imposition of sentences which in their overall effect failed to reflect the totality of the respondent’s criminality. The relevant principles to be applied were referred to by this Court in R v Weldon & Carberry (2002) 136 A Crim R 55. Ipp JA, with whom Hulme and Bell JJ agreed, said:

A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case Hoare v The Queen (1989) 167 CLR 348; 40 A CrimR 391.
The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.
It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622; 380-381). (pars 46-48)

20 In the present context the Crown pointed out that other than the most serious offence (in relation to which the Form 1 matters were taken into account) the remaining 20 offences upon the indictment attracted an overall increase of only 15 months on the head sentence and 9 months on the non-parole period.

21 In its written submissions the Crown contended that “in taking into account parity with the sentence imposed upon the co-offender [Ms] Knight, his Honour fell into error”. It was also submitted that because “she (and Mr Scott) had undertaken to give evidence against the respondent… no issue of parity arose”. With respect, the Crown’s submission somewhat overstates the position. The Crown Prosecutor who appeared in this Court, but who had not prepared the written submissions, recognised as much. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1996-97) 189 CLR 295 in which their Honours said:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2)

22 In R v Eustice [2004] NSWCCA 14, Adams J (with whom Giles JA and Hulme J agreed), remarked, in circumstances that are apposite to the present case :

However, the agreement to give evidence was a very substantial point of differentiation and, together with the very early plea entered by Daly, to my mind greatly reduced the significance of Daly’s sentence as a material factor in measuring the respondent’s sentence. (par 17)

23 Nevertheless it is true to say that the sentencing judge was most anxious to give effect to considerations of parity when sentencing the respondent. Indeed, his Honour apparently felt sufficiently constrained by that consideration to adjourn the sentencing proceedings in order to await the disposition of Ms Knight’s appeal to this Court. It is also apparent that the parties, who made extensive submissions upon the issue, also took the view that her sentence provided the bench mark against which the respondent’s sentence was to be determined. In the upshot, the sentencing judge simply concluded, without any analysis of the competing submissions, that “[i]t seems to me that even allowing for the discount which the co-offender, Ms Knight, received it would be proper for this prisoner to receive slightly less of a sentence [than her]”. His Honour then made a finding of “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, by reason of the respondent’s need for an extended period of supervision on parole following his “first experience in an adult prison”, before proceeding to impose the sentences referred to earlier.

24 The principles governing the determination of a Crown appeal are well established. In R v Wall [2002] NSWCCA 42, Wood CJ at CL (with whom Meagher JA and Bell J agreed) said:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle “ for the governance and guidance of courts having the duty of sentencing convicted persons ”: per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.
(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.
(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62. (par 70)

25 I am persuaded that the Crown’s principal submission, that the sentences in their overall effect were manifestly inadequate, must be upheld. These were serious offences of their kind and were attended with a number of aggravating features which I have already identified. Furthermore, there were a number of unsatisfactory aspects of his Honour’s remarks on sentence. His Honour made scant reference to the objective gravity of the offences and then only by reference to some of the submissions made by the Crown. Nor was there any characterisation of the offender’s role. Even more surprising, given the significance which the sentencing judge attributed to the question of parity, was his Honour’s failure to make any assessment of the relative culpability of the respondent and Ms Knight. That matter took on added significance since Ms Knight had given sworn evidence during the course of her sentence proceedings that she had been overborne by the respondent. Although the sentencing judge in Ms Knight’s case found that that claim was somewhat exaggerated, he nonetheless took that matter into account in her favour. The transcript of Ms Knight’s evidence was before the sentencing judge in the present proceedings. No evidence was adduced in the respondent’s case upon this aspect of the matter other than an observation in a psychological report tendered on his behalf to the effect that his co-offender “generally obtained drugs for him and [that] he was rewarded for his involvement in the offences with drugs and not money”. In all the circumstances it is not entirely clear upon what basis the respondent was sentenced.

26 The explanation for the inadequacy of the sentences imposed seems to lie in part in the extent to which the sentencing judge fixed concurrent or only slightly cumulative sentences. More fundamentally, his Honour erred in concluding that sentences less severe than those imposed upon Ms Knight were appropriate. His Honour’s reasons for so concluding were less than persuasive. As his Honour observed during the course of submissions, the sentences imposed upon her were “very lenient”. The reason however for leniency being extended to her was very apparent. Her sentences had been discounted by an overall figure of 50% to reflect not only her early pleas of guilty and sincere remorse (30%) but also her assistance to the authorities (20%). Her assistance in relation to the respondent was described as having been “very important”. Moreover, Ms Knight had indicated a preparedness to give evidence against the respondent in accordance with statements made by her to police, although in the final analysis she was not required to do so because of the respondent’s decision to ultimately plead guilty to various matters on the day listed for trial.

27 Although the respondent had pleaded guilty to some offences at a relatively early stage, his pleas of guilty to the matters upon the second indictment were belated. By then he was also confronted with the reality that two of his co-offenders were going to give evidence against him. Although his Honour did not quantify the discount which he allowed for the pleas, it could not in the circumstances have realistically attracted any more than about 15% in light of the principles enunciated by this Court in R v Thomson & Houlton (2000) 49 NSWLR 383. Some further small discount may properly have been extended to the respondent on account of his having demonstrated contrition. Nevertheless it appears that the sentencing judge totally overlooked the quite different entitlements each of the offenders had to a discount for their pleas of guilty.

28 In the circumstances, even allowing for the fact that Ms Knight had more offences placed on the indictment against her than did the respondent, that she continued to commit offences after the respondent withdrew from the enterprise and that she was five years older than him, his Honour’s conclusion that the present respondent was deserving of less severe penalties than Ms Knight was quite unwarranted. A principled approach to the task would inevitably have seen rather more severe penalties imposed upon the respondent, even assuming, perhaps somewhat generously in his favour, that there was no basis upon which to differentiate their respective roles. In so concluding I have not overlooked the fact that Ms Knight was on a bond at the time that she committed some of the offences and that, like the respondent, she had a criminal record. However unlike the respondent she had not previously served a custodial sentence.

29 There is one further matter that requires attention in view of the prominence which it received in the respondent’s submissions. In order to put the submission into context it will be necessary to set out an exchange which took place on 5 August 2005, during the course of final submissions following the publication of this Court’s decision in R v Knight (supra). The exchange was prompted by a submission from the respondent’s then representative to the effect that his client should be treated somewhat more favourably than Ms Knight.

His Honour: Mr Kumarasingh when you say the sentence must be less but not – you say something less than the other, not substantially less.
Kumarasingh: No not substantially less your Honour, no.
His Honour: How much less do you say, do you say what six months less or something?
Kumarasingh: Can I be so bold enough to say your Honour perhaps your Honour between six and three.
His Honour: Sorry?
Kumarasingh: Between six and three months.
His Honour: Less?
Kumarasingh: If I put that with all – for the reasons I’ve advanced your Honour in my submissions.
His Honour: That if the sentence is three to six months less than the co-offender, that is the non-parole period.
Kumarasingh: Yes.
His Honour: You say he would be subjected to a Crown appeal? Do you say he would not be subjected to the risk of a Crown appeal if he got a sentence three months less?
Kumarasingh: Perhaps your Honour my friend has got a smile on his face your Honour, I’m not sure--
Modder: You know my position your Honour that it should be more than what Miss Knight got.
His Honour: Yes, I know your position.
Kumarasingh: What I submit your Honour is that your Honour could discern [sic] her case from his case on the questions of parity for the reasons I’ve advanced your Honour.
His Honour: You said there’s major reasons, one major reason is that the number of offences for a start, twice as many offences almost, 23 compared to 40 and you say also the longer period of time.
Kumarasingh: Sorry your Honour.
His Honour: The commission of the offences by Miss Knight is over almost a year longer.
Kumarasingh: Indeed.
His Honour: That is it’s 10 months--
Kumarasingh: Longer.
His Honour: She commits offences over a further 10 month period.
Kumarasingh: Mm.
His Honour: So you say putting those two things together and allowing that they both are on conditional liberty anyway, that there ought to be some distinction between them, even it it’s only a small amount, he should get a bit less.
Kumarasingh: That’s what I’m submitting your Honour, yes.
His Honour: And you say that would not subject him to the risk of a Crown appeal because this Crown can’t of course – this Crown can’t make a comment but your submission is that would not subject him to the risk of a Crown appeal on the basis of inadequate sentence?
Kumarasingh: Yes.

30 Earlier that day, and indeed on a previous occasion as well, the Crown had made submissions in support of the conclusion that the respondent’s sentence should be higher than that of the co-offender. The reasons for differentiating the two cases in that fashion were said to be the much earlier pleas and assistance proffered by Ms Knight and “her sworn evidence that she was to some extent following [the respondent’s] lead”.

31 It was submitted that the Crown’s conduct amounted to acquiescence and was a matter which should weigh heavily in resolution of the appeal, particularly in the event that the Court reached the point of determining whether or not to exercise its residual discretion. About this issue Hunt CJ at CL, (with whom Gleeson CJ and Sully J agreed) observed in R v Chad (CCA(NSW), 13 May 1998, unreported):

It was part of the agreement reached on the charge bargaining discussions that the Crown would draw the judge’s attention to the appropriate authorities but would neither urge the judge to impose a custodial sentence nor concede that a non-custodial sentence was appropriate. That somewhat unusual agreement was adhered to. Unfortunately, the judge does not appear to have asked what the Crown’s attitude to a non-custodial sentence would have been - which would have been an appropriate (indeed, a wise) question to have asked before he departed from what this Court had said should be the normal sentence for this offence - but the agreement reached between counsel did not stipulate what answer would have been given if that question had been asked.
It has been submitted on behalf of the respondent that this agreement prevents the Crown from now urging this Court on appeal to impose the custodial sentence which it agreed not to urge the judge to impose. In Everett v The Queen , the joint judgment in the High Court held that the failure of the Crown to submit to the sentencing judge that a particular type of sentence should not be imposed should deny the Crown leave to appeal to make that submission to the appellate court, if it appears that the Crown -
“ ... was on notice that there was a real possibility that such [a sentence] might be [imposed] but refrained from submitting that it would be inappropriate and not within a proper exercise of the sentencing discretion.”
That was a Tasmanian appeal. In this State, the Crown does not, of course, require leave to appeal. The joint judgment, however, based its decision upon the decision of the Full Court of South Australia in Regina v Wilton . That decision related to the disposition of a sentence appeal after leave had been granted. Wilton’s Case has been followed in this State in relation to Crown appeals, when the point has also been made that the Crown is under a duty to assist the sentencing judge to avoid appealable error. The decision in Everett upon this point has also been followed in this State.
Nevertheless, that does not in my view mean that the Crown is necessarily debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course which was taken by the sentencing judge; the weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance, and its weight may also vary with the degree to which this Court thinks that the sentencing judge fell into error.
Whichever way the test is put and, as it is apparent, it has not always been put consistently - I am satisfied in the present case both that the Crown was put on notice that the respondent was going to submit that a non-custodial sentence should be imposed (whether or not there was a “real possibility” that it would in fact be imposed), and that the Crown failed in its duty to assist the sentencing judge to avoid appealable error by imposing such a sentence. Merely drawing the judge’s attention to the relevant authorities did not make it clear to him that, as has now been successfully argued, he would be making an appealable error if he did not impose a significant full time custodial sentence. The written submissions, in accordance with the agreement, merely sat on the fence. I do not read them as even implicitly making that submission.
Sentencing judges are entitled to rely upon the Crown to make such submissions. There is a substantial difference between on the one hand submitting that an appealable error will be made and on the other hand merely arguing that the judge should impose a particular type of sentence in the exercise of his or her discretion. The failure to make the submission that appealable error would result in the present case certainly enlivens this Court’s discretion to refuse to intervene despite the error demonstrated. (at pp 4-5) (Citations omitted)

32 It is to be noted that the observations both in Chad and Everett arose in the context of cases in which the Crown had remained silent in the face of a submission that a non-custodial sentence should be imposed. The circumstances of the present case are readily distinguishable. It is entirely appropriate that the Crown, in discharging its duty to assist the Court to avoid appealable error, should be required to indicate that the imposition of a non-custodial sentence would lead to appealable error, if such an outcome would not be within the exercise of a proper sentencing discretion. That said, the principles are much easier to apply in a case involving the determination of the appropriate sentencing option than in a case which is solely concerned with the determination of the appropriate length of a custodial sentence.

33 It is also instructive to have regard to Guideline 28 of the Prosecution Guidelines of the NSW Director of Public Prosecutions concerning the role of the prosecutor on sentence, which is in the following terms:

The prosecution has an active role to play in the sentencing process.
The starting point for a consideration of its role is Barristers' Rule 71 and Solicitors Rule A71 (see Appendix B ) which provide:
A prosecutor must not seek to persuade the court to impose a vindictive sentence or a sentence of a particular magnitude, but:
a) must correct any error made by the opponent in address on sentence;
(b) must inform the court of any relevant authority or legislation bearing on the appropriate sentence;
(c) must assist the court to avoid appealable error on the issue of sentence;
(d) may submit that a custodial or non-custodial sentence is appropriate; and
(e) may inform the court of an appropriate range of severity of penalty, including a period of imprisonment, by reference to relevant appellate authority.

In pursuing this last requirement, a prosecutor should:
(i) adequately present the facts;
(ii) ensure that the court is not proceeding upon any error of law or fact;
(iii) provide assistance on the facts or law as required;
(iv) fairly test the opposing case as required;
(v) refer to relevant official statistics and comparable cases and the sentencing options available;
(vi) if it appears there is a real possibility that the court may make a sentencing order that would be inappropriate and not within a proper exercise of the sentencing discretion, make submissions on that issue - particularly if, where a custodial sentence is appropriate, the court is contemplating a non-custodial penalty.
A prosecutor should not in any way fetter the discretion of the Director to appeal against the inadequacy of a sentence (including by informing the court or an opponent whether or not the Director would, or would be likely to, appeal, or whether or not a sentence imposed is regarded as appropriate and adequate). The Director's instructions may be sought in advance in exceptional cases.

34 As is apparent from the extract which is set out above, the sentencing judge asked the respondent’s then counsel whether his client ran the risk of a Crown appeal if the sentence which he urged upon the Court were to be imposed. It was submitted in this Court that the Crown should have expressly indicated that there was such a risk so as to avoid the consequence that his stance might later be treated as acquiescence. Not only did his Honour recognise that the Crown representative could not do so, but the Prosecution Guidelines effectively precluded the Crown’s representative from so indicating. Nor, it may be observed, did his Honour ask such a question of him directly.

35 It is readily apparent that the task of a prosecutor on sentence is a very important one. It can also be a very challenging one. There is a delicate balance to be struck between assisting a court to avoid appealable error and “forensic urging” which is properly discouraged. What the Crown’s representative said both at the time when the issue arose and in earlier submissions was entirely appropriate and constituted a proper discharge of his functions. In my view, there is nothing which occurred in the present case which warrants the conclusion that the Crown’s conduct of it amounted in any way to acquiescence.

36 That being so, I can discern no reason which would incline the Court to exercise its discretion not to intervene in the present case. Accordingly, it will be necessary to re-sentence the respondent, although in doing so I remain mindful of the approach which is to be adopted: see Wall (supra).

37 For that purpose it is appropriate to have regard to the contents of an affidavit affirmed by the respondent. It is to his credit that he appears to have been spending his time productively whilst he has been in custody. Since October 2005 he has been at the Glen Innes Correctional Centre which has enabled him to work full-time from 7 am to 2.30 pm in the sawmill. He maintains that he has been drug free since he was sentenced and that he was found to be as much when subjected to urine testing. He is now doing a “Harm Minimisation” course and an “Alcohol and other Drugs” course, each of which occupy 2 hours per week. These courses are designed to assist the respondent in his expressed determination to remain drug free upon his release from prison. These steps taken by the respondent augur well for his ultimate rehabilitation as does his relative youth and the fact that his mother, as well as his girlfriend and young son regularly visit him in gaol and continue to support him.

38 I accept the submission that there has been very considerable delay in bringing these proceedings to finality. None of that delay can be attributed to the respondent. Submissions on sentence were apparently completed on 9 February 2005. It was then decided, as I noted earlier, to defer the finalisation of the matter to await this Court’s decision in R v Knight (supra). That matter was heard on 24 March 2005 but judgment was not delivered until 27 July 2005. The present sentence proceedings were resumed on 5 August 2005 when, as I have said, further submissions were made. The sentencing judge pronounced sentence on 9 August 2005. The Crown appeal was not lodged until 23 September 2005. The appeal itself was not heard until 15 February 2006 and judgment was reserved. That short chronology reveals that the respondent has been waiting for more than 12 months in order to ascertain his ultimate fate. That is a regrettable state of affairs and no doubt has occasioned the respondent considerable anxiety. It has also to some extent delayed the process of his classification within the prison system. It is appropriate to take that matter into account in re-sentencing the respondent.

39 The matters to which I have just referred together with the fact that appropriate restraint is to be displayed when re-sentencing an offender following a successful Crown appeal, ought, in my view, operate to constrain the extent of the court’s intervention. It follows that the sentences that are now to be imposed upon the respondent are considerably below what the circumstances of the case would otherwise demand. I would, for the reasons indicated by the sentencing judge, make a finding of “special circumstances”.

40 I propose the following orders:

1 Crown appeal allowed.

2 Sentences imposed in the District Court quashed.

3 In respect of count 10 on the second indictment and taking into account the 12 matters on the Form 1, the respondent is sentenced to a non-parole period of 2 years and six months to commence on 21 January 2004 and to expire on 20 July 2006. A total term of 3 years and six months to commence on 21 January 2004 and to expire on 20 July 2007 is fixed. In respect of counts 17 and 30 on the first indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 April 2005 and to expire on 20 October 2006. A total term of 2 years and six months to commence on 21 April 2005 and to expire on 20 October 2007 is fixed. In respect of counts 1, 2 and 3 on the second indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 July 2005 and to expire on 20 January 2007. A total sentence of 2 years and six months to commence on 21 July 2005 and to expire on 20 January 2008 is fixed. In respect of all other matters, being counts 8, 9, 10, 15, 16, 23, 24, 31 and 32 on the first indictment and counts 4, 5, 6, 7, 8 and 9 on the second indictment, the respondent is sentenced to a non-parole period of 18 months to commence on 21 January 2006 and to expire on 20 July 2007. A total term of 3 years and six months to commence on 21 January 2006 and to expire on 20 July 2009 is fixed. The total effective non-parole period is thus one of 3½ years and the total sentence is one of 5½ years.

4 The respondent is thus eligible for parole on 20 July 2007.

41 HALL J: I agree with Buddin J.

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08/03/2006 - Incorrect parole date - Paragraph(s) paragraph 40