R v Lemene

[2001] NSWCCA 5

Reported Decision: (2001) 118 A Crim R 131

New South Wales

Court of Criminal Appeal

CITATION:	R v Lemene [2001] NSWCCA 5
FILE NUMBER(S):	CCA 60370/99
HEARING DATE(S):	8/12/2000
JUDGMENT DATE:	9 February 2001
PARTIES :	Regina Remy Lemene
JUDGMENT OF:	Simpson J at 1; Dowd J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0108
LOWER COURT JUDICIAL OFFICER :	Shillington DCJ

COUNSEL :	LMB Lamprati- Crown CB Craigie- Appellant
SOLICITORS:	SE O'Connor- Crown DJ Humphreys- Appellant
CATCHWORDS:	Appeal against severity of sentence - Error in applying Pearce v The Queen conceded - Error in taking matters into account - Re-sentencing - Application of Crimes (Sentencing Procedure) Act 1999
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Sentencing Act 1989
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610. R v Gardner (Unreported, NSWCCA, 12/4/1994, Carruthers J, Abadee and Blanch JJ). R v Hammoud (Unreported, NSWCCA, 15/12/2000, Mason P, Simpson and Dowd JJ). R v Henry & Ors (1996) 46 NSWLR 436. R v Hodge (Unreported, NSWCCA, 2/11/1993, Hunt CJ at CL, Allen J and Loveday AJ). R v Jenkyns (Unreported, NSWCCA, 19/5/1993, Sheller JA, Wood and Sully JJ). R v Morgan (1993) 70 A Crim R 368. R v Thompson; R v Houlton [2000] NSWCCA 309. R v Vougdis (1989) 41 A Crim R 125.
DECISION:	1. Application granted; 2. Appeal allowed; 3. That the sentences imposed by Shillington DCJ be quashed; 4. For re-sentencing, see paragraph 68.

IN THE COURT OF
CRIMINAL APPEAL

SIMPSON J
DOWD J

60370/99

January 2001

R v Remy LEMENE

1    SIMPSON J: I have had the advantage of reading in draft the judgment of Dowd J and I agree with his Honour that error has been demonstrated in two respects. Firstly, as was conceded by the Crown, proper application of the principles expounded in Pearce v R (1998) 194 CLR 610 demanded the imposition of a sentence appropriate to each individual charge to which the applicant pleaded guilty. There were ten such charges: two of robbery, seven of armed robbery, and one of break enter and steal in circumstances of aggravation, each of which carries a maximum penalty of imprisonment for twenty years.

2    A judge called upon to sentence a single offender in respect of multiple counts may frequently become involved in a somewhat complex exercise in partial accumulation, guided by the principle of totality. In this respect I adhere to the views expressed in R v Hammoud (Unreported, NSWCCA, 15/12/2000, Mason P, Simpson and Dowd JJ). Post Pearce, it will no longer be open to a sentencing judge to select the term of imprisonment appropriate to punish the offender for the overall criminality, and impose a sentence of that length in relation to each count. Each count must be considered individually.

3 In this case the identical sentences imposed in relation to each charge on the indictment reflected only the principle of totality, and not the gravity of each of the individual offences. Each offence was itself plainly very serious. Even so, giving full weight to its objective seriousness, and taking into account the numerous offences listed pursuant to s21 of the Criminal Procedure Act 1986, none of the individual offences alone would justify a sentence of sixteen years. I hasten to stress that that is not necessarily to say that the overall term that the applicant would be required to spend in custody in accordance with the sentences imposed is excessive; merely that the sentences as structured do not reflect compliance with the admonition to “fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" (Pearce, p 624). For that reason alone, the sentences must be restructured.

4 The second error identified by Dowd J concerns the approach taken by the sentencing Judge to sentencing on count 2 (a charge of armed robbery), which was selected as the count in relation to which the s21 offences were to be taken into account. In this respect the sentencing judge was presented with a peculiarly difficult task. He was required to sentence the applicant for an offence of armed robbery carrying, as I have noted, a maximum penalty of imprisonment for twenty years. In conjunction with that offence, he was asked to take into account no fewer than thirty-two other offences, eighteen of which were of armed robbery, one of robbery with a dangerous weapon, and ten of armed robbery in company. The remaining three offences, while still serious were not in the same category. As Dowd J has noted, in these circumstances it was necessary that the sentence imposed in relation to count 2 be distinguishable from the sentences in relation to other similar counts, and contain an observable component to reflect the s21 offences. The sheer number and bulk of these offences was apt to unbalance the sentence imposed in relation to count 2, and give it the appearance of disproportion. In my view the procedure adopted in this case was questionable. It is difficult to imagine how an “appropriate” sentence can be fixed in relation to a single count of armed robbery, which has attached to it a further twenty-nine offences of the same or similar kind. In R v Vougdis (1989) 41 A Crim R 125, Yeldham J criticised the Crown (and the sentencing judge) for permitting the adoption of a procedure whereby three offences of armed robbery were to be taken into account on a sentence for manslaughter. Yeldham J was of the view that serious charges, unrelated to the principal charge, should ordinarily be separately charged so that separate sentences are imposed in relation to those offences. Taking such a course would not preclude proper attention to the principles of totality or due recognition of the pleas of guilty.

5    Neither of the other members of the court in Vougdis (Campbell and McInerney JJ) expressly agreed (or disagreed) with Yeldham J’s remarks. But those observations were taken up and endorsed by Hunt CJ at CL (with whom Allen J and Loveday AJ agreed) in R v Morgan (1993) 70 A Crim R 368. There the judge was asked, when sentencing following a plea of guilty to a charge of murder, to take into account an offence of armed robbery with striking and one of break enter and steal. Although there is a distinction to be observed between those cases and the present (in that the s21 offences in this case ought not be categorised as “unrelated” to the principal offence, forming, as they do, part of a course or pattern of conduct) the point made is of relevance. Some care should be taken to ensure that the s21 procedure is appropriately used. It is the Crown that bears the onus of ensuring that it is not misused.

6 The procedure which was followed in each of these cases was that provided by s21 (now repealed and transferred in substance to Pt 3, Division 3 of the Crimes (Sentencing Procedure) Act 1999). Subsection (3) of each section, while framed in slightly different terminology, requires that when the procedure is implemented, the penalty imposed in relation to the principal offence (that is, the offence on the indictment) must not exceed the maximum penalty which the court would have been empowered to impose if no other offence had been taken into account.

7    The procedure so afforded is not a procedure whereby an offender can admit to the commission of offences, and wipe the slate clean without incurring any additional penalty. Nor is it a procedure which necessarily results in only a small penalty additional to that which would otherwise have been imposed in relation to the principal offence: Morgan, 372. In saying this, I recognise that an offender who adopts the procedure is entitled to expect that the additional penalty will be significantly less than would have been imposed had separate charges been prosecuted. If that were not so, the section would provide no incentive for the use of the procedure, which is administratively convenient both to the prosecution and to the courts. For it to be attractive to an offender, it must afford some benefit to him or her also.

8 I have dealt at some length with s21 because it seems to me that the number and seriousness of the offences dealt with in that way provide, in part, at least the explanation for the error identified by Dowd J. There was, nevertheless, an error in the sentencing process, and this court must proceed to re-sentence. It was, in fact, an error that favoured the applicant. The sentence imposed in relation to count 2 should have been considerably longer than the sentences imposed in relation to the other counts. That error was observed by the omission to follow the Pearce requirements.

9    The sentencing judge declined to find special circumstances pursuant to s5 of the Sentencing Act 1989 (also now repealed) such as to justify variation of the conventional proportions between what were then called minimum and additional terms. There is no challenge to his Honour’s finding in this respect, but since this court must exercise its own sentencing discretion, it is also appropriate to give consideration to that question. I agree with Dowd J that such a finding is open, and should, in this case, be made.

10    I agree with the orders proposed by Dowd J.

11    Accordingly, the orders of the court will be as prepared by Dowd J.

12    DOWD J: The applicant, Remy Lemene, sought leave to appeal against sentences imposed upon him by Shillington QC DCJ on 14 May 1999, he having previously pleaded guilty to ten offences involving armed robbery and robbery in company, and one offence of break, enter and steal.

13    At the time of sentence, His Honour was asked to take into account some twenty-nine additional armed robbery offences, one offence of possessing a prohibited weapon, and two steal motor vehicle offences, on two Form Ones.

14    On each of the ten counts, His Honour imposed a minimum term of twelve years imprisonment commencing on 10 November 1998 to expire on 9 November 2010, and an additional term of four years to commence on 10 November 2010 and to expire on 10 November 2014. The applicant had been arrested on 10 November 1998. Bail was refused and he has remained in continuous custody since that time.

15    The applicant is thirty years of age, and has an extensive criminal record dating back to 1984. Early offences included matters relating to the wrongful use and stealing of vehicles, and absconding from custody. In the late 1980’s, the offences included drug abuse matters and unlawful entry on premises, progressing later to armed robbery.

16    The first of the offences now before this Court, occurred on 22 June 1998. The remainder of the offences occurred between 6 October 1998 and 10 November 1998. The robbery offences were carried out in a variety of shops using a similar method whereby the applicant would seek to purchase some minor item, handing over small change as if to pay for the item. After the victim had opened the cash register, the applicant would seize money from the register while at the same time threatening the victim with a blood-filled syringe. Occasionally a replica pistol was used.

17    On 9 November 1998, 17 November 1998, and 4 December 1998, the applicant participated in video interviews and made a significant number of admissions which were the basis of charges additional to those about which he was originally questioned.

18    At sentence, the applicant pleaded guilty to the following matters on indictment:

A) Two counts of robbery, contrary to s95(1) of the of the Crimes Act 1900 (‘the Act’), to which a maximum penalty of twenty years penal servitude applies: Counts 1 and 3;

B) Seven counts of robbery whilst armed with an offensive weapon, contrary to s97(1) of the Act, which carries a maximum penalty of twenty years penal servitude: Counts 2,4, and 6-10; and

C) One count of break, enter and steal, contrary to s112(2) of the Act, which carries a maximum penalty of twenty years penal servitude: Count 5.

19    Taken into account on count 2, were one count of robbery with a dangerous weapon included on two Form One’s; eighteen counts of armed robbery; one count of possess a prohibited weapon; ten counts of armed robbery in company; one count of larceny of motor vehicle and an associated count of take and drive a motor vehicle in respect of the same vehicle.

Facts

20    The facts relating to the individual counts are set out as follows:-

Count 1
Robbery: s95(1) Crimes Act

21    On 22 June 1998 at Bexley, the applicant robbed McFarlands Pharmacy in company with an unknown person. The proceeds taken amounted to $950. A syringe was used, the contents of which could not be ascertained. Apart from the holding of a syringe, no other threat was made, although a telephone was pulled from its connection as the offenders left.

Count 2
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

22    On 6 October 1998, the applicant robbed the East Sydney Newsagency at Darlinghurst of $1,986.70. The applicant was armed with a blood-filled syringe. On this occasion, a man spoke to the victim at about 11.20am on the pretext of buying a newspaper.

23    According to the victim, the syringe was approximately one foot from her and was pointed at her right arm. The applicant appeared impatient, and as a result, pushed passed the victim and attempted to open the till himself by pressing the key. The victim eventually opened the till.

24    The applicant stated “I’m sorry” and seized the cash. The applicant, on the ERISP on 17 November 1998, made admissions in relation to this count.

Count 3
Robbery: s95(1) Crimes Act

25    The applicant, in company with an unknown person, took $1000 from Civic Video, Sydney, at about 6pm on 16 October 1998. A male person said:

“Give me the money or I will spray you will blood, I got AIDS”.

He was holding a syringe full of a red coloured liquid, that looked like blood. The other person appeared to be carrying a knife and, upon leaving the store, said:

“Sorry about this, we have no choice I have AIDS.”

Count 4
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

26    On 19 October 1998, in company, the applicant, armed with a blood filled syringe, robbed a Seven-Eleven store on Goulburn and Sussex Street, Sydney. The amount taken was $790.

27    In a similar manner to the other offences, the applicant pretended to purchase a small value item, in order to have the till opened. As the money was snatched, the victim stated that one of the offenders attempted to hit him. Once the money was seized, the two men left immediately.

Count 5
Break, Enter and Steal: s112(2) Crimes Act

28    On 23 October 1998 at about 11.30am, whilst armed with a kitchen steak knife, the applicant robbed premises at 250 St Johns Road, Glebe, taking $900, a Hanimax Instamatic camera, a Nokia mobile phone, a car, and house keys. The occupier was woken in the process of the robbery.

29    Upon taking the occupier’s car and house keys, applicant said to him:

“Hey mate, I need to have your car, lets go.”


He also stated that he was “in a bit of trouble”.

30    The applicant insisted that the occupier accompany him to the car. The occupier however evaded this by misdirecting the applicant in the location of the car. Consequently, the applicant fled on foot.

Count 6
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

31    On 31 October 1998 at about 5.25pm, the applicant, armed with a blood-filled syringe, robbed St Leonards Cellars of $1,100 and a corkscrew. In the ERISP, it was identified that the corkscrew was apparently used as a car stealing device.

32    According to the victim, the applicant leaned over the counter towards him with his right arm extended towards his neck. The applicant held a syringe (the contents of which were unclear to the victim), and said:

“This has got AIDS. I’m just going to take this money out of the register.”


Once the money was taken from the till, the applicant took a bottle opener and asked:

“What’s my chances of having one of these.”

The victim replied:

“Pretty Good.”

33    The applicant made admissions in the ERISPS.

Count 7
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

34    On 3 November 1998, the applicant robbed the Liquorman store at Bellevue Hill, of $1,000, whilst armed with a blood-filled syringe.

35    The victim stated that at about 1.10pm when he was alone in the shop, a male and female approached him and pretended to buy champagne to share with a friend who had AIDS. Whilst at the service counter, the applicant said:

“I’m the one whose got AIDS and I’ll give it to you unless you give me the money.”

According to the victim, it appeared that the applicant was holding a syringe with a red nib, which he was pointing directly at the victim. After taking the money, the couple fled the scene, leaving in either a white Commodore or Falcon sedan.

36    In the ERISP, the applicant made admissions in relation to this matter.

Count 8
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

37    On 4 November 1998, armed with a blood-filled syringe, the applicant robbed Newtown Fine Wines of $818.20. The applicant pretended to purchase cigarettes. Once the register was open, the applicant produced a syringe with his right hand, held it up and flicked the orange lid off it. He leant over to the victim and said:

“This is an AIDS filled syringe, don’t fuck with me”

38    The applicant made admissions in the ERISP, although he did assert that he did not remove the cap from the syringe when committing the robberies.

Count 9
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

39    On 8 November 1998, the applicant and a female co-offender robbed a McDonalds restaurant in Bondi Junction, of $780 in proceeds. At about 12.30am, the victim was approached by the applicant who bought a plain ice-cream. Whilst holding a silver hand gun, the applicant stated, among other things, words to the effect of:

“You don’t want this thing to go off do you? Open the drawer again”.

40    According to the victim, the hand gun did not appear real.

41    The victim noticed that the applicant was holding a syringe in his left hand which appeared to be half-full of a red substance. The victim considered the syringe to be the applicant’s main threat.

42    The police did not prefer charges in this offence until, in conversations with a detective and an ERISP, the applicant indicated, contrary to police expectations arising from the variation of the modus operandi, that he had in fact committed this offence. Without the admission, there would have been no basis for charging or convicting the applicant.

Count 10
Armed Robbery with Offensive Weapon: s97(1) Crimes Act

43    On 9 November 1998, the applicant robbed the Smokemart Store at Hurstville, of $930. At the time of the robbery, the victim was working alone in the store.

44    According to the victim, the applicant had entered, looked around, and then left the store several times. The applicant, using the ruse of purchasing Tally Ho cigarette papers, produced a syringe containing a small amount of clear liquid, when the till was opened. The victim attempted to close the till, however as she did so, the applicant said:

“Don’t do anything stupid. There’s AIDS in it.”

Upon taking the money, the applicant further stated:

“Don’t bother following me because I will throw this at you.”

45    In the principal ERISP, the applicant made admissions in relation to this offence.

The Form 1 Matters

46    The majority of the Form 1 matters were described relatively briefly and some were shorthand references only in the ERISP, whereby the applicant agreed that he had in fact committed the offence in question. On some occasions however, the applicant remembered particular details of the offence. These were taken into account in the second count in the indictment, being the armed robbery offence at the East Sydney Newsagency where the sum of $1986.70 was taken.

Applicant’s Grounds Appeal

47    The applicant appealed against the sentences imposed upon him by Shillington QC DCJ on the following grounds:

1. That the sentencing judge erred in giving inadequate weight to the applicant’s plea of guilty, and the contrition evidenced by the applicant’s admissions;

2. That the sentencing judge erred in failing to find special circumstances;

3. That the sentences imposed were manifestly excessive; and

4. The applicant sought to rely on fresh psychiatric evidence touching the subjective issues not able to be fully examined by the learned sentencing judge, which was not available on sentence and that the applicant suffered from an inherent condition which prevented him from both co-operating in the obtaining of material at the time of the sentence and from appreciating its significance in the process.

48    During the course of oral submissions, the Crown was asked about the plaintiff’s submission concerning Pearce v The Queen (1998) 194 CLR 610. The Crown conceded that His Honour, the Sentencing Judge, had erred in relation to the application of Pearce, the error having been clearly established on an examination of the sentencing process. Consequently, this Court was obliged to proceed to re-sentence.

49    The fact that his Honour failed to fix a sentence in respect of each of the offences, and then constructed a sentence taking into account the totality of the criminality involved, was erroneous and then imposed that same sentence for all offences. Additionally, thirty-two mostly serious other offences were taken into account on one offence, without that offence, the second count, having any increase in its term from the other sentences, and, in the light of the vast quantity and serious nature of those offences, that was a further indication of error, since the thirty-two matters could hardly have been taken into account where no additional period of imprisonment is imposed.

Re-sentencing

50    To assist in assessing the courts in the re-sentencing process of the offences committed, the court was provided with evidence as to sentencing patterns from the Judicial Commission. With multiple offences, there is not however an easy basis for comparing the present offences with like patterns of multiple offences. Consequently, such statistics are of limited assistance.

The Applicant’s Antecedents

51    The applicant has a very lengthy criminal history which dates back to 1984, when he was thirteen years of age. Although some of the offences were committed whilst the applicant was a child, there are however a large proportion of offences committed whilst the applicant was an adult. The majority of the applicant’s criminal history comprises of stealing offences, including armed robbery, or offences dealing with the illegal use of a motor vehicle.

52    On 25 January 1996, the applicant came before the Sydney District Court in relation to two armed robbery offences. Moore DCJ imposed a sentence comprising a minimum term of twelve months and an additional term of three years which was to commence on 20 November 1996. This additional term was current when the offences now before this Court occurred.

53    In relation to the present offences, it is not disputed that the applicant pleaded guilty at an early stage. The applicant admitted his involvement in the offences when questioned by police and was very co-operative in admitting guilt and providing information. Shillington DCJ, considering the ten matters on indictment and the thirty-two matters in Form 1 documents, imposed an aggregated sentence of sixteen years penal servitude on each offence concurrently, with a minimum term of twelve years from 10 November 1998. The applicant is eligible for parole on 9 November 2010.

Subjective Factors

54    The applicant is now thirty years of age. He is the only child of his biological father, and has two half brothers.

55    The applicant has had an unstable and insecure childhood. He stated that he was sexually assaulted as a child, and would often suffer bashings from both his non-biological father and mother. These bashings would occasionally result in the applicant having to go to hospital. As a boy, these incidents led to him having several nightmares and headaches.

56    When the applicant was about fourteen years of age, his mother informed him that the person he knew as his father was not in fact his biological father. This revelation led to the applicant leaving home, causing him to survive on the streets.

57    The applicant has unfortunately received a relatively limited education. During the latter years of primary school, and on his entry to high school, the applicant exhibited disruptive behaviour. He began to truant from school, and his grades declined, with the overall result being that he has been educated only to a year 8 level. In an interview with forensic psychiatrist, Dr Westmore, the applicant stated that he would often not go to school after there were large fights at home.

58    The applicant has spent a significant number of years institutionalised. Between 1983 and 1988, he had continually spent periods in a boys’ home. In 1988, the applicant was, for the first time, admitted to an adult prison for the theft of a car. Since 1988, the applicant has reportedly spent time in prison every year, with the consequence that he has not spent a full twelve months in the community.

59    For the purposes of the appeal and for re-sentencing, two reports on the applicant, prepared by Dr Westmore, were admitted. This evidence set out a very sorry history of the life of the applicant, some of which has been set out above. Dr Westmore found that the applicant suffers from an anti-social personality disorder, arising from his early childhood development. He did not find any major depressive traumas.

60    At page five of the report of 5 June 2000, Dr Westmore said:

“Your client is an extremely disadvantaged person. He is disadvantaged socially, educationally, occupationally, psychologically and probably at times in the past psychiatrically in that he suffered from depression, he suffers substance abuse and he has personality difficulties of significant magnitude.”

Dr. Westmore recommended an extended rehabilitation from a psychiatric perspective, but conceded that the Department of Corrective Services can seldom provide the level of assistance that the applicant requires. Dr. Westmore found that the longer the applicant remained untreated, the more difficult his treatment would be and the more uncertain his outcome would be.

61    It was conceded by counsel for the applicant, that authorities concerning the use of a blood-filled syringe, such as R v Hodge (Unreported, NSWCCA, 2/11/1993, Hunt CJ at CL, Allen J and Loveday AJ), together with the vast number of offences, placed the applicant’s criminality at a very serious level.

62    Sentences imposed for serious multiple offences range considerably, but nonetheless demonstrate that the highest level offence has generally been in situations involving the gravest aggravation, such as the injuring of a victim or the locking of victims in a safe: R v Jenkyns (Unreported, NSWCCA, 19/5/1993, Sheller JA, Wood and Sully JJ); R v Gardner (Unreported, NSWCCA, 12/4/1994, Carruthers J, Abadee and Blanch JJ).

63    There have been relevant guideline judgments published relating to some of the elements in these present offences. In particular, in R v Henry and Ors (1996) 46 NSWLR 436, the Court of Criminal Appeal established a guideline of four to five years full term for this type of offence. However, that was in relation to young offenders with little or no criminal history. It must be remembered that in the present case, as against R v Henry and Ors, the applicant had an appalling criminal record and also committed the offences whilst on conditional release for a previous offence.

64    A further guideline judgment, R v Thompson; R v Houlton [2000] NSWCCA 309, sets out discounts that should be given for a plea of guilty. This is difficult to apply in the present case, as so many of the offences have been proved solely on the admission of the applicant.

65 Taking into account and giving appropriate reduction for the pleas of guilty and the limitations on the Court’s power to act leniently, arising from the applicant’s long criminal record and the aggravating factor that the offences occurred whilst the applicant was on conditional release, it seems to me that the proper sentence to fix for each of the nine offences which do not have the Form 1 matters taken into account, is five years full term. This Court now has available to it, s55 of the Crimes (Sentencing Procedure) Act 1999, a provision that permits partial accumulation of sentences, in imposing a total sentence which reflects the principle of totality. The learned sentencing judge did not have that power.

66 In relation to the robbery offence that took into account the thirty-two Form 1 offences, almost all of which are of the same order of seriousness as the present offence, it seems to me that the proper full term for that offence is twelve years. This takes into account the plea of guilty and the subjective factors and the concern expressed by Dr Westmore in relation to the further institutionalising of the applicant, who has already been significantly institutionalised. I will also deal with these factors when dealing with special circumstances in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 in relation to this offence. I would impose sentences as follows:

· For Counts 1 and 3 relating to robbery contrary to s95(1) of the Act, I would fix a sentence of five years to commence on the date of the applicant’s imprisonment on 10 November 1998.

· In respect of Counts 4 and 6-10, being the six offences of robbery whilst armed with an offensive weapon, contrary to s97(1) of the Act, I would fix in respect of each offence, a fixed term of five years, all of which will commence on 10 November 2000 and to be served partly concurrently with the previous sentences and concurrently with each other.

· In respect of the break, enter and steal in circumstances of aggravation contrary to s112(2) of the Act, I would impose a sentence of five years to commence on 10 November 2001 to be served partly concurrently with the previous sentences.

· In respect of count 2, robbery whilst armed with an offensive weapon, to which 18 counts of armed robbery; 10 counts of armed robbery in company; one count of possess a prohibited weapon; one count of robbery with a dangerous weapon; one count of possess prohibited weapon; one count of larceny of a motor vehicle; and an associated count of take and drive a motor vehicle; I would impose a sentence of twelve years, commencing on 10 November 2001, partially concurrently with the previous sentences, with a non-parole period of eight years to expire on 9 November 2010, from which time the applicant will be entitled to apply for parole.

67 I find in relation to the last offence, that there are special circumstances in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 and therefore fix a four year period longer than one quarter of the full term to take into account that the parole period is at the end of an accumulation of fixed and concurrent terms and to assist the rehabilitation of the applicant who has spent very little of life out of an institution.

68    The orders therefore that I propose are as follows:

1. That the application be granted;

2. That the appeal be allowed;

3. That the sentences imposed by Shillington DCJ be quashed, and in lieu thereof, the following sentences be imposed:

a) In respect of counts 1 and 3, that the applicant be sentenced to fixed term of five years on each offence, to be served concurrently, to commence on 10 November 1998 and to conclude on 9 November 2003.

b) In respect of counts 4 and 6-10, I fix a sentence of a fixed term of five years in respect of each offence, to be served concurrently with each other, and partly concurrent with the two previous sentences, such sentence to commence on 10 November 2000.

c) In respect of count 5, I impose a fixed term sentence of five years to commence on 10 November 2001 and to conclude on 9 November 2006, to be served partly concurrently with the previous sentences.

d) In respect of count 2, taking into account the thirty-two matters on the two Form Ones, a sentence of 12 years imprisonment will be imposed, commencing on 10 November 2001 concluding on 9 November 2013, partly concurrent with the previous sentences, with a non-parole period of eight years concluding on 9 November 2009, after which time the applicant will be entitled to apply for parole.

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