R v NELSON - [2017] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NELSON
[2017] SASCFC 40
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
8 May 2017
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CONSEQUENCES OF OFFENCE OR IMPACT ON VICTIM
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINALITY - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - SUBSTANCE ABUSE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
Appeal against sentence imposed by District Court for one count of causing serious harm with intent to cause serious harm. Defendant was sentenced to four years imprisonment reduced by 20% in recognition of guilty plea, resulting in a head sentence of three years and three months and a non-parole period of one year and six months. Applicant submitted that this is a rare and exceptional circumstance where permission to appeal against sentence should be granted, that the starting point of four years was manifestly inadequate, and that this inadequacy affected the non-parole period which was proportionately low compared to the head sentence. Respondent submitted that there was no process error as the sentencing judge had regard to all relevant matters and that while the sentence was merciful there was not an outcome error.
Held, per Parker J (Kourakis CJ and Nicholson J agreeing), allowing permission to appeal and allowing the appeal:
1. This is a rare and exceptional case that requires the grant of permission for the Crown to appeal.
2. The fact that the offence occurred against a background where the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted.
3. The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.
4. The sentence imposed by the District Court is set aside and a starting point of imprisonment for six years and six months is adopted. After allowing a discount of approximately 20% on account of guilty plea, a head sentence of imprisonment for five years and a non-parole period of three years is imposed.
Criminal Law Consolidation Act 1935 s 23, s 340, referred to.
Bugmy v The Queen (2013) 249 CLR 571; Munda v State of Western Australia (2013) 249 CLR 600, discussed.
Mason-Stuart v The Queen (1993) 61 SASR 204; Neal v The Queen (1982) 149 CLR 305; Neil Inkamala Minor (1992) 59 A Crim R 227; R v Abdulla (2005) 93 SASR 208; R v Everett (1994) 181 CLR 295; R v Hughes; R v Rigney-Brown [2016] SASCFC 126; R v Kong (2013) 115 SASR 425; R v Lennon (2003) 86 SASR 295; R v Postolovski [2016] SASCFC 69; R v Wilkinson (2008) 101 SASR 121; R v Payne (2004) 89 SASR 49; Western Australia v Munda (2012) 43 WAR 137, considered.

R v NELSON
[2017] SASCFC 40
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ: I would grant permission to appeal and allow the appeal. I agree with the reasons of Parker J.
NICHOLSON J: I agree with the orders proposed by Parker J and with his Honour’s reasons.
PARKER J: This is an application by the Director of Public Prosecutions for permission to appeal against sentence. For the reasons which follow, I would grant permission to appeal and allow the appeal.
Background
After pleading guilty to the offence of causing serious harm with intent to cause serious harm contrary to s 23(1)(a) of the Criminal Law Consolidation Act 1935 the defendant (respondent) was sentenced to imprisonment for three years and three months with a non-parole period of one year and six months. The maximum penalty for this offence is imprisonment for 20 years.
The sentencing judge indicated that the starting point for the sentence had been imprisonment for four years and a reduction of 20% had been allowed on account of the defendant’s guilty plea. The sentence was backdated to 1 September 2015 when the defendant was taken into custody.
The offence occurred on 31 August 2015 at a house in Kilburn where he and his former domestic partner were staying. The victim had entered the lounge room of the house telling those present that the defendant had tried to hit her. He then entered the lounge room and began calling her names. He grabbed her and dragged her outside. The defendant then violently assaulted the victim while she lay on the ground. He was seen to hit her repeatedly to the head with both fists and also repeatedly kick her to the head and body while she remained on the ground. The defendant then left the scene but returned shortly after and told the victim to get up. He did not provide any assistance to the victim nor did he seek medical attention. Another person asked a neighbour to call the police. The defendant had fled the scene by the time the police arrived. He was arrested elsewhere the following day.
On 6 November 2015 the police obtained a statement from Dr Maria Paul, a specialist in rehabilitation medicine employed at the Hampstead Rehabilitation Centre and elsewhere. Dr Paul stated that the victim sustained intra-cranial haemorrhages and fractures to facial bones and her jaw. Surgery had been required to deal with the fractures. The victim had also sustained an extremely severe traumatic brain injury. Recovery from the brain injury could take one to two years. When Dr Paul made her statement the victim was still in the early stages of her brain healing. Thus, the exact extent of her recovery could not be accurately predicted. Given the severity of her injury it was expected by Dr Paul that the victim will not attain 100% recovery and was likely to remain with some long-term cognitive deficits.
A victim impact statement dated 8 August 2016 recorded that the assault had had a big impact on the way the victim felt. Sometimes she felt miserable and at other times she could not sleep because of bad dreams or worrying. The victim also stated that she was anxious and always on edge. She suffered from flashbacks. These difficulties “hurt her spirit”.
The victim also stated that when she first “got out” (which I take to mean being discharged from the Hampstead Centre) she had to use a walking stick and walking frame “like an old lady”. She is aged 26 years. She stated that her walking was still very wobbly. She had much pain in her back and leg and could not hold herself steady. She needed physiotherapy but this was difficult to arrange, apparently due to her residence on the APY lands.
The defendant’s personal circumstances
The defendant’s personal circumstances were set out in considerable detail in reports provided by two psychiatrists, Dr Craig Raeside and Dr Jules Begg, and two psychologists, Dr Jack White and Mr Richard Balfour. The reports prepared by Dr Raeside, Dr Begg and Dr White date from 2013 and were prepared in relation to earlier criminal proceedings. The report of Mr Balfour was prepared in June 2016 for use in the current matter. The focus of each of the reports was upon the availability of the mental impairment defence.
Dr White’s report was prepared in June 2013. He had the assistance of a Pitjantjatjara interpreter. The defendant informed Dr White that he had been brought up by his grandfather on the APY lands. His parents lived at separate locations in the Northern Territory. He had attended the Wiltja program at Woodville High School for three years. Dr White noted that the program catered for students from the APY Lands who showed academic potential. Adult men and women from the Lands worked with the students to provide language, family and cultural support.
The defendant informed Dr White that he had been a petrol sniffer from the age of nine years to sixteen years. He described himself as a moderately heavy drinker of alcohol when he had money and would often drink in parks which could lead to fighting.
Dr White administered psychological tests that had been evaluated to establish normative measures for Aboriginal children without a history of petrol sniffing. The defendant’s abilities were found to be extremely poor and within the intellectual disability range. However, his performance on a visual spatial recognition test did not show any impairment. Dr White noted that there was no mention of petrol sniffing in the defendant’s medical notes. Nevertheless, Dr White reported that it was possible that the defendant’s history of petrol sniffing and substance abuse may have significantly contributed to his impairment. Dr White reported that he was unfit to stand trial on the charges then pending.
Dr Raeside reported in 2013 that he had experienced great difficulty in obtaining any useful information from the defendant. Dr Raeside did not consider that the defendant required any psychiatric treatment although there may have been brief episodes of psychosis and mood disturbance that were probably associated with substance abuse. His underlying intellectual and cognitive impairment was permanent although abstinence from illicit drugs and alcohol may help him to present better than he would when using these substances.
Dr Begg saw the defendant some three months after Dr Raeside in 2013. He also conducted the interview with the assistance of a Pitjantjatjara interpreter. Dr Begg noted that the defendant was able to understand English and answered most questions directly rather than through the interpreter. In some instances it had been necessary for the interpreter to put the question. The defendant was clearly far more communicative in his meeting with Dr Begg than he had been with Dr Raeside. However, he was reluctant to talk about the circumstances of the offence with which he was then charged. He said that he had been reluctant to talk to Dr White and Dr Raeside because he was ashamed.
While Dr Begg was not qualified to assess formally the defendant’s intelligence, he considered that he was of low average intelligence. Dr Begg also considered that the defendant was mentally competent to commit the offence then charged and also mentally fit to stand trial.
Mr Richard Balfour saw the defendant in June 2016. Mr Balfour has conversational level skills in Pitjantjatjara and spoke to the defendant in a combination of that language and English. He concluded that the defendant was of low average intelligence. The defendant’s father and mother are both Walpiri people from the Northern Territory but his grandfather is Pitjantjatjara. His five siblings all reside at Ernabella on the APY Lands. He speaks Pitjantjatjara, Walpiri and English. He has been initiated and scars from ritual spearing appear on his upper right thigh. That indicates past punishment for a major behavioural transgression. In Mr Balfour’s view, there is a realistic possibility that he will be subject to payback by the victim’s family.
Mr Balfour reported that the defendant had forgotten how to read and cannot write in English nor can he read and write in Pitjantjatjara. The defendant told Mr Balfour that he had sniffed petrol and Tarzan’s Grip glue on nearly a daily basis for four years from the age of ten years.
Due to the defendant’s poor motivation to complete tests, Mr Balfour was only able to partially conduct a neuropsychological assessment. Mr Balfour estimated that he was of low average intelligence but was not convinced that he had an intellectual disability. He had a documented history of drug induced psychosis largely related to excessive cannabis use. There was no clinical evidence that he was currently acutely psychotic though he had been treated for cannabis withdrawal symptoms when remanded in custody. He does have a number of significant risk factors for an acquired brain injury, ie a history of petrol sniffing and cannabis and alcohol abuse. It was not clear without access to his school records and his co-operation with testing to determine whether he had a clearly identifiable mental impairment. Mr Balfour believed that the reluctance of the defendant to answer questions about his offending behaviour was largely caused by cultural shame.
Mr Balfour expressed the opinion based on the background documentation and reports that the defendant was clearly intoxicated at the time of the offence. His social judgment would have been impaired and he would have been both behaviourally disinhibited and emotionally labile. His intoxication would have been the primary factor contributing to the offending behaviour. He would have been able to understand the nature and quality of his actions and their wrongfulness. The fact that he quickly departed from the crime scene suggested that he knew he was in “big trouble”.
A report from the Department for Correctional Services indicated that the defendant was not considered suitable to participate in the mainstream programs offered by the Department. However, he would be considered for the Cross Borders Program conducted from the Port Augusta Prison over fifteen sessions of four hours. The program was considered to be culturally and linguistically appropriate and designed to address issues of family violence, anger management and substance misuse. Detailed explanatory material relating to the Cross Borders Program was provided to the sentencing judge.
The defendant has a significant criminal history. He has been convicted in the Northern Territory and in South Australia on seven occasions of assault or aggravated assault and on one occasion for indecent assault. He has also been convicted of making a threat to kill a person, going armed in public, serious criminal trespass (twice) and also a range of traffic offences, breaches of bail agreements and public order offences.
On 18 June 2015 the defendant was convicted in the Magistrates Court of two charges of assault, one charge of disorderly behaviour and one charge of breaching bail. The first assault offence had occurred on 18 January 2015. He chased a woman on North Terrace who was holding a drink bottle in her hand that he was trying to take from her. He punched her to the body several times and then ran off through the traffic. The second assault offence and breach of bail had occurred on 22 February 2015. The defendant was seen to kick the woman whom had been the victim in the January incident in the head and face while she was on the ground. He had stomped on her head twice albeit that he was bare-footed.
The magistrate imposed a single penalty under s 18A of the Criminal Law (Sentencing) Act of four months imprisonment. That had been reduced from six months and one week on account of the defendant’s guilty pleas. The magistrate warned the defendant that if he assaulted someone again he may find himself back in prison. The sentence was backdated to 22 February 2015 when the defendant went into custody. Thus, he would have been released from prison some two months before the offence to which this appeal relates.
Sentencing remarks
The sentencing judge described the circumstances of the offending and the impact on the victim. His Honour also referred to the psychiatric and psychological reports and, in particular, that of Mr Balfour. The judge also referred to the information supplied by the Department for Correctional Services.
The sentencing judge stated that he took into account the cultural disadvantage suffered by the defendant. His Honour noted the observation in R v Fernando by Wood J that the same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or their membership of an ethnic or other group[1]. However, that did not mean that the sentencing court should ignore those facts which exist only by reason of the offender’s membership of such a group. The relevance of the offender’s Aboriginality was not necessarily to mitigate punishment but rather to explain or throw light on a particular offence in the circumstances of the offender. It is also proper for the court to recognise the problems within Aboriginal communities and that the cure often requires more subtle remedies than the criminal law can provide by way of imprisonment. His Honour went on to observe that when sentencing an Aboriginal offender who comes from a deprived background, or who is otherwise disadvantaged by reason of social or economic factors, or who has little experience in European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in a foreign environment dominated by prison officers of European background with little understanding of the culture, society or personality of the prisoner.
[1] (1992) 76 A Crim R 58.
The judge then also observed that while it is important to ensure that the punishment fits the crime, and not to lose sight of the objective seriousness of the offence, full weight must be given to the competing public interest in the rehabilitation of the offender and the avoidance of recidivism. It was also important that the law was designed to protect the vulnerable. Violence against women is an increasing problem and indigenous women have suffered much of the same deprivation as indigenous men. They have the added burden of being subjected to ongoing violence, degradation and humiliation.
The judge stated that but for the defendant’s plea of guilty, he would have been imprisoned for four years. After allowing a discount in the order of 20% in recognition of his guilty plea, the sentence was reduced to imprisonment for three years and three months. The non-parole period was fixed at one year and six months. The judge stated that the offending was too serious to consider suspension. The sentence and non-parole period were backdated to 1 September 2015 when the defendant was taken into custody. The judge also noted that it would be of assistance if the defendant could be placed in the Port Augusta prison so as to have access to the Cross Borders Program and to be closer to his family.
The Director’s submissions
The Director acknowledged that the Court should only grant permission to appeal against sentence in rare and exceptional circumstances. In this case, the inadequacy of the sentence was such that the public interest in the imposition of an appropriate sentence outweighs the public interest in protecting persons from having their liberty twice placed in jeopardy.[2]
[2] R v Koch [2015] SASCFC 31 at [23].
The Director submitted that while it was necessary for the sentencing judge to take into account the defendant’s Aboriginality and personal circumstances in arriving at a proper sentence, it was also necessary to take into account the need to protect others, particularly women, from his violent conduct. The seriousness of the offending, the need for personal and general deterrence and the importance of protecting the community from the defendant’s violent conduct were not reflected in the head sentence and the non-parole period. The starting point of four years for the head sentence was manifestly inadequate. This inadequacy had also affected the non-parole period and was compounded by the relatively low proportion that the non-parole period bore to the head sentence. The Director contended that the defendant should be resentenced.
The defendant’s submissions

The defendant made submissions to the same effect as the Director concerning the principles to be applied when the Crown seeks leave to appeal against sentence. The defendant also contended that there was no process error as the sentencing judge had regard to all relevant matters. While the sentence was merciful there was not an outcome error.
The defendant submitted that it must be recognised that Aboriginal people are over-represented in the prison system. The social complexities of indigenous drug use, together with other criminogenic factors affecting Aboriginal people, may, on occasion, require modification or amelioration of otherwise harsh policies of deterrence. In that context it was observed that it was likely that the defendant had been affected by petrol sniffing from a relatively young age and also by alcohol and drug abuse. At best he was of low average intelligence and there was some suggestion that he suffered from executive dysfunction and social and intellectual disability. In that light the defendant referred to the observation by King CJ in Mason-Stuart v The Queen that the importance of fixing a sentence which is proportionate to the gravity of the crime and which operates as a general deterrent is considerably less when the court is dealing with a person of diminished responsibility.[3]
[3] (1993) 61 SASR 204 at 205.
It was also submitted that the fact that the defendant had previously undergone ritual spearing as a traditional punishment should ameliorate the need for personal deterrence.[4]
[4] Neil Inkamala Minor (1992) 59 A Crim R 227.
Consideration
The Court will only grant permission to the Crown to appeal against a sentence in rare and exceptional circumstances.[5] That reflects the reluctance of the common law to expose a defendant to double jeopardy by being sentenced on a second occasion for the same offence.[6] Leave will not be granted merely because an error may have been made. The proper approach to Crown applications for permission to appeal against sentence was described by the Court of Criminal Appeal (comprising five judges) in R v Payne as follows:[7]
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300; Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212-213.
[5] R v Everett (1994) 181 CLR 295 at 299-300.
[6] Malvaso v The Queen (1989) 168 CLR 227 Deane and McHugh JJ at 234.
[7] (2004) 89 SASR 49 at 70 (Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ).
To obtain leave to appeal against sentence the Crown must do more than satisfy the court that an error may have been made. The Director did not submit that it is necessary to grant permission to appeal in this instance so as to establish or maintain sentencing principles or standards. Thus the question is whether permission should be granted because the sentence is so far below the appropriate range of sentence that it reflects an error of principle such that allowing the sentence to stand would shake public confidence in the administration of justice.
For the reasons that follow I am satisfied that this is a rare and exceptional case that requires the grant of permission for the Crown to appeal.
If permission is granted for a Crown appeal, s 340 of the Criminal Law Consolidation Act 1935 directs that the Court must impose the sentence that “should have been imposed in the first instance”. Hence, the double jeopardy principle does not apply to resentencing should the Court grant leave to appeal.[8]
[8] R v Abdulla (2005) 93 SASR 208 and R v Kong (2013) 115 SASR 425.
In R v Hughes; R v Rigney-Brown the Full Court noted that sentencing may often involve a “tension between the competing sentencing purposes which judges must balance when punishing offenders for crimes borne out of great social, educational and financial impoverishment”.[9]
[9] [2016] SASCFC 126 at [7].
Consistently with the latter observation it was clearly necessary for the sentencing judge to take into account the fact that the defendant is an Aborigine from a traditional background on the APY Lands who has a history of petrol and glue sniffing and other substance abuse. Nevertheless, the High Court held in Neal v The Queen:
The same sentencing principles are to be applied … in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. By imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.[10]
[10] (1982) 149 CLR 305 at 326.
The judgment of the High Court in Munda v State of Western Australia concerned a case that, like the present matter, involved a serious assault on an Aboriginal woman by her partner that caused a traumatic brain injury.[11] The fact that the assault in Munda led to the death of the victim does not affect the relevance of the observations made by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ that:
Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.[12] (references omitted)
[11] (2013) 249 CLR 600.
[12] Ibid at [53].
The High Court also referred in Munda to the need to properly recognise the human dignity of victims of domestic violence and the legitimate interest of the general community in denouncing and punishing brutal alcohol-fuelled destruction of a woman by her partner. French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ stated:
A just sentence must accord due recognition to the human dignity of the victim of domestic violence and to the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. The failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.
The High Court majority[13] also referred with approval to an observation made by McClure P in the Western Australian Court of Criminal Appeal in Western Australia v Munda that addictions ordinarily increase the weight to be given to personal deterrence and community protection because of the risk of reoffending[14]. Their Honours described that observation by McClure P as being particularly poignant because the very lenient sentence imposed on the offender some years earlier had been evidently insufficient to deter him from further alcohol-fuelled violence against his partner or to protect her from such violence. The majority then observed that:
The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant’s offending. It is also important to say that it should be not thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.
[13] Ibid at [56] to [57].
[14] (2012) 43 WAR 137 at [65].
The High Court also observed in Bugmy v The Queen:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control a violent response to frustration may increase the importance of protecting the community from the offender. [15]
[15] (2013) 249 CLR 571 at [44].
This Court has recognised on numerous occasions the particular importance of both specific and general deterrence in sentencing for offences of domestic violence.[16] Nicholson J stated in R v Nezda that:
… where offending of this nature occurs in the context of domestic violence, both personal and general deterrence must play a significant role in the sentencing process. Domestic violence is all too frequent in our society and so often occurs in secret or goes unreported. Where the authorities do become aware of domestic violence it must be met with condign punishment. It also is important that the opportunity be taken to bring home to others who might be like minded that the courts will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless children and women.
[16] See R v Lennon (2003) 86 SASR 295 at [12]; R v Wilkinson (2008) 101 SASR 121 at [28]; [2015] SASCFC 31; R v Postolovski [2016] SASCFC 69 at [50].
The observations made by the High Court in Munda and in Bugmy are directly applicable in the present matter. It was necessary for the sentencing judge to take into account, as his Honour did, the defendant’s background of disadvantage and social deprivation arising from his upbringing in a traditional and remote Aboriginal community.
However, the fact that the offence occurred against a background where the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted.
Moreover, the attack by the defendant upon his domestic partner was particularly brutal and has had grave consequences for her. The victim’s particular vulnerability was emphasised by the failure of those present when she was assaulted to intervene. The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.
For these reasons I consider that the sentencing process miscarried as the sentence failed to maintain adequate standards of punishment for serious crimes of domestic violence. Both the sentence and non-parole period were manifestly inadequate.
Conclusion
I would grant permission to appeal and uphold the appeal. I would adopt a starting point of imprisonment for six years and six months. After allowing a discount of approximately 20% on account of the defendant’s guilty plea, I would impose a head sentence of imprisonment for five years. I would impose a non-parole period of three years. The head sentence and non-parole period should operate from 1 September 2015 when the defendant was taken into custody.