R v Pettersen; R v Bendt; R v Fell - [2009] NSWCCA 91

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Pettersen; R v Bendt; R v Fell [2009] NSWCCA 91

FILE NUMBER(S):
2008/9771
2008/9774`
2008/9772

HEARING DATE(S):
9 March 2009

JUDGMENT DATE:
6 April 2009

PARTIES:
REGINA - Appellant
Neil Andrew PETTERSEN - Respondent
Gregory BENDT - Respondent
Christopher James FELL - Respondent

JUDGMENT OF:
Grove J Blanch J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/9771, 2008/9774, 2008/9772

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

LOWER COURT DATE OF DECISION:
22 September 2008

COUNSEL:
V Lydiard - Crown/Appellant
R Burgess - Respondent/Pettersen
J Trevallion - Respondent/Bendt
H Cox - Respondent/Fell

SOLICITORS:
Solicitor for Public Prosecutions - Appellant
Brenda Duchen - Respondent/Pettersen
Burwood Legal Aid Office - Respondent/Bendt
Steve O'Connor(Legal Aid) - Respondent/Fell

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Crown appeals asserting inadequacy
In the cases of two offenders judge makes specific reductions to qualify them for Drug Court programme
In so doing sentences lowered beneath range
Offenders not qualified for programme in any event
Restoration to assessed sentence before reduction
Third offender dealt with separately for offence which for erroneous cause not dealt with on Form 1
Adjustment not required
In particular circumstances Crown appeal dismissed

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Court Act 1998

CATEGORY:
Principal judgment

CASES CITED:
AG's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Callaghan v R [2006] NSWCCA 58
Dinsdale v The Queen (2000) 202 CLR 321
English v R [2008] NSWCCA 134
R v Kaiva, unreported, NSWCCA 9 November 1998

TEXTS CITED:

DECISION:
Appeal dismissed (Pettersen)
Appeals allowed, respondents resentenced (Fell and Bendt)

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/9771
CCA 2008/9774
CCA 2008/9772
GROVE J
BLANCH J
PRICE J
6 April 2009

R v Neil Andrew PETTERSEN
R v Gregory BENDT
R v Christopher James FELL

Judgment

GROVE J: Before the Court are three appeals by the Crown asserting that sentences imposed on the respondents by Ellis DCJ at Parramatta District Court on 22 September 2008 were manifestly inadequate. The principal offence by each respondent was committed when he was involved in an incursion into the premises of the Gladesville Bowling and Sports Club (the Club) on 28 January 2008.
The respondents had pleaded guilty in the Local Court to charges which I will later detail and on committals for sentence the facts were put before the District Court by tender of the respective prosecution briefs.
At about 10.15 pm on 13 January 2008, a high performance Mitsubishi Lancer vehicle was stolen at Drummoyne from the owner in circumstances commonly referred to as carjacking. The respondents are not charged with any offence in connection with this occurrence, however, at about 10.20 pm on 28 January 2008 the respondent Pettersen drove that vehicle to the club with four passengers, the other two respondents and men named Adler and Hamouzian. At the time the vehicle was displaying false registration plates which had been substituted for the genuine plates which were attached when it had been taken on 13 January.
At that hour the Club was not trading but four contract cleaners were working inside the premises. Fell, Bendt, Adler and Hamouzian alighted from the car wearing facial disguises and gloves. Bendt used a hammer to smash a glass doorway at the rear of the Club and the four men entered thereby. Adler produced a silver coloured handgun and pointed it at one of the cleaners saying, “Don’t let me use it, lay down.” The cleaners complied. Bendt was standing next to Adler at the time. Two of the intruders then went to the bar and opened the cash register. Whilst inside the premises Bendt was carrying a scanner.
As three of them gathered in the bar area attempting to locate money and control the cleaning staff, they turned their attention to trying to open an automatic teller machine. Hamouzian went outside and returned with a circular concrete saw.
Fell took possession of the hammer from Bendt and commenced to use it to smash the front of the ATM. Adler then handed the handgun to Fell and took the saw and tried to use it to cut into the machine. At this point, an alarm was activated and the four intruders retreated into the Lancer vehicle in which Pettersen was waiting. He then drove away from the Club but police had arrived in the vicinity and sighted the departing car.
There followed a pursuit from Gladesville through a number of suburbs. The pursuing police vehicle had its warning devices activated. The Lancer continued on, disobeying a number of traffic control signals. It came to a halt in Dulwich Hill when it stalled after colliding with another vehicle being driven by a member of the public. The five occupants abandoned the Lancer and ran on foot from the police who had arrived at the scene. Initially, the five of them ran in the same general direction and Fell was seen to be in possession of the handgun which he pointed in the direction of the pursuing officers.
The offenders were able to flee beyond the immediate range of sight of those in pursuit and the police established a containment perimeter and then instituted a search which was aided by dogs, their handlers and the police air wing.
Shortly after the search was initiated, Bendt and Pettersen were tracked by a police dog to where they were huddled on the verandah of one of the houses in the area. When the dog approached them they both began to kick and punch the dog and the handler used capsicum spray to subdue them. They were apprehended with the assistance of other police who had arrived. Both Bendt and Pettersen sustained minor cuts and bruising as a result of their scrimmage with the dog. After arrest they were conveyed to Newtown Police Station where they exercised their right to decline to be interviewed. The continuation of the search located Fell in the rear yard of another house. He struggled with police and was handcuffed but was seen to be attempting to use his hands to access the rear pockets of his trousers. It was feared that he may still have been armed with the handgun which he had earlier pointed at police and a dog was commanded to restrain him. The dog seized Fell causing a deep laceration to his arm. After being subdued in this manner Fell was conveyed to Burwood Police Station. Observation of the injury to his arm caused police to take him to Concord Hospital where he was treated. After treatment he was returned to Burwood Police Station where he participated in a recorded interview, during which he admitted his involvement in the offending at the Club, although he made claims which appeared to be directed at minimizing his role. These claims were, to an extent contradicted by the product of CCTV from the club premises as well as by statements of witnesses. In particular, some claims concerning his being in possession of the silver handgun were contradicted.
Although not germane to the issues in these appeals, it can be mentioned that the area search did not locate either Adler or Hamouzian. The contents of the Lancer included items worn by the offenders at the Club and a canvass of the area located other material. Some of these items were submitted for scientific testing including DNA sampling and matching. Adler and Hamouzian were arrested and charged in February and March respectively. We were informed that they had not yet been dealt with for their participation in the raid at the Club.
An examination of the content of the Lancer located a circular concrete saw, a hammer and two scanners, as well as items of apparel which had been worn by some of the offenders.
This recounting of facts has largely been extracted from a statement included in the briefs, which was in greater detail than the summary and much greater detail than his Honour included in his remarks on sentence.
I turn to the individual respondents.
NEIL ANDREW PETTERSEN
Pettersen pleaded guilty to a charge of aggravated breaking and entering with intent to commit a serious indictable offence contrary to s 113 (2) of the Crimes Act 1900. The circumstance of aggravation was that he was in company. The prescribed maximum penalty for this offence is 14 years imprisonment. It was accepted that Pettersen had not been shown to be aware of the use of the handgun by the other offenders.
The judge was asked to take into account on a Form 1 an offence of taking and driving a conveyance without the consent of the owner. This offence referred to what occurred on 28 January and not to the carjacking on 13 January.
There was also referred to his Honour for sentence by a certificate under s 166 of the Criminal Procedure Act, an offence of driving in a manner dangerous. This concerned Pettersen’s conduct in the chase from Gladesville to Dulwich Hill on 28 January.
His Honour sentenced Pettersen on the committed charge, and taking into account the matter on the Form 1, to imprisonment consisting of a non-parole period of 2 years commencing on 22 July 2008 and expiring on 21 July 2010 with a balance term of 1 year 9 months. For the offence on the s 166 certificate he sentenced the respondent to a term of imprisonment commencing on 22 September 2008 and expiring on 21 March 2009. He also ordered that the respondent be disqualified from holding a driver’s licence for 12 months from 22 September 2008 until 21 September 2009, during the whole of which I observe he would be in custody for the sentence on the index charge.
As the facts above recounted revealed, Pettersen’s essential role was to drive the stolen car. He told the officer preparing the pre—sentence report that he was unaware that a weapon would be used or that there were going to be people in the building. The first of these claims was obviously accepted and reflected in a level of charge against him (in distinction from the charge against Bendt and Fell) and his Honour found that the Crown had not established that the offenders expected the cleaners to be in the building.
The respondent was born in 1982 and was approaching twenty six years of age when the offences were committed. Over eight years before sentence in these matters he had accumulated a significant record of offending. He first appeared at Ryde Local Court on 24 July 2000 when he was fined $400 for destroying or damaging property. On 27 June 2002 the particulars of trial noted his appearance at Sydney District Court for breaking and entering a building to steal and a sentence of 14 months imprisonment commencing on 30 October 2001 and expiring on 29 December 2002 (taking into account unspecified matters on a Form 1), for taking and driving a conveyance, to imprisonment for 10 months commencing on 30 December 2002 and expiring on 29 October 2003 suspended pursuant to s 12 of sentencing legislation and, for using an offensive weapon, to imprisonment for 10 months commencing on 30 October 2001 and expiring on 29 August 2002.
On 13 August 2002 at Central Local Court, for taking and driving a conveyance he was sentenced to imprisonment for 3 months commencing on 13 August 2002 and expiring on 12 November 2002, for driving in a manner dangerous to imprisonment for 4 months commencing on 13 August 2002 and expiring on 12 December 2002, for larceny to imprisonment for 2 months commencing on 13 August 2002 and expiring on 12 October 2002 and for goods in custody to a fine of $350. At Sydney District Court on 25 February 2003 he was sentenced for robbery whilst armed with an offensive weapon to imprisonment consisting of a non-parole period of 2 years commencing on 29 May 2005 and expiring on 28 May 2007 with a balance term of 2 years 6 months (taking into account unspecified matters on a Form 1), for a second charge of robbery whilst armed with an offensive weapon to imprisonment for a fixed term of 3 years commencing on 29 November 2002 and expiring on 28 November 2005 and for aggravated breaking and entering with intent to commit a serious offence to imprisonment consisting of a non-parole period of 2 years commencing on 29 May 2004 and expiring on 28 May 2006 with a balance term of 1 year 6 months. The respondent was therefore on parole when the current offences took place. On 15 February 2008 the Parole Authority revoked his parole and he was required to serve balance of parole from 28 January 2008 (when he was arrested at Dulwich Hill) until 28 November 2009.
His Honour made the following remarks concerning the subjective case presented by Pettersen:
“In the case of Mr Pettersen, the court takes into account the evidence that he gave in this court. In his case the court also takes into account the two references from the Probation and Parole service report, and the report from Anita Duffey. (sic) The court does not propose to extract material from either of those reports but the court indicates it has closely considered all of the material including background material and the material going toward rehabilitation, in terms of his prospects for rehabilitation and his present position and likely position when he is eventually released from custody, in terms of where he will live and his prospects for employment.”
His Honour later made express reference to the evidence of expressions of remorse, including those made by the respondent during testimony, and found that “his remorse is genuinely stated.” He noted that Pettersen had obtained employment and had family support but he thought he “needed some assistance with life management skills” which he considered was consequent upon the respondent having been in custody essentially from the age of nineteen until the age of twenty four.
As above detailed, the sentence for the principal offence amounted to a total term of 3 years 9 months. That assessment was arrived at after a discount of 25 percent on sentence for the utilitarian value of the plea of guilty at the earliest opportunity. Undiscounted, the assessment amounted to a head sentence of 5 years against the statutory maximum of 14 years. The submissions by the Crown in relation to this respondent did not seek to impugn the assessment of 5 years imprisonment as such.
Two express errors were contended to have occurred, first, a failure by his Honour to have regard to the objective seriousness of the offence under s113 (2) when setting the commencement date and, second, a failure to apply the principle of totality when directing that the sentence for driving in a manner dangerous be served wholly concurrently with the sentence for the aggravated breaking and entering.
When sentencing the respondent on 22 September 2008, the judge was inhibited from setting a commencement date later than the day of sentence by reason of the requirement that the respondent serve the balance of the revoked parole: see s 47 Crimes (Sentencing Procedure) Act 1999: English v R [2008] NSWCCA 134. Nevertheless he retained a discretion to set an earlier commencement date: Callaghan v R [2006] NSWCCA 58. He exercised that discretion by fixing a commencement date of 22 July 2008. As the balance of parole is scheduled to expire on 28 November 2009 and the non-parole period for the s113 (2) offence will expire on 21 July 2010 it can be concluded that the minimum custody for the commission of the latter offence, viewed in isolation, amounts to a little over eight months. It is that effective consequence about which the Crown complains in its first submission. Of course, s 47 abovementioned will permit only an addition of about two months for this aspect because neither his Honour nor this Court could specify a date of commencement later than 22 September 2008.
The second contention by the Crown focussed upon the sentence of six months commencing on 22 September 2008 for the offence of driving in a manner dangerous. As already observed, this sentence will be served wholly concurrently with the s 113 (2) offence sentence. The presentation of this offence for sentence pursuant to a s 166 certificate made discretion available to order cumulation and it is the failure to order any cumulation which constitutes the thrust of the Crown submission of error. The Crown argued for total cumulation of this sentence, in the alternative, partial cumulation.
It was the ultimate submission by the Crown that the total sentence had become manifestly inadequate by reason of the combination of the backdating of the commencement date of the encompassing term together with the failure to cumulate all or any of the sentence for driving in a manner dangerous.
In response to the first submission, counsel for the respondent pointed to the fact that the breach of parole was in fact the commission of the index offence. Thus, although it was accepted that commission of an offence whilst on parole is an aggravating factor capable of increasing the assessment of sentence, it was necessary to bear in mind a need to avoid double punishment or the appearance of it: cf R v Kaiva unreported NSWCCA 9 November 1998.
The learned sentencing judge did not elaborate his reasons for selecting the commencement date and stated that he would commence the sentence six months after the current custody commenced upon arrest on 21 January 2008 but simply noted that he had exercised his discretion and had considered totality when he arrived at the date he intended to specify.
A clue as to his reasons can be derived from an exchange with counsel when he observed that, but for the sentence he was about to impose, there would have been likely to have been reconsiderations by the Parole Authority which possibly may have led to the restoration of parole during the fairly lengthy balance period.
It was submitted that it had not been demonstrated that his Honour’s discretion miscarried. Whilst the Crown asserted error, it did not direct attention to either of the matters relied upon in isolation, and the contention was that the ground of manifest inadequacy should be considered in the light of the asserted combined errors in the exercises of discretion in the sentencing exercise.
In response to the second complaint by the Crown, it was said that the offence of driving in a manner dangerous would normally be dealt with in the Local Court. That may be accepted, but that would not prevent the charge being dealt with in the District Court either on a Form 1 or by a s 166 certificate. However, it appears from the transcript of an exchange between the solicitor then appearing for the respondent and his Honour that it was thought that the offence of driving in a manner dangerous should not be included on the Form 1 because that procedure would not enable his Honour to order licence disqualification. The representative of the Crown expressed agreement with what his Honour had been told. The information was inaccurate. To the contrary of what his Honour was told he had an express power to make an ancillary order which, by definition specifically includes a power to order licence disqualification: s 34 (1) and (4) Crimes (Sentencing Procedure) Act 1999.
Because Pettersen had previous convictions of a relevant kind, his offence of driving in a manner dangerous carried a penalty prescribed for a second or subsequent offence, namely, a maximum of 12 months in terms of imprisonment. As noted, his Honour imposed a fixed term of 6 months imprisonment which was to be served wholly concurrently with the non-parole period for the aggravated breaking and entering offence. He disqualified the respondent from holding a driving licence for twelve months and I have already observed the apparent anomaly that this disqualification will run whilst the respondent is in custody. The Crown did not submit that the assessment of 6 months imprisonment was itself tainted by error.
It was contended on behalf of the respondent that, as the offence of driving in a manner dangerous was not included on the Form 1 due to a misapprehension as to the existence of power to disqualify, the issue of inadequacy should be addressed by including a consideration of the outcome that would have been if the offence had been included on a Form 1 as appears likely to have happened but for the misapprehension. This exercise would have involved taking the offence into account in the sentence for the principal offence but would not have involved adding a specific period: see AG’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146.

In summary, it was submitted that the adjustment sought by the Crown can be seen to be essentially constituted by two elements of addition to the term of sentence imposed by his Honour. First, an addition of about two months on the basis that the sentence should have commenced on the day of imposition and not backdated, and second, all or part of the six months sentence for driving in a manner dangerous.
The Crown recognized this situation in its submission that, if his Honour had followed the course contended by the Crown, “there would have been an additional 8 months which would have reduced the manifest inadequacy of the overall sentence.”
However, when attention is directed to the erroneous basis upon which the offence for driving in a manner dangerous was excluded from being taken into account on the Form 1, it is reasonable to conclude that, if it had been dealt with as it could have been, the enhancement of the overall term would have been something significantly less than six months. The consequence of applying that notion would be to bring the reduction sought to be reversed by the Crown to something markedly less than an overall eight months. The backdating of commencement had an available reasonable basis as above discussed and miscarriage of discretion has not been shown.
The Crown argument on appeal, as earlier observed, did not challenge the assessment of 5 years as a head sentence. In my view, a difference represented by something less than eight months, would not convert an accepted assessment into one of manifest inadequacy.
I would dismiss the Crown appeal in the case of Pettersen.
CHRISTOPHER FELL
Fell was charged with specially aggravated breaking and entering with intent whilst armed with a dangerous weapon and in company contrary to s 113 (3) of the Crimes Act. The maximum prescribed penalty for this offence is 20 years imprisonment. Taken into account on a Form 1 was an offence of being carried in a conveyance without the consent of the owner contrary to s 154A (1) (b) of that Act.
His Honour imposed a sentence of imprisonment consisting of a non-parole period of 3 years commencing on 7 February 2008 and expiring on 6 February 2011 with a balance term of 2 years 3 months and he ordered the respondent referred to the Drug Court.
The respondent had a considerable prior record including being sentenced at Central Local Court on 18 July 2002 to terms of imprisonment for offences of breaking entering and stealing, breaking and entering with intent to steal, assaulting an officer in the execution of his duty and goods in custody.
At Taree District Court on 25 February 2003 he was sentenced to a fixed term of 18 months for supplying a prohibited drug, to a fixed term of 2 years for inflicting grievous bodily harm on an officer executing his duty (with unspecified matters taken into account on a Form 1) and, for robbery, to imprisonment consisting of a non-parole period of 18 months commencing on 8 August 2004 and expiring on 7 February 2006 with a balance term of 2 years. The overall encompassing term for these sentences expired on 7 February 2008, that is, some ten days after the commission of the index offence in this appeal, thus the offence of 28 January 2008 was committed whilst Fell was on parole but he was almost at the end of it.
In his remarks on sentence, the judge noted that he took into account the drug and alcohol report by a Ms Shepherd, a counsellor at Parklea Prison and the documents regarding educational attainment and a letter which had been written by Fell. He accepted that Fell was remorseful. The respondent was born in 1977. The history detailed by Ms Shepherd shows the chaotic circumstances through which he had passed his young life. Despite the existence of immense handicaps, his Honour considered that Fell appeared to have moved a long way towards rehabilitation until the commission of the current offence and he thought that there were reasonable grounds that he might recommence rehabilitation.
The Crown relied upon specific errors expressed as “tailoring Fell’s sentence to allow the respondent Bendt to enter a drug corrections programme and in determining that Fell met the general requirements of the drug correction programme.”
It is necessary to examine how his Honour came to assess the sentence. He had observed:
“The court notes that while Mr Bendt is younger, it would appear from the facts that his participation was probably greater than that of Mr Fell. In any event, the court has determined that parity does apply to them as they have not dissimilar criminal histories, not dissimilar substance abuse issues, and a not dissimilar problematic upbringing.”
His Honour returned to this matter of parity in connection with his concerns arising out of his finding that it was clear that Fell and Bendt had relapsed into illicit substance abuse and that that was the reason for their involvement in the offence. He said:
“The original sentence which I indicated I (sic) was considered in order to give the parties an opportunity to address me further, mainly because there is no assistance from the statistical material and this is not necessarily an easy sentencing exercise would have meant that while Mr Fell qualified for the drug corrections program because the balance of his parole as at today, the day of sentence, is less than three years, that was not so for Mr Bendt.
Having heard further submissions and having regard to his age, to the fact that except for about eight months he has been in custody since he was sixteen, and having re-read the material in relation to his substance abuse issues, his lack of general opportunity but also his stated desire to do something about his drug addiction, the court reviewed its sentence on the basis that to reduce the non-parole period by six months and to increase the additional term by six months would permit Mr Bendt to qualify at this point for the drug corrections program. Clearly it is a balance the court has to take into account. On the one hand, will an additional six months or would three years and six months as distinct from three years make a huge difference in terms of deterrence and punishment and how much difference potentially could it make if he was to be able to enter into the drug corrections program and have a number of years to attempt to more effectively deal with his substance abuse issues and then be eased back into the community under a structured program rather than simply released. All in all it seems to me that having regard to the fact that the total sentence is not changing, that it is appropriate to change what I have indicated because it does seem to me to be in the community’s interest to as it were, sacrifice six months in custody for the potential that the program may well significantly improve this offender’s chances of returning to the community and leading a crime free life.”
The indication of sentence which his Honour referred to had been made during exchange with counsel in these terms:
“For Mr Fell and Mr Bendt a non-parole period in each case of 3 years and 6 months. In the case of Mr Fell it would date from 7 February and would expire on 6 August. It would mean he would have a balance of parole under 3 years and I would recommend that he go into a drug correction centre. For Mr Bendt the 3 years and 6 months would date from 22 July and expire on 21 January 12. Mr Fell and Mr Bendt it’s 5 years and 3 months and then you add 6 months for the extra parole they’ll do, so it’s an effective 5 year and 9 month term.”
It might also be noted that the Crown representative at that point told his Honour that he did not wish “to say anything about that” although he elsewhere emphasized that what his Honour was proposing was “the bottom of the range.”
His Honour was apparently aware that an offender whose non-parole period exceeded three years would not, for that reason, qualify for entry into the programmes at the Drug Court, hence his above remarks. To “qualify” Bendt, he reduced the total term to 5 years 3 months from 5 years 9 months (previously “indicated”) and specified a non-parole period of 3 years. To maintain parity with Bendt, he imposed an identical sentence on Fell.
Attention was not then drawn to the circumstance that neither Fell nor Bendt could be “eligible convicted offenders” and admitted to the Drug Court programmes. Fell was not qualified as he had failed to meet two criteria, first, he had been convicted of an offence involving the use of a firearm (Drug Court Act 1998 s 5A (2) (c) ) and second, he had in the preceding five years been convicted of at least two other offences resulting in defined punishment (s 5A (1) (c) ).
In short, it was the Crown contention, as had been put at first instance, that the indicated assessment of 5 years 9 months(after discount for plea of guilty) was the bottom of the range and the reduction below that bottom created a manifestly inadequate sentence. The resultant inadequate sentence was imposed directly as a result of a misconception as to eligibility of the offender for the Drug Court programme and the Crown seeks at least the restoration of the sentence to what was contended to be the bottom of the range.
On behalf of Fell it was submitted that an adjustment to the extent of six months would amount to “appellate tinkering” with sentences against which Kirby J had observed there was “strong resistance”: Dinsdale v The Queen (2000) 202 CLR 321 at 341. In the alternative it was submitted that this Court would exercise its discretion to dismiss the Crown appeal. Upon this issue material has been put before the Court manifesting the good use which Fell has been making of his time in custody and his rehabilitative aims.
As stated, the discrepancy of which the Crown complains was clearly a direct result of the failure to recognize the ineligibility of the respondent to enter Drug Court programmes. The contention that the assessment before reduction was at the bottom of the range was correct. In this particular case, the consequence of error is revealed with precision and in my view the Crown submission that sentence should be restored to the “bottom of the range” by rectification of the error should be upheld. I would not regard it as “tinkering” to effect an appropriate restoration. The appeal to the exercise of the Court’s residual discretion is substantially founded upon the asserted minor measure of the adjustment to sentence involved. What is sought by the Crown is capable of being perceived in precise measure and the specific reduction was consequent upon an undisputed failure to appreciate the existence of a statutory bar which rendered unachievable what was intended by the reduction. In that circumstance I would not invoke discretion to leave the consequence of that error unrectified.
The Crown does not take issue with his Honour’s selection of a commencement date for Fell’s sentence. His Honour found that there were special circumstances and departed from the proportion between the non-parole period and balance term mentioned in the sentencing legislation in favour of the respondent. The non-parole period of 3 years represented approximately 57 percent of the total term of 5 years 3 months. Applying the same proportion to the total term of 5 years 9 months (his Honour’s indication which was categorized as the bottom of the range) can be calculated to produce a non-parole period of 3 years and 3 months. Those figures were, of course, calculated after allowance of 25 percent discount for the plea of guilty.
I would propose orders to effect the restoration which I have described in the case of Fell.
GREGORY BENDT
The circumstances in which the sentence indicated by his Honour was reduced to enable Bendt to enter the Drug Court programme have been described in relation to the respondent Fell and need not be repeated. Bendt was ineligible for entry into the programmes by reason of s 5A (2) (c) of the Drug Court Act because his offence involved use of a firearm.
His Honour sentenced Bendt (taking into account the offence on the Form 1) to imprisonment consisting of a non-parole period of 3 years commencing on 22 July 2008 and expiring on 21 July 2011 with a balance term of 2 years and 3 months with a recommendation that he be referred to the Drug Court.
Bendt was convicted of the identical offence to Fell as were their matters taken into account on the Form 1. The sentence was also identical as to its length.
The respondent was born in 1987. He had a lengthy prior record, most of which arose from findings of guilt in Children’s Courts, however at Parramatta District Court on 10 December 2004 he was sentenced for offences of conspiracy (18 months imprisonment), armed robbery (2 years imprisonment) and robbery with arms and wounding (with unspecified matters on a Form 1) for which he was sentenced to a total of 7 years imprisonment with a non-parole period of 3 years. The commencement date of the sentences for the first two offences abovementioned was 1 May 2003 and the commencement date for the third was 1 May 2004. The sentences were ordered to be served in a Juvenile Justice institution. His parole eligibility date was 30 April 2007. He was on parole when the index offence was committed.
His Honour remarked that the respondent had “an unfortunate history” and observed that at age twenty one he had already been in custody for more than four years. More detail was available from a psychological report which was confirmatory of his Honour’s observations. Testing was reported to show a profile of a high probability of a substance dependence disorder. Clearly it was on the basis of this information that his Honour formed a view that referral to the Drug Court was desirable but the respondent’s ineligibility was overlooked.

The written submissions by the Crown summarized its contentions by asserting that his Honour erred:
“-            in tailoring the sentence to allow the respondent Bendt to enter a drug corrections program;
-              in determining that the respondent Bendt met the general requirements of the drug corrections program;
-              in failing to have proper regard to the objective seriousness of the offence and to the principle of totality in the setting of the commencement date for the sentence his Honour imposed.”
The issues raised by the first two contentions were identical to those raised in the case of Fell and for the reasons given in dealing with the challenge to the sentence received by that respondent, those contentions should be upheld.
After expiry of the non-parole period for the offence of robbery on 30 April 2007 Bendt was released to parole and was on parole for approximately eight months when he committed the offence at the Club. Revocation of parole left a balance sentence to be served which will not expire until 30 April 2011. Thus, it is calculated that the respondent’s minimum custody which is solely referrable to the offence at the Club would extend from 30 April 2011 until 21 July 2011.
As with any inmate who is in custody as a result of parole revocation, the Parole Authority will routinely consider whether parole may not be restored. It is therefore not a certainty that Bendt would have been (absent the index offence) detained for the entire balance of parole.
It is accepted that the selection of the commencement date occurred as a result of the exercise of discretion about which it has frequently and accurately been observed, minds might differ. The error contended by the Crown is claimed to be observable from the result that, assuming the respondent served the whole balance of parole, he would only serve about three months for the index offence.
His Honour made it clear that he considered that he should apply parity between Bendt and Fell and that conclusion has not been challenged. Nor has the Crown challenged in isolation the assessment of term but rather has contended that the overall effect of the term was inadequacy stemming from the ancillary orders for commencement and concurrency.
I am of opinion that the Crown appeal should succeed along the same lines that I have proposed in regard to Fell. It is true that the result is to increase the head sentence by six months and the non-parole period by three months which, in the absence of context, might be categorized as “tinkering”. However, in the cases of Bendt and Fell there is relevant context. The Crown submission at first instance that the indicated sentence was at the bottom of the range was correct. For a misconceived aim to enable the respondents to enter the Drug Court programme, the impositions were reduced. They were for that reason set below the bottom of the range. The Crown should have the consequences of that error rectified and the impositions restored, at least to the level of that bottom of the range.
I propose the following:
1.            In the appeal against sentence imposed on Pettersen, Crown appeal dismissed.
2.In the appeal against sentence imposed on Fell,
(a)          Crown appeal allowed.
(b)          Sentence imposed in the District Court quashed.
(c)In lieu thereof the respondent sentenced (taking into account the matter on the Form 1) to imprisonment consisting of a non-parole period of 3 years 3 months commencing on 7 February 2008 and expiring on 6 May 2011 with a balance term of 2 years 6 months.
(d)The earliest date of eligibility for release on parole specified as 6 May 2011.
3In the appeal against sentence imposed upon the respondent Bendt,
(a)          Crown appeal allowed.
(b)          Sentence imposed in the District Court quashed.
(c)In lieu thereof the respondent be sentenced (taking into account the matter on the Form 1) to imprisonment consisting of a non-parole period of 3 years 3 months commencing on 22 July 2008 and expiring on 21 October 2011 with a balance term of 2 years.
(d)The earliest date of eligibility for release on parole specified as 21 October 2011.
BLANCH J: I agree with Grove J.
PRICE J: I agree with Grove J.
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LAST UPDATED:
9 April 2009