R v Porteous - [2005] NSWCCA 115

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v John Gordon Porteous [2005] NSWCCA 115

FILE NUMBER(S):
2005/41

HEARING DATE(S): 31 March 2005

JUDGMENT DATE: 06/04/2005

PARTIES:
Regina (Respondent)
John Gordon Porteous (Applicant)

JUDGMENT OF: Giles JA Hoeben J Johnson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0480

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

COUNSEL:
Mr S Corish (for the Applicant)
Ms D Woodburne (for the Respondent)

SOLICITORS:
Mr S E O'Connor (for the Applicant)
Mr S Kavanagh (for the Respondent)

CATCHWORDS:
SENTENCING - break, enter and commit serious indictable offence in circumstances of aggravation - extent of discount for early plea of guilty and finding of remorse - determination of objective seriousness of offence - use of pre-2003 statistics in sentencing for standard non-parole period offence.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
1. Leave to appeal granted as to sentence for the offence under s.112(2) Crimes Act 1900
2. leave to appeal refused as to sentence for the offence under s.154A Crimes Act 1900
3. appeal allowed with respect to the offence under s.112(2) and the sentence quashed
4. sentenced for the s.112(2) offence to imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009
5. the recommendations to prison authorities made by Charteris DCJ on 24 June 2004 are confirmed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/41
GILES JA
HOEBEN J
JOHNSON J
6 April 2005

REGINA v JOHN GORDON PORTEOUS

Judgment

Giles JA: I agree with Johnson J.
Hoeben J: I agree with Johnson J.
Johnson J: The Applicant, John Gordon Porteous, seeks leave to appeal with respect to sentences imposed by his Honour Judge Charteris SC at the Port Macquarie District Court on 24 June 2004 for an offence of break, enter and commit a serious indictable offence, namely larceny, in circumstances of aggravation, to wit deprivation of liberty under s.112(2) Crimes Act 1900 and for an offence of taking and driving a conveyance without consent under s.154A Crimes Act 1900. The maximum penalty for an offence under s.112(2) is imprisonment for 20 years and the maximum penalty for an offence under s.154A is imprisonment for five years.
As the offence under s.112(2) was committed after 1 February 2003, it is included in Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 and a standard non-parole period of five years is specified for the offence.
Upon the count under s.112(2), his Honour sentenced the Applicant to imprisonment for a period of six years and nine months to commence on 8 November 2003 and to expire on 7 August 2010 with a non-parole period of three years and nine months to commence on 8 November 2003 and to expire on 7 August 2007. Upon the s.154A count, his Honour imposed a wholly concurrent fixed term of 12 months imprisonment to commence on 8 November 2003. His Honour recommended to the prison authorities that consideration be given to the Applicant attending courses in relation to anger management, drug and alcohol counselling and psychiatric counselling in relation to depression.
The Offences
In his remarks on sentence, Charteris DCJ observed that the “facts of the matter are disturbing to say the least”. That is an apt description. At about 9.45 pm on Saturday, 9 November 2003, Victor Gordon Fox, 58 years old, and his wife, Pamela Irene Fox, 57 years old, were watching television in their holiday accommodation at 25A The Parade, North Haven when the electricity supplied to the premises failed. Shortly after, the Applicant entered the premises through a closed, but unlocked, rear security door. He was wearing rubber gloves to avoid leaving fingerprints. He said to Mr and Mrs Fox, “Don’t look, I have a gun, I only want cash”.
The Applicant then tied up both Mr and Mrs Fox using stockings, which he located on the premises. Mr Fox was in the terminal stages of bowel cancer and had recently fractured a hip in a fall and was using a walking frame. A pillow case was placed over his head by the Applicant. Mrs Fox’s hands were tied to a stair railing and a pillow case was placed over her head by the Applicant.
The Applicant then rummaged through the wallets of the victims and removed $70.00 in cash and a number of credit cards. The Applicant then demanded the personal identification number (“PIN”), for the credit cards. The Applicant said, “Don’t look at me and you wont get hurt. If you do look, you will get hurt. I have just got out for doing 10 years’ gaol and I have nothing to lose”.
Mr and Mrs Fox initially said that they were unaware of PIN numbers. Eventually, Mrs Fox made up a number and gave it to the Applicant. He wrote it down. Having tied the victims up, the Applicant left the house taking Mr and Mrs Fox’s motor vehicle from outside the house. The taking and driving of the vehicle gave rise to the second count. The Applicant drove into the Laurieton township and attempted to remove money from an automatic teller machine using a credit card belonging to Mr and Mrs Fox. He was unsuccessful in his attempts to withdraw money because he had been supplied with the wrong PIN number by the victims.
After the Applicant departed for Laurieton, Mrs Fox, whom the sentencing judge described correctly as showing “enormous resilience”, managed to free herself from her bindings. With the aid of a knife, she freed her husband. The house had been locked by the Applicant when he left. Mrs Fox forced a first-floor window and jumped from it and approached nearby residents who contacted police immediately.
Police were alerted to keep a look out for the victims’ motor vehicle. A short time later, police came across the Applicant driving the vehicle back in the direction of the victims’ holiday residence. The Applicant became aware that police were travelling behind him. He took some diversionary action, but eventually police apprehended him in the car park of the Bonny Hills Surf Club. Police approached the Applicant with caution given the report that he was armed. As it turned out, the Applicant did not have a firearm, and had lied to the victims when he said that he had one. The Applicant was searched and police located a Visa card in the name of the victim, a card with a PIN number written on it, $70.00 in cash and a pair of kitchen gloves which the Applicant had worn when he entered the victims’ premises.
Statements and victim impact statements from both Mr and Mrs Fox were tendered in the District Court. With respect to these statements, Charteris DCJ said (remarks on sentence, page 3):
“I have read the statements of the complainants Mr and Mrs Fox. I accept that what occurred on that evening must have been a truly terrifying event for them. It would be terrifying for people of any age let alone those in the circumstances of Mr and Mrs Fox, when Mr Fox is seriously ill and indeed physically disabled.
There have been tendered before me victim impact statements which I have read. They accord with what I would expect any citizen in the position of Mr and Mrs Fox to have felt, and the reaction of Mr and Mrs Fox to their ordeal is understandable.”
Also tendered in the District Court were photographs of the victims. Charteris DCJ observed (remarks on sentence, page 6):
“Although the injuries to their hands are superficial, they still are injuries occasioned by his tying of the stockings too tightly”.
Following his arrest, the Applicant was taken to the Port Macquarie Police Station where an interview took place which was electronically recorded. The Applicant stated that he did not turn off the power nor did he tamper with it. The sentencing judge noted that Mr and Mrs Fox adverted to a power failure the previous evening, and his Honour was not satisfied that the Applicant had brought about the loss of power. In the interview, the Applicant agreed that he said on a number of occasions whilst searching the victims’ possessions, “I’ve got a pair of paupers here”. When asked why he was driving back to the premises after his failed attempt to obtain money in Laurieton, the Applicant said that it was his intention to take the motor vehicle back. He asserted that he had never been a criminal and that he had worked for the State for some 26 years. He said he was very sorry for what he had done. In answer to a question as to when he had decided to commit the offence, the Applicant said, “About three days ago, I was just desperate for money. I thought well just do that, get some money, pay some bills and that, that’s what my intentions were. You know you read the papers, and you fucking hear things like that. … Well I thought if I do it, try it once, I might get away with it”. He said that he had selected the house at random. He noted that Mr Fox was on a walking frame and for that reason did not tie up his feet. The Applicant asserted that it was his intention, when he returned to the house, to untie Mr and Mrs Fox, leave their car at the property and to leave the vicinity. With respect to this issue, Charteris DCJ concluded (remarks on sentence, pages 5-6):
“I am not in a position to find affirmatively that he was going to either return to the premises and leave the car and untie Mr and Mrs Fox or whether his intention was to do other things such as demand the correct PIN number”.
In the course of the interview, the Applicant revealed that he had $400,000.00 in the bank. The sentencing judge was satisfied that this was superannuation money to which the Applicant was not entitled until he reached retirement age.

The sentencing judge accepted that, although the Applicant had taken amphetamines on the day of the offence, the level of his intoxication was not great. His Honour accepted that the Applicant was “very much in a depressed state when he decided to undertake this offence”.
The Applicant’s Background
The Applicant was born on 17 October 1958 and was aged 45 years at the time of this offence. Upon leaving school, he had been employed by Telstra in a technical position for some 26 years. He was retrenched in 2000. He did not cope well with retrenchment. The Applicant gave evidence in the sentencing proceedings in the District Court as did his sister, Ms Sandra Jones. The Applicant commenced using amphetamines and cannabis at the age of 43, shortly after his retrenchment. Charteris DCJ formed the view that the Applicant “continues to lack the skills to get himself out of the rut that he found himself in by his loss of employment”.
During his evidence in the District Court, the Applicant expressed regret and shame for the offence. Charteris DCJ accepted that the Applicant was being honest with the Court when giving that evidence.
A report dated 5 May 2004 from a psychologist, Mr Peter Ashkar, was tendered in the Applicant’s case in the District Court. Mr Ashkar referred to the Applicant’s use of amphetamines and cannabis following his retrenchment. Symptoms of depression were noticed following the Applicant’s retrenchment and he was prescribed medication to help with sleep problems. Mr Ashkar considered that the offending behaviour was precipitated by psychosocial stress flowing from his retrenchment, the Applicant’s long-term unemployment and his financial difficulty. That stress led to a disturbance of mood, anxiety and depression, which led to the Applicant engaging in substance abuse which in turn gave rise to anger. It was the view of Mr Ashkar that substance abuse was a maladaptive attempt by the Applicant at emotional regulation. It was Mr Ashkar’s view that the Applicant did not have an entrenched pattern of offending behaviour. He recommended that an anger-management programme be provided to the Applicant together with a substance abuse prevention programme. The sentencing judge generally accepted the opinion of Mr Ashkar and made recommendations to the prison authorities in accordance with Mr Ashkar’s views.
The Applicant has a prior criminal history. In 1978, he was convicted of driving with the prescribed concentration of alcohol. In 1994, he was convicted of aiding and abetting the commission of a high-range prescribed concentration of alcohol offence. In the same year, he was fined for possession of a firearm whilst unlicensed. In 1998, he was fined for common assault and malicious damage to property. The Applicant gave evidence before the sentencing judge that this offence related to him being drunk at a hotel and his damaging a door of the hotel. In the same year, he came to attention for assault and was placed on a bond for two years. The Applicant gave evidence that this offence, together with two offences in 1999 involving contravention of apprehended domestic violence orders, related to an unhappy domestic situation with his then girlfriend. On 23 September 2002, the Applicant was placed on a two-year good behaviour bond and was fined for larceny, possession of ammunition without holding a licence and possession of a prohibited drug. The sentencing judge concluded (remarks on sentence, page 7):
“It is a trivial record in the scheme of things and not consistent with someone embarking upon this offence”.
It should be observed that the Applicant was subject to a bond at the time of the present offences. His Honour did not refer to this fact in the remarks on sentence by way of reference to s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 or otherwise, although there was a passing reference in the Applicant’s evidence to the offences which gave rise to the bond (Transcript, page 14).
Determination of Objective Seriousness of Offence
As previously mentioned, s.54A Crimes (Sentencing Procedure) Act 1999 provides for a standard non-parole period of five years in the case of an offence under s.112(2) Crimes Act 1900. The standard non-parole period must be taken to be intended for an offence in the middle of the range of objective seriousness where the offender was convicted after trial: R v Way (2004) 60 NSWLR 168 at paragraph 68. However, the standard non-parole period remains relevant as a reference point where there is a guilty plea: R v Way, above, at paragraph 122; R v GJ Davies [2004] NSWCCA 319 at paragraphs 6, 29; R v Pellew [2004] NSWCCA 434 at paragraph 13.
In the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness. In R v Pellew, above, Simpson J at paragraph 13 included the following propositions in a summary of principles emerging from R v Way:
“…
(iii)A sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (R v Way, paras 74-77);
(iv)circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus, the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (R v Way, paras 85-86);
…”.
In the present case, the sentencing judge did not make a finding as to where the s.112(2) offence lay in the range of objective seriousness. His Honour said (remarks on sentence, page 13):
“Section 54A of the Act provides for a standard non-parole period in this matter of five years. I have taken into account the decision of the Court of Criminal Appeal in R v Way as to how I must approach the effect of that section. Of course the plea of guilty by the offender affects what approach the Court takes to the standard non-parole, I am guided by the judgment of Spigelman CJ in that regard.
I refer to the matters of mitigation that I have recounted as being matters that entitle me to depart from the standard non-parole period, and of course I am aware that the plea of guilty occasions one to have the possibility of a significant departure from that standard non-parole period.
The criminality of this offence is significant in my view. The offence was a very serious matter.”
Specific reference had been made during submissions to the standard non-parole period, with the Applicant’s then legal representative advancing the following argument (Transcript, page 26):
“DAMPNEY:  Well as a second or perhaps last resort I would say perhaps your Honour could be guided by the table and fit this matter to the top end of the medium range.
HIS HONOUR:  Which is what?
DAMPNEY:Well it says, according to the table, 5 years.
HIS HONOUR:  As a non-parole period?
DAMPNEY:As a non-parole period.
HIS HONOUR:  But that implies a head sentence of six and three-quarters does it?
DAMPNEY:According to s 44 I think that is right.
HIS HONOUR:  Or six and two thirds.
DAMPNEY:A third plus – it is a third more.
HIS HONOUR:  Yes, six and two thirds. What special circumstances are there do you say?”
The Crown also touched upon this issue during submissions on sentence in the District Court (Transcript, page 28):
“FRASER:Yes. But in fairness he does have quite a number of the mitigating factors also your Honour and it may be a case where your Honour will think that notwithstanding that your Honour is not to be unduly influenced by the standard non-parole period in light of Way’s case, it may well be close to the mark in this particular instance.
HIS HONOUR:  The standard non-parole is?
FRASER:5 years your Honour, and it may well be that when your Honour does the balancing between those aggravating and mitigating factors that that would be a figure that may be appropriate.
HIS HONOUR:  There is an issue of special circumstances for this man?
FRASER:Yes.
HIS HONOUR:  What do you say about that Mr Crown?
FRASER:I think it is open to your Honour to find them to some limited degree in this case.”
I shall return to the “range of objective seriousness” issue in the context of the second ground of appeal.
Some Other Findings by Sentencing Judge
His Honour found that the offence was out of character for the Applicant and accepted that he was genuinely remorseful for what he had done.
His Honour noted the requirement, in passing sentence, for personal deterrence and “significant general deterrence”. His Honour observed, rightly, that “the community expects to be protected when members of the public are in their own homes at night”.
As will be seen in the context of the first ground of appeal, the sentencing judge allowed a discount of 15 months from a starting point head sentence of eight years for the Applicant’s early plea of guilty and remorse. As a result, a head sentence of six years and nine months was arrived at for the s.112(2) offence.
His Honour found special circumstances by way of the Applicant’s “trivial past record in the scheme of things” and his “excellent prospects of rehabilitation”. Accordingly, his Honour varied the proportion between the non-parole period and the balance of the sentence and fixed a non-parole period of three years and nine months, being about 55.5% of the full term.
Ground 1 – The Learned Sentencing Judge Failed to Allow a Sufficient Discount for the Plea of Guilty
The Applicant’s first ground of appeal relates to the discount provided to him by the sentencing judge for his pleas of guilty and the sentencing judge’s findings of remorse. Charteris DCJ said (remarks on sentence, page 15):
“Weighing up all of the matters that are appropriate on sentence, I form the view that subject, to a discount for his remorse and his facilitation of the course of justice, a sentence of eight years imprisonment should be imposed. I intend to deduct from that period an allowance for his early plea of guilty and his remorse. The case against him would have been a strong one in my view as he was found in possession of Mr and Mrs Fox’s car taken from the house and also other possessions. However, he made immediately a record of interview and made full admissions about his behaviour. He pleaded guilty at the earliest opportunity. He has expressed publicly his contrition and remorse. I accept him as genuine in that matter. I intend to allow him a discount of 15 months from his sentence because of his remorse and his facilitation of the course of justice. I therefore arrive at a head sentence of six years and nine months”.

A discount of 15 months from a sentence of eight years represents a reduction of 15.5%. The Applicant submits that, in the circumstances of this case, the sentencing judge has erred in one or more respects:
(a)Firstly, it is submitted that his Honour failed to have regard to the utilitarian discount provided for in R v Thomson and Houlton (2000) 49 NSWLR 383. It is said that his Honour’s reference to the Applicant’s “facilitation of the course of justice” is a reference to the subjective factor identified in Cameron v The Queen (2002) 209 CLR 339 at paragraph 343 (paragraph 11). The Applicant contends that the sentencing judge gave credit for subjective elements (the Cameron factor and the Applicant’s remorse and contrition), but not for the objective (utilitarian) element referred to in R v Thomson;
(b)secondly, and alternatively to (a), the Applicant submits that, assuming that his Honour did include in the discount of 15.5% an objective element for utilitarian value, the sentencing judge erred, in the circumstances of this case, in not explaining his process of reasoning for allowing a discount significantly less than 25%: R v Johnstone [2004] NSWCCA 307 at paragraphs 28, 43;
(c)thirdly, the Applicant submits that error is disclosed in this case in allowance by way of total discount for both objective (utilitarian) and subjective (remorse) reasons of only 15.5%.
The Applicant contends that the appropriate discount for the utilitarian value of the plea alone was in the order of 25%: R v Thomson. It was submitted that a further discount was appropriate in this case given his Honour’s findings with respect to the Applicant’s remorse and contrition.
The Crown submits that the sentencing judge was not bound by s.22 Crimes (Sentencing Procedure) Act 1999 or by R v Thomson to give either a discount at all or one of a particular order. It was stressed that the range of discount referred to in R v Thomson is a guideline which creates no presumption of, or entitlement to, a particular discount in a given situation: R v Scott [2003] NSWCCA 286 at paragraph 28 and R v Newman [2004] NSWCCA 113 at paragraph 12.
The Crown draws attention to comments made by the sentencing judge during the proceedings indicating an intention to take into account that the Applicant had “pleaded guilty from the earliest possible opportunity and expressed regret at the earliest possible opportunity”. It is said that the sentencing judge had both objective and subjective elements in mind.
The Crown relies upon the statement of Sperling J in Johnstone, above, at paragraph 45:
“A fortiori, in some cases, a plea of guilty, in combination with other relevant factors, will not attract a discount which would be appropriate in isolation. If a discount which may be appropriate in isolation would reduce the sentence below that warranted for the offence, priority has to be given to setting an appropriate sentence.”
It is submitted by the Crown that it ought be implied from the remarks of the sentencing judge that a discount of more than 15 months from a head sentence of eight years would reduce the sentence below a level which was warranted in the circumstances of the case and that, for that reason, his Honour limited the discount to the order of 15.5%. It is argued that a lesser sentence for such an extremely serious example of this offence was not warranted and that no error is revealed in his Honour’s exercise of discretion in confining the discount.
In reaching the discount of 15 months in this case, the sentencing judge rolled up both the objective and subjective factors (R v Sharma (2002) 54 NSWLR 300 at 308, paragraph 37) flowing from an early plea of guilty and a finding of genuine remorse. I am not satisfied that his Honour failed to have regard to utilitarian elements in accordance with the principles in R v Thomson. This is a well-known and fundamental sentencing principle in this State. Although his Honour’s language did not expressly use the R v Thomson formula, I consider that his Honour has taken into account objective utilitarian elements in accordance with that principle.
At the same time, his Honour has made a finding of genuine remorse on the Applicant’s part and, in that context, referred to the strength of the Crown case against him. The strength of the Crown case is relevant to the subjective element of remorse, but irrelevant to the objective utilitarian element: R v Thomson, above, at paragraph 136ff.
In the present case there was a strong finding of genuine remorse on the Applicant’s part. His Honour correctly observed that the Applicant had “expressed regret at the earliest opportunity”, there being a number of statements in the electronically recorded interview which pointed to remorse at that early time.
In the ordinary course, the Applicant would have a strong case for a discount for the objective (utilitarian) element towards the top end of the 10%-25% range in R v Thomson, and an additional allowance for the subjective (remorse) element which featured strongly in this case. It is clear that discounts do not flow in a mandatory or automatic way. They remain as part of a sentencing discretion to be exercised in the particular case by reference to all relevant circumstances. However, it is the policy of the criminal law to encourage offenders to plead guilty at an early time, to be accountable for their actions, and to recognise the seriousness of their crimes and the impact of those crimes upon their victims and the community: s.3A(e), (g) Crimes (Sentencing Procedure) Act 1999. This policy is usually applied by practical and real discounts where the foundation is established for them in a particular case. In my view, the Applicant was entitled to a higher discount than that provided by the sentencing judge in this case, unless such a discount would reduce the head sentence to a level below that which was appropriate given the seriousness of his offence. If his Honour made a conscious decision to confine the discount because of the objective seriousness of the offence, an explanation to that effect was required: R v Johnstone, above. It was not given.
As appears below, I consider that a starting point of eight years by way of head sentence was appropriate in this case. In my view, a reduction of that period by two years three months was warranted in recognition of the discount appropriate for the substantial objective and subjective elements flowing from the Applicant’s early plea of guilty and genuine remorse. A head sentence of five years nine months would not reduce the sentence below a level which was appropriate for the objective seriousness of the offence.
I conclude that the Applicant has made good his first ground of appeal and that a reduction in the head sentence for the s.112(2) offence is appropriate in this case.
I do not consider that a consequential reduction flows automatically to the non-parole period. The finding of special circumstances by the sentencing judge led to a significant variation in the statutory proportion. I will return to the question whether the Court should interfere with the non-parole period in the context of the second ground of appeal.
Ground 2 – The Sentence is Excessive and a Less Severe Sentence is Warranted at Law
Whilst acknowledging that the s.112(2) offence is a very serious one, Counsel for the Applicant submits that the sentence for that offence is manifestly excessive. It was submitted that the starting point of eight years imprisonment as a head sentence was too high and the non-parole period was excessive. The Applicant contended that the s.112(2) offence lay at the upper end of the mid-range of objective seriousness. However, it was argued that there was a powerful subjective case which warranted a lesser head sentence and non-parole period.
The Crown submitted that this was an offence which fell well above the mid-range of objective seriousness for an offence of this type. There were circumstances of aggravation relevant to the determination of an appropriate sentence, including the fact that the offences were committed whilst the Applicant was subject to conditional liberty.
In my view applying the principles referred to in Way and Pellew, this was an offence which lay above the mid-range of objective seriousness for an offence of this type. Counsel for the Applicant accepted that this offence could be characterised as a “home invasion”. The victims were terrified by the sudden intrusion into their holiday home. They were verbally threatened and physically bound. The Applicant was aware that Mr Fox was disabled and was using a walking frame, although the Applicant was not aware of his terminal cancer. The Applicant took the precaution of wearing gloves to avoid leaving fingerprints. The offences were committed whilst the Applicant was subject to a good-behaviour bond.
His Honour made findings that the offence was out of character for the Applicant and was committed at a time when he was depressed in the wake of his retrenchment. The sentencing judge found that the Applicant had good prospects of rehabilitation.
Counsel for the Applicant relied upon Judicial Commission sentencing statistics in support of the argument that the sentence imposed for the s.112(2) offence was manifestly excessive. In ordinary circumstances, care must be taken in the use of sentencing statistics: R v Bloomfield (1998) 44 NSWLR 734 at 739; R v Nai Poon [2003] NSWCCA 42 at paragraphs 50-51. In the present case, it must be borne in mind that such statistics related to offences committed before the commencement of the standard non-parole provisions on 1 February 2003. Such statistics will be of very limited use given the significant change in sentencing law flowing from those amendments: R v Way, above, at paragraphs 54, 122, 132-134, 139. There are now two statutory guideposts or reference points available – the maximum penalty and the standard non-parole period: R v Way, above, at paragraph 50.
In my view, a head sentence with a starting point of eight years was appropriate in this case. This was a most serious offence where the maximum penalty was 20 years imprisonment. Further, a reduction of the non-parole period below three years and nine months as fixed by the sentencing judge would not adequately reflect the objective criminality of this offence.
I would reject the second ground of appeal.
Conclusion
In my view, the first ground of appeal has been established with respect to the head sentence, with the result that a head sentence of five years nine months imprisonment ought be imposed in place of six years and nine months imprisonment.
However, I do not consider that any reduction in the non-parole period ought be made in this case. In my opinion, a non-parole period of three years and nine months represents the minimum term of imprisonment which ought be served by the Applicant for this objectively serious offence: Power v The Queen (1974) 131 CLR 623 at 628. The sentencing judge’s finding as to the presence of special circumstances was appropriate. A non-parole period of three years and nine months represents 65.2% of a head sentence of five years nine months. This remains a significant variation of the statutory proportion having regard to the finding of special circumstances.
I propose the following orders:
(a)Leave to appeal granted as to the sentence for the offence under s.112(2) Crimes Act 1900;
(b)leave to appeal refused as to the sentence for the offence under s.154A Crimes Act 1900;
(c)appeal allowed with respect to the offence under s.112(2) and the sentence quashed;
(d)sentence for the s.112(2) offence to imprisonment comprising a non-parole period of three years and nine months commencing on 8 November 2003 and to expire on 7 August 2007 and a balance of term of two years commencing on 8 August 2007 and to expire on 7 August 2009;
(e)the recommendations to prison authorities made by Charteris DCJ on 24 June 2004 are confirmed.

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LAST UPDATED: 06/04/2005