R v Rongonui-Chase
[2004] VSCA 25
•12 March 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 74 of 2003
| THE QUEEN |
| v. |
| ROBERT RONGONUI-CHASE |
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JUDGES: | WINNEKE, P., COLDREY and BONGIORNO, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 18 February 2004 | |
DATE OF JUDGMENT: | 12 March 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 25 | |
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Criminal law – Sentence – Affray, intentionally causing serious injury and attempted armed robbery – Youthful offender – Whether obligatory for sentencer to obtain pre-sentence report – Whether principles referred to in R. v. Tsiaras applicable – Whether sentence manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. R. A. Elston | K. Robertson, Solicitor for Public Prosecutions |
For the Appellant | Mr. L.C. Carter | Dotchin & Co. |
WINNEKE, P.:
I agree with Coldrey, A.J.A., and for the reasons which he gives, that the appeal against the sentences imposed by the County Court Judge should be allowed; that the sentences imposed below should be quashed and that in lieu the sentences proposed by Coldrey, A.J.A. be substituted.
COLDREY, A.J.A.:
The appellant, Robert Rongonui-Chase is currently aged 18 and was aged 17 at the time of the offences, the subject of this appeal. On 13 March 2003, the appellant pleaded guilty in the County Court at Melbourne to the offence of affray and two charges of intentionally causing serious injury (committed on 3 August 2002). These offences constituted Counts 1-3 on the presentment. The appellant also pleaded guilty to the offence of affray and recklessly causing injury committed on 4 August 2002 (Counts 4 and 5). Further, the appellant pleaded guilty to three charges of attempted armed robbery and one of theft, all committed on 11 September 2002 (Counts 6-9).
On 14 March 2003 he was sentenced to the following periods of imprisonment: Count 1, Affray - 18 months; Count 2, Intentionally Causing Serious Injury - 12 months; Count 3, Intentionally Causing Serious Injury - 2 years 6 months; Count 4, Affray - 12 months; Count 5, Recklessly Cause Injury - 6 months; Counts 6, 7, 8, Attempted Armed Robbery - 2 years 6 months on each; and Count 9, Theft - 1 month. Six months of Count 1, all of Count 4, and 12 months of Count 6 were ordered to be served cumulatively upon Count 3. This produced a total effective sentence of 5 years' imprisonment. A non-parole period of 2 years 9 months was fixed and 34 days pre-sentence detention was declared to have been served.
The maximum penalty for affray is 5 years; for intentionally causing serious injury, 20 years; for recklessly causing injury, 5 years; for attempted armed robbery, 20 years; and for theft, 10 years.
The appellant admitted 26 previous findings of guilt from four Children's Court appearances between 14 May 1998 and 13 March 2001 and admitted 35 previous convictions from six Children's Court appearances between 25 May 2001 and 27 March 2002. These offences include three charges of robbery, one charge of affray, one charge of intentionally causing injury, one charge of intentionally causing serious injury, eight assault related charges and 25 charges involving dishonesty.
At the outset of the plea in this matter, counsel for the appellant applied for an adjournment to obtain a further psychiatric report. The sentencing Judge declined to grant the application and the plea proceeded.
The current grounds of appeal are as follows:
(1)The learned sentencing Judge failed to order a pre-sentence report and psychiatric assessment;
(2) The sentence imposed offends against the principle of totality;
(3)The learned sentencing Judge failed to attach sufficient weight to the Appellant's prospects of rehabilitation;
(4) The sentence is manifestly excessive in all the circumstances.
Before turning to consider these grounds it is convenient to outline the facts constituting the offences upon which the appellant was sentenced.
On Saturday 3 August 2002, Phillip Drews and Simon Evans (young men aged 22) walked onto platform 2 at Prahran Railway Station in order to catch a train home. It was about 11.30 p.m. They observed a large number of youths and young women present. A group of about six youths, which included the appellant, approached Drews and Evans. Drews believed he may have spoken to one of the youths but said nothing provocative before being hit by another member of the group. He had no further recollection until regaining consciousness while being attended to by ambulance officers. Evans tried to intervene when the initial attack upon his friend occurred. He was then set upon by youths and his next recollection is of seeing Drews on an ambulance stretcher.
A witness, Zoe Mates, who knew the appellant, observed him punch Evans in the face and saw him fall to the ground. The appellant then stomped on Evans' head and the witness stated that she heard "a loud cracking noise". At this stage Drews was also lying on the ground. A passenger on a train which arrived at the station, a Mr Eugene Goldberg, saw Evans slumped and swaying against the wall with blood on his face. There were about five people standing over him. The witness observed Drews nearby lying prone with his eyes closed and blood on his face. Mr Goldberg then saw the appellant, who was wearing a yellow jumper, walk up to Evans and kick him in the face. He saw Evans slump down and dark blood come out of his mouth. Other witnesses described Drews and Evans being set upon by several youths including the appellant and the appellant personally assaulting Evans by punching and kicking him. Yet another witness saw Drews being kicked as he lay on the ground. None of the witnesses saw any sign of aggression, provocation or even any defensive action on the part of the victims. The appellant and his co-offenders eventually fled from the station.
Drews received bruising and swelling to his head and face. His two top front teeth were knocked out of his mouth. He also had a deep laceration to his lower lip. Evans received bruising and swelling as well as cuts to his head and face, chipped and broken teeth, and soreness to his neck, jaw and shoulder. During the affray, or shortly afterwards, a black leather wallet containing cash and personal papers was taken from Drews, whilst items including a Nokia mobile phone and $160 were taken from the victim Evans.
The appellant, when interviewed on 22 August 2002, admitted being at the Prahran Railway Station with his friends at the time of the incident. He stated, untruthfully, that he saw one of the victims hit one of his friends in the face. He stated that he jumped in and elbowed and punched this person. He stated that this person fell to the ground and he then punched the male person who was with him. This male fell to the ground and he then kicked both males in the head and stomach. According to the appellant his friends also kicked and punched both males when they fell to the ground. The appellant denied knowledge of or involvement in the thefts of the property from both victims. These events constituted Counts 1-3.
Having fled the Prahran Railway Station, the appellant and his companions went to Windsor Railway Station being the next outward station. At about 12.45 a.m. David Max (aged 26 years) attended the station and ascertained he had missed the last train. He was exiting the platform when a youth approached and asked him for a cigarette. This he provided but when a second youth also asked him for a cigarette he said he only had one left and began to walk away. This youth immediately tried to punch him in the face and he was then struck on the side of his head with a crutch wielded by another youth. At this point Mr Max was set upon by several youths including the appellant. He was punched and kicked onto the ground where he tried to protect himself. Next he was told to stand up and the youths demanded his mini disc player. David Max dropped his 'Walkman' on to the ground but the demand for the mini disc player was repeated. He was searched, his shoes were removed and he was told to remove his shirt. The youth who was armed with the crutch demanded drugs and money from him. Thirty two dollars in cash was taken from his pocket. He endeavoured to escape but was punched in the head several times. Ultimately he managed to get away and the youths left with his money, sunglasses, Walkman and shoes. The injuries sustained by David Max included cuts to his face and nose and bruising to his face and head.
When interviewed by the police in relation to this incident the appellant stated he could not recall the entire event as he had been drinking. However, he admitted asking the victim for a cigarette which the victim refused to give him. He also stated that he remembered punching the victim four or five times in the ribs. The appellant denied involvement in the theft of the victim's property. The incident at the Windsor Railway Station founded Counts 4 and 5 on the presentment. The appellant's explanation for all of the offences committed on 3 and 4 August was stupidity and drunkenness.
After being charged with these offences, the appellant was admitted to bail. Subsequently, on 11 September 2002, at about 8.15 p.m., he accosted a person named Wayne Harris in Barkly Street, St. Kilda. The appellant produced a pistol and said: "Give me your money." He struck Mr Harris over the head with the butt of the pistol. Mr Harris responded by swinging his backpack at him which hit the appellant on the shoulder. The appellant said: "I've got a fucking gun, give me your fucking money." He pointed the pistol at Mr Harris who tried to move away. He was, however, struck with the butt of the pistol a number of times while the demand for money was repeated. Mr Harris continued to move backwards finally stepping out onto the street in an attempt to draw attention to his situation. When a vehicle approached the appellant stepped back on to the footpath and walked away. Wayne Harris received cuts to his head from the appellant striking him with the pistol. This encounter was encompassed by Count 6.
The appellant walked down Barkly Street to the intersection with Grey Street where Mark Brennan and his girlfriend, Clare McConnell, were about to cross the road. The appellant pushed Brennan in the shoulder, pointed the pistol at Brennan's head and said: "Give me your money." The appellant then stuck the pistol under Brennan's chin demanding his wallet. He said that he wasn't joking and that the gun was loaded. Although Mr Brennan thought the pistol might be made of plastic he took out his wallet and opened it to show that he had no money. Ms McConnell offered her handbag to the appellant but he said that he would not take "a bird's purse." The appellant then asked for the wallet again and looked through it. As he did so he repeated that he had a loaded pistol and that he would use it. He said that he would kill them if he had to. After sticking the pistol into the small of Mr Brennan's back and repeating his threats, the appellant walked away empty handed. This constituted Count 7 on the presentment.
Next in sequence Andrew Milne and Sharon Pepperdine were walking north in Barkly Street when the appellant approached the couple from behind grabbing Milne's right arm. He pointed his pistol at Milne and demanded his wallet. He also said: "I'll kill you." Mr Milne grabbed Ms Pepperdane by the arm and said: "Let's run" and they ran into the middle of Barkly Street to try and intercept passing traffic. The appellant followed them for a short distance. He was heard to say: "Fuck fuck" before running south along Barkly Street. These actions formed the basis of Count 8 on the presentment.
The appellant then walked down Barkly Street to the St. Kilda Inn Hotel at the corner of Grey and Fawkner Streets. After entering the hotel he picked up a backpack which had been left adjacent to the public bar area. After leaving the hotel he opened the backpack and took out a Hewlett Packard digital camera and placed it under his jumper.
The appellant's entry and exit from the St. Kilda Inn Hotel was observed at about 9.35 p.m. by two police officers who noted that he matched the description of the person who had committed the reported series of attempted armed robberies. He was arrested soon after. The camera and an imitation pistol were found in the appellant's possession. The total value of the stolen backpack and its contents was $1,500. The pistol was a black and brown one in the shape of a 9 mm. handgun.
When interviewed the appellant made full admissions in relation to all these offences. His stated reasons for committing them was: "because I was drunk and stupid." He also indicated that he needed money for a taxi fare.
At the time of committing the first series of offences the appellant was on parole from a five month Youth Training Centre sentence for affray and intentionally causing serious injury handed down at the Children's Court at Melbourne on 20 March 2002. The attempted armed robberies and theft were all committed while the appellant was on bail for the affrays and the assaults.
Several Victim Impact Statements were before the sentencing court. Phillip Drews required dental treatment estimated to occupy a period of about one year and which would involve (inter alia) the implant replacement of his missing upper central incisors with the likelihood of accompanying bone and soft tissue grafting. The upper and lower left lateral incisors also required repair and the dental bill was estimated to be in excess of $9,000. Quite apart from the financial effects (which included two weeks loss of income) Mr Drews has required ongoing psychological counselling. Apart from the adverse effect on Mr Drews' University studies in Visual Communications, he experiences feelings of insecurity when out at night and occasionally in daylight hours.
Amongst the injuries to his companion, Simon Evans, were two chipped teeth. Psychologically he has a greater sense of fear when alone or with another person at night. He has a fear of travelling on trains.
In addition to the financial loss occasioned to David Max by damage to his prescribed glasses and the theft of his 'Walkman' and clothing, he has experienced high anxiety and a paranoia about walking in certain areas at night. His self-confidence has also been affected.
There are no Victim Impact Statements from the other victims but one may safely infer that they were put in fear by the appellant's actions.
The initial attack made upon the judge's sentence was that it was imposed without the benefit of either a pre-sentence report or a psychiatric assessment. In relation to the former it was argued that, as a matter of principle, a judge sentencing a youthful offender must obtain a pre-sentence report pursuant to s.32 of the Sentencing Act 1991 (the Act), in order to assess the suitability of the offender for detention in a Youth Training Centre. Such a proposition cannot, in my view, be sustained. The seriousness of the offences committed by the youthful offender and that person's antecedents may make the service of a sentence in a Youth Training Centre with its three year maximum period of detention, and its indeterminate non-parole period, quite inappropriate. As Vincent, A.J.A. (as he then was) put it in R. v. Missoka[1]:
"There may well be situations in which, by reason of the ability of the Youth Parole Board to release a person, in respect of whom an order for detention in a Youth Training Centre has been made, and any time after the imposition of such a sentence, the necessity to impose a clearly defined period of incarceration would require the imposition of a sentence of imprisonment rather than an order for detention of that kind."
His Honour, whilst recognising the importance of rehabilitation as a sentencing consideration for young offenders also noted[2]:
"… There may be circumstances in which that consideration must be subjugated to some degree in favour of the advancement of other sentencing objectives."
[1](Court of Appeal, 9 November 1995) at p.9
[2]p.10
The provisions of s.96 of the Act deal generally with the ordering of pre-sentence reports. Sub-section (1) reads:
"If the court finds a person guilty of an offence it may, before passing sentence, order a pre-sentence report in respect of the offender and adjourn the proceeding to enable the report to be prepared."
It is clear that the sentencing judge has a discretion to order such a report. If a judge is considering making a Youth Training Centre order, the obtaining of a pre-sentence report is mandatory (s.s.2). However, it is quite clear that there is no mechanistic requirement or obligation placed upon a sentencing judge to obtain a pre-sentence report solely because the person to be sentenced may be categorised as a youthful offender.
Apart from the general principle asserted, it was submitted that in this particular case, given the youth of the appellant, and that he was already in a Youth Training Centre at Malmsbury at the date of the plea, and, that before the commission of these offences, he had never before experienced imprisonment in an adult prison, the judge was in error in not obtaining a report pursuant to s.32 of the Act. It was put that such a report could have informed the judge of the appellant's attitude to a YTC after experiencing one month on remand in an adult prison. This was said to be particularly important given evidence before the Court from a psychologist Ms Gina Cidoni, called on behalf of the appellant, as to his immaturity, impressionability and vulnerability, and the evidence of Detective Senior Constable Tony Juric who also described the appellant as immature and not very smart.
The sentencing judge was well aware of these aspects of the appellant's personality as well as the expressions of concern by Ms Cidoni about his incarceration in an adult prison. He was also aware of the assertions that the period of 34 days in an adult prison had been "a great shock" to the appellant and that, on one occasion, he was "stood over" by three other inmates. Additionally, the judge had before him the appellant's record in relation to detention in Youth Training Centres. For example, after early dispositions in the form of a good behaviour bond and probation, the appellant received youth supervision and youth attendance orders in September 2000 and March 2001. Having breached these orders he was sentenced to be detained in Youth Training Centres. Similar sentences of youth training followed in July, September and November 2001 and in March 2002. At the time of the first of the current offences the appellant was on parole for the very same offences, affray and intentionally cause serious injury for which his Honour had to pass sentence. In summing up the situation in his reasons for sentence the judge had this to say:
"Finally, I recognise that you are but a youth of 17½, who, when all is said and done, has been described as immature, impressionable and vulnerable. All those matters [counsel said] should cause me to order that you should again be detained in a Youth Training Centre.
I do not agree. I recognise that it is never satisfactory to place a person such as you in the environment of an adult prison. There are many reasons some of which were adverted to in argument, but sometimes it is sadly inevitable, and yours is such a case.
Your record demonstrates complete disdain for such sanction as is represented by detention in a Youth Training Centre and demonstrates that, as far as you are concerned, it represents no deterrent to future offending, and no incentive to rehabilitation.
In any event, your offences are, particularly given your record, far too serious for the maximum term of detention that I may order in a Youth Training Centre, three years."
True it is that there are cases in which judges obtain pre-sentence reports prior to sentencing youthful offenders to adult prison (see for example R. v. SJK and GAS[3] and R. v. PP[4]) but there is no imperative to do so and it was quite open to the sentencing judge to conclude that the nature of the present offences, together with the appellant's prior record, precluded the option of detention in a Youth Training Centre.
[3][2002] VSC 94
[4][2002] VSC 578
The complaint about the judge's failure to order a psychiatric report must be placed in context. There was no evidence whatsoever before the judge to suggest that the appellant was suffering from any mental illness at the time of these offences. The sentencing judge had before him a report from Dr Lester Walton, a consultant psychiatrist, which was provided in November 2001 in relation to earlier offences. Whilst an assessment by psychologist Ms Carla Lechner in April 2000, postulated the possibility of the appellant suffering from Attention-Deficit/Hyperactivity Disorder or Conduct Disorder, Dr Walton found the appellant to be of "normal intelligence" and that his "current mental state was within normal limits". Although Dr Walton described the appellant as having a lowered threshold towards psychiatric disturbance there was no suggestion that those offences were linked to any mental illness.
Dr Walton noted that the appellant's father suffered from schizophrenia which would place the appellant in an elevated risk category. He would not, however, qualify for a diagnosis of schizophrenia and, moreover, there was no evidence of his being in the prodromal phase of that illness.
It was against this background that the sentencing judge had the report of Ms Gina Cidoni of March 2003. Her testing had discerned average intellectual capacity, continued anger management problems, a schizoid trend, and sociopathic elements. The continued anger management problems were consistent with the proclivity to aggression noted in the earlier report of Dr Walton. In relation to the schizoid trend, the appellant had reported to Ms Cidoni that he experienced strange thought processes and, at times, feelings of unreality and interruptions to his normal streams of awareness.
In her evidence at the plea hearings Ms Cidoni told the Court:
"Now what I mean by a schizoid trend is that there was an elevation on that scale but not enough to constitute you know, a formal diagnosis of schizophrenia."
Later, after describing the disinhibiting effects of alcohol upon the appellant's conduct, the psychologist was asked by the appellant's counsel:
"Ms Cidoni, this personality - is it a trait or a disorder?--- Well it can't be considered a mental disorder at this stage but yes, it could be considered a personality trait, a level of disturbance let's say."
His Honour then asked:
"… Do I correctly note that he can't be said to suffer a mental disorder at this stage but does display personality traits?----Yes, symptoms of psychological disturbance, your Honour."
Ultimately, Ms Cidoni stated that "there is nothing wrong with seeking a second opinion". She continued:
"I'll often seek a second opinion from the psychiatrist who, you know, they have expertise in clinical disorders, also would have some advice about medications and what might be appropriate."
Later in Ms Cidoni's evidence this exchange occurred:
"His Honour: Are you able to afford any explanation for the repetitive pattern of violent behaviour that emerges from it? [The appellant's criminal history.]---Well, one common theme I saw was the alcohol. There was some earlier substance abuse as well and I would also say probably the people that he has been associating with would contribute to that as well yes.
Counsel:Are you able to say whether or not there is any connection between this schizoid trend and his violent behaviour?---Well there's a symptom let's say of schizophrenia, it could be aggressive impulsive behaviour, yes, and he has exhibited that part of it although he doesn't exhibit a formal sort of thought disorder."
In summary there was no evidence before the sentencing judge that the appellant suffered from the mental illness of schizophrenia, far less that schizophrenia had impacted upon his criminal activities. In the circumstances there was no material upon which the principle of general deterrence could be ameliorated by considerations of the type enunciated in R. v. Tsiaras[5].
[5][1996] 1 V.R. 398
Significantly, it was not suggested before this Court that the appellant had either schizophrenia or the prodromal phrase of schizophrenia either now or at the time of sentencing. The latter circumstance clearly being relevant to the disposition of a sentencing appeal (see R. v. Eliasen[6]).
[6](1991) 53 A.Crim.R. 391
It follows that I do not regard ground 1 as having any substance.
Ground 3 asserted that the judge failed to attach sufficient weight to the appellant's prospects of rehabilitation.
In cannot be put that the judge did not consider the issue of the appellant's youth. I have already referred to his Honour's remarks about the appellant's immaturity, impressionability and vulnerability. Additionally, specifically on the subject of rehabilitation, the sentencing judge commented:
"… I do not regard you as beyond redemption, for not only have you expressed your knowledge that your behaviour is wrong and bad, when interviewed by police, but you were described by Mr Juric as being upset and crying when interviewed over the attempted robberies.
In addition, Ms Cidoni is reasonably optimistic provided you receive what she describes as 'a lot of help' concerning substance and alcohol abuse and anger management and further, receive support before and after your ultimate release.
I additionally take into account in your favour your plea of guilty and the stage at which it has been made, your co-operation with investigating police, and the fact that despite your behaviour, your family remains supportive of you."
The importance of rehabilitation in a youthful offender cannot be gainsaid but the principles enunciated in R. v. Mills[7] are not immutable. Indeed, as Callaway, J.A. remarked in R. v. Tran[8]:
"The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important."
[7](1998) 4 V.R. 235
[8](2002) 4 V.R. 457 (para.14)
It is perhaps trite to observe that the law is not, and cannot be, that regardless of the seriousness of the specific offences or the number and nature of the previous criminal convictions, a youthful offender cannot be sent to an adult prison.
The final grounds argued were ground 2, that the sentence imposed offended against the totality principle and ground 4, that the sentence imposed was manifestly excessive in all the circumstances. The former, although capable of constituting a discrete sentencing error, may in this instance be treated as a species of the latter. In arguing the ground of manifest excess, counsel pointed to a number of matters. Amongst these were the youth and prospects of rehabilitation of the appellant. For reasons to which I have already adverted, I see no flaw in his Honour's approach to these factors. Additionally, emphasis was placed on the evidence of expressions of remorse by the appellant both in the records of interview and in his dealings with Detective Senior Constable Juric. There was also the appellant's early pleas of guilty. As has been pointed out, the sentencing judge took account of all these matters. The assertion, in counsel's submissions, that the appellant was merely "a hanger on" of a suburban gang, and that his criminal activity was triggered by grief at the traumatic death of some gang members, was, it is true, effectively dismissed by his Honour. Given the role of the appellant in these offences, and their nature, and the contention by the appellant that the offences were fuelled by alcohol, the judge was entitled to accord the aforementioned matters little or no weight. It was further put that the appellant had the support of his mother but this, as Dr Walton's report indicates, was a benefit he had apparently had at the time of his prior offending. In any event, as I have indicated, his Honour took it into account.
On the other side of the coin the history of the appellant indicated a troubled schooling including his expulsion from Sandringham Secondary College during year 10; periodic substance abuse, particularly involving alcohol, and a total lack of any work record. All this was coupled with a considerable prior history of violence resulting in detention in Youth Training Centres on a number of occasions.
All of these offences were committed at a time when the appellant was on parole for previous offences of affray and intentionally cause serious injury. Indeed the crimes of attempted armed robbery and theft were committed when the appellant was on bail for the August 2002 offences.
Even allowing for the appellant's youth this combination of factors made imprisonment in an adult prison an inevitable option, the only real question being for what period of time.
It is not the role of appellate courts to merely "second guess" the sentencing discretion exercised by the judge at first instance. Hence the admonition against "tinkering" with sentences imposed. In the instant case the sentencing judge approached his task in a very thorough and comprehensive manner and, in my view, the sentences for intentionally causing serious injury and attempted armed robbery could not be said to be outside the sentencing range open to the judge albeit the latter are at the high end of the range. The fact that the attempted armed robberies may have been "inept and ... somewhat bizarre" (to use his Honour's words) made them no less frightening for the victims. It should also be noted that the period of cumulation ordered in relation to these offences was 12 months. Moreover, although not specifically adverted to by his Honour, this disposition must be seen in the context of s.16(3C) of the Act. That section provides:
"Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term."
This Court was informed that the sentencing judge was erroneously told that the maximum period of imprisonment for intentionally causing serious injury was 15 years whereas it is 20. This error, which, of course, reduced the maximum period for which incarceration could be awarded, could not be described as detrimental to the appellant. The judge was also told that the maximum period of imprisonment for recklessly causing injury was 7 years whereas it was 5. Given the moderate sentence of 6 months imposed on the appellant for this offence, it is not possible to sensibly contend that this error affected the exercise of the sentencing discretion.
It may, however, be argued that the sentence of 18 months for the offence of affray (Count 1) is outside the appropriate sentencing range given that it was part and parcel to the assaults. The same comment may be made about the sentence of 12 months for the second offence of affray (Count 4), particularly as the facts upon which this count was based put it at the low end of the sentencing spectrum for such offences. Bearing the same considerations in mind the periods of cumulation, particularly the total cumulation of Count 4, are difficult to justify. Although recognising that the sentencing judge was constructing the individual sentences to produce a total effective sentence, I have concluded that both the manner and length of the periods of cumulation for the affray counts have caused the judge's sentencing discretion to miscarry. Moreover, the result of the cumulation has been to produce a total sentence which is manifestly excessive.
The sentencing discretion having been re-opened, I would re-sentence the appellant as follows. In lieu of the sentence of 18 months on Count 1, I would impose a sentence of 12 months, and on Count 4, I would impose a sentence of 6 months. I would cumulate 3 months of Count 1 upon Count 3 and I would also cumulate 3 months of Count 5 (the discrete offence of recklessly causing injury) upon Count 3. I would not interfere with the other sentences or the order for cumulation
in respect of Count 6. This would produce a total effective sentence of 4 years. Having regard to the fact that this is the appellant's first time in an adult prison and the beneficial effect that a lengthy period of supervision may have upon his future rehabilitation, I would fix a non-parole period of 2 years.
BONGIORNO, A.J.A.:
I have also had the advantage of reading, in draft, the reasons prepared by Coldrey, A.J.A. I agree in them and in the orders that his Honour proposes.