R v Smith

[2005] NSWCCA 339

CITATION:	R v Smith [2005] NSWCCA 339
HEARING DATE(S):	29 July 2005
JUDGMENT DATE:	28 September 2005
JUDGMENT OF:	Hulme J at 1; Hidden J at 51; Bell J at 54
DECISION:	1. Grant applicant leave to appeal and allow appeal - allow Crown appeal - sentences quashed - on supply prohibited drug, fixed term of 3 months from 27 August 2003; on maliciously inflict grievous bodily harm, non-parole period of 3 years from 27 November 2003, balance of term of 1/1/2 years; on enter dwelling house with intent to commit larceny, non-parole period of 1 year from 27 May 2006, balance of term 2 years.

CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - cross-appeal by Crown - s 7(1A), Criminal Appeal Act - charges of supply prohibited drug - enter dwelling with intent - maliciously inflicting GBH - offences linked in time - whether sentence on drug charge manifestly excessive - whether concurrence of sentence on the other two charges appropriate - whether accumulation of those sentences on sentence for drug charge appropriate - whether overall sentence appropriate to reflect total criminality - whether Court should intervene when error shown in individual sentences but overall sentence appropriate
LEGISLATION CITED:	Crimes Act 1900 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Crombie [1999] NSWCCA 297 R v Carr (2002) 135 A Crim R 171 R v Price [2002] NSWCCA R v Scott [2003] NSWCCA 286 R v Thomson & Holton [2000] 49 NBSWLR 383 R v Royal [2003] NSWCCA 275 R v Bottin [2005] NSWCCA 254 R v Shankley [2002] NSWCCA 253 R v Wickham [2004] NSWCCA 193 R v Georgiou [2005] NSWCCA 237
PARTIES:	Regina v Leslie Russell SMITH
FILE NUMBER(S):	CCA 2005/904
COUNSEL:	Ms J Girdham - Crown Ms J Manuell - Applicant
SOLICITORS:	S Kavanagh - Solicitor for Public Prosecutions S E O'Connor - Solicitor for Legal Aid

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/1203
LOWER COURT JUDICIAL OFFICER:	Latham DCJ

2005/904

HULME J
HIDDEN J
BELL J

28 September 2005

R v Leslie Russell SMITH

Judgment

1 HULME J: On 21 October 2004 Leslie Russell Smith was sentenced by Judge Latham (now Justice Latham) in respect of three offences:-

(i) The supply of 0.05 grams of methylamphetamine.
(ii) Entering a dwelling house with intent to commit larceny therein.
(iii) Maliciously inflicting grievous bodily harm.

2 Pursuant to Section 25(1) of the Drug (Misuse and Trafficking) Act, 1985 the first offence rendered the Applicant liable to imprisonment for 15 years and a 2,000 penalty unit fine. Given the weight of drug involved, a “small quantity” as defined in that Act, had the offence been dealt with summarily, as it would have been had the Crown not elected otherwise – see Criminal Procedure Act s260(1) - the maximum penalty which could have been imposed was 2 years imprisonment and 50 penalty units. By virtue of ss114(1)(d) and 35(1)(b) of the Crimes Act, each of the other offences rendered the Applicant liable to imprisonment for 7 years.

3 The sentences imposed were:-

(1) In respect of the first charge, imprisonment for a fixed term of 2 years from 27 August 2003;
(2) In respect of the second charge, imprisonment for 3 years including a non-parole period of 1 year, both such terms to commence on 27 August 2005; and
(3) In respect of the third charge, imprisonment for 4½ years including a non-parole period of 2 years both such terms to commence on 27 August 2005.

4 Thus the effective sentence imposed on the Applicant was imprisonment for 6½ years including a non-parole period of 4 years. The commencing date of 27 August 2003 was the day immediately following the expiration of a 6 months sentence of imprisonment imposed on the Applicant on 6 August 2003 (and backdated to commence on 28 February 2003) for driving a conveyance taken without the consent of the owner.

5 The circumstances of the Applicant’s offending were summarised by her Honour in remarks not the subject of criticism in this appeal. They were:-

“(T)hat in the evening of 15 November 2002, the prisoner entered the home of one Dianne Nguyen at … Cranbrook near Penrith. Ms Nguyen lived there with her three young children, one of whom was the victim in relation to the maliciously inflict grievous bodily harm offence, a young girl by the name of Zoe who was fourteen years of age at the time. RSH ? NGUYEN & CRANEBROOK
Approximately, an hour or two before that time, the prisoner had been to the front of the home and spoken to Zoe. He left a small quantity of methylamphetamine in an envelope to be given to the victim’s mother. That is the subject of the count of supply methylamphetamine. The prisoner entered through a kitchen window in the evening of 15 November 2002 at a time when all the occupants were asleep. He walked through the home in possession of a piece of orange nylon rope about a metre or so in length. The tope was of a similar kind, colour, material and width to other lengths of rope which were later seen outside the home used to fashion a children’s swing in the yard and separately stored on a hook attached to the exterior of the house. Inside the house, the prisoner entered Zoe’s bedroom, wrapped a piece of nylon rope around her neck and applied what was later described by a medical expert as significant force around her neck. Soon afterwards, he left the house but before doing so, he cut off a lock of Zoe’s hair. The prisoner lives some ten or fifteen minutes away by foot at his parent’ address in Laigon Way Mt Pleasant.
After the prisoner had left, Mrs Nguyen awoke and (later) … raised the alarm and noticed that the kitchen mat had been ruffled near the window and that outside the home a chair had been placed for entry near the kitchen window. Police and ambulance were called and Zoe was taken to Nepean Hospital where she remained until 17 November 2002. She had some follow up treatment. At the hospital, staff noticed that Zoe had a large 10cm abrasion and haematoma or bruising to her throat under her chin. Other bruising was seen behind her right earlobe and to her face. There were also signs of bilateral conjunctival haemorrhages as well as other haemorrhages on her right shoulder and sternum. She also suffered a contusion to her shoulder. It is accepted for the purposes of the plea that these injuries amount to grievous bodily harm.
It emerged that the prisoner had some passing acquaintance with the victim’s mother and had been to the home a few days prior to 15 November. The prisoner was questioned over these offences on 20 November 2002. The prisoner admitted attending the victim’s home on 15 November and admitted the supply of amphetamine. He denied entering the home and denied knowledge of any assault upon Zoe.”

6 To the above summary may be added the fact that on the occasion when the Applicant supplied the amphetamines he knocked on the front door, Zoe answered it and said her mother was not at home, the Applicant produced a little pocket knife and a tiny bag with some white stuff in it, said he was going to give some of the white stuff to Zoe’s mother and asked for an envelope and pen. When the envelope was produced he placed some of the white stuff in it and wrote on the envelope. The Applicant told Zoe he wanted to come into the house to hide the envelope but she declined to let him in.

7 The papers do not reveal what the Applicant’s attitude was at the time of committal in relation to the first charge, nor whether at that time he was also facing additional charges, but do indicate that when arraigned on 27 November 2003 he pleaded guilty to the supply offence. He pleaded guilty to the other charges on 20 July 2004 the date set for the commencement of the trial of them.

8 The Applicant seems not to have been paid for the drug he supplied but whether he hoped or thought there was some prospect of payment in the future is not the subject of sufficient evidence to form any conclusion. In the Statement of Facts tendered to her Honour it is recorded that “For the purposes of the plea the Crown accepts the reason for entry to have been to steal property …”. If so, it may be inferred that a, if not the, principal inspiration for the entering with intent offence lay in an addiction to amphetamines. The Applicant’s Antecedents Report and evidence given by his mother during the course of the sentencing proceedings lend support to this conclusion.

9 There is no evidence apart from the fact and circumstances of the attack which provides any indication of the Applicant’s motive for the offence the subject of the third charge save and except for an explanation given to a psychologist who the Applicant saw in connection with his sentencing. That explanation was that while looking through some drawers a noise disturbed him and he acted out of fear of being caught before reflecting on what he was doing. However, a difficulty with this explanation is that it was accompanied by a statement that the rope used was one he had been wearing as a belt at the time. In fact the rope was of a similar kind, colour, material and width to other lengths of rope outside the house and used to fashion a children’s swing and also separately stored on a hook attached to the exterior of the home. The explanation also does not sit happily with the Applicant’s removal of a lock of the victim’s hair.

10 Probably the most one can say is that, given the way in which the proceedings were conducted below, there is insufficient evidence upon which one could find on the criminal standard that the assault was pre-meditated, and also that the Applicant seems voluntarily to have desisted from it.

11 The Applicant was born on 27 March 1970 and belongs to a still supportive family. He has trade qualifications as a motor mechanic. He married in 1991 but separated from his wife in 2000, there having been matrimonial difficulties for some time prior to that. There are two children of the relationship with whom, prior to his incarceration, the Applicant seems to have had a good relationship despite the separation. At an earlier stage in his life the Applicant had problems with alcohol but seems to have overcome them. It appears that his amphetamine addiction developed after the separation from his wife. For some time after that separation his parents supported him in a flat and later in their home. It is obvious from his mother’s evidence that his addiction was destructive of any meaningful life in the years prior to his incarceration. Latham J concluded that “There seems to be little else which is capable of giving rise to such abhorrent behaviour”.

12 Her Honour also concluded that the Applicant’s prospects of rehabilitation were reasonable notwithstanding some appreciable reservations she had about his contrition.

13 There are five other occasions when the Applicant has been sentenced for offending, three of these involving property and what appear to have been ancillary offences. The only other period of incarceration was the sentence of 6 months to which reference has earlier been made.

14 Evidence from the Applicant and certificates annexed to an Affidavit from his instructing solicitor and tendered on the usual basis in the appeal indicate that he has been using his time in custody profitably both in employment and in courses and that he has not used any illegal drugs since he has been in gaol.

15 On behalf of the Applicant are raised two grounds of appeal, viz:-

(i) The sentence imposed in respect of the charge of supply prohibited drug pursuant to Drug Misuse and Trafficking Act 1985 s25(1) was manifestly excessive.
(ii) The sentencing Judge failed to properly consider the questions of cumulation, concurrency and totality in respect of the sentence imposed for the Drug Misuse and Trafficking Act 1985 s25(1) offence.

16 It is to be observed that there is no appeal against the sentences imposed in respect of the second and third charges. However the Crown has itself lodged an appeal on the ground that “the said sentence is manifestly inadequate”. Given that in the preceding parts of the document the Crown has referred to the 3 sentences imposed on the 3 charges and also to the overall “sentence” imposed, it is not clear from this document which “sentence” it is that is the subject of appeal. Be that as it may, in submissions filed the Crown has made clear that its appeal is contingent upon the Court upholding the Applicant’s appeal in relation to count 1, the Crown’s concern being to maintain the overall length of the effective sentence imposed on the Applicant. Counsel for the Applicant was content to have the appeal conducted on that basis and in the circumstances, I will adopt the same approach.

Ground 1

17 Correctly, the point is made that Latham J’s remarks on sentence contain little reference to the drug supply offence and apart from a bare description of the circumstances, no indication of the matters which led her Honour to impose the sentence which she did. While her Honour referred to the fact that this offence could have been dealt with summarily, she made no reference to the principle that generally the maximum sentence that could be imposed had the offence been so dealt with was something to be taken into account – see R v Crombie [1999] NSWCCA 297.

18 Nor did her Honour make any reference to the quantity of amphetamines supplied which, at .05 grams, was merely 1/20th of a “small quantity” as that expression is defined in Schedule 1 to the Drug (Misuse and Trafficking) Act and which could have been dealt with summarily.

19 Complaint was made also that in arriving at a conclusion that a discount of 15% “was appropriate to reflect the utilitarian value of the pleas”, her Honour gave no separate consideration to the fact that whereas the pleas in respect of the second and third charges were entered at the time of trial, the plea in respect of the drug offence was entered on arraignment and the Applicant had in fact admitted committing that offence in an ERISP some 5 days after the offence occurred. It is submitted also that her Honour’s silence of the topic means that it is not clear that she did not take into account adversely to the Applicant that the drug supply was to a child, an offence which ss25(1A) and 33A make more serious than that with which the Applicant was charged.

20 Counsel for the Applicant acknowledged statements in this Court – Carr (2002) 135 A Crim R 171 and R v Price [2004] NSWCCA 186 to the effect that the failure of an experienced sentencing judge to mention a matter is not conclusive of the judge’s failure to have regard to it, but submitted that so many relevant matters were not mentioned, and the sentence so high, that the conclusion should be drawn that the sentencing proceedings miscarried.

21 I am not persuaded that her Honour erred in determining upon a discount of 15% for the Applicant’s pleas once it is recognised that her Honour applied that percentage across all of the Applicant’s offences and there was nothing to suggest that so great a discount might be expected in the case of the second and third charges. While a purist may not regard that as the correct approach, the practicalities of sentencing persuade me that it is not necessarily erroneous to do so. After all, as was said in R v Scott [2003] NSWCCA 286 at [28], “it has to be emphasised once again that the range of discounts referred to in the guideline Judgment (of R v Thomson & Houlton [2000] 49 NSWLR 383) is a guideline. It creates no presumption of, or entitlement to, a particular discount in a given situation. The main aim of giving discounts for the utilitarian value of pleas of guilty is still achieved providing the benefits are obvious and even if they are averaged out.

22 However, although this was not the subject of complaint, there is a further aspect of the discount for the Applicant’s plea which concerns me. Having said that she regarded a discount of 15% as appropriate, her Honour then imposed head sentences of, exactly, 2, 3 and 4½ years. While I do not regard scientific accuracy as essential in the imprecise art of sentencing, I have difficulty in seeing how her Honour could have arrived at the sentences she imposed after allowing a 15% discount. The result suggests starting points of, or of approximately, 2.353, 3.529 and 5.29 years. Even with rounding or converting the proportions of a year to months, it is difficult to accept that this is what in fact occurred.

23 In the case of a judge as experienced as Latham J, I would not readily infer that her Honour’s failure to mention the principle for which R v Crombie stands as authority was an indication that her Honour was not aware of it and had not taken the principle into account. On the other hand, the sentence imposed for the supply offence on an offender who had no prior history of drug dealing and for what was a very small quantity was, in the circumstances, very high. Particularly is this so when one recognises that it was a sentence not divided into non-parole and parole periods and, according to what her Honour said, after a discount of 15% had been allowed.

24 Referring to R v Royal [2003] NSWCCA 275 at [38], the Crown submitted that where the Local Court was not an appropriate venue, either because of the seriousness of the facts or the antecedents of the offender, then the technical availability (of that Court) has no significance. Although R v Royal does not go so far the proposition advanced is not one with which I would disagree. However, it has no application here. On the material before Latham J it was not possible to conclude that the seriousness of the supply offence or the Applicant’s antecedents were such as to make the Local Court inappropriate. Nor did the evidence permit the conclusion that the supply offence was more serious than it appeared on its face by reason of the other offences. Given that the District Court was dealing with the second and third offences it was, on grounds of convenience, appropriate that it deal with the supply offence also but there is nothing to suggest that that offence was not one which could appropriately have been dealt with in the Local Court. In those circumstances the fact that it could have been was something which bore on the appropriate sentence to be imposed.

25 As I have indicated, it is not apparent what, if any, weight her Honour gave to this factor. Be that as it may, the conclusion at which I have arrived is that that the sentence imposed for the supply offence was manifestly excessive and outside the range of her Honour’s legitimate sentencing discretion. The principal factors which lead me to this conclusion are firstly that there is no evidence capable of leading to the conclusion that the Appellant was making a business or in the habit of supplying drugs, he has no record for having done so and the quantity supplied was so small. It should also be noticed that at an earlier stage of her Honour’s remarks, Latham J observed that she would regard a “head sentence of two years as appropriate” for that charge. In the normal operation of that term a “head sentence” includes both non-parole and parole periods. It is hard to reconcile her Honour’s opinion to which I have just referred with the sentence of a fixed term of 2 years later imposed.

26 In many circumstances, a court would not impose on the Applicant a sentence of imprisonment for the drug supply offence. However as the other offences mean that the Applicant must remain incarcerated for a substantial period, full time imprisonment for the drug supply offence also is the only appropriate punishment. His incarceration for the other offences, the existence of programs in prison by which he can address the reasons for his offending and evidence which has been tendered as to his progress in gaol are the reasons for deciding not to make an order allowing the Applicant to participate in one of the programs referred to in s5 of the Crimes (Sentencing Procedure) Act.

27 In my view an appropriate sentence for the drug supply offence is imprisonment for 3 months. Whether, and if so, to what extent that period should be concurrent with any other sentence is a matter to which I shall return but I note at this stage that s46 of the Crimes (Sentencing Procedure) Act precludes the Court imposing a non-parole period in a sentence so short and the operation of s126 of the Crimes (Administration of Sentences) Act means that the Applicant cannot be released to parole during the currency of such a sentence.

Ground 2

28 In her remarks on sentence, Latham J observed:-

“The offences of enter with intent to commit indictable offence and maliciously inflict grievous bodily harm having been committed as part of the same episode, in my view should be served wholly concurrently, whilst some partial accumulation should apply in respect of the supply methylamphetamine offence, it having occurred as a discrete offence some hours prior to the other offences.”

29 Despite these remarks the accumulation of the sentence imposed for the supply offence with the sentences imposed for the other charges was not partial but complete. It was submitted that the inconsistency between her Honour’s stated intention and the sentences imposed demonstrates error. It was further submitted that, whatever her intention may have been, error was also demonstrated by the mere failure – I would add without explanation or an alternative method of dealing with issues of totality – to make the sentence in respect of the drug supply offence partly concurrent with the sentences imposed on the second and third charges.

30 There is, in my view, merit in a number of these complaints. The most obvious is her Honour’s failure to reflect in the sentences imposed the express intention which I have quoted but error exists also in the absence of some degree of concurrency between the sentence imposed on the first charge and those imposed on the second and third. Her Honour’s remarks make it clear that she correctly appreciated what was required but it would seem that she simply omitted to implement them. (Lest it be thought that I have overlooked the possibility, I should add that there is nothing to suggest her Honour had, by way of reflecting considerations of totality, reduced the sentences imposed for any of the offences below what would otherwise have been appropriate.)

31 A fortiori, when regard is also had to the fact that the imprisonment her Honour imposed followed immediately upon an earlier period of imprisonment, did totality require some concurrence between the first and other sentences. Thus, I regard this ground also as established.

32 Of course mere demonstration of error does not mean that the appeal must be allowed. Section 6(3) of the Criminal Appeal Act provides:-

“On an appeal under Section 5(1) against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal.”

33 Implicit, if not explicit, in the Crown’s reliance on this section was the proposition that where the sub-section refers to “sentence” the totality of the three sentences imposed by Latham J and not merely the individual sentences is encompassed. The Crown’s Notice of Appeal reflected the same approach. So far as is presently relevant, the document provided:-

“I, Nicholas Richard Cowdery AM QC, Director of Public Prosecutions for the State of New South Wales,

HEREBY GIVE NOTICE that I desired to appeal to the Court of Criminal Appeal against a sentence pronounced by her Honour Judge Latham … on 21 October 2004, when one Leslie Russell Smith appeared for sentence on one charge of supplying a prohibited drug, one charge of entering with intent and one charge of maliciously inflicting grievous bodily harm …

AND for the first of the said offences he was sentenced to imprisonment for 2 years, to date from 27 August 2003,

AND for the second of the said offences he was sentenced to imprisonment for 3 years, with a non-parole period of 12 months, to date from 27 August 2005

AND for the third of the said offences he was sentenced to imprisonment for 4½ years, with a nonparole period of 2 years, to date from 27 August 2005,

ON THE GROUND that the said sentence is manifestly inadequate.”

34 In this connection, reliance was placed on remarks of Studdert J with whom Kirby and Howie JJ agreed in R v Bottin [2005] NSWCCA 254 that:-

37 Section 6(3) of the Criminal Appeal Act is to be read, where appropriate, in conjunction with s 7(1A) of that Act. There is a need to consider the total criminality of the appellant, and when this is done, it seems to me that the overall effect of the sentences passed, namely a non-parole period of seven years and an available parole period of four years, affords appropriate punishment for the offences committed. In my opinion, punishment no less than that was warranted, and I would therefore not be disposed to interfere with the sentences as structured: see R v Carr [2002] 135 A Crim R 171 at para 35 and R v Shankley [2003] NSWCCA 253 at para 20.

35 Section 7(1A) of the Criminal Appeal Act provides:-

“(1A) If on an appeal against a sentence under section 5(1), 5D, 5DA or 5DB, the court quashes or varies the sentence passed at trial on any count or part of an indictment, the court may quash or vary any other sentence passed at the trial:
(a) in relation to any offence charged in any other count or part of the same indictment, or
(b) in relation to any offence charged in any count or part of any other indictment, or
(c) in relation to any offence dealt with under section 105 of the Criminal Procedure Act 1986, or
(d) in relation to any back up offence or related offence dealt with under section 167 of the Criminal Procedure Act 1986.
and pass such sentence, whether more or less severe, in substitution for the other sentence as the court thinks proper, and as may be warranted in law, in respect of the offence.

36 (Having set out the sub-section, it may not be inappropriate to record that paragraph (b) is not presently correctly reproduced in Butterworths’ Criminal Practice and Procedure.)

37 Having reflected on the matter, I regret to say that I am unable to agree with the view expressed in R v Bottin as to the operation of s6(3). To my mind “sentence” in that sub-section refers to the order made or sentence imposed in respect of one offence and not to the overall effect of a combination of sentences. This seems to me to follow from a number of factors. I mention but a few.

38 Firstly, the Crimes Act and other offence creating statutes impose penalties by reference to the commission of one offence. Arguing in the same direction is the fact that that no court imposes one sentence for a number of offences. Nor does this Court, when it interferes with the conviction or sentence relating to one of a number of offences and consequent sentences quash or vary the overall result of those sentences. Rather do the Court’s orders relate to the one, leaving the other sentences undisturbed (or possibly undisturbed except as to their commencement date(s)). Thirdly, s7(1A) itself is predicated on there being, when an offender is sentenced for more than one offence, more than one sentence.

39 The point is illustrated also by what Latham J said and did in this case. Her Honour imposed 3 sentences, of different durations, and with different start and finish dates, not one sentence which commenced on 27 August 2003 and continued to, and concluded in, February 2010.

40 Certainly, it is apparent that ss6(3) and 7(1A) display in common an intention on the part of the legislature that mere error in the proceedings below should not necessarily result in some reduction in the punishment(s) imposed if that punishment is itself appropriate. However, the sub-sections effect this intention by different means and it does not seem to me appropriate to ignore the different methodology employed by the provisions.

The Crown Appeal

41 The tenor of the Crown’s submissions in support of its appeal was that, even if the Court concluded that error in relation to the sentence imposed on the supply charge was demonstrated, the total criminality of the Applicant warranted no lesser sentence than the totality of that imposed and his appeal should be dismissed. The Crown submitted that the non-parole periods and head sentences imposed in respect of the second and third charges failed to reflect the objective seriousness of the offences for which they were imposed. Criticism was also made of the concurrency of those sentences, it being pointed out that the criminality involved in them was different, as were the victims.

42 I do not agree with this criticism so far as the head sentences are concerned. The Applicant was, in accordance with prior decisions of this Court, entitled to some discount for pleading guilty. Many judges would have allowed only a 10% discount but the 15% allowed by her Honour was, I suspect, an average. In the circumstances, I do not regard the figure as so high as to be beyond the legitimate exercise of Latham J’s sentencing discretion. There was nothing about the second offence as it was presented to Latham J to distinguish it in seriousness from the hundreds of other entering with intent or similar offences which come before the courts each year and for many of which full terms no higher than the 3 years Latham J fixed have been imposed.

43 The total sentence imposed for the offence the subject of the third charge was 4½ years, although her Honour had earlier said that she would regard a head sentence of four years as appropriate. Arrived at after allowing a discount of 15%, the total sentence thus indicates a starting point appreciably above 5 years. This is sufficiently close to the maximum penalty that could have been imposed which was, as I have said, 7 years, that it also cannot be regarded as erroneous.

44 Although the non-parole period of 1 year was an unusually low proportion of the 3 years total sentence imposed in respect of the second charge, I am not presently persuaded that it is so low that it should be regarded as either demonstrating appealable error or one which, on any other account, this Court should increase. Judicial Commission statistics reveal that, of 78 offenders under s114(1)(d), only 9 received non-parole periods longer than 12 months and although the Crown made the submission, and there are grounds for thinking, that a 12 months non-parole period may be too short for most offences under the section, including that of the Applicant, there was no attempt by the Crown to demonstrate that the current pattern of sentencing is erroneous and that Latham J’s selection of that period was outside the legitimate exercise of her sentencing discretion. Furthermore, having regard to the constraints which there are as a result of the total sentence imposed in this case and the limited nature of the Crown appeal, I do not need to form a final conclusion in respect of the non-parole period imposed in respect of the second charge.

45 On the other hand, except on grounds of totality, the 2 years non-parole period imposed in respect of the offence the subject of the third charge cannot be regarded as otherwise than manifestly inadequate. As is apparent simply from the description of the offence, the offence was a very bad example of those which might fall within s35(1)(b). As was said by Latham J:-

“No doubt that psychological sequelae of these events will stay with the victim for some considerable time.”

46 In the preceding paragraph, I have used the expression “manifestly inadequate” an expression which embraces the test applied whenever the Crown submits that the length of a period itself demonstrates error of law. I am by no means persuaded that in applications under s7(1A), the Crown needs to go so far. Not uncommonly, when an offender is sentenced in respect of more than one offence, the individual sentences do reflect the fact that other sentences are also being imposed and the sub-section is directed to ensuring that if that occurs and one of the sentences is varied or quashed, appropriate adjustments can be made to the other sentences.

47 It was also only totality that could justify her Honour in making the sentences in respect of the offences the subject of the second and third charges concurrent. While it is undoubtedly true that not infrequently concurrency is ordered when an offender faces charges of breaking and entering or entering with intent and for offences committed in pursuance of that intent, here there was such a radical difference between the intent with which the Applicant entered the house, viz. to steal, and the third offence, one which significantly increased his criminality, that complete concurrency could not be justified. To allow such concurrency to remain would have the effect that he will not be punished at all for the offence the subject of the second charge and, although in the sentences I propose considerations of totality will have that effect so far as the sentence on the drug charge is concerned, that is easier to accept as the sentence on that charge is, as I propose, 3 months imprisonment.

48 Latham J made a finding of special circumstances “on the basis that this is the prisoner’s first lengthy custodial sentence, the need for ongoing supervision in the community and the fact that some partial accumulation of the sentences is required in order to reflect the totality of the prisoner’s criminality on this occasion”. In my view this Court should adhere to her Honour’s findings in this regard notwithstanding I take a view different from her Honour’s on some aspects.

49 I do not regard it as necessary to detail seriatim the various aggravating and mitigating factors listed in s21A of the Crimes (Sentencing Procedure) Act which either are present in this case or which, because of restrictions imposed in that section – see R v Wickham [2004] NSWCCA 193 - are of significance here.

50 To give effect to the conclusions I have expressed, I propose that the Court make the following orders:-

1. Grant leave to appeal,
2. Allow the Applicant’s appeal,
3. Allow the Crown appeal,
4. Quash the sentences imposed on the Applicant by Judge Latham on 21 October 2004 and in lieu thereof,
5. Sentence the Applicant in respect of the offence of supplying, on 15 November 2002, a prohibited drug, to imprisonment for a fixed term of 3 months commencing on 27 August 2003,
6. Sentence the Applicant in respect of the offence of, on 15 November 2002, maliciously inflicting grievous bodily harm to imprisonment for a non-parole period of 3 years commencing on 27 November 2003 with a balance of term of 1½ years commencing on 27 November 2006, and
7. Sentence the Applicant in respect of the offence of, on 15 November 2002, entering a dwelling house with intent to commit larceny therein to imprisonment for a non-parole period of 1 year commencing on 27 May 2006 with a balance of term of 2 years commencing on 27 May 2008.

51 HIDDEN J: I agree with the orders proposed by Hulme J and, for the most part, with his Honour’s reasons.

52 However, while I appreciate the force of his Honour’s observations about the passage from Bottin which he has quoted, I consider that the approach expressed in that passage is generally appropriate. I have expressed the same view: see, for example, R v Georgiou [2005] NSWCCA 237 at [65]. The issue normally arises in cases involving two or more offences of a like nature, or offences that are related in such a way as to be seen as part of a continuing criminal enterprise. This is not to say that the Bottin approach is necessarily confined to cases of that kind.

53 That said, there will be cases in which that approach should not be adopted. This, in my view, is one of them. Although linked in time, the three offences were of a different nature and were unrelated. The supply of the drug, in particular, was an entirely discrete offence, and a manifestly excessive sentence in respect of it could not be allowed to stand simply on the basis that the overall sentence was a fair reflection of the criminality of all three offences.

54 BELL J: I agree with the orders that Hulme J proposes, generally for the reasons that his Honour gives. The construction of s 7(1A) of the Criminal Appeal Act 1912 and its relation to s 6(3) was not the subject of detailed argument on the hearing of the application. I prefer not to express a view on the correctness of the approach that found favour in Bottin.

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