R v Stavreas

[2015] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v STAVREAS

[2015] SASCFC 68

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)

7 May 2015

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - POSSESSION

Appeal against sentence. The appellant pleaded guilty to various firearm and drug offences committed on two separate occasions. At the time of sentence he was subject to a good behaviour bond in relation to a nine-month suspended sentence for an unrelated drug offence. The sentencing Judge revoked the suspended sentence and imposed an overall sentence of 12 years and three months' imprisonment with an eight year non-parole period. The sentencing Judge erred in failing to impose a separate sentence for a serious firearm offence as required under s 20AAC of the Criminal Law (Sentencing) Act 1988 (SA). Further, when reducing a sentence for a guilty plea, a sentencing judge should provide reasons if giving less than the maximum reduction. The appellant is resentenced to nine years and seven months' imprisonment with a non-parole period of five years and eight months.

Controlled Substances Act 1984 (SA) s 18(3), s 32(3), s 33J(2)(a), s 33J(2)(b); Firearms Act 1977 (SA) s 11(1), s 30(3); Firearms Regulations 2008 (SA) reg 41(1), reg 61; Summary Offences Act 1953 (SA) s 15(1c)(b); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 10C, s 18A, s 20AA, s 20AAB, s 20AAC, referred to.
R v Dwyer [2015] SASCFC 12, applied.

R v STAVREAS
[2015] SASCFC 68

Court of Criminal Appeal:       Sulan, Nicholson and Lovell JJ

1. SULAN J:             This is an appeal against sentence. On 10 September 2014 the appellant, Damien Stavreas, was sentenced for various firearm and drug offences committed on two separate occasions.  The sentencing Judge also revoked a suspended sentence of nine months’ imprisonment for the cultivation of cannabis.

2. On 27 November 2012 the appellant committed the following offences:

   - Two counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA).[1]

   - Possessing a firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA).[2]

   - Failing to store ammunition in a locked container separately from firearms contrary to r 41(1) and r 61 of the Firearms Regulations 2008.[3]

   - Two counts of possessing a prohibited weapon contrary to s 15(1c)(b) of the Summary Offences Act 1953 (SA).[4]

   - Possession of a prescription drug without a prescription contrary to s 18(3) of the Controlled Substances Act 1984 (SA).[5]

   [1]    Maximum penalty for each offence:  10 years' imprisonment or a $50,000 fine, or both.

   [2]    Maximum penalty:  10 years' imprisonment or a $50,000 fine for a prescribed firearm.

   [3]    Maximum penalty:  $2,500 fine.

   [4]    Maximum penalty for each offence:  2 years' imprisonment or a fine of $10,000.

   [5]    Maximum penalty:  2 years' imprisonment or a fine of $10,000.

3. On 7 December 2012 the appellant breached a condition of his bail contrary to s 17 of the Bail Act 1985 (SA) and committed the offence of refusing or failing to answer questions from a police officer relating to a firearm contrary to s 30(3) of the Firearms Act 1977 (SA).[6]

   [6]    Maximum penalty for each offence:  2 years' imprisonment or a fine of $10,000.

4. On 20 October 2013 the appellant committed the following offences:

   - Aggravated Possession of a Class H firearm without a licence contrary to s 11(1) of the Firearms Act 1977 (SA).[7]    

   -Failing to store ammunition in a locked container separately from firearms contrary to r 41(1) and r 61 of the Firearms Regulations 2008.[8]

   -Possession of controlled precursors intending to use them to manufacture a controlled drug contrary to s 33J(2)(a) of the Controlled Substances Act 1984 (SA).[9]

   -Possession of controlled equipment intending to use it to manufacture a controlled drug contrary to s 33J(2)(b) of the Controlled Substances Act 1984 (SA).[10]

   -Breach of bail contrary to s 17 of the Bail Act 1985 (SA).[11]

   [7]    Maximum penalty: 10 years’ imprisonment or a fine of $50,000.

   [8]    Maximum penalty: $2,500 fine.

   [9]    Maximum penalty: 5 years’ imprisonment or a fine of $15,000, or both.

   [10]   Maximum penalty: 5 years’ imprisonment or a fine of $15,000, or both.

   [11]   Maximum penalty:  2 years' imprisonment or a $10,000 fine.

5. The appellant pleaded guilty to all offences. The sentencing Judge imposed a notional head sentence for each set of offending, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). He then reduced each notional sentence by 25 per cent on account of the pleas of guilty. The appellant was sentenced to five years and six months’ imprisonment for the November and December 2012 offending, and six years’ imprisonment for the October 2013 offending, to be served cumulatively. The Judge revoked the bond and ordered the nine-month suspended sentence to take effect and to be served cumulatively with the other sentences. The Judge recorded a conviction without further penalty for the summary offences where the penalty did not include imprisonment.

6. The appellant received a total sentence of 12 years and three months’ imprisonment with a non-parole period of eight years to commence when the appellant was taken into custody on 21 October 2013. The Judge had regard to 11 weeks the appellant had spent in custody from 7 December 2012 until his release on home detention bail for a period of eight months.

   Ground 1 – Serious firearm offence

7. The appellant contends that the sentence imposed was not according to law because it failed to comply with the requirements of s 20AAC of the Sentencing Act. The relevant provisions of the Sentencing Act provide:

   20AA—Interpretation

   (1)     In this Division—

   "serious drug offence" means an offence against section 32, 33, 33A, 33B, 33C, 33F, 33G, 33H, 33I, 33J, 33K, 33LA or 33LB of the Controlled Substances Act 1984 ;

   "serious firearm offender" means a person who is, by virtue of the operation of section 20AAB, a serious firearm offender;

   "serious firearm offence" means—

   (a)an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or carriage of—

   (i)    a class H firearm—

   (A)that is unregistered at the time of the offence or is registered in the name of a person other than the defendant; and

   (B)for which the defendant does not, at the time of the offence, hold a firearms licence authorising possession of the firearm; or

   (ii)a class C firearm or class D firearm that is an automatic firearm; or

   (iii)a prescribed firearm (other than a firearm declared by the regulations to be excluded from the ambit of this subparagraph); or

   (iv)any other firearm declared by the regulations to be included in the ambit of this paragraph; or

   (b)an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or possession of a firearm and committed—

   (i)while the defendant is the subject of a control order under the Serious and Organised Crime (Control) Act 2008 ; or

   (ii)in the circumstances contemplated by section 5AA(1)(ga) of the Criminal Law Consolidation Act 1935 ; or

   (iii)while the defendant is the subject of a firearms prohibition order; or

   (c)an offence against section 29A of the Criminal Law Consolidation Act 1935 ; or

   (d)an offence against the Firearms Act 1977 involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence; or

   (e)an offence against the Firearms Act 1977 committed while the defendant—

   (i)is on bail (being bail that was, at the relevant time, subject to the condition imposed by section 11(1)(a) of the Bail Act 1985); or

   (ii)is the subject of a bond under this or any other Act (being a bond that was, at the relevant time, subject to the condition imposed by section 42(a1)(a), or a condition of a similar kind); or

   (iii)is on release from prison on home detention (being a release subject to the condition imposed by section 37A(3)(ca) of the Correctional Services Act 1982 ); or

   (iv)is on parole (being parole that was, at the relevant time, subject to the condition imposed by section 68(1)(a)(ia) of the Correctional Services Act 1982 ); or

   (v)is on release on licence from custody under this or any other Act (being a licence that was, at the relevant time, subject to a condition prohibiting the defendant from possessing a firearm, part of a firearm or ammunition).

   (2)     In this Division, the following terms have the same meaning as in the Firearms Act 1977 :

   (a)     automatic firearm;

   (b)     class C firearm;

   (c)     class D firearm;

   (d)     class H firearm;

   (e)     firearm;

   (f)    firearms prohibition order;

   (g)     prescribed firearm.

   (3)     For the purposes of this Division, a reference to imprisonment includes, in the case of a youth, a reference to detention in a training centre or home detention (within the meaning of the Young Offenders Act 1993).

   20AAB—Serious firearm offenders

   (1)     A person will, by force of this section, be taken to be a "serious firearm offender if he or she is convicted of a serious firearm offence (whether the offence was committed as an adult or as a youth).

   (2)     Subsection (1) does not apply in relation to a conviction of a serious firearm offence if—

   (a)the defendant was prosecuted and punished as a principal offender in respect of the offence pursuant to section 267 of the Criminal Law Consolidation Act 1935 ; or

   (b)the defendant's liability in respect of the offence derives solely from his or her involvement in a joint criminal enterprise (however described).

   20AAC—Sentence of imprisonment not to be suspended

   (1)     Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):

   (a)if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;

   (b)     the sentence of imprisonment cannot be suspended;

   (c)     section 18 does not apply in respect of the sentencing of the person;

   (d)     if—

   (i)the person is also being sentenced in respect of other offences; and

   (ii)     1 or more of those offences are not serious firearm offences,

   section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).

   (2)     A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—

   (a)his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and

   (b)     it is, in all the circumstances, appropriate to suspend the sentence.

   (3)     If subsection (2) applies, section 10(2)(e) is taken not to apply in relation to the sentencing.

8. The appellant contends that the Judge erred by imposing a single sentence of imprisonment for all offences committed on 20 October 2013 for which imprisonment was an available penalty. Counsel for the Director did not dispute this contention. The offence of aggravated possession of a class H firearm without a licence is a “serious firearm offence” pursuant to s 20AA(1) of the Sentencing Act. The appellant is a “serious firearm offender” pursuant to s 20AAB(1).

9. Section 20AAC(1)(d) of the Sentencing Act provides that a single sentence pursuant to s 18A of the Sentencing Act cannot be imposed for a serious firearms offence, together with other offences.

10. The appellant committed a serious firearm offence because the firearm seized by police on 20 October 2013 was an unregistered class H firearm for which the appellant did not hold a licence. Further, the offence can be characterised as a “serious firearm offence” because it was committed while the appellant was on bail, pursuant to s 20AA(1)(e)(i). The firearm offence committed on 27 November 2012 is not subject to these provisions as they only came into force in 2013.

11. The Judge was in error in failing to impose a separate sentence for the offence of aggravated possession of a class H firearm without a licence.  The Judge did not explicitly refer to s 18A in his remarks but it is clear that this provision was invoked from the approach and outcome.

12. Counsel for the applicant and the Director both accept that the error requires the Full Court to resentence the appellant for all offences. Counsel for the appellant further submits that it is appropriate to impose separate sentences for the two sets of offending, in addition to the serious firearm offence, and that they be made partially concurrent.

13. It is unnecessary to determine the remaining grounds for the purposes of the appeal.

14. The appellant seeks an extension of time to file an application for permission to appeal against sentence to 15 October 2014. I would grant this extension.

    Reductions for guilty pleas

15. In resentencing the appellant, I have considered the application of s 10C of the Sentencing Act. It is accepted by counsel that the guilty pleas entered in relation to the failure to store ammunition properly and the two counts of possessing controlled precursors and possessing controlled equipment for use in the manufacture of a controlled drug, committed on 20 October 2013, attracted a maximum reduction of 40 per cent. The charges that were laid on the earlier Information differed from the charges dated 20 February 2014. Therefore, the appellant effectively entered guilty pleas to those charges at the earliest opportunity when committed for sentence in the Magistrates Court. With respect to the aggravated possession of a class H firearm without licence, the appellant was entitled to a maximum reduction of 30 per cent. The earlier offending in November and December 2012 was not subject to the subsequent amendments to s 10B and s 10C of the Sentencing Act.

16. Section 10C provides:

    10C—Reduction of sentences for guilty plea in other cases

    (1) This section applies to a sentencing court other than where section 10B applies.

    (2)     If a defendant has pleaded guilty to an offence or offences—

    (a)not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

    (b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

    (c)during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;

    (d)during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

    (e)    within 7 days immediately following—

    (i) an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or

    (ii) a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,

    determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;

    (f)in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.

    (3)     If—

    (a)a maximum reduction available under subsection (2) does not apply in relation to a defendant's plea of guilty because the defendant did not plead guilty within the relevant period; and

    (b)the court is satisfied that the only reason that the defendant did not plead guilty within the relevant period was because—

    (i)    the court did not sit during that period; or

    (ii)the court did not sit during that period at a place where the defendant could reasonably have been expected to attend; or

    (iii)the court did not list the defendant's matter for hearing during that period; or

    (iv)the court was, for any other reason outside of the control of the defendant, unable to hear the defendant's matter during that period,

    the court may nevertheless reduce the sentence that it would otherwise have imposed as if the defendant had pleaded guilty during the relevant period.

    (4)     In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:

    (a)whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;

    (b)the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);

    (c)    the circumstances surrounding the plea;

    (d)in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;

    (e)if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;

    (f)whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,

    and may have regard to any other factor or principle the court thinks relevant.

    (5)     Nothing in this section affects the operation of sections 15, 16 and 17.

    (6)     For the purposes of this section, a reference to a defendant appearing in a court will be taken to include a reference to a person appearing in a court on behalf of the defendant.

1. The purpose of these provisions is to encourage guilty pleas at an early stage, in order to progress matters more efficiently and at less expense to the community.

2. The Sentencing Act places emphasis upon the utilitarian value of a plea of guilty. The intention of Parliament is to encourage defendants to plead at the earliest opportunity so that time and cost can be saved by defendants acknowledging their guilt at an early stage. For the Sentencing Act to operate as intended by Parliament, there must be a degree of certainty so that defendants and their advisors can make decisions in the knowledge that sentences will be discounted for early pleas, in accordance with the Sentencing Act.

3. In R v Dwyer, Stanley J (with whom Kourakis CJ and Gray J agreed) said:[12]

   The scheme established by s 10C is utilitarian in its approach.  It is intended to provide an incentive to defendants to enter early guilty pleas, so as to assist in the efficient administration of justice.  To obtain the greatest discount a defendant will frequently be required to decide whether or not to enter an early plea at a time before he or she is in a position to assess the strength of the prosecution case.  Plainly, the Parliament must have intended that to occur.  Such an intention is consistent with the utilitarian nature of the legislation.

   [12] [2015] SASCFC 12 at [30].

4. In discussing the discretionary nature of the provisions and the importance of transparency, Stanley J further observed:[13]

   … There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court. Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly. In R v McPhee Nicholson J, with whom Vanstone and Blue JJ agreed, said:

   In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for.  Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts.  Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met.  Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence. 

   If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed.  The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea.  None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why. 

   [Footnotes omitted.]

   [13]   R v Dwyer [2015] SASCFC 12 at [34]-[35].

   Resentencing

5. On 14 February 2013, the appellant was sentenced to nine months’ imprisonment, suspended for two years, for the offence of cultivating cannabis.  He breached that bond.  Therefore, the sentence is to take effect.  There is no basis upon which the breach is to be excused. 

6. On 27 November 2012 police searched the appellant’s home at Croydon Park while he was absent. They seized three separate mixtures with a combined total weight of 155.8 grams and containing 60.73 grams of methylamphetamine. The approximate value of the mixtures if sold in grams was between $62,000 and $125,000.  Police also seized a bottle containing 463 grams of butanediol, a liquid drug known as GHB or fantasy, located in the bathtub. This had a value between $2800 and $3700. 

7. Police seized a homemade 9 mm Luger centre fire submachine gun with a loaded magazine attached and capable of firing ammunition, located on an armchair. The appellant did not have a licence for this firearm. Counsel for the appellant submitted the appellant required the firearm for his protection.  The appellant was also in possession of a taser and two canisters of self-defence spray.

8. The appellant acknowledged breaching a bail agreement entered into on 28 September 2012.   

9. On 20 October 2013 police searched a property in West Croydon.  The appellant was present at the time. Police seized a loaded revolver, which was secreted down the appellant’s pants, and 90 cartridges of ammunition. The offence of aggravated possession of a firearm without licence under these circumstances is very serious offending.    

10. Chemicals and glassware used in the manufacture of methylamphetamine were also recovered from a shed at the rear of the property and were buried in the backyard. There were a number of glass items and there was evidence they had been used to produce methylamphetamine.  The appellant submitted that they were being stored for use by associates. This offending breached a bail agreement entered on 2 October 2013. The appellant was arrested and taken into custody on 21 October 2013.         

    Personal circumstances   

11. The appellant is now 29 years of age. The offences were committed against a background of drug abuse.  The appellant was attempting to stop using drugs when, in 2012, his partner suffered a miscarriage.  This had a profound effect on the appellant.  He relapsed into drug taking. He incurred a significant debt to his supplier.  Some of the methylamphetamine which the appellant had stored was being used to help to pay off the debt.  His association with persons involved in the manufacture and trafficking of drugs is a significant factor underpinning his offending.

12. As a child, the appellant suffered abuse from his father who was also abusive to his mother and brother. Prior to offending he had been unemployed for some time.  Previously, he had worked in various short-term labouring jobs. He has a strong support network from his partner, mother and brother. His brother, who had suffered from drug abuse in the past, is now rehabilitated and is working with Red Cross to assist in the rehabilitation of others.  The appellant has support from his prison chaplain.  He is also supported by his boxing coach.

13. Dr Holmes, a psychologist, who considers the appellant’s “risk of reoffending in a similar manner as likely to be in the very high range given his past history and the presence of an untreated substance dependence disorder” stated that, with treatment, that risk may be reduced. The appellant is committed to attending the prison drug rehabilitation program.  He also desired to advance his education whilst in custody.  In my view, the appellant has reasonably good prospects of rehabilitation.

14. He has previous convictions.  In 2008, the appellant received a sentence of three months’ imprisonment, suspended on entering a bond to be of good behaviour, with community service, for several driving offences. Since that time he has been convicted of multiple breaches of bail and minor violent offending until the suspended sentence for cultivating cannabis in 2013.

15. The offences to which the appellant has pleaded guilty are serious.  In particular, the firearms offences call for severe penalties.  Persons who are unlawfully in possession of firearms must be aware that significant penalties will be imposed.  The drug offending is serious.  It was repeat offending.  Some of the offences were committed whilst on bail for other offences.  On the other hand, the overall sentence should not be crushing.  There is a prospect that, whilst in custody and, subsequently when released on parole, the appellant will be rehabilitated.

16. With respect to the offending committed in November and December 2012 I impose a single sentence of six years’ imprisonment. I note that the failure to properly store ammunition does not attract a penalty of imprisonment and I would record a conviction without further penalty in relation to this offence.     A reduction of 25 per cent is appropriate for the appellant’s guilty pleas, reducing the sentence to four years and six months’ imprisonment. This is to be served cumulatively upon the nine month sentence the subject of the revoked bond.

17. In relation to the serious firearm offence committed on 20 October 2013 I impose a separate sentence of four years’ imprisonment. The appellant is entitled to a reduction of up to 30 per cent for his plea of guilty. I do not find any reason to give a reduction other than close to the maximum. He is therefore sentenced to two years and 10 months’ imprisonment.

18. For the two counts of possessing controlled equipment and possessing controlled precursors for use in the production of methylamphetamine and breach of bail I impose a single sentence of three years’ imprisonment. This sentence is reduced by 14 months to 22 months’ imprisonment on account of the appellant’s guilty pleas. I have considered the submission that part of the separate sentences be made partially concurrent.  In my view, there is insufficient reason to do so.  The offences were separate and distinct incursions into drug and firearms offending, occurring at different times.  The separate sentences for the November and December 2012 offending, the serious firearm offence and the remaining October 2013 offences are to be served cumulatively upon each other and the revoked nine month suspended sentence.

19. This results in an overall head sentence of nine years and 11 months’ imprisonment.  I fix a non-parole period of six years’.  To take into account the time in custody of 11 weeks and the time on home detention bail of eight months, I allow four months.  That leaves a final sentence of nine years and seven months’ imprisonment, with a non-parole period of five years and eight months.  The head sentence and non-parole period are to commence on 21 October 2013.

20. Further, I order that the firearms and the drugs and equipment the subject of the charges be forfeited.

21. NICHOLSON J:   I agree with the reasons of Sulan J and would allow the appeal.

22. LOVELL J:          I would allow the appeal.  I agree with the reasons of Sulan J.