R v Weldon

[2002] NSWCCA 475

Reported Decision: (2002) 136 A Crim R 55

New South Wales

Court of Criminal Appeal

CITATION:	Regina v Weldon; Regina v Carberry [2002] NSWCCA 475
FILE NUMBER(S):	CCA 60446/02; 60447/02
HEARING DATE(S):	04/12/02
JUDGMENT DATE:	4 December 2002
PARTIES :	Regina v Daniel Robert Weldon; Regina v Gregory John Carberry
JUDGMENT OF:	Ipp JA at 1; Hulme J at 63; Bell J at 64

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/71/0031; 02/71/0033
LOWER COURT JUDICIAL OFFICER :	Norrish DCJ

COUNSEL :	D C Frearson (Crown) R W Killalea (Respondent Weldon) R J Button (Respondent Carberry)
SOLICITORS:	S E O'Connor (Crown) D Perkins (Respondent Weldon) D J Humphreys (Respondent Carberry)
CATCHWORDS:	CRIMINAL LAW - sentence - Crown appeal against sentences - whether sentences manifestly inadequate - whether wholly concurrent sentences failed to account for the criminal conduct of each offence - principles - calculation of aggregate sentences - application of totality principle - Crimes Act 1900, ss 35(1)(a), 98 - appeals upheld.
LEGISLATION CITED:	Crimes Act 1900, ss 35(1)(a), 35(2), 98 Crimes (Sentencing Procedure) Act 1999, s 44
CASES CITED:	Dodd (1991) 57 A Crim R 349 Hoare v The Queen (1989) 167 CLR 348 Pearce v The Queen (1998) 194 CLR 610 R v Simpson [2001] NSWCCA 534 R H McL v The Queen (2000) 203 CLR 452 The Queen v Carr [2002] NSWCA 434 Veen v The Queen (No 2) (1988) 164 CLR 465 Wilkins (1988) 38 A Crim R 445
DECISION:	See paras 57-62

IN THE COURT OF
CRIMINAL APPEAL

60446/02
60447/02


IPP JA
HULME J
BELL J

Wednesday 4 December 2002

REGINA v Daniel Robert WELDON
REGINA v Gregory John CARBERRY

Facts:
The Crown appeals against sentences imposed upon Gregory John Carberry and Daniel Robert Weldon. The sentences are in consequence of convictions stemming from a joint criminal enterprise carried on July 23 2001 at Wagga Wagga. This enterprise involved forcibly breaking into a house in which two brothers named Mathew and Darren George were residing and stealing their cannabis. In effecting the robbery both respondents acted with extreme violence and without mercy. Matthew was struck in the right eye and his vision was thereby permanently impaired. Darren George suffered extensive injuries that included Mathew being hit in the right eye with a tomahawk wielded by Carberry. Darren was also hit with the tomahawk and with a rock thrown by Weldon.

Carberry was convicted of armed robbery with wounding Matthew George pursuant to s 98 of the Crimes Act 1900 and malicious wounding Darren George pursuant to s 35(1)(a) of the Crimes Act . For the charge of armed robbery with wounding the trial judge sentenced Carberry to 6 years nine months (with a non-parole period of four years), and for the second charge of malicious wounding, a sentence of three years imprisonment. The term of imprisonment in respect of the count of malicious wounding was ordered to be concurrent with the sentence in respect of the armed robbery.

Weldon was convicted of robbery in company inflicting grievous bodily harm (on Matthew George) pursuant to s 98 of the Crimes Act and of the malicious wounding (of Darren George) pursuant to 35(1)(a) of the Crimes Act . Weldon was sentenced to six years imprisonment (with a non parole period of three years) on the first count, and two years six months on the second. The sentence in regards to the second charge (malicious wounding) was ordered to be concurrent with the first. The judge found that the conduct of Weldon was less criminally culpable than that of Carberry.

The convictions under section 98 of the Crimes Act carry a maximum penalty of 25 years.

On appeal, the Crown submitted that the sentences imposed were manifestly inadequate and did not appropriately reflect the gravity of the offences. Furthermore, the Crown argued that the trial judge erred in both cases in making the sentences for malicious wounding totally concurrent with the other sentence imposed in each case.

Held: Per Ipp JA (Hulme J and Bell J agreeing) upholding the appeal

1) The question of whether sentences are to be imposed concurrently or cumulatively must always be answered by reference to whether the aggregate sentence fairly and justly reflects the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. The sentence must be proportionate to the gravity of the offence having regard to all the circumstances of the case: Hoare v The Queen (1989) 1767 CLR 348. While it is not infrequent that, where the offence arises out of one criminal enterprise, concurrent sentences will be imposed, this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445. In light of these principles as regards the present case, the practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct the subject of punishment on each count Pearce v The Queen (1998) 194 CLR 610.

2) In the present case the trial judge made orders that the sentences imposed be concurrent on the ground that the offences arose out of the same set of circumstances. However the sentences for the offences of armed robbery with wounding and armed robbery in company inflicting grievous bodily harm relate to the wounding of Matthew George and do not impose punishment for the separate offence of malicious wounding of Darren George. Hence under the circumstances the imposition of concurrent sentences fails to take account of the difference in conduct the subject of punishment on each count: Pearce v The Queen .

3) In sentencing for more than one offence the judge must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v the Queen . The totality principle requires the Court after fixing upon the appropriate sentence for each offence to consider whether the aggregate of the sentences is just and appropriate and to consider questions of cumulation or concurrence: R H McL v The Queen (2000) 203 CLR 452. In accordance with such an exercise the following orders are proposed:

Orders

Re: Carberry:
(a) The sentence in respect of the offence of armed robbery with wounding be eight years three months imprisonment with a non-parole period of five years.

(b) The term of eight years three months imprisonment to commence on 11 November 2002 and expire on 10 February 2011, such term to include a non-parole period of five years commencing on 11 November 2002 and expiring on 10 November 2007.

(c) The sentence in respect of the offence of malicious wounding be three years imprisonment commencing on 11 November 2001 and expiring on 10 November 2004.

Re: Weldon:

(a) The sentence in respect of the offence of robbery in company inflicting grievous bodily harm would be six years nine months imprisonment with a non-parole period of four years six months.

(b) The term of six years nine months imprisonment commence on 11 November 2002 and expire on 10 August 2009, such term to include a non-parole period of four years six months commencing on 11 November 2002 and expiring on 10 May 2007.

(c) The sentence in respect of the offence of malicious wounding be two years six months imprisonment commencing on 11 November 2001 and expiring on 10 May 2004.

The effect of the foregoing is that the aggregate imprisonment imposed on Carberry would be nine years three months imprisonment with a non-parole period of six years and the aggregate imprisonment imposed on Weldon would be seven years nine months imprisonment with a non-parole period of five years six months.

Accordingly the appeals are upheld, the sentences imposed by the learned Judge are set aside and the sentences proposed above are to be imposed.

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IN THE COURT OF
CRIMINAL APPEAL

60446/02
60447/02

IPP JA
HULME J
BELL J

Wednesday 4 December 2002

REGINA v Daniel Robert WELDON

REGINA v Gregory John CARBERRY

Judgment

1 IPP JA: These reasons concern two appeals by the Crown against sentences imposed by Norrish DCJ upon Gregory John Carberry and Daniel Robert Weldon.

2 On 23 July 2001 at Wagga Wagga, Carberry and Weldon, who are cousins and friends, carried out a joint criminal enterprise. This involved forcibly breaking into a house in which two young men, brothers, named Matthew and Darren George, were residing and stealing cannabis from them. Both Carberry and Weldon were charged with two offences in consequence of their conduct in this enterprise and both pleaded guilty to and were convicted of the charges of which they were convicted.

3 The charges of which Carberry was convicted were armed robbery with wounding pursuant to s 98 of the Crimes Act 1900 (which carries a maximum penalty of twenty-five years) and malicious wounding pursuant to s 35(1)(a) of the Crimes Act (which carries a maximum penalty of seven years). The charge sheet reflected that the wounding alleged as part of the offence of “armed robbery with wounding pursuant to s 98 ...” was the wounding of Matthew George with a tomahawk. According to the charge sheet, the malicious wounding pursuant to s 35(2) was the wounding of Darren George.

4 The charges of which Weldon was convicted were robbery in company inflicting grievous bodily harm pursuant to s 98 of the Crimes Act (which carries a maximum penalty of twenty-five years) and a charge of malicious wounding pursuant to s 35(1)(a) of the Crimes Act. According to the indictment, the grievous bodily harm was inflicted on Matthew George and the malicious wounding involved the wounding of Darren George.

5 On 2 August 2001, Norrish DCJ sentenced Carberry on the charge of armed robbery with wounding to a term of six years and nine months imprisonment dating from 11 November 2001 and expiring on 10 August 2008 with a non-parole period of four years expiring on 10 November 2005. On the second charge of malicious wounding, Norrish DCJ sentenced Carberry to a term of three years imprisonment dating from 11 November 2001 and expiring on 10 November 2004. The term of imprisonment in respect of the count of malicious wounding was ordered to be concurrent with the sentence in respect of the charge of armed robbery.

6 On 28 August 2002, Norrish DCJ sentenced Weldon on the charge of robbery in company inflicting grievous bodily harm to six years imprisonment dating from 19 November 2001 and expiring on 18 November 2007 with a non-parole period of three years expiring on 18 November 2004. His Honour sentenced Weldon on the second count of malicious wounding to a sentence of two years and six months imprisonment dating from 19 November 2001 and expiring on 18 May 2004. The sentence in respect of the charge of malicious wounding was ordered to be concurrent with the sentence imposed in respect of the charge of armed robbery in company inflicting grievous bodily harm.

7 I shall briefly describe the events that led to the commission of the offences of which Carberry and Weldon were convicted.

8 On 22 July 2001, Carberry and Weldon travelled from Canberra to Wagga Wagga to visit relatives and other friends. They consumed methyl amphetamine and other drugs before leaving Canberra. They arrived at Wagga Wagga at about 4am on 23 July 2001. There they drank some quantities of alcohol with valium and spent the morning and early afternoon driving around visiting various people.

9 At one of the homes they visited, Carberry found a tomahawk and armed himself with it. In mid-afternoon he and Weldon went to the home of the Georges with the intention of stealing some cannabis which they believed to be on the premises. Carberry, while armed with the tomahawk, knocked on the door while Weldon stood behind him. The door was opened by Matthew George, who was then seventeen years of age and a student. Carberry forced his way through the door and hit Matthew in the right eye. The blow caused him to fall backwards. Matthew called out for help. His older brother, Darren, was asleep but woke up when he heard Matthew screaming. He saw Matthew on the floor being hit around the head with a tomahawk by Carberry and went to his aid. Darren struggled with Carberry and was hit a number of times about the head with the tomahawk sustaining a laceration to his scalp that later required ten sutures. Matthew heard one of the men who was attacking Darren say, “You are dead you white bastard.”

10 Darren managed to force Carberry and Weldon out the front door. He then became involved in a struggle outside the house with Carberry during which he was punched and kneed a number of times. Matthew struggled with Weldon and was punched and kicked by him. Darren went to his brother’s assistance again and pushed Weldon away. Darren then assisted Matthew back into the house.

11 Carberry then armed himself with a piece of wood and forced his way back into the house. There he struck Darren twice (once to the face, once to the shoulder) with the piece of timber. Again Darren pushed him out of the house.

12 Weldon then came into the lounge room and threw a rock at Darren, striking him in the mouth. Darren sustained a laceration to his lip which required seven sutures and fractured a tooth.

13 During the incident Matthew offered one of the respondents a small bag containing cannabis leaf. This bag was knocked from his hand and one of the respondents (it is not known which) struck him on the top of his head causing him to lose consciousness again.

14 At some point during the incident Matthew sustained a wound above his right eye and a blunt force injury to his right eye. This blunt force injury also caused fractures to the bones around the right eye and in the sinus area. Matthew also sustained lacerations to the face and head which required sutures.

15 The blunt force injury to the right eye caused internal haemorrhaging in the eye and a choroidal rupture. The injury left Matthew with a droopy upper lid for many months. While the eyelid position eventually improved, the vision in the right eye was permanently affected. The vision has gone from normal to a level of 6/18, which is not sufficient to hold a driver’s licence. There is no chance that the vision in this eye will ever improve. There is a risk that the vision may deteriorate if one of the ruptured areas should ever re-haemorrhage. Matthew relied on the vision in his right eye as the vision in his left eye was poor due to a pre-existing condition.

16 It is not known which of the two respondents actually inflicted the wound above Matthew’s right eye or the blunt force injury to the eye. Norrish DCJ, however, rightly pointed out that as the respondents were involved in a joint criminal enterprise they bear joint responsibility for the various injuries suffered by their victims - each contemplated the possibility that, in the course of their joint criminal enterprise, injury would be caused to the respective victims.

17 Carberry and Weldon left the premises with two plastic bags containing cannabis leaf which they had taken from the George residence. They smoked some of the stolen cannabis that evening.

18 I now turn to Carberry’s personal circumstances relating to the sentences imposed on him.

19 Carberry is an Aboriginal man born on 28 November 1972. He was twenty-eight years of age when the offences were committed. He grew up in a relatively small country town where, according to Norrish DCJ, “Aboriginal people have been and remain marginalised and from time to time discriminated against.” His father was an Italian farm worker and his mother an Aborigine, who was said to have been a member of the stolen generation. Carberry’s parents had a volatile marriage and he had an unstable upbringing. He has had little or no contact with his father since 1987. He was raised by his mother and has a close relationship with his siblings. He has support from his family.

20 Carberry had a close relationship with a woman for approximately fourteen years but that relationship has ended. Three children of the relationship are alive. One child died in 1998. The death of the child caused such grief that the couple separated. Since then Carberry has entered into a new relationship with another woman and a child has been born of this union. Norrish DCJ said that for many years Carberry had shown little concern for exercising any real parental responsibility for his children.

21 Carberry has consumed cannabis since the age of eleven and from his early teenage years has been a heavy drinker of alcohol. Since the death of his son in late 1998, he has consumed heroin, methylamphetamine and other amphetamine-type substances.

22 Essentially, he has been unemployed most of his adult life. He is a talented artist and sportsman but has never properly exploited his talents. Carberry has a lengthy criminal record for dishonesty, violence, drug-alcohol related and driving offences. He served sentences of imprisonment in 1995 and 1996. In 1992, 1994 and 2000 he endeavoured to enter rehabilitation centres but none of these attempts lasted more than three days.

23 In May 2002 Carberry told the author of a pre-sentence report that since his admission to custody on the charges the subject of this appeal he has been able to abstain from the use of alcohol or chemical substances. However, the author noted that “on previous occasions, supervision has been ineffective in changing Mr Carberry’s behaviour. In this instance, while he has voiced more positive attitudes, there is as yet little reason to be confident of a beneficial outcome for future intervention. Of particular concern are his proclivity for violence and his untreated substance abuse issues.

24 Norrish DCJ noted that in the past Carberry had received lenient sentences for certain offences that reflected special consideration having been given to him, presumably by reason of his disadvantaged circumstances. Notwithstanding the opportunities that were afforded to him, his criminal career continued unabated. The learned judge observed that Carberry’s criminal history reflected an attitude of anti-social, irresponsible, violent and dishonest conduct for many years prior to late 1998. His Honour did not accept Carberry’s claims of being affected by drugs at the time of the commission of the offence. He said:

“In my view, this offence involved some planning, in particular the careful choosing of the victims, or at the location where the crimes were committed, arming himself with a weapon and, as the facts reveal, a deliberateness of execution that speaks eloquently of his purpose and intent at the relevant time.”

25 His Honour considered that Carberry had a relatively clear understanding as to what he was doing at all relevant times. His conduct and the execution of the crime did not reflect a craving on his part, nor impulse, nor an inability to exercise proper judgment. It reflected deliberateness, selfishness and greed. His Honour said:

“The facts are that the prisoner is a person who simply wants to do what suits him with no regard to the interests and rights of others, even his immediate family. He is a person who spent his life setting out achieving his own ends without regard to anybody else.”

26 This morning, his counsel, Mr Button, read to the Court an affidavit by Carberry in which he stated that he had been in strict protection since he was sentenced. According to Carberry, he had to sign on for strict protection because of the difficulties he had with other inmates. He said he was restricted in his activities in the gaol because he was in strict protection. He said, “I believe I will have to stay on strict protection for the rest of my sentence.”

27 This affidavit provides very little information to the Court as to why Carberry is in strict protection and who must bear responsibility for his difficulties with other inmates. No grounds are given for his belief that he will have to stay in strict protection for the rest of his sentence. I would add that, according to this affidavit, the period of imprisonment has had some rehabilitative effect on Carberry.

28 In my opinion, the material in the affidavit, while relevant to sentencing, is not of significant weight in the issues that arise in this appeal.

29 I now turn to Weldon’s subjective personal circumstances. Weldon was born on 23 January 1977. He is also an Aboriginal person who has had a deprived upbringing. Both his parents abused alcohol and he and his mother were both victims of domestic violence. He left school in year 8 and has only been employed for brief periods of time.

30 Weldon has been in a relationship with a woman for six years and has two children by her. He also has two children from a former relationship. The latter two live in New Zealand and he has had no contact with them for the last six years.

31 Weldon began drinking alcohol at an early age, began using intravenous drugs at age fifteen and for a period of three years from the age of eighteen was a heavy user of heroin.

32 Weldon has a lengthy criminal record, including convictions for offences of dishonesty, assault, assault occasioning actual bodily harm and driving offences. He has been supervised by the Probation and Parole Service in the past. In February 1999, in the ACT Supreme Court, he was sentenced on a charge of occasioning actual bodily harm to two years imprisonment suspended upon him entering into a recognisance to be of good behaviour for three years. The present offences constitute a breach of that recognisance.

33 Weldon has undertaken two attempts of rehabilitation in the past but these have not been successful. He has never served a sentence of imprisonment, although he has in the past undergone periods of incarceration whilst on remand.

34 There are obvious features of the criminal conduct of both respondents that constitute circumstances of aggravation. The violence they employed on Darren and Matthew George in effecting the robbery was unremitting, determined, ruthless and without mercy. The injuries they inflicted, particularly on Matthew, were serious and of a permanent nature. Their conduct was deliberate and planned and they well understood the serious consequences of what they had done. Although they were forcibly ejected from the home, they persisted in forcing their way in a second time, in effect they perpetrated a home invasion of a most serious kind.

35 Norrish DCJ rightly pointed out that there was little connection between the respondents’ Aboriginality, their deprived upbringing and the harsh circumstances of their lives on the one hand, and their reasons for committing the two offences of which they were convicted and their conduct in doing so, on the other. His Honour rightly held that there was no matter that mitigated the objective seriousness of the offences.

36 In explaining how he had arrived at the sentences he had imposed on Carberry, Norrish DCJ pointed out that Carberry had pleaded guilty at the first reasonable opportunity and afforded him a discount of twenty-five per cent. His Honour said that the utilitarian value of the plea was high.

37 Norrish DCJ said that the appropriate sentence for the offence of armed robbery with wounding would ordinarily be one of nine years. Applying the twenty-five per cent discount he therefore imposed a sentence of six years nine months in relation to the armed robbery with wounding.

38 His Honour considered that the starting point for the sentence for the offence of malicious wounding committed by Carberry was four years. Taking into account the discount of twenty-five per cent, he imposed a sentence of three years.

39 Norrish DCJ ordered the fixed term sentence of three years in respect of malicious wounding to be concurrent with the sentence for the armed robbery with wounding. His Honour said in this regard:

“Both sentences should be served concurrently as they both arise out of the same set of circumstances.”

He gave no other reason for ordering that the sentences be served concurrently.

40 As I have mentioned, the sentence for the armed robbery with wounding was ordered to commence from 11 November 2001 and expire on 10 September 2008, with a non-parole period of four years expiring on 10 November 2005. The sentence for the malicious wounding commenced on 11 November 2001 and expired on 10 November 2004. His Honour found that Carberry’s background, upbringing and abuse of drugs constituted special circumstances that enabled him to reduce the non-parole period to less than three-quarters of the total sentence pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999.

41 Norrish DCJ found that the conduct of Weldon was less criminally culpable than that of Carberry. Carberry took a leadership role in the enterprise. Unlike Carberry, Weldon did not come to the premises armed. He also left the premises slightly before Carberry. Additionally, the learned judge noted Carberry had a much more significant criminal history than Weldon, involving significantly greater convictions for crimes of violence.

42 His Honour found Weldon had not pleaded guilty at the first reasonable opportunity. The learned judge held that Weldon should receive a discount of twenty per cent by reason of his guilty pleas.

43 Norrish DCJ considered that a starting point for the offence of robbery in company inflicting grievous bodily harm, committed by Weldon, was seven years six months. Deducting the twenty per cent discount, he arrived at a sentence of six years. He considered that a sentence of two and a half years was appropriate for the offence of malicious wounding (again taking into account the discount).

44 As I have mentioned, the sentence for the robbery in company inflicting grievous bodily harm was ordered to commence on 19 November 2001 and expire on 18 November 2007 with a non-parole period of three years, expiring on 18 November 2004. The sentence for the count of malicious wounding commenced on 19 November 2001 and expired on 18 May, 2004. Norrish DCJ found that special circumstances existed as regards Weldon pursuant to s 44 of the Crimes (Sentencing Procedure) Act. He said that Weldon was a young offender who had previously not been gaoled and had been the subject of parole. He was in protective custody and had a history of drug abuse. He needed an extended period of parole supervision and intensive supervision to assist him on his release to the community. He had the potential to respond positively to such a regime.

45 The appellant submitted that the sentences imposed were manifestly inadequate and did not appropriately reflect the gravity of the offences: Dodd (1991) 57 A Crim R 349. As part of this submission, the appellant argued that the learned judge erred in both cases in making the sentences for malicious wounding totally concurrent with the other sentence imposed in each case.

46 A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case Hoare v The Queen (1989) 167 CLR 348.

47 The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

48 It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622).

49 The conduct for which Carberry and Weldon are liable to be punished by reason of having been convicted, respectively, of the offences of armed robbery with wounding and robbery in company inflicting grievous bodily harm did not wholly encompass the malicious wounding, being the second charge in each case. As I have mentioned, the charge of armed robbery with wounding, of which Carberry was convicted, involved the wounding of Matthew George, whereas the charge of malicious wounding, of which he was convicted, concerned the wounding of Darren George. Likewise, the robbery of which Weldon was convicted involved the inflicting of grievous bodily harm on Matthew George and the malicious wounding committed by him concerned the wounding of Darren George.

50 Thus, whilst the wounding of Matthew George was an element of the offences of armed robbery with wounding and robbery in company inflicting grievous bodily harm, the wounding of Darren George was not.

51 By reason of that difference, the sentences for the offences of armed robbery with wounding and robbery in company inflicting grievous bodily harm do not impose punishment for the offence of malicious wounding.

52 In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ pointed out at 624 that in some instances concurrent sentences may fail to take account of the differences in the conduct, the subject of punishment on each count. This is such an instance. It seems from his Honour’s reasons that he did not take this aspect of the matter into account and ordered the sentences to be concurrent simply on the ground that the offences arose out of the same set of circumstances. In the particular circumstances of this case, nothing in The Queen v Carr [2002] NSWCA 434 is inconsistent with this conclusion. In my opinion the starting point fixed upon by his Honour of less than half of the maximum was significantly too low.

53 In Pearce, McHugh, Hayne and Callinan JJ said at 624:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

I proceed now with that exercise.

54 I accept that Carberry should be entitled to a discount of twenty-five per cent for his early pleas of guilty. Taking into account that discount and having regard to the fact that this is a Crown appeal, I consider that an appropriate sentence for the charge of armed robbery with wounding Matthew George would be eight years and three months imprisonment with a non-parole period of five years. In coming to this conclusion I have accepted that there are special circumstances that allow the non-parole period to be less than three-quarters of the total sentence: R v Simpson [2001] NSWCCA 534.

55 I turn now to the charge concerning Carberry of maliciously wounding Darren George. In accordance with Pearce, I shall approach this task, firstly, without bearing in mind any considerations of totality. I would not interfere with the sentence imposed by Norrish DCJ and would impose a sentence of three years imprisonment on the charge of malicious wounding. Like Norrish DCJ, I regard it unnecessary to fix a non-parole period in relation to this sentence.

56 It is now necessary to bear in mind the application of the totality principle. This requires the Court, after fixing upon the appropriate sentence for each individual offence, having regard to its own individual circumstances, to consider whether the aggregate of the sentences is just and appropriate (R H McL v The Queen (2000) 203 CLR 452 at 457) and to consider questions of cumulation or concurrence. In doing so, the Court continues to apply the principle that the sentence should be proportionate to the degree of criminality involved.

57 I propose the following as regards Carberry:

(a) The sentence in respect of the offence of armed robbery with wounding be eight years three months imprisonment with a non-parole period of five years.

(b) The term of eight years three months imprisonment to commence on 11 November 2002 and expire on 10 February 2011, such term to include a non-parole period of five years commencing on 11 November 2002 and expiring on 10 November 2007.

(c) The sentence in respect of the offence of malicious wounding be three years imprisonment commencing on 11 November 2001 and expiring on 10 November 2004.

58 As regards Weldon, I accept that he should be entitled to a discount of twenty per cent for his pleas of guilty. Taking into account that discount and having regard to the fact that this is a Crown appeal, I consider that an appropriate sentence for the charge of robbery in company inflicting grievous bodily harm would be six years nine months imprisonment with a non-parole period of four years six months. In coming to this conclusion I have again accepted that there are special circumstances that allow the non-parole period to be less than three-quarters of the total sentence.

59 As regards the charge concerning Weldon of maliciously wounding Darren George, I would likewise not interfere with the sentence imposed by Norrish DCJ and would impose a sentence of two years six months imprisonment on the charge of malicious wounding. I would not find it necessary to fix a non-parole period in relation to this sentence.

60 I therefore propose the following as regards Weldon:

(a) The sentence in respect of the offence of robbery in company inflicting grievous bodily harm would be six years nine months imprisonment with a non-parole period of four years six months.

(b) The term of six years nine months imprisonment commence on 11 November 2002 and expire on 10 August 2009, such term to include a non-parole period of four years six months commencing on 11 November 2002 and expiring on 10 May 2007.

(c) The sentence in respect of the offence of malicious wounding be two years six months imprisonment commencing on 11 November 2001 and expiring on 10 May 2004.

61 The effect of the foregoing is that the aggregate imprisonment imposed on Carberry would be nine years three months imprisonment with a non-parole period of six years and the aggregate imprisonment imposed on Weldon would be seven years nine months imprisonment with a non-parole period of five years six months.

62 Accordingly, I would uphold the appeals, set aside the sentences imposed by the learned Judge and impose the sentences which I have above proposed.

63 HULME J: I agree with his Honour’s reasons and the orders proposed.

64 BELL J: I also agree.

65 IPP JA: The order of the Court will be as I have proposed.

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