R v Welling

[2005] NSWCCA 318

CITATION:	R v Welling [2005] NSWCCA 318
HEARING DATE(S):	02/09/2005
JUDGMENT DATE:	12 September 2005
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 2; Howie J at 3
DECISION:	1. Leave to appeal is granted and the appeal is allowed. 2. The sentences imposed by Judge English are quashed. 3. In respect of Count 1 the applicant is sentenced to a fixed term of imprisonment of 20 months to commence on 8 April 2004 and to expire on 7 December 2005. 4. In respect of Count 3 the applicant is sentenced to a fixed term of imprisonment of 15 months to commence on 8 April 2005 and to expire on 7 July 2006. 5. In respect of Count 4 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 12 months to commence on 8 January 2006 and to expire on 7 January 2007, the date upon which the applicant is to be released to parole. There is to be a condition of his parole that he comply with any treatment prescribed in relation to his mental illness. There is to be a balance of the term of the sentence of 21 months to commence on 8 January 2007.

CATCHWORDS:	Criminal Law - Sentencing - offences of robbery and armed robbery - young, mentally ill offender - whether sentences manifestly excessive in view of subjective considerations.
LEGISLATION CITED:	Crimes Act 1900 - ss 94, 97(1) Crimes (Sentencing Procedure) Act 1999 - ss 21A(3), 21A(1)(c), 21A(3)(g).(h) and (j), 44 Mental Health Act 1990
CASES CITED:	R v Way (2004) 60 NSWLR 168 R v Henry (1999) 46 NSWLR 346 R v Engert (1985) 84 A Crim R 67
PARTIES:	Regina v Michael David Welling
FILE NUMBER(S):	CCA 2005/998
COUNSEL:	D. Woodburne - Crown C. Craigie SC - Applicant
SOLICITORS:	S. Kavanagh - Crown S.E. O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0307
LOWER COURT JUDICIAL OFFICER:	English DCJ

2005/998 CCAP

McCLELLAN CJ AT CL
SIMPSON J
HOWIE J

MONDAY 12 SEPTEMBER 2005

REGINA v MICHAEL DAVID WELLING

Judgment

1 McClellan CJ at CL: I agree with Howie J.

2 Simpson J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against sentences imposed on the applicant in the District Court by Judge English (the Judge). It concerns the difficult sentencing exercise involved in determining the appropriate sentence to be imposed upon a young mentally ill offender charged with serious criminal offences of violence arising from his mental illness. The principles to be applied in such a case are well known and uncontroversial but their application to the facts and circumstances in any particular case can be a matter where minds might legitimately differ to a very significant degree.

4 On 17 August 2004 the applicant was arraigned on an indictment containing four counts but, on pleading guilty to three of the charges, the Crown accepted those pleas in full satisfaction of the indictment. The applicant, therefore, came to be sentenced for two counts of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act, for which the maximum penalty is 20 years imprisonment, and a charge of robbery contrary to s 94 of the Crimes Act, for which the maximum penalty is 14 years imprisonment.

5 The applicant fell to be sentenced in accordance with s 44 of the Crimes (Sentencing Procedure) Act as it applied to offences committed after 1 February 2003. That section in effect required the court to first set a non-parole period and next the balance of the term of the sentence, that latter period not to exceed one-third of the non-parole period unless the court decided there were special reasons for it being more. The judge did not sentence the applicant precisely according to the requirements of the section but no point was taken as to this irregularity on appeal. The sentencing orders set out below are the effect of the sentences imposed in terms of s 44 rather than the way in which the Judge expressed the sentences.

6 In respect of the first count on the indictment, an armed robbery occurring on 4 April 2004, the Judge imposed a sentence of a fixed term of 3 years imprisonment commencing on 8 April 2004 and expiring on 7 April 2007. In respect of the third count on the indictment, a robbery that occurred on 7 April 2004, the applicant was sentenced to a non-parole period of 2 years 6 months commencing on 8 April 2005 and expiring on 7 October 2007 with a balance of the term of 12 months to expire on 6 October 2008. In respect of the fourth count on the indictment, an armed robbery occurring on 7 April 2004, the Judge sentenced the applicant to a non-parole period of 4 years commencing on 8 April 2005 and expiring on 7 April 2009 with a balance of the term of 3 years expiring on 7 April 2012.

7 The effective sentence, therefore, was one of a total term of 8 years imprisonment with a minimum period to be served of 5 years. The applicant is eligible to be released to parole on 7 April 2009.

The facts

8 At the time of the commission of the offences the applicant was residing in the San Remo area of the Central Coast. He had no fixed place of abode. The offence in the first count on the indictment occurred when the applicant entered the shop of a service station at Budgewoi and threatened the attendant, a 50-year old woman, with a knife. The applicant demanded money. The victim opened the cash drawer and the applicant removed a quantity of notes before leaving. As a result of this offence $295 in cash was stolen from the premises. The applicant was photographed on the security system activated by the attendant.

9 The second and fourth counts on the indictment occurred three days later. On the morning of 7 April the applicant was standing outside a shop in San Remo when the victim of this offence, a 69-year old disabled woman, arrived in her motor vehicle. She entered the shop and purchased a packet of cigarettes. On leaving the shop, she passed the applicant who asked her if she had any work he could do. The victim told him that she had not and, as she walked to her vehicle, the applicant followed her. When he reached the vehicle, he asked if she could drive him to the highway. He then entered the front passenger side of the vehicle. At the applicant’s direction the victim drove him a short distance before pulling to the side of the road. The applicant then demanded her purse and car keys. He reached across her, attempting to remove the keys from the ignition. A short struggle occurred, during which the applicant demanded repeatedly that she give him the keys while the victim was screaming for help. The applicant eventually opened the passenger door, removed a packet of cigarettes and a pillow from the seat he was sitting on and walked off into the bushland. As a result of this incident the victim suffered only minor physical injuries but substantial psychological trauma described in a victim impact statement.

10 The fourth offence occurred later that day. The applicant entered a shop at Charmhaven where the victim, a 19-year old female, was working. The applicant threatened her with a knife and demanded money. As the victim struggled to open the cash register drawer, the applicant said, “Hurry up or I will cut you”. Eventually the victim succeeded in opening the drawer and the applicant removed a quantity of notes before leaving the shop. As a result of this offence the applicant obtained $100 in cash.

11 The applicant was arrested on 8 April 2004 and interviewed by police. He said that he had no recollection of committing either of the armed robbery offences. During the course of the interview the following questions and answers occurred in respect of the first of the armed robbery offences:

“Q. Do you agree that prior to the start of the interview you told me that you have been off your medication?

A. Yeah.

Q. Do you agree that you have told me that you thought you may have committed this particular offence?

A. Yeah, I’ve been hearing goblins and they make me do things. I’m not sure what about though.

Q. You’ve been hearing goblins?

A. Yeah.

Q. All right.

A They’ve been telling me to go run amok and I’ve been saying no.

Q. All right. What sort of medication are you on?

A. I’m not sure, they give me injection.

Q. An injection. How often is that?

A. Every 2 weeks.

Q. What’s that for mate?

A. Schizophrenia.

Q. How long, how long have you had that that you know of?

A. I’m not sure.

Q. When did you last get your injection?

A. About 2, 3 weeks ago.”

When asked who was treating him, the applicant produced a business card of a medical practitioner.

12 Although the applicant told the police that he could remember getting a lift from the victim of the robbery offence, he said that he could not recall any of the events after getting into the motor vehicle.

13 A psychiatrist, Professor Greenberg, prepared a report of the applicant dated 9 September 2004. That report contains the following in respect of the circumstances surrounding the offences:

“[The applicant] is able to give a poor account of himself during the time period surrounding the alleged offences. He has no loss of memory and he can recall his behaviour during the time period surrounding the alleged offences. He reports that at the time prior to the alleged offences he was abusing alcohol and other illicit substances. He also reports that he was not taking his psychiatric medications at the time period surrounding he alleged offences.”


Subjective circumstances

14 The applicant was aged 19 years at the time of the offences and suffers from schizophrenia. He has been abusing alcohol and illicit drugs since he was aged 12. Since the age of 15 he has been using amphetamine daily. The applicant reported to Professor Greenburg that he had attended a rehabilitation programme at Morisset Hospital “a few years ago” but left because he was “sniffing solvents”. He denied that he required any treatment for his use of drugs.

15 The applicant had a disrupted childhood due to conflicts with his stepfather, whom he described to Professor Greenburg as a violent alcoholic. He had a history of behavioural problems during his adolescence that interfered with his schooling. He left home at the age of 12. At the time of the offences his mother lived in the San Remo area but they were estranged. There is some suggestion in the material before the Judge that the applicant’s mother herself might suffer from a psychiatric condition. The applicant had supportive grandparents who lived in Campbelltown but he spent most of his time in the San Remo area or travelling on trains. As has already been noted, the applicant was homeless at the time of the offences.

16 The applicant has a criminal record. In January 2001 at the Cobham Children’s Court he was placed on a supervision order for two years in respect of an offence of stealing from the person committed in August 2000 and an offence of assault occasioning actual bodily harm committed in October 2000. The applicant was convicted in his absence for a number of offences including shoplifting and assaults on police officers before the Children’s Court in August 2001 and warrants were issued for his arrest. In October 2001 he was sentenced for those matters to the rising of the court. In October 2002 there were a number of offences including a common assault and being in possession of a prohibited weapon before the Gosford Local Court. The applicant was convicted in his absence and warrants issued. In November 2002 he was fined $100 in respect of each of the seven offences for which there were outstanding warrants.

17 It is apparent from the material before the sentencing judge that the applicant’s criminal offending arose substantially from his aggressive conduct arising from his mental illness. Of particular relevance was the fact that some of the offences related to his use of knives that he carried for his own protection. A report of a psychiatrist prepared in 2002 for the Local Court states that it was likely that the applicant was psychotic at the time of the commission of the offences then before the court. The applicant spent some period in a juvenile detention centre in 2002 while on remand to attend court. There were reports of aggressive and violent behaviour by him towards other inmates and staff that led to him being placed in segregation.

18 The applicant was first diagnosed with schizophrenia at the age of 18 but it is likely that he had been mentally ill for some years prior. He has had multiple admissions to hospitals or institutions in relation to his psychiatric illness. Some of these have been self-admissions as a result of auditory hallucinations. On a number of occasions he has been scheduled under the Mental Health Act. The applicant has a history of non-compliance with treatment regimes and he admitted to Professor Greenberg that he had not been receiving medication at the time of the offences because he thought that he did not require it. From November 2003 the applicant was subject to a Community Treatment Order under the provisions of the Mental Health Act. By March 2004 he was in breach of the order by failing to attend for medication in accordance with his treatment programme and his case manager was unable to make contact with him.

19 Professor Greenberg reported:

‘……………Although he has been treated with various antipsychotic medications, these symptoms of his mental illness have persisted and it is evident that there is a degree of treatment resistant symptomatology (chronicity). He complains of persistent auditory hallucinations and has very disorganised delusional beliefs. These symptoms are exacerbated by his poor compliance with his psychiatric medications. I note he has previously been treated with a Community Treatment Order (under NSW Mental Health Act 1990). Compounding his mental illness is a history of homelessness and difficulty managing his money. It appears that a large part of his behavioural problems are due to his mental illness, homelessness, poor socio-economic conditions and lack of support systems in the community.

It is my opinion that his mental illness, homelessness, poor socia-economic conditions and poor support systems indirectly contributed to his behaviour during the time period surrounding the alleged offences. Although he reports command hallucinations, directing him to behave in a certain manner, their description is not consistent with a McNaughton’s type defence. I am of the opinion that he has significant mitigating factors which directly impacted on his behaviour during the time period surrounding the alleged offences.”

20 Under the heading “Treatment Recommendations” Professor Greenberg stated:

“[The applicant] has a major psychiatric illness. His insight into his mental illness is impaired. He is clearly ambivalent about taking his antipsychotic medications. He has a history of non-compliance with his treatment and use of illicit substances. Should he be released back into the community, he will require supervision with a Mental Health Case Manager and will also require accommodation and assistance with managing his money. He would probably need to be placed back on a Community Treatment Order to assist in the management and care of his mental illness and his compliance with his antipsychotic medications. He will continue to need to attend follow-up appointments with his attending psychiatrist.

It is imperative that he remains abstinent from all alcohol and other illicit substances. He may benefit from Drug and Alcohol counselling.”

The sentencing remarks

21 During the course of her remarks on sentence, the Judge referred to the applicant’s psychiatric history and noted the opinion of Professor Greenberg as to the role of the applicant’s mental condition in his offending quoted above, stating:

“The history given is one of homelessness, mental illness, or socio-economic conditions and lack of support systems in the community all things which I find contributed to his behaviour bringing him before the courts.”

22 After referring to Professor Greenberg’s recommendations for treatment, the Judge stated:

“The community can only hope that with maturity he will develop insight into his mental illness and addictive personality and understand the need for lengthy and supervised rehabilitation.”

23 The Judge, having referred to the seriousness of the offences and indicating that she was allowing a 20 per cent discount for the plea, stated (emphasis added):

“The offender, as I have said, does have criminal antecedents, although as I have also said, there appears to be nothing so serious as these current matters upon his record . The only mitigating factors I can find are the limited degree of planning and the fact that the offender has pleaded guilty. I am simply unable to be confident that he will undergo successful rehabilitation, or is unlikely to re-offend due to his lack of compliance with the regimes put in place to assist his mental health in the past. ”

24 After noting that the amount taken in the robberies were minor the Judge went on:

“I do accept he is both remorseful and contrite and I do find the principle of general deterrence can be given lesser weight because he is suffering and was at the time suffering from a mental illness, although not sufficient to constitute a defence. He was found fit to plead and to stand trial. An illness that continues to plague him even whilst he is in custody, and under an appropriate regime of treatment receiving regular injections of prescription medication (sic). I have also had regard to his relatively young age and what appears to be an entirely dysfunctional upbringing due in some part to his mental health.

However, the subjective seriousness of the offences cannot be overlooked. Nothing short of full time custody will satisfy the requirements of deterrence, both general and specific, bearing in mind what I have already found in respect of the issue of general deterrence. The community regards the use of knives to commit offences with abhorrence. The elderly should be able to attend a local store without being injured and robbed and suffer the ongoing effects of such crime to the extent that their lives are effectively destroyed by the actions of one individual.”

The grounds of appeal

25 There are two grounds of appeal filed for the applicant. The first is:

That the learned sentencing judge erred in failing to give proper or sufficient consideration to the applicant’s mental illness and to the principles relating to that factor so far as it was relevant to the sentencing discretion.

The second ground asserts that the sentences are individually, and in the aggregate, manifestly excessive.

26 Mr Craigie SC, who appeared for the applicant, submitted that there were two patent errors appearing in the remarks on sentence both contained in a paragraph set out above and in the two sentences underlined. The first error is said to have been the failure of the Judge to take into account the whole of the mitigating factors relevant to the sentencing exercise and in particular the mental illness of the applicant. The second was that the Judge incorrectly applied the onus of proof in determining whether the applicant posed a future danger to the community.

27 The passage underlined seems to be a reference by the Judge to those mitigating factors found in s 21A(3) of the Crimes (Sentence Procedure) Act. Clearly the matters listed in that section are not the only factors of mitigation that a sentencing judge is required to take into account under the section by reason of the general provision contained in s 21A(1)(c); see R v Way (2004) 60 NSWLR 168 at [56] - [57]. The complaint in the present case is that the Judge did not take into account the mitigating circumstances of the applicant’s mental illness. Of course s 21A(3)(j) does contain some consideration of the impact upon the sentence of an offender’s mental state. That section requires, where applicable, the court to take into account that “the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability”. In this case there was no evidence that the applicant was not fully aware of the consequences of his actions.

28 Of course two of the offences, those in the first and fourth counts, were armed robberies of a kind that would have brought the applicant within the Henry sentencing guideline had it not been for his mental illness. When sentencing an offender who falls within the guideline for armed robbery offences, it would be unnecessary for the sentencing judge to refer to mitigating factors such as the lack of planning or the youth of the offender because they are attributes of the offending that brings it within the guideline as a typical instance of the offence. However, in the present case the guideline had no applicability to the applicant because of his mental illness.

29 It seems to me that a fair reading of the remarks makes it clear that the Judge accepted that the applicant’s mental illness together with other circumstances existing at the time of the offending, and noted in the report of Professor Greenburg, contributed to the offences for which he was before the court as a matter of mitigation of the applicant’s criminal responsibility for the offending even though the Judge did not mention them in the underlined passage. Certainly the Judge indicated that she was taking into account the applicant’s mental illness as reducing the need to otherwise reflect general deterrence in the sentences imposed. I am not persuaded that the sentencing remarks reveal that the Judge failed to take into account relevant circumstances of mitigation.

30 The second asserted error is also not made out. In the second sentence underlined the Judge was merely indicating that she had not been persuaded that the applicant was unlikely to re-offend or had good prospect for rehabilitation under s 21A(3)(g) and (h) respectively. This was not a finding of future dangerousness justifying an element of preventative detention. It was simply an application of the appropriate onus in relation to those two factors of mitigation. Clearly in light of the applicant’s history of failing to comply with treatment regimes and his statement to Professor Greenburg indicating his lack of insight into his need for medication, it was an appropriate finding for the Judge to have made.

31 This finding is an example of the difficulties that confront a judge sentencing a mentally ill person and that were referred to by Gleeson CJ in R v Engert (1985) 84 A Crim R 67 where his Honour stated:

Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as follows: “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”.

A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen No 2. Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.

32 The applicant’s mental illness, youth, lack of community support and homeless were factors that pointed in favour of a reduction in the applicant’s criminal responsibility for his offending and less weight being given to the need for general deterrence in favour of rehabilitation. On the other hand the applicant’s lack of insight into his need for medication to control the effects of his mental illness and the aggressive behaviour accompanying his disordered mental state pointed towards specific deterrence and resulted in an inability to moderate the sentence by reason of his prospects of rehabilitation or the unlikelihood of re-offending. The balancing of these competing considerations was largely a matter for the sentencing Judge.

33 However, there were matters that moderated the need for specific deterrence in the applicant’s case just as his mental illness moderated the need for the sentences to reflect general deterrence. The applicant’s past record contains relatively minor offending of the type that might be expected of a person who was suffering from psychosis. Although those offences indicate that violence and the use of knives are characteristics of the applicant’s behaviour as a result of his mental illness when untreated by medication, neither that history nor the current offences suggest that a point had been reached where, notwithstanding his youth, the Judge had to impose a deterrent sentence for the protection of the community and at the expense of rehabilitation.

34 In the present case the applicant’s youth was of crucial importance in achieving the balance between the competing factors operating on the sentencing discretion. Although for offences of the nature for which the applicant was to be sentenced, general deterrence would normally be an important consideration notwithstanding an offender’s youth, the applicant’s mental illness and surrounding circumstances at the time of his offending rendered him an unsuitable person upon whom to visit the full measure of general deterrence that would normally accompany this type of offending. In my opinion his youth moderated the need for specific deterrence at this point in his history of offending, that might otherwise have been appropriate having regard to his lack of insight into his illness and its control by medication.

35 The offences for which he was to be sentenced were committed over a relatively short period of time and can be viewed as part of a single course of criminal conduct arising from the circumstances of his untreated mental illness. In light of his youth and limited criminal record, it was necessary for the sentences imposed to reflect the considerable attenuation of the applicant’s moral culpability in the offending resulting from his mental illness and his personal circumstances at the time. The mitigation afforded to the applicant by reason of his reduced criminal responsibility was not off-set by a need at this point in time to protect the community by giving emphasis to either specific or general deterrence.

36 Notwithstanding the wide discretion that resided in the Judge and the due respect that this Court is to pay to the exercise of that discretion in a case such as the present, the overall sentence imposed indicates to me that the sentencing judge must have given undue weight to either the objective seriousness of the offence or the need for general and specific deterrence or a combination of the two.

37 As I have indicated, the total sentence was a term of 8 years imprisonment with a minimum period of custody of 5 years. This sentence was imposed notwithstanding the following considerations: the applicant was aged 19 years at the time of the offences; he had never been sentenced to a period of custody before, let alone to imprisonment in an adult prison; the Judge said that she was giving less weight to general deterrence and she accepted that “homelessness, mental illness, poor socio-economic conditions and lack of community support” contributed to his criminal behaviour; there had been a 20 per cent reduction in the otherwise appropriate sentences for the pleas of guilty. In my opinion the overall sentence was manifestly excessive. As I will indicate shortly, I also believe that the individual sentence were excessive to a very significant degree. This Court must, therefore, in my opinion interfere and re-sentence the applicant.

38 The Court received two affidavits on the basis that it might be required to re-sentence the applicant. The first was sworn by the applicant on 18 August 2005. He states that he has been receiving daily medication while in custody and no longer suffers from auditory hallucination or paranoid thoughts. He presently acknowledges the benefit of his medication in relieving him of these symptoms. He is in employment in the prison and receives visits from his mother, grandmother and a cousin. The second affidavit annexes documents obtained from the gaol records. A report of August last year indicates that the applicant has generally adapted to his custodial situation and is being housed with other young offenders at the John Morony Centre. His management plan requires his attending for treatment and remaining in contact with an alcohol and drug counsellor. He has been generally compliant with the plan. If his sentence is reduced, he will remain at the Centre until he can be classified to a placement nearer to his family.

39 The sentence for the first count, being the first armed robbery was a fixed term of 3 years to commence on the date upon which the applicant was taken into custody. Assuming that this sentence was the equivalent of the applicable non-parole period imposed under s 44 and presuming a discount of 20 per cent had been applied, the sentence is the equivalent of a non-parole period of 3 years 9 months. Even without a finding of special circumstances that would give rise to an overall term of 5 years. But the Judge found special circumstances so presumably the head sentence she had in mind when determining the fixed term was in excess of 5 years. Even had the applicant fallen within the Henry guideline, that would have been a sentence at the very top of the range if not outside it. Such a sentence was excessive when applied to the applicant. The sentence should be a fixed term of imprisonment of 20 months.

40 The sentence for the second count was a non-parole period of 2 years 6 months with a further term of 12 months. It is difficult to understand what sentence the Judge started with in order to arrive at that sentence after a 20 per cent discount but it would have been about 4 years 4 months. A starting sentence of that nature tends to raise doubts in my mind about how the discounted sentence was derived. In any event, such a sentence was manifestly excessive for the robbery offence notwithstanding the aggravating fact that the victim was elderly and disabled. There was no purpose in fixing a non-parole period and balance of term under s 44 in light of the appropriate sentence to be imposed for the fourth count. The sentence for the second count should be imprisonment for a fixed term of 15 months to commence 12 months after the sentence for the first count.

41 The sentence for the fourth count was a non-parole period of 4 years with a further term of 3 years. With a discount of 20 per cent that would mean a starting sentence of 8 years and 9 months. Such a sentence is clearly manifestly excessive. The Judge made this sentence wholly concurrent with that on the second count. The criminality in this offence cannot comprehend the criminality in both offences notwithstanding that they were both the result of the applicant’s mental illness and occurred on the same day. There should be a finding of special circumstances in accordance with the finding of the sentencing judge. The sentence should be one of 2 years 9 months made up of a non-parole period of 12 months to commence 9 months after the offence on the second count and a balance of the term of 21 months.

42 This gives an effective total sentence for the three offences of 4 years 6 months with a minimum period to be served of 2 years 9 months from 8 April 2004.

43 I propose the following orders:

1. Leave to appeal is granted and the appeal is allowed.

2. The sentences imposed by Judge English are quashed.

3. In respect of Count 1 the applicant is sentenced to a fixed term of imprisonment of 20 months to commence on 8 April 2004 and to expire on 7 December 2005.

4. In respect of Count 3 the applicant is sentenced to a fixed term of imprisonment of 15 months to commence on 8 April 2005 and to expire on 7 July 2006.

5. In respect of Count 4 the applicant is sentenced to a term of imprisonment comprising a non-parole period of 12 months to commence on 8 January 2006 and to expire on 7 January 2007, the date upon which the applicant is to be released to parole. There is to be a condition of his parole that he comply with any treatment prescribed in relation to his mental illness. There is to be a balance of the term of the sentence of 21 months to commence on 8 January 2007.
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