R v Wilson

[2005] NSWCCA 219

CITATION:	R v Wilson [2005] NSWCCA 219 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 May 2005
JUDGMENT DATE:	17 June 2005
JUDGMENT OF:	Simpson J at 1; Barr J at 43; Latham J at 48
DECISION:	(i) leave to appeal against sentences granted; (ii) appeals against sentences imposed in respect of Counts 3 and 4 dismissed; (iii) appeal against sentence imposed in respect of Count 2 allowed, sentence quashed; (iv) in lieu thereof the applicant sentenced to imprisonment for two years, commencing on 5 August 2005, with a balance of term of two years, expiring on 4 August 2009. The applicant to be eligible for release on parole on 4 August 2007.

CATCHWORDS:	appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - victim impact statements - subjective circumstances - special circumstances - whether sentences manifestly excessive - starting point of sentence just below statutory maximum - no finding that offence a "worst case" - accumulation of sentence
LEGISLATION CITED:	Amendment (Standard Minimum Sentencing) Act 2002 Crimes Act 1900, s35(1)(a), s59(1) Crimes (Sentencing Procedure) Act 1999, s3A, s44
CASES CITED:	R v Slack [2004] NSWCCA 128
PARTIES:	Crown - Respondent Mark Kenneth Wilson - Applicant
FILE NUMBER(S):	CCA 2005/407
COUNSEL:	DML Woodburne - Crown T Keaney - Applicant
SOLICITORS:	S Kavanagh - Crown SE O'Connor - Applicant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/0215
LOWER COURT JUDICIAL OFFICER:	Woods DCJ

2005/407

SIMPSON J
BARR J
LATHAM J

Friday 17 June 2005

REGINA v Mark Kenneth WILSON

Judgment

1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court by Judge Woods on 6 August 2004 following his pleas of guilty to two counts of malicious wounding and one of assault occasioning actual bodily harm. Each offence was committed on 6 April 2003, and, accordingly, the applicant was to be sentenced in accordance with s44 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), as amended by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, (“the Standard Minimum Sentencing Act”). Each of the malicious wounding charges, brought under s35(1)(a) of the Crimes Act 1900, carries a maximum penalty of imprisonment for seven years; the assault occasioning actual bodily harm charge, brought under s59(1) of the Crimes Act, carries a maximum penalty of imprisonment for five years. Judge Woods sentenced the applicant as follows:

Count 4 (assault occasioning actual bodily harm): imprisonment for one year and eight months, commencing on 5 August 2004 with a non-parole period of one year, expiring on 4 August 2005 (the victim of this offence was Paul Zenthon);

Count 3 (malicious wounding): imprisonment for two years and six months, also commencing on 5 August 2004, and thus to be served concurrently with the last mentioned sentence, with a non-parole period of one year and six months, expiring on 4 February 2006 (the victim of this offence was Luke Keegan);

Count 2 (malicious wounding): imprisonment for five years, commencing on 5 August 2005: that is, partially cumulatively upon the non-parole period specified in respect of Count 3, with a non-parole period of two years and nine months expiring on 4 May 2008. (the victim of this offence was Lucas Gresham)

(Count 1 on the indictment was a count of malicious wounding with intent to inflict grievous bodily harm, brought under s33 of the Crimes Act. The Crown having accepted the applicant’s pleas of guilty to Counts 2, 3 and 4 in full satisfaction of the indictment, that count was not proceeded with.)

2 The aggregate sentence imposed was of imprisonment for six years, commencing on 5 August 2004, with a non-parole period of three years and nine months, expiring on 4 May 2008.

facts

3 All offences were committed during the evening of Sunday 6 April 2003. The applicant was uninvolved in the initiating event. An associate of his, CJF (then 17 years of age), was walking in a northerly direction in a Newcastle street. Four men, among them Lucas Gresham and Luke Keegan, were walking in the opposite direction on the same street. CJF, who appeared to be agitated, called out to the men and then said he was “going to get his mates” and was seen to make a call on his mobile phone. Just what gave rise to this was not explained by the evidence. The men continued walking in the street until they reached a hotel; CJF also continued walking in the direction in which he had previously been walking. The telephone call he made was to an associate, BO, also under 18 at the time. BO was in his motor vehicle with the applicant. CJF requested that they attend and they did so. They met CJF and then drove around the area in search of the four men. They located them. By this time two of the four men had moved out of the area; Mr Gresham and Mr Keegan had been joined by two others, one of whom was Paul Zenthon. The applicant and CJF alighted from the vehicle in which they had been travelling and confronted the men. An altercation arose which was instigated either by the applicant or by CJF. The applicant produced a fishing knife, approximately 30 cm in length, which was used to injure each of the three victims. The first victim, Lucas Gresham, was stabbed as he ran towards the scene. The applicant punched him and then stabbed him in the lower abdomen. He used the knife on each of the other victims. Observers at a nearby hotel ran to the scene and disarmed the applicant. They retained the knife. BO drove the applicant from the scene. CJF walked to a nearby address. Mr Gresham sustained serious injuries consisting of a 3 cm laceration just below the rib margin of the left upper abdomen. He underwent laparotomy with suture of lacerated stomach and ligation of bleeding blood vessels and cleaning of the peritoneum. The stab wound penetrated all layers of the skin to a depth of 10 cm. A doctor classified it as “serious”.

4 The second victim, Luke Keegan, sustained a stab wound to the right forearm with no tendon or nerve loss, and a stab wound to the left shin with superficial nerve loss and no obvious tendon loss. The doctor who treated him classified the injury as “mild”, but anticipated minor long-term disabilities.

5 The third victim, Paul Zenthon, the victim of the assault occasioning actual bodily harm offence, sustained three short lacerations of, respectively, 1.5 cm, 1.0 cm and 1.0 cm to his scalp, plus small abrasions and some bruising to the scalp, two minor abrasions to the right knee, and possibly a minor concussion. Photographs that were in evidence vividly illustrate the extent of the injuries to all men.

6 All three victims were taken to the John Hunter Hospital. Mr Zenthon waited only a short time before leaving untreated; the other two were admitted for treatment. Mr Gresham underwent surgery to his abdomen and Mr Keegan underwent surgical exploration for cleaning and nerve repair.

7 Almost immediately after these events the applicant attended Newcastle Police Station in the company of his father to hand himself in to police.

victim impact statements

8 A victim impact statement in relation to each victim was tendered. That which related to Mr Gresham was a report of a psychologist, and was, in part, read in the court by Mr Gresham’s sister. The contents of the report made the seriousness, and the long-term effects, of that offence very plain. Mr Gresham was 25 years of age at the time of the offence. He was a professional surfer, ranked 11th in the world. He had prospects of a successful and lucrative career in the sport. The physical effects of his injuries adversely affected his performance as a result of which he lost contracts that he had been on the verge of entering. He had suffered financially to a major extent.

9 He was said to meet the requirements for a diagnosis of Chronic Post Traumatic Stress Disorder.

10 The other two victims wrote their own victim impact statements. They were not as badly injured, although Mr Keegan underwent surgery and suffered some post-operative complications. He described the emotional effect as greater than the physical. Mr Zenthon outlined anxiety, over zealousness and extreme nervousness if approached from behind.

subjective circumstances

11 Evidence of the applicant’s subjective circumstances was put before the court in the form of a pre-sentence report and a psychiatric report over the hand of Dr Bruce Westmore. This evidence exposes a rather curious aspect of these offences. The applicant was born on 7 March 1983. He was just 20 years of age at the time of the offences. He had no criminal record to speak of, having only been convicted in August 2001 in the Orange Local Court of obtaining money by deception in respect of which he was fined $100 and required to pay compensation of $19.50. He came from a happy and harmonious family with whom he had “a very close, caring and loving relationship ...” He had used cannabis occasionally since the age of 15, more regularly from 17, but ceased the use of that drug early in 2004 – that is, after the commission of these offences and his being charged. He appears to have an incipient alcohol problem in that, as recorded by Dr Westmore, “if he starts drinking he can’t stop”. When he drinks he continues until the alcohol runs out or he passes out. At the time Dr Westmore wrote the report he was engaging in this conduct once or twice a month. He acknowledged having blackouts in the past. There was no suggestion, however, that alcohol intake played any part in these offences.

12 The applicant as a child was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and had had investigations and treatment for that during childhood and adolescence.

13 There appears to have been some history of mental illness in the family, his father having been diagnosed as suffering from a “manic depressive psychosis”, and there being reports of schizophrenia in the families of both of his parents. The applicant had been prescribed anti-depressants, but had ceased taking these a few days before the offences.

14 He reported a happy childhood at home, but unhappy school experiences, where he was teased and tormented and sometimes exposed to physical aggression. He thought the teachers treated him unfairly and he had learning difficulties. He regarded himself as a below average scholar.

15 He has had some employment, it seems always of an unskilled kind. His principal interest was fishing, and this was the reason that he was in possession of the knife used in the offences. Dr Westmore believed that he needs continuing psychiatric treatment and thought that, with appropriate medical assistance and advancing maturity, his longer term prognosis should be “reasonably good”. Dr Westmore observed that he had the continuing support of his family and considered this to be a positive factor. Dr Westmore expressed his concern about the potential impact of a custodial sentence upon the applicant, noting his youth, his vulnerability (despite a large and strong physique) and thought him likely to be the victim of physical and possibly other assaults in prison.

16 The only oral evidence called on the applicant’s behalf was that of a Benjamin Neilson who said that he was prepared to make employment as a storeman or labourer available to the applicant. The applicant himself did not give evidence and neither did any member of his family.

the remarks on sentence

17 Judge Woods opened his remarks on sentence by stating his conclusion that no sentence other than a significant sentence of full-time imprisonment could be contemplated. He recounted the facts of the offences and made reference to the subjective circumstances. It was not contended that any express error in his Honour’s approach to the facts could be identified. His Honour found (with the concurrence of both parties) that special circumstances, pursuant to s44(2) of the Sentencing Procedure Act, existed, calling for some variation in the statutory proportion between head sentences and the non-parole periods.

18 His Honour expressed his intention of discounting each sentence by 25% in recognition of the pleas of guilty, reflecting both the utilitarian value of the pleas, and the applicant’s contrition.

19 He gave effect to the finding of special circumstances in the structure of the sentences in aggregate. Had he adhered to the statutory ratio, the overall non-parole period would have been four and a half years; the non-parole period imposed was of three years and nine months. This is a significant adjustment.

the application for leave to appeal

20 Two grounds in support of the application for leave to appeal were pleaded. These were as follows:

“1. The sentences are manifestly excessive.
2. His Honour, the sentencing judge, erred in accumulating the sentence in relation to Count 2 on the Indictment.”

“manifestly excessive”

21 Counsel who appeared for the applicant pointed out that, when the discount of 25% is factored back into the sentence imposed in respect of Count 2, the offence against Mr Gresham, the starting point must have been a sentence of six years and eight months. This is only four months less than the statutory maximum of seven years. The starting point in respect of Count 3, the offence against Mr Keegan, must have been three years and four months, against the same statutory maximum, and the sentence in respect of Count 4, the offence against Mr Zenthon, was of two years and two months, against a statutory maximum of five years.

22 The point made by counsel for the applicant is fairly stark in relation to Count 2, but less significant in relation to the other counts. It is simply that the offences were not such as to be properly classified as in the worst category of case, calling for, or warranting, a sentence very close to the statutory maximum, before the discount for a plea of guilty. In my view, the sentences imposed in respect of Counts 1 and 3 cannot reasonably be said to be approaching the statutory maximum. I would reject this aspect of the application in respect of those counts. The point made in respect of Count 2 calls for more consideration.

23 Counsel who appeared for the Crown on the application argued that it was open to his Honour to regard the offence against Mr Gresham as in the worst category of its kind. In doing so, counsel referred to the evidence of the injuries as outlined in the victim impact statement. This raised a question about the use that could legitimately be made, and the use that was in fact made, of the victim impact statements, particularly that relating to Mr Gresham. (In fact, evidence of the extent of the physical injuries was contained in the Expert Certificates given by the medical practitioners who treated the victims. There was and is no issue about the admissibility of these documents, or the use that could be made of them.)

24 Counsel who appeared on the application for leave to appeal took issue, to a point, with the use that could be made of the victim impact statements. He did this because, he argued, they contained assertions of fact seriously adverse to the applicant, that could not be challenged by cross-examination. At first sight, there is a good deal of common sense and justice in this proposition.

25 Victim impact statements are a particular species of evidence available to a sentencing judge. Special provision is made for the admissibility of victim impact statements in Division 2 of Part 3 of the Sentencing Procedure Act. By s28(1) a court may, if it considers it appropriate to do so, receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. Notwithstanding that, by sub-s(4)(a) a court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor.

26 These provisions have been the subject of consideration in this Court in R v Slack [2004] NSWCCA 128 in a judgment of Sperling J with which Grove J and I expressly agreed on this issue. Sperling J wrote:

“[58] Harm to the victim of an offence is a relevant consideration. Henry [[1999] NSWCCA 111;] (1999) 46 NSWLR 346 at [95], Hall (NSWCCA 28 September 1995, unreported). It is a factor in aggravation. As such, the court must be satisfied as to the facts beyond reasonable doubt. The common law is now codified by s21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 .
[59] Her Honour would have had in mind the provision of s28(1) of that Act which provides that, if it considers it appropriate to do so, a court may receive and consider a victim impact statement at any time after the conviction but before sentence.
[60] Section 28(4) provides that the court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and must not consider a victim impact statement given by a family victim in connection with the determination of the punishment of the offender unless it considers that it is appropriate to do so. ... The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of a punishment by sentence.
[61] Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB (NSWCCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour, but, it was said, what is required is an objective assessment of the crime’s effect.
[62] The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim. ” (italicisation in [60] in original; emphasis in bold in [62] added)

27 Notwithstanding a plea of guilty, it is always open to an offender to challenge the factual bases of the case advanced by the Crown. Witnesses may be called for cross-examination to enable determination of disputed issues of fact. This may happen, particularly, where the Crown seeks to establish circumstances aggravating the offence. However, although there appears to be nothing in Part 3, Division 2 of the Sentencing Procedure Act to prevent it, it has not been customary for cross-examination to take place in relation to the contents of victim impact statements. S30A of the Sentencing Procedure Act permits a victim, or a member of the immediate family of the victim, or some other representative of the victim, to read out the whole or any part of a victim impact statement to the court after it has been duly received. The section does not appear to envisage that cross-examination on the content of the statement would be permitted.

28 It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded. That really provides the answer to the issue taken here. The victim impact statements were tendered without objection. No argument was addressed to whether their contents should be attributed weight or not. Experienced counsel who appeared for the applicant on sentencing made no attempt to limit the use his Honour was to make of the quite substantial matters contained in the statements, particularly that relating to Mr Gresham.

29 Further, having regard to the nature of the attack upon Mr Gresham, and the uncontestably admissible medical evidence, that part of the victim impact statement which dealt with his distress and its aftermath could hardly be the cause of any surprise. Had there been any issue about the factual matters concerning the demolition of Mr Gresham’s career prospects, that could have been remedied by admissible evidence. This Court was told that Mr Gresham was himself personally present at at least part of the sentencing proceedings.

30 In any event, Woods DCJ was alive to the questions which attend the weight to be given to victim impact statements. He recorded that he had read the statements relating to Mr Keegan and Mr Zenthon, and had heard part of that relating to Mr Gresham read. He no doubt had read the remainder of that statement himself. He went on to say:

“Parliament has said, and I note, that it is one of the functions of the court to listen to what victims say about the consequences for them of crimes committed against them, and Ms [Gresham] has had the opportunity of reading the documents. I note that. It does not cause me to increase the sentence that I otherwise would have imposed. Our system does not cast upon victims, or their relatives, the duty of obtaining a remedy in the courts, especially the criminal court, but it does allow victims the opportunity to ventilate their pain and suffering before the public tribunal which is the sentencing court, and that has occurred in this case.
Nothing that appears in the victim impact statements is beyond conclusions that I would have otherwise drawn anyway in general terms from the nature of the offence as admitted in the agreed facts, the photographs, (particularly the photograph of the knife which was the instrument of these assaults) and the other material before me. Nonetheless I note that material from the victims.”

31 It is of some significance that his Honour made no express reference to the alleged economic impact of the offence upon Mr Gresham nor to the psychological material. In those circumstances I am of the view that it cannot be established that undue weight was given to the contents of any of the victim impact statements.

32 The circumstances referred to above are, as the Crown suggests, certainly relevant to a proper assessment of whether the offences, or any of them, should have been treated as “worst category”. However, they are not the only considerations. As against them, the applicant was entitled to some recognition of his youth and his prior almost clear criminal record, as well as the mostly positive assessments of his prospects of rehabilitation. The offence was quite spontaneous, showing no sign of premeditation or planning. The applicant voluntarily handed himself in to police almost immediately after the commission of the offence. Notwithstanding these considerations, it may be, as the Crown submitted, that it would have been open to the sentencing judge to find that the offence against Mr Gresham was a “worst case” or close to it. But his Honour did not make such a finding, and such a finding was not inevitable, in the light of the subjective features I have mentioned. In the absence of an express finding that the offence ought to be treated as in the worst category of offences of its kind, I do not think it was open to his Honour to commence with a sentence as close to the statutory maximum as he did.

33 In my opinion, on this basis, the applicant has made good this aspect of this ground of appeal.

34 Counsel also pointed to the circumstance that all offences could have been dealt with summarily. I do not think that this is, in this case, a relevant consideration, or at least one of any real weight. Even though offences against s35(1)(a) and s59(1) of the Crimes Act can, when appropriate, be disposed of in a Local Court, the offences here before the court were not such as to be appropriately prosecuted in that court.

35 It may be that it was because of the s33 offence, with which the Crown did not proceed, that all charges were brought in the District Court; nevertheless, in my view, even excluding the s33 charge, the offences were of such gravity that it was appropriate that they be prosecuted in the District Court.

36 Counsel also identified a number of other cases brought under s35(1)(a), all of which resulted in sentences much more lenient than the aggregate imposed here, or the sentence imposed in respect of Count 2. I have not found these references to be very useful. There is insufficient information as to the overall circumstances. Indeed, the Crown helpfully expanded the information concerning those cases. Even so, while comparable cases may frequently be useful, in my opinion these are of limited assistance. Among other things, the applicant cannot avoid the circumstance that he stood to be sentenced for three offences.

Ground 2: accumulation

37 The second ground of the application is that his Honour was in error in accumulating the sentence in relation to Count 2 on the other sentences. It is well established that questions of accumulation are, subject to the application of established principle, discretionary. What is important is that, firstly, an appropriate sentence is imposed in respect of each offence; and, secondly, that the total sentence imposed properly reflects the totality of the criminality.

38 In my opinion, it was not only well open to his Honour to accumulate one sentence upon the other two; I doubt that would have been correct not to do so. There were, in fact, three separate offences committed, even though all were committed as part of the same event. In this context the Crown appropriately reminded the Court of the purposes of sentencing set out in s3A of the Sentencing Procedure Act. The first purpose so specified is ensuring adequate punishment for crime; others here relevant include crime prevention by deterrence, denunciation, making an offender accountable, and recognition of the harm done to the victim and the community. To fail to accumulate, at least partially, may well be seen as a failure to acknowledge the harm done to those individual victims. I would reject this ground of the application.

conclusion

39 I have reached the view, which I have expressed above, that the sentence imposed in respect of Count 2, and the overall sentence, was manifestly excessive having regard to the maximum available in respect of that Count. That means that this Court should proceed to re-sentence. The Court received additional affidavit evidence for this purpose. The applicant deposed that he accepted full responsibility for his crimes, was very sorry for the suffering he had caused, and that he found being in gaol very difficult and frightening. He is taking positive steps towards rehabilitation, engaged in group therapy sessions concerning drug and alcohol awareness, is seeking to deal with his ADHD and is about to participate in a group therapy experiment for people suffering from that disorder. He expressed appreciation of the continuing support he receives from his family. His father also affirmed an affidavit and attested to the positive steps towards rehabilitation. This evidence is encouraging but is little more than confirmatory of the evidence that was before the sentencing judge. I would take it into account as confirmation that the applicant has a real prospect of leading a law-abiding life on his release from prison.

40 I propose that leave to appeal be granted, that the sentence imposed in respect of Count 2 be set aside, and that, in lieu thereof, the applicant be sentenced to a non-parole period of two years, commencing on 5 August 2005, with a balance of term of two years.

41 I would not interfere with the remaining sentences. The overall effect of the sentences I propose is a head sentence of five years, with a non-parole period of three years.

42 The orders I propose are:

(i) leave to appeal against sentences granted;

(ii) appeals against sentences imposed in respect of Counts 3 and 4 dismissed;

(iii) appeal against sentence imposed in respect of Count 2 allowed, sentence quashed;

(iv) in lieu thereof the applicant be sentenced to imprisonment for two years, commencing on 5 August 2005, with a balance of term of two years, expiring on 4 August 2009. The applicant would be eligible for release on parole on 4 August 2007.

43 BARR J: I have had the advantage of reading in draft the judgment of Simpson J. I agree with her Honour’s judgment upon the second ground of appeal. I would grant leave to appeal but would dismiss the appeal.

44 I do not think it necessary to consider whether the offence constituted by the attack on Mr Gresham fell into the worst category of cases. His Honour was obliged, as well as imposing for each offence a sentence appropriate to that offence, to devise a total effective sentence which contemplated the totality of the applicant’s criminality.

45 The applicant’s criminality was substantial. He agreed when invited to involve himself in an argument which had nothing to do with him. Unprovoked, he joined company with two others and toured the district until he and his companions came across the people they were looking for. The applicant was armed with a large, pointed, sharp knife. His reason for possessing the knife in the first place was satisfactorily explained, and the sentencing judge was satisfied that he was not carrying it with him to attack anybody. However, when he got out of the car with his companions he could have had no lawful reason for taking the knife with him. So armed, and in the company of others, he confronted those he had been looking for. They were unarmed. He or his companion instigated the fight that followed. He attacked the three complainants and injured them all. Mr Zenthon got away with superficial injuries. Mr Keegan received cuts to the arm and the leg. He had to be taken to hospital, where his wounds were sutured. The onset of an infection delayed the healing process. There was resulting nerve damage. The abdominal injuries to Mr Gresham were quite serious. The knife cut open his abdomen and penetrated his stomach and lungs. His wounds were attended to in hospital and fortunately there were no complications. His was discharged after a week and was followed up as an outpatient. He suffered economic loss.

46 The applicant had to be disarmed to bring the fight to an end. Although there was no long or detailed planning, there was nothing spontaneous about the attack. Even though he did not at first intend to use the knife, he must have known as he searched for the complainants that there was going to be a fight.

47 This sustained attack with the use of a knife called for a generally deterrent sentence of the order of that which his Honour imposed. If it was appropriate to impose a lesser sentence for the attack on Mr Gresham it was also appropriate to increase the degree of accumulation of that sentence upon the others. In my opinion no lesser total effective sentence is warranted than that imposed by his Honour.

48 LATHAM J: I agree with Simpson J.

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28/06/2005 - Error in original judgment - Paragraph(s) 42