Regina v Danuca

[2005] NSWCCA 45

CITATION:	Regina v Danuca [2005] NSWCCA 45
HEARING DATE(S):	17/2/05
JUDGMENT DATE:	7 March 2005
JUDGMENT OF:	Grove J at 1; Bell J at 3; Buddin J at 66
DECISION:	1. Grant leave to appeal; 2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced as follows; On count one (taking into account the four matters on the Form 1) to a term of imprisonment for six years' to commence on 31 May 2002 and to expire on 30 May 2008. Specify a non-parole period of three years and six months. The non-parole period will expire on 30 November 2005; On counts two, three, four, five and six (including the four matters on the Form 1 with respect to count five) concurrent terms of five years' imprisonment to date from 31 May 2002 and to expire on 30 May 2007. Specify a non-parole period of three years in each case to expire on 30 May 2005; On count seven (taking into account the three matters on the Form 1) a term of seven years' imprisonment to date from 31 May 2003 and to expire on 30 May 2010. Specify a non-parole period of four years and six months. The non-parole period will expire on 30 November 2007.

LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CASES CITED:	R v Bala [2004] NSWCCA 345 R v Engert (1995) 84 A Crim R 67 R v Ponfield (1999) 48 NSWLR 327 R v Simpson [2001] 52 NSWLR 704 R v Wright (1997) 93 A Crim R 48
PARTIES:	Regina Dino Danuca (Applicant)
FILE NUMBER(S):	CCA 2004/2393
COUNSEL:	T.S. Girdham (Crown) P. Boulton SC (Applicant)
SOLICITORS:	S Kavanagh The Law Practice (Applicant)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0333
LOWER COURT JUDICIAL OFFICER:	O'Reilly DCJ

2004/2393

GROVE J
BELL J
BUDDIN J

Monday 7 March 2005

Regina v Dino Danuca

Judgment

1 GROVE J: I have had the advantage of reading, in draft form, the judgment of Bell J. I agree with the orders which she proposes and with her reasons.

2 As her Honour has observed, the overall practical effect of the sentences imposed by O’Reilly DCJ was a term of eight years imprisonment with a non parole period of six years and six months. The proportion between those specified terms clearly did not give effect to his Honour’s finding of special circumstances and consequent intention to depart (in the appellant’s favour) from the formula prescribed in the relevant statute. I wish to stress that my concurrence in the proposed resentence is based upon findings which are coordinate with those of O’Reilly DCJ but implement his plain intention concerning proportion between total sentence and non parole period, an intention which it is appropriate for this Court to carry into effect.

3 BELL J: Dino Danuca applies for leave to appeal against the severity of sentences imposed on him by his Honour, Judge O’Reilly QC (the Judge), in the Sydney District Court on 19 December 2003.

4 The applicant pleaded guilty on 15 August 2003 to seven counts of breaking, entering and stealing, each charged pursuant to s 112(1) of the Crimes Act 1900. The applicant asked that a further eleven offences detailed in three Form 1 documents be taken into account in the sentences imposed for the offences in counts one, five and seven respectively, pursuant to the provisions of s 32 of the Crimes (Sentencing Procedure) Act 1999.

5 The maximum sentence for an offence under s 112(1) is fourteen years’ imprisonment.

6 The Judge sentenced the applicant to sentences that in the aggregate amounted to eight years’ imprisonment with an effective non-parole period of six years and six months. The sentences were as follows:

Count one – (taking into account two offences of receiving, one offence of breaking, entering and stealing goods in excess of $15,000 and one count of goods in custody - eight years imprisonment to date from 31 May 2002. Non-parole period of five years and six months. The non-parole period will expire on 30 November 2007.
Counts two to six – including with respect to count five taking into account two offences of receiving and two offences of goods in custody – concurrent fixed term sentences of five years imprisonment to date from 31 May 2002.
Count seven – taking into account two offences of receiving and one of goods in custody – a fixed term of six years and six months imprisonment.

7 His Honour declined to fix a non-parole period with respect to the sentence imposed on count seven because it was his intention to make a period of twelve months cumulative on the sentence imposed in respect of count one.

8 The applicant was sentenced with his brother, Nexhmedin Bala. Bala was charged with a number of counts of receiving stolen property. The property the subject of those charges was that stolen in the break and enter offences committed by the applicant.

9 The facts upon which the applicant was sentenced were not in issue. The arrest of the applicant and his brother was the result of a police operation that targeted break and enter offences committed on residential premises in affluent suburbs of Sydney in which portable safes had been stolen. The applicant and his brother were arrested on 26 April 2002. On the day of their arrest, the applicant was seen to remove a safe from the boot of his vehicle and carry it into the garage. He later carried the safe back to the car and drove off. He was apprehended and the vehicle was searched. He told the police that the safe was his and gave an account that he had to force it open because he had lost the key to it. In fact the safe had been stolen from premises in Putney Road, Putney a matter of hours earlier that day.

10 The break and enter of the Putney Road premises was count one on the indictment. Entry had been gained to the premises by scaling the rear veranda onto a balcony and by forcing a first floor window. The safe had been removed from the wardrobe in the master bedroom. It contained jewellery and other personal items valued at approximately $10,000. Among the personal items stolen was a video recording of the funeral of the victim’s late husband.

11 Count two charged an offence of breaking, entering and stealing from premises in Drumalbyn Road, Bellevue Hill. This offence occurred on 22 April 2002. Entry was gained to these premises by scaling a wall giving access to the rear yard. A sliding door leading to the kitchen had been forced. The alarm had been tampered with. A safe had been removed from the wardrobe in the master bedroom. It contained cash and jewellery valued at $65,000.

12 Count three charged an offence of breaking, entering and stealing from premises in Cleveland Street, Wahroonga. This offence occurred between 20 and 21 April 2002. Entry was gained by using a ladder to climb onto the roof and then by forcing a top floor window that gave access to the master bedroom. A safe containing jewellery valued at $10,000 was removed from the wardrobe in the master bedroom. The safe was dropped to the ground from the top floor causing damage to a set of sandstone steps.

13 Count four charged an offence of breaking, entering and stealing from premises in Carlotta Road, Double Bay. This offence occurred on 11 April 2002. Entry was gained by forcing the first floor balcony doors. An attempt was made to remove a safe from the wall of a walk-in wardrobe. The attempt was unsuccessful and caused damage to the wall. Jewellery valued at $30,000 was stolen from the premises. A set of sliding doors on the ground floor was forced in the course of leaving the premises.

14 Count five charged an offence of breaking, entering and stealing from premises in Lancaster Road, Dover Heights. This offence occurred on 8 December 2001. Entry was gained by climbing onto an awning and then by forcing a first floor window that gave access to a spare bedroom. A safe was removed from the master bedroom. The safe contained jewellery valued in excess of $50,000.

15 Count six charged an offence of breaking, entering and stealing from premises in Ocean Ave, Double Bay. This offence occurred on 15 September 2001. Entry was gained by scaling a lattice partition and climbing through the master bedroom window on the third storey. A safe was removed from the wardrobe of the master bedroom, which contained cash and jewellery valued at $19,340. The rear door was forced in the course of leaving the premises.

16 Count seven charged an offence of breaking, entering and stealing from premises in Bulkara Road, Bellevue Hill. This offence was committed between 14 and 16 August 2001. Entry was gained by climbing to the first floor balcony and forcing a door that gave access to the master bedroom. A safe was removed from the master bedroom. The tools used to remove it were left at the scene. The safe contained a large amount of cash and jewellery valued in excess of $600,000.

17 In relation to the offence charged in count one, the Judge took into account two offences of receiving stolen goods committed in the period between 13 and 27 April 2002. Each offence related to the receipt of a laptop computer. A further offence on this Form 1 was the breaking, entering and stealing from premises in Coolong Road, Vaucluse. This offence occurred on 25 March 2002. Entry was obtained by climbing a balcony and smashing a window on the third floor. Blood consistent with being that of the applicant was found on tiles in the master bedroom. A metal safe deposit box was removed from the study adjacent to the master bedroom. Four Cartier brand watches, a gold Rolex watch and a number of diamond rings and other jewellery were stolen. The total value of the property stolen was about $80,000. The fourth offence on the Form 1 was a charge of goods in custody relating to a Sony digital camera, a Raymond Weil watch, an ivory pendant and a Canon Powershot video camera which were in the applicant’s possession on the day of his arrest.

18 In relation to the offence charged in count five, the applicant asked the Judge to take into account two offences of receiving stolen goods that were committed between 29 September 2001 and 27 April 2002. Each of these offences related to the receipt of laptop computers. Two charges of goods in custody were also taken into account on this Form 1. One charge related to a Tag Heuer watch that the applicant was wearing at the time of his arrest. The other charge related to what is described on the Form 1 as “various items” which were in the applicant’s possession at the time of his arrest. The statement of facts detailed the property the subject of this charge. It includes a very large number of watches and other items of jewellery, which the police were not able to trace.

19 The applicant asked the Judge to take into account three offences in dealing with him for the breaking, entering and stealing offence charged in count seven. These comprised two charges of receiving stolen goods that were committed between mid-May 2000 and 27 April 2002. One charge related to a Bang & Olfusen stereo system and the other to some Hong Kong currency.

20 The value of the property stolen in the seven offences to which the applicant pleaded guilty was approximately $781,640. The offences were committed over a period of eight months.

21 A search of the applicant’s premises following his arrest revealed the presence of what the Judge described as “specialist break and enter tools” and walkie-talkie equipment. There was, in addition, a very large amount of property that was traced to the offences the subject of counts one to seven on the indictment, and the matters the subject of the Form 1 counts.

22 The police located a list of thirty-seven addresses on the hard drive of the applicant’s personal computer. The list contained details of security and/or property information about the premises. Inquiries revealed that the applicant had obtained information used to compile the list from an employee of NRMA Insurance named Berisha. Mr Berisha was a policy sales representative. He accessed confidential information relating to the security systems and/or valuables located at premises insured by the NRMA and passed this information onto the applicant.

23 Berisha appeared before Shillington DCJ on 7 February 2002. He pleaded guilty to a charge that between 1 and 27 April 2002 he gave access to confidential client data in an attempt to facilitate the commission of a serious indictable offence, namely, breaking, entering and stealing, by the applicant. He was sentenced to a term of two years’ imprisonment. A non-parole period of six months was specified. Shillington DCJ took into account Berisha’s assistance to the authorities, including his willingness to give evidence against the principal offenders.

24 Nexhmedin Bala was charged with five counts of receiving stolen property and one count of being an accessory after the fact to breaking, entering and stealing. He was sentenced to concurrent terms of two years’ imprisonment with a non-parole period of fifteen months. He successfully appealed against the severity of this sentence: R vBala [2004] NSWCCA 345. The sentences imposed by the Judge were quashed and in lieu thereof he was sentenced to imprisonment for eighteen months’ with a non-parole period of ten months.

25 In addition to a detailed statement of facts, the Crown brief of evidence was tendered without objection at the sentence hearing. This included the statement of Senior Constable Sedgwick detailing his inquiring concerning the applicant’s international criminal history. He received documents apparently written in the German language from Interpol. He arranged to have these translated. A number of documents annexed to Senior Constable Sedgwick’s statement, including documents that appear to be from the Berne, Switzerland Interpol office, detail in short form convictions recorded against the applicant in Switzerland, under the name Izedin Bala for various offences, including theft, in the period between July 1991 and February 1997.

26 A report prepared by Ms Megan McDonald, a psychologist, dated 10 November 2003 was tendered on the applicant’s behalf. It was admitted over objection. The applicant’s brother, Zabri Bala, gave evidence, as did the applicant’s wife, Azra Bala. Also in evidence in the applicant’s case was a document signed by Nazife Jonuzi, the coordinator of the Association for Women in Liria, which gave a brief account of Serbian aggression against the Albanian population in Kosovo in 1998 and 1999. Medical records maintained by the Corrections Health Service were tendered in the applicant’s case, as were certificates attesting to courses that he had undertaken while in custody. There was also a report from the Mount Druitt Hospital Emergency Department relating to the injuries sustained by the applicant as the result of an assault upon him while he was in custody on or about 21 August 2003.

27 The applicant was aged thirty-four years at the date of sentence. He was a married man living with his wife and two sons and a number of members of his extended family. He had been born and raised in Pristina, Kosovo. He and his family are ethnic Albanian Muslims. The applicant was one of eight children. The family was well respected in Pristina. His father was a medical practitioner. The applicant had completed an apprenticeship as a mechanic while still living in Kosovo.

28 Megan McDonald recorded the family history in her report. The applicant said that he left Kosovo and travelled to Switzerland in 1990 in order to avoid National Service because, “Kosovars were being recruited into Serbian territory where they were killed”. It was his account that the Swiss Government, while rejecting his application for permanent residency, had permitted him to stay in Switzerland for three years until it had been deemed safe enough for him to return to Kosovo. On his return he said that he had become a politically active member of the Kosovo Liberation Army until 1997 when he had been arrested, detained and tortured by the Federal Police. His father had secured his release and he had gone into hiding for a few months before fleeing to Australia. He arrived in Australia in April 1997. When war broke out in Kosovo in 1999 he returned to Kosovo to find his family, who were then living in refugee camps on the Kosovo/Macedonian border.

29 Ms McDonald recorded that the applicant had been unable to contact his family from Australia because he had feared reprisals by the Serbian police on them. She reported various difficulties that the applicant and his wife had encountered in settling in Australia and obtaining employment. This process had been impeded by the applicant’s return to Kosovo to locate his family. The applicant’s mother died as the result of an illness to which she succumbed while in a refugee camp. He had been greatly distressed by her death and, more generally, by the reports of the ill treatment to which ethnic Albanian Kosovars were subject.

30 The applicant arranged visas to bring his brothers Nexhmedin and Zabri Bala and their families to Australia. On their arrival he and his wife shared their accommodation with them. In all there were eleven adults and children living in the applicant’s flat. Neither of his brothers spoke English and they had been unable to find work. The applicant had worked and done what he could to assist his extended family. His infant son had undergone major bowel surgery and subsequently required a colostomy.

31 The report of Ms Jonuzi confirmed details of the applicant’s return to Kosovo and his search for his family in July 1999.

32 The applicant’s brother, Zabri Bala, confirmed the accuracy of much of the family history given by the applicant to Megan McDonald. He gave evidence of the difficulties to which ethnic Albanians living in Kosovo had been subject after Mr Milosovic became the President of Serbia. The Bala family had been harshly treated during the 1990s and finally they had lost their home and been transported to a refugee camp during the 1999 war.

33 Ms McDonald reported that the applicant had said that from about June 2001 he had been unable to get a job and that he had become distressed and overwhelmed by his family responsibilities. He had been introduced to gambling after falling in with some older, criminal types in the local Albanian community and that his early wins had left him feeling elated and convinced that gambling was the way to make the big money that he needed. He had soon begun to lose heavily. It was at this time that he had been introduced to cocaine. His gambling and drug debts had mounted and got out of control and he had become involved with Albanian associates in criminal activities as a quick way to make money to pay his debts and to support his cocaine habit. He described the latter as having escalated to 4 – 5 grams per day at a cost of approximately $250 per gram. Ms McDonald opined that the following factors may have contributed to the applicant’s criminal behaviour:

“(i) his Substance Use Disorder.
(ii) his ? Bipolar Disorder.
(iii) his Posttraumatic Stress Disorder: i.e. the gross traumatic impact of living under a brutal communist regime, of torture while detained by the secret police, of witnessing his family suffering ‘ethnic cleansing’ at the hands of the Serbian government, as well as the deaths and disappearances of family and friends, and the early death of his mother as a result of exposure to the elements in the Kosovo – Macedonia border camp in 1999.
(iv) his particular susceptibility to influence, particularly to older, more powerful members of his own community
…
(v) his inability to achieve a positive adjustment to a democratic country and welfare-oriented system
…
(vi) an internal moral code distorted by decades of deculturation, and the exigencies of survival under a brutal dictatorship.”

34 Ms McDonald expressed the following opinion:

“It is highly probable that Mr Danuca arrived in Pristina on July 24th, 1999 in some kind of traumatised, hypomanic state (given his sudden flight, and in the light of Dr Tahiri’s medical report documenting the fact that he treated him for depression in addition to his throat complaint on the same day as his arrival). His subsequent out-of-control behaviours upon his return to Australia following his mother’s death (which commenced with binge gambling and cocaine use, and ended in the commission of serious crimes), are more characteristic of the cyclical depression, hypomania, self-medicating impulses, and loss of reality-testing functions of persons in the manic phase of bipolar disorder, than of a person suffering from Posttraumatic Stress Disorder as a primary diagnosis .”

35 Ms McDonald carried out a number of psychometric tests on the applicant, including the post-traumatic stress diagnostic scale, the depression anxiety stress scale and the Beck depression inventory. She reported the results of these as follows: the post-traumatic stress diagnostic scale showed the applicant to meet the essential criteria for a diagnosis of post-traumatic stress disorder as defined by the DSM – IV. The depression anxiety stress scale produced a depression subscale score within the extremely severe range. The applicant’s total score on the Beck depression inventory placed him within the severely depressed range.

36 Ms McDonald concluded that the applicant may be suffering from an as yet undiagnosed bipolar disorder, that he fulfilled the essential clinical criteria for a diagnosis of post-traumatic stress disorder and that he was at the date of her interview manifesting symptoms of a severe clinical depression. In the concluding portion of her report Ms McDonald said this:

“Given Mr Danuca’s repeated expressions of remorse for his criminal behaviour and his imprisonment upon his wife and young family, as well as his frank admission about his susceptibility to cocaine use upon his release, it seems highly unlikely that he will re-offend unless there is a recurrence of the specific historical, psychosocial and psychological conditions that appear to have collectively contributed to his explosive episode of criminal behaviour in 2001.
To reverse these conditions, Mr Danuca will need to properly address his psychological problems by obtaining appropriate psychiatric treatment as part of a long-term, possibly lifelong, pharmacotherapy program. I am therefore recommending that he seeks:
(i) a psychiatric assessment and formal diagnosis of his mental illness
(ii) a cognitive assessment to determine the impact of his recent physical assault and head injury upon his cognitive/memory functioning
(iii) counselling/psychotherapy to assist him with addressing significant unresolved posttraumatic stress and depression and with his vulnerability to self-medication via narcotics abuse (I am specifically recommending assistance from STARTTS [NSW Treatment and Rehabilitation of Torture and Trauma Survivors], who may have professional input into a gaol programme).”

37 Megan McDonald’s report makes no reference to the applicant’s convictions for criminal offences in Switzerland prior to the traumatic events of 1999.

38 Zabri Bala was unaware that the applicant had committed any offences while in Switzerland. He was unaware that the applicant had either a problem with the use of cocaine or with gambling.

39 The applicant’s wife gave evidence that they had married in September 1995 in Kosovo. She said that in the year or two years prior to her husband’s arrest the marriage had not been good because the applicant had been gambling. When asked how she knew of his gambling she responded, “Because I took him to the casino a couple of times” (T 17/12/03 at 20.14). She described her husband as being absent from the home frequently.

40 Mrs Bala had not noticed any signs that her husband was using drugs. He had appeared to be depressed and it was difficult for her to tell whether he was suffering from depression or whether there was another explanation. She described him as having difficulty sleeping, being uncommunicative and going out of the house very often. He had brought items of value home telling her that he had got them through gambling. Mrs Bala had become suspicious about the quantity of property that her husband was bringing home. The Judge expressed some reservations about Mrs Bala’s evidence, taking into account that at the time when police searched the family home she had wrongly told the police that a jewellery case containing jewellery belonged to her. The jewellery had in fact been stolen from the premises at Putney Road, Putney a matter of hours earlier.

41 The Corrections Health Service clinical notes included a history that the applicant had been tortured as a political dissident in Kosovo in 1995. He had given an account that he had gone “crazy” and been placed in a hospital for three months. During this time he said he had not recognised even his parents. He said he had been on anti-depressant medication for a long time, but he did not recall the name of it. He reported no periods of depression since his arrival in 1997 in Australia. He reported nil drug use. His present symptoms were noted as some paranoid sensitivity due to a bashing received when he was being stood over for money. This had raised his feelings of insecurity. He was hyper-vigilant and his sleep was very poor.

42 The material tendered on the applicant’s behalf included a translation of a document, a form of medical certificate, that refers to an attendance on 6 February 1989 by the applicant at the Neuro Psychiatric Clinic attached to the Faculty of Medicine at an unnamed overseas facility. The significance of it is not entirely clear, beyond that it was some evidence that the applicant had been treated for a psychiatric condition in 1989.

43 The applicant did not give evidence at the sentence hearing.

44 His Honour took into account that the applicant had been placed on protection following a significant assault while in custody. He observed that it was not known how long the applicant would remain in conditions of protection.

45 The Judge was satisfied that the applicant had been in conflict with the criminal law in Switzerland in the period 1992 to 1997. His Honour referred to the evidence given by the applicant’s brother and wife. He accepted in broad outline the evidence relating to the traumatic events to which the Bala family had been subject in Kosovo. He found that there was no doubt that the applicant had suffered considerably by reason of events in Kosovo in the 1990s. His Honour accepted that, as a matter of common sense, the applicant must have suffered some psychological scarring as the result of these events. He found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 taking into account his acceptance of the psychological scarring. His Honour considered that the adjustment to be made in the proportion between the non-parole period and the head sentence should not be very great. In the event, in the way the sentences were structured, the applicant’s non-parole period represents in excess of eighty-two percent of the overall sentence. This is the subject of a ground of appeal to which it will be necessary to return.

46 The Judge allowed a discount of twenty percent to reflect the utilitarian value of the applicant’s pleas of guilty.

Ground one – His Honour erred by giving inadequate weight to the applicant’s subjective circumstances

Ground two – His Honour erred by totalling rejecting the opinions of Megan McDonald, psychologist and by giving inadequate weight to the appellant’s troubled psychological state

47 It is convenient to deal with these two grounds together. The focus of submissions was on the Judge’s treatment of the report of Ms McDonald.

48 At the sentence hearing on 17 December 2003 the Crown objected to the tender of Ms McDonald’s report on two bases. It had not been served in advance of the hearing and it contained opinions that were not based on Ms McDonald’s specialised knowledge. The Judge received the report in order to rule on it. After a short adjournment he heard further submissions on the Crown’s objection. In the course of submissions on this issue his Honour observed, “I reject anything the psychologist says about bipolar because he (sic) isn’t qualified to talk about it”. In light of this indication, the Crown withdrew its objection and the report was admitted.

49 The Judge said this concerning Ms McDonald’s report:

“I have had some degree of experience in personal injury work including psychiatry and psychology over the last 50 years. Having done the best I can with Megan McDonald’s report, I have to say I am just not prepared to act on it at all. It does not impress me as a careful balanced assessment by a health professional, but of course, that does not exclude some of the matters of history that she took. I have got no doubt whatever that these prisoners suffered considerably by reason of events in Kosovo in the nineties. “

50 His Honour commented on the Corrections Health Service clinical notes, noting that the history given on that occasion was inconsistent with the history of drug use given to Ms McDonald.

51 Counsel complained that the Judge had entirely rejected Ms McDonald’s psychological report. In his submission it was an error to do so. Ms McDonald’s qualifications were not in question. She holds a first class honours degree in psychology from Sydney University and a Masters’ Degree in clinical psychological from Macquarie University. She has worked as a clinical psychologist since 1986 and conducts a private practice specialising in the assessment and treatment of post-traumatic stress disorder. She has accreditation as a counsellor/authorised report writer with the Victims’ Compensation Tribunal and is an accredited counsellor for the Department of Veterans’ Affairs. Counsel accepted that Ms McDonald does not hold medical qualifications and, accordingly, that it had been open to his Honour to reject that part of her report in which she expressed an opinion as to the likelihood of the applicant suffering from bipolar disorder. In his submission, rejecting that part of the report “left open a great deal of scope to consider the merits of the rest of the report” (AWS at [22]).

52 To the extent that Ms McDonald expressed an opinion concerning the reason for what she described as the applicant’s “out-of-control behaviours”, it depended on her view of the likelihood that the applicant was in the manic phase of bipolar disorder and was a history that did not include his criminal offending in Switzerland prior to the war in Kosovo in 1999. Important to the formation of Ms McDonald’s opinion was the history of the applicant’s addiction to cocaine. This history was inconsistent with the history he had given to the Corrections Health Service. It did not sit with the evidence of his brother or wife. The Judge rejected it.

53 When one turns to Ms McDonald’s opinion as to the factors that may have contributed to the applicant’s criminal behaviours, the first is “substance use disorder”, which falls away with the rejection of the history, and the second is the suggestion of bipolar disorder. The balance is set out at [31] above. I consider it was open to the Judge make the finding I have extracted from his reasons at [47] above.

54 The complaint that counsel developed centred on the Judge’s failure to take into account the results of the psychometric testing together with Ms McDonald’s opinion that the applicant would need to address his psychological problems by appropriate psychiatric treatment as part of a long-term, possibly lifelong, pharmacotherapy program.

55 No evidence was led in the applicant’s case from a medical practitioner to establish that the applicant was suffering from any particular mental condition or disorder, nor to explain the relevance of any such condition or disorder to the commission of the offences or to the applicant’s prospects of rehabilitation.

56 There was no material to establish that the applicant’s mental condition was such as to make him an inappropriate vehicle for general deterrence or to suggest that he did not act with knowledge of the gravity of his actions: R v Engert (1995) 84 A Crim R 67; R v Wright (1997) 93 A Crim R 48. To the contrary was the finding that the applicant was a fulltime professional thief who had formed an association with an NRMA employee in order to obtain confidential computer database information and who had targeted affluent households with the benefit of that information. This finding was well open to the Judge. It has not been challenged.

57 The Judge’s finding that the applicant was psychologically scarred was relevant to his determination that there existed special circumstances justifying a departure from the statutory proportion between the non-parole period and the head sentence. In this respect his Honour appears to have accepted that the applicant would benefit from a longer period of supervision than the application of the statutory proportion would allow. This finding was tempered by his Honour’s view that the departure from the statutory proportion could not be great, taking into account the objective seriousness of the course of criminal offending.

58 I am not persuaded that his Honour’s discretion miscarried in the approach that he adopted to the McDonald report, nor do I consider that his Honour has been shown to give inadequate weight to the applicant’s subjective circumstances. I would reject grounds one and two.

Ground three – His Honour erred by failing to set a non-parole period on count seven

Ground four – His Honour erred by setting a total effective non-parole period of six years, six months after having found that there were special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act

Ground five – The sentences are, in all the circumstances, manifestly excessive

59 It is clear that his Honour intended that there be a modest reduction (below seventy-five percent) in the proportion between the non-parole period and the sentence and that this intention was not carried through in the way that the sentences were structured. The Crown submitted that notwithstanding any error in this respect the Court would not intervene pursuant to s 6(3) of the Criminal Appeal Act 1912 since no lesser sentence is warranted in law. In the Crown’s submission the non-parole period itself must appropriately reflect the criminality involved in the offending: R v Simpson [2001] 52 NSWLR 704.

60 The Crown did not contend that his Honour had been wrong to conclude that there were special circumstances for the purposes of s 44(2) of the Sentencing Procedure Act. In light of that acceptance, I am not persuaded that it would be appropriate for this Court to decline to intervene.

61 In re-sentencing the applicant the Court must have regard to the purposes of sentencing that are enunciated in s 3A of the Crimes (Sentencing Procedure) Act.

62 It is necessary to take into account the aggravating factors referred to in

s 21A(2) that are relevant and known to the Court, together with the mitigating factors referred to in s 21A(3) that are relevant and known to the Court, as well as any other objective or subjective factor that affects the relative seriousness of the offence. In these respects I take into account as an aggravating factor that the offences were part of a planned criminal activity. A mitigating factor is the applicant’s plea of guilty. I would allow a discount of twenty percent on account of the utilitarian value of the pleas. It is difficult to assess the applicant’s prospects of rehabilitation and the associated likelihood of him re-offending. I consider that the impact of traumatic events in Kosovo, both on the applicant directly and indirectly by reason of the adverse effect on his family, is likely to have occasioned psychological injury to him and I accept the Judge’s finding that special circumstances justify a departure from the statutory proportion between the head sentence and the non-parole period. This will permit the applicant to receive such psychiatric or other counselling as may be recommended upon his release to parole.

63 I note the evidence of the assault upon the applicant while in custody and that as at the date of sentence he was classified as a protection prisoner.

64 This was a series of sophisticated offences and the objective seriousness of the course of offending is high. A number of the aggravating features to which reference was made in the guideline judgment in R v Ponfield (1999) 48 NSWLR 327 are present in this case. The departure from the statutory proportion between the non-parole period and the aggregate sentence cannot be great since it is necessary that the non-parole period reflect the objective criminality of the offences. I would sentence the applicant to terms that, in the aggregate, amount to eight years’ imprisonment with an effective non-parole period of five years and six months.

65 For these reasons the orders that I propose are as follows:

1. Grant leave to appeal;

2. Allow the appeal and quash the sentences imposed in the District Court. In lieu thereof the applicant is sentenced as follows:
On count one (taking into account the four matters on the Form 1) to a term of imprisonment for six years’ to commence on 31 May 2002 and to expire on 30 May 2008. Specify a non-parole period of three years and six months. The non-parole period will expire on 30 November 2005.
On counts two, three, four, five and six (including the four matters on the Form 1 with respect to count five) concurrent terms of five years’ imprisonment to date from 31 May 2002 and to expire on 30 May 2007. Specify a non-parole period of three years in each case to expire on 30 May 2005.
On count seven (taking into account the three matters on the Form 1) a term of seven years’ imprisonment to date from 31 May 2003 and to expire on 30 May 2010. Specify a non-parole period of four years and six months. The non-parole period will expire on 30 November 2007.

66 BUDDIN J: I agree with Bell J. I also agree with the additional observations of Grove J.

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