Regina v Ellis; Regina v Carr

[2002] NSWCCA 211

CITATION:	Regina v Ellis; Regina v Carr [2002] NSWCCA 211
FILE NUMBER(S):	CCA 60491/01 and 60539/01
HEARING DATE(S):	17/05/02
JUDGMENT DATE:	17 May 2002
PARTIES :	Regina v Mark Richard Ellis; Regina v Aaron James Carr
JUDGMENT OF:	Hidden J at 1,59; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/31/0099
LOWER COURT JUDICIAL OFFICER :	Cooper DCJ

COUNSEL :	(A) H L A Cox (Ellis) N Mikhaiel (Carr) (C) L M B Lamprati
SOLICITORS:	(A) D J Humphreys (Ellis) Jack Rigg (Carr) (C) S E O'Connor
CATCHWORDS:	Sentencing - Relevance of sentences passed on juvenile co-offenders
LEGISLATION CITED:	Nil
CASES CITED:	R v Colgan (1999) NSWCCA 292 R v Govinden (1999) 106 A Crim R 314 R v Boney [2001] NSWCCA 432 R v Thompson, R v Houlton [2000] 49 NSWLR 383
DECISION:	See para 58

IN THE COURT OF
CRIMINAL APPEAL

HIDDEN J

SMART AJ

Friday 17 May 2002

REGINA v MARK RICHARD ELLIS

REGINA v AARON JAMES CARR

JUDGMENT

1. HIDDEN J: I will ask Smart AJ to deliver the first judgment.

2. SMART AJ: Mark Richard Ellis and Aaron James Carr each seek leave to appeal against the severity of the sentences imposed on them in the District Court on 25 July 2001.

3. Mr Ellis was sentenced to imprisonment for four years with a non parole period of two years and three months on a charge of robbery using corporal violence and a concurrent sentence of a fixed term of six months for receiving. This related to a watch taken in the robbery. Mr Ellis was born on 3 June 1980 and was thus aged 20 at the time of the offences.

4. Mr Carr was sentenced to imprisonment for four years with a non parole period of three years on a charge of robbery in company. Mr Carr was born on 9 April 1981 and was thus aged 19 at the time of the offences.

5. Both Messrs Ellis and Carr entered pleas of guilty in the Local Court and were committed for sentence to the District Court.

6. About 2.30am on 18 February 2001 Messrs Ellis and Carr, Justin Bennis and Justin Holmes, were in a car being driven by Lauren Waters from Broadmeadow along Tudor Street, Hamilton. They had been together for some hours. Mark Crowfoot, Steven Telford and Gregory Rumbel (the victims) were walking along Tudor Street, Hamilton towards Beaumont Street, Hamilton. The vehicle containing Messrs Ellis, Carr, Bennis and Holmes stopped near where the victims were walking. Messrs Ellis, Carr, Bennis and Holmes alighted from the car and approached the victims. A knife was produced. On seeing the knife Mr Rumbel ran down a nearby alleyway. Messrs Carr and Bennis chased Mr Rumbel and stopped him. Mr Rumbel was threatened with a knife by one of them and his money was demanded. There is some dispute as to who actually produced the knife, hence the charge of robbery in company. The evidence satisfied the judge beyond reasonable doubt that a knife was produced. Mr Rumbel threw his wallet on to the ground out of fear. The wallet contained $43. The wallet and cash were picked up. Messrs Carr and Bennis returned to the car.

7. Simultaneously, Messrs Ellis and Holmes confronted Messrs Crowfoot and Telford. They punched both victims and threatened that they had a knife but none was produced. Mr Crowfoot stated that someone went through his pockets and pulled his wristwatch from his arm. Mr Telford stated that, after being punched, he heard one of the attackers mention having a knife. Mr Telford surrendered his wallet, fearing that he may be stabbed. $70 was taken from his wallet which was left in the gutter nearby. Both Messrs Crowfoot and Telford had been knocked to the ground. After robbing the three victims Messrs Ellis, Carr, Bennis and Holmes entered the car which was driven away.

8. Mr Telford had facial injuries including a badly bruised eye and Mr Crowfoot had cuts to his right arm and feet. Mr Telford went to hospital and received treatment for his left eye. Mr Crowfoot's glasses were knocked off and broken and he also had a sore face on the right side. He too was treated at hospital. Mr Rumbel was not injured but he was badly shaken up by the incident.

9. The robbery was reported to the police immediately.

10. At 2.50am that morning the vehicle containing the four robbers was stopped in Hunter Street, Newcastle and they were arrested. A knife was found in the vehicle, as well as cash and the wristwatch.

11. In his recorded interview Mr Ellis denied that he was involved in the robbery and said that he remained in the vehicle. He said that he saw the other three males attacking the victims. He was in possession of the watch. Later he changed his story to say that one of the offenders had given him the watch and that the person who gave him the watch told him he had ripped it off the victim's wrist during the robbery. The other evidence, including the statement of the driver of the car, established that Mr Ellis was involved in the robbery with corporal violence. His plea acknowledged that.

12. In his record of interview Mr Carr admitted being in the alleyway with Justin Bennis and that Mr Rumbel was frightened by Mr Bennis to the extent that if he, Mr Rumbel, did not surrender his wallet he would be assaulted. Mr Carr said that he was standing about one and a half metres away. He said that Mr Rumbel threw his wallet on the ground and that Mr Bennis picked it up. Mr Carr agreed that most of the time he was in the alleyway by himself with Mr Rumbel. Mr Carr said that he did not have a knife and he did not see Mr Bennis with one but there was a knife in the car. Mr Carr said that Mr Ellis gave him $20 and told him it had come from the blokes and was the proceeds of stealing. Mr Carr stated to the police that he took no part in taking the money or the wallet off Mr Rumbel. The effect of Mr Carr's interview was to place all the responsibility for the robbery and the taking of Mr Rumbel's wallet and money on Mr Bennis. The story told by Mr Carr in his interview was hard to believe. He later entered a plea of guilty.

13. The judge was satisfied that each of Messrs Ellis and Carr embarked upon a separate course of conduct and that Mr Ellis was not part of the offence committed by Mr Carr and that Mr Carr was not part of the offence committed by Mr Ellis. They were operating at the same time along different portions of a public street, albeit nearby.

14. The judge correctly regarded the offences as serious and commented that the seriousness of the offence was that not merely was it one involving property but involved the threat of injury to people and that people were entitled to walk along the streets without being afraid of being attacked. He stressed the importance of specific and general deterrence.

15. The judge was conscious of the position of the co-offenders. He said:

"The two remaining offenders are juveniles. One of them has been dealt with in the Children's Court, and apparently was placed on probation for 18 months. The other one is yet to be dealt with. I should mention here, that the courts have held, that when dealing with children or young persons in the Children’s Court under the special legislation and procedures in that jurisdiction, different considerations for sentencing apply from those which apply in this court. Accordingly, I do not regard myself as being bound to consider a sentence imposed upon the juvenile as any obligation to take into account questions of parity."

This represented the law as previously understood. However, the principles have now been refined

16. In Colgan (1999) NSWCCA 292 at para 15 Spigelman CJ said:

"In R v Govinden (1999) NSWCCA 118, Dunford J, who delivered the judgment of the Court, referred to the authority in the Court to the effect that parity considerations do not arise, as such, when comparing a person dealt with in the Children's Court and adults. Nevertheless as his Honour indicated at para 376 of that judgment, that does not mean that the sentence imposed on a person in the Children's Court, which would otherwise give rise to issues of parity, is irrelevant. This is so for the reason that an individual sentenced as an adult may very well have a justifiable sense of grievance with respect to that very difference of the regimes."

Newman J agreed.

17. In R v Boney [2001] NSWCCA 432 Wood CJ at CL said at para 14:

"There is no longer an inflexible rule that there is no utility in comparing sentences upon co-offenders who are separately dealt with: one in the Children's Court and the other as an adult. See R v Govinden (1999) 106 A Crim R 314 R v Colgan (1999) NSWCCA 292.

While it is true that there are different sentencing objectives and considerations applicable in the Children's Court, which do limit the worth of any such comparison, it would have been appropriate for his Honour to have paid some regard to that sentence."

In the light of these authorities a somewhat different approach was required of the judge.

18. Justin Gary Holmes was initially charged with three counts of aggravated robbery. Two counts were withdrawn. The third one was amended. He pleaded guilty to the amended count of robbery in company. On 30 May 2001 in Worimi Children's Court, Mr Holmes was placed on an order of probation for 18 months. His criminal history revealed he had no prior convictions but on 11 March 2001 he was charged with assault occasioning actual bodily harm (two counts). This was after the subject offence. However, this later charge was also dealt on 30 May 2001. That charge was dismissed with a caution.

19. Mr Holmes was born on 11 December 1983 and was thus aged 17 and two months at the time of the offence, some three years and six months younger than Mr Ellis.

20. Associate Professor S Hayes, psychologist, stated Mr Ellis was a tall, thin young man who behaved in a manner much younger than his chronological age. He is a late developer with a mild intellectual disability.

21. Justin Maxwell Bennis was dealt with by Worimi Children's Court on 8 August 2001. Initially he was charged with three counts of aggravated robbery. One of these counts was marked "error" on the court list. The remaining two counts were varied to robbery in company. On those two counts he was sentenced to the rising of the court.

22. Mr Bennis had been before the Children's Court and found guilty of offences on many occasions since 5 November 1999 when he was aged 15. There have been many dishonesty offences including offences akin to car theft, serious driving offences and breaking, entering and stealing. It is, on any view, a bad record. He was born on 8 August 1984 and was thus aged 16 years and six months at the time of the offence on 18 February 2001. The details as to Mr Bennis were obviously not before the judge.

23. Mr Ellis first came before the Local Court in October 1998 for driving offences. On 7 March 2000 he was dealt with for some 14 offences. For contravening an apprehended violence order (two counts), posses prohibited drug and use an uninsured motor vehicle he was sentenced to 14 days imprisonment. He was also placed on a good behaviour bond for two years. On 4 July 2000 he was sentenced to concurrent terms of three months imprisonment on each of three charges of break, enter and steal, carried in conveyance and steal motor vehicle. He has nothing approaching the gravity of the subject offences. Mr Ellis was on a bond at the time of the subject offences.

24. The judge dealt at some length with the applicant's subjective features. He did not respond to previous attempts to assist him or to supervision by the Probation and Parole Service.

25. Mr Ellis is the youngest of three sons raised primarily by his mother following his parents marital break up when he was five years old. He has a complex background including a learning disability, an extreme delay in puberty, a sleep disorder featuring sleep walking and night terror and a poor upbringing with physical and emotional abuse from his mother's ex partner. He is easily led, becomes bored and difficult to manage. Neither the aunt, with whom he resides on occasions, nor his natural father is prepared to accommodate him upon his eventual release from custody. His mother is only prepared to provide temporary accommodation.

26. From Christmas 2000 he had been in a relationship with a then 17 year old girl who has since given birth to their child. He was educated to year 9 and, he says, that he was kicked out and left school at the age of about 15 with few skills. He has not been employed since he left school. He is in receipt of a disability pension. His maturity is significantly below that which is normal for his age. He effectively functions at the chronological age of ten to 12 years.

27. The Probation and Parole officer has written:

"In September 1999, Mr Ellis was referred to an Endocrinologist and a Sleep Disorder Centre after experiencing sleep walking and night terror. At that time, he was assessed with a major developmental and hormonal deficit, with a course of injections recommended. Reviews by the Endocrinologist in February and June 2000 indicated a marked and steady improvement in his condition and the incidents of his sleep walking and night terror were also expected to decrease. However, when recently interviewed in custody for the purpose of this report, Mr Ellis stated he was still experiencing sleep walking and night terror for which he had not been given medication.
...
Mr Ellis presents as a vague, impulsive and immature individual who has a history of developmental and hormonal deficiencies which were somewhat addressed whilst in the community. He claims to have no undue problems apart from a need for medication to control his alleged continued incidents of sleep walking and night terror. It would appear that his boredom, undesirable associates and alcohol/other drug use were also significant factors in his criminal behaviour."

Associate Professor Hayes made these recommendations:

"He should see the endocrinologist at Newcastle Hospital for a follow-up appointment. He needs to be involved in a drug and alcohol programme. He needs to be put in touch with a disability case worker through the Department of Community Services Local Developmental Disability Office and this person should assist him in locating a stable place of residence and becoming involved in pre-vocational training programmes such as may be offered by some of the local TAFE colleges in Newcastle. He also needs to become involved in social and recreational activities appropriate for a young man with a mild to moderate intellectual disability. He needs to be assisted to learn more of the skills of daily living, so that he can cope when he lives independently.

Whilst he is in prison, I recommend that the Disability Coordinator, Ms Ann Langford, in the Department of Corrective Services, be notified about Mr Ellis, so that he can receive an appropriate placement, which will incorporate programmes designed for people with intellectual disabilities."

28. The report of Dr N Y Low of 24 July 2001 indicates that it is expected in the very near future that Mr Ellis will produce his own testosterone in adequate amounts.

29. The judge noted that Mr Ellis is in protective custody because otherwise he could be subject to preying (including bashing) from other prisoners.

30. The judge concluded:

"The offence of robbery and using corporal violence is one of great gravity. Indeed it indicates, when one looks at the facts, that violence was used, not as a means of getting the money from the individual, but just for the sake of inflicting violence. And that to my mind aggravates the gravity of the offence. It is quite clear that the victim was so terrified he gave up any hope of saving his property, but notwithstanding that, violence was still used.

In the circumstances here, I regard the appropriate sentence for robbery with corporal violence as one of four years and six months. However, I note that the prisoner has pleaded guilty and thereby has saved the State a considerable amount of money and expense and accordingly I propose to impose a sentence of four years.

I have been concerned as to whether special circumstances exist in the case of Ellis. But I am satisfied they do exist. First of all there is his age. Secondly there is his low intellectual capacity. Thirdly there is the need for rehabilitation training at an early stage and special needs during the period of the non parole period to help him learn proper living skills. And fourthly there is the fact that imprisonment for him will be somewhat harsher than otherwise because he is in protective custody."

The applicant contends:

"(1) The applicant has a legitimate sense of grievance when comparing the sentence imposed upon him compared with the sentences imposed upon his two co-offenders Bennis and Holmes.

(2) His Honour was in error in finding that violence was 'used just for the sake of inflicting violence and that the victim was so terrified he gave up any hope of saving his property, but that violence was still used' and that this was an aggravating feature of the offence.

(3) The discount for the plea of guilty is inadequate having regard to the principles of R v Thompson ; R v Houlton (2000) 49 NSWLR 383."

The Crown contends :

(1) As to parity relevance


(a) Parity generally not applied to offenders under different regimes.

(b) There was a significant age difference between Messrs Ellis and Holmes.

(c) The court ought not to accede too readily to a submission that mild intellectual disability and immaturity on the part of the adult offender makes it correct to apply considerations akin to parity.

(d) It is not established that the juveniles were the instigators of the offences.

(e) The problems arising from the delay of the onset of puberty had largely resolved by the time of the offences.

(f) Mr Ellis had on three occasions been dealt with by an adult court.

31. The evidence as to the immaturity of Mr Ellis is overwhelming. The report of Associate Professor Hayes was based on an assessment made on 26 June 2001 of Mr Ellis. She interviewed him that day and had the benefit of the police facts, the transcript of the police interview, the pre-sentence report and an earlier pre-sentence report of 19 July 2001, among other documents. She took a history and administered a number of tests. She had no doubt of the applicant's immaturity and substantiated her views.

32. The Probation and Parole report also comments upon the applicant's immaturity. When regard is had to the functioning age of Mr Ellis of 12, his immaturity, and the part played by Mr Holmes in the assault and robbery this is a case where, unusually, the age difference is not of much consequence. It is also a case where it is relevant to take into account the sentence imposed upon Holmes. He was obviously deeply involved. Allowing for the difference in ages, in the sentencing regimes, in the charges, and in their records, there is, nevertheless, still too great a discrepancy between the sentence received by Mr Ellis and that received by Mr Holmes.

33. I do not accept the submission of Mr Ellis that it is relevant to have regard to the sentence imposed upon Mr Bennis. He was involved in a different offence.

34. The evidence before the judge did not support the conclusion that violence was used, not as a means of getting money, but just for the sake of violence. The robbers probably found it hard to accept that the victims had so little money on them. The robbers had picked on some students. However, a considerable amount of violence was used and this underlines the gravity of the offence. On any view it was a nasty and terrifying offence.

35. The discount given for the plea of guilty was about 11 per cent. Mr Ellis contended that because neither of the descriptions given by Mr Telford of his attackers corresponded with him the Crown would have had great difficulty in obtaining a conviction against him on the charge of robbery with corporal violence upon the victim Telford. I do not agree. There was ample evidence that the attackers and the victims split into two groups and that Messrs Carr and Bennis were engaged in attacking Mr Rumbel and that Messrs Ellis and Holmes were engaged in attacking Messrs Crowfoot and Telford. The Crown case was not limited to Mr Telford's description of his attackers. In the circumstances an accurate description by Mr Telford is not to be expected.

36. The later pre-sentence report records that Mr Ellis expressed no remorse and tended to attribute his actions to the adverse influence in his associates and alcohol.

37. Associate Professor Hayes records that Mr Ellis told her that he regretted what he had done. Mr Ellis did not give evidence. In the circumstances the judge could hardly be expected to attach any weight to contrition. Whilst the allowance for the plea of guilty is discretionary, in the present case it was too low. It should have been at least 15 per cent. The judge's failure to take any account of the sentence passed on Mr Holmes constituted error and, in combination with the other two errors, led to a sentence which is excessive.

38. The evidence as to the good conduct of the applicant in gaol, and his application to a significant number of courses, is strong and quite unexpected given his past history.

39. He has now found work which he finds rewarding. He wants to get full time work in a kitchen because, he says, he enjoys working in that area.

40. He was awarded a Merit Certificate in March 2002 "For Striving with Personal Development by concentrated effort during programmes, positive worth ethics and pro-social behaviour". The prospects of rehabilitation now appear better than they appeared before the judge. I agree with the judge and, for the reasons he gave, that there are special circumstances. Considerable weight has to be attached to Mr Ellis serving his sentence in protection.

41. Having considered the objective gravity of the offence, and the subjective features of Mr Ellis the service of his sentence in protection, the sentence imposed upon Mr Holmes, and increasing to a small extent the discount for the early plea of guilty, I would set aside the sentence passed and substitute a sentence of imprisonment of three years on the robbery offence with a non parole period of one year and nine months.

42. It was not suggested that this Court should interfere with the sentence of six months for receiving. The notice of appeal does not refer to that sentence.

43. Mr Carr appeared before the Children's Court in June 1997, June 1998, July 1998, November 1998 and April 1999 for a variety of offences, including drug offences, contravening apprehended violence orders, common assault, malicious damage and some serious driving offences. He was dealt with in the Local Court in April 1999, September 1999, March 2000, April 2000 and December 2000. On 27 April 1999 he was sentenced to 14 days imprisonment for contravening an apprehended violence order. In September 1999 he was sentenced to concurrent terms of four months imprisonment for driving conveyance taken without consent and contravene apprehended violence order (four counts). On 12 December 2000 he was sentenced to 16 weeks imprisonment for malicious wounding. The subject offence is, however, by far his most serious offence.

44. The pre-sentence report reveals Mr Carr is the second youngest in a family of four children. His parents and family are most supportive of him and are at a loss to understand his continued criminal behaviour.

45. Following his release from the Youth Detention Centre in March 1999 he was to attend a community based programme for young people and to work with his father in a furniture removalist business two days a weeks. Mr Carr failed to demonstrate the required motivation. He has been unemployed since. He readily admitted to a history of alcohol abuse along with amphetamines and marijuana from the age of 13.

46. As to the offence Mr Carr told the Probation and Parole Officer that he, Mr Carr, had been drinking and taking amphetamines. He remembered being at the offence but endeavoured to minimise his involvement in the offence.

47. The officer made this assessment:

"Mr Carr was polite and cooperative in interview. However inquiries with his previous Probation and Parole officer indicate that the offender is compliant during interview but appears to lack the necessary self discipline or ability to follow through instructions given, such as attendance at programmes or reporting to this Service. He has a supportive family but gravitates to criminally involved associates. It would seem that an in depth psychological report would be of benefit in order to assess how best to address Mr Carr's drug abuse and criminogenic behaviour."

48. Ms A Robilliard, psychologist, interviewed the applicant on 18 May 2001 at length and administered a number of tests. His period at school was one of difficulty. Half way through year 7 he was transferred to a school for disordered students. He liked it there and completed the year there. He had further problems at a high school the following year. He ended up being sent to a boys home. When he was aged 16 he began working with his father but as there was insufficient money for both of them withdrew and has not worked since.

49. Tests revealed that Mr Carr is in the average range of intelligence. He had major problems with substance dependence and a lack of relevant insight or motivation for treatment.

50. Ms Robilliard wrote:

"From the background history it appears Aaron exhibited behaviour consistent with Conduct Disorder, from early adolescence. He is unfortunately continuing to espouse antisocial attitudes and behaviours including drug and alcohol dependence and criminal offences. Many of his offences including those he is currently charged with have been facilitated by the consumption of alcohol and drugs. On the night in question, Aaron admits he had used significant quantities of both. During our interview he acknowledged that amphetamine has become a problem and he wants to stop using. He does not believe however that he needs any professional help.


Aaron was willing to acknowledge that he has had a problem controlling his anger for several years. No doubt he has even more difficulty staying in control when he has been abusing alcohol and amphetamines, as he had on the night of the offences. He seemed less sure that he could modify this behaviour without help and may be more willing to accept professional assistance.

If Aaron continues to conduct himself as he has over the past few years he will attract a clinical description of Antisocial Personality Disorder. He is only 20 years old and if he chooses to try and modify his unacceptable and self destructive behaviours now, he may be able to avoid any further entrenchment of these destructive personality attributes."

51. The judge regarded the gravity of the offence committed by Mr Carr as substantially the same as that committed by Mr Ellis. He made the same allowance for the plea of guilty.

52. As to special circumstances the judge said:

"I have taken into account the fact that he may have to spend a substantial, if not all of the sentence, in protective custody. I have taken into account the fact that he is now only 20 years of age. But at the same time when I look at the opportunities he has had with a good family, the opportunities he has had in the past with sentences of probation from the Children's Court and the Local Court, when I look at the way that he has turned his back on those opportunities, I cannot find any special circumstances."

Mr Carr made these submissions:

(a) That the Court should take account the minimal sentences received by Mr Bennis. If this is done the sentences imposed upon Mr Carr must be reduced.

(b) The judge's allowance for the early plea of guilty was grossly inadequate and should have been of the order of 25 per cent.

(c) The judge should have found that special circumstances existed and reduced the non parole period accordingly.

53. In reply the Crown advanced the same general arguments which had been advanced in Mr Ellis' case. The Crown submitted that the sentences imposed in the Children's Court on Mr Bennis appear to be erroneously light, as indeed they do.. The Crown stressed the age difference between Messrs Carr and Bennis. Mr Bennis' record was worse than that of Mr Carr. Mr Bennis' criminality is such that the age difference between Mr Carr and Mr Bennis is not of significant consequence.

54. Despite the differences in age between Messrs Carr and Bennis and in the sentencing regimes, this is a case where it was relevant to take into account the sentence imposed upon Mr Bennis. He was deeply involved in the commission of the offence. Both Messrs Carr and Bennis faced the charge of robbery in company and Mr Bennis' record evinced the greater history of criminality. By the age of 16 he had become an experienced criminal. Although subsequent to the sentence imposed on Mr Carr that imposed on Mr Bennis must be taken into account. This often happens in parity cases and this present case is, in that respect, akin to a case of parity.

55. For the reasons given in Mr Ellis' case I regard the discount for the plea of guilty as erroneously too low. It should be at least 15 per cent.

56. Having regard to the objective gravity of the offence, Mr Carr's subjective features, the sentence imposed upon Bennis, and the discount which should be given for the early plea of guilty, I would set aside the sentence of four years and substitute one of three years.

57. I come now to the question of special circumstances. He has until recently been on protection but ceased to be so on his recent transfer to the Young Offenders Programme based at Moroney Prison at Windsor. It caters for individuals with alcohol, drug and anger management problems, amongst others. The authorities considered it was worth sending Mr Carr there and he was obviously willing to embark upon the course. Mr Carr is a young man and there is a community interest in his rehabilitation. I have not overlooked the judge's strong criticism of his failed attempts at rehabilitation. Nevertheless, I think that there should be a finding of special circumstances in view of his young age, the need for at least one year's supervision on his release, and the period spent in protective custody. It is to be hoped that the periods spent in the John Moroney Prison will assist him and convince him that whilst his own efforts at rehabilitation are of great importance he needs, and should accept, the assistance which is available. I would fix a non parole period of two years.

58. I propose the following orders:

As to Mark Richard Ellis (1) Leave to appeal against sentence granted. (2) Appeal allowed; sentence on robbery using corporal violence quashed. (3) In lieu of the sentence imposed Mr Ellis is sentenced to imprisonment for three years commencing on 18 February 2001 with a non parole period of one year and nine months commencing that day and ending on 17 November 2002, on which day he is to the released on supervised parole.

As to Aaron James Carr (1) Leave to appeal against sentence granted. (2) Appeal allowed; sentence on robbery in company quashed. (3) In lieu of sentence imposed Mr Carr is sentenced to imprisonment for three years commencing on 18 February 2001 with a non parole period of two years commencing that day and ending on 17 February 2003, on which day he is to be released on supervised parole.

59. HIDDEN J: I agree. The orders of the Court will be those proposed by Smart AJ.

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