Scott v The Queen
[2010] VSCA 320
•18 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 801
| GARRY ALLAN SCOTT |
|
| v | |
| THE QUEEN | Respondent |
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JUDGE: | NETTLE and BONGIORNO JJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 18 November 2010 |
DATE OF JUDGMENT: | 18 November 2010 |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 320 |
JUDGMENT APPEALED FROM: | R v Scott (Unreported, County Court of Victoria, Judge Parsons, 1 September 2009) |
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CRIMINAL LAW – Sentence – Sexual offences – Whether mistake as to applicable maximum penalty – Orders for concurrency with respect to fraud offences – Whether principle of totality correctly applied – Appeal allowed – Appellant re-sentenced – No point of principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G M Hughan | Casey Criminal Law |
| For the Crown | Mr J D McArdle QC | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I invite Justice Bongiorno to deliver the first judgment.
BONGIORNO JA:
On 3 August 2009, Gary Allan Scott pleaded guilty before the County Court at Melbourne to one count of sexual penetration of a child under the age of 16 years and one count of performing an indecent act with a child under the age of 16 years. Each of the counts was a representative count and was laid in substitution for eight similar counts on an earlier presentment to which the appellant had pleaded not guilty.
On 1 September 2009, Scott was sentenced to three years and six months' imprisonment on the first count and one year's imprisonment on the second count, six months of the term on the second count being cumulated on that imposed in respect of the first count. The total effective sentence was accordingly four years' imprisonment. As the prisoner was already serving a sentence of four and a half years' imprisonment with a non‑parole period of two years and nine months, imposed by a different judge of the same court for fraud offences on 25 June 2008, the sentencing judge had to take that sentence into account. He did so by ordering that one year of the sentence imposed in respect of the sex offences be served concurrently with the earlier imposed sentence for the fraud offences. This resulted in a total effective sentence of seven and a half years. Pursuant to s 14 of the Sentencing Act 1991 the judge fixed a new non‑parole period of five years. He ordered that that non‑parole period date from the date of the imposition of the fraud sentences, namely 25 June 2008.
Scott sought leave to appeal the severity of his sentence and was granted leave by Neave JA on 27 November 2009. That grant of leave was not opposed by the Crown as it was clear that, due to an error by the prosecutor (who was not counsel appearing for the Crown in this Court), the sentencing judge had been under
the mistaken belief that the maximum sentence for the offence of sexual penetration of a child under the age of 16 years was 15 years' imprisonment. In fact the maximum sentence was ten years' imprisonment.
The offences to which Scott pleaded guilty were committed by him whilst he was living with the complainant's family in the period immediately prior to his being sentenced in June 2008 on serious fraud offences committed against his employer. He had recently separated from his wife and children and was taken in by the complainant's family in anticipation of his impending, almost certain, incarceration for the fraud offences.
At the time of the sex offences the complainant was 13 years of age and the prisoner was 26. Details of these offences are set out in the sentencing judge's sentencing remarks, a copy of which is annexed to this judgment.[1]
[1]Appropriately redacted to preserve the anonymity of the complainant.
The grounds of Scott's appeal are that the total effective sentence imposed upon him was excessive, that each of the individual sentences was itself excessive, that the order for cumulation on the earlier fraud sentence was excessive and that the new non‑parole period fixed was excessive. Scott also raised the ground in respect of the judge's error as to the maximum sentence for sexual penetration in the circumstances and alleged sentencing error in respect of the judge's finding with respect to rehabilitation.
Although the Crown conceded that the judge was in error in stating in his sentencing remarks that the maximum sentence in respect of sexual penetration in this case was 15 years, in its written outline it argued that that error did not in this case vitiate the exercise of the sentencing discretion. Whether the discretion is reopened, the submission went, depends on the significance of the error in the particular case. Here, even if the error had not been made the sentence should have been as determined by the sentencing judge.
However, a different prosecutor who appeared on the oral hearing of this appeal did not press this point. In fact he really appeared to concede this ground in the course of argument.
It is sufficient for present purposes to refer to only one of the number of cases cited by the Crown in its original submission, that is R v Beary[2] where Callaway JA, in a statement which has been referred to in numerous other cases, set out the law thus:[3]
Firstly, the law is settled in this State that not every mistake as to the maximum penalty vitiates the sentencing discretion. It depends on the circumstances. Secondly, the only possible justification for that view, in the face of s 5(2)(a) of the Sentencing Act, is that, in Mason J’s words, a factor may be so insignificant in a particular case that the failure to take it into account could not have materially affected the decision. Thirdly, consonantly with our emphasis on instinctive synthesis, before we hold that such a mistake does not re-open the discretion we have to be satisfied that it could not have materially affected the sentence. Of course, even where the discretion is re-opened, the court may be of opinion that no different sentence should be passed.
[2](2004) 11 VR 151.
[3]Ibid [21]. See also Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 40 (Mason J).
Having regard to the sentences imposed by the sentencing judge it could not be said that error as to the maximum sentence could not have materially affected this decision. Accordingly the appellant’s appeal as to sentence must be upheld, the sentence quashed and a new sentence imposed.
However, before moving to the re-sentencing process it is necessary to consider briefly the other grounds as they could themselves affect the way in which the new sentence is determined.
In determining the degree of concurrency required between the fraud sentence imposed on the prisoner in June 2008 and the sentence he was imposing for the sex offences, the sentencing judge had to have regard to the principle of totality. He specifically acknowledged this. As the fraud offences were completely divorced from the offending with which he was concerned, the principal consideration which he had to bring to bear on this question was that of not imposing a total sentence which would in any sense be said to be crushing, such as to deprive the prisoner of effective hope of rehabilitation and return to ordinary life as a useful citizen. The sentence must be approached as if the sentencing judge was sentencing in respect of all the offences together.
His Honour ordered that one year of the sentence he was imposing be served concurrently with the sentence the prisoner was then undergoing. In so doing he acknowledged the separate and unrelated criminality involved in the two groups of offences and appropriately took into account their temporal propinquity. There is no error in this determination, although as counsel for the appellant argued in this Court the appellant's incarceration became considerably harsher after he was charged with the sex offences whilst imprisoned on the fraud offences. This harshness involved, as well as an increase in the harshness of his prison conditions, a deprivation of contact with his children for a considerable period. These matters must be kept in mind in the re-sentencing process.
The other ground relied upon by the appellant was that the judge erred in finding that the likelihood of the appellant's re‑offending was reasonably significant. Having regard to the appellant's short but extremely serious criminal history (he had a previous conviction for manslaughter), the judge made no error in making the comment that he did. No doubt his Honour took into account in making that comment the remarkable rehabilitation the appellant demonstrated between his first period of offending and the fraud offences with which he was subsequently sentenced and then his lapse into serious offending yet again in a completely unrelated way. The lack of respect for the law, which that history demonstrates, justifies his Honour's comments.
Resentencing must take into account all of the matters referred to by the sentencing judge, the correction of his Honour's misapprehension as to the maximum penalty applicable to count one and the matters referred to in [14] above.
The appellant should be resentenced as follows:
On Count 1 sexual penetration of a child under the age of 16 years two years and six months’ imprisonment On Count 2 indecent act with a child under the age of 16 years one year imprisonment
Three months of the sentence imposed in respect of count two should be cumulated on that imposed in respect of count one, making a total of two years and nine months' imprisonment in respect of the sex offences;
One year and three months of that period should be served cumulatively on the sentence imposed on 25 June 2008 for the fraud offences making a total effective sentence of five years and nine months' imprisonment;
A new non‑parole period of three and a half years should be fixed, such non‑parole period to date from 25 June 2008. The ancillary orders made by the sentencing judge should remain.
NETTLE JA:
I agree with my brother Bongiorno that the appeal ought be allowed and the appellant should be resentenced as he proposes.
(Submission re presentence detention).
The orders of the Court are as follows:
The appeal is allowed. The sentences passed below are quashed and in lieu thereof the appellant is re-sentenced as follows:
On count one to two and a half years' imprisonment.
On count two to one year imprisonment.
It is ordered that three months of the sentence imposed on count two be served cumulatively on the sentence imposed on count one making a total sentence of two years and nine months.
It is further ordered that 15 months of that sentence be served cumulatively on the sentence of four and a half years imposed for fraud offences on 25 June 2008 making a total effective sentence of five years and nine months.
Pursuant s 14(1) of the Sentencing Act 1991, the Court fixes a new single non‑parole period of three and a half years beginning on 25 June 2008 in respect of all sentences to be served or completed.
All other ancillary orders made below are confirmed and for the avoidance of doubt it is confirmed that the declaration of pre-sentence detention made by his Honour Judge Williams on 25 June 2008 in respect of the fraud offences of seven days pre-sentence detention is confirmed.
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| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-09-00857
| THE QUEEN |
| v |
| GARRY ALAN SCOTT |
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JUDGE: | HIS HONOUR JUDGE PARSONS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 September 2009 | |
CASE MAY BE CITED AS: | R v. Scott | |
MEDIUM NEUTRAL CITATION: | [2010] VCC | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C. Quin | |
| For the Accused | Mr D. Glynn |
HIS HONOUR:
1
Garry Alan Scott, you have pleaded guilty before me to one count of sexual penetration of a child under 16, and one count of indecent act with a child under 16. The maximum penalty in respect of the first count is 15 years' imprisonment, and the maximum penalty in respect to the second count is
10 years' imprisonment.
2 In fact the matter was originally listed as a trial before me. You were arraigned on a presentment with eight counts on 3 August 2009 and pleaded not guilty to all counts. Thereafter there were some procedural matters to be attended to and also the return of a subpoena. On that day after lunch you were arraigned on a new presentment and pleaded guilty to the two counts on that new presentment. I then remanded you in custody for plea on 11 August.
3 On that day a plea was made on your behalf. It emerged during the hearing that in fact you had already been sentenced by a judge of this court in respect of a fraud matter some time earlier. Accordingly I sought copies of that sentence. The sentence was a sentence of His Honour Judge R.G. Williams dated 25 June 2008, VCC 0982. I made a copy of that sentence available to counsel, and after hearing preliminary submissions from defence and prosecution, adjourned the matter for further submissions and sentence.
4 I should also mention at this stage that three victim impact statements were tendered and marked as exhibits by me at the initial plea. In view of the submissions made by counsel with respect to those victim impact statements and after reading them myself I formed the view that it would be more appropriate, given the victims wanted their statements read in court, that the statements themselves reflected and dealt with the matters specified by the relevant legislation.
5 With respect to this matter the learned prosecutor opened the factual circumstances and Exhibit 1 is a summary of the prosecution opening. In brief compass the events are concerned with your relationship with [the complainant], who was born [in July 1994], and at the time of the offences was 13 years old. You at the time of the offences were 26 years of age.
6 You had known each for approximately five years, given the friendship that subsisted between yourself and [the complainant’s] parents. It also seems that your son was a friend of [the complainant’s] brother. At the time of the events in question you were living at the family home having recently separated from your wife. You were also preparing for your appearance before Judge R.G. Williams.
7 Count 1 concerns events when [the complainant] was at home alone with you and you were watching TV and you kissed her. Shortly afterwards you followed her into her bedroom and again started kissing her before taking off her clothes and having sex with her by inserting your penis into her vagina.
8 The second occasion occurred on a Sunday morning around 15 June 2008 when [the complainant’s] parents had taken their son to play soccer. [The complainant] was asleep in bed when you got into bed with her and you kissed her lips and chest area, and also her breasts. These matters give rise to Count 2, indecent act with a child under 16.
9 You were sent to gaol on 19 June 2008 as a result of the sentence by Judge Williams, to which I have already referred. Whilst you were in custody you wrote a number of letters to [the complainant] and her family, as well as making various phone calls. Various letters and the text of various phone calls are in evidence before me and I was referred to both by counsel for the prosecution as well as your own counsel as support for submissions they had each made.
10 On 20 October 2008 you participated in a tape recorded police interview and admitted to sending the letters from prison and having knowledge of [the complainant’s] age. However, you denied the allegations of sexual assaults.
11 As I have noted, I was referred to and did read transcripts of some of the letters and some of the telephone calls. It seems to me, having reviewed that material, it can be properly inferred that you and the complainant saw yourselves involved in a relationship with one another. Whilst there is no doubt that you, as an adult, were well capable of knowing that your actions were wrong and illegal, it is evidence that the complainant was also aware of the wrongness of your and her actions, but nevertheless continued to pursue the relationship.
12 There are several instances where each professes love for the other, and indeed the complainant at one point displayed anger and annoyance at the idea of you showing affection towards your estranged wife.
13 The facts in this case are most disturbing given your behaviour with respect to a girl of very tender years, and the fact that you were sharing her house at the invitation of her parents prior to you being sentenced to gaol. They have no doubt felt very betrayed by you and given the trust they had had in you, and also the fact that they were acting kindly towards you in providing you with accommodation when you were clearly in dire need of it.
14 As I have noted, whilst victim impact statements were tendered earlier, I took the view that they were not in appropriate form. Subsequently further victim impact statements have been tendered in this matter. I have read them and it is clear from them that there was considerable suffering on behalf of each of the three victims, and particularly of course, [the complainant], as a result of your actions. They have each in their own way been let down by you in a very significant way. The family continues to suffer as a result of your actions.
15
As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty, and you are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial, and I can tell you that the sentence
I intend to impose is far less than would have been imposed had you been found guilty after a trial.
16 Further, I take into account in your favour that you pleaded guilty to these two counts on the presentment as soon as that presentment was before the court. In the circumstances I accept that your plea indicates some remorse for your actions.
17 I have been told something of your personal history and your circumstances. Of course in referring to the sentence of Judge R.G. Williams I do bear in mind it is not a prior conviction but of course was a subsequent matter I find it useful to refer to it.
18 Your personal circumstances were fully explored before this court on 19 June 2008 when you appeared before Judge R.G. Williams. You were charged with five counts of obtaining financial advantage by deception. In the course of the submissions made to Judge Williams I note that in paragraph 26 His Honour said "Your counsel rightly asked me to take a complete overview of your somewhat sensational early life and to place this offending in a true context." Thereafter His Honour recited various matters which I here set out and quote:
"You were born in 1981 in the Preston area of a large family of a violent and criminal father, and relatives who were a negative influence on the family, a poor battling mother experiencing problems with accommodation and just getting by. It is therefore no surprise that the children, including you, were made wards of the state and went to foster homes and group hostels, and such was your lot unfortunately.
In this milieu you and another young rogue used to catch free taxi rides as a bit of fun, but this led to a tragic end when on one such occasion, when you were 13 years of age, a knife was produced and the taxi driver was stabbed to death and some coins taken. Despite always denying your involvement with the knife you were the youngest Australian ever found guilty of murder, although it was reduced on appeal to manslaughter and you ultimately served some three years at a youth training centre being released at the age of 17 years.
By then having completed some VCE studies which you followed up subsequently at the Royal Melbourne Institute of Technology. On release with those studies you got a job at AXA. You were living with a partner who you met when you were only 13 years of age and with whom you had had a child. You then transferred your employment to Members Equity which knew of your history but very commendably gave you a chance. You worked hard and you progressed well."
19 It was in this background that in late 2003, after you had some three or four years with Members Equity, you committed the offence. I summarise the offences with which His Honour was concerned in the sentence. Continuing the quote:
"Part of your plea supported by the opinion on p.6 of your consultant psychologist, Ian McKinnon, is that your offending can be substantially attributable to pressures and exploitation by family, your father, and family associates, remembering the criminal element your father was involved with. In other words Degani, who I have already mentioned, your father and others who indirectly benefited from Count 1, who have trials to follow, allegedly leaned on you at a vulnerable time when you (a) were trying to regain some sort of relationship with your father, and (b) you were working at a place where you controlled large amounts of money."
20 His Honour noted further on in the sentence that since your detention in late 2006 after an initial "no comment" record of interview you quickly determined on a full course of full co-operation and confession telling everything you had done. Apparently this led to an early guilty plea at the committal and on arraignment. You then made a statement implicating others and gave a sworn undertaking to assist the Crown and give evidence in accordance with that undertaking.
21 His Honour found that with respect to your rehabilitation prospects there were reasons for optimism and that you had shown considerable remorse and a socially responsible attitude to what you did. His Honour also noted that you and your partner had two children aged 12 and nine, and things were somewhat strained at the time. I have had the advantage of hearing from your partner as part of your plea, and I will refer to that in a moment..
22 I should also add with respect to this sentence, that His Honour said in passing sentence that the offences were carefully and skilfully executed, with planning and premeditation, and your thefts totalled $1.22 million approximately, involving five transfers of sums of money ranging from $108,000 up to $488,000.
23 As to the circumstances of what benefit you derived from the other associated details I do not need to enquire further. These matters are all set out in detail by His Honour in the sentence. As a consequence you were sentenced to a total effective sentence of four and a half years and you were ordered to serve a period of two years and nine months before being eligible for parole.
24 At the time of sentence you had been in custody for seven days and His Honour declared that the seven days had already been served and should be taken into account pursuant to s.18 of the Sentencing Act. Mr Sharpley who appeared on your behalf whilst not privy to the matters referred to by Judge Williams in his sentence, said that he would be surprised if there were any material differences. In fact there appear to be no material differences, although of course Mr Sharpley was able to give me further detail of various matters which Judge Williams set out in his sentence.
25 I have already noted that you have a prior conviction, which conviction was before the Supreme Court of Melbourne on 14 May 1998 when you were convicted of manslaughter and armed robbery and were sentenced to be imprisoned for a period of three years on Count 1 and 18 months on Count 2, with one year of Count 2 to be served cumulatively on Count 1, resulting in a total effective sentence of four years with a non-parole period of two years.
26 Clearly the age of that conviction and the circumstances of it as explored by me in the sense of referring to Judge R.G. Williams' sentence means that it is of marginal relevance to my task of sentencing you today.
27 Evidence was led on your behalf, as I have already said, and your partner, Bronwyn Scott, was called to give evidence. She said that you were both in government hostels from June 1994 and that she had had a relationship with you at various times ever since. When you were released from the sentence which you served in the Youth Training Centre in Parkville you were then 17 and you two moved in together before you got married in 2004. Together you had two children, one before your trial, and one before your retrial. Clearly the young boys have a good relationship with you, and I recall one was in court.
28 I should say at this stage Mr Sharpley submitted to me that apparently as a result of your pleading guilty or at least being before the court on sex offences involving children you have been moved from a rural prison setting to protective custody. The consequence of this has been that whilst you had previously had access to your sons in a relatively relaxed environment that has now ceased. Your visits were restricted but have now apparently stopped. I presume that is, as I say, as a consequence of the fact that you have been charged with these offences.
29 It seems to me appropriate in the circumstances to note that there appears to be no issue with respect to you being a paedophile. Your relationship appears to have been consensual. Submissions were made to that effect, and I see no reason to find otherwise. I will turn to those authorities in a moment and reflect upon the submissions made by your counsel in respect of them, and what consequences flow as a result.
30 It does appear to me though that there is no danger in you seeing your boys and indeed on the contrary, it seems to me that both you and they would benefit as a result of the relationship continuing and I would urge the prison authorities to make that possible if it be practicable and appropriate given their role in administering the prisons is their primary and first consideration.
31 As noted, I was referred to a number of authorities by your counsel with respect to the fact that the relationship between you was consensual and what that therefore meant in terms of the sentence. I note in the Court of Appeal in the case of the R v. Fossati, 1997 VSC 16 in the judgment of Hayne JA, with which Winneke ACJ and Ashley AJA agreed. His Honour said at p.10 and I quote:
"The learned sentencing judge made no explicit finding about whether the offence of committing an indecent act was an offence that was committed with or without the consent of the complainant. In the circumstances of this case that was unfortunate. Consent or absence of consent on the part of the complainant is an important matter which in the particular circumstances of this case should properly be regarded as having a significant bearing on the determination of what punishment should be awarded for the conduct."
32 His Honour noted that the sentencing judge apparently proceeded on the basis that the complainant did not consent to what occurred, and in that event His Honour had erred.
33 In addition I was referred to a number of other relevant authorities, the most recent of which was R v. Sulamanov, 2007 VSCA 288. I was also referred to the case of R v. Nguyen, 124 ACrimR 477, a decision of the Court of Appeal and in particular to the judgment of Chernov JA with which the other members of the court agreed.
34 At paragraph 12 His Honour notes that with respect to the Ground 2 of the appeal Her Honour erred when she said in the sentencing remarks that the victim's consent and provocative conduct were irrelevant to sentencing purposes. In paragraph 13 His Honour referred to various cases and in particular to Professors Fox and Fryberg and their text "Sentencing: State and Federal Law in Victoria" which His Honour said:
"The consent of the victim is by law irrelevant to the determination of guilt in relation to these offences. It is highly relevant to sentence. Sentences at the lowest end of the range will be appropriate for consensual acts of intercourse between those persons whose age difference is not great."
35 With respect to that last particular matter referred to by His Honour it seems to me in these circumstances there is a significant disparity in your ages. The fact that the victim in this case did as I have found want to pursue the relationship as she perceived it to be, in no way excuses your actions which are clearly illegal and wrong. That fact can be used as a modestly mitigating factor when deciding a proper punishment, but I bear in mind the significant difference in your ages, that is between 13 and 26 respectively at the time, which means that this case is not one of consensual sexual behaviour between two young persons of comparable age, and I find in the circumstances that the age difference is great and therefore unlike the matter referred to in R v. Nguyen.
36 I do also note in this context that [the complainant] asked if you could live in the premises and it was apparently as a result of her request that you did in fact move into the premises, and further apparently it was said that she had "a major crush on you and that her interest in you predated you moving in." Apparently in 2007 she wrote an essay about you.
37 As I have already set out, I have been informed of certain subsequent matters which I have set out in some detail above. I am on balance satisfied that the chances of your rehabilitation are modest, given the very significant criminal convictions you have now acquired in your life. Although one can never give up on hope of your eventual rehabilitation there is little before me to suggest there is any great likelihood of that. In fixing an appropriate sentence, however, I must seek to maximise such chances of your rehabilitation as there may be.
38 As I have noted, evidence was called on your behalf from your partner and your wife, and I should have added that she said you are an excellent parent to her young boys, and she was keen to get back with you when you were eventually released from prison, and she thinks that you will always remain friends even if you do not become partners again.
39 Of course, as well as matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence which is of considerable importance in a case such as this. I do not find specific deterrence to be of such great significance given it seems to me that the situation in which you found yourself would be unlikely to repeat itself.
40 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending which I find to be reasonably significant in view of your previous conviction, and the subsequent matter.
41 There is an application made for an intimate forensic sample to be taken from you and you have not objected to this, and I am satisfied that it is in the interests of justice having regard to your prior convictions and the seriousness of your offending that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor, nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth and although you have consented, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place. I have made those orders.
42 By virtue of my sentencing you today you become a registrable sex offender under the Sex Offenders' Registration Act and I am told that Count 1 is a Class 1, Schedule 1 offence, and Count 2 is Class 2, Schedule 2 offence, and that you will be required within 28 days of your eventual release from custody to report your personal details and begin a regime of annual reporting required under the Sex Offenders' Registration Act and be otherwise subject to the Act for the remainder of your life.
43 I will now have my Associate hand to you a form which notifies you of your reporting obligations and ask you to sign where indicated to acknowledge that you have received a form. Mr Glynn, you may assist in that process as well.
44
Would you stand please, Mr Scott? These are without doubt serious offences and in all the circumstances I have no alternative but the imposition of a custodial sentence. You are convicted and sentenced and follows on Count 1, three years and six months' imprisonment, and on Count 2, one year imprisonment. I direct that six months of Count 2 be served cumulatively on Count 1, and that results in a total effective sentence of four years. I bear in mind the principle of totality of your offending, and in determining the level of cumulation and concurrency with the sentence you are currently undergoing, and I order bearing in mind those principles that one year of the sentence
I have just imposed be served concurrently with the sentence ordered by Judge Williams. That results in a total effective sentence of seven and a half years.
45 I am required to set a new non-parole period. I note that you have already served 14 month of the sentence imposed by His Honour Judge Williams. The sentence was imposed, as I have said, on 25 June 2008, and it was a total effective sentence of four and a half years, and you were ordered to serve a period of two years and nine months before being eligible for parole.
46 I order a new non-parole period against the total effective sentence of seven and a half years, and the new non-parole period will be for a period of five years. That non-parole period is to date from 25 June 2008, the date of the sentence imposed by Judge Williams.
47 Is counsel clear on those figures?
48 MRS QUIN: Yes, Your Honour.
49 HIS HONOUR: As I say if there is any particular difficulty or doubt about any of them I would be grateful if you would return within the period of seven days, but I just wanted you to be particularly clear that the new sentence is of seven and a half years with a new non-parole period of five years, and both to date from the date of the original sentence imposed by Judge Williams on 25 June 2008.
50 MRS QUIN: If Your Honour pleases.
51 MR GLYNN: If Your Honour pleases.
52 HIS HONOUR: Thank you, Mr Scott, if you would go with the officers at the back of the court please.
53 Anything further, counsel?
54 MRS QUIN: No, Your Honour.
55 HIS HONOUR: Yes, thank you. I beg your pardon. I have just been reminded about the operation of the s.6AAA. Can you just ask Mr Scott to come back? Sorry, Mr Scott, for having to bring you back, but I am required by the legislation to indicate that but for the plea of guilty what the sentence would have been, and I can tell you that because of your plea of guilty I have reduced the sentence by a year, and that is that as a result of your plea of guilty you have avoided an extra year in prison. So the sentence but for that plea of guilty would have been another year's imprisonment.
56 All right, Mr Scott, thank you, if you could go with the officer.
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