The State of Western Australia v Nillson

[2017] WASCA 68

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- NILLSON [2017] WASCA 68

CORAM:   NEWNES JA

MAZZA JA
BEECH J

HEARD:   10 MARCH 2017

DELIVERED          :   18 APRIL 2017

FILE NO/S:   CACR 112 of 2016

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Appellant

AND

JACKSEN JAMES  NILLSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :McCANN DCJ

File No  :IND GER 39 of 2016

Catchwords:

Criminal law - Appeal against sentence - One count of attempted possession of methylamphetamine - Two counts of possession of methylamphetamine with intent to sell or supply - 377.65 g of methylamphetamine at 68% to 81% purity - Sentence of 30 months' imprisonment on each of two counts and 2 years' imprisonment on other - Total effective sentence of 4 years 6 months' imprisonment - Whether individual sentences manifestly inadequate - Whether total effective sentence infringed totality principle

Legislation:

Nil

Result:

Appeal upheld
Respondent resentenced

Category:    D

Representation:

Counsel:

Appellant:     Mr J A Scholz

Respondent:     Mr S Rafferty & Ms K L Miller

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Seamus Rafferty

Case(s) referred to in judgment(s):

Bui v The State of Western Australia [2014] WASCA 168

Chu v The State of Western Australia [2012] WASCA 135

CMB v The Attorney General for New South Wales [2015] HCA 9; (2015) 265 CLR 346

Formica v The State of Western Australia [2013] WASCA 237

Giglia v The State of Western Australia [2010] WASCA 9

Guler v The State of Western Australia [2014] WASCA 83

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hoang v The State of Western Australia [2015] WASCA 130

Lynch v The State of Western Australia [2011] WASCA 243

Monument v The State of Western Australia [2007] WASCA 239

Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600

Stokes v The State of Western Australia [2016] WASCA 87

The State of Western Australia v Atherton [2009] WASCA 148

The State of Western Australia v Charles [2016] WASCA 108

The State of Western Australia v Littlefair [2013] WASCA 177

The State of Western Australia v Wilson [2015] WASCA 119

1. JUDGMENT OF THE COURT: This is a State appeal against sentence. On 28 June 2016, the respondent was convicted in the District Court on his pleas of guilty to one count of attempted possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (count 1); seven counts of possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act (counts 2 ‑ 4, 6 ‑ 9); and two counts of possession of money reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (WA) (counts 5 and 10). He was sentenced to a total effective term of imprisonment of 4 years and 6 months' immediate imprisonment, with eligibility for parole.

2. The State appeals against the sentences on counts 1, 2 and 6 on the ground that they are manifestly inadequate and against the total effective term of imprisonment on the ground that it infringes the totality principle. 

The offending

1. On 17 June 2013, the respondent registered a post office box at a post office in Rangeway, a suburb of Geraldton.  On 8 September 2015, police attending at Perth Airport to inspect postal articles for prohibited drugs examined an envelope addressed to a 'James Willson' at the post office box registered to the respondent.  The envelope was found to contain 129 g of methylamphetamine with a purity of 77%.  The methylamphetamine was replaced with an inert substance and the envelope conveyed to the Rangeway Post Office for delivery.  On 9 September, the respondent collected the envelope from the post office box and returned with it to his home (count 1). 

2. Later that day, police executed a search warrant at the respondent's home where he was found attempting to dispose of the inert substance in the shower.  During a search of the respondent's home, police found:

   a)a total of 121.41 g of methylamphetamine in 26 containers of varying sizes with amounts of the drug ranging from 0.05 g to 32.7 g.  Of the contents of 19 containers tested, the purity of the drug in 18 of the containers (a total of 109.9 g) ranged from 68% to 81%, and the drug in the other container (10.08 g) had a purity of 47% (count 2);

   b)8.52 g of MDMA and five MDMA pills weighing 1.22 g, a total of 9.74 g of MDMA (count 3);

   c)96.9 g of cannabis (count 4); and

   d)$23,635 in cash, reasonably suspected to be unlawfully obtained (count 5).

3. Police also found a large number of unused clipseal bags and plastic containers, a set of digital scales, a brass weight, a tick list, and approximately 200 g of MSM (a common cutting agent for methylamphetamine). 

4. That evening, police conveyed the respondent to his self‑storage unit in Webberton, another suburb of Geraldton.  Inside a Mazda hatchback in the unit police located:

   a)a total of 127.24 g of methylamphetamine in 16 containers, the purity of the drug in the various containers ranging from 68% to 74% (count 6);

   b)7.74 g of 25C‑NBOMe (count 7);

   c)0.84 g of MDA (count 8);

   d) 0.37 g of MDMA (count 9); and

   e)$12,150 in cash, reasonably suspected to be unlawfully obtained (count 10).

5. Police also found in the vehicle a large quantity of unused clipseal bags, a set of digital scales and a number of bags containing MSM. 

6. The respondent entered a fast‑track plea of guilty to all charges.

The sentencing remarks

1. The sentencing judge described the respondent as 'an active retail and midlevel drug dealer' and the sole proprietor of the drug‑dealing business.   His Honour noted that the discrete quantities of methylamphetamine packaged for storage or sale, or both, totalled '378.37 g [sic, 377.65 g]'.  The police found evidence of a 'very organised, large‑scale polysubstance drug dealing operation' (ts 36).  His Honour said that the respondent's culpability was 'high' (ts 37).  His Honour considered that the set‑up pointed to 'widespread retailing and deep market penetration' and that the respondent must have been an important player in the Geraldton drug distribution business (ts 40).

2. The respondent was 23 years of age at his arrest and 24 at the time of sentencing.  He had no relevant prior criminal record and was previously of good character.  He had an excellent work history in the resources sector before being retrenched a couple of years ago.  He had not been a drug user until, following his redundancy, he was introduced to methylamphetamine by co‑workers at his new workplace.  He quickly developed a drug habit and began dealing in drugs to fund his habit and lifestyle.

3. The sentencing judge noted that the respondent had made determined efforts at rehabilitation after being remanded in custody and that his rehabilitation prospects were good.  He was a motivated, model prisoner and had the benefit of a supportive family.  His Honour noted that in cases of drug dealing, personal deterrence is a very important factor but he was satisfied that the respondent would not reoffend in a similar way.  His Honour considered that general deterrence was the most important factor. 

4. In mitigation, the sentencing judge took into account the respondent's pleas of guilty at the first opportunity, for which he allowed a discount of 25% under s 9AA of the Sentencing Act 1995 (WA). His Honour considered the plea reflected the respondent's remorse, acceptance of responsibility, and rehabilitation. The sentencing judge noted that this was the respondent's first serious offending and took into account the respondent's age, although his Honour noted that it was a factor of very limited weight.

The following sentences were imposed: 

Count	Offence	Maximum penalty	Quantity (purity)	Sentence imposed
1	Attempted possession of methylamphetamine with intent to sell or supply: s 6(1)(a) Misuse of Drugs Act	25 years' imprisonment and/or fine of ≤$100,000	129 g (77%)	30 months' imprisonment cumulative
2	Possession of methylamphetamine with intent to sell or supply: s 6 (1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	121.41 g (47% ‑ 81%)	30 months' imprisonment concurrent
3	Possession of MDMA with intent to sell or supply: s 6(1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	9.74 g	9 months' imprisonment concurrent
4	Possession of cannabis with intent to sell or supply: s 6(1)(a) MDA	10 years' imprisonment and/or fine of ≤$20,000	96.9 g	6 months' imprisonment concurrent
5	Possession of $23,635 reasonably suspected of being unlawfully obtained: s 417(1) Criminal Code	7 years' imprisonment	12 months' imprisonment concurrent
6	Possession of methylamphetamine with intent to sell or supply: s 6(1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	127.24 g (68% ‑ 74%)	2 years' imprisonment cumulative
7	Possession of 25I-NBOMe with intent to sell or supply: s 6(1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	7.74 g	9 months' imprisonment concurrent
8	Possession of MDA with intent to sell or supply: s 6(1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	0.84 g	3 months' imprisonment concurrent
9	Possession of MDMA with intent to sell or supply: s 6(1)(a) MDA	25 years' imprisonment and/or fine of ≤$100,000	0.37 g	3 months' imprisonment concurrent
10	Possession of $12,150 reasonably suspected of being unlawfully obtained: s 417(1) Criminal Code	7 years' imprisonment	12 months' imprisonment concurrent

1. The total effective sentence was therefore 4 years and 6 months' immediate imprisonment.  The respondent was made eligible for parole.

The grounds of appeal

1. The grounds of appeal were, in effect, as follows:

   1.The sentencing judge erred in law by imposing a sentence for the offence of attempted possession of methylamphetamine with intent to sell or supply on count 1 that was so inadequate as to manifest error;

   2.The sentencing judge erred in law by imposing a sentence for the offence of possession of methylamphetamine with intent to sell or supply on count 2 that was so inadequate as to manifest error;

   3.The sentencing judge erred in law by imposing a sentence for the offence of possession of methylamphetamine with intent to sell or supply on count 6 that was so inadequate as to manifest error;

   4.The sentencing judge erred in law by imposing a total effective sentence that infringed the first limb of the totality principle, in that it failed to reflect the overall criminality of the offending conduct.

The disposition of the appeal

Grounds 1 ‑ 3

1. Generally, where there is a challenge on totality grounds (as there is in this case) the severity of a sentence imposed on an individual count will fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence.  That is because the effect of a heavy individual sentence may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts or, alternatively, a relatively light sentence may, as a practical matter, have increased severity if it is ordered to be served cumulatively.  However, there will be times when it is appropriate to examine an individual sentence 'because it may have proceeded on an incorrect factual basis or it may be tainted by some other demonstrable error':  Giglia v The State of Western Australia [2010] WASCA 9 [40]. This is such a case. For that purpose, these grounds of appeal can conveniently be considered together.

2. A ground of appeal alleging that a sentence is manifestly inadequate relies on inferred error.  When considering whether a sentence is manifestly inadequate, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in respect of theses offences, 25 years' imprisonment and a fine of $100,000), the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender.

3. It is necessary to have regard to sentences customarily imposed in cases involving similar offending in order to ensure broad consistency in sentencing: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [53] ‑ [54]. But in doing so it is necessary to bear in mind that other cases can provide only a broad guideline because of the considerable variation in the nature and circumstances of the offending and the personal circumstances of the offender. The range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought to, sentence in the future: Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] ‑ [40]. Each case must ultimately be determined on its own facts and circumstances.

4. The major sentencing considerations for offences of possession (or attempted possession) of a prohibited drug with intent to sell or supply are general and personal deterrence.  The weight of the drugs in question is a matter of importance, but is not, generally, the chief factor to be taken into account.  Other matters to be taken into account include the nature and level of the offender's participation in drug dealing and whether the offence was committed solely for commercial gain.  The degree of purity is often regarded as significant.  Matters personal to an offender will almost always be of very limited significance, although they are not completely irrelevant: The State of Western Australia v Atherton [2009] WASCA 148 [125].

5. For comparative purposes, we were referred to a number of cases.  We have had regard to those cases, among others, and to the other cases referred to in those cases.  It is unnecessary to canvass all of the cases.  It is sufficient to refer to the following.

6. In Monument v The State of Western Australia [2007] WASCA 239, the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply (499 g at 78% purity) and one count of possession of somatropin with intent to sell or supply. He was sentenced to 6 years' imprisonment on the first count and 1 year's imprisonment on the second, to be served cumulatively. An appeal against sentence was dismissed. The sentence of 6 years' imprisonment on the first count was described on appeal as 'moderate' [18].

7. In Lynch v The State of Western Australia [2011] WASCA 243, the offender pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply (34.76 g at a purity of 34% to 38%). He intended to sell or share about one‑third of the drug and use the rest himself. An appeal against a sentence of 3 years and 6 months' imprisonment was dismissed. The sentence was described as at the high end of the customary range but not manifestly excessive.

8. In The State of Western Australia v Littlefair [2013] WASCA 177, the offender, who was described as a street‑level dealer, pleaded guilty to one count of possession of methylamphetamine with intent to sell or supply (96.9 g, of which 81.7 g had a purity of 44% and 15.2 g had a purity of 36%). The offender was dealing in drugs in order to fund her own drug addiction and to repay a substantial drug debt. A sentence of 30 months' imprisonment was set aside on appeal and a sentence of 4 years' imprisonment imposed.

9. In Formica v The State of Western Australia [2013] WASCA 237 the offender pleaded guilty to one count of selling methylamphetamine and one count of possession of methylamphetamine with intent to sell or supply. The two counts involved a total of 83 g of methylamphetamine at a purity of between 52% and 64%. An appeal against a total effective sentence of 5 years' imprisonment was dismissed.

10. In Bui v The State of Western Australia [2014] WASCA 168, the offender pleaded guilty to two counts of selling of possession of methylamphetamine (26.4 g at 40% purity and 53.3 g at 30% purity). The offender was sentenced to 3 years' imprisonment on the first charge, and 4 years' imprisonment on the second (reduced to 3 years for totality purposes) to be served cumulatively, resulting in an effective total sentence of 6 years' imprisonment. An appeal against sentence was dismissed.

11. In the course of his sentencing remarks, the sentencing judge referred to three cases that he considered were relevant to the appropriate sentences to be imposed in this case because, in his Honour's view, they indicated a 'softening' of the approach by this court in respect of sentences for offending of the nature in this case.  The cases were Guler v The State of Western Australia [2014] WASCA 83; The State of Western Australia v Wilson [2015] WASCA 119; and Stokes v The State of Western Australia [2016] WASCA 87. Whilst the appellant does not rely upon an express error by the sentencing judge in the conclusion he drew from those cases, it is appropriate to say something about the view his Honour he reached. It is convenient to turn first to the cases in question.

12. In Guler, the offender pleaded guilty to two offences of possession of a prohibited drug with intent to sell or supply.  He had been involved in transporting 2,035 MDMA tablets, weighing a total of 509 g with a purity of 18%, and 403 ml of methylamphetamine in liquid form with a purity of 80%, from Sydney to Perth concealed in the bull bar of a motor vehicle, along with 1.063 kg of the cutting agent MSM.  While the offender was not one of the principal offenders, he was a 'willing and very important participant' in the transportation of the drugs and was to be paid $5,000 for his role.  The offender was 28 years of age with good antecedents and the offending was out of character.  He was not a drug user and had been a model prisoner while on remand.  He was sentenced to 6 years' imprisonment in relation to the methylamphetamine and 2 years' imprisonment in relation to the MDMA, to be served cumulatively, making a total effective term of 8 years' imprisonment.  An appeal against sentence was dismissed.

13. In Wilson, the offender pleaded guilty to four counts on indictment, three of possession of a prohibited drug with intent to sell or supply and one of attempted possession with intent to sell or supply, and to 19 charges on a s 32 notice including possession of $196,000 reasonably suspected of being unlawfully obtained.  He was found to be in possession of unlicensed firearms and he had continued to deal in illicit drugs after evading arrest on the first three counts.  The only mitigating factor of substance was his early pleas of guilty.  On the offences on the indictment, he was sentenced as follows:

Count	Offence	Maximum penalty	Amount (purity)	Sentence
Count 1	Attempted possession of methylamphetamine with intent to sell or supply: s 6(1)(a) Misuse of Drugs Act	25 years' imprisonment and/or fine of ≤$100,000	71.4 g (76% purity)	2 years' imprisonment cumulative
Count 2	Possession of methylamphetamine with intent to sell or supply: s 6(1)(a) Misuse of Drugs Act	25 years' imprisonment and/or fine of ≤$100,000	303.7 g (65% ‑ 77% purity)	4 years' imprisonment concurrent
Count 3	Possession of cannabis with intent to sell or supply: s 6(1)(a) MDA	10 years' imprisonment and/or fine of ≤$20,000	2.677 kg	2 years' imprisonment, concurrent
Count 4	Possession of methylamphetamine with intent to sell or supply: s 6(1)(a) Misuse of Drugs Act	25 years' imprisonment and/or fine of ≤$100,000	371.3 g (73% purity)	2 years' imprisonment, cumulative

1. On the charge of possession of the $196,000 on the s 32 notice he was sentenced to 6 months' imprisonment to be served cumulatively on the sentences on the indictment.  The other sentences of imprisonment on the s 32 notice were to be served concurrently with the sentences for the offences on the indictment.  The total effective sentence was therefore 6 years and 6 months' imprisonment.  On a State appeal against the sentences on counts 2 and 4 and the total effective sentence, the court declined to interfere with the individual sentences but the total effective sentence was increased to 8 years and 6 months' imprisonment.  The court observed that had each sentence stood alone, each would have been manifestly inadequate, but because each sentence was reduced on ground of totality (to an unidentified extent), the manifest excess grounds failed.

1. In Stokes, the offender pleaded guilty to two charges of possession of a prohibited drug with intent to sell or supply (MDMA and alpha‑PVP respectively), and one charge of attempted possession of a prohibited drug with intent to sell or supply (MDMA).  He had leased a post office box as a delivery point for illicit drugs.  Three packages were posted to the post office box.  One package contained 329 MDMA pills weighing 80.9 g in total with a purity of 44% to 45%; another contained an inert substance that police had substituted for 468 MDMA pills weighing 115.8 g with a purity of 44% to 47%; and the other package contained 993 g of alpha‑PVP of which 497 g was 5% pure and the balance (496 g) was 6% pure.  The packages were collected from the post office box by another person.  The offender declined to say how much he was paid for making the post office box available but maintained that it was a small amount.  He was sentenced to 18 months' imprisonment on each of the charges involving MDMA and 5 years' imprisonment on the charge involving alpha‑PVP, to be served cumulatively, making a total effective sentence of 8 years' imprisonment.  An appeal against sentence on the ground of express error was upheld.  The sentence on the charge involving alpha‑PVP was reduced to 3 years' imprisonment and the total effective sentence to 6 years' imprisonment.

2. In the present case, in exchanges with counsel in the course of their submissions the sentencing judge commented that (a) the offending in Guler and Stokes was comparable, both involving what he described as 'being the on‑ground manager … of the movement of the drugs' (ts 18), but the total effective sentence in Stokes was 2 years less than in Guler; and (b) this court had not interfered with the individual sentences in Wilson (ts 27).

3. In his sentencing remarks, the sentencing judge concluded that a comparison of those cases indicated this court was 'softening its approach' to offenders such as the respondent, whose offending was 'remarkably similar' to that in Wilson (ts 40).  His Honour considered that it was apparent that this court had identified the need to concentrate on users and what he described as 'peer-to-peer suppliers' (an expression that his Honour did not explain).  In imposing sentence, his Honour expressly noted that the quantities of drugs involved in this case were significantly less than in those three cases and it is clear from his sentencing remarks that his Honour sentenced the respondent on the basis of the 'softening' of approach to which he had referred.

4. The sentencing judge was, however, mistaken in concluding that there had been a softening of approach, as counsel on both sides acknowledged on the appeal (appeal ts 10, 14).  With respect, such a conclusion was not one that could ordinarily be reached on the basis of an inference drawn from a comparison of three cases and it was not one that could be reached in this instance, not least because it was based upon an erroneous analysis of those cases. 

5. In the first place, the circumstances of the offending in Guler and Stokes respectively were significantly different, the offending in the former being more serious than in the latter.  Secondly, the appeal in Stokes against the total effective sentence of 8 years imprisonment was upheld on the basis of an express material error by the sentencing judge in finding that the offender was a 'high‑level operative' and a 'high‑level distributor', when such a finding was not open on the evidence. The jurisdiction of this court to resentence the offender was therefore enlivened. The court noted that had the sentencing judge's description of the offender's role been correct, the appeal would have been dismissed [69]. Thirdly, in Wilson, this court found that had each sentence on counts 2 and 4 stood alone it would have been manifestly inadequate.  Each sentence had, however, been reduced to take into account totality considerations (to what extent was not apparent) and therefore the court was not persuaded that the individual sentences were manifestly inadequate. 

6. In the present case, the sentencing judge expressly reduced the sentence on count 6 by 6 months for totality purposes but there is nothing to suggest that any of the other sentences were reduced for totality purposes.

7. The offending in the present case was very serious.  The respondent was aptly described by the sentencing judge as the sole proprietor of a 'very organised, large‑scale polysubstance drug dealing operation'.  The amount of methylamphetamine involved in each of counts 1, 2 and 6 was substantial and at a high level of purity.  The drug dealing was a commercial operation carried on for profit to fund both the appellant's drug habit and his lifestyle, in circumstances where, as his counsel expressed it before the sentencing judge, the respondent was 'overwhelmed with greed' (ts 15 ‑ 16).  Apart from the plea of guilty, for which the sentencing judge allowed a deduction of 25%, the only mitigating factor was respondent's favourable personal circumstances, which was not a factor of great weight in the context of the offending. 

8. In the circumstances, the sentence on each of counts 1, 2 and 6 was manifestly inadequate.  We would uphold these grounds of appeal.

Ground 4

1. The first limb of the totality principle, on which the appellant relies in this case, requires a judge who is sentencing an offender for multiple offences to ensure that the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally.

2. The relevant circumstances of the offending and the respondent's personal circumstances have been considered above.  In support of this ground, the appellant relied, in addition to the cases already referred to, upon Chu v The State of Western Australia [2012] WASCA 135, Hoang v The State of Western Australia [2015] WASCA 130 and The State of Western Australia v Charles [2016] WASCA 108. It is unnecessary to canvass those additional cases. Suffice it to say that they support the appellant's case.

3. In our view, having regard to all of the circumstances of the case, including the respondent's personal circumstances and all mitigating factors, the total effective sentence of 4 years and 6 months' immediate imprisonment did not bear a proper relationship to the overall criminality involved in all of the offences.  It was clearly inadequate.

4. We would uphold this ground of appeal.

The residual discretion

1. There is no onus on the respondent to establish that the residual discretion should be exercised in his favour:  CMB v The Attorney General for New South Wales [2015] HCA 9; (2015) 265 CLR 346; but no submission has been put to the effect that if any of the grounds of appeal are made out, this court should decline to intervene. There is no reason why this court should not intervene. Error having been established, this court's intervention is required not only to correct the sentences originally imposed, but also to confirm the sentencing principles applicable to the kind of offending committed by the respondent and to maintain proper sentencing standards with respect to that offending.

Conclusion

1. The appeal should be allowed and the sentences imposed by the sentencing judge set aside.  It is necessary then for the respondent to be resentenced.  In anticipation of that eventuality, counsel for the respondent sought, and was granted, leave to file and serve any additional material and submissions upon which the respondent sought to rely for resentencing purposes.  The appellant was given leave to file and serve any submissions in response.  The respondent has filed some further material relating to courses the respondent has completed while in custody, but it is of little, if any, weight for present purposes.  The appellant has not sought to file any further submissions.

Resentencing

1. This court has the necessary material to resentence the respondent and it is appropriate that it do so. We have taken into account all of the relevant circumstances both as to the offending and the appellant personally. They do not require repetition. A reduction of 25% pursuant to s 9AA of the Sentencing Act for the pleas of guilty is appropriate in relation to each offence.

2. Having regard to what is set out above we would, leaving aside totality considerations, sentence the respondent to a term of 4 years 6 months on each of counts 1, 2 and 6.  In our view, the appropriate total effective sentence is one of 6 years and 6 months.  This can be achieved by reducing the term on count 6 to 2 years, and ordering that it be served cumulatively with count 1.  That is the term imposed by the sentencing judge on count 6. 

3. Consequently we would:

   (1)sentence the respondent to 4 years 6 months' immediate imprisonment on each of counts 1 and 2;

   (2)not otherwise interfere with the individual sentences imposed by the sentencing judge;

   (3)not interfere with the orders for cumulation and concurrency made by the sentencing judge. 

4. The respondent would remain eligible for parole.