10. JUDGMENT NO. sum Sudan a St ANY CATCHHORDS Criminal Law - appeal from sentence - whether sentence excessive - whether sentencing Judge erred in imposing cumulative sentences - considerations which apply in fixing non-parole period. Probation and Parole Act 1983 (N.S.W.) Probation and Parole Regulations 1984 (N.S.W.) EDWARD JAMES AMOS v. THE GUEEN ACT G328 of 1984 McGregor, Lockhart and Kelly JJ. t t i? 28 March 1984 Canberra IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION No. A.C.T. G328 of 1984 ON APPEAL FROM THE SUPREME COURT OF ThE AUSTRALIAN CAPITAL TERRITORY EDWARD JAMES AMOS Appellant THE QUREN Respondent JUDGES MAXING ORDER: McGREGOR, LOCKHART and KELLY Jd. WHERE MADE: CANBERRA DATE OF ORDER: 28 MARCH 1985 MINUTE OF ORDER } THE COURT ORDERS THAT: The appeal be allowed. The sentence of three years imprisonment for the offence of breaking entering and stealing; of five years imprisonment for the atfence of assault and of five years imprisonmenc for the offence of Cetainine with intent to hold for advantage be confirmed. Les] . NOTE; The order of the Supreme Court of the A.C.T. that the sentences of five years imprisonment in respect of each of the offences of assault and of detaining with intent to hold for advantage be served concurrently but to be cumulative upon the sentence of three years imprisonment for breaking entering and stealing making a total of eight years imprisonment be confirmed. There be substituted a non-parole period of four years for the non-parole period of six years fixed by the Supreme Court of the A.C.T. Settlement and entcey of orders is dealt with in Order 36 of the Federal Court Rules. Ili THE FEDERAL COURT OF ANISTRALTA } AIISTRALTAN CAPTTAL TERRITORY Na. ACT G328 of 1984 DISTRICT PEGISTRY GENERAL DIVISTON ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRTITOPY RETWEEN EDWARD JAMES AMOS COPAM: McGregor, Lockhart, Kelly JJ. DATE: 28 March 1985 EX TEMPORE REASONS FOR oTDCMENT McGregor J. EDWARD TAMES AMOS (appellant) has appealed aaainst a sentence imposed upon him on 28 August 1984 by Judge of the Supreme Court of the Australian Capital Territory. The appellant pleaded guilty ta the offences set out in short form hereunder. viz. that he - on 6 February 1984 in the Australian Capital Territery did break enter and steal from premises, vin. the om so dwelling house of Andrew Coppin. certain property: xs) on 7 VYebhruary 1984 in the Australian Capital Torrirers being armed with an offensive weapon, to wit, a shotaqun, did assault Andrew Coppin with intent ta rob him: on 7 February 1984 in the Australian Capital Territory did detain Andrew Coppin with intent to hold him, the said Coppin, for his advantage. The s D ntences imposed on the appellant for these effences 'rere respectively three vears' imprisonment. five vears imprisonment and five vears' imprisonment. The last two sentences were to be concurrent but cumulative upon the first sentence, making a total of eight vears. His Honour fixed a non-parole period of six years. The list of the twenty or so miscellaneous objects and cash, the subject of the first offence committed on § Februacy 1984 need not be referred to in detail. I note that no quns were stolen as part of cthat_offence. It is not now suagested rhat the head sentences are excessive in themselves. The acaunds of appeal as arqued were - - at his Honour erred in law or alternatively in the evercise ' of his discretion in ordering that the sentences for the offences of assault with intent to rob and detaining for advantage be served at the expiration of the sentence fer break, enter and steal, That his Honour erred in law in having reaard to remissions A) and reductions that the appellant may become entitled ra under the Probarion and Parole Act 1983 (N.S.W.) and Regulations enacted pursuant cthereto- «whe ing the na senten appellant to a term of imprisonment and fixing non-parole En periad. That his Honour erred in law in fixing a non-parole period which seeks to counteract the reduction of the same to which the appellant may become entitled by virtue of the said Act and Regulations. The first argument for the appellant. in summary, was that his Honour should not have made the sentences, so Far as he did make them, cumulative: rather they sheuld have beon A EH rAancurrent. Counsel submitted that the three offence er Ere par L cf one enterprise "as a matter of fact". Hi ferred to the Hi) ig iy Db ia) evidence. including what he said was evidence of the appellant's intention. He cited the Reasons for Judgment giver on 6 February 1985 by Fox J. in an appeal to the Full Court of this Court by Tania Amos, the sister of the appellant, who participated in the appellant's action. For her offences, she was sentenced bv the same trial Judge and at the same time, wiz. on 28 August 1984, The decision of the Pull Court in Amos v. The Queen, allowing the appeal in respect of the non-parole pericd, 15 unreported and tas given by a bench consisting of Bowen C.J... Fox and Blackburn JJ. (Blackburn J. dissenting) on G Pebruary 1985, Counsel soudhr rao draw from the reasoninag of Fox J. that che offences were parce of " io one enterprise and that this should have been recognized hv making the sentences cancurrent. He referred to Req. ~*,Meivill (1956) 73 W.N. (N.S.W.) 579 at p.583; The Cueen v. Carew (1975) li S.A.S.R. 575 at p.577 and Bentham (1973) 1 O.B. 357. He submitted that the trial Judge gave insufficient weight to the propositions advanced in these authorities. He contended further that in making the sentences cumulative his Honour gave disproportionate weight to the retributive as opposed tc the retormative element of punishment. Counsel's second argument for the appellant relied on the decision of the Full Court of this Court in Paivinen v. The Queen 6 February 1985; unreported). He submitted that the trial Judge had increased the length of the non-parcle period to counteract the effect on it which certain legislation in New South Wales would bring about, viz. reduce the non-parole periad fixed by the trial Judge. Counsel for the Crown submitted that the head sentences in all respects were appropriate. He referred' to Duff v. PR. 2A ALR 663 to support his argument that what had to he considered was the fotality of the sentences imposed in respect of the offences. He did not seek to contest that the trial dudae had indeed increased the non-parole period to offset the reduction which would take place pursuant to the New South Wales legislation referred to in Paiwinen. It is appropriate to make some reference to the facts in this case as thev were considered bv the learned trial Judae, He accepted that the appellant had heen a heroin addict for a fer vears:; that he was heavily in debt to his suppliers and that he undertook the commission of these crimes as a means of pavinga debt he owed to suppliers for heroin he had receiwed. The suppliers, or one of them, according to the appellant, instructed him to come to Canberra and to enter certain premises where he might expect to find 40 pistols or hand guns, to "acquire" them and take them back ta Svdnev and give them to the suppliers. The appellant said in evidence that thev put to him in fact that this would be a wav to pay the debt. No mention was made of a safe. i.e. wherein the guns might be found. The suppliers gave hima shotgun, Thereafter the appellant invited hie sister to drive him to Canberra. On Monday 6 February 1984 he and his sister entered first) the dwelling house of Andrew Coppin in the siubich of Hughes, saw a safe there, but were unable to open it hecause they did not have appropriate equipment. He -~ then stole the articles including cash, the subject of the farst charae. With his sister, he left the premises. having decided to return the follawing dav. On 7 February 1984 the appellant and his sister returned with the intention of breaking open the safe ang stealing the hand guns which apparently they expected to find in it. However, the son of the owner, also named Andrew Coppin. was at home. When he answered the door he was confronted by the appellant «ho pointed the shotaqun at him. He was ordered back into the house and asked for a kev to the safe. He said that ne aid not have this: but he also said there were 20 or 30 quns. referring, as I umderstand him, to the cantents of the safe. While the appellant "kept the aun on him" his wrists were tied behind him by Tania Amos with a tape and a belt. A pillow case was placed aver his heac and he was put ona bed. Then the appellant left the house to endeavour to acquire ozy-acetrlene equipment to cut open the safe. At about 1.30 p.m. that dav Andrew Coppin escaped and alerted the police. The prisoners decamped, began driving to Svdney but had an accident at Picton. Their arrest followed, Io have not attempted to set out all the facts noc completely to re-state the arquments of counsel. The test generally to be applied as to whether offences are part ef a single enterprise has been discussed and authorities referred to in the Reasons of Fox dg. earlier mentioned. His Honour.--in- that ceqard quoted the words of Wells dg. in Dicker wv, Ashton (1974) 65 L.S.d.S. (5,A.) 150 at p.151. ce] On this aspect, in point. his Honour said - ~- "T am of the opinion that. uniess the circumstances are exceptional or the offences in question are the terminal product of separate and independent courses or criminal conduct that happen to have occurred together. a Court is not erdinarily Justified in imposing cumulative sentences of imprisonment far offences that are af a similar character or ordinarily associated and that simply represent facets of one course oar conduct." T note also the viers attributed ta Bray C.J. in Carey ! supra) that "there is no hard and fast rule either way". However, in nv opinion, the hetter view of the facts in this case is that. =a m far as the appellant is concerned. the operations- meaning th ruary 1984, were not and should is offences committed on 6 and 7 Fe co not be accepted as only one enterprise. it is to be noted the appellant went to Canberra ta steal guns, entered the premises on the first occasion, did not steal the quns but made away with a miscellany of objects earlier referred to including cash. On the next day, having returned to open the safe, he detained forcibly Andrew Cappin using the shotaun for that purpose and then left the premises in order to obtain what he thought might be suitable eguipment to open the safe. In mv opinion the learned trial Judae was quite entitled to reaqard these cffences as not part of th i) one enterprise and to treat them accordingly as separate incidents. Upon mv reading of the facts that. with respect. is the hetter view. However. it may well be that this 1s not inconsistent with redarding, from the point of view of Tania Amos, the events as one enterprise. Accordinolv; I see no error by the trial Judge in treating the offences. so far as he did, separately, and fixing sentences which he directed should be served cumulatively. I note that he did however order that the offences of 7 February 1984 be served concurrentiv. As to the second argument, it is not disputed, nor sought to be contested, that in fact the trial Judoae did adopt the expedient of increasing the lenath of the non-parole rericed to anticipate the reduction which it would then suffer pursuant to New South Wales legislation. This legislation is referred ta an detail in the decision of Peivinen {sipra) particularly the Probation and Parole Act 1983 (W.S.W.) and the Probation and Parole Reaquations 1984 ({(N.S.W.). Bowen C.d., ane of the majority in the decision, expressed the following view - "....I have came to the conclusion that it would be incorrect for a sentencing judge in the Australian Capital Territory to increase the period which he would otherwise have fixed as a non-parole period, by reason of the entitlement to remission (subject to forfeiture)." In his Reasons his Honour also referred ta the decision in Pecqina ve. O'Brien (Court of Criminal Appeal in New South Wales: 32 May te 984; unreported) by a maiority (Street C.J. and Lusher d., Cantor ¢. dissenting). His Honour noted that the Victorian Court of Criminal Appeal in The Queen v. Yates (2% September 1984; unreported) and the South Australian Court of Criminal Appeal in Req. v. Brennan (23 February 1984: unreported) reached a similar result on corresponding thouch not identical leqislative provisions. IT again express the view that it is unfortunate that a Judge of the Supreme Court of the Australian Capital Territory, after considering the facts hefore him and. in particular. havind an opportunity to hear and see the accused. as he did in this case, is frustrated in his attempt to fix a non-parole period hv the application of general legislation which takes no accent of the individual case and is passed elsewhere. wD However, in my opinion, I scught not to differ. even if T thought Lhere were coud reasens for duing sa, from the decision in point of this Court in Paivinen so recently given. Accordingly, -so far as the non-parcle period is concerned, [ would uphold the appeal consistent with Paivinen and would substitute far the 6 vear non-parole period a' period of 4 years. The orders I propose are as follows - l. The appeal be upheld. 2B. The sentences of three years and five vears are confirmed as is the decision that they be served cumulatively. ty) ¢ > The mnon-parole period of six years is varied s that there should be a non-parole period of four years. 1 certify ther this nad the 3 receding pages are Atrye copy of fhe easons tor dudqmert herein of his Honour Mr, Justice Me Gregor. Agscuate. |_Desedt 22 March 195 Ca lt te el cre RE, IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. A.C.T. G32B of 1984 DISTRICT REGISTRY ) ) ) ) ) ) GENERAL DIVISION ) ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY EDWARD JAMES AMOS Appellant THE QUEEN Respondent McGregor, Lockhart and Kelly dd. Canberra 28 March 1985 REASONS FOR JUDGMENT LOCKHART J. This is an appeal from sentences imposed in the Supreme Court of the Australian Capital Territory on three charges to which the appellant pleaded guiltv. One offence was for breaking, entering and stealing-:on 6 February 1984. One was for assault upon one Andrew Coppin with intent to rob him committed on 7 February and che other was for detazning Andrew Coppin with auntent to hold him for the appellant's advantage. also committed on 7 February. For the first offence. the learned sentencina Judge sentenced the appellant to three years imprisomment and for each of the other offences, to five years imprisonment, the latter to be served xe — eS eee 2. concurrently but to be cumulative upon the first, making a total of eight years. A non-parole period of six vears was fixed. The appellant appealed to this Court on six grounds. Tne first three grounds of appeal asserted that the sentences were manifestly excessive. They were abandoned before us. The fourth ground was that his Honour erred in ordering that the sentences for the offences of assault with intent to rob and detaining for advantage be cumulative on the sentence for breaking, entering and stealing. The fifth and sixth grounds of appeal raise essentially one point, namely, that in sentencing the appellant the sentencing judge erred 1n law in having regard to the reductions in the non-parole period to which the appellant may become entitled under the Probation and Parole Act 1983 ef the State of New South Wales and the regulations made under that Act. The facts are stated by the presiding Judge so I need not -- ~ refer to them in any detail. The appellant's sister was also charged with the three offences 'to which I have referred and she too has pleaded guilty. The sentencing Judge sentenced the appellant's sister to one year's imprisonment for the offence of breaking, entering and stealing on 6 February and for each of the other offences, to three years imprisonment, the last to be served concurrently but to be cumulative upon the sentence of one year, making a total of four vears. aA non-parole period of two years and s1x months was fixed. The appellant's sister also appealed to this. Court from the sentences imposed in the Supreme Court and her appeal was heard by a Court differently constituted: Bowen C.Jd., Fox and Blackburn dd. Judgment was Given by that Court on 6 February this year. The Court held, by a majoritv, that the sentencing Judge erred in sentencing the appellant's sister by having regard to reductions in the non-parole period to which she may become entitled under the Probation and Parole Act 1983 New South Wales and the regulations made thereunder. The @ppeal was allowed on that ground only and a fresh non-parole period was fixed. I propose to consider first, the argument advanced on behalf of the appellant thet the sentencing Judge erred in law and in the exercise of his discretion in directing that the offences for assault with intent to rob and for detaining for advantage. although to be served concurrently, were to be cumulative upon the offence of breaking, entering and stealing. It was submitted that the three offences in respect of Which the appellant was convicted were part of "one enterprise" within the test laid down in R. v. Melville (1956) 73 W.N. (N.S. ) 579 per Street C.J. at p. 581, or alternatively, were offences "arising out of the same facts" - R. v. Carey (1975) 11 S.A.S.R. 575 per Bray C.d., at p. 577 and therefore that all the sentences should have been concurrent. The learned sentencing Judge held that the offence committed on 6 February was sufficiently separate and independent from the conduct of 7? February to warrant the conclusion that the three offences were not part of the one enterprise. In the appeal to this Court by the appellant's sister, Fox J. (with whose reasons Bowen C.J. agreed, but Blackburn J. dissented) said that he regarded the offences as being all part of the one activity. Nevertheless, his Honour did not think that it had been established that the sentencing Judge erred in reaching the contrary view, doubtless because his Honour thought that it was open for the sentencing Judge on the material before him to approach the matter as he did, especially as "there is no hard and fast rule either way" —- R. v. Carey (Supra) per Bray C.J. Fox J. declined to interfere with the head sentence imposed by the sentencing Judge. This was the view which commended itself to Bowen C.J. Blackburn J., on the other hand, agreed with the course taken by the sentencing Judge, treating the events of the second day as separate from those of the first day and as requiring cumulative sentences. Their Honours were, of course, considering that question with reference to the appeal, not of the appellant, but of his sister. yt I see no purpose in expressing my view on that question in relation to this appeal. It is sufficient to say that it has not been demonstrated that his Honour fell into error in treating the offences on the second day as separate from the offence of the first day. Counsel for the appellant then submitted that, in making sentences cumulative. there is nevertheless a limitation imposed by the necessity tc keep the duration of the sentences qiven at the one time within reasonable and proper bounds. He placed some reliance me et a" ce Nt ct oe 5. upon a passage from the judgment of Fox Jd. in the appeal involving the appellant's sister that tends in this direction. It was submitted that regard must be had to the appropriateness of the total punishment for the whole course of the crime and reliance was placed upon the judgment of the Court of Appeal in R. v. Bentham (1973) 1 Q-B. 357 at Pp. 363. It was submitted that, in making the sentences cumulative, the sentencing Judge gave insufficient weight to these matters and gave disproportionate weight to the retributive element in punishment and insufficient weight to the reformative element. Io am not persuaded that this criticism of the sentencing Judge's reasons are well founded. There remains the grounds of appeal that the sentencing Judge erred in having recard to reduction in the non-parole period- to which the appellant may become entitled under the Probation and Parole Act 1983 (N.S5.W.) and the regulations made thereunder. It seems clear to me, and the contrary was not- -suggested by counsel for the Crown, that the non-parole period was determined by his Honour by adding to the period which would otherwise have heen fixed an amount estimated to counteract the effect of regulation 18 of the Probation and Parole Regulations 1984 (N.S.W.) This regulation was made pursuant to s. 25 of the Probation and Parole Act 1983 (N.S.W.). The effect of regulation 18 is to provide for a reduction in non-parole periods as determined by the Courts by an amount which, 1n general, corresponds proportionately with the remissions applicable to head sentences under the Prison Regulations (1968) (N.S.W.). The exact amount of the reduction of the head sentence and non-parole period depends on the 6. \ behaviour in prison of the convicted person and a number of other matters which occur or may occur after sentence. The question in this appeal is whether his Honour was correct in making the upward adjustment to which I have referred. This question was considered by a Full Court of this Court differently constituted in Paivinen v. R. also on appeal from sentences imposed in the Supreme Court of the Australian Capital Territory. The Full Court gave judgment on 6 February 1985 and held by a majority, (Bowen C.J. and Fox J.; Blackburn J. dissenting) that it is impermissible for a sentencing Judge in the Australian Capital Territory to increase tne non-parole period that he would otherwise have fixed by reason of an entitlement to remissions although this entitlement may be subject tc forfeiture. A similar result was arrived at in relation to correspondina, although not identical, provisions in South Australia. by the Court of Criminal Appeal in R. v. Brennan, £1984] 36 S.A.S.R. 78 and by the Court of Criminal Appeal of New South Wales in R. v. O'Brien, £1984] 2 N.S.W.L-R. 449, and by the Victorian Court of Criminal Appeal, sitting as a bench of five, in R. v. Yates, (1985) V.R. 41. Application for special leave to appeal from the judgment of the Full Court in Paivinen has been filed with the High Court and we are informed that it has been listed for hearing next month. The parties to this appeal are entitled to have the appeal determined hy this Court notwithstanding the pending application for special leave ~e 7. to appeal to the High Court in Paivinen. Tn my opinion, the appropriate course for us to take 1s to follow Paivinen. It follows that the appeal must be allowed. This leaves for our consideration the length of the non-parole period fixed by the sentencing Judge. It is common ground that, if his Honour had taken the course which was later approved in Paivinen, the non-parole period would have been fixed at four, not six years. In my opinion, the appeal should be allowed, but only in relation to the non-parole period anda non-parole period of four years substituted. I agree with the orders proposed by the presiding Judge. 1 certy tnat is and the & preced ng pages av7 a tu? covy cr the yas eee ath FE Reasons {2° (42 t.eércn ci is Fonour (OTe. FS STS Date. tes emcee dere er ARO) IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G328 of 1984 DISTRICT REGISTRY GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: EDWARD JAMES AMOS Appellant AND: THE QUEEN Respondent CORAM: McGregor, Lockhart, Kelly JJ DATE: 28 March 1985 EX TEMPORE REASONS FOR JUDGMENT KELLY J: I agree that the appeal should be allowed in relation to the non—parole period and I agree in the orders proposed. I agree also with the reasons for judgment of the léarned presiding Judge and of Lockhart J. I certify that this avé—-=se 15 preceeding petrs are a true cony of tre Reasons for Judgment herein of 21S nGuwk' Mr Justice Kalle ius Associate Dated: R7 Marveh iGss criminal Baty - appenl from sentence - whether sentence excessive - whether sentencing Judce erred in inpesing cCuysciative sentences - consicerations which arclivy in fixing non-parcle period. Prebation and Parcle Act 1285 (N ne) . EDRERD JAMES AMOS v. TH= CUEEN ACT 3328 cf 1°84 ft. Md ie] Sa Ws a O m n c& Ww us 1) F. Wy ) G 4) us io (a) be uy ) C3) wv 13 ad al gi c Net u io ed H is) eo rm re a is) ol 4 we G ha (3) 7) Ne Si & Q NS] ay ort 44 a D [9] wo re io lio Gy Peay n ed ie a ks Se ed @ J ws a r4 iF bt 4) w Qty rt Oo 14 % > ™ a Ss 44 Ut) od oe] rey) wr fal Foe cit) i) Sh vu i f. e ny % QO ue if 4) ey ia] w Oo Nt ut {i} SS Mm A wo ful og i bt ya i) Q shi . Oo SC Cc Ct en ry fan) rt YY | et G ue] fd Ay a) fool ~aa Ma T fra mM ef ae) B 4 as) "St as rt Lo) i) ny Vv ie He fap] w kal 1 We 4 cd ra | Ur of At a 3 roy) qd ' 05 t ' <i ' vu 0 ef uw G @ tI 1 <3 o i s iw) py OQ : vo ha ay nity di fy 3 net ni {21 {rf f a) Ps) om 44 lw om mm Fy et 1 Oo a oO & rt uot of "ch U hy oO Ww oO u Q) =a oO cc) uy " 1) 4) i+ 13] HH aQ o ff ov * F Oo Gd 44 oy) 4 Hl oa S us et fi at qi oO oS mo mR ris) 4) ur a Fe Pad i wn Oh 1 OG Out on?) oO my Da ip 4 et 4 wy est " ita ay non 4? te] HH) in wy mG [| «$ ol a ls] a Mm vou Wy fy > a) += a oO rs) ) Sa [3] gy re) yO 4 2) Bo oom 8 im) gq 3 Oo EH f = Sy & t) 1} ay iy tH) ay n o fo) fs rs {1} hj (a) -I d Yo a fry uy per pa fl H fx] ed fa D> © «a ( . : AY Hb & A i] wd oF] fos . The orders oF bhe Surssrne Court of th R.O.D. inal tne sentences of five vears iv~prisomment ain cespect oF each ct for advantage be served concurrently but to be cumul entering and stealing making & total cf imprisonment be confirmed. There be sutstituted a non-parole period of four vears for the non-parole period of six years fixed by the Supreme Court I or the A.C. Settlement and entry of orders 13 Gealc with in Order 35 of the Federal Court Rules. Ty) TRE FEDERAL COMET OF STISTRALTT 3 } ANISTPALEAN CAPiTAL TEPPITAPy ' \ MrCreaqar KATE: Té@ March McGregor J. sentence impased Supreme Court of da ple a ryuilctv that he - oné F OM APFEPRAL AUSTE CCUPT AT THR i = a ' J HAI -£ 14 fap) ary & cl THE OAWERN - Leerhact, Pellvy 2 appellant Peependenr andreas Coppin. cer "ain peorpertr: FPeteuary L902 ap the custeatian "apirai Yreoruters an 7 Februarw 19°4 in the Tererwriry dad dcotain nolo ohim, The nAid hie RAT ADT AGE. i7]fa] cr MnN wy n aU i$Fi u m p rs) =) rt zr if] pm wry é) v eT - a ra er h a rq rr > a at 0) rm hth Vh mn m LH) a ~b s in} "S ap mM ne] i) ny ct be < fet Ye ¢ + 'y s D i) vey ne) hi Ln n st'OSoe in is)no ye) cr rh je t tT ew FS ie) ba] im iss) "Fa a a ¢ a pa] ©. rh ta <t Bi) rf fu ta i) bs = re]B 17) y a Ft onie re Ps) ib pe g if) a it fa] Prmm ns D " ra] fam Bi) nm3 A Q Ln1)ee rr pa + ny = Es iB el » cl1D Gs a a] ct ayay i) Lay ul ot sentences mn ae QaQ = ts mh ia MM 0D ya Hy) sentence, making a total of eight veacs. Ri pon-parcle period of six vears. ef his discretion in srdesingd that the senrences fore rhe gers im apd reductions that che anrellann mat etal ander cho Prokaticn ann Farris Ror Lae CU,3.Tr + and Femulations enacted Therers. shen sanrencind rhe appellant +t. a rerm oi imprisonment and f A ren-parols period. That has Honeur erred in aw in fining & non-parcle rpericed of the same to is) i ie) cr jn oO a which seeks to counteract the re: entitled by virtue of the said Act The first arqument for the appellant, in suwnacy, wRe that his Honour should not have made the senrences, sc far as he dia make them, cumulatz- D i) ua crnf at x A i a re p 3! hhi rr fh ot =) eancurcent. Counsel submitted rhac the thee- offences were part ef one enterprise "as a matter of fact". i@ rererrsd -o the L Tania Amos. the sister of the appellant. who participated in the appeal in respect of the non-parole oeried, i- unveported and was given by 4 Eench consisting of Faxer C.J, Fat and Blackrirn TT, T. dissenting) oan © Pebruacy LUFF Ceumsel sciucdhnr m4 draco trom foe reasoning of Dr 7. ean the offerre+ cere casc oc Counsel's second argument for the appellant relied on She decision of the Full Court of this Court in @airinen wv. Tre al ate Queen & bruarcy 1985; unreported). He submitted That the Judge had increased the lenath of the non-garcle pericd ¢t counteract the effect en 1m Which certain South Wales would bring about, vic. reduce the nen-parcle oericd Counsel for the Crown submitted that the head Was the rornality of che sentences iumpocea in respecnr Of tre offences. He dig not seek to contest that the crial Judge had accordin ene of then, 'Q Canberra A find or hand Srda@n appellant said in evidence that th put to would be Late <= ULpMent. hi did not hare chis: but ke also said there ware 20 ar 29 aune, ceeferring, as I twnderstand him, to the contents of the safe While the appellant "kept the qaunoon him" his wrists were *ied behind him by Tania Amos with a tape and a belr. A cace was placed aver his head and he was put on a Fed Then fhe equipment to cut open the safe. At about 1.70 p.m hat dav Andrew Coonin #ecaped and alerted the police. The pritoners decanped., beqan driving to Sydney hut had an accident at ricren, Their arrest followed. IT have not attenpted toa set cut all the facts noe completely to re-state the arquments of counsel. are part ot ai single enterprise has been discussed anc authorities referred to in the Reasons of Fox J. earlier t (0) mentioned. His Henour. in that cecacd quoted the words of Wel TT, in Dicker v7. Ashton (12974) 65 2.5.7.5. (S.a.) 150 at p.tSl. On this aspect. in point, his Honour said - Tam of the a ar] #xcepticona terminal prod courses ar cr rred tede YY ra that "there is no hard and fast rule either wat". Hawerver, in wr effences committed on 4 and 7 Febouary LSf4t, were nor and sheuid not be accepted as only ane én appellant went to Canberra the first occasion, didn miscellanr of objects earli next dav, having returned to apen the safe, he detained forcibly Andrew Coppin using the shotqun for that purpose and then leit the premises in order to obtain what he thought might be suitable inconsistent with regarding, from the point of view of Tania by the fcial Sudee in treating the offences, ao fac as he acd, separately, and fixing sentences which he directed shoulda be served cumulatively. Lonete that ne did however order that the Aas to the seceand cr »is) i) vr or) wn cr 4) fu N + Y sought tn t + i) % ia a] uv yl Ie Oi) J cr % rh re ia nN 1S v o WN + a q oT Da) » i] el Hv cs) BE ui All e te m et tty ny i) fel A vt me] . "g na if] og r=) ot a rs fa to New South Wales legislatzen. This leqistatzion is i cre and "ne ....D have come to the incorrett for a2 senten Capital Yerritory tor would srherwise have f by reason of the entit toa torfeiture)." $00 a Ri nr HPO Ram ei =) > Rs in ma O14) a Nn Q a in > H. in Honour also veferced to the deczisicn in Peqina .9'Brien (Court of Criminai Appeal in New South Wales: 3 Mav 1984: unreported) by ai maiorit~ (Stye=sx C,7. and Lusher TJ., Cantor J. dissenting}. Has moncur noted that "he "ictarian Court of Criminal Aposal in The Cueen wv. Tates (25 feprember i394; cA c) rt unreoorted) and the uth Australian Court of Crininal Appeal in m 2p ~ Fea. v. Brennan (23 rdary 1S@4; unreported) ceached a result en corresponding though not 1wdentical legisla z. Judge of the Supreme Court of the tuerralian Capital Tervritorr. after consicerina the facts befcre him and. .n farticular, "bh However, in my counion, T aught not fa Aiffer. even iz ft thought there were acod reasons for doing so. frem the decition Ps) in peint of THis Court in Fawrinen sa recentiv give concerned, T wouid uphold the appeal consistent oe] would substitute for the 64 vear non-parcle pericd a period of 4 vears. The orders I propose are as follows - 1. The appeal be -ipheld. 2. The sentences af three vears and five vearcs are confirmed as is the decision thar they be served cumulatively 3. The non-parole seriod of six vrenrs is varied en that there should be A nen-parole pericd at four years. | | certify thet thle rad the 3 preceend pages Gre @ frye copy of the ease as far dedgment herein of his Honout Mr, Tesuee McGregor. dn rie L 0K | Associate i betedi 2S (Maren 19S is) = O + ' G ta N oO ie) Ky ~ fey Mm he eww eww — ON APPRAL FRG BH TEE AUSTRALIAN Ca EDWARD GAMES AMOS Appellant THE QUEED Respondent McGregor, Lockhart and Kelly JJ. Canberra 28 March 1985 REASONS FOR JUDGMENT This 15 an appeal from sentences imposec in the Supreme court of the Australian Capital Territory on three charges to which the appellant pleeded cuilty. One offence was for breaking, entering and stealing'on 6 February 1984. One was for assault upon one Andrew Copyin with intent to vob him committed on 7 February and oh. FAreg ' iy a) as for detaining Andrew Coppin with auntent to hold him for che a Wy A g a fo Q s pes n oO Q Oo Es} "s en tced on 7 February. Far the first offence. the learned et ITE Tee the avpellant lo three years imporiso ument the otier ofrences. ta five vears ixprisomment. the latter to be served concurrently but to be cumulative ugon the farst, making a total ci €ight vears. A non-pacole period of six vears was fixed The appellant appealecé to this Court on six gycunds. Tne first three grounds of appeal asserted that the sentences were manifestly excessive. They were abandoned berore us. The fourcth ground was that his Honour erred in ordering that tne sentences for the offences of assault with intent to rob and detaining for advantage be cumulative on the sentence for breaking. entering and stealing. The fifth and sixth grounds cf appeal raise essentially one point, nemely, that in sentencing the appeliant the sentencing judge erred in law in having regard to the reductions in the non t re] mi el ie) fn i) DO oie) Qo fA. ct ie] which the appellant mav become entitled under the Prebation end Parole Act 1983 of the State of New South Wales and the requilations mace The facts are stated by the presicine Jucge so I need not refer to them in any detail. The ellant's sister was aiso charged with the tnreé offences to which I have referred and sne too has pleaced quilty. The sentencing Jucce sentence@ the anpellant's s1stes to one year's imprisonnent for the offence of brea February and far esach of the other cifences. to three vears non-parole cericd cf two years anid cix months was sumed. The appellant's sister also appealed to -tnis Court fram the sentences imposed in the Supreme Court ard her appeal was heerc by a Court differently constituted: Bowen C.d., Fox and Bilacwsurn Jd. dudament was given by that Court on 6 February this year. The Court held. by @ majority, that the sentencing Judge erred in sentencing the appellant's sister bv having regard to reducticns in the non-parcle pericd to which she may become entitled under the Probation and Parole Act 1983 New South Wales and the regulations made thereunder. Tne appeal was allowed on that ground only and a fresh non-parole period was fixed. T propose te consider first, the arcument advanced on behalf of the appellant that the sentencing Judge erred in law and in the exercise of his discreticn in directing that tne offences for assault with intent to rob and for detaining for advantage, although te ce served concurrently, were to be cumulative upon tne offence ct breaking. entering and stealing. It was submitted that the three offences in respect of which 'the appellant was convicted were part of "one enterprise" within the test laid down in R. v. Melville (1956) 73 W.N. CN.S.HW.) 6579 per Street C.d. at p. 581. cr aliternatively, were offences "arising cut of the same facts" - BR. v. Cavey (1975) 11 S.A §.R. 575 cer Bray C.7., at p. 577 ard therefore that all tre sentences shcula have been concurrent. The learned sentencing Cuace helf hat ron a aa Thesg Cea ay sy = of anon nesc vias che Jrrence cowrmitcceag on o rénruary 7a S SuLracClenu:7 senacate anc irdevendent from the conduct of 7 February to warrant tr conciusicon tina. the three offences were mot part ef j%«r.e se in the appeal to this Court by the appellant's sister, (with whose reasons Bowen C.J. agreed. but Blackburn dg. cissenvec} said that he régarded the offences as being all part of tre ore activity. Nevertheless, nis Honour did not think that it had heen established that the sentencing Judge erred in reaching the contrary view. doubtless because his Hcnour thought that it was open for the sentencing Judge on the material before him to approach the matter as he did, especially as "there is no hard and fast rule either way" - R. v. Carey (Supra) per Bray C.J. Fox J. declined to interfere with the head sentence imposed by the sentencing Judce. This was the view which commended itself to Rowen C.J. Blackburn d.. on the other hand. agreed with the course taken by the sentencing Judge, treating the events of the second dav as separate from those of the first day and as requicing cumulative sentences. Their Honcurs were, of course, considering that question with reference to the appeal, not £ the appellant, but of his sister. I see no purpose in expressing my view on chat questior in relation to this appeal. It is sufficient to say that 2t has not been demonstrated that his Honour fell into errer in treating the offences on the second day as separate from the offence of the first day. Counsel fcr the appellant then suprmittead that. in ma«ing sentences cunulative. there is nevertheless a limitation imposed DY 5. upon a passaqe from the Jucomernt of Fo "s Gl b <3 cr myi Oa] "th ow fo bs rt a od Q FeiH Q fal i) @ Ga ct be n te)cr £ y U un is 9)i cr a a AQ s Sister that tends inthis dir that regard must be had to the appropriateness of the tocal punisnmert for the whole course cf the crime and reliance was placed uronm the judgment of the Court of Appeal an R. v. Bentham (1973) 1 Q.B. 357 at p. 363. It was sukmitted that, 1n meking the sentences cumciative, the sentencing Judge gave insufficient weight to these metters anc gave disprorortionat a weight to the retr2butzrve element in vounishnent and insufficient w 1) ight to the reformative eiement. Io am not persuaded that this criticism of the sentencing Judge's reasons are well founded. There remains the grounds of appeal trat the sentencing Judes erred in having regard to reduction in the non-parole periscd to whicn the appeliant may become entitled under the Probation and Parole Act 1983 (N.S.W.) and the regulations made thereunder. It seems clear to me, and the contrary was not suggested by counsel for the Crown, that the non-parole period was determined by his Honour by adding to th oO period which would otherwise have been fixed an amount estimated to counterect the effect of regulation 18 of the Probation and PSarole Regulations 1984 (N.S.W.) This regulation was mace pursuant to s. 25 of the Probation end Parole Act 1963 (N.S.W.). The eife ct Of Qn 5. ' behaviour in prison of the canvyicted person and a2 numper cof other matters which occur or wav occur after sentence. in making the upward adjustment question was considered by @ Full Court of this Court differenriy constituted in Paivinen v. R. also on appeal from sentences imposed in the Supreme Court of the Australian Capital Territory. The Full Court gave judgment on 6 February 1985 and held by a majority, (Bowen C.¢. bh ang Fox J.; Blackburn J. dissenting) that it is impermissible for a sentencing Judge in the Australian Capital Territory to increase the non-parole period that he would otherwise have f (b ad by reason of an H entitlement to remissions although this entitlement may be subzect to A similar result was arrived at in relation to Corressonaing, although not identical, provisions in South Australia by the Court of Criminal Appeal in R. v. Brennan. £19842 26 5.A.S.R. 78 and by the N.S.W.L.R. 449, and by the Victorian Court of Criminal Appeai, sitting as a bench of five. in R. v. Yates, (1985) V.R. 41. bel ' 'O pa aa Q sn fay es Q oa ry a * un 'Oiv] bh iM)te oO m Q cr oO gp ao] 'S oO " be rh nN °ct iP) a Ws SS -. Q Bbo] ct ao Ih ave unformed that it has Seen jisted for hearing next month. The 7. to appeal to the High Ccur- in Paivinen. In my opinisn, -:2 appropriate course for us to ~axe 1s to follow Paivinen. It iol_sws that the appeal must be allowed. the cay This leaves for cur consideration the length o non-parole period fixed by the sentencing Judge. It is common ercund that, 12 his Honour had taken the course which was later approved in Paivinen, the non-parole period would have been fixed at four, not six years. In my opinion, the appeal should be allowed, but only in relation to the non-parole period anda non-parole period of four years substituted. I agree with the orders proposed by the presiding Judge. | cart y tnat t-s and tte & preced ng pages 277 a trot cory ci the Reasons {2 ce-r7 $2727 o7 fs Fonour Mr, Justice Locn: 2 . IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) } No. ACT G328 of 1984 DISTRICT REGISTRY ) ) ) GENERAL DIVISION ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY BETWEEN: EDWARD JAMES AMOS Appellant AND: THE QUEEN Respondent CORAM: McGregor, Lockhart, Kelly JJ DATE: 28 March 1985 EX TEMPORE REASONS FOR JUDGMENT KELLY J: I agree that the appeal should be allowed in relation to the non-parole period and I agree in the orders proposed. I agree also with the reasons for judgment of the learned presiding Judge and of Lockhart J. sie 1S stare & trust Cu ty Gi