New South Wales Court of Criminal Appeal CITATION : R v Marshall [2001] NSWCCA 283 FILE NUMBER(S) : CCA 60131/00 HEARING DATE(S) : 12 June 2001 JUDGMENT DATE : 24 July 2001 PARTIES : Regina v David Gregory Marshall JUDGMENT OF : Smart AJ at 1; Newman AJ at 60; Badgery-Parker AJ at 61 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/71/0106; 99/71/0099 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : (A) S J Odgers SC (R) P G Berman SC SOLICITORS : (A) D J Humphreys (R) S E O'Connor CATCHWORDS : Omission from Summing-Up of element of offence but complete as to lesser offence - substituted verdict - Sentencing - slight reduction because of substituted verdict and principle of totality - parity challenge rejected CASES CITED: Osland v The Queen (1998-1999) 197 CLR R v Tangye (1997) 92 A Crim R DECISION : (1) Appeal against conviction on Count 1 of the first indictment allowed; conviction for aggravated break enter and steal from Ms Gower quashed and in lieu thereof substitute conviction for break enter and steal (2) Quash sentence on Count 1 - in lieu thereof appellant sentenced to a fixed term of 2 years imprisonment to commence on 6 August 1999 and to expire on 5 August 2001 (3) Leave to appeal against sentence on Count 2 of first indictment - aggravated break enter and steal from Ms Duffy refused (4) Leave to appeal against sentence on Count 1 of second indictment - armed robbery of the Woods - vary date of commencement of that sentence - in lieu of the commencing date of 6 August 2002 for the sentence of 7 years for armed robbery that sentence is to commence on 6 August 2001 and expire on 6 August 2008 with a non-parole period of 4 years starting on 6 August 2001 and ending on 5 August 2005. IN THE COURT OF CRIMINAL APPEAL 60131/00 SMART AJ NEWMAN AJ BADGERY-PARKER AJ Tuesday 24 July 2001 REGINA V DAVID GREGORY MARSHALL JUDGMENT 1 SMART AJ: David Gregory Marshall appeals against his conviction on a charge of aggravated break, enter and steal from the dwelling house of Leanne Gower on 30 July 1999. The circumstance of aggravation was that he was armed with an offensive weapon, namely, a wooden axe handle. He also seeks leave to appeal against the severity of sentences imposed on that charge, a further charge of aggravated break, enter and steal from the dwelling of Christine Duffy on 30 July 1999 and a charge of armed robbery on 19 June 1999 2 The appellant had pleaded not guilty to the two charges of aggravated break, enter and steal. On each of these counts he was convicted and sentenced to fixed terms of imprisonment for 3 years to date from 6 August 1999, the date of arrest. On the armed robbery charge, to which he had pleaded guilty, he was sentenced to imprisonment for a minimum term of 4 years starting on 6 August 2002 with an additional term of 3 years starting from 6 August 2006. Effectively, he received fixed and minimum terms totalling 7 years and an additional term of 3 years. The Conviction Appeal 3 Ms Gower lived in Peel Street, Albury with her 4 year old son. She met the appellant in November 1998 and developed a romantic relationship with him in the first half of 1999. In June 1999 she met the appellant's brother, Paul. He was about 6 feet tall with a medium, good, manly build with bleached and cropped hair. About 8.30pm on 30 July 1999 she was at home with her son when she heard a knock on the front door. She asked who it was and a voice said "Greg". She took this to mean it was a friend of hers from Queensland who had returned. She became excited and opened the door. A man charged at her, put his hands on her shoulder, pushed her up against the wall and told her not to turn the light on. He had a stick about 18 inches long. The man was about 6 feet tall with a good, manly build. He had a light coloured flannelette jacket or shirt tied and knotted around his face. The man raised the stick over his head and asked where Dave Marshall was. She replied that she had not seen Dave for a few weeks, that he was not in the house and that he could have a look in the house. He said that he would use his stick and the gun in his pocket. He told her to show him through the house, not to turn the lights on and not to look at him. As she took him through the house he picked up her handbag. It contained a purse with some money as well as personal belongings and personal papers. As he walked out the door he said "Tell Dave, I am going to kill him, I am going to get him". He said, in response to her question, that his name was "John". He left taking her purse and bag. She heard a car start. She could not see it. She went to her neighbours and telephoned the police who attended her house. 4 The next day a man delivered her purse to her house, saying he had found it in Calimo Street, a fair way from her house. Her licence and some papers remained but $40 was missing. 5 Ms Nicole Hartigan gave evidence that she, Ms Debbie Hancock, Mr Paul Marshall and the appellant had spent much of 30 July 1999 amongst other things, beer drinking at various places. They travelled in Debbie's Commodore. She complained that she needed some money to buy some more drink. The appellant said that he knew "a chick" who should have received her pension money. He drove to the corner of Cowper and Peel Streets near the Mercy Hospital. He pointed out a house to Paul Marshall and stopped the car about three or four houses up the road. The appellant told Paul Marshall to knock on the door first. Paul Marshall replied that he knew what to do. He insisted that Ms Hartigan take off her flannelette shirt and give it to him. He wrapped it around his head, got out of the car and grabbed an axe handle with grey tape around it which was beside the front passenger seat. The appellant, who was in the driver's seat instructed Debbie Hancock who was in the rear seat to keep the back door open. 6 While Paul Marshall was in Ms Gower's house the lights of the car were switched off but the engine was running. After some minutes Paul Marshall came running back to the car. As he got into the car he said "I've got the bag". The appellant drove off. Debbie Hancock and Paul Marshall went through the bag in the back of the car. Then they threw the bag out of the window. Paul Marshall stated that there was no money there and complained that he had risked his neck for nought. Ms Hartigan identified the bag and the axe handle. The appellant and the three others drove around the back streets of Albury for a period. Paul Marshall then identified a unit where there might be some money. 7 Ms Hartigan denied that the appellant was not with her at all on 30 July 1999. She further denied that the Commodore was driven by her during the day and not by the appellant. She insisted that both Paul Marshall and the appellant talked about going to the unit in East Street where Ms Duffy lived. Ms Hartigan took over driving the car near the unit in East Street and followed the appellant's instructions as to where she should wait with the car while the second job was being carried out. She was told to keep the engine running. David and Paul Marshall entered Ms Duffy's unit. One of them held what looked like a pipe in his hand. He held the "pipe" about an inch from her face. The other man went into her bedroom. Both men had flannelette shirts knotted around their heads. After the men left Ms Duffy found that her purse was missing. The men ran from the unit with their jackets over their heads to the waiting vehicle. The appellant said "Let's go". He told Ms Hartigan to drive normally. 8 Ms Hartigan said that on 7 August 1999 the appellant telephoned her and told her not to tell the police anything if they came around. She became worried because she was being involved because of his conduct. He said to her that the police asked him where he had been on 30 July 1999 and he had told them that he had been at Howlong for the last couple of weeks. She said that Paul Marshall telephoned her the following day. 9 Debbie Hancock claimed that on 30 July 1000 she had drunk a great deal and that she could not remember anything from leaving the Carrier Arms Hotel to waking up in front of the Boomerang Hotel on the Wagga Road. It appears from Ms Hartigan's evidence that the arrival of the party near Ms Gower's house occurred shortly after they left the Carrier Arms Hotel. While no estimate of time was given it seems that it was about ten to twenty minutes. 10 The arrival of the car on the Wagga Road occurred after David and Paul Marshall had entered a unit in East Street to steal some money from Ms Duffy. Ms Hancock did, however, remember that on 30 July 1999 she spent some time in the company of David and Paul Marshall and Ms Hartigan in the morning, the afternoon, the late afternoon and evening. The appellant drove Ms Hancock's Commodore in the evening as well as at other times. Ms Hancock said that after she woke up on the Wagga Road she and the appellant had an argument. After some further incidents she and Paul Marshall had an argument. Her car had run out of LP gas and she walked home. He had driven her Commodore after it had stopped on the Wagga Road. 11 Ms Hancock recognised the axe handle with the grey tape around it. Paul Marshall had done that and placed the axe handle in her car. It was there on the morning of 30 July 1999. She agreed that Paul Marshall had moved in with her in mid-June and that prior to 30 July 1999 she had met the appellant once or twice. Ms Hancock rejected the suggestion that the appellant was not with the group at any time on 30 July 1999 and that another man was with them. She denied that she had implicated the appellant in the events of 30 July 1999 because she was afraid of some other person who was with them. 12 Both Ms Hartigan and Ms Hancock were granted indemnities from prosecution by the Crown. Both were accomplices. The jury was given the required warning. 13 On 31 July 1999 the police searched the Commodore. A stick with silver tape wrapped around the end was found under the front seat. Also found was a TAFE enrolment form in the name of Leanne Gower. 14 In his recorded interview with the police the appellant stated that he did not know where Peel Street was and did not know anyone who lived there. He did not know Leanne Gower. He said that he was in Howlong on Friday night 30 July 1999 and had been since the Tuesday or Wednesday of the previous week. He denied that he had anything to do with the offence in Peel Street. He had not had a drink for ages. He knew a girl named Niki but she was not his girl friend. He had met her drinking in different hotels on Friday. 15 In his evidence the appellant stated that in early June 1999 he came up to Albury from Melbourne and stayed at 13 Hibiscus Crescent with Nicole and Tracey Hartigan, Tracey's children, his brother Paul and a number of other people. Tracey moved to 35 Hibiscus Crescent and when Paul Marshall left after a few days he stayed there. He did not have a sexual relationship with Nicole. He was not interested. 16 The appellant further testified that he did not know a woman called Leanne Gower. However he recognized a woman who had given evidence as a friend he knew as Leanne Dutton. He had been to her house on several occasions and had taken his brother Paul over there once about eight months previously. After his record of interview with the police he asked Det Howard if the woman named Leanne, about whom he had been questioned, was Leanne Dutton. He did not know that she lived in Peel Street but he knew she lived near the Mercy Hospital and how to get there. 17 The appellant denied Ms Hartigan's version of the events of 30 July 1999. He denied telephoning her at a later date and saying "Don't tell the police anything". In cross-examination he agreed that he had a romantic interest in Leanne Gower in 1999 but said that there was no sexual relationship. He agreed that he had been in Albury on 30 July 1999, because he found out on 29 July 1999 that his fiancee was pregnant. He went to see her on Saturday 31July 1999. He agreed he had told police that he had been in Howlong from about 27 or 28 July 1999. He had not gone to any pubs or hotels on 30 July 1999 because he was on the run from police and so did not go out of the house until he went down to Howlong. 18 I have not endeavoured to refer to all the evidence. Much of it was not directly relevant to the first count as to Ms Gower's house. The evidence reveals that the appellant, his brother and Ms Hartigan and possibly Ms Hancock were short of money and cruising around Albury looking for people to rob. The victims chosen were known either to David Marshall or Paul Marshall. 19 The issue fought at the trial as to the first count was whether the appellant was present with his brother, Ms Hartigan and Ms Hancock during the afternoon of 30 July 1999 and importantly whether he went with them to Peel Street in Ms Hancock's car. It was the appellant's case that he was not there and that there was no agreement to break, enter and steal from Ms Gower and her home. 20 Appeal Grounds 1 and 2 read: 1. The trial judge failed properly to direct the jury regarding the elements of Count 1. 2. The conviction on Count 1 was unreasonable. 21 The appellant submitted that as the Crown case was that he was a party to a joint criminal enterprise with his brother to commit the offence, his liability was that of a principal in the first degree and he bore equal responsibility with his brother: Osland v The Queen (1998-1999) 197 CLR paras 69 et seq; Tangye (1997) 92 A Crim R 545 at 556-7. 22 The appellant submits "(a) break and enter: the evidence was that the appellant 'started telling Paul to knock on the door first and Paul kept repeating "I know what to do, I know what to do."' (T 50.45) It is not self-evident from this evidence that there was an agreement to break and enter the premises of Ms Gower. It is not impossible that the appellant intended that his brother would find out if anyone was home and, if not, search for an open window. While this may perhaps be regarded as implausible, it was necessary for the jury to be clearly directed that they had to be satisfied beyond reasonable doubt that there was an agreement between the appellant and his brother to break and enter the premises of Ms Gower. This the judge failed to do, referring only to an agreement "to gain entrance to these premises" (SU 11.3). (b) at the time being armed with an offensive instrument: it was necessary for the judge to direct the jury that they had to be satisfied beyond reasonable doubt that the appellant agreed with his brother that his brother should be armed with an offensive instrument at the time he committed the offence. No such directions were given. The evidence in this regard was only that the brother grabbed "an axe handle beside the front passenger seat" (T 50.52) as he left the car to walk towards the premises. There is no evidence of any prior discussion of the axe handle and no evidence that the appellant was even aware that his brother had taken it with him. There was insufficient evidence to establish, beyond reasonable doubt, agreement in this regard." 23 At SU8 the judge directed the jury that the Crown had to prove each of the ingredients of the charge beyond reasonable doubt. He explained each of these. He directed the jury that breaking and entering could happen by obtaining entrance by means of a fraud or trick and that this was what Ms Gower alleged. (SU 9) The judge at SU 9 explained to the jury that they had to be satisfied that the accused was armed with an offensive instrument, that this meant that the instrument had to be capable of being used offensively, that is, to attack a person in an offensive way. He directed their attention to the axe handle which was an exhibit. It is obviously an offensive instrument but the judge was careful to leave that issue to the jury. The judge also explained what the ingredient of stealing meant. 24 The judge at SU10-11 stated: "The real issue here is was it the accused's brother that went in there and was the accused involved in the way that I will come to. Because what is alleged by the Crown is in relation to the first of these, that there was an agreement between the four people in the car, that is the two women who have given evidence, the accused., and his brother, that they would go to these premises which the accused is alleged to have said he knew, because he knew the woman there, and that they could get some money there for some more drink. And that he told his brother what to do, where it was, how to get in, and go around, and he stayed in the car. Now if there was this agreement between them to gain entrance into these premises, and for the property that he has stolen in the premises, then it matters not that the accused stayed out in the car, or that the others were in the car. They were all party to this agreement, that the stealing take place and that the man, Paul Marshall, go in there. And that being so they are all equally guilty. If you find this accused was party to that agreement, matter for you. But that is the basis of the Crown case that he agreed and took them there, told them, he planned it in effect because he knew where the place was, he knew there was money there, he told his brother what to do and then he sent his brother in wrapped with the girl's - if you remember Nicole said he asked for a shirt and she took her shirt off, or jacket or whatever, and wrapped it around his face and went in. And the Crown suggests to you that if that takes place, then the accused is just as guilty, and in law if you find that to be the situation the persons that stay outside are equally as guilty as the person that goes in." 25 The judge at SU 12 stated: "So the real issue is was he (the appellant) one of the persons that was involved in the first one telling his brother what to do …" 26 When the judge's direction that breaking and entering could happen by obtaining entrance by means of a fraud or trick is coupled with his further direction that they also had to be satisfied that there was an agreement between the four people in the car that they would go to the premises selected by the appellant as he knew the woman there and get some money for some more drink, the jury would have understood that they had to be satisfied that there was an agreement to break and enter by means of a fraud or trick to steal money. The judge reminded the jury of the evidence that the appellant in the presence of the four people, told his brother what to do, where it was, how to get in and go around. The judge in this context referred to an agreement to gain entrance into the premises (selected by the appellant) for the property stolen. 27 There was ample evidence to justify the jury concluding that there was such an agreement and that it was implemented. 28 I reject the contention that the judge failed to direct the jury that they had to be satisfied beyond reasonable doubt that there was an agreement between the appellant and his brother to break and enter the premises of Ms Gower. 29 The submission that the judge failed to direct the jury that they had to be satisfied beyond reasonable doubt that the appellant agreed with his brother that he should be armed with an offensive weapon is correct in the sense that no direction was given in those terms or in any other terms that would suffice. 30 The judge told the jury that they had to be satisfied that Paul Marshall was armed with an offensive weapon and he explained what that meant. He also explained that they had to be satisfied that the appellant was a party to the agreement to go to Ms Gower's home and for Paul Marshall to enter her home and take the money which she had. 31 The Crown relied on the taped axe handle being in the car and the appellant taking it with him as he left rhe car. The axe handle had been in the car alongside the front seat for some hours. The Crown contended that even if the evidence did not establish an express agreement it established an implied agreement on the part of the appellant.. There was material from which the appellant's agreement could be implied. 32 The point did not arise as to the second count because both the appellant and his brother entered Ms Duffy's unit together. Paul Marshall was holding what she described as a pipe. It may well have been the taped axe handle. 33 The Crown pointed out that neither counsel for the appellant nor counsel for the Crown made any complaint about the summing-up. When asked by the judge if there was anything they wished to raise each replied in the negative. 34 The summing-up came close to telling the jury they had to be satisfied that the agreement included that Paul Marshall would be armed with an axe handle. Neither counsel may have noticed the omission. It would not have been an area on which counsel for the appellant would have wanted the judge to elaborate immediately before the jury retired. It would not have been in the appellant's interests for the judge to direct the jury concerning extended joint criminal enterprise. I think that most counsel, if they had noticed the omission would have preferred to leave the directions as they were. The contest had been over whether the appellant was one of the four persons in the car and one of the men who entered Ms Duffy's unit. 35 My mind has fluctuated over whether to apply Rule 4 or to substitute a verdict of break, enter and steal. This is a case where there has been an omission to direct the jury as to part of an element of the offence, namely that it had to be satisfied beyond reasonable doubt that the appellant agreed or knew that Paul Marshall would be armed. The evidence was such that an inference to that effect would be drawn by a jury. 36 Not without some doubt I have concluded that as the required direction was not given the Court should substitute a verdict of guilty of the offence of break, enter and steal. Counsel for the appellant did not oppose such a substitution. The jury must necessarily have been satisfied of all the elements of that offence. Sentence Application 37 The appellant submitted that the sentences imposed upon him were manifestly excessive. He relied further upon the reduction of the offence on Count 1 to one of break, enter and steal and considerations of parity. 38 As earlier mentioned the judge sentenced the applicant to a concurrent fixed term of 3 years on Count 1. That should be reduced because of the lesser offence to a concurrent fixed term of 2 years. 39 The judge found that both Ms Gower and Ms Duffy were terrorised and frightened. That is obviously correct and the judge was right to think that substantial sentences of imprisonment were required. Nor should it be overlooked that Ms Gower had her four year old son with her. 40 The facts of the armed robbery were that shortly after 7pm the appellant and Paul Marshall arrived in the vicinity of "Woods Family Store", Albury. Paul Marshall alighted from the vehicle. The appellant remained with it a short distance from the store. Paul Marshall, dressed in blue overalls, black gloves and a black beanie pulled down over his face, entered the store. He produced a black replica self-loading pistol, threatened Mrs Woods and said "Give me the money" while pointing the replica firearm directly at her. Believing that it was a real firearm she screamed. Mr Woods rushed from the rear of the store to aid his wife. Paul Marshall pointed the replica at both of them and said "Give me the money". They complied. She placed the cash drawer on the counter. The muzzle of the replica came within 12 inches of her chest. After taking the money (about $650) Paul Marshall ran and got into the vehicle which the appellant drove away. None of the amount of $650 has been recovered. The replica looked like a real firearm. 41 The appellant was born on 18 April 1964. He has a lengthy record which began in May 1979. He has many convictions for theft and other property offences. In 1983 he received a custodial sentence of 9 years for armed robbery. There were other offences including two other armed robbery offences and one of attempted armed robbery. In November 1984 he was sentenced for manslaughter and armed robbery. In 1991 there were further convictions for armed robbery, attempted armed robbery and other offences. He received a sentence of 7 years. In 1998 he was fined for offences of violence. It is a very bad record. 42 Paul Bruce Marshall was sentenced by Judge Karpin on 19 May 2000, some three months after the appellant was sentenced. She stated that the sentences she imposed must have regard to the issue of parity. 43 Paul Marshall pleaded guilty to the armed robbery on 19 June 1999 of the Woods Family Store, two charges of break, enter and steal in circumstances of aggravation on 30 July 1999 (Ms Gower and Ms Duffy) and a fourth charge of robbery whilst armed with an offensive weapon on 31 July 1999. The first of these offences occurred about six weeks after his release from custody having served a minimum term of 2 years on one count of malicious wounding. There was an additional term of 2 years. 44 The further armed robbery involved Paul Marshall holding up a 17 year old teenager. Paul Marshall produced a knife. A little later he threatened the teenager with the axe handle. As a consequence of being put in fear the teenager handed over all the money he was carrying, about $20. From his arrest on 20 August 1999 to 19 May 2000 he was in custody serving the additional term. 45 Paul Marshall was 29 years of age when he was sentenced. He said that he was about six years younger than the appellant. Judge Karpin described his record thus: "The prisoner has a lengthy criminal record including offences of violence, robbery, armed robbery and theft … He spent part of his teenage years in correctional centres. Since becoming an adult he has regularly committed serious offences for which he has been imprisoned. He has generally been returned to custody within 3 to 4 months of his release on each occasion. … he has all the classic insignia of a person who is institutionalised." 46 Paul Marshall has or had a wife and two children. Although she supported him for many years during his troubles she finally left him. He does not know where she or the children are. Judge Karpin summarised the personal history of Paul Marshall. It was a depressing story and began with the details of an exceptionally deprived childhood. The judge accepted that he had a severe personality disorder and a substance abuse disorder. 47 Judge Karpin said: "Both of those disorders are readily explicable by the circumstances of his childhood. He suffered sexual abuse at the hands of his father so that his home became a place of dread rather than a refuge of safety which it should ideally be for any child. He had the appalling role model of his uncles upon which to base his adult behaviours. He had no family life to speak of and an inadequate education. Sadly, the one stable relationship he managed to establish out of that chaotic background has now come to an end". 48 Judge Karpin noted that since going into custody Paul Marshall had fallen out with the appellant and has been maintained in segregation for security reasons due to no fault on his part. He gave assistance to the law enforcement authorities. Further, he is still assessed as a high risk of self harm and is maintained in a unit where he can receive therapy and be kept under supervision. 49 Parity considerations received attention. Judge Karpin noted that the appellant had pleaded not guilty to the two charges of aggravated break, enter and steal whereas Paul Marshall had pleaded guilty. She resolved to backdate his sentence to 17 January 2000 when he pleaded guilty to the four offences earlier mentioned. Thus he spent about five months serving his additional term. That was a permissible and sensible resolution of the problem, part of which is due to the understandable delays in the Court system., Judge Karpin expressly applied the principles of totality in relation to the sentences which she imposed. 50 The appellant pressed upon this Court that the Paul Marshall had received a bonus by the Court backdating his sentences. 51 For the armed robbery on the Woods (Count 1) Paul Marshall was sentenced to a fixed term of 3 years imprisonment to date from 17 January 2000 expiring on 16 January 2003. In respect of Counts 2, 3 and 4 he was sentenced to 5 years imprisonment accumulated upon the sentence for Count 1, with a non-parole period of 2 years from 17 January 2003. The overall sentence was one of 8 years with a non-parole period of 5 years. The judge thought that Paul Marshall would require close and extended supervision on his release to the community. 52 In the case of the appellant there was no evidence of mitigating subjective features. The subjective features of Paul Marshall received close attention from Judge Karpin. She regarded them as compelling. When these are coupled with the assistance he gave the authorities, the fact that he will spend at least part of his sentence in segregation, his severe personality disorder and the greater age of the appellant, he (the appellant) cannot have a justifiable sense of grievance. Judge Karpin after careful consideration thought that Paul Marshall should receive a lesser sentence than his older brother. 53 In argument counsel took the view that in broad terms the two pleas of guilty of Paul Marshall probably balanced out the extra offence he committed so that in terms of objective criminality the two brothers were on about a level footing. 54 Counsel for the appellant contended that even if, contrary to his submissions, the distinguishing features I have mentioned should have led to Paul Marshall receiving a lesser overall sentence, there was one cardinal consideration that should lead to the appellant receiving a lesser sentence. He relied strongly on Judge Karpin backdating the sentences of Paul Marshall to 17 January 2000, the date of his pleas of guilty. This saved Paul Marshall having to serve about 18 months, being the balance of the additional term. 55 Thus it was submitted that his real sentence of imprisonment was one of 6½ years and his real minimum term was one of 3½ years. I do not agree with this submission but the overlapping should be taken into account. 56 It is common for a fresh sentence to overlap with the additional term of a previous sentence. The date when a plea of guilty is first entered is often taken as the appropriate date from which the fresh sentence should overlap the balance of the additional term. One reason for this is not to penalise an offender because of delays in the legal system. It must be remembered that it is often the offence for which an offender is receiving the fresh sentence that leads to parole being revoked. The judge has to bear these considerations in mind. 57 While I would reject the challenge based on parity arguments I do think that the overall sentence imposed on the appellant needs to be adjusted downwards because of the reduction of the first offence and the principle of totality. The present sentences do not sufficiently reflect the principles of totality and need a relatively small adjustment to adequately reflect the principle. This can best be done by making some of the sentences partially concurrent and partially cumulative. 58 I propose the following orders: 1. Appeal against conviction on Count 1 of the first indictment allowed; the conviction for aggravated break, enter and steal from Ms Gower is quashed and in lieu thereof substitute a conviction for break, enter and steal. 2. Quash the sentence on Count 1. In lieu thereof the appellant is sentenced to a fixed term of 2 years imprisonment to commence on 6 August 1999 and to expire on 5 August 2001. 3. Leave to appeal against sentence on Count 2 of the first indictment, namely aggravated break, enter and steal from Ms Duffy refused. 4. Leave to appeal against sentence on Count 1 of second indictment, armed robbery of the Woods. Vary the date of commencement of that sentence. In lieu of the commencing date of 6 August 2002 for the sentence of 7 years for armed robbery that sentence is to commence on 6 August 2001 and to expire on 6 August 2008 with a non-parole period of 4 years starting on 6 August 2001 and ending on 5 August 2005. 59 The cumulation of the sentences is the reason for the non-parole period being less than the usual proportion of the sentence. 60 NEWMAN J: I have had the advantage of reading the draft judgment of Smart AJ. I agree with both his reasons and the orders he proposes. 61 BADGERY-PARKER AJ: I agree with Smart AJ. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.