Reported Decision : 150 A Crim R 299 New South Wales Court of Criminal Appeal CITATION : R v Cicekdag [2004] NSWCCA 357 HEARING DATE(S) : 11/10/04 JUDGMENT DATE : 29 October 2004 JUDGMENT OF : Grove J at 1; James J at 9; Hoeben J at 10 DECISION : Crown appeal allowed - respondent resentenced. CATCHWORDS : Crown appeal - inadequacy of sentences, use of Form 1 matters, offences committed while subject to community service order, special circumstances, delay in sentencing. Crimes Act 1900 LEGISLATION CITED : Crimes (Administration of Sentences) Act 1999 Crimes (Sentencing Procedure) Act 1999 Attorney-Genmeral's application under s37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518 Mill v The Queen (1998) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Bavadra [2000] NSWCCA 292 R v Camilleri (NSWCCA, unreported, 8.2.90) R v Fernando [2002] NSWCCA 28 R v Fidow [2004] NSWCCA 172 CASES CITED : R v Hammoud (2000) 118 ACrimR 66 R v Jones (CCA, unreported, 30.6.94) R v KM & Ors [2004] NSWCCA 65 R v Richards (1981) 2 NSWLR 464 R v Simpson (2001) 53 NSWLR 704 R v Tran [1999] NSWCCA 109 R v Vranic (unreported NSWCCA 7.5.91) R v Wall [2002] NSWCCA 42 R v WM [2004] NSWCCA 53 PARTIES : Crown - Applicant Ayhan Cicekdag - Respondent FILE NUMBER(S) : CCA 2004/1862 COUNSEL : Dr P Power SC - Crown A Cook - Respondent SOLICITORS : S Kavanagh, Solicitor for Public Prosecutions - Crown S O'Connor, Legal Aid Commission - Respondent LOWER COURT District Court JURISDICTION : LOWER COURT 03/41/0029 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1862 GROVE J JAMES J HOEBEN J Friday, 29 October, 2004 REGINA v Ayhan CICEKDAG Judgment 1 GROVE J: I have had the advantage of reading the judgment of Hoeben J in draft form. I agree with his Honour's proposed orders and with the reasons which he has expressed. 2 A contest about the significance of commission of offences whilst subject to an order to perform community service was engaged in by counsel. The issue seems to have been touched upon only incidentally in the past and I wish to express my reasons for concurrence with what Hoeben J has written. 3 Counsel for the respondent included in a written submission: "It is not conceded that the commission of a crime during the currency of a community service order constitutes a breach of conditional liberty. It is acknowledged that the remarks in R v Jones unreported NSWCCA 30 June 1994 appear to support such contention. There is no indication in the judgment that there was any debate on this issue." 4 The relevant extract from the judgment of Finlay J in Jones is cited at par 48 of Hoeben J's judgment. 5 A community service order is a form of penalty expressly made available "instead of imposing a sentence of imprisonment": see Crimes (Sentencing Procedure) Act 1999 s 8. A court is empowered to impose conditions on such order (s 90 of the last mentioned Act) but of significance to the current debate is the vulnerability of the order to revocation: see Crimes (Administration of Sentences) Act 1999 s 115. Upon such revocation the Court may deal with the offender in any manner in which it could have dealt with him or her, had the order not been made. As, in its terms, the community service order is made instead of imprisonment, it follows that an offender is exposed to being so sentenced and thus deprived of liberty. 6 It is in that sense, and for those reasons, that the liberty of a person subject to a community service order is conditional. 7 The conditional liberty of a person subject to parole, bail or recognizance is different in the procedures to be implemented to effect the consequences of breach or failure to comply with requirements, but the reasons that the commission of an offence whilst subject to any form of conditional liberty (including community service order) as a matter of aggravation are constant. At the very least, there is an abuse of the freedom granted by taking the opportunity to commit further crime: R v Richards (1981) 2 NSWLR 464 and, insofar as the non custodial penalty provided an opportunity for rehabilitation, the subsequent offence demonstrates failure and the undermining of a previously implicit expectation of such rehabilitation: R v Vranic unreported NSWCCA 7 May 1991. 8 The Crown submission that the fact that the offences in this instance were committed whilst the respondent was subject to a community service order was a serious aggravating factor should be upheld and endorsed. 9 JAMES J: I agree with Hoeben J. 10 HOEBEN J: This is an appeal by the Director of Public Prosecutions against sentences passed by his Honour Judge Goldring on Ayhan Cicekdag (the respondent) at the Wollongong District Court on 28 May 2004. 11 On 2 June 2003 the respondent pleaded guilty to two offences which occurred on the night of 13 October 2002: Count 1: That he fired a firearm in a public place contrary to the provisions of s 93G(1)(b) of the Crimes Act 1900. (Maximum penalty 10 years imprisonment). Count 2: That he maliciously wounded Danny Pirez contrary to the provisions of s 35 of the Crimes Act 1900. (Maximum penalty 7 years imprisonment). 12 The respondent asked his Honour to take into account four matters on a Form 1, all of which related to events on the night of 13 October 2002. There were two offences of assault occasioning actual bodily harm (Louis Martins was kicked to the head and face and Thomas Stewart was punched in the face and lost consciousness). There was an offence of drive whilst unlicensed and an offence of possess an unregistered firearm. 13 On 28 May 2004 his Honour sentenced the respondent on counts 1 and 2 to concurrent terms of 26 months imprisonment with a non-parole period of 12 months on each count and stated that he had taken into account the matters on the Form 1. His Honour did not specify which of the two sentences took into account the Form 1 matters. His Honour should have released the respondent to parole on the expiry of the non-parole period (Crimes (Sentencing Procedure) Act 1999 s 50) but did not do so. Factual background 14 The Crown tendered a two page summary of facts that formed part of exhibit A on sentence as follows:- "On the evening of 12 October 2002 the complainant in the matter, Danny Pirez, went to the home of Mr Kenneth Riley in Burelli Street, Wollongong. Some of his friends and acquaintances were also at that address. After spending some little time at Kenneth Riley's house Danny Pirez, Louis Martins, Michael Texeira and Ben Santosa went to the Illawarra Hotel where they consumed liquor for a number of hours. After the hotel closed they attempted to gain entry into a nearby nightclub ("Collies"), but they were refused entry, apparently because of the hour. Danny Pirez and Louis Martins then began to walk back to Kenneth Riley's home in Burelli Street. Ben Santosa and Michael Texeira went their separate ways not long after leaving Keira Street. At the intersection of Crown and Burelli Streets Danny Pirez and Louis Martins were waiting at the traffic lights to cross the road. While they were at that location a white Holden Commodore sedan being driven by the offender came to the intersection. That vehicle contained a number of passengers. Mr Ilhan Akca was in the front passenger seat. A young man known as "Levant" was one of the people in the rear of the vehicle. Danny Pirez called out "oye" apparently in an attempt to attract Levant's attention. The call made by Pirez was mistaken for aggression by a person or persons in the Commodore being driven by the offender. Words were exchanged between a passenger in that vehicle and Louis Martins. Martins said words to the effect of "If you want to fight us go round the corner." The white Commodore had stopped at this stage and some of the occupants of that vehicle had got out of it. Those persons then got back inside the vehicle and it reversed slightly in the direction of Pirez and Martins. Pirez picked up a council garbage bin and threw it at the Commodore causing some slight damage. A passenger from the vehicle (Ilhan Akca) chased Pirez and a fight broke out between Martins and some of the other occupants of the vehicle. Meanwhile, Pirez went to Kenneth Riley's house, which was nearby. He armed himself with a shovel. Akca armed himself with a piece of wood. Both swung their respective weapons at each other. At the request of Ilhan Akca, Kenneth Riley who was then at the scene told Pirez to "back off". Pirez did so. At about this time, the offender removed himself from the immediate scene of the altercation and returned to the white Commodore from which he obtained a small calibre firearm which was fitted with a silencer. The offender pointed that firearm in the general direction of Pirez and discharged a number of shots essentially aiming at the ground. One of the projectiles discharged hit Pirez in the left knee. A number of people in the vicinity heard the shots discharged. Danny Pirez was taken to the Wollongong Hospital where he was treated by Dr Harold Vickers. The doctor found a "sharply demarcated discoid puncture wound of approximately 5 mm diameter on the left knee." There was no apparent exit wound. X-rays revealed a number of opacities consistent with fragments of one small projectile that had partly disintegrated during partial penetration of the limb. The doctor was also of the opinion that the projectile was a bullet from a small calibre firearm and that it had not been deflected by striking any hard object." Subjective features 15 The respondent was born on 24 September 1980 and was accordingly aged twenty two at the time of the offences. On 25 February 2000 he had been convicted of shoplifting and fined $100, on 22 August 2002 he had been convicted of three break, enter and steal offences for which he was sentenced to 200 hours of community service. In relation to those latter offences the respondent was called up and sentenced to 3 months imprisonment commencing 19 July 2004. The non-parole period of the sentence presently under Crown challenge, extends between 28 May 2004 and 27 May 2005 which wholly encompasses that sentence of 3 months imprisonment. 16 A number of Probation and Parole reports were tendered. The report dated 25 July 2003 stated that the respondent had been living and working in the ACT in 2001, but had returned to live with his mother in Wollongong following the break up of his de facto relationship in Canberra and: "Since returning to Wollongong it would appear that Mr Cicekdag has renewed his acquaintance with young men he knew from his school days and he has mixed with former family friends and it is claimed by the offender and his mother that these people have had a negative influence on his offending behaviour. The offender's mother described her son as someone who had sought approval from peers and father figures, something he was unable to obtain from his father." That report also stated that the respondent had "displayed some insight into how his own choices placed him in the situation where an offence of some kind was likely to occur." 17 The subsequent Probation and Parole reports were less favourable. In these reports there was extensive reference to a back injury which led to an assessment by the Service of the respondent as unsuitable for community service or periodic detention. 18 In the report of 12 December 2003 reference was made to the results of a psychological examination: "This Service's forensic psychologist interviewed the offender on 5 December 2003. He assessed Mr Cicekdag as someone who has reasonable cognitive ability in that he had displayed a capacity for manipulation or "game playing" especially in how he uses his back injury as an excuse to "do nothing". The forensic psychologist advised that Mr Cicekdag might benefit from group programs that target violent behaviour. Such programs are available in both community and custodial settings." It was also noted that the respondent had not performed any part of his Community Service Order but had been given a credit for 19 hours for his participation in counselling. 19 In a report of 5 February 2004 it was noted that the respondent was at home a lot where he spent most of the day playing video games. The respondent referred to continuing back problems but had no current medical certificate. In summary: "Mr Cicekdag maintains a basic level of compliance with the directions given him. It would appear that this pattern of behaviour has become set during the two previous adjournment periods. Further adjournments would not be recommended as the offender's anticipation of a possible custodial sentence has ceased to provide motivation but instead contributes to his lifestyle torpor …" 20 The final Probation and Parole report was dated 27 May 2004 and referred to a medical certificate dated 23 February 2004 which stated that the offender was unfit for work due to his "back ache" and that this would be the case for an "indefinite" period. In relation to back ache, the report stated: "The author telephoned Mr Cicekdag's medical practitioner as this was an unusual medical certificate. The medical practitioner expressed frustration at his dealing with the offender. He stated that the offender complains of back ache but no damage had ever been found. The medical practitioner opined that the offender was a "hopeless case" who was "lazy" and he thought he was someone who simply "doesn't want to work." 21 On being confronted with that opinion, the respondent maintained that no-one else knew how he felt and maintained that his back pain prevented him from performing work. Although the respondent was offered the opportunity to participate in a group program by the Service, he declined. Subsequently, the respondent failed to attend a number of appointments arranged for him by the Service. The report concluded: "The offender appears to have developed a strategy for dealing with his offences and subsequent responsibilities to the Court and this Service which primarily has him cast as the victim of events. Intervention by the Service has not effected any change in Mr Cicekdag's outlook. In fact it would seem that the offender has become increasingly fixated on his claimed back problems and it would appear that he has become increasingly isolated." …. "The offender has thus far responded poorly to the supervision of this Service whether by way of Community Service Order or bail supervision as he is often unreliable and when he has attended appointments with counsellors or other mental health workers his co-operation has been shallow. It is tendered that further intervention by way of a supervised Bond is unlikely to be of any further assistance at this time." 22 In the course of the sentencing process (in relation to which comment will be made later) the respondent's mother gave evidence and a number of testimonials and certificates were tendered. It emerged from this material that the respondent's father had abused his mother and family. The respondent had low self esteem and tended to associate with the wrong crowd. The respondent had been adversely affected by trauma in the family when he was about twelve years of age in that his aunty, who was suffering from schizophrenia, had killed his cousin. This tragic event had generated adverse publicity for the family that had affected the respondent at school and in the community. 23 The respondent's mother was of the opinion that he was experimenting with drugs and alcohol and at the time of the offence "they were affecting him more". She confirmed that the respondent was aware that he was in deep trouble "he wished it never happened, you know, just feel sorry but there's nothing, he gets frustrated, he doesn't know what to do to fix things." 24 For approximately nine months between October 2000 and August 2001 the respondent had been in employment in Canberra but had thereafter not worked. There was a testimonial from Mr Bob Holt of the Salvation Army to the effect that the respondent had attended counselling on a weekly basis on three occasions from 23 January 2004 to discuss his "stress levels and inability to cope with his life and his reactions to life situations." Remarks on sentence 25 As indicated above, the sentencing process took place over a period of time. The detail is set out in the helpful chronology commencing at p 8 of the respondent's submissions. This can be summarised as follows: The offences occurred on 13 October 2002 and the respondent was arrested and charged on 15 October 2002. He was committed for trial on the more serious charge of malicious wounding with intent to do grievous bodily harm on 12 February 2003. The matter was listed for trial on 2 June 2003. On 2 June 2003 the respondent entered pleas of guilty which the Crown accepted in full satisfaction of the matter as set out in para [2] hereof. The matter was then adjourned to 25 July 2003 for the purpose of obtaining a pre-sentence report. 26 The respondent's bail in relation to the matter was revoked on 27 June 2003 but was restored by the Supreme Court on 17 July 2003. The matter was not reached on 25 July 2003 and was stood over to 1 August 2003. 27 On 1 August 2003 the pre-sentence report of 25 July 2003 was tendered and the respondent's mother gave evidence. In accordance with the recommendations in the report, Judge Goldring adjourned the matter until 12 December 2003 "to give him a chance to do some anger management courses and have some supervision and get a further report then." His Honour noted that the respondent had been in gaol for three weeks and that this "may be enough for him but I will need some more information about him." 28 On 12 December 2003 the matter again came before Judge Goldring in the absence of the Crown. A further pre-sentence report was tendered and the matter was adjourned to 5 February 2004. 29 On 5 February 2004 the matter came before Judge Goldring. Further documents were tendered including the letter from Mr Holt and a further pre-sentence report, the contents of which have been referred to. On this occasion his Honour made the following comments: "I am certainly not going to impose a fulltime custodial sentence on him. However because it does involve a firearm I regard it very seriously". His Honour also said that he was thinking about a suspended sentence and he was not inclined in all the circumstances towards a sentence of fulltime custody. Despite the recommendations of the pre-sentence report, his Honour adjourned the matter to 28 May 2004 to enable the respondent to complete his Community Service Order. 30 When the matter came before Goldring DCJ on 28 May 2004 the pre-sentence report was tendered. As indicated above, it did not assist the respondent. His Honour was referred to the four matters on the Form 1 and proceeded to pass sentence on the respondent. 31 His Honour noted the amount of time which had elapsed between the commission of the offences and sentencing and also referred to the problems with the respondent's back and his inability as a result to complete the 200 hours of community service imposed in relation to other offences. His Honour noted that the respondent had not really availed himself of the opportunities which had been provided to him during that period, but accepted that his back injuries had affected him and that the Probation and Parole Service may well have appeared unsympathetic to him. His Honour noted that the respondent had not availed himself of the opportunity to participate in the group program offered by the Service. In those circumstances his Honour found that there was no alternative but to impose a sentence of fulltime custody. 32 His Honour stated that the facts that gave rise to the offences were serious. In particular that the use of firearms was serious and is so regarded by the parliament. I set out his Honour's concluding remarks: "As I say Mr Cicekdag has had a chance to do something about his situation but in my view he has not done all he could to take advantage of that opportunity. This is unfortunate. He is a young man. He does have a couple of minor offences on his record and he has suffered an injury and all those matters, in my view, amount to special circumstances which I must take into account. The malicious wounding is also a very serious offence, although I regard this firearm offence, a discharge of a firearm in a public place as equally, if not more, serious. Firearms themselves are bad things and if someone uses them they must expect to go to prison. In all the circumstances I do not think this offence is at the higher end of seriousness or criminality but it is nevertheless serious and but for the plea of guilty I would have imposed a sentence of 3 years imprisonment. However, I will allow a discount of 20% for the plea of guilty because of its utilitarian value. There will be a non-parole period in this case because of the special circumstances, of 12 months imprisonment with an additional period of 14 months. That sentence will start today. The non-parole period will expire on 27 May 2005 (sic) and the overall sentence will expire on 27 July 2006 (sic)." At the conclusion of his Honour's remarks the Crown inquired "Your Honour took into account the Form 1 matters?" to which his Honour responded "I took the Form 1 into account yes and those sentences are, on each charge, to be concurrent." Appeal 33 Because this appeal is brought by the Director of Public Prosecutions, it is useful to keep in mind the principles which apply to such appeals: (a) The normal restrictions upon appellate review of the exercise of discretion apply; (b) Appeals by a prosecuting authority should be rare and unless a clear error of principle is identified it would be exceptional for the Court to interfere; (c) Appeals against inadequacy of sentence are concerned with establishing principle for the guidance of courts whose duty is to sentence, including the avoidance of manifest inadequacy or inconsistency; (d) The Court may decline to interfere even if error has been shown and will be astute to avoid a result which may be in the nature of double jeopardy; (e) If the Court substitutes its own sentence for an inadequate sentence, that sentence will generally be less than that which should have been imposed and in any event towards the lower end of the available range; ( R v Wall [2002] NSWCCA 42 at [70], R v KM & Ors [2004] NSWCCA 65 at [33].) Ground of Appeal 1 – The sentences were manifestly inadequate in that they did not adequately reflect the objective seriousness of the offences 34 The submissions in support of this ground focus on the inadequacy of his Honour's proposed sentence of 3 years before any discount for the plea of guilty was made and on his Honour's failure to adequately characterise the objective seriousness of each offence. Reference was made to a number of cases involving similar offences where significantly heavier sentences were imposed. 35 Although his Honour did refer to the seriousness of both offences (ROS 4) his Honour does not seem to have appreciated the rationale behind parliament's treatment of the s 93G(1)(b) offence as more serious than malicious wounding. The problem with a projectile weapon, such as a firearm, is that once the projectile has been released it will travel a considerable distance and the firer has no control over its ultimate destination. Death or injury can result. This is particularly so where the discharge is indiscriminate in a public place and as happened here, a number of shots are fired. 36 The Crown also submitted that his Honour made no specific reference to the issues of general or personal deterrence. These were matters of great importance in offences of this kind. There was a clear need for members of the public to be deterred from discharging firearms in public places. 37 The respondent submitted that it was not necessary for his Honour to make any specific reference to general or personal deterrence. Just because he failed to do so, did not mean that his Honour was unmindful of those considerations. The fact that his Honour referred to the use of firearms as serious made it clear that he had the principles of general and personal deterrence in mind. 38 In a case involving a breach of s 93G(1)(b), particularly where more than one shot has been fired, the principle of deterrence, particularly general deterrence, is of considerable importance. In that regard the oft quoted comments in R v Camilleri (NSWCCA, unreported, 8 February, 1990) remain apposite: "In seeking to determine in any case the sentence appropriate to a particular crime, it is always of importance to have regard to the gravity of the offence viewed objectively. Unless that is done, the other factors requiring consideration in order to arrive at the proper sentence cannot be given their rightful place. A sentence imposed must be commensurate with the seriousness of the crime in the sense that it should, having regard to all the proved circumstances, accord with the general moral sense of the community. It should also serve as a sufficient deterrent both to the offender and to others. The purpose of that deterrence is to prevent the commission of such offences and whilst justice and humanity require that the previous character and conduct and the probable future life and conduct of the individual offender should be given the most careful consideration, those are factors which are necessarily subsidiary to the main consideration which determines the appropriate amount of the punishment, that is the protection of the public. The fundamental purpose of punishment is the protection of society. Unless these basic principles of sentencing are adhered to errors will occur." 39 I accept that there was no need for his Honour to make particular reference to deterrence if it was otherwise clear from the judgment that he had that principle in mind. It is not clear to me that his Honour did have regard to that principle. His Honour did refer to the seriousness of the offences but otherwise focused on the irrelevant consideration of changes to the law which occurred after the offence and to subjective matters relating to the respondent. 40 In my opinion, his Honour either overlooked the consideration of deterrence or failed to give it adequate weight. His Honour's failure to take this matter into account is a relevant legal error permitting this Court to intervene. Ground 2 – The sentences were manifestly inadequate because his Honour did not adequately take into account the four matters on the Form 1 41 At the beginning of his remarks on sentence, his Honour referred to the Form 1 matters and when reminded by the Crown at the conclusion of those remarks, confirmed that he had taken them into account. Although the context of that exchange is suggestive of some element of "after thought" there is no reason why this Court should not accept that his Honour did in fact take them into account. The real question is whether his Honour adequately took them into account. 42 As was conceded by counsel for the respondent, the sentences were very lenient. Is such leniency consistent with the proper application of the principles associated with the use of Form 1 matters? The first problem is that his Honour did not state which of the two sentences had taken into account the Form 1 matters. That combined with the fact that identical sentences were passed in relation to both offences would seem to indicate that his Honour did not properly take the Form 1 matters into account. 43 The approach which should be adopted to Form 1 matters has now been clarified by this Court in Attorney-General's application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518. "[39] The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence. [40] In my opinion it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence ie the primary offence. … [42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 44 In R v Bavadra [2000] NSWCCA 292 Wood CJ at CL said at [31]: "[31] There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not face the prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving of the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose." 45 On the facts accepted by the respondent the assaults occasioning actual bodily harm on Messrs Martins and Stewart cannot be regarded as simply parts of the principal offences. They involved separate further acts of criminality upon different victims. The assault upon Stewart was sufficiently serious as to render him unconscious. Each offence carried in its own right a maximum penalty of 5 years imprisonment. 46 I am of the opinion that the sentences in this case are so inadequate as to indicate that his Honour did not have proper regard to the Form 1 matters. Ground 3(a) – The sentences were manifestly inadequate because his Honour failed to appropriately address the criteria in s 21A of the Crimes (Sentencing Procedure) Act 1999 47 It is true that his Honour made no specific reference to s 21A. Nevertheless his Honour did carry out a balancing of a number of competing elements such as are specifically referred to in that section. 48 What his Honour made no reference to as an aggravating factor was that the respondent was subject to a sentence requiring him to perform community service at the time when these offences occurred. The Crown submitted that this was a serious aggravating factor and should be treated in the same way as if the offences were committed by the respondent whilst on conditional liberty such as that provided by bail, a recognizance or parole. Reliance was placed upon the decision of R v Jones (CCA, unreported, 30 June 1994) where Finlay J said: "Here the applicant committed this offence whilst on conditional liberty following his conviction for an identical offence. That is, undoubtedly, a matter of major aggravation. When offenders are given conditional liberty – be it on parole or when they are subject to periodic detention orders, community service orders or on recognizance to be of good behaviour or, indeed, on bail for alleged offences – the commission of additional offences is a serious matter." 49 The respondent submitted that an order for community service should not be so regarded. When one analysed conditional freedom, allowed as the result of bail, a recognizance or parole, there was inevitably a promise of good behaviour on the part of the offender. An offence committed under those circumstances involved a breach of that promise or obligation, hence the seriousness with which it is regarded. 50 An order for community service is different. It is awarded instead of a custodial sentence and it is performed by the offender instead of being in prison. Liberty obtained in that way is not subject to a promise to be of good behaviour, but is subject to a promise, or is conditional upon a promise, to attend and perform the relevant community service. 51 I am unaware of this question having been specifically considered by this Court on any prior occasion. The only authority which could be found by counsel is the observation by Finlay J to which I have referred. 52 I am of the opinion that an order for community service is analogous to conditional freedom by way of bail, recognizance or parole. In that regard I rely upon the following statement of principle: "The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation ie parole has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances." (Referred to with approval by Spigelman CJ in R v Fernando [2002] NSWCCA 28 at [42]). The same principle was referred to by Wood CJ at CL in R v Tran [1999] NSWCCA 109 at [15] as "the betrayal of the opportunity for rehabilitation.") 53 Looked at in that way the commission of further offences whilst at liberty and under an obligation to perform community service involves a clear repudiation of the opportunity for rehabilitation provided by such an order. If such a circumstance is not to be regarded as an aggravating feature, it is certainly to be regarded as a strong indication that further attempts at rehabilitation by way of conditional liberty are likely to be unsuccessful. 54 I am of the opinion that his Honour did overlook this consideration. His failure to take this matter into account in the sentencing process is a relevant legal error permitting this Court to intervene. Ground 3(b) – The sentences were manifestly inadequate because his Honour erred by not adequately accumulating or partially accumulating the sentences 55 The Crown's submission under this ground was directed to his Honour's failure to apply the sentencing principles set out in Pearce v The Queen (1998) 194 CLR 610: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality". (At [45]). 56 His Honour failed to follow such an approach. As was made clear in Pearce the benefit of such an approach is that questions of totality, accumulation and concurrency are made easier to assess. 57 It is true that Pearce and Mill v The Queen (1998) 166 CLR 59 set out what should be regarded as the orthodox approach in such circumstances but do not mandate as invariable, the practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. There was, however, no reason why his Honour should not have followed the orthodox approach in this case. 58 Whilst it may be appropriate to impose concurrent sentences concerning events happening during a single episode or over a short time, the result must reflect the total criminality involved. Simply because offences are committed simultaneously does not mean that the sentences should be concurrent if the offences are distinct and separate. (R v Hammoud (2000) 118 A Crim R 66 at [8]). 59 In my opinion his Honour's failure to follow the approach recommended in Pearce led to his Honour losing sight of the criminality involved in each offence untainted by reference to the other offence for which the respondent was to be sentenced. Ground 3(c) – The sentences were manifestly inadequate because his Honour erred by finding special circumstances 60 The special circumstances identified by his Honour were that the respondent was a young man, had a couple of minor offences on his record, had suffered an injury and had an unfortunate background in that his father had been abusive and there had been a death in the family in tragic circumstances. 61 In my opinion there is considerable force in the Crown's submission that these matters do not constitute "special circumstances". "In R v Simpson (2001) 53 NSWLR 704, this Court identified the wide range of factors capable of constituting special circumstances. Nevertheless, on each occasion in which s 44(2) of the Act is invoked, it is necessary for the sentencing judge to make a decision, as noted in Simpson at [68] that the circumstances are sufficiently special for the statutory proportion to be reduced. Section 44(2) requires the "decision" to be that the statutory proportion of one-third be "less". "Double counting" for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided. (See Simpson at [47]). Almost all matters capable of constituting special circumstances have usually been taken into account in determining the head sentence and sentencing judges should ensure that double counting does not occur." ( R v Fidow [2004] NSWCCA 172 at [18]) "Simply because there is present in a case a circumstance which is capable of constituting a "special circumstance" does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify variation." (R v Fidow at [22]) 62 As was made clear in the reports from the Probation and Parole Service the respondent's back injury was problematic and was apparently being used by the respondent to avoid compliance with the Community Service Order and to avoid obtaining regular employment. Once the question of the back injury is qualified, the only "special circumstances" remaining were the respondent's comparative youth and his family background which, although unfortunate, would not appear to be sufficiently special to justify a significant increase in the non-parole period. This is particularly so when attempts to have the respondent engage in rehabilitative activities during the preceding 12 months had been singularly unsuccessful. Delay 63 It was submitted on behalf of the respondent that if this Court was of the opinion that error had occurred in the sentencing process, the discretion to intervene should not be exercised because of the significant delay since the offence. Specific reference was made to what was described as "prosecutorial acquiescence". On two occasions when the matter was before his Honour (1/8/03 and 5/2/04) his Honour foreshadowed a non-custodial sentence without demur on the part of the Crown. 64 I am of the opinion that such delay as has occurred and any acquiescence on the part of the Crown should not prevent intervention by this Court. If there was acquiescence by the Crown, it was acquiescence not necessarily to his Honour's reference to a non-custodial sentence but to his Honour's intention to defer sentencing whilst the respondent was given an opportunity to demonstrate that he was likely to rehabilitate himself. 65 There is also some circularity in the submission. The delay between 1 August 2003 and 28 May 2004 was a deferral of sentencing by his Honour of his own motion in a way envisaged by s 11 of the Crimes (Sentencing Procedure) Act 1999 so as to enable the respondent to demonstrate a willingness and a capacity for rehabilitation. Put bluntly the respondent failed to show any capacity or willingness to avail himself of the opportunities provided to him on three occasions during that period. In those circumstances the respondent should not now be allowed to rely upon his own failure to accept the rehabilitation opportunities provided as a reason why this Court should not intervene if error in the sentencing process has been established. 66 In any event, such delay as has occurred has not caused prejudice to the respondent. "A Crown appeal will not be dismissed simply because of delay. It will only be dismissed if that delay has caused prejudice to the respondent: Pham and Lee (1991) 55 A Crim R 128 at 136, 138. Such prejudice may be occasioned, for example, where as a result of a successful Crown appeal the respondent has to be returned to custody after having served the whole of the custodial part of the sentence from which the appeal is brought; but, even then, the seriousness of the crime may be such as to outweigh that prejudice ( R v WM [2004] NSWCCA 53 at [82]". Decision 67 For the reasons set out above, the objective circumstances of the offences indicate that the sentences imposed by his Honour were manifestly inadequate. 68 The respondent filed an affidavit in this Court to be used for the purposes of exercising the residual discretion not to intervene and in case the Court came to re-sentence. The effect of that affidavit is that the respondent in the period before sentencing was suffering continuous problems with his back and was anxious and depressed because a gaol sentence was a real possibility. These were matters which were already before the court in the reports from the Probation and Parole Service and do not significantly add to the subjective matters which should now be taken into account in the respondent's favour. 69 Apart from the relatively early plea of guilty, there have been no indications of contrition on the part of the respondent. On the contrary, the effect of the Probation and Parole reports is that the respondent sees himself as the victim. There is no expression of contrition in the affidavit referred to. 70 I see no reason to interfere with his Honour's discount of 20% for the respondent's plea of guilty, although the proposed sentence of 3 years was clearly inadequate. I am, however, mindful of the restraint to be exercised by this Court in carrying out the re-sentence process. The substituted sentence should be less than that which should have been imposed and in any event towards the lower end of the available range. In line with that approach, the sentences which I propose represent the low end of the range and are to be served concurrently whereas there was a strong basis for some accumulation. 71 The orders I propose are: (1) Appeal allowed. The sentences imposed by his Honour Judge Goldring on 28 May 2004 are quashed and in lieu thereof, the following sentences are imposed. (2) With respect to the offence of malicious wounding, the respondent is sentenced to a term of imprisonment of 2 years and 6 months commencing on 28 May 2004 and concluding on 27 November 2006 with a non-parole period of 1 year and 8 months. (3) With respect to the offence of discharging a firearm in a public place, the respondent is sentenced to a term of imprisonment of 3 years commencing on 28 May 2004 and concluding on 27 May 2007 with a non-parole period of 2 years. The Form 1 matters have been taken account of in fixing this sentence. (4) I direct that the respondent be released to parole on the expiry of the non-parole period on 27 May 2006. ********** Last Modified: 11/29/2004 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.