New South Wales Court of Criminal Appeal CITATION: REGINA v MISKI [2006] NSWCCA 178 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 1 May 2006 JUDGMENT DATE: 5 June 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 65; Latham J at 66 DECISION: 1. Crown appeal allowed; 2. Sentences quashed and resentence as follows; Count 1 - A non-parole period of four years to commence on 18 February 2005 and expire on 17 February 2009 and a balance of term of 1 year and 4 months to expire on 17 June 2010; Count 2 - Taking into account the matter on the Form 1 a non-parole period of 4 years to commence 18 November 2005 and expire on 17 November 2009 and a balance of term of 1 year and 6 months to expire on 17 May 2011; Count 3 - A non-parole period of 4 years to commence on 18 February 2006 and expire on 17 February 2010 and a balance of term of 1 year and 4 months to expire on 17 June 2011; Count 4 - A non-parole period of 3 years and 9 months to commence on 18 August 2006 and expire on 17 May 2010 and a balance of term of 1 year and 9 months to expire on 17 February 2012; The total non-parole period is 5 years and 3 months and the balance of the term is 1 year and 9 months. CATCHWORDS: CRIMINAL LAW – Crown appeal – robbery in company – offensive weapon – post-offending conduct – whether overall sentence adequately reflects criminality – criminal record – offences committed while on parole – appropriate sentence for multiple offences – distinguished from Henry guideline – offences on the Form One – whether temporal and causal connection between offences – delay in bringing Crown appeal – whether residual discretion should be exercised – specific and general deterrence Criminal Appeal Act 1912 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 137 A Crim R 180 R v Baker [2000] NSWCCA 85 R v Fernando (2002) NSWCCA 28 R v Gip (2006) NSWCCA 115 R v Hallocoglu (1992) 29 NSWLR 67 R v Hammoud (2000) 118 A Crim R 66 R v Henry & Ors [1999] NSWCCA 111 CASES CITED: R v Hernando (2002) 136 A Crim R 451 R v Murchie (1999) 108 A Crim R 482 R v Poihipi [2001] NSWCCA 306 R v Sharma (2002) NSWCCA 142 R v Spiero (1979) 22 SASR 543 R v Thomson and Houlton [2000] NSWCCA 309 R v Vranic NSWCCA, unreported, 7 May 1991 R v Wall [2002] NSWCCA 42 PARTIES: The Crown (Appl) Salim Miski (Resp) FILE NUMBER(S): CCA 2005/2551 COUNSEL: J A Girdham (Crown/Appl) C B Craigie SC (Resp) SOLICITORS: Director of Public Prosecutions (Crown/Appl) Legal Aid Commission of NSW (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0693 LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ LOWER COURT DATE OF DECISION: 20 October 2005 IN THE COURT OF CRIMINAL APPEAL 2005/2551 McCLELLAN CJ at CL HALL J LATHAM J MONDAY 5 JUNE 2006 REGINA v Salim MISKI Judgment 1 McCLELLAN CJ at CL: The respondent, Salim Miski, pleaded guilty and was sentenced on four counts. The Crown appeals the sentences pursuant to s 5D of the Criminal Appeal Act 1912. The sentences were imposed on 20 October 2005. 2 The respondent pleaded guilty to one count of robbery in company committed on 14 March 2004, two counts of robbery armed with an offensive weapon, namely a black pistol, both committed on 26 March 2004 and one count of robbery armed with an offensive weapon, namely a knife committed on 27 March 2004. Each offence was a contravention of s 97(1) of the Crimes Act 1900 for which a maximum penalty of twenty years imprisonment is provided. 3 The offences were committed whilst the respondent was on parole having been discharged from custody on 13 November 2003 being four months before he committed the first of the offences for which he was sentenced. 4 The sentencing judge sentenced the respondent as follows: Count 1 : a fixed term of 3 years to commence on 18 February 2005 and expire 17 February 2008; Count 2 After taking into account the matter on the Form 1 – non-parole period of 2 years 4 months to commence on 20 October 2005 and to expire 17 February 2008, and a balance of term of 1 year 5 months to expire 19 July 2009; Count 3: Non-parole period of 2 years 4 months to commence 20 October 2005 and to expire 17 February 2008, and a balance of term of 1 year 5 months to expire 19 July 2009; Count 4: Fixed term of 3 years to commence 18 February 2005 and to expire 17 February 2008. 5 The total sentence imposed was 4 years and 5 months with a non-parole period of 3 years. The non-parole periods in relation to counts 2 and 3 are completely subsumed by the sentences on counts 1 and 4, the terms of which run concurrently. 6 The matter on the Form 1, which, in accordance with the respondent's request his Honour took into account when sentencing upon the second count, was an offence of "being carried in a conveyance, taken without consent" contrary to s 154A of the Crimes Act 1900. Facts Count 1 – Robbery in company 7 About 2.50 am on 14 March 2004 the respondent and a co-offender entered the Prime Service station at Blakehurst. He was armed with a screwdriver, as was the co-offender. The respondent was not wearing a head covering although his co-offender had a t-shirt wrapped around his head. The respondent approached the male attendant who was standing behind the counter. He held the screwdriver towards the victim and said, "Don't be smart, just give us the money or else." The victim handed him $770.00 from the till. The respondent then demanded the victim's wallet. The victim handed over his wallet which contained $80.00. The offence was recorded on a security video recorder. Count 2 – Robbery armed with an offensive weapon Form 1 – Carried on conveyance 8 About 7.20 am on 26 March 2004 the respondent met with two co-accused. The two co-offenders were driving a Toyota Soarer registration XKA 719 which had been stolen. The respondent was informed that the vehicle was stolen by the co-offenders. He was conveyed in the car for a number of hours. At about 8.35 pm the same day, the respondent and his co-offenders arrived at the 7 Express service station on Railway Parade, Carlton in the stolen vehicle. The respondent and the co-offender entered the service station where they approached the female attendant. The respondent was armed with a black coloured handgun. He pointed the gun at the victim's head and said "Hand over the cash." While the respondent held the gun to the victim, the co-offenders removed a large number of cigarettes. All three then left taking a large amount of cigarettes and approximately $400 cash. 9 The respondent wore a hood, but this fell off when he stepped behind the counter. Again the offence was recorded. Count 3 – Robbery armed with an offensive weapon 10 About 10.30 pm on 26 March 2004, the respondent and two co-offenders arrived at Budget Petrol on the Princes Highway, Arncliffe, in the stolen vehicle XKA 719. All three entered the store. The co-offenders wore balaclavas while the respondent had no head covering. The three approached the male attendant and the respondent produced a black pistol and pointed it at the attendant. He demanded that the attendant open the till. One offender jumped the counter and pulled open the cash register. All three offenders removed cash, phone cards and a large number of cigarettes before leaving in the stolen vehicle. The total cash stolen was $2300. Count 4 – Robbery armed with an offensive weapon 11 On 27 March 2004 the respondent entered the Lodge Motel on New South Head Road, Edgecliff. He inquired of the receptionist as to the cost of a room for one night, and the cost for three nights. He then sat down in a chair and appeared to make a telephone call. The respondent then ran through the door that lead behind the counter and produced a 30cm knife. He pointed the knife at the receptionist's chest, about 50 cm away, and demanded money and that he open the till. The manager came out of the office and the respondent turned to him and pointed the knife at his head. The respondent picked up two $100 bills from the counter. The receptionist opened the till and the respondent took about $300 from the money tray. He demanded both men's wallets, but neither had wallets in their pockets. The respondent demanded the safety box. He pushed the manager and went into the office. The two men ran out of the motel. The respondent levered himself over the counter by placing his hands on it. The respondent escaped with $1200 cash. Post offending conduct 12 The respondent left New South Wales on 20 April 2004 and was arrested in Melbourne on 21 April 2004 on outstanding warrants. He was subsequently sentenced to a 10 month term of imprisonment which expired on 17 February 2005. 13 On 17 March 2004 NSW police interviewed the respondent by way of ERISP at the Port Phillip Bay Prison, Victoria. He made full admissions in relation to the offences on the indictment. These admissions were supported by fingerprint evidence recovered from the stolen vehicle and clear surveillance footage taken from the Prime Service station on 14 March 2004 and the 7 Express Service Station on 26 March 2004. 14 On 17 February 2005 the respondent was arrested by Victorian Police outside the Port Phillip prison. He was taken before the Melbourne Magistrates Court where an extradition warrant was issued for his return to New South Wales. On 18 February 2005 he was conveyed to St George Police Station and charged. He was refused bail. 15 Fingerprints located on the counter of the Lodge Motel were identified as matching the respondent's. On 27 March 2005 the respondent was interviewed by way of ERISP in relation to the armed robbery the subject of count 4. He denied any knowledge of the offence but made full admissions once the interview was terminated. These admissions were recorded in a police notebook and signed by the respondent. 16 Subsequent to the sentences being imposed on these matters, the respondent was sentenced, on 12 January 2006 to a term of imprisonment for one month to commence 17 February 2008 and expire on 16 March 2008 for the offence of possess prohibited drug (steroids). The Crown submitted that in the event the Crown appeal is successful and the court proceeds to resentence, consideration should be given to varying the commencement date of this sentence pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999. Subjective features of the respondent 17 The respondent was aged 24 years at the date of sentencing. He has a criminal history which the sentencing judge described as "an unenviable criminal record." He has been sentenced for offences including goods in custody, larceny, various offences involving dishonesty, assault, stealing, breaking and entering, obtaining benefits by deception, obtaining money by deception, assault occasioning actual bodily harm, larceny, possession and use of cannabis. Most of these offences have been committed on more than one occasion. An examination of his record reveals that in the 4½ years before he was sentenced he had only a period of some 4 months out of prison and in that period of time he was on parole. The offences for which he was sentenced occurred when he was on parole. 18 The respondent left his family home at the age of 16. He has been addicted to heroin since his teenage years. The sentencing judge found the robberies took place so that the respondent could obtain funds to acquire drugs. 19 Evidence was tendered before the sentencing judge of the respondent's desire to rehabilitate himself. His Honour said of this desire: "It has been submitted on behalf of the prisoner that the prisoner is now anxious to rehabilitate himself. In evidence before me the prisoner said that he hoped to speak to counsellors whilst he was in gaol in relation to his drug habit." It is the desire of any sentencing body to see to it that a person of the age of the prisoner does succeed in any rehabilitation attempts. And I have taken that into account in setting the non-parole period. I have also taken into account what has been stated by the clinical forensic psychologist, Mr Taylor, in his report of 15 September 2005 that the prisoner is to be assessed as having a moderate likelihood of recidivism. It can only be hoped that the risk as identified by Mr Taylor does not occur. But as I have stated I regard his age and the possible rehabilitation is a special circumstance to be taken into account in relation to the sentences imposed upon the prisoner." 20 Having regard to the respondent's criminal history he will have to make a considerable effort if he is to avoid reoffending. No doubt any prospect he has of avoiding problems in the future will depend upon his capacity to overcome his drug addiction. However, I am not persuaded that a finding of special circumstances would be appropriate so as to provide a greater non-parole period than provided by the Parliament. 21 In part, the respondent's submissions depended upon an understanding of the sequence of the relevant events. An agreed chronology of those events indicates that the respondent was released to parole on 13 November 2003 and between 14 March 2004 and 27 March 2004 committed the relevant offences. He left New South Wales on 20 April 2004 and was arrested in Victoria the following day for offences committed in 1999 and 2000. 22 On 23 April 2004 an order was made revoking his parole in New South Wales. When interviewed in Victoria on 17 May 2004 the respondent made admissions in relation to offences 1, 2 and 3. On 4 June 2004 he was sentenced in Victoria for the Victorian offences and a term of 10 months imprisonment was imposed. 23 On 17 February 2004 the respondent was released from custody in Victoria and was then arrested and extradited to New South Wales. He was charged on 18 February 2004 with offences in New South Wales which activated his parole revocation and at that time had a term of 9 months 5 days before his existing sentences would expire. 24 In May 2005 the respondent made admissions in relation to count 4 and on 21 July 2004 was committed for sentence. He was sentenced on 20 October 2005. 25 On 26 October 2005 the Crown posted a letter warning that it may appeal the sentences to this Court. There is no evidence that the respondent received the letter although in the ordinary course this would have occurred. There is no evidence to suggest that he did not receive it. 26 On 22 November 2005 the respondent completed the period of revocation of his parole. The Crown filed the Notice of Appeal on 19 December 2005. The Crown submissions 27 The Crown submitted that the sentences which his Honour imposed do not adequately reflect the criminality of the respondent and are manifestly inadequate. It is submitted that this is reflected in a number of ways. 28 Although his Honour provided for an accumulation of the head sentences in relation to counts 2 and 3 by providing the same fixed term in relation to counts 1 and 4 no accumulation of the non-parole periods is provided. By making the sentences for each of counts 1 and 4 and counts 2 and 3 concurrent with each other and ordering that the sentences on counts 2 and 3 be only partly cumulative it is submitted his Honour has failed to impose an overall sentence that properly reflects the criminality of the respondent. 29 The Crown accepts that the count of robbery in company, the armed robbery offences, together with the offence on the Form 1 were committed in a period of less than 2 weeks such as may arguably justify more concurrence than would usually be appropriate. However, it is submitted that they were wholly separate from the offence upon which the parole order had been revoked, and separate from the 1999-2000 offences for which he served a 10 month sentence prior to extradition. Accordingly, it is submitted that the respondent's crimes could not be regarded as offences committed as part of a single, discrete episode of criminality: (see R v Hammoud (2000) 118 A Crim R 66 at [8]). 30 The Crown submitted that this Court should be careful to ensure that public confidence in the administration of criminal justice is not impinged upon by a perception that a person who commits multiple offences may receive a sentence normally considered appropriate in relation to but one of those offences. 31 The Crown further submitted that by reason of the fact that his Honour backdated the commencement of the sentences on counts 1 and 4, each fully concurrent with each other, and provided for them to commence on the same date as the commencement of the revocation of the parole period, the respondent has not been required to serve additional time in custody for the revocation of his parole. 32 In his brief remarks on sentence the sentencing judge stated that: "The offences are all offences in respect of which the guideline judgment in Henry is applicable." However, his Honour did not go on and explain the consequences which followed from this determination and the Crown submitted that his Honour was in error. 33 The Crown submitted that the circumstances of the respondent were distinguishable from the factual circumstances postulated in the guideline judgment in R v Henry & Ors [1999] NSWCCA 111; 46 NSWLR 346. The circumstances contemplated by Spigelman CJ in Henry were as follows: (i) Young offender with no or little criminal history; (ii) Weapon, like a knife, capable of killing or inflicting serious injury; (iii) Limited degree of planning; (iv) Limited, if any, actual violence but a real threat thereof; (v) Victim in a vulnerable position such as a shopkeeper or taxi driver; (vi) Small amount taken; (vii) Plea of guilty, the significance of which is limited by a strong Crown case. 34 The guideline also applies to robbery in company: see R v Murchie (1999) 108 A Crim R 482; R v Poihipi [2001] NSWCCA 306 at [31]. 35 For these types of cases Henry indicates that a full term sentence between four and five years will generally be appropriate. Of course, as Spigelman CJ indicated, there may be circumstances of a particular offence or offender which will justify a sentence above or below that range. 36 In the present case the Crown submitted that each of the offences committed by the respondent was a worse offence than that contemplated in Henry. Critical to the distinction in the present case was the fact that the respondent had an extensive criminal history, in each armed robbery offence he was in company and that at the time of committing all the offences the respondent was subject to parole. This was, it was submitted, an important circumstance of aggravation: R v Fernando (2002) NSWCCA 28 at [40]-[42]. 37 The Crown submitted that although the respondent is not an old offender, he cannot be said to have an insignificant criminal history. Furthermore, both counts 3 and 4 required planning, involving as they did the use of a replica pistol and a stolen car. The amounts taken were not small, being the amounts of $850, $1400, $2300 and $1200. Having regard to all of these matters the Crown submitted that the starting point for the sentences should have been beyond the range set out in Henry. 38 The Crown accepted that the respondent pleaded guilty to all of the offences and, leaving aside the fact that having committed the offences he left the jurisdiction, had done so at the first reasonable opportunity. However, it is submitted that if Henry was the appropriate reference for the decision he was not entitled to the full discount for the utilitarian value of his plea, because a plea of guilty, albeit a late plea of guilty, is one of the characteristics of the kind of offence described in Henry. Notwithstanding the fact that in accordance with Henry a head sentence would generally be in the range of four to five years his Honour has set individual head sentence for each offence below the bottom end of the range, namely 3 years fixed term in relation to counts 1 and 4 and 45 months in relation to counts 2 and 3. 39 It was submitted that because his Honour applied a discount of 25% in accordance with the guideline judgment in R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 on top of the Henry guideline the respondent has in fact received an effective discount of 35% for his plea of guilty in circumstances where there was no evidence of remorse or contrition and in any event there was a strong Crown case. 40 The Crown accepted that the sentencing judge was entitled to find that the respondent had some favourable subjective circumstances and to take those circumstances into account when sentencing the respondent. However, it was submitted that those circumstances carry little weight having regard to the need to ensure that a sentence imposed in relation to armed robbery reflects adequate provision for general deterrence: R v Spiero (1979) 22 SASR 543. 41 The need for general deterrence was emphasised by the Chief Justice in R v Sharma (2002) NSWCCA 142 at [74] where his Honour said: "Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender." 42 The Crown emphasised that in Sharma the offender was actually nineteen years old, but nearly twenty, at the time of committing the offences for which he was sentenced. In the present case the respondent is now aged 24 although at the time at which he committed the offences he was aged 22. Far from being a mitigating factor it was submitted that the respondent's age places him squarely within the category of a typical Henry offender. 43 The Crown also submitted that although his Honour indicated he was taking into account the Form One matter when sentencing in relation to the second count, the sentence imposed failed to properly have regard to the other offence. It was submitted that an additional penalty was required: see Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 137 A Crim R 180 at [40]-[42] per Spigelman CJ. 44 Because the sentencing judge imposed the same sentence for count 2, as for count 3, taking into account the matter on the Form One, each sentence to be served concurrently, it was submitted that his discretion has miscarried. 45 It was submitted that the respondent's criminal history, his previous drug and property convictions demonstrate a continuing attitude of disobedience to the law raising a strong need for specific deterrence. The offences were committed in circumstances where they constitute a serious breach of parole which constitutes a serious aggravation of the offence: R v Fernando [2002] NSWCCA 28 at [41]-[42]; R v Vranic, NSWCCA, 7 May 1991, unreported. 46 The Crown accepted that there are significant inhibitions which have often been expressed by this Court in relation to Crown appeals. Although in this case the individual errors identified may not justify intervention, the Crown submitted that the ultimate sentences imposed by his Honour are manifestly inadequate and fail to reflect the objective seriousness of the respondent's crime. Respondent's submissions 47 The respondent accepted that "the sentences, both individually and in totality, are lenient." However, it was submitted that leniency alone, even if manifest, provides no basis for this Court's intervention. Only if patent or latent error such that a sentence is not only lenient but, also, impermissibly so will intervention be justified. 48 In relation to the Crown's submission that the sentencing judge has provided inappropriately for concurrency it was submitted that there is a substantial degree of temporal and causal connection between all of the offences. It was submitted that his Honour was not required to indicate the additional term imposed in relation to the matter on the Form One and that it should be accepted that his Honour did assimilate that matter appropriately when imposing the sentence as part of the overall sentencing process. 49 The respondent emphasised the fact that this Court has repeatedly indicated that it maintains a residual discretion not to interfere when the Crown appeals a sentence. In R v Hernando (2002) 136 A Crim R 451 Heydon JA said at 458: "The Crown submissions correctly acknowledge that if this court is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised." 50 One basis upon which the Court may exercise its residual discretion in favour of a respondent is by reason of the delay in the bringing of the Crown appeal: see R v Hallocoglu (1992) 29 NSWLR 67; R v Gip (2006) NSWCCA 115. 51 In the present case the respondent accepts that the Director of Public Prosecutions provided a warning letter to the respondent at an early stage. The appeal was also brought within a reasonable time having regard to the administrative tasks involved in obtaining a transcript and making a formal decision to bring an appeal. However, the respondent emphasised that a significant period of delay nevertheless has occurred since the date of sentencing and the hearing of this appeal. It is this delay which the respondent emphasised will bring unnecessary hardship to the respondent and should persuade this Court not to intervene. Conclusion 52 This Court has, on many occasions, taken care to emphasise the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 where his Honour said: "… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence: (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2001] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 321, at para 61 and 62, and Wong & Leung v The Queen at para 109. (d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110. (e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62." 53 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said: "The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred."[19] 54 In Dinsdale Gaudron and Gummow JJ said: "In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been "upon the facts …. unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance." Was the sentence 'manifestly wrong'?" [22] 55 Notwithstanding the reluctance of this Court to intervene when the Crown brings an appeal I am satisfied that the sentences which his Honour imposed in relation to these offences were so far below that which was appropriate that this Court must quash the sentences and resentence. I accept the Crown submissions that his Honour's sentencing discretion miscarried by reason of his failure to distinguish the respondent's circumstances from those considered in Henry. Both the serious nature of each offence and the fact that the respondent has a significant criminal history required a sentence greater than that suggested as appropriate in Henry. The seriousness of the offences and the respondent's history of offending requires a sentence which properly meets the need for specific deterrence. 56 This was not one connected episode of criminality and the respondent should not have been sentenced on that basis. When a series of serious offences have been committed the sentences imposed must mark out the criminality of each offence. The sentences imposed failed to do this. 57 I am also satisfied that by providing a discount of 25% for the respondent's guilty plea his Honour fell into error. The guideline sentence in Henry already incorporates a 10% discount for a plea and accordingly to provide a discount in the order of 35% was excessive. 58 With respect to the sentence imposed in relation to count 2, I also accept that error has occurred. For the reasons submitted by the Crown some additional penalty was required to be imposed because of the matter on the Form One. However, the two offences were so intimately related that only a modest increase in the head sentence was required. 59 Although there has been a delay between the sentencing and the hearing of this appeal I do not believe that delay provides any adequate reason for this Court not to intervene. The sentences which were imposed provide for the incarceration of the respondent until at least 17 February 2008. Delay will be a more significant factor when the time an offender has left to serve is twelve months or less. In the present case the Crown gave early notice that an appeal was being considered and there is no submission that any delay in the matter being heard was the responsibility of the Crown. 60 The respondent submitted that if resentencing the Court should accept that the respondent is at a cross-roads in his life. Having now been sentenced and punished for a series of serious offences it was submitted that the respondent has acknowledged his offending and is determined to reform. It is also submitted that the court should accept the respondent when he says that he is now seeking to rehabilitate himself from his drug addiction and accordingly it should be accepted that he has reasonable prospects of rehabilitation. 61 I accept that there is some evidence of the respondent's desire to reform. However, having regard to his criminal history including offending when on parole I maintain considerable reservations as to whether this can be achieved. I do not believe a finding of special circumstances is justified. 62 I accept that the respondent pleaded guilty and is accordingly entitled to an appropriate discount. However, because I am satisfied that the respondent's criminal history takes the sentence required beyond that provided by the guideline in Henry I will, in determining sentence, allow a full discount of 25%. I can discern no relevant distinction in the criminality involved in each offence and propose that the respondent be sentenced accordingly. In my opinion the following sentences should be imposed: Count 1 A non-parole period of four years to commence on 18 February 2005 and expire on 17 February 2009 and a balance of term of 1 year and 4 months to expire on 17 June 2010. Count 2 Taking into account the matter on the Form 1 a non-parole period of 4 years to commence 18 November 2005 and expire on 17 November 2009 and a balance of term of 1 year and 6 months to expire on 17 May 2011. Count 3 A non-parole period of 4 years to commence on 18 February 2006 and expire on 17 February 2010 and a balance of term of 1 year and 4 months to expire on 17 June 2011. Count 4 A non-parole period of 3 years and 9 months to commence on 18 August 2006 and expire on 17 May 2010 and a balance of term of 1 year and 9 months to expire on 17 February 2012. 63 Accordingly, the total non-parole period is 5 years and 3 months and the balance of the term is 1 year and 9 months. 64 In relation to the other offence relating to the possession of a prohibited drug, although it would be usual to provide an identifiable penalty for such offence, I am satisfied that having regard to the sentence I now propose it is not necessary to reconsider that matter. 65 HALL J: I agree with McClellan CJ at CL. 66 LATHAM J: I agree with McClellan CJ at CL. 20/06/2006 - error in sentence on count 3 - Paragraph(s) [62] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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