New South Wales Court of Criminal Appeal CITATION: Kennedy v R [2010] NSWCCA 260 HEARING DATE(S): 22 October 2010 JUDGMENT DATE: 17 November 2010 JUDGMENT OF: Simpson J at 1; Fullerton J at 87; RA Hulme J at 88 The applicant re-sentenced as follows: Count 1: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2008 and expiring on 14 January 2011 with a balance of term of 9 months expiring on 14 October 2011. Count 2: Imprisonment for a fixed term of 2 years commencing on 15 October 2008 and expiring on 14 October 2010. Count 3: Imprisonment made up of a non-parole period of 3 years and 9 months commencing on 15 October 2009 and expiring on 14 July 2013 with a balance of term of 11 months expiring on 14 June 2014. Count 4: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2009 and expiring on 14 June 2011 with a balance of term of 7 months expiring on 14 January 2012. DECISION: Count 5: Imprisonment for a fixed term of 2 years commencing on 15 October 2009 and expiring on 14 October 2011. Count 6: Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2010 and expiring on 14 June 2012 with a balance of term of 7 months expiring on 14 January 2013. Count 7: Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2011 and expiring on 14 January 2014 with a balance of term of 9 months expiring on 14 October 2014. Count 8: Imprisonment for a fixed term of 2 years commencing on 15 October 2011 and expiring on 14 October 2013. Count 9: Imprisonment made up of a non-parole period of 2 years commencing on 15 October 2012 and expiring on 14 October 2014 with a balance of term of 3 years expiring on 14 October 2017. Count 10: Imprisonment for a fixed term of 1 year and 6 months commencing on 15 October 2012 and expiring on 14 April 2014. The aggregate sentence is therefore one of 9 years with a non-parole period of 6 years. CATCHWORDS: CRIMINAL LAW – particular offences – property offences – aggravated break, enter and steal – recruit child to carry out criminal activity – other offences – CRIMINAL LAW – appeal against sentence – failure to apply principles stated in R v Fernando – error established – appeal allowed, applicant re-sentenced – CRIMINAL LAW – appeal against sentence – failure to give effect to finding of special circumstances – no error established – CRIMINAL LAW – appeal against severity of sentence – individual sentences not manifestly excessive – totality – extent of accumulation of sentences Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED: Crimes Act 1900 Criminal Procedure Act 1986 CATEGORY: Principal judgment R v Fernando (1992) 76 A Crim R 58 R v Morgan [2003] NSWCCA 230; 57 NSWLR 533 CASES CITED : R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740 Pearce v The Queen [2009] HCA 57; 194 CLR 610 Clarke v R [2009] NSWCCA 49 R v Hickey (NSWCCA, 27 September 1994, unreported) PARTIES: Trevor Wayne Kennedy (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2009/10141 COUNSEL: M Thangaraj SC (Applicant) V Lydiard (Respondent) SOLICITORS: Legal Aid Commission (Applicant) S Kavanagh (Solicitor for Public Prosecutions) (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/10141 LOWER COURT JUDICIAL OFFICER: Freeman DCJ LOWER COURT DATE OF DECISION: 9 September 2009 IN THE COURT OF CRIMINAL APPEAL 2009/10141 SIMPSON J FULLERTON J R A HULME J 17 November 2010 Trevor Wayne KENNEDY v R Judgment 1 SIMPSON J: On 6 July 2009 in the Albury Local Court the applicant entered pleas of guilty to 10 charges. He asked, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") that a further 12 offences itemised on two separate Form 1's be taken into account. A further count, of driving whilst disqualified, was before the court on a Certificate under s 166 of the Criminal Procedure Act 1986. On 9 September 2009, in the Wagga Wagga District Court, the applicant was sentenced in respect of all charges. He now seeks leave to appeal against the sentences imposed. The offences 2 The offences the subject of the charges were divided into two groups. The offences the subject of the first eight counts, and eight of the Form 1 offences, were committed between January and August 2008, all in the city of Albury. The offences charged were: ● four counts of aggravated break, enter and steal (in each case, the circumstance of aggravation being that the offence was committed in company); ● three counts of recruiting a child (in the case of one count) or children (in the case of two counts) to carry out or to assist in carrying out criminal activity; ● one count of stealing firearms. 3 The eight Form 1 offences were taken into account in the sentence imposed in respect of the third count (which was the second count of aggravated break, enter and steal). Of these, six were offences of disposing of stolen property, one was of receiving stolen property, and one was of participating in a criminal group or assisting criminal activity. 4 The second set of offences were committed in October 2008, also in Albury. The offences charged were: ● one of aggravated break, enter and steal (the circumstance of aggravation again being that the offence was committed in company); ● one count of knowingly dealing in the proceeds of crime (money laundering). 5 Four additional offences, each of recruiting a child (or children) to carry out or assist in carrying out criminal activity, listed on a Form 1, were taken into account in the sentence imposed in respect of the aggravated break, enter and steal offence. 6 Each aggravated break, enter and steal offence carries, pursuant s 112(2) of the Crimes Act 1900, a maximum penalty of imprisonment for 20 years. Pursuant to Div 4 Pt 1A of the Sentencing Procedure Act, a standard non-parole period of 5 years is applicable. 7 Each offence of recruiting a child for the purpose of criminal activity carries, pursuant to s 351A of the Crimes Act, a maximum penalty of imprisonment for 10 years. The offence of stealing firearms carries, pursuant to s 154D(1) of the Crimes Act, a maximum penalty of imprisonment for 14 years. The offence of knowingly dealing in the proceeds of crime carries, pursuant to s 193B(2) of the Crimes Act, a maximum penalty of imprisonment for 15 years. 8 Freeman DCJ sentenced the applicant as follows: Count Offence Fixed term Head sentence NPP Commencement date 1 Aggravated break, enter and steal 3 years 2 years and 3 months 15 October 2008 2 Recruit child 2 years 15 October 2008 3 Aggravated break, enter and steal (plus Form 1 offences) 4 years and 8 months 3 years and 9 months 15 April 2010 4 Steal firearms 2 years and 3 months 1 year and 8 months 15 April 2010 5 Recruit children 2 years 15 April 2010 6 Aggravated break, enter and steal 2 years and 3 months 1 year and 8 months 15 October 2011 7 Aggravated break, enter and steal 3 years 2 years and 3 months 15 April 2013 8 Recruit children 2 years 15 April 2013 9 Aggravated break, enter and steal 5 years 2 years 15 April 2014 10 Money laundering 1 year and 6 months 15 April 2014 s 166 offence Drive whilst disqualified 3 months disqualification from driving for 5 years from 27 July 2009 15 April 2014 9 The aggregate sentence so imposed was a total of 10 years and 6 months, with a non-parole period of 7 years and 6 months. The facts Counts 1 and 2: aggravated break, enter and steal; recruit child 10 These offences were committed during the morning of 21 January 2008, in residential premises. The applicant and five others (all of whom were juveniles) entered the house by a back door, the applicant having observed (and having told the others) that there was no car at the house. They were in the process of searching the house, some of them stealing food and a mobile telephone, when they were disturbed. The householder returned to his house, opened the front door, and heard the sound of people running through the house. He saw five or six people running out of the back door and climbing over the back fence. 11 The offenders ran off and returned to the applicant's home. 12 Food to the value of $240, and a mobile telephone to the value of $250, were stolen. 13 All persons present, except the applicant, were under the age of 18 years. By the applicant's pleas of guilty to the s 351A offences, he accepted that he had "recruited" – that is, "counselled, procured, solicited, incited or induced" (see s 351A(3)) a child to commit the offence. (Although five children were involved, the Court Attendance Notice in respect of this offence nominated only one.) 14 In respect of these offences the applicant was sentenced, respectively, to imprisonment for 3 years with a non-parole period of 2 years and 3 months, and a fixed term of imprisonment for 2 years, each commencing on 15 October 2008. Counts 3-5: aggravated break, enter and steal; steal firearms; recruit children 15 These offences were committed in the morning of 10 February 2008, also in residential premises in Albury. 16 Three co-offenders, on their way to the applicant's home, knocked on the door of the premises. When it was not answered, one of them broke a window and they entered. They saw a safe. They then went to the applicant's home. With the applicant, they took a shopping trolley to the premises, placed the safe in the shopping trolley and wheeled it to the applicant's house. They also took a drill from the property. 17 At the applicant's home, they used the drill to open the safe. It contained three firearms, which they removed. They dumped the safe in a dam at a golf course. The applicant later sold the guns for $400, of which he gave $20 to one of the co-offenders. 18 The co-offenders, again, were under the age of 18. By his plea of guilty, the applicant admitted that he had "recruited" them as outlined above. The sale of the guns constituted one of the offences of disposing of stolen property on the Form 1. 19 In respect of these offences the applicant was sentenced, respectively, to imprisonment for 4 years and 8 months, with a non-parole period of 3 years and 9 months, to imprisonment for 2 years and 3 months with a non-parole period of 1 year and 8 months, and a fixed term of imprisonment for 2 years, each commencing on 15 April 2010 (and therefore accumulated upon the earlier imposed sentenced by 18 months). Count 6: aggravated break, enter and steal 20 This offence was committed on 2 August 2008 at another residential property. During the evening of 2 August, and the morning of 3 August, the applicant drove three co-offenders to the address. The three co-offenders entered the garage of the premises, where they found two golf clubs. They reported this to the applicant. He told them to return to take the clubs; two of them did so, while the other waited with the applicant in the vehicle. The clubs were then taken back to the applicant's home. He later sold them for approximately $300. He gave one of the co-offenders some marijuana and $50 or $100 for his part in the offence; he gave another co-offender $50. The sale of the golf clubs constituted one of the offences on the Form 1. 21 In respect of this offence the applicant was sentenced to imprisonment for 2 years and 3 months with a non-parole period of 1 year and 8 months, commencing on 15 October 2011. Count 7-8: aggravated break, enter and steal; recruit children 22 These offences were committed on 13 August 2008, at another residential property in Albury. The householder was absent. The applicant, with three others, went to the home. One of the co-offenders knocked on the door. There was no answer. The offenders went to the back of the house and smashed a sliding door. The applicant entered, followed by the others. They removed a plasma television set from the wall, and a small LCD television set and a football jersey. The applicant later sold the property. He gave one of the co-offenders $100. He gave another $20. By his plea of guilty to count 8, the applicant accepted that he had "recruited" the three co-offenders, all of whom were under the age of 18, to participate in the criminal activity. 23 The sale of the property constituted another of the disposal of stolen property offences listed on the Form 1. 24 In respect of these offences the applicant was sentenced, respectively, to imprisonment for 3 years with a non-parole period of 2 years and 3 months, and a fixed term of imprisonment for 2 years, each to commence on 15 April 2013, and therefore accumulated on the count 6 sentence by a further 18 months. Counts 9-10: aggravated break, enter and steal; money laundering 25 These were referred to as "the October charges". They were committed on 4 October 2008. Count 9 was an offence of aggravated break, enter and steal. It followed a similar pattern to those already described. In company with seven young men (all under the age of 18) the applicant walked to a residential property in Albury. At his direction, one of the co-offenders knocked on the door. When there was no answer, the applicant told the others to jump the fence, which they did. The applicant smashed a rear window. Again at the applicant's direction, two of the co-offenders entered the house, and unlocked the sliding door. The others then entered. The offenders took various items of property, including a computer, a television set, and jewellery. They found keys to a vehicle that was in the garage, and put the stolen property into the vehicle, which the applicant then drove to his home. He then drove the vehicle to another location where he left it. 26 The applicant was at the time disqualified from holding a driver's licence. The driving of the vehicle constituted the s 166 offence. 27 Later, the applicant sold the television set. This constituted the offence of money laundering. 28 In respect of these offences the applicant was sentenced, respectively, to imprisonment for 5 years with a non-parole period of 2 years, and a fixed term of imprisonment for 18 months, each commencing on 15 April 2014, a further accumulation of 12 months. 29 I pause to observe that, in respect of each break and enter offence that was associated with a recruit child(ren) offence, the sentence imposed in respect of the latter was a fixed term, less than, and therefore wholly subsumed within, the sentence imposed in respect of the break and enter offence. The judge treated all offences committed on any occasion as part of a sub-set, with all sentences to be served concurrently. As it would have been entirely appropriate to have accumulated the recruit child(ren) offences upon the s 112(2) offences, this was a considerable benefit to the applicant. The applicant's personal circumstances 30 Evidence of the applicant's personal circumstances was put before the sentencing judge through a Pre-Sentence Report prepared by Ms Kellie Becquet. The information it yielded was relatively scanty. 31 The applicant was born in July 1984, and was 23 and 24 years of age at the time of this offending. He has a criminal record that began in the Children's Court in 2001, when he was 17, and contains entries for assault, larceny, and public order offences. There are also a number of instances of break, enter and steal, although some of these appear to be entries in relation to the same offence or offences, following breaches of bonds imposed. Although, on two occasions, he was sentenced to terms of imprisonment, in each of those cases execution of the sentence was suspended under s 12 of the Sentencing Procedure Act. The applicant had therefore never served a sentence of imprisonment in custody. Where, in respect of these earlier offences, the applicant was subject to supervised liberty, he initially responded positively, so much so that a recommendation for early termination was made. However, that auspicious beginning was short-lived. 32 On 14 January 2008, just one week before this spate of criminality began, the applicant appeared at the Local Court in Albury charged with having custody of an offensive weapon in a public place, resist police officer in the execution of duty, intimidate police officer in the execution of duty, offensive behaviour, and affray. He was subjected to three bonds and a Community Service Order. Those bonds were, of course, current at the time of the present offences. His response to this supervision was described as "unsatisfactory to the extreme" and he was assessed as unsuitable for further supervised community based sentencing options in the foreseeable future. 33 This deterioration was attributed by Ms Becquet to an increase by the applicant in his alcohol consumption. 34 Ms Becquet recorded that the applicant is the eldest of eight children of an Aboriginal family, born in Mildura. When he was about seven years of age he and his three eldest siblings were placed in the care of his maternal grandmother in Albury. This was because, due to significant alcohol issues, his mother was unable to take care of them. The applicant has had no relationship with his father. 35 The applicant left school at 14 years of age, prior to completing year eight. He is said to have attended an unidentified TAFE course, but no detail about this was available. 36 The applicant himself had significant drug and alcohol issues. He began drinking alcohol at 13, and his use escalated. As a result, for two years he was sent to live with another relative. By the age of 23 he had kidney damage. He ceased drinking spirits, but did not give up beer, which he consumed in large quantities. Ms Becquet considered that he lacked insight into the seriousness of his alcohol consumption. 37 He began using cannabis also at about the age of 13, and continued doing so until the age of 20 when, he said, a lung collapsed and he ceased its use. 38 He acknowledged to Ms Becquet that he needed assistance with rehabilitation. 39 At the age of 25 (at the date of sentencing) the applicant was the father of four children, of whom one was in his care because the mother of the children was unable to look after all of them. He has maintained amicable relations with the children's mother although they are separated. 40 Ms Becquet did not express any level of optimism about the applicant's prospects of rehabilitation. The proceedings on sentence 41 The applicant did not give evidence in the sentencing hearing, and none was called on his behalf. His legal representative comprehensively addressed the facts of the offences and the applicant's personal circumstances. Importantly, he urged upon the sentencing judge that the case was of the kind to which Wood J (as he then was) referred in R v Fernando (1992) 76 A Crim R 58. Included in his submissions was the following: "Your Honour, in relation to the s 21A [of the Sentencing Procedure Act] factors. In my submission the relevant aggravating factors (d) the history of previous convictions, (j) the fact the offence was committed while on conditional liberty, (m) that the offence involved multiple victims or a series of criminal acts and (n) the offence was part of a planned or organised criminal activity …" (italics added) The Remarks on Sentence 42 The sentencing judge outlined the facts of the offences, and, later, the evidence concerning the applicant's personal circumstances. He correctly concluded that the facts were such as to call for a degree of accumulation, although, as I have noted above, in sentencing he made each of the sentences imposed in respect of the recruitment of children crimes concurrent with its associated break, enter and steal offence. He agreed with Ms Becquet's implied assessment of the applicant's prospects of rehabilitation as "not good". 43 He found that there was nothing in the material before him that indicated that the applicant had any insight into the seriousness of his criminality; nor did he find any evidence of contrition. He thought that, apart from the plea of guilty, the applicant appeared "entirely unrepentant". 44 In partial support of this conclusion, his Honour referred to the applicant, through his legal representative, disputing the agreed facts. I have carefully read the transcript of the proceedings and can find no challenge to the agreed facts. There is such a reference in the Pre-Sentence Report. 45 His Honour considered, in sequence, the relevant aggravating features set out in s 21A(2) of the Sentencing Procedure Act. Adopting the submission expressly made to him by the applicant's legal representative (set out above), he considered as relevant: ● s 21A(2)(d): the applicant's record of previous convictions; ● s 21A(2)(j): that each offence was committed while the applicant was on conditional liberty in relation to previous offences; ● s 21A(2)(m): that each offence involved multiple victims or a series of criminal acts; ● s 21A(2)(n): that "the crimes were, to a certain extent, planned or organised". I note that the last of these does not precisely follow the words of s 21A(2)(n), which specifies as an aggravating factor that "the offence was part of a planned or organised criminal activity". By his reformulation, the judge may well have avoided being led into error by the submission of the applicant's representative, who accepted that aggravating factor (n) was present. 46 The judge noted the submission made concerning the relevance of the principles stated by Wood J in Fernando, and said: "He [the applicant's legal representative] referred to R v Fernando , but there is little evidence here to show that the prisoner was raised in a community the toxic features of which prevented the development of a proper attitude to law abiding behaviour." 47 He found, for the purpose of s 44(2) of the Sentencing Procedure Act, that special circumstances existed justifying departure from the proportion of the non-parole period to the head sentence therein stated, citing as reasons: ● that this would be the first sentence of imprisonment faced by the applicant; ● the need for rehabilitation; and, what he said was "the most potent factor" ● the need for accumulation of sentences. 48 He accepted a submission made by the Crown that the offences fell into the mid-range of objective seriousness, but perhaps towards the lower end of that range. He then proceeded to impose the sentences outlined above. The application for leave to appeal 49 Four grounds of appeal were pleaded. They were: "1. The applicant relied upon the decision of R v Fernando (1992) 76 A Crim R 58. His Honour erred in rejecting that submission. 2. His Honour erred in finding that there was aggravation pursuant s 21A(2)(m) of the Crimes (Sentencing Procedure) Act . 3. His Honour erred in failing to adequately alter the statutory ratio to reflect the special circumstances which existed. 4. The sentence was manifestly excessive." Ground 1: Fernando 50 In Fernando, Wood J set out a series of sentencing propositions that have too often been taken to have been designed specifically for Aboriginal offenders. So to approach that decision is to misunderstand Wood J's intention. 51 Indeed, Wood J stated this expressly. Proposition (A) and (B) read: "(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender." 52 That the Fernando propositions were intended to apply generally was stated in R v Hickey (NSWCCA, 27 September 1994, unreported) and re-stated by Wood J in R v Morgan [2003] NSWCCA 230; 57 NSWLR 533 at [20] and [21]. 53 Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime. Particularly relevant, in the circumstances of that case (and this) is the impact of alcohol addiction or dependence. In the proposition lettered (E), Wood J said: "(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects." It is this proposition that senior counsel for the applicant argued was here applicable, but was rejected by the sentencing judge. 54 By way of response, the Crown argued: "23. The Crown in response submits that, even though the applicant says that his offending is alcohol related, he does not come from a remote part of the community, and he was familiar with the legal system from an early age. In any event, the mitigating effect of being an Aboriginal person loses much of its force, where the offender has committed similar serious offences in the past: R v Ah-See [2004] NSWCCA 202." The Crown went to hypothesise that this applicant had, in fact, been given the benefit of a Fernando approach to sentencing in the past. Examination of the applicant's history suggests that this is a reasonable inference. 55 Notwithstanding that, in my opinion this ground has been made out. It was an error for the judge to say that there was "little evidence" to show that the applicant was raised in a community: "the toxic features of which prevented the development of a proper attitude to law abiding behaviour." 56 The Pre-Sentence Report disclosed an early history of social deprivation, to the extent that, from the age of seven, the applicant was removed from his mother's care. He has had no relationship with his father. He has had little education. He succumbed to drug and alcohol use as early as 13 years of age. His upbringing was unstable, in part by reason of attempts on the part of his grandmother to deal with his drug and alcohol use. 57 It is no answer to say that he did not come from "a remote part of the community"; social deprivation, resulting from alcohol consumption (or otherwise) is not confined to remote areas or communities. 58 In my opinion these circumstances warranted more attention to the propositions stated by Wood J. Ground 2: aggravating features 59 Section 21A(2) of the Sentencing Procedure Act spells out the aggravating factors that must be taken into account in sentencing. Sub-paragraph (m) specifies: "the offence involved multiple victims or a series of criminal acts" as one such factor. 60 In the sentencing proceedings, the applicant's legal representative catalogued those aggravating factors that he contended were relevant. One that he expressly mentioned was sub-para (m). The Crown's legal representative did not demur. 61 In those circumstances, his Honour accepted the submission and identified that factor as one of the aggravating factors he took into account. 62 It was, as was conceded by the Crown in this Court, incorrect to do so. The series of offences committed by the applicant involved "multiple victims and a series of criminal acts", but that cannot be said of any of the individual offences. 63 Precisely the same issue arose in R v Tadrosse [2005] NSWCCA 145; 65 NSWLR 740. Howie J, with whom Grove and Hall JJ agreed, said: "28 His Honour was also in error in taking into account as an aggravating feature s 21A(2)(m) 'the offence involved multiple victims or a series of criminal acts'. Clearly there were multiple offences before the court and they indicated that there were multiple victims and a series of criminal acts. But the applicant was going to be sentenced for each of those offences and the fact that there were multiple victims and multiple acts of criminality would be addressed by the sentences to be imposed for each of those offences in accordance with the principle of totality. With respect it is illogical to take into account, where there are multiple offences charged, that it is an aggravating factor relevant to each offence that there is a series of criminal acts disclosed by the offences before the court." 64 On appeal, the Crown, while conceding the error, contended that it was of "little significance", because the outcome would, in all likelihood, have been the same even in the absence of mention of s 21A(2)(m). 65 The difficulty with this submission is that his Honour merely recited the aggravating factors that had been mentioned by the applicant's legal representative, without additional comment. There is no indication as to how this so-called aggravating factor impacted upon the ultimate sentence or sentences. 66 It would, of course, have been perfectly appropriate for the judge to take into account, on the question of totality, that each offence was one of a series of connected, or similar, criminal activity. But, as is well known, the principles stated in Pearce v The Queen [2009] HCA 57; 194 CLR 610 demand that an appropriate sentence be imposed in respect of each offence. It would be wrong if any individual sentence were increased by reason that it "involved multiple victims or a series of criminal acts". 67 As I have said, it is not clear how, if at all, taking into account this factor affected the outcome. Since I have come to the view that other errors affected the sentences, it is unnecessary to determine the actual impact of this error. Ground 3: special circumstances – Sentencing Procedure Act, s 44 68 Section 44 of the Sentencing Procedure Act requires a sentencing court, firstly to set a non-parole period, and then to specify the balance of term. Section 44(2) provides: "The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." (By s 45, if it considers it appropriate to do so, the court may decline to set a non-parole period and instead impose a fixed term; where it takes that course it is required to give reasons (s 45(2)). As will be seen from the table of sentences above, that is the course his Honour took in relation to a number of the offences. He did not, as s 45(2) required him to do, give reasons for doing so; by reason of sub-s (4), failure to state the reasons does not invalidate the sentences. It may readily be inferred that the reason for declining to set non-parole periods in respect of those sentences was that he intended to accumulate subsequent sentences, which would wholly swallow the sentences: setting a non-parole period would have no practical effect.) 69 Having given the reasons I have set out above – that this would be the applicant's first time in custody, his need for rehabilitation, and the need for adjustment required by virtue of the accumulation of sentence – his Honour expressly found that special circumstances within s 44(2) existed. 70 His Honour then imposed fixed terms of imprisonment in respect of counts 2, 5, 8 and 10. In respect of counts 1, 4, 6 and 7 he imposed sentences in accordance with the s 44(2) proportions. In respect of count 3 he imposed a sentence of 4 years and 8 months, with a non-parole period of 3 years and 9 months – the non-parole period being 80 percent of the total sentence. In respect of count 9, he imposed a sentence of 5 years with a non-parole period of 2 years – giving substantial effect to the finding of special circumstances. 71 However, by reason of the accumulation he ordered, the overall sentence, of 10 years and 6 months with a non-parole period of 7 years and 6 months was 71.5 percent of the overall sentence – a small variation of the s 44 proportion of 75 percent, ie 4½ months. The complaint made under this ground is primarily directed, not to the proportions between the non-parole periods and head sentences of the individual sentences, but the ratio to be found in the aggregate sentence. 72 To determine whether error occurred in the outcome it is necessary to understand what his Honour intended to achieve by the finding of special circumstances. In expressing his finding of special circumstances, the judge gave as reasons: "… the prisoner's first time in custody, his need for rehabilitation … but the most potent factor has been the adjustment required by virtue of the accumulation of sentence." 73 That a sentence being imposed will represent an offender's first time in custody is frequently cited as a reason for a finding of special circumstances. Why that should be so is seldom spelled out. It may be that, in a particular case, it is considered that a first term of imprisonment may be seen as diminishing the emphasis to be placed upon specific deterrence (it being assumed that any custodial sentence will operate as such a deterrent); it may be seen as relevant to that offender's need for protracted supervision in order to reintegrate into community life on release; it may, in some undefined way, merely reflect a compassionate approach, particularly where there is evidence of already accomplished rehabilitation. Whether the fact that a sentence will represent a first period of incarceration for an offender ought to constitute a s 44(2) special circumstance has previously attracted the attention of this Court: see, for example, Clarke v R [2009] NSWCCA 49 at [12] per McClellan CJ at CL. 74 Both that circumstance and the need for rehabilitation are factors that would suggest a variation in the statutory proportions of the aggregate sentence, as distinct from the individual sentences. 75 The "adjustment required by virtue of accumulation" suggests a variation in the proportions of individual sentences – sometimes in order to restore the s 44(2) proportions to the overall sentence. 76 Here, it was submitted on behalf of the applicant that his Honour intended to use the finding of special circumstances to accommodate accumulation – by implication, to depart from the s 44(2) proportion in the overall sentence. 77 I am not convinced that this was his Honour's intention. He described the adjustment required by virtue of accumulation as "the most potent factor". However, the fact of a first term of imprisonment, and need for rehabilitation were not insignificant factors, and they are factors that would result in departure from the ratio in the overall sentence. 78 In any event, I am satisfied that the applicant's personal circumstances were such that intensive rehabilitation will be required on his release if he is to avoid recidivism. 79 Affidavit evidence was received against the possibility that this Court might proceed to re-sentence. The applicant affirmed that, since his incarceration, he has sought rehabilitation for his alcohol addiction and has completed a drug and alcohol program and was due to commence another program shortly. He has become an Aboriginal delegate in gaol. He has been assessed for depression but told that he did not need medication. 80 In a separate affidavit, the applicant's solicitor annexed a letter written by the applicant in which he expresses his remorse for his offences, and his desire to resume normal life and look after his four children. 81 It is difficult to assess the extent to which these offer hope of rehabilitation greater than before the sentencing judge. Ground 4: manifestly excessive 82 Only brief submissions were directed to this ground of the application. It was pointed out that the applicant is a relatively young Aboriginal man, who suffers the same addiction as his mother had. He had no father or father figure. He was separated from his siblings during his youth. It was submitted that, having regard to the fact that he had never served a term of imprisonment before, a sentence of 10 years and 6 months was "a crushing one". 83 I have come to the conclusion that, while the sentence imposed in respect of count 9 is severe, none of the individual sentences imposed (including that imposed in respect of count 9) can be said to have been manifestly excessive. Each was within the discretionary range available to the judge, and a proper sentence as required by Pearce. 84 However, I have also come to the view that the overall sentence imposed exceeds what is permissible within the principles of totality. The excess has come about by reason of the accumulation. 85 In my opinion, the error is best corrected by reducing the extent of accumulation of each group of sentences upon those earlier imposed. I propose that the applicant be re-sentenced as follows: Count 1 Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2008 and expiring on 14 January 2011 with a balance of term of 9 months expiring on 14 October 2011. Count 2 Imprisonment for a fixed term of 2 years commencing on 15 October 2008 and expiring on 14 October 2010. Count 3 Imprisonment made up of a non-parole period of 3 years and 9 months commencing on 15 October 2009 and expiring on 14 July 2013 with a balance of term of 11 months expiring on 14 June 2014. Count 4 Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2009 and expiring on 14 June 2011 with a balance of term of 7 months expiring on 14 January 2012. Count 5 Imprisonment for a fixed term of 2 years commencing on 15 October 2009 and expiring on 14 October 2011. Count 6 Imprisonment made up of a non-parole period of 1 year and 8 months commencing on 15 October 2010 and expiring on 14 June 2012 with a balance of term of 7 months expiring on 14 January 2013. Count 7 Imprisonment made up of a non-parole period of 2 years and 3 months commencing on 15 October 2011 and expiring on 14 January 2014 with a balance of term of 9 months expiring on 14 October 2014. Count 8 Imprisonment for a fixed term of 2 years commencing on 15 October 2011 and expiring on 14 October 2013. Count 9 Imprisonment made up of a non-parole period of 2 years commencing on 15 October 2012 and expiring on 14 October 2014 with a balance of term of 3 years expiring on 14 October 2017. Count 10 Imprisonment for a fixed term of 1 year and 6 months commencing on 15 October 2012 and expiring on 14 April 2014. 86 The aggregate sentence is therefore one of 9 years with a non-parole period of 6 years. 87 FULLERTON J: I agree with Simpson J. 88 R A HULME J: I agree with Simpson J. ********** 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.