Al Shamari v R

Catchwords: CRIME – appeal – appeal against sentence – one count of dishonestly destroying property by fire for financial gain – where applicant already serving term of imprisonment for separate offence at date of sentence – where sentencing judge made finding of special circumstances and on that basis adjusted standard ratio between non-parole period and head sentence – whether in light of overall effective sentence sentencing judge erred in failing to give practical effect to finding of special circumstances

Legislation Cited: Crimes Act 1900 (NSW), s 197(1)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited: Abed v R [2025] NSWCCA 223
Bugmy v The Queen (2014) 249 CLR 571; [2014] HCA 37
Caristo v R [2011] NSWCCA 7
Dungay v R [2020] NSWCCA 209
Dunshea v R [2016] NSWCCA 244
El-Ahmad v R [2015] NSWCCA 65
Hardey v R [2019] NSWCCA 310
House v The King [1936] 55 CLR 499; [1936] HCA 40
Islam v R [2020] NSWCCA 236
Jiang v R [2010] NSWCCA 277
Jones (a pseudonym) v R [2025] NSWCCA 29
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lonsdale v R [2020] NSWCCA 267
MD v R [2015] NSWCCA 37
R v Boney [2001] NSWCCA 432
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Simpson (2001) 53 NSWLR 704 at [67]; [2001] NSWCCA 534
Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20
Woods v R [2020] NSWCCA 219

Category: Principal judgment

Parties: Wafaa Al Shamari (Applicant)
Director of Public Prosecutions (Respondent)

Representation: Hanna Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2022/00270072

Publication restriction: Nil

JUDGMENT

1. WARD P: On 27 June 2024, Ms Wafaa Al Shamari (the applicant) was found guilty, after a judge alone trial with her co-accused, Ali Falih Abed (with whom the applicant was, at the time of the offence, in a close personal relationship), of one count of dishonestly destroying property by fire for financial gain, contrary to s 197(1)(b) of the Crimes Act 1900 (NSW). The Crown case was that Mr Abed and the applicant were participants in a joint criminal enterprise. Mr Abed was also found guilty. The maximum penalty for that offence is imprisonment for 14 years. There is no standard non-parole period.

2. On 20 September 2024, the applicant was sentenced to a term of imprisonment of 6 years commencing on 20 June 2024, with a non-parole period of 4 years. The non-parole period will expire on 19 June 2028. The balance of term will expire on 19 June 2030.

3. The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed upon her. The sole proposed ground of appeal is:

Ground 1

The sentencing judge erred in failing to give practical effect to the finding of special circumstances.

Background

4. The facts found by the sentencing judge (as drawn from the remarks on sentence (ROS), pp 1-5, and ex tempore decision on verdict (Judgment) given on 27 June 2024) may be summarised as follows.

5. The applicant purchased a property in Namur Street, South Granville (the Property), in about October 2020. The applicant secured an insurance policy over the Property with NRMA Insurance with effect from 23 November 2020 for a period of 12 months. The premium was paid in monthly instalments. The replacement insurance cover for the Property was $550,000 (ROS p 2).

6. From 22 February 2021 to 31 May 2021, the applicant made payments to Mr Abed which totalled some $107,000. After May 2021, the applicant continued to make payments to Mr Abed but the frequency and amount of the payments declined. The sentencing judge found that the applicant had other sources of income in the period leading up to 10 August 2021 and was not in financial distress at the time of the offence (Judgment p 13-14).

7. Ms Lynette Cox lived next door to the Property. Shortly after the applicant purchased the Property, Ms Cox saw the applicant and a man in the backyard. The applicant introduced herself to Ms Cox as “Sarah”. The sentencing judge found beyond reasonable doubt that “Sarah” was the applicant (ROS p 2). The applicant (“Sarah”) asked Ms Cox if she was interested in selling her house and rang her again two or three days later to ask her about selling the house, to which Ms Cox said she was not interested (Judgment 12). In February 2021, the applicant leased the Property to Ms Nada Hamze for a term of five years. Ms Hamze was at the time in a relationship with the applicant’s brother (ROS p 3).

8. On 20 April 2021, the applicant authored a “To-Do List” on her mobile phone that included “finance for Porsche”, “construction loan for [the Property]” and “try to purchase [Ms Cox’ next door property] for investment from Lyn”. A second page, entitled “Goals” included “Construction loan, build on [the Property]”. Under a sub-heading “Investment” were the words “[the Property] and build duplexes and lease” (ROS p 3).

9. On 21 April 2021, the applicant spent $155,000 at the Porsche Centre in Parramatta. (The sentencing judge observed that this illustrated that the list was a “to do list” as opposed to a “wish list”.) (ROS p 3)

10. Around this time, a man who said his name was Alan came to Ms Cox’ house asking if she was interested in selling her house to him and said that he could pay cash (Judgment p 13). The sentencing judge found that the applicant’s plan to purchase the neighboring property was frustrated by Ms Cox’ rejection of the applicant’s offer to buy the Property. His Honour said that the “dishonest redevelopment plan hatched by [the applicant]” in relation to the Property continued to unfold (ROS p 3).

11. From late May 2021, the applicant sought to evict Ms Hamze from the Property. Ms Hamze vacated the Property by late July 2021 (ROS p 3).

12. The applicant and Mr Abed reached an agreement to destroy the Property some time before the fire was lit; and did so with a view to making a financial gain by the applicant then making a claim on her insurance policy with NRMA Insurance. That insurance policy payout was intended to pay for the redevelopment of the Property (ROS p 3-5).

13. At the direction of the applicant, Mr Abed recruited two juveniles (“HA”, who was related to Mr Abed, and “TG”) to burn down the Property (in exchange for payment). Mr Abed did so at the direction of the applicant. Both Mr Abed and the applicant did so dishonestly with a view to making a financial gain (ROS p 4).

14. On 10 August 2021, each of HA and TG purchased a jerry can, which they caused to be filled with petrol at a service station in Liverpool, paying for the jerry cans using a credit card in the name of a sister of Mr Abed. They travelled to and from the Property in an Uber motor vehicle that was booked through Mr Abed’s mobile phone service and paid for from Mr Abed’s bank account. They poured petrol at multiple locations throughout the house on the Property and intentionally ignited it. The fire destroyed the Property. The two jerry cans were later found at the Property (ROS p 4).

15. The applicant was at her home in Guildford at the time of the fire and during the movements of the two juveniles at the Property on 10 August 2021 (ROS p 4). It was the Crown case that neither the applicant nor Mr Abed was physically present at the time the Property was destroyed.

16. The applicant became aware of the police investigation into the fire on 22 August 2022. On 1 September 2022, detectives contacted the applicant and told her they were on their way to arrest one of the juveniles in connection with the fire. Forty minutes later, HA telephoned Mr Abed, during which conversation Mr Abed told HA to conceal his phone. Five minutes after the call, HA was arrested. His Honour found that the only reasonable inference was that the applicant had told Mr Abed that HA was going to be arrested (Judgment p 19, 25-26; ROS p 4-5).

17. On 8 September 2022, detectives again spoke with the applicant, telling her they had arrested HA for lighting the fire at her place and also TG; that they were on their way to arrest Mr Abed; and that they wanted to question her. About half an hour later, the applicant called Mr Abed (using a mobile phone that was not hers) and told him that police were going to arrest him. During that call, the applicant told Mr Abed to “throw the thing” (referring to Mr Abed’s mobile phone) and told Mr Abed to “call the solicitor from a different phone”(Judgment p 19-20).

18. On 9 September 2022, the applicant drove to a car park near Granville Police Station and phoned HA. The applicant told him that she was going to be arrested for the “same thing” and that “It’s your friend that snitched” (which his Honour took to be a reference to TG, given HA’s response). The applicant then walked towards the public entrance of the police station and disposed of her mobile phone in a hedge before entering the police station where she was arrested (Judgment p 20-21).

19. The sentencing judge found that the direct and indirect evidence at trial established that an accidental fire that destroyed the Property would have frustrated any opposition to the demolition and proposed redevelopment of the site; and that any such redevelopment would have generated a financial gain; so too it would have generated a payout on the building insurance policy. His Honour found that any deliberate fire that was not attributable to the applicant would also have generated a payout on the building insurance policy (Judgment 23-24; ROS p 5).

20. His Honour found that the dishonest plan to destroy the Property by fire to redevelop the site was “hatched” by the applicant (ROS p 3).

21. His Honour was satisfied beyond reasonable doubt that it was “not lost on [the applicant]” that, if the Property was in a dormant destroyed state, then the owners/occupants of the adjoining properties, notably Ms Cox, would likely find it so unpleasant, given the likelihood of noisy rubbish removal and rebuilding construction activity, that they would seriously consider selling their homes and that any difficulty in redeveloping the relatively small site at the Property with townhouses and duplexes (being one of the applicant’s identified investment goals) would have been assisted by increasing the size of the site by acquiring Ms Cox’ property (ROS p 5). Thus, the sentencing judge concluded that the applicant arranged the fire to claim on her insurance policy and to pave the way for the financially remunerative redevelopment of the Property (ROS p 5).

22. His Honour found that the close personal relationship between the applicant and Mr Abed and her demonstrated financial support of him also established that he would have benefited financially and personally from a successful claim on the insurance policy for, and from the redevelopment of the Property. (ROS p 5).

23. At the time the applicant was sentenced, she was already serving a sentence for an offence of take/detain in company with intent to obtain advantage and occasioning actual bodily harm (the take/detain offence). That sentence was for a term of 5 years’ imprisonment, which commenced on 1 December 2022, with a non-parole period of 3 years, expiring on 30 November 2025. The head sentence was then to expire on 30 November 2027. (The sentence imposed by the sentencing judge for the s 197(1)(b) offence was partially accumulated upon that pre-existing sentence.)

Sentencing judgment

24. His Honour delivered ex tempore remarks on sentence. Mr Abed was sentenced at the same time as the applicant in a joint hearing and judgment.

25. In assessing the objective seriousness of the offence, his Honour found that the extent of the damage caused by the fire was of high order, as the house was destroyed rather than merely damaged; the offence was committed without regard for public safety because there was a risk of damage to the adjoining property and risk of injury to other people including Ms Cox, the two juvenile co-offenders, and first responders; the motive of the applicant and co-offender was greed; and there was a significant degree of planning and premeditation (ROS p 8).

26. His Honour found that the applicant was the instigator and dominant figure in the joint criminal enterprise, which increased her culpability above that of Mr Abed (who did what he did at the applicant’s direction). As noted above, his Honour found that the applicant arranged the fire in order dishonestly to claim on her insurance policy and pave the way for the financially remunerative redevelopment of the Property. His Honour found that, while Mr Abed would also have benefited financially and personally from a successful claim and property redevelopment, his role was largely limited to recruiting and organising the two juveniles to burn down the house, which he did at the direction of the applicant (ROS p 5, 7).

27. As to the applicant’s subjective case, the applicant was 31 years old at the time of the offending and 34 years old when sentenced. On sentence, the applicant relied on a report of consultant psychologist, Mr Anthony Diment; evidence of the sentencing of TG and HA; and an affidavit of Ms Alexandra Sarmier (20/9/24; T 4-5). The applicant’s counsel provided written submissions on sentencing.

28. Anthony Diment noted that the applicant told him that she came to Australia from Kuwait as a refugee in 1997; and that her father was a soldier and prisoner of war. He assessed the applicant as above average for clinical anxiety and depression. Mr Diment opined that the offending occurred against the background of severe anxiety and depression. He stated that, prior to and at the time of her offence, the applicant was suffering from anxiety and post-traumatic stress disorder. Mr Diment also noted the applicant’s reports of harm to her whilst in custody.

29. His Honour noted that the applicant was on conditional liberty at the time of the offence, in the form of a grant of bail. The applicant had served time in custody pending her sentence for the present matter, and at the time of sentence she was serving the sentence for the take/detain offence. While in custody pending sentence, the applicant had accrued nine custodial infringements including intimidation, unlawfully using a phone, fighting, and failing a prescribed drug test (ROS p 6-7).

30. In respect of the applicant’s subjective case, his Honour found that the applicant had not shown any remorse and that the applicant’s prospects of rehabilitation were guarded, given that she continued to maintain her innocence and had proffered assertions to the author of the Sentencing Assessment Report in which she positioned herself as the victim, having been set up by gang members (ROS p 7).

31. His Honour noted that the applicant had adduced material to the effect that she experienced deprivation as a child or adolescent which had left her suffering from post-traumatic stress disorder, and that she was also diagnosed with a persistent depressive disorder with anxiety (ROS p 8).

32. After referring to the principles stated in Bugmy v The Queen (2014) 249 CLR 571; [2014] HCA 37 (Bugmy v The Queen) and Dungay v R [2020] NSWCCA 209, his Honour found that the offending was not an unpremeditated crime of violence which arose out of prolonged and widespread social disadvantage and that the index offence was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experiences during the applicant’s childhood or adolescence (ROS p 9).

33. His Honour was not satisfied on the balance of probabilities that the applicant’s mental ill-health contributed to the commission of the offence in a material way, noting the significant degree of planning and premeditation (ROS p 8-10).

34. His Honour accepted that a custodial sentence may weigh more heavily on the applicant and stated that he would take that into account (ROS p 10).

35. His Honour found that the offending pointed to the applicant (particularly) presenting more of a danger to the community and said that “consideration of specific deterrence therefore suggests a particular need to give consideration to the protection of the public” (ROS p 10).

36. On the issue of parity, the sentencing judge was mindful that where co-offenders are sentenced in the Children’s Court of NSW (as HA and TG were) and others in an adult jurisdiction, it was necessary to recognise the very different sentencing regimes and to apply the special principles identified in the decision of R v Boney [2001] NSWCCA 432. His Honour considered that this limited the worth of any comparison in the circumstances of this case, particularly given the “leading and dominant role” of the applicant and the graver criminality displayed by Mr Abed than that of the two juvenile co-offenders (ROS p 10-11).

37. His Honour concluded that no sentence other than imprisonment was appropriate (ROS p 11).

38. Having noted the term of imprisonment that the applicant was already serving for the take/detain offence, his Honour went on to consider totality, saying:

Where a court sentences an offender who is serving an existing sentence, the overall sentence must be just and appropriate to the totality of the offending behaviour. Totality both constrains and sets a lower limit. This is not a matter of reducing the length of the appropriate sentence but rather fixing a just and appropriate commencement date of the sentence to be imposed.

I am conscious that in doing so, the principle must be applied without a suggestion that the discount is given for multiple offences. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is, in effect, being offered is some kind of a discount for multiple offending.

…

… in the case of Ms Al Shamari, I find special circumstances, given the need for [her] extended supervision in the community post-release that justifies varying the standard ratio between the non-parole period and the head sentence. [ROS 11-12]

39. His Honour then set the term of imprisonment referred to above (see [2]). The commencement date of 20 June 2024 involved approximately 18 months of concurrency with the existing sentence for take/detain in company (the non-parole period for which was due to expire on 30 November 2025).

40. For completeness, I note that Mr Abed was sentenced to 5 years’ imprisonment with a non-parole period of 3 years. Mr Abed’s application for leave to appeal against his sentence has recently been dismissed – see Abed v R [2025] NSWCCA 223. His grounds of appeal were unrelated to those of the applicant (those being that the sentencing judge erred as to Mr Abed’s age at the time of offending, leading to error in the sentence imposed; and the sentencing judge erred by failing correctly to apply the principles in Bugmy v The Queen, specifically by finding that the applicant’s moral culpability was not reduced by reason of a deprived background as the offending was carefully planned – see Abed v R at [5]).

Ground 1: The sentencing judge erred in failing to give practical effect to the finding of special circumstances

Applicant’s submissions

41. The applicant says that the extent of the backdating of the sentence with the existing take/detain offence meant that the total effective sentence for both offences combined was 7 years, 6 months and 18 days with a total effective non-parole period of 5 years, 6 months and 18 days (an effective total ratio of 73.5%). The applicant contends that the overall sentence led to error in that the ultimate sentence imposed for the s 197(1)(b) offence failed to give practical effect to the sentencing judge’s clear finding of special circumstances.

42. The applicant submits that the respective ratios of the two constituent sentences (the s 197(1)(b) offence and the take/detain offence), when combined, render a materially greater ratio than either one (and says that it “numerically and functionally approximates” the statutory ratio). On that basis, the applicant submits that the finding of special circumstances in the present matter, where “extended supervision” was found to be required, has been nullified by the overall outcome and sounds in error.

43. The applicant refers to El-Ahmad v R [2015] NSWCCA 65 (El-Ahmad), where R A Hulme J (Beazley P and Adamson J agreeing) said (at [50]) that, while a finding of special circumstances is discretionary, “it rather makes a mockery (to adopt the expression of Howie J in R v Sutton [2004] NSWCCA 225 at [30]) of finding special circumstances to reduce the non-parole period of a total term of 5 years 6 months by only 6 weeks”. The applicant says that in the present case the effective adjustment to 73.5% reflects only a 6-week reduction in the non-parole period (a parole period of 2 years instead of a period of 1 year and 10.5 months), thus providing nothing in substance by way of extended supervision. As indicated above, the applicant argues that this defeated the purpose of his Honour’s finding of special circumstances.

44. The applicant says that what happened in this sentencing exercise is similar to what occurred in Woods v R [2020] NSWCCA 219 (Woods) (see at [69]-[71]), where Wright J (Bathurst CJ and Garling J agreeing) found that the sentencing judge’s intention was not given effect in the sentence outcome.

45. Although not raised as a ground of appeal, the applicant further submits that his Honour’s finding of hardship in custody, although not an integer of his finding of special circumstances, could have best been reflected in a reduction in the non-parole period (referring to Jones (a pseudonym) v R [2025] NSWCCA 29 (Jones v R)).

46. The applicant contends that, on re-sentencing, a lesser sentence is warranted.

Respondent’s submissions

47. The respondent submits that the result of the finding of special circumstances and the consequent adjustment to the statutory ratio between the head sentence and non-parole period (to 66.6%) is that the applicant was allowed an additional 6 months on parole for the relevant offence, noting that the parole period of 2 years would have otherwise been 1.5 years had the statutory ratio of 75% been applied.

48. The respondent says that the fact that the commencement date of the existing sentence in the present case allowed that parole period of 2 years to be maintained as the effective total period on parole (the ratio of the effective total sentence and effective total non-parole period still being below the statutory ratio at 73.5%) indicates that the sentencing judge had specific regard to the pre-existing (take/detain offence) sentence in considering special circumstances and in applying the totality principle. The respondent notes that his Honour referred to the take/detain offence sentence in the context of referring to the totality principle before referring to the finding of special circumstances and then announcing the terms of the sentence.

49. The respondent submits that this is not a matter where the sentencing judge inadvertently or through miscalculation created a total effective sentence with a ratio that exceeds the statutory ratio, or which was otherwise inconsistent with his Honour’s intention; rather, the outcome was precisely as his Honour intended and the sentencing discretion did not miscarry.

50. Further, the respondent submits that the degree of concurrence for wholly unrelated offences involving different types of offences was relatively favourable to the applicant and does not reflect any misapplication of the totality principle.

51. The respondent says that, where his Honour was not obliged to maintain a statutory ratio imposed by a previous judge in respect of a pre-existing sentence (Islam v R [2020] NSWCCA 236 at [62]), there could be no obligation on the sentencing judge to state any intention to undo the effect of the previous finding of special circumstances for the take/detain offence (which involved a 66% ratio).

52. The respondent says that a further indication that the result was what his Honour intended is that his Honour did not refer to a percentage ratio when referring to the finding of special circumstances or announcing the length of the sentence; rather, his Honour referred to the finding of special circumstances, referred to the totality principle and the pre-existing sentence, and announced the term of the sentence date and its commencement date. The respondent contrasts this with Hardey v R [2019] NSWCCA 310, where this Court found error in giving effect to the finding of special circumstances as there was nothing there said by the sentencing judge to reflect any awareness of the precise impact of the accumulation that her Honour had determined was appropriate (see at [33]-[35]).

53. The respondent says that the period of 2 years on parole was of itself an extended period of supervision, given that there was little evidence to suggest that any longer period was required.

54. Insofar as the applicant relies on El-Ahmad, the respondent notes that there error was found in the ratio of the individual sentence that was imposed by the sentencing judge (at [48]-[51]); that error did not arise from accumulation with an existing sentence. It is noted that, when re-sentencing, this Court took into account the need to give effect to the finding of special circumstances, as well as the need to take into account the principle of totality in terms of the partial accumulation upon a pre-existing sentence (at [76]-[78]). The respondent says that the error in El-Ahmad may be readily contrasted with the present case, both in terms of the finding of special circumstances with respect to the existing sentence and in the application of totality principles to maintain the period on parole in the effective total sentence.

55. As to the reliance by the applicant on Woods, the respondent says that, unlike in Woods, the relevant features of the sentencing judgment and the sentence structure in this case indicate that the outcome after the partial accumulation with the pre-existing sentence was what his Honour specifically intended.

56. As to the question of hardship in custody as a special circumstance, the respondent says that this was a matter appropriately taken into account by his Honour in fixing the head sentence, and that any further reduction by way of special circumstances would have resulted in impermissible double counting of that factor (citing R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 (R v Simpson) at [67]; R v Fidow [2004] NSWCCA 172 (R v Fidow) at [18] and R v Cramp [2004] NSWCCA 264 (R v Cramp) at [31]). The respondent notes that the question of hardship in custody was discretionary and says no House v The King error has been established in this regard (see House v The King [1936] 55 CLR 499; [1936] HCA 40). The respondent submits that Jones v R does not compel a conclusion that the sentencing judge erred in the way he treated the applicant’s likely experience of hardship in custody (by stating that he would take that factor into account on sentence, as opposed to making a finding of special circumstances with respect to it).

57. If the need to re-sentence arises (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] and [42]), the respondent submits that a less severe sentence is not warranted in law having regard to the findings of the sentencing judge. The respondent notes that: the applicant instigated the offence; the extent of the damage caused by the arson was extremely serious, the property in question having been completely destroyed; the offence was premeditated and involved planning; the offence was committed for financial gain; the offence involved the recruitment of juveniles at the direction of the applicant to assist in the commission of the offence; the offence involved a risk to public safety, including the safety of at least one neighbour (Ms Cox), the first responders and the juveniles recruited; the applicant was on bail at the time of offending; the sentencing judge found that the applicant, in particular, was a danger to the community, and that considerations of specific deterrence suggested a particular need to consider the protection of the public; the applicant has shown no remorse; there is some doubt as to whether the applicant will re-offend. The respondent further relies on affidavit evidence read on the usual basis at the hearing of this appeal indicating that the applicant has continued to commit custodial infringements since sentence, a matter relevant to her guarded prospects of rehabilitation (See Affidavit of Michael Jones sworn 2 December 2025).

Determination

58. It is recognised that a finding of special circumstances is a discretionary finding of fact (R v Simpson at [73]) in respect of which this Court will be slow to intervene (Jiang v R [2010] NSWCCA 277 at [83]; and see Caristo v R [2011] NSWCCA 7 (Caristo) at [28]). The degree or extent of any adjustment of the statutory ratio is a matter for the discretion of the sentencing judge, (R v Cramp at [31]; Trad v R [2009] NSWCCA 56; (2009) 194 A Crim R 20 at [33]). The ultimate constraint is that the non-parole period must appropriately reflect the criminality involved in the offence (R v Simpson at [63]; see also Lonsdale v R [2020] NSWCCA 267 (Lonsdale) at [30]-[33]).

59. In R v Simpson, Spigelman CJ noted at [73] that “[a]s a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive” (quoted in R v Fidow at [19] and R v Cramp at [36]; Caristo at [29]).

60. The present case involved a sentencing judge imposing a term of imprisonment which was partially accumulated upon an existing sentence. In Lonsdale, which involved a similar scenario, Hoeben CJ at CL said (at [32]):

… a sentencing judge is not required, where there is an existing term of imprisonment, to perform a calculation to ascertain what proportion of the sum of the non-parole period and the period already spent in custody bore to the total term: Stoeski v Regina [2014] NSWCCA 161 at [53]; Tuivaga v R [2015] NSWCCA 145 at [39].

61. It has also been recognised that, in setting a non-parole period, the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term, the actual periods involved are equally, “and probably more” important (see MD v R [2015] NSWCCA 37 at [41] (Gleeson JA, Johnson and Hall JJ agreeing) quoting Caristo at [42] (R A Hulme J, Giles JA and Adams J relevantly agreeing)).

62. Both El-Ahmad and Woods were cases where the sentencing judges erred by finding special circumstances but then only making very modest adjustments to the non-parole period in the instant sentences that they imposed. As the respondent points out, the present case involves the sentencing judge imposing a sentence that was partially accumulated upon an existing sentence and where the applicant complains of error in the total effective sentence.

63. It is clear from his Honour’s reasons (which must be read with a degree of latitude having been delivered ex tempore – see Dunshea v R [2016] NSWCCA 244 at [23]) that the effective total parole period was what his Honour intended. The adjustment of 6 months gives effect to the finding of special circumstances and to its stated purpose being for “extended supervision” of the applicant in the community. His Honour’s finding of special circumstances allowed for a longer period of supervision than would have been the case had there been no such finding (an additional 6 months). No House v The King error has been established.

Orders

64. For the above reasons, the following orders should be made:

65. Leave to appeal is granted.

66. Appeal dismissed.

67. ADAMSON JA: I have had the benefit of reading the reasons in draft of Ward P. I agree with the orders proposed by her Honour and with her Honour’s reasons at [59]-[64]. It is plain from the sentencing judge’s careful reasons that his Honour made a finding of special circumstances in order to authorise a reduction in the custodial portion of the actual sentence which he imposed so as to bring about the consequence that the total period of custody (taking into account the existing sentence) would be about 75% of the total term. If regard is limited to the actual sentence, the ratio is 66.66%. Had his Honour not made a finding of special circumstances, the statutory ratio for the actual sentence imposed by his Honour would have remained at 75% for the actual sentence and the applicant would have been required to spend an additional 6 months in custody. I am satisfied that the sentence imposed reflected his Honour’s appreciation of the effect of accumulation of the sentence imposed on the existing sentence and the need to find special circumstances to achieve the result which his Honour intended. The sole ground of appeal has not been made out.

68. R A HULME AJ: I agree with the orders proposed by Ward P for the reasons her Honour has provided at [59]-[64]. I also agree with the additional reasons of Adamson JA.

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