Allred v R [2015] ACTCA 21

[2015] ACTCA 21

Court of Appeal (ACT)|2015-05-27|Before: Refshauge, Penfold and Burns JJ

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Source facts

Court

Court of Appeal (ACT)

Decision date

2015-05-27

Before

Refshauge, Penfold and Burns JJ

Catchwords

APPEAL – GENERAL PRINCIPLES – Conspiracy to commit aggravated
robbery – Appeal against sentence – Proper grounds
of appeal –
Manifest excess – Available range of sentences –

Source

Original judgment source is linked above.

Catchwords

APPEAL – GENERAL PRINCIPLES – Conspiracy to commit aggravatedrobbery – Appeal against sentence – Proper groundsof appeal –Manifest excess – Available range of sentences –‘Crushing’ sentence – Offender alreadyre-sentenced –Reduction of head sentence – Statutory restriction on change to thenonparole period

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Authorised report: 10 ACTLR 325

COURT OF APPEAL

Case Title: Allred v The Queen

Citation: [2015] ACTCA 21

Hearing Dates: 17 February 2014

Decision Date: 27 May 2015

Before: Refshauge, Penfold and Burns JJ

Decision: 1. The appeal be upheld. 2. Mr Allred be sentenced to imprisonment for four years and six months to commence on 6 January 2013. 3. The sentences handed down in Allred v Burnett [2014] ACTSC 22, to commence on 6 July 2018, be adjusted under s 74 of the Crimes (Sentencing) Act 2005 (ACT) by directing that each of them commence one year earlier than specified in that decision and as set out in [77] of the reasons for judgment in this appeal. 4. A nonparole period be set to commence on 6 January 2013 and to end on 6 January 2017.

Category: Principal Judgment

Catchwords: APPEAL – GENERAL PRINCIPLES – Conspiracy to commit aggravated robbery – Appeal against sentence – Proper grounds of appeal – Manifest excess – Available range of sentences – ‘Crushing’ sentence – Offender already re-sentenced – Reduction of head sentence – Statutory restriction on change to the nonparole period

Earlier, in House v The King (1936) 55 CLR 499 at 505, their Honours had identified two bases for appellate intervention. One is where there is specific error, such as taking into account irrelevant considerations, failing to take into account relevant considerations, mistaking the facts or acting on a wrong principle. The other is where the court cannot identify such a specific error but the sentence is what is now called manifestly excessive or inadequate and the court may infer that there has been an error such that the discretion has not been properly exercised.
This court is bound to apply these principles, but, as has been frequently said before in cases such as Eisenach v The Queen [2011] ACTCA 2, the multiplication of grounds of appeal which are not specific errors does not assist in showing that the sentence was manifestly excessive.
In Eisenach v The Queen, this Court said at [42]-[44]:
Where the ground of an appeal against sentence is manifest excess (or inadequacy), by necessary implication no specific error is being identified. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale v The Queen) (at 325-326): Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. 43. To multiply the grounds, which can be no more than speculative suggestions as to areas where the sentencer may have failed to take a factor into account in the proper way, is generally a fruitless exercise in such an appeal and hardly helpful to the appellate court, save perhaps to particularise the areas where the appellant will address argument. They may, of course, be in the nature of particulars of factors on which the appellant wishes to place emphasis in the appeal, but they are no more than that. 44. In order to succeed in the appeal, then, the appellant must make good, in the way identified in Dinsdale v The Queen that the sentence was manifestly inadequate.
In particular, a ground of appeal that the learned Sentencing Judge failed to have proper regard to a matter or give it proper weight does not constitute a proper ground of appeal. As this Court said in R v Ang at [22]:

(3) Between 10 May 2011 and 17 May 2011 conversations by telephone between Mr Cringle, who was an inmate at the AMC, and Mr Allred, who was at large, were recorded by Corrective Services staff. There were six such conversations, being two on 10 May 2011, one on 11 May 2011, two on 16 May 2011 and one on 17 May 2011. (4) Also, a voice message left by Mr Cringle for Mr Allred on Mr Allred’s mobile telephone on 17 May 2011 was recorded. (5) Furthermore, between 16 May 2011 and 18 May 2011 conversations by telephone between Mr Cringle and his partner, Ms Amber Haber, were recorded. There were four such conversations, being one on 16 May 2011, two on 17 May 2011 and one on 18 May 2011. (6) It must be noted that every telephone call made by an inmate at the AMC is recorded, with the recipient of a call being told that You are about to receive a telephone call from a prisoner at an ACT Corrective Services Facility. This call may be monitored and recorded. It is requested that this call not be transferred. The maximum duration of a telephone call is 10 minutes. Please hold the line call if you wish to accept the call. Go ahead, please. (7) The early telephone calls between Mr Cringle and Mr Allred which were recorded were thought by Corrective Services staff to indicate that Mr Cringle wanted Mr Allred to bring or arrange to be brought a prohibited drug into the AMC for him. Accordingly, the calls were referred to police. (8) However, the telephone call made by Mr Cringle to Mr Allred at 10.38 am on 17 May 2011 was thought by police to indicate that Mr Cringle was arranging with Mr Allred for him, when in the company of another person named Brad, to rob Mr Cringle’s former partner, who is known as ‘Shonks.’ (9) Then the telephone call by Mr Cringle to Mr Allred at 11.07 am on 17 May 2011 was not answered by Mr Allred and, therefore, Mr Cringle left the following message for Mr Allred, hey, can you hear me? Oi. I can’t hear ya. Listen, ring Amber today and ask her if she remembers where Steve lives, the one in Florey, and get her to show ya. If she can’t remember the exact house, I think it’s number 6, and it’s got a white mail box. The gate that, like, the driveway, drives into the backyard. There’s a gate there. And ask her if she knows where it is. Get her to show ya and drop her off. And instead of – when you see Shonk, just ask her. Don’t go there and do that. Ask her if she knows anyone to do. Might be better off for ya. That way, you won’t have any dramas. I’ll try and ring you up after lunch. See if your phone’s working or not. See you, mate”. This message was thought by police to indicate that the intended target of the proposed aggravated robbery had changed from Mr Cringle’s former partner Shonks to someone named Steve, who lived at an address in the suburb of Florey. (10) Then, at 2.45 pm on 17 May 2011, Mr Cringle made a telephone call to Ms Haber in which this was said, and there follows some of the conversation. (11) Later at 3.31 pm on 17 May 2011, Mr Cringle made a telephone call to Ms Haber in which this was said, and there follows the conversation. (12) Police determined from Mr Cringle’s telephone calls at 11.07 am, 2.45 pm and 3.31pm on 17 May 2011 that the intended target of the proposed aggravated robbery to be committed by Mr Allred and Brad in the presence of Ms Haber on the night of 17 May 2011 was Mr SAW [sic], who lived at an address in Byram Place, which was a cul de sac off Tattersall Crescent in the suburb of Florey. (13) Therefore, at 7.15 pm on 17 May 2011 police commenced surveillance of Ms Haber’s address, unit 5, 25 O’Neill Street, Spence. At 8.13 pm a white coloured Holden Commodore sedan, being driven by Mr Uarota David Amosa, with Mr Allred as the front seat passenger, and Brad and his younger brother as the rear seat passengers, arrived at 25 O’Neill Street. Mr Allred left the vehicle, went to Ms Haber’s unit and then returned to the vehicle with Ms Haber. Ms Haber entered the vehicle and sat on the front passenger seat and Mr Allred entered the vehicle and sat on the rear passenger seat behind the driver alongside Brad and his brother. Mr Amosa drove the vehicle from O’Neill Street, Spence, via a number of streets, as detailed in the police surveillance running sheet, Exhibit F, and as shown on the street map, Exhibit G, to Byram Place, Florey, arriving there at 10.25 pm. (14) When the vehicle being driven by Mr Amosa was in the turning circle at the end of the cul de sac, police vehicles arrived in the cul de sac, stopping the vehicle being driven by Mr Amosa. Police then arrested Mr Allred, Ms Haber, Mr Amosa and Brad. After arresting Mr Allred, police took him to the City Police Station, at where he was interviewed, see Exhibit V, after which he was charged with the offence of conspiracy to commit aggravated robbery. After arresting her, police took Ms Haber to the City watch house, at where she was charged with conspiracy to commit aggravated robbery. Subjective Circumstances of Mr Allred

Mr Allred was born in 1992, the youngest of his parents’ three children. When he was about six, his parents separated and he lived with his father until a “week-on week-off” arrangement for his care was made by his parents. This arrangement continued until Mr Allred was 16 years old.
Mr Allred has contact with both his parents and his two brothers and his father said that he would provide accommodation for him on his release from prison.
His primary and secondary education was in the ACT but he did not like school. He was suspended from time to time for verbal abuse, physical abuse, intimidation, bullying, vandalism and absenteeism and was expelled from two high schools for serious misconduct. He finally left school during Year 10 when he was aged fifteen. At age seventeen, he started, but did not continue, studies in Year 11.
He has, since leaving school, been employed as a house painter and a metal worker, though he has had periods of unemployment.
Mr Allred started drinking alcohol when he was sixteen and using illicit drugs, cannabis, methylamphetamine, ecstasy and cocaine, when he was seventeen. He started using heroin when he was nineteen and has also used steroids. When he was imprisoned at the Alexander Maconochie Centre, he was admitted into a methadone program, but has been found to have used illicit drugs while in custody.
While his physical health is good, he has been treated for depression, for which he has been prescribed Valium.
Mr Allred is single and never married. He has no dependants.
He has a criminal record, having been dealt with by the courts for twenty-six offences. [Redacted for legal reasons] Since 2010, he has been convicted of offences of common assault, trespass, assault occasioning actual bodily harm and aiding and abetting an assault occasioning actual bodily harm, as well as some traffic offences. He has served two sentences of imprisonment. On the charge of aiding and abetting an assault occasioning actual bodily harm, he was, on 5 March 2013, sentenced to twelve months imprisonment, to commence on 6 July 2012 to take into account pre-sentence custody, a sentence he was serving when he was sentenced by Nield AJ.
Although not relevant to the grounds of appeal, a further matter is relevant to the disposition of the appeal. On 22 July 2013, after being sentenced for this matter, Mr Allred was sentenced to imprisonment in the Magistrates Court for six traffic offences, two offences of violence and three dishonesty offences. The effect of the later sentencing was to extend Mr Allred’s head sentence by 18 months (from five years and six months to seven years) and to increase the nonparole period by 21 months (from three years to four years and nine months). He appealed against the Magistrates Court sentence and, on 14 February 2014, Ross J upheld the appeal in part, only as to the nonparole period. In resentencing Mr Allred, his Honour set a new nonparole period of four years from 6 January 2013 and to end on 5 January 2017. See Allred v Burnett [2014] ACTSC 22.

For the reasons set out above (at [7]-[16]), all the appeal grounds can only properly be considered as a challenge that the sentence was manifestly excessive. Accordingly, this is the only ground that we need to address.
The approach of the courts to this ground of appeal has been set out in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61] as follows:
Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called ‘the collective wisdom of the judges’: per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 at 460. 60. In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]): 32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]): 46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). 47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]). 33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. 34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate. 61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.
It is relevant in this context to refer to what French CJ, Hayne, Kiefel and Bell JJ said in Barbaro v The Queen (2014) 88 ALJR 372, at 379; [38], when their Honours described the assistance to be provided to a sentencing judge by counsel in the sentencing process as follows:

[24] To expose the error in principle, it is necessary to begin by examining what is meant by an ‘available range’ of sentences for an offender. [25] Except where a mandatory sentence is prescribed, a judge fixing the sentence to be imposed on an offender exercises a discretionary judgment. The exercise of discretion is subject to applicable statutory provisions and judge-made law ... [26] Reference to an ‘available range’ of sentences derives from the well-known principles in House v The King. The residuary category of error in discretionary judgment identified in House is where the result embodied in the court's order ‘is unreasonable or plainly unjust’ and the appellate court infers ‘that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance’. In the field of sentencing appeals, this kind of error is usually referred to as ‘manifest excess’ or ‘manifest inadequacy’. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences. [27] The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some ‘substantial wrong has in fact occurred’ in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed. [28] Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an ‘available range’ of sentences, stating the bounds of an ‘available range’ of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the re-sentencing court to determine the bounds of the range within which the sentence should fall. (footnotes omitted)

Ms T Warwick, counsel for Mr Allred, prepared a helpful table which set out the sentences imposed by the Supreme Court on forty-two offenders for the offence of aggravated robbery and associated offences of conspiracy to commit an aggravated robbery and attempting to commit such a crime.
The summaries were divided by reference to whether the offender was a young person (under the age of eighteen years), a young adult or more mature adult, and then by whether the offender had a significant criminal history or a limited, unknown or no criminal history. A short summary of the facts and some subjective considerations were also given.
As is clear from what fell from the High Court in Barbaro v The Queen, referred to above (at [30]-[31]), such information is useful but it has significant limitations. Recently, in Bui v The Queen [2015] ACTCA 5 at [36]-[39] this Court identified the relevant principles with reference to relevant authorities and said:
There is no doubt that consistency in sentencing is fundamental in a rational and fair system of criminal justice, as pointed out by Mason J in Lowe v The Queen (1984) 154 CLR 606 at 610-1. Consistency, however, does not require numerical equivalence. See Hili v The Queen (2010) 242 CLR 520 at 535; [48]-[49] where French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: Consistency is not demonstrated by, and does not require, numerical equivalence. Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the task of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results. The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt IB of the Crimes Act. When it is said that the search is for "reasonable consistency", what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. 37. There is, however, no prohibition on the use of sentencing statistics or, as in Roma v The Queen [2006] ACTCA 25, schedules of what are said to be comparable sentences. The use of this material, however, must be placed into its proper place. 38. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 606; [59]: ... recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were. 39. As French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ also said in Hili v The Queen at 537; [54]: In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned’. (footnotes omitted)
It is helpful when considering such comparable cases to have regard to the comments in Hili v The Queen at 544; [76]-[77] where Heydon J addressed the use of such cases by sentencers:

It may be accepted from the information provided that the sentences imposed on a young adult (18 to 26 years old) with a limited, unknown or no prior criminal history for an offence of aggravated robbery offences ranged from a good behaviour order to six years imprisonment. What was relevant was that, in the two cases where the longest sentences were imposed, there were particularly serious aspects of the offence; in one case a gun was used and in the other case a metal pipe was used to inflict actual violence. The amount stolen in one case was also very substantial. In both cases, the offender pleaded guilty.
For young adults, where the offender has a significant prior criminal history, the sentences for the offence of aggravated robbery ranged from one year to six years imprisonment. Again, the longest sentence was for an offence that involved the use of a gun and was committed in company. The amount stolen in that case was also substantial and the offender pleaded guilty.
It is difficult to draw conclusions from such a conspectus, though it can identify some principles. It shows that the use of guns and actual violence call for a more severe sentence and that the stealing of a substantial amount of property involved is likely also to require a heavier sentence.
In this case, of course, there was no actual money or other property stolen, little information as to the amount likely to have been stolen and no weapons found when Mr Allred was arrested. There was no information provided by the Crown as to what property could be in contemplation that Mr Allred was intent on stealing in the robbery.
As Ms Warwick submitted, the conspectus showed a difference in sentencing approach depending on the nature of the circumstance of aggravation for the offence. That is to say, sentences where the offence was committed in company were appreciably shorter than those where a weapon or actual violence was used. That the latter circumstances are more serious is in accordance with principle as identified in cases such as R v McFarland (1993) 2 Tas R 201 at 210. In principle, more severe sentences should be imposed for more serious offences, subject to other relevant considerations.
Ms Warwick also submitted, based on the tables she provided, that, as a general rule, the length of sentences imposed on young adults were shorter than those imposed on older adult offenders. Again, this accords with principle, where a young person, though over the age of eighteen and not a minor, may be entitled to recognition of this factor in the sentence imposed. See R v PM [2009] ACTSC 24 at [52]-[54], approved in R v CV (2013) 233 A Crim R 67 at 78; [42]. In R v Gordon (1994) 71 A Crim R 459 at 469, it was pointed out that appropriate moderation of penalty for youth does not simply end when a person turns 18 years of age, though the statutory regime no longer applies.
While Ms Warwick’s schedule is of some value, especially as to identifying relevant principles, it is, as indicated earlier, of limited value.
Mr Allred had been in custody at the date of sentence for approximately thirty months over the previous forty months, at a time when he was still quite youthful. His other offences since he was an adult have been in the mid to low range of seriousness.
That he was already serving a sentence of imprisonment required the court to take into account the principle of totality in ensuring that the total period of custodial confinement was appropriate to his circumstances. See Harland-White v The Queen [1998] TASSC 999 at p 4.
As Dawson and Gaudron JJ described in Postiglione v The Queen (1997) 189 CLR 295 at 303-4, the task to be faced by a sentencing judge in these circumstances is “to have regard to the total effect of the sentences imposed [on the appellant and his co-accused], not merely the period by which their prior sentences were increased” and to “ensure that [the appellant] is not subjected to a ‘crushing sentence’ not in keeping with his record and prospects”.
In that sense, the issues raised in grounds (iv) and (vi) of the Notice of Appeal are elements of the same consideration.
Various approaches have been taken to what is a “crushing sentence”. The sentence at issue in Postiglione v The Queen was a sentence of 18 years imprisonment partially concurrent with a sentence that the offender was then serving of 12 years imprisonment so as to impose a total sentence of 24 years and two months imprisonment.
The Victorian approach has been to emphasise that a crushing sentence is one that “connotes the destruction of any reasonable expectation of useful life after release”: R v Yates (1984) 13 A Crim R 319 at 326 per Young CJ, Clarke, Crockett and Hampel JJ. The offender there was sixty-eight years old and sentenced to a total term of ten years. That case was followed in Crowley and Garner (1991) 55 A Crim R 201 at 206 where it was pointed out that a crushing sentence is not, of itself, manifestly excessive.
On the other hand, Dixon, Evatt and McTiernan JJ in Cranssen v The King at 521 described a crushing sentence as a punishment that bears “no proportion either to the impropriety of the [offender’s] conduct or the kind of penalty that would suffice as a deterrent”.
This Court has considered the notion of a “crushing” sentence in Holliday v The Queen [2013] ACTCA 31. Higgins CJ said at [26]:

As can be seen, the restriction on any change to the nonparole period as provided in s 66(4) of the Sentencing Act is maintained and not overcome by s 74(5) of that Act.
All this Court can do, therefore, is to reduce the head sentence imposed. It will then be required, when remaking the nonparole period (that set in Allred v Burnett having thereby been automatically cancelled under s 66(3) of the Sentencing Act) to re-impose the same or a longer nonparole period despite reducing the head sentence. A longer nonparole period cannot be justly made.
Thus, Mr Allred will now serve a total term of imprisonment of six years (6 January 2013 – 5 January 2019), with a nonparole period of four years, despite Ross J’s view that a nonparole period of four years was appropriate for the total sentence of seven years and despite this court’s view that a total sentence of now only six years imprisonment is adequate for Mr Allred’s offending. Thus, this court’s inability to reduce the nonparole period means that Ross J’s decision has been futile.
This is a most unsatisfactory situation. Where a sentence earlier imposed is set aside on appeal, the court should be able to give full effect to the court’s decision. If, for whatever reason, a later sentence, imposed prior to the determination of an appeal against an earlier sentence, has re-set a nonparole period by reference to that earlier sentence, an appellate court that reduces the earlier sentence should be able to re-set the nonparole period so as to reflect the reduced sentence it has imposed appropriately without, of course, disturbing the element of the nonparole period set for the later sentence.
This is not the first case where this problem has been encountered and which has the potential adversely and unfairly to affect the interests of an offender. In Islam v Wasley and Ross [2014] ACTSC 127, the same situation was encountered. It was, ultimately, able to be addressed in a rather complex way and only with the co-operation of the parties. In that decision, Refshauge J called, at [48], for legislative intervention. That has not, so far, been heeded.
As a result, Mr Allred will have to serve the full period of the nonparole period set for the later sentence, even though it was based on an earlier sentence that has been significantly reduced in overall length.

Allred v R [2015] ACTCA 21

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