His Honour held that those proposals were inconsistent with the statutory scheme. He said:
"39 The sentencing court is sentencing only for the 'principal offence'. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a 'discount' for the use of the procedure. This is not sentencing for the principal offence." (italics in original)
68 However, that decision must be read in the light of the later decision of the High Court in Markarian v The Queen [2005] HCA 25; 79 ALJR 1048. There the court had before it an appeal from this court. The proceeding in this court was a Crown appeal in relation to a sentence imposed in respect of a single offence of knowingly taking part in the supply of a prohibited drug, and four additional offences, to be taken into account pursuant to Part 3, Division 3 of the Sentencing Procedure Act. In allowing the Crown appeal and re-sentencing that respondent, Hulme J (with whom Heydon JA and Carruthers AJ agreed) said:
"On account of the matters on the Form 1, particularly the first and second of these, I would increase the sentence otherwise appropriate by between eighteen months and two years."
69 In the High Court the appellant argued that the court erred by, inter alia, impermissibly imposing a separate penalty for the additional offences. The High Court rejected that argument. In a joint judgment, Gleeson CJ, Gummow, Hayne and Callinan JJ said:
"43 We are not satisfied that the Court of Criminal Appeal did err as contended. For the reasons which we have given the errors of the Court of Criminal Appeal were errors of principle made at the outset, and the effect of referring in terms to an increase in the sentence for the principal offence of between 18 months to 2 years, tended to compound the initial error rather than to constitute a separate error in the application of the Sentencing [Procedure] Act. Just as on occasions, albeit that they may be rare ones, it may not be inappropriate for a sentencing court to adopt an arithmetical approach, it may be useful and certainly not erroneous for a sentencing court to make clear the extent to which the penalty for the principal offence has been increased on account of further offences to which an offender has admitted guilt . Here Hulme J sought to, and in our opinion did make it clear, that the additional period of imprisonment was imposed not as a separate penalty for the further offences but by way of increase of penalty for the principal offence. " (italics added)
70 The question which now arises is whether the approach taken by Newman AJ was of the same kind as the approach taken by Hulme J in Markarian, or crossed the line into territory prohibited by s34(1), and constituted the imposition of a separate penalty for the offence.
71 I have come to the conclusion that the approach did cross the line from the permissible to the impermissible. There are three indicators that a separate sentence was imposed. Firstly, his Honour explicitly stated that the applicant was to serve a non-parole period of two years for the crime of break, enter and steal; secondly, he stated his intention of adding that term to the non-parole period which, he said, "I have imposed for the crime of murder"; thirdly, notwithstanding his refusal to find special circumstances, the sentence actually imposed did not precisely reflect that determination. That can only have come about by the addition of the separate term.
72 The result of the accumulation of errors, in my opinion, was a sentence that is, in the circumstances, manifestly excessive. It does not pay due regard to the diminution in the applicant's culpability by reason of his mental disorder, and it does not pay due regard to the diminished need for attention to be paid to questions of general deterrence for the same reason. The approach to the assessment of the objective gravity of the offence was flawed. Finally, by what was the imposition of a separate sentence in relation to the Form 1 offence, what would in any event have been a lengthy sentence for the murder became one which is unsustainable.
73 Accordingly, I propose that leave to appeal against sentence be granted, the appeal allowed, the sentence quashed and the applicant re-sentenced.
74 Against the possibility of that result, the Court admitted into evidence an affidavit of the applicant affirmed on 22 August 2006. The applicant said that he had been in the psychiatric ward of the Metropolitan Reception and Remand Centre for seven months because of his schizophrenia. He takes anti-psychotic medication as well as an anti-depressant medication. He sees a psychiatrist every fortnight for about fifteen minutes. He says he does not feel completely safe in the psychiatric ward because he is surrounded by inmates with mental illnesses and they can be unstable and dangerous.
75 He said he is a Special Management Area Placement inmate because of his fears of other prisoners and for his personal safety. This means that he is unable to undertake any work.
76 His access to courses is limited. Because his mother lives in Grafton and is impecunious she is unable to visit frequently.
77 This material does not in any significant way advance the case. The situation is much as might have been expected at the time of sentencing.
78 The consequence of my conclusion is that this court must, in my view, proceed to re-sentence. It must exercise its own sentencing discretion, and perform its own evaluation, particularly of where the applicant's offence sits on the scale of objective gravity.
79 The applicant's plea of guilty is sufficient reason to depart from the standard non-parole period. However, the standard non-parole period must be taken into account as a benchmark or yardstick. That calls firstly for an assessment of the objective gravity of the applicant's offence.
80 I agree with Newman AJ that the clear (and inevitable) finding that, in conducting himself as he did, the applicant intended to kill Mr Lamb, is an indicator of greater rather than lesser objective gravity. The fact that he fired a shotgun at, obviously, close quarters, also tends to establish greater rather than lesser objective gravity. But against that must be balanced his personality disorder, affected as it was by paranoia, and causally directly related to the commission of the offence.
81 In my opinion the factors indicating greater objective gravity are neatly balanced against those indicating lesser. I would conclude that the applicant's offence is at approximately the mid-range of objective gravity.
82 That, however, does not dictate or even permit the conclusion that a standard non-parole period ought to be imposed.
83 In my opinion, by reason of the applicant's significant mental disorder, and its causal connection to the offence, considerations of general deterrence can be given less emphasis than otherwise would be the case. As against that, questions of specific deterrence need to be given some weight. In many cases, where mental disorder is the cause of the commission of an offence, community protection will assume greater significance. However, because of the length of the term that the applicant will, in any event, serve, and because of the evidence that the impact of his personality disorder will diminish in time, that circumstance may, in this case, also be given less weight.
84 I would adopt Newman AJ's discount of 25% for the plea of guilty.
85 But for that reduction, I would have proposed the imposition of a sentence made up of a non-parole period of 18 years with a balance of term of six years. Applying a reduction of 25%, I propose that the applicant be sentenced to a non-parole period of 13½ years, commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four and a half years, commencing 14 May 2017 and expiring 13 November 2021.
86 The formal orders I propose are: