Barnes v R

Judgment 1HOEBEN CJ at CL: Offence and sentence The applicant pleaded guilty to manslaughter on the day fixed for his trial for the murder of Wallace Ruiz-Sanchez. The Crown accepted the plea to manslaughter in full satisfaction of the indictment. The maximum penalty for this offence is imprisonment for 25 years. There is no standard non-parole period. 2On 8 November 2013 Price J sentenced the applicant to imprisonment with a non-parole period of 5 years to date from 6 December 2011 and to expire on 5 December 2016 with an additional term of 2 years to expire on 5 December 2018. 3The applicant seeks leave to appeal from that sentence on the following grounds: Ground 1 - The sentencing judge erred in fixing the commencement date of the sentence on 6 December 2011. Ground 2 - The sentencing judge erred in imposing a sentence which gives the appearance of double punishment. Ground 3 - The sentencing judge erred in inadequately reducing the non-parole period given the basis of his Honour's finding of special circumstance. Factual Background 4On 12 October 2010 the applicant was present with four co-offenders at premises in Marlborough Street, Smithfield. The applicant agreed to be the driver of a motor vehicle to convey himself and the four other offenders to Russell Street, Mount Pritchard for the purpose of collecting prohibited drugs. During the journey the vehicle stopped in premises in Welwyn Place, Canley Vale where a firearm was collected. 5After arriving at the house of the sister of a co-offender, the applicant became aware that another co-offender intended to confront the deceased who lived next door in Russell Street, Mount Pritchard to discuss money owed to him. The applicant, who did not know the deceased, was aware that the co-offender and the deceased "did not get along". 6The five co-offenders, including the applicant, left the house together. The applicant knew that the firearm was taken by the group and that a fight with the deceased was a possibility. The applicant saw the firearm change hands between the other co-offenders as they approached the deceased's premises. 7The applicant stood in the front yard of the deceased's premises and saw a fight commence with the deceased. He saw one of the co-offenders punch the deceased in the face and place him in a headlock. He then observed another of the co-offenders attack the deceased. Finally, he saw a third co-offender hit the deceased over the head with the firearm and saw it discharge. 8The applicant admitted that he was a party to the joint criminal enterprise to assault the deceased and that he participated to the extent of remaining present throughout the attack upon the deceased, ready and willing to assist the others if need be. The applicant did not foresee either death or grievous bodily harm as a possible consequence or that another party to the agreement would employ a weapon to achieve that result. 9His Honour made the following additional findings of fact. The applicant's conduct did not involve him physically assaulting the deceased. However, he had agreed with the four others to assault the deceased and it was for this reason that he entered the front yard of the deceased's premises. The applicant did not desist from participating in the agreement even though he was aware that a firearm was in the possession of the co-offenders. He was present during the cowardly attack upon the deceased and remained ready and willing to assist even though the deceased was outnumbered by his attackers. 10His Honour found that the objective seriousness of the offence was mitigated by the following matters. The agreement to assault the deceased was not entered into until shortly before he was attacked and the offender did not physically assault him. Furthermore, he did not foresee that any of his co-offenders would employ the degree of violence which in fact occurred, or that death or grievous bodily harm was a possible consequence of the joint criminal enterprise. 11His Honour took into account the following personal characteristics of the applicant. He was born in June 1983 and was aged 27 years at the time of the offence. At the time of sentence, he was aged 30. On 20 March 2007 he was sentenced in the Newcastle District Court to imprisonment for 4 years, commencing 11 May 2006 and expiring 10 May 2010, with a non-parole period of 2 years expiring 10 May 2008 for an offence of aggravated break and enter while armed with a dangerous weapon. He was further sentenced for robbery while armed with an offensive weapon to imprisonment for 4 years 6 months, commencing 11 May 2007 and concluding 10 November 2011, with a non-parole period of 2 years expiring 10 May 2009. 12His Honour noted that at the time of the manslaughter, the applicant was on parole for the offence of armed robbery and his Honour treated that as a matter of aggravation. Because of his criminal history, his Honour gave more weight to considerations of deterrence and the protection of the community than would otherwise be the case. His Honour also took into account the need for general deterrence. 13His Honour allowed a discount of 12.5 percent for the applicant's plea of guilty. 14His Honour found that by his plea of guilty the applicant had accepted responsibility for the part that he had played in the death of the deceased and that his plea indicated contrition for the offence. His Honour took into account this level of remorse as a mitigating factor. Despite the applicant's expression of remorse and intention to return to labouring work upon his release, his Honour was not prepared to make a positive finding that he was unlikely to re-offend or had good prospects of rehabilitation. 15I now set out the following paragraphs from his Honour's sentence judgment, which are relevant to the Grounds of Appeal. "23 The offender's sentence for armed robbery was not to expire until 10 November 2011 and at the time of his arrest on 17 November 2010, he was on parole for this offence. It appears from the offender's custodial history (ex A TB 8 p 1) that the offender completed this sentence on 6 December 2011 following his return to custody and not on 10 November 2011 as submitted by Mr Brewer. It is necessary to consider the principle of totality: Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The offence for which the offender was sentenced in the District Court and the offence of manslaughter are discrete and independent acts of criminality. This fact does not, however, finally determine whether the present sentence ought to be imposed concurrently, partially concurrently or consecutively: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [27]. 24 The offender's custody until 6 December 2011 was as a consequence of his breach of parole for armed robbery. I do not think that partial concurrency with that sentence would adequately reflect the criminality of the armed robbery or the offence of manslaughter. Accordingly, I consider it appropriate that the commencement date of the present sentence is 6 December 2011. 25 Although Mr Brewer did not submit that a finding should be made of special circumstances, I find special circumstances as the present sentence has been made cumulative upon the existing sentence: R v Simpson (1992) 61 A Crim R 58; Close v R (1992) 31 NSWLR 743. I have determined that a non-parole period of 5 years is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at [63]. 26 Taking into account all matters that are relevant to sentence, the appropriate undiscounted starting point of the overall sentence is 8 years. The overall sentence is reduced by 12.5 per cent to 7 years." Ground 1: The sentencing judge erred in fixing the commencement date of the sentence on 6 December 2011. Ground 2 - The sentencing judge erred in imposing a sentence which gives the appearance of double punishment. 16The applicant dealt with these two Grounds of Appeal together and I see no reason to depart from that approach. In order to understand the basis for these Grounds of Appeal, it is necessary to set out some additional factual matters. 17In the review of the factual background, the sentence imposed on the applicant for the armed robbery offence has already been set out. The applicant was released to parole on 10 May 2010, which was 1 year after eligibility. On 5 November 2010 the parole authority revoked the applicant's parole effective from 22 October 2010 (the revocation date). The applicant was taken into custody in relation to the offence, the subject of these proceedings, on 17 November 2010 - 26 days after the revocation date. Because the applicant had been at liberty for 26 days beyond the revocation date, a new expiry date was fixed for his armed robbery sentence - 6 December 2011 (i.e., 26 days after the original expiry date of 10 November 2011). The applicant was entitled to have his revocation of parole reviewed on 16 November 2011. 18The applicant submitted that the 26 day period of incarceration from 17 November to 6 December 2011 had been solely referable to the manslaughter offence for which he was being sentenced. In those circumstances, he submitted that at the very least, the commencement date of the sentence should have been 17 November 2011. 19The applicant submitted that looking at the matter from a broad perspective, there was also a question of whether the sentence should have been commenced at a date earlier than 17 November 2011. This was because his requirement to serve the additional sentence was directly related to the manslaughter offence for which he was being sentenced. 20The applicant noted that the reasons given for the revocation of parole were as follows: (i)Unable to adapt to normal community life. (ii)Failure to report to the parole officer as directed from 22 October 2010. (iii)Failure to reside at an address approved by the parole officer. The applicant submitted that considerations (ii) and (iii) were indirectly related to the commission of the manslaughter offence and that consideration (i) was directly related to it. 21In support of this submission, the applicant relied upon the following statements of principle in Callaghan v R [2006] NSWCCA 58. In particular, the applicant relied upon the following paragraphs: "12 On behalf of the applicant reliance was placed upon a number of previous decisions of this Court, to some of which I was a party. Two separate strands of authority have emerged. One is represented in R v Eric John Andrews, NSWCCA, unreported, 28 April 1993. There Hunt CJ at CL (as he then was) said: "It is quite fallacious to assert (as it is so often asserted) that the prisoner is being punished twice for the same thing in those circumstances. The parole is revoked because, by reason of the further offence committed, it has been demonstrated that the applicant was unable to adapt to normal lawful community life and therefore is no longer entitled to parole in relation to the earlier offence; the sentence is imposed as punishment for the further offence itself committed whilst on parole: R v Ian Jeffrey Gale (CCA, 20 April 1993, unreported) at 3. That does not mean that there will not be some situations in which it would be just to date the new sentence back to a date prior to its imposition. In my view, however, this is not the case in which to lay down guidelines in relation to when that should be done." That statement was adopted by Meagher JA, with whom Hidden J agreed, in R v Brett John Kelly [2000] NSWCCA 557. 13 The other line of authority is exemplified by the decision in R v Kaiva, NSWCCA, unreported, 9 November 1998. There Kirby J, with whom I agreed, said: "Secondly, his Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate. The sentence which he then passed reflected that circumstance. Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is also undesirable." (emphasis added) 14 It is apposite to emphasise here that Kirby J did not hold that double punishment actually occurred; merely that the process gave that appearance. On the same day, the same bench took an identical approach in R v David Webb, NSWCCA, unreported, 9 November 1998. 15 However, in Regina v Shane John Ravet [2001] NSWCCA 535, Stein JA expressly declined to accept that Kaiva and Webb established any principle. His Honour regarded them, rather, as examples demonstrating that backdating to the date of revocation of parole may be within a judge's sentencing discretion in appropriate circumstances. 16 In R v Kitchener [2003] NSWCCA 134 the court was constituted by Wood CJ at CL (as he then was) and myself. 17 There, an offender whose parole had been revoked was sentenced in respect of subsequent offences in such a fashion as to allow credit for only six days of a thirteen month balance of term. The reasons for the parole revocation were not confined to the subsequent offending, but included other specified breaches of parole conditions. 18 I considered, and Wood CJ at CL agreed, that, in some circumstances, a court sentencing in respect of subsequent offences would find it necessary to attempt the hypothetical exercise of assessing what the offender's parole position would or might have been had parole been revoked not as a result (solely) of the subsequent offending, but solely or partly as a result of his other breaches of parole conditions. 19 The Crown drew attention to the decision of this Court in R v SAE NSWCCA, unreported, 3 April 1997, per Gleeson CJ, with whom Mason P and Dowd J agreed. Gleeson CJ said: "The usual principle is that allowance is made for pre-sentence custody but only in circumstances where such pre-sentence custody is exclusively referable to the crime for which the offender has been sentenced." 20 I do not accept that his Honour intended to lay down as an absolute rule that, where pre-sentence custody is referable partly to the crime for which an offender is being sentenced, and partly to some other circumstance, such as revocation of parole, that pre-sentence custody may never be taken into account. The judgment was delivered ex-tempore and the passage cited was not essential to this decision. 21 That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced. 22 I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule. 23 It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole. 24 However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences. 25 Thus, I am of the view that the sentencing judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period. 26 The second question which arises is whether is has been shown that the exercise of her discretion miscarried. I am unable to see that that has been established. I would, accordingly, grant leave to appeal but dismiss the appeal." 22The applicant also relied upon the observations of Basten JA at [34] - [36] and RS Hulme J at [79] in R v DW [2012] NSWCCA 66: "34 In due course the respondent's parole was revoked, with effect from 30 July 2009, when he was arrested, leaving him with a period of six months and nine days to be served, expiring on 7 February 2010. The penalty imposed for the conspiracy did not in fact commence until 30 March 2010. However, the nine month non-parole period imposed in respect of count 3 was back-dated to the date of arrest and thus was concurrent with (and exceeded) the whole of the balance of parole. The sentence on count 2 (the fixed term of 18 months) commenced on 30 December 2009, thus overlapping with the balance of parole, but only for a period of a little over one month. The 2.5 years non-parole period in respect of the conspiracy was concurrent with 15 months of the fixed term imposed for count 2 (and concurrent with one month of the non-parole period imposed for count 3). 35 Although it was submitted that the commencement date for the sentences for the new offences should not properly have been backdated, the primary submission was that the extent of the backdating, to the commencement of custody relating to the new offences, was excessive. In circumstances where the offences constitute the reason for the revocation of parole, it is important not to double count the fact that the offences were committed whilst serving an incomplete sentence for an earlier offence, and whilst on parole for that offence. It is also necessary to consider whether there should be a degree of concurrency, to allow for the possibility that the respondent could have been re-paroled during the course of the balance of term on the earlier offence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[23] (Simpson J, James and Hall JJ agreeing). A further factor to be taken into account on the appeal is that the prosecutor's submissions on sentence accepted the backdating to the commencement of the new period of custody. That factor is not conclusive against intervention, but is a consideration which may persuade the Court not to intervene in the exercise of its residual discretion. 36 As a degree of accumulation in respect of the new offences was permissible, the only issue in terms of concurrency was the failure to commence the first of the new sentences at some point after the date of arrest. Given the length of the balance of the term of the offence for which parole was revoked, the sentencing judge was not required to allow more than four months, attributable purely to the balance of the earlier term. That this would have been a relatively short increase in the overall sentence period is a factor which tends to weigh against intervention in the exercise of the Court's discretion, even if satisfied that such an additional period should have been imposed." (Basten JA) "79 There is no doubt that the decision as when, within a period of revoked parole, another sentence should commence is a matter of discretion - see Callaghan v R [2006[ NSWCCA 58; 160 A Crim R 145. It may be at the beginning; it may be at the end; it may be somewhere in between. A number of matters are liable to inform the exercise of that discretion. Without attempting to be exhaustive, one is the fact that imprisonment for the period of revoked parole is, in its origins, due to the sentence pursuant to which the period when the offender was eligible for parole was granted. Revocation may have occurred because it has been demonstrated that an offender has been unable to adapt to normal community life. A second, although there will commonly be overlapping with the first, may be as in this case, that the revocation arises in consequence of a new offence for which a fresh sentence is being imposed, rather than for some unconnected cause. A third and fourth are likely to be the period served with apparent adherence to the terms of parole and the periods of revocation and for which the revocation is liable to continue." (RS Hulme J) 23The applicant submitted that there should have been a period of partial concurrency between the manslaughter sentence and the period of revoked parole because there was an appearance of double punishment. This was because there was a finding that the offence was aggravated by having been committed while on parole. In making that submission, the applicant acknowledged that a finding of aggravation of this kind, pursuant to s21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 did not prevent a sentence being cumulative. Nevertheless, by reference to the decision of R v Kaiva (referred to at [13] of Callaghan) the applicant submitted that a failure to backdate a sentence in such circumstances gave an appearance of penalising the prisoner for a second time in respect of the same matter. 24The applicant relied upon expressions of opinion to similar effect in R v David Webb (NSWCCA, unreported 9 November 1998). 25The applicant relied upon the observation in R v Callaghan that potential unfairness might arise in circumstances where a sentence was totally cumulative in that such a sentence would make no allowance for an offender having a second chance to have parole granted. On that issue the applicant noted that he was entitled to apply for a review of his revocation of parole on 16 November 2011. He submitted that his Honour should have backdated the commencement date of the manslaughter sentence to that date so as to have due regard to the possibility that he might have been granted parole at that time. 26The applicant submitted that by reference to what was said in R v Callaghan at [24] his re-offending did not occur within a very short time of release to parole, and that the balance of term following the revocation of parole was lengthy. He submitted that in Callaghan and DW these were considerations which pointed towards some level of concurrency between the new sentence and the period of parole that had been revoked. Consideration 27These Grounds of Appeal are misconceived. To the extent that reliance is placed on R v DW, it should be noted that this was a Crown appeal and the issue before the court was not whether the sentence should have been backdated to the period during which parole had been revoked, but the extent of such backdating. The resolution of that appeal turned upon an exercise of the residual discretion, a consideration which does not arise in this case. 28Callaghan v R is a useful decision because of its review of previous decisions of this Court and the statements of principle therein. What should not be lost sight of is that the effect of that review is that the decision of a sentencing judge as to whether or not to make a new sentence partially concurrent or wholly cumulative upon a revoked period of parole involves the exercise of a discretion by that judge. The exercise of discretion has to be carried out in a principled way but it remains the exercise of a discretion. 29For the applicant to succeed on these grounds, he needed to show that it was not open to Price J to exercise the discretion in the way in which he did. Unless the applicant could point to a specific error (which he could not) it was necessary for him to establish that the discretion was wrongly exercised on House v King [1936] HCA 40; 55 CLR 49 grounds. This he has not done. 30It is important to note that the applicant had only been on parole for the completely separate armed robbery offence for 5 months at the time of the commission of the manslaughter. When his parole was revoked, he still had approximately 1 year and 20 days of his parole period to serve. By the time the applicant was sentenced for the manslaughter offence, he had already served the balance of his term of parole as a consequence of the revocation. 31There can be no suggestion that his Honour failed to turn his mind to this issue. His Honour specifically referred to it and gave compelling reasons for why, the manslaughter sentence should be fully cumulative on the armed robbery sentence. His Honour's reasons are set out at [15] hereof. 32His Honour's reasons related primarily, but not solely, to the question of totality. His Honour noted that the armed robbery offence and the manslaughter offence were discrete and independent acts of criminality. In that regard, his Honour took into account the oft quoted observations of Howie J in Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "27 In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. ..." 33His Honour having turned his mind to the question of totality concluded (as was clearly open to him) that partial concurrency of the manslaughter sentence with the revoked period of parole would not adequately reflect the criminality of the armed robbery nor the offence of manslaughter. 34A similar situation to that confronting his Honour came before this Court in Ith v R [2013] NSWCCA 280. There the Court, for reasons similar to those expressed by his Honour, upheld the second sentence being fully cumulative upon a revoked period of parole of 1 year and 7 months. In reaching that conclusion, the Court acknowledged the undoubted discretion of the sentencing judge to cumulate in that way. 35There are other considerations which support this exercise of discretion by his Honour. Of the three reasons put forward for the revocation of parole, only one directly related to the commission of the manslaughter offence. The other two arose from attempts by the applicant to avoid apprehension after the commission of the manslaughter. It is also not without significance that experienced counsel who appeared for the applicant before his Honour conceded that it was open to his Honour to totally cumulate the manslaughter sentence on the revoked parole period (27.9.2013, T.12). 36In the course of the appeal, a subsidiary issue arose. This was the question of whether the applicant should be able to rely upon an affidavit which produced additional material from the State Parole Authority concerning the circumstances surrounding the applicant's revocation of parole. Some, but not all, of that material was before his Honour in the sentence proceedings. 37The purpose of the affidavit was to ground a submission that if his Honour had been aware of that material, he would have commenced the manslaughter sentence on 10 November 2011, not 6 December 2011. The reasoning appears to be that had his Honour been in possession of this information, he would have appreciated that because the applicant had been "on the run" between 22 October and 17 November 2011 when he was apprehended, the parole authority had added that 26 days to the original expiry date of the sentence which was 10 November 2011. Another reason for seeking to read the affidavit seems to have been to establish that on 16 November 2011 the applicant would have been entitled to apply to the parole authority to review his revocation of parole. 38I would reject the affidavit on two bases. The first is that it is neither new nor fresh evidence. The material was available at the time when his Honour sentenced the applicant and could have been easily obtained (as it was for the hearing of the appeal). Another and perhaps more important reason for rejecting the affidavit is that to read it in these proceedings would serve no useful purpose. Given his Honour's approach to the criminality of both the armed robbery and the manslaughter offences, it is most unlikely that he would have backdated the commencement date of the manslaughter sentence to 10 November. This is because the additional 26 days was added to the revoked parole period pursuant to s171 of the Crimes (Administration of Sentences) Act 1999 to take into account the period during which the applicant was seeking to avoid apprehension. Similarly, the possibility of the applicant successfully persuading the parole authority to reconsider its revocation of his parole on 16 November 2011, only 20 days before the balance of parole period expired, could only be regarded as remote. 39These Grounds of Appeal have not been made out. Ground 3 - The sentencing judge erred in inadequately reducing the non-parole period given the basis of his Honour's finding of special circumstance. 40The applicant submitted that while his Honour found special circumstances because of the manslaughter sentence being cumulative upon the revocation of parole period, the reduction of the statutory ratio from 75 percent to 71.42 percent was inadequate. 41In support of that proposition the applicant relied upon Fitzpatrick, Sharon Lee v R [2010] NSWCCA 26 where the Court was asked to consider an adjustment of the overall non-parole period after a finding of special circumstances. The applicant relied upon the following extract from that decision. "32 A finding of special circumstances is purposive, in that it is a warrant for reducing the non-parole period below the statutory ratio. Consideration of factors giving rise to a finding of special circumstances is not always limited to the rehabilitation of the offender but will often be the purpose for such a finding: R v El-Hayek [2004] NSWCCA 25; (2004) 144 A Crim R 90 at [105]. 33 Can it be said in the present case that his Honour's finding of special circumstances was not carried through in the sentence that he imposed? In the particular circumstances of this case, does a reduction of the non-parole period by only 2 months constitute a failure by his Honour properly or adequately to reflect the finding?" 42The applicant submitted that because the finding of special circumstances in this case was based solely upon the cumulation of the two sentences, the amount of the adjusted ratio should have been greater so as to reflect the extent of the cumulation which was built into the manslaughter judgment. 43This Ground of Appeal should be rejected. The ground and submissions in support fail to understand what his Honour was seeking to achieve by his finding of special circumstances and his adjustment of the statutory ratio. 44His Honour was clearly aware that he was fully cumulating the sentence for manslaughter upon the revoked parole period. Not only was this expressly indicated in the judgment, there was no other reason for the finding. There was no suggestion that the applicant was in need of an extended period of supervision or counselling. 45His Honour had already made a finding in relation to the criminality of the manslaughter offence that "a non-parole period of 5 years is the minimum period that the offender must spend in custody in order to appropriately reflect the criminality involved in the offence." This was in line with the observation of Spigelman CJ at [63] in Regina v Simpson [2001] NSWCCA 534; 53 NSWLR 704 where he said: "63 ... there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence." 46Having determined that 5 years was the appropriate non-parole period, it was necessary for his Honour to make some adjustment to the parole/non-parole ratio for the manslaughter offence, otherwise the combined effect of the non-parole period for the manslaughter offence and the revoked parole period would have given rise to a total sentence which did not reflect the statutory ratio. This can be demonstrated in two ways. The non-parole period for the manslaughter represented 71.4 percent of the total term and when the balance of parole to be served by the applicant (1 year 20 days) is added to the non-parole period for the manslaughter (5 years), it represented approximately 75 percent of the total period imposed for the manslaughter and balance of term (i.e. 8 years 20 days). 47This can also be demonstrated by the diagram attached to these reasons. 48The effect of what his Honour did in his finding of special circumstances and his adjustment of the non-parole period in the manslaughter sentence was to maintain the statutory ratio when the balance of parole and the manslaughter sentence were combined. 49The orders which I propose are: (2)Leave to appeal is granted. (3)The appeal is dismissed. 50ROTHMAN J: I agree with Hoeben CJ at CL. 51R A HULME J: I agree with Hoeben CJ at CL.