CITATION: Deakin v Tasmania [2016] TASCCA 19

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Trafficking in a controlled substance - Regularly importing methylamphetamine for eight months - Sentence of 18 months' imprisonment, six months suspended - No provision for parole - No error demonstrated.

Sentencing Act 1997 (Tas), s 17.

Corrections Regulations 2008 (Tas), reg 22(3).

Judgment Number: [2016] TASCCA 19

1. I have had the benefit of reading in draft form the reasons of Wood J. I agree with those reasons and would also dismiss the appeal.

1. This is an appeal brought by Kevin Anthony Deakin against a sentence he received for trafficking in a controlled substance, methylamphetamine, between 1 October 2014 and 25 June 2015. He pleaded guilty before Porter J, and on 24 March 2016 was sentenced by his Honour to 18 months' imprisonment, with the execution of six months suspended on condition that he was not to commit an offence punishable by imprisonment for a period of two years following his release. In addition, a probation order was imposed for 12 months. The appellant appeals the sentence on the sole ground that the sentence was manifestly excessive.

1. On 26 June 2015 police officers became aware of the appellant's offending when they received a report of a suspicious parcel from Australia Post. The parcel was addressed to the appellant. It was seized, and inside police found a vacuum sealed bag containing 83.1 grams of crystal methylamphetamine (Ice). The drug was replaced with an inert substance and delivered to the appellant's address. Within a few minutes police attended and searched the appellant's home and found the parcel, unopened. The search also yielded other drug associated items including snap lock bags, one of which contained .2 grams of methylamphetamine, a used smoking device and two sets of electronic scales.
2. The appellant was interviewed by police and admitted he was a regular user of Ice and that he had purchased the Ice located in the snap lock bag for $300. He used approximately 2½ points of Ice per day, or a couple of grams a week.
3. He told police he had been expecting a delivery of Ice, up to four ounces. He had not ordered it, but had been asked by a person in New South Wales if he could sell it. He had been given one week to do so. He was planning on selling it for approximately $6,500 to $7,000 an ounce and hoped to make a profit of $5,000. When told that the drug intercepted weighed three ounces, he told police that it would be worth $15,000.
4. He told police that he had been receiving parcels for about eight months, on average half an ounce per week. Over the last couple of months he had been receiving parcels between once a week and once a fortnight. He had never received more than one ounce of Ice and he usually paid $7,000 per ounce. He bought the drugs from a person in New South Wales whom he had first contacted after discussing the quality and cost of the drug in Tasmania with a friend and being provided with his phone number. Sometimes he transferred money into bank accounts, or he paid in person when he travelled to New South Wales.
5. In addition to receiving Ice in the mail, he travelled to New South Wales and brought Ice back with him to Tasmania. He brought in amounts of between an 8-ball (3.5 grams) and an ounce (28 grams).
6. He told police he was in a lot of debt, amounting to $22,000, and that he had gambling and drug addiction problems. He used the money he received to pay for living expenses and to cover his gambling addiction. He gambled almost daily, usually gambling between a hundred and a couple of thousand dollars. He thought selling Ice was a good way to get out of his debt.
7. On average he paid $7,500 for an ounce, and $3,500 for half an ounce. He sold the drug in three different quantities, 8-balls, half 8-balls (1.75 grams) and half grams. He sold an 8-ball for $1,500, half 8-balls for $750 to $800, and half a gram for $250 to $300. He did not advertise it for sale and only sold to three or four people. Sometimes he had difficulty in selling it. Currently, he was owed $4,000.
8. Based on the appellant's admissions, he imported about 212.5 grams of methylamphetamine and sold about 142 grams. On the basis that he sold the drug in the larger quantity of 3.5 grams, he would have received a total amount of approximately $60,000. The Crown sought a pecuniary penalty order for that amount.

1. The learned sentencing judge's comments provide a comprehensive summary of the appellant's personal circumstances and are informative about the significance he afforded them:

"The defendant is now 44 years old. He has a record for offending in this State as well as in New South Wales and Queensland. The history goes back to 1990 and, in the main, it is comprise [sic] of offences of dishonesty and violence, along with driving offences. Prominently, in Queensland in 1998, he was sentenced to 4 years' imprisonment with a non-parole period of 12 months for the crime of stealing. However, his only recorded drug offending is in this State and is recent. In July 2015 in the Magistrates Court, he was fined for possession and use of methylamphetamine on 3 April 2015, over two months before the police search which led to this charge. Before those drug matters, in the defendant's last recorded offending [sic] was in October 2003 for driving matters. Accordingly, up until recently he has been of good character and before these recent drug matters he had no drug offending history.

The defendant is originally from Tasmania but has spent time interstate and returned at times, most recently in 2014. He had full-time employment as a truck driver until he gave it up because of problems with depression. He has a history of mental health problems going back to when he was about 10 years old. The onset of the depression seems to stem from the breakdown of a relationship in Queensland in 2013 which he found very traumatic. He attempted suicide and was hospitalised. He was given medication but it did not help him. He turned to illicit drugs for help, and found Ice to have a sedative effect, something which, although unusual, is apparently not unheard of. However, his underlying issues remained and he has been hospitalised a few times since, including a voluntary admission to a psychiatric ward. His situation was not improved by forming a new relationship during this period. He kept his drug importation and use from his partner, and he is very conscious that he has let her down. Since being on bail for this matter he has sought rehabilitative help from two different organisations. That has proved reasonably, but not completely, successful.

It is put that in addition to the plea of guilty, I should take into account his full co-operation with police which extended to providing information beyond his personal involvement. The plea of guilty speaks for itself. I accept that the defendant is entitled to additional credit of some weight for his co-operation. The Crown says that the information was, for one reason or another, not particularly productive, but that is not the fault of the defendant. There is no suggestion the information was false or misleading. The information could have been of significance, and it is of significance that the disclosure of the information may have exposed him to a degree of personal risk.

I am told that his level of indebtedness remains high and there is no reasonable prospect of him paying the pecuniary penalty order. There might be some explanation for the defendant's addiction which could attract a sympathetic approach, but he was not selling drugs just to fund his addiction. He was obtaining money for living expenses for gambling, and to try and cover his debts. There is no evidence of a pathological gambling habit of such a nature so as to warrant leniency. The most that can be said is that he has voluntarily taken steps towards his rehabilitation." (Modified spacing.)

1. It was mentioned by his Honour that the appellant had sought rehabilitative help from two different organisations. That help was provided by the Salvation Army in the way of counselling, and staff at the residential drug rehabilitation Bridge Program provided the appellant with advice. The appellant had indicated a desire to educate people about the combination of depression and drug use in the future. Acting on advice, he had gradually reduced his drug use, and by the time of sentencing his usage was reduced from 3.5 grams or more per week to casual usage of approximately a point (.1 gram) per week.
2. It can be seen that information provided by the appellant to police was taken into account by the learned sentencing judge in mitigation. It was deserving of weight because of its benefit to the public, the need to encourage the provision of information because of the inherent personal risk involved, and because it was indicative of prospects of rehabilitation: Smith v Tasmania [2012] TASCCA 3 at [15].

1. The learned sentencing judge's comments expose his reasons for the sentence he imposed:

"Mr Deakin, trafficking in controlled substances is a serious crime. Methylamphetamine, particularly in its crystalline form, is a drug which causes very considerable harm to individuals and their families, and significant disruption in the community.

Although some of the drug was to satisfy your addiction, you imported the drug into the State over about 8 months and sold it for profit, with much that profit wasted on gambling. You continued on with your trafficking activities even after you were detected by police in possession of the drug in early April 2015. That the sales of this drug were often in larger quantities is somewhat concerning. It is possible that the purchasers kept it for personal use but there is at the least a real risk that those people broke it down into much smaller quantities and sold or distributed it at a profit, and thus expanded considerably the number of people who received the drug.

I take into account your personal circumstances, I take into account the plea of guilty and I take into account the degree of cooperation you afforded to the police, as I have outlined. However the extent of your illegal activity demands an immediate term of imprisonment notwithstanding an absence of serious drug offending history, but your offending history as it is, your personal situation, and the other matters which weigh in your favour justify the suspension of part of the term." (Modified spacing.)

1. In light of the nature of this appeal, it is appropriate to set out the sentencing orders in their full terms:

"You are convicted and sentenced to 18 months' imprisonment to commence on 21 March 2016, the execution of 6 months of which is suspended on condition that you commit no offence punishable by imprisonment for a period of two years following your release. I think it is appropriate in your case, because of your circumstances to make a probation order, and I make such an order for 12 months to commence on your release. Special conditions of the order are that you undergo assessment and treatment for alcohol or drug dependency, submit to testing for alcohol or drug use, and submit to medical, psychological or psychiatric assessment or treatment, all as directed by a probation officer. You will have to report to a probation officer at 114 Bathurst Street within one clear working day of your release.

I accept that there are no reasonable prospects of you satisfying the pecuniary penalty order sought, and as I have no discretion to order a lesser amount, I will not make the order. However, I order that you pay the costs of analysis in the sum of $300."

1. It can be seen from the terms of the sentence that no provision was made to allow for the appellant to apply for parole. As a consequence of s 17(3A) of the Sentencing Act 1997, the appellant was not eligible for parole. The sentence was appealed on 7 April 2016, and on 13 May 2016 the appellant sought bail pending the hearing of the appeal. The application was adjourned to enable the appellant to instruct counsel. When counsel appeared on the bail application it was noted that the sentence made no provision for parole.
2. On 19 May 2016 the appellant applied to the sentencing judge pursuant to s 94 of the Sentencing Act for a correction to the sentence. The application was for a correction if the learned sentencing judge had been minded to impose a non-parole period. Evidently it was thought that there may have been an oversight in not specifying a non-parole period. However, during those proceedings his Honour confirmed that it had been his intention that the appellant should not be eligible for parole. It was accepted that if a sentencing order is silent as to parole it means that there is no eligibility to apply for parole. His Honour stated that given his intention at the time, he was content to make an order which had the effect of "putting it beyond doubt that that was my intention". It is plain from remarks made by his Honour that he had in mind that certainty was desirable, in light of information that the sentence had been appealed and bail sought in the meantime. His Honour stated:

"Well to the extent that it might be necessary then pursuant to s 94 of the Sentencing Act I'll make an additional order to those which I made on the 24th of March 2016, and for the reasons set out in my Comments made on that day, I order that Mr Deakin is not eligible for parole in respect of the operative part of the term of imprisonment which I imposed."

1. A question arose at the hearing of the appeal whether the terms of the amended order have significance for any entitlement to remissions.

1. The amended sentencing order expressly precluded an entitlement to apply for parole, while the sentence in its original form had made no mention of parole. The precise terms of parole orders may have implications for the application of remissions. If the amendment to the order affected the appellant's entitlement to remissions and made the sentence more onerous than the order in its original terms, such a consequence may, potentially, bear on the question for this Court of whether the sentence was unreasonable or plainly unjust. Accordingly, the effect of the amendment in terms of remissions will be considered.
2. The remissions system allows for the remission of a sentence of imprisonment, and is intended to work as an incentive for the encouragement and reward of good behaviour on the part of eligible prisoners while serving a sentence: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 351. There are limits on the court's consideration of the remissions system in fixing an appropriate sentence. It would be contrary to principle for a sentencing judge to inflate the sentence to be imposed in order to compensate or account for any remissions that may flow to a prisoner: R v Paivinen [1985] HCA 39; (1985) 158 CLR 489 at 494; Hoare at 354; Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 at 631_._ However, it is not the general rule that a judge must pay no regard in the sentencing process to the availability of remissions for good behaviour while a prisoner is in custody: Hoare at 355. Relevantly, a sentencing judge may have regard to the working of the remissions system and the possible effect of remissions against the head sentence in determining an appropriate non-parole period: Hoare at 356, 358; see the discussion in Taylor v The Queen [2015] TASCCA 7, per Pearce J at [17]-[24].
3. The Corrections Act 1997 and Corrections Regulations 2008 govern a prisoner's entitlement to remissions. A remission is granted at the discretion of the Director of Corrective Services: s 86 of the Corrections Act. The Regulations provide that a remission cannot exceed three months of a prisoner's sentence, or one third of a total period of imprisonment, and is not to reduce the total period served to less than three months: reg 22(1). Regulation 22 provides that a remission is not to be granted to a prisoner in certain cases. Relevantly, reg 22(3) provides as follows:

"(3) The Director is not to grant a remission of sentence to a prisoner if that remission would operate to reduce the total period of imprisonment served by the prisoner in respect of that sentence to a period that is shorter than any non-parole period specified in an order made in respect of that prisoner under section 17(2)(b) of the Sentencing Act 1997."

1. It can be seen that the regulation precluding the grant of a remission is tied exclusively to an order made under s 17(2)(b) of the Sentencing Act and the non-parole period specified in that order.
2. Section 17 of the Sentencing Act provides, in part:

"(2) A court that imposes a sentence of imprisonment on an offender, either on the conviction of the offender or on the determination of an appeal, or, on appeal, confirms the imposition of such a sentence, may order -

(a) that the offender is not eligible for parole in respect of that sentence; or

(b) that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order.

(3A) Where a court imposes a sentence of imprisonment and does not make an order under subsection (2), the offender is not eligible for parole in respect of that sentence."

1. Section 17 classifies three different types of orders regarding eligibility for parole: a sentence of imprisonment which expressly provides that the offender is not eligible for parole: s 17(2)(a); a sentence of imprisonment which provides for a specified period which, once expired, entitles the offender to apply for parole: s 17(2)(b); and a sentence of imprisonment which is silent as to parole eligibility: s 17(3A). The effect of a sentence of imprisonment that does not include an order as to parole is the same as if the sentence had expressly precluded parole. In both instances the offender is not eligible for parole in respect of that sentence.
2. Returning to reg 22(3), the Director may not grant a remission if the remission would impinge on any specified non-parole period ordered under s 17(2)(b). The term "non-parole period" is defined in s 3 of the Corrections Act. The distinction between orders made under s 17(2)(a) and (b) of the Sentencing Act is further made clear by the definition in s 3:

"non-parole period, in relation to a sentence of imprisonment, means -

(a) in a case to which section 17(2)(a), 17(3A) or 18(1)(a) of the Sentencing Act 1997 applies, the whole of the period of the sentence; or

(b) in a case to which section 17(2)(b) or 18(1)(b) of the Sentencing Act 1997 applies, the period specified in the order made under that section; or

(c) in any other case, the non-parole period specified in section 68(1) [reference to the Corrections Act]; ... ."

1. The term is defined in s 4 of the Sentencing Act in similar terms. As an aside, it seems clear that s 68 of the Corrections Act has no operation because of the exhaustive classification of possible parole orders in s 17 of the Sentencing Act.
2. Regulation 22(3) does not refer to orders that are silent as to parole (s 17(3A)), or orders within s 17(2)(a) providing in express terms "that the offender is not eligible for parole". There is no prohibition on the grant of a remission with respect to sentences which fall within s 17(2)(a) or s 17(3A).
3. Under the original order which was silent as to parole eligibility, falling within s 17(3A), the remissions scheme would operate so that it would have been possible for the appellant to have been granted a remission of his sentence of up to three months. As a discretionary grant, there could be no certainty that he would receive any remission. But, at least, there was the possibility that a remission may be granted. As a result of reg 22(3), the question is whether the amended order falls within s 17(2)(a) or (b). If the order falls within s 17(2)(b), the appellant would not be entitled to a remission, and therefore it would be a more onerous sentence.
4. The terms of the amended order were explicit that the appellant was not to be eligible for parole in respect of the operative part of the term of imprisonment imposed. The amended order is properly regarded as an order which falls within s 17(2)(a), rather than s 17(2)(b). The order made is equivalent in its terms to s 17(2)(a) in that the appellant is not eligible for parole in respect of that sentence. In this context, "sentence" means the operative sentence, meaning that part of a sentence of imprisonment which has not been suspended: s 17(8) and (9).
5. The amended order does not fall within s 17(2)(b). It was not in terms that the appellant was not eligible for parole in respect of a specified period of the sentence.
6. Neither the original order, nor the amended order, is excluded from the operation of the remission scheme. There is no potential disadvantage to the appellant by the reformulation of the order with respect to the possibility of a grant of remissions.

1. To succeed in establishing that the sentence was manifestly excessive, it is necessary to show the sentencing decision miscarried. In a passage from Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, the relevant principles were succinctly stated by Pearce J at [8]:

"The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]-[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."

1. The head sentence of 18 months' imprisonment does not suggest there was error in the exercise of the sentencing discretion. The seriousness of the appellant's criminal conduct required a significant period of imprisonment. The reasons are addressed in his Honour's sentencing comments. Methylamphetamine, particularly in its crystalline form, causes "very considerable harm to individuals and their families, and significant disruption in the community". The appellant imported the drug into Tasmania on numerous occasions for a period of approximately eight months. Each act of importation was serious criminal conduct which exposed the community to harm. While sales were confined to a small pool of buyers, given the quantities of the drug sold, there was the real potential that buyers would break it down into smaller quantities and distribute it further. As his Honour noted, the extent of the appellant's illegal activity demanded an immediate term of imprisonment.
2. General deterrence is a primary consideration in cases of drug trafficking. In this case, the need for general deterrence was marked. The appellant's course of conduct was persistent and brazen, and involved importing approximately 212.5 grams of methylamphetamine into the State. Approximately 142 grams, worth approximately $60,000, were sold by the appellant with the potential that others in the community would suffer harm. As a drug trafficker, he either chose to ignore the prospect of harm, or put his own interests and profiteering ahead of that harm. Such conduct demands denunciation and a heavy penalty to deter others.
3. The sentence of imprisonment was ameliorated by the suspension of six months. That gave weight to the mitigating factors personal to the appellant, such as his plea of guilty, absence of serious drug offending history, his co-operation with police, and the steps he had voluntarily taken towards his rehabilitation. The sentence promoted those prospects by the order suspending one third, and also by the probation order.
4. In support of his contention that the sentence was manifestly excessive, the appellant directed his submissions to three main issues. Firstly, he argued that more leniency should have been allowed because of his gambling problem. Secondly, he submitted that more weight should have been given to his plea of guilty. Thirdly, he argued that allowance should have been made for parole.
5. The appellant submitted that he was not accorded leniency for his gambling problem. He said that he had had a major gambling problem all his life. He was imprisoned in 1998 for four years for the crime of stealing which involved approximately $200,000, and he had gambled that money away in six months. The main reason he sold methylamphetamine was to cover his gambling habit.
6. The learned sentencing judge referred to the appellant's gambling addiction in his sentencing comments. His Honour noted that there was no evidence before him of a pathological gambling habit of such a nature so as to warrant leniency. The assertion on appeal, that the prime driver of the appellant's drug trafficking was his gambling, is not reflected in the plea in mitigation before the sentencing judge. The information presented in the plea did not suggest a clear link between the appellant's involvement in drugs and his gambling addiction. His Honour had been informed by the appellant's counsel that the appellant's sole purpose in selling Ice was to cover the costs of his own usage, and any leftover profits were channelled into his gambling which had developed into a habit. The sentencing judge was further informed that the appellant's drug addiction developed recently, at the end of 2013, following the breakdown of a relationship and his admission to hospital. Consequently, it appeared that the genesis of his drug habit was unrelated to his gambling addiction.
7. A gambling addiction may, like any other mental condition, reduce the offender's moral culpability and the need for general and specific deterrence: R v Grossi [2008] VSCA 51; (2008) 23 VR 500 at [55]. It will depend on the nature and severity of the symptoms, its effect on the mental capacity of the offender and the nature and seriousness of the offences committed: R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [25]; Grossi at [55]; Johnstone v Tasmania [2011] TASCCA 9 at [13]. The reference by the learned sentencing judge to a "pathological gambling" addiction is to a form of impulse control disorder. The disorder may enliven these principles because of the severity of the symptoms. It should be noted though that the label or classification of the condition is not significant. Rather, what is significant is how the particular mental condition affected the mental functioning of an offender in the circumstances: Verdins at [13].
8. There was no assertion in the plea in mitigation before the sentencing judge that the gambling habit had impaired the appellant's mental functioning or contributed to the offending conduct. The sentencing judge was not provided with a report from a psychiatrist or a psychologist that established a nexus between the appellant's gambling habit and his offending, or that suggested that his habit had any effect upon his mental functioning. Even if such a nexus had been established and his mental functioning had been affected, there would have been a need to assess the nature and severity of the symptoms and whether his impaired mental functioning had any of the effects stated in Verdins at [26]. Impaired mental functioning may reduce an offender's moral culpability if it had an effect such as impairing an ability to exercise appropriate judgment, or to think clearly, or to appreciate the wrongfulness of the conduct. In any case, the nature and seriousness of the offence may suggest that moral culpability is still significant, and general deterrence must remain an important objective.
9. The learned sentencing judge noted that "the most that can be said is that he has voluntarily taken steps towards his rehabilitation". This reflected information placed before his Honour at the sentencing hearing and his Honour gave credit where it was due.
10. The appellant referred to the fact that he had not pleaded guilty at an early stage of the proceedings, and that it was not his fault that his guilty plea was so late. The appellant pleaded guilty on 17 March 2016 after the indictment had been filed on 1 December 2015. The appellant was evidently aware that an early plea of guilty is generally deserving of more weight in mitigation than a plea of guilty at a late stage: R v Thompson (2000) 49 NSWLR 383 at [154]. The appellant argued on appeal that, in fact, he had wanted to plead guilty on "day one" and the reason he did not enter a plea until March was due to the unavailability of his counsel. However, these matters were not explained to the learned sentencing judge in the plea in mitigation, so his Honour could not have taken them into account.
11. His Honour referred to the appellant's plea of guilty and attributed weight to that as a matter in mitigation. His Honour did not mention the timing of the plea, and it does not appear that his Honour regarded it as diminishing to any significant extent the value of the plea of guilty.
12. It was apparent from the appellant's submissions on appeal that his principal grievance was that the sentence did not make allowance for parole. At one point, he stated in submissions that he was not asking for a reduction of the sentence; all he was asking for was a date when he would be eligible for parole. He said that parole would assist him in abstaining from drugs and managing the temptation to resort to drugs once he was released. He also mentioned that he wanted to complete the Salvation Army Bridge Program. The appellant submitted that if his appeal was allowed, the minimum non-parole period should be substituted.
13. The effect of the statutory scheme is that it would have been open to his Honour to impose a non-parole period, being a minimum of six months' imprisonment. The court's power to impose a non-parole period lies in the Sentencing Act, s 17(2). Any non-parole period imposed could not be less than half of the operative sentence: s 17(3). Here, the operative part of the sentence was the immediately effective term of 12 months' imprisonment: s 17(8) of the Sentencing Act. Regardless of the length of the operative part of the sentence, a prisoner cannot be released on parole before the completion of either the non-parole period applicable to the prisoner's sentence, or a continuous period of imprisonment of six months, whichever is the greater: s 70 of the Corrections Act.
14. In exercising the discretion to impose a non-parole period, there is guidance in the legislation and sentencing principles. Section 17(4) of the Sentencing Act sets out factors that may be taken into account in the exercise of the court's unfettered discretion:

"(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:

(a) the nature and circumstances of the offence;

(c) any other sentence to which the offender is subject."

1. The purpose of providing for parole eligibility is to "provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate": Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 per Barwick CJ, Menzies, Stephen and Mason JJ at 629. The non-parole period should be "the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence": Power at 629. There are other considerations such as general and personal deterrence, the prisoner's capacity for reformation (see Power at 628-629) and the necessary punitive effects of the sentence (Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [41]).
2. The appellant cannot succeed in his appeal by showing merely that a sentence which made provision for an opportunity to apply for parole would have had merit and would have been effective in promoting his reform. There is "no single correct sentence": Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [27]; see also Hili at [74]. The question is whether the failure to make an order specifying a parole ineligibility period, thereby giving an opportunity to apply for parole once that period had been served, rendered the sentence manifestly excessive.
3. In my view, the lack of provision for parole did not make the sentence so heavy that the sentence was unreasonable or plainly unjust. As noted, the sentence imposed by the learned judge promoted the appellant's reform, but by a different path. It is worth noting that if the sentencing judge had not suspended part of the sentence, and instead had imposed the minimum non-parole period, the appellant may have been released after nine months at the earliest, provided his application for parole was granted. However, there was no certainty that if he was granted parole, and he might not have been at all, that that would be approved at the earliest opportunity. The structure of the sentence imposed by the learned sentencing judge gave the appellant certainty that six months of his sentence would not have to be served immediately, or at all, provided he complied with the conditions of suspension. It may also be noted that if the appellant is granted the full remission of three months he will be released after serving nine months of the immediately effective term of 12 months. The appellant faces the prospect that the immediately effective part of his sentence will be the same as if he had received the same head sentence, without any portion suspended, and the minimum non-parole period of nine months. Noting the principles in Hoare, the availability of a possible grant of remission of the sentence was a legitimate consideration that the learned sentencing judge could take into account in determining whether to set a non-parole period as a proportion of the head sentence.
4. When the practical effect of the sentence in terms of time that may be served was pointed out to the appellant, he submitted that the appropriate sentence in his case would have been the same head sentence of 18 months with the same leniency he had received of six months suspended, and also allowing the minimum non-parole period of six months. Whilst it is understandable that a prisoner in pursuing an appeal would focus on rehabilitation as if it were the sole objective of sentencing, the sentencing task is more complex. The sentencing judge must give weight to other factors, notably general deterrence, which in this case was a dominant consideration.

1. His Honour was entirely justified in not imposing a non-parole period. A sentence which would be effective as a strong general deterrent was essential. The sentence was already significantly ameliorated by the suspension of one third of the head sentence. This gave appropriate weight to the mitigating personal circumstances of the appellant, and was designed to encourage his rehabilitation. If the appellant is genuine in his desire to reform, the structure of the sentence provides the opportunity and incentives to achieve this. Error has not been shown in relation to any aspect of the sentence. I would dismiss the appeal.

1. I would also dismiss the appeal. For the reasons given by Wood J, the sentence imposed by Porter J is not manifestly excessive. The nature and circumstances of the appellant's crime required a stern response. Denunciation, punishment and general and specific deterrence were the dominant sentencing considerations. Nothing advanced on the appellant's behalf in mitigation warranted a departure from that approach. Her Honour referred to the principles which limit the intervention of an appellate court in sentencing appeals on the ground of manifest excess or manifest inadequacy. Those principles were recently re-stated by Estcourt J in Stebbins v Tasmania [2016] TASCCA 6 at [34]- [37]. In my view, the sentence is not manifestly excessive even if the appellant is not entitled to remissions. Nevertheless, I agree with her Honour's conclusion that any entitlement the appellant may have to remissions is not affected by the difference between the terms of the original sentencing order and the terms of the "corrected" order.