The Appeal
18 The first ground of appeal, in substance, is that the sentencing judge erred in failing to adjust the non-parole period imposed for the second charge to give effect to his indication that special circumstances warranted adjustment. It was also submitted at the hearing that the accumulation of the sentences for the present offences on top of the sentence imposed on 15 December 2005 which commenced on 5 October 2005 was a special circumstance that warranted variation of the non parole period so that the proportion that the overall non parole period bore to the overall period in custody reflected the s 44(2) ratio. If the earlier period is added to the sentences presently under appeal imposed on 31 January 2007, the overall period of imprisonment is increased by ten months to four years and nine months. If this period is the relevant period for calculating an effective non-parole period, then the effective non-parole period exceeded that which accorded with the s 44(2) ratio by about three months and three weeks.
19 It is a further ground of appeal that the overall sentence was manifestly excessive.
20 Dealing with the further ground of appeal first, I am not persuaded that the overall sentence was excessive. Detailed analysis is not useful. The offences were committed in breach of bail and in homes where the occupants were asleep. The offences were distinct although committed within a short time of each other and he received, in substance, wholly concurrent sentences, as the earlier sentence was concurrent both with that passed on 5 December 2005 and that imposed on charge 1. The criminality of the conduct reflected in the Form 1 offences in relation to the police was not trivial. In my opinion, the totality of the sentences fell well within the proper exercise of the sentencing judge's discretion. It was not submitted on the applicant's behalf that the judge made any error of principle or reasoning and I cannot see any error in that respect. Accordingly, this ground should be dismissed.
21 The first ground has more substance. It is clear that, where the effect of accumulating sentences is to increase the proportion of the aggregate sentence to be served before the offender is eligible for parole beyond the s 44(2) ratio, this will be a special circumstance justifying a variation of that proportion in respect of one or more of the sentences to bring the relationship between the effective non-parole period and the overall sentence in conformity with the statutory ratio. For this purpose, consideration should be given not only to the accumulation of the sentences being imposed by the sentencing judge but also any sentence or sentences then being served by the offender. In the ordinary course, it will be appropriate to make such adjustments as will bring the ratio between the effective non-parole period and the overall sentence into conformity with the statutory ratio. This may not be appropriate in every case but, where there is a significant effective departure from the statutory ratio, some explanation should be given for doing so.
22 This was not a case where the effective non-parole period should have been greater than that which would have occurred had the s 41(2) ratio been applied to the overall sentence, as the sentencing judge appeared to acknowledge. It seems to me, with respect, that the judge simply overlooked the necessity to consider or further consider the issue of special circumstances and any adjustment in the effective non-parole period. It may well also be, as submitted for the applicant, that the judge had in mind that special circumstances related to the rehabilitation of the offender might suggest a further adjustment was desirable than that which merely reflected the statutory ratio. I think, however, that the issue of rehabilitation and the relationship between periods of full time custody and supervision outside the custodial situation was overtaken by the decision to refer the applicant to the CDTCC program, this program having, as I have mentioned, its own calibration of progressive supervision. This is the Crown submission on this aspect of the appeal. I think this explains why the judge did not return to the issue of special circumstances. In so doing, however, it seems to me that, with respect, his Honour overlooked the other aspect of the sentences that raised the question of special circumstances, namely their accumulation. The referral made under s 18B of the Drug Court Act 1998 is made after the sentence is imposed. The sentencing process must be completed appropriately before the offender is referred to the CDTCC program.
23 It seems to me, with respect, that the sentencing discretion did miscarry in so far as the non-adjustment of the effective non-parole period to reflect the s 44(2) ratio is concerned. Although it cannot be said that the ultimate sentence, including the effective non-parole period, was excessive, the non-parole period should be varied to reflect the s 44(2) ratio.
24 An affidavit from the applicant was tendered on the appeal against the possibility that the Court considered it was necessary to re-sentence. That affidavit discloses that the applicant was admitted to the CDTCC program and has remained on it. At the hearing of the appeal he was in stage 2. He is on work release and, provided that he continues to make satisfactory progress, he expects to be released to home detention. Of course, these are developments that were unknown to the sentencing judge though it is clear enough that he had them in contemplation. So far as their present relevance goes, they confirm what appeared at the sentence proceedings, that is, that there was no reason for departing from the s 44(2) ratio in a way that increased the proportion of the sentence that had to be served before the applicant was eligible for parole.
25 The Crown prosecutor submitted on the appeal that, although it appeared that the sentencing judge had erred in failing to make the adjustment, this Court should not interfere since the applicant, as it happens, will have the advantage of an earlier period of release from custody than would have been the case had he served a conventional sentence with a non-parole period complying with s 44(2) ratio. I do not consider that this is an appropriate response to the identified error. The error was adverse to the applicant. Although in a practical sense it has been overtaken by events, I do not think this is an adequate reason for not correcting it.