The application
20 The applicant's principal complaint is that the sentence imposed in respect of the hindering offence was manifestly excessive. The submission put simply is that a sentence of 18 months bespeaks error particularly in respect of an offence in which the maximum penalty is one of 2 years imprisonment.
21 A significant feature of the strong subjective case which the applicant presented was his early plea of guilty. Although the range of discount for the utilitarian aspect of the plea of guilty identified in R v Thomson & Houlton (2000) 49 NSWLR 383 was expressly confined to State offences, this Court has held that it is "a reasonable range to adopt" in the sentencing of Commonwealth offenders: see R v Bugeja [2001] NSWCCA 196; R v Simon (2003) 142 A Crim R 166. Although the sentencing judge did not quantify the discount which he allowed for the early plea, there is no reason to suppose in all the circumstances, that a discount at, or at least approaching the top of, the range identified in Thomson (supra) was not appropriate.
22 There were, as I have said, other aspects of the applicant's subjective case which also had to be brought into account. I will not repeat them all but included amongst them was the contrition which the applicant had displayed as well as his compromised health which would make his time in custody more burdensome than would otherwise be the case.
23 His Honour was clearly correct in treating the hindering offence as a serious example of its type. The applicant's conduct in smashing the eggs was intended to make, and did in fact make, it more difficult for the contents of the eggs to be identified and thus for the principal offence to be established. His actions were tantamount to destroying evidence. His conduct also resulted in the loss of 22 otherwise viable specimens. Although the offences were clearly linked to one another, the offence of hindering nevertheless constituted a separate act of criminality. For that reason I reject the submission made on the applicant's behalf that "the offences were effectively part of one episode of criminality such that both sentences should have been made totally concurrent". In my view, a degree of accumulation was called for.
24 Notwithstanding the seriousness of the offence, I am nonetheless of the view that the applicant's complaint about the length of the sentence for the hindering offence has been made out. Indeed I am unable to discern how his Honour was able to give appropriate weight to each of the various subjective matters upon which the applicant was able to rely and yet still arrive at a sentence which fell just short of the maximum penalty. It is also to be observed that his Honour did not make a finding that the applicant's conduct fell into the worst category of case.
25 In oral argument, counsel submitted that the sentencing judge had erred in treating the damage which the applicant had caused to the eggs as an aggravating factor when that conduct constituted the offence itself. Having considered the passages to which the Court's attention was drawn I must say that I am not immediately attracted to that argument. Nevertheless it is unnecessary to consider this issue any further in light of the view which I have already expressed concerning the fate of the application.
26 Given the way in which the sentences were originally structured, I am of the view that both the commencement date for the sentence imposed in respect of the attempted export offence and the pre-release period should also be adjusted, albeit to only a modest degree, in order to give practical effect to the reduction in the sentence which I propose in relation to the hindering offence.
27 Accordingly I propose the following orders: