and (ROS 18-19):
"The offences for which the prisoner is to be sentenced today all occurred prior to the Queensland offences. However, each of the New South Wales offences and the Queensland offence are of the utmost gravity. The existence of the Queensland offence is, however, not a matter to be taken into account in dealing with the prisoner other than considering the total period of imprisonment that the prisoner is facing and determining the issue of totality."
33 No express submission was made that her Honour was referring to the head sentences to the exclusion of non-parole periods when she referred to "the total period of imprisonment" and she subsequently made it clear that in considering totality as well as other factors she also focussed upon minimum terms. At ROS 20 she said:
"Having regard to the period of time he has already been in custody in relation to another serious offence, the principles of totality and to his age and health, those sentences should be structured to result in a non-parole period of 12 years. That will be further reduced by being made partly concurrent with his Queensland sentence resulting in an effective additional period of imprisonment before he is eligible to be considered for release on parole of just under nine years."
34 Senior counsel for the applicant acknowledged the expressions of her Honour concerning totality but contended that there was a detectable latent error in part, at least, discernible from a failure to refer to the principle as expounded in Holder. There was no need for her Honour to make such a reference which would amount to mere ritual incantation.
35 The last quoted excerpt from her Honour's remarks on sentence shows that she did make adjustment for totality (as well as other factors which she mentioned) and, in the light of that, it was submitted that she did not give sufficient weight to the application of the principle. Although it was said in dealing with the Crown appeal, the statement of Spigelman CJ in R v Baker [2000] NSWCCA 85 is applicable:
"The use of terminology such as 'sufficient weight' highlights the difficulty for the Crown case. Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined."
36 It was further submitted that her Honour did not give appropriate effect to the concept of totality in setting the non-parole periods. This was said to be apparent from the failure of her Honour to advert to "special circumstances" as contemplated by s 44 of the sentencing legislation. It is clear that she was referring to this when she said (ROS 20) "there is nothing which has been put to me which would require that other than the standard non-parole period should apply." The expression "standard non-parole period" could not have been meant to refer to that term as defined in s 54A as the charges against the applicant were brought under sections which do not appear in the table in s 54D. That her Honour was intending then to refer to the proportional formula in s 44 was demonstrated when she used the expression again saying (ROS 20):
"If applied cumulatively, that would result in a total head sentence of 24 years, and applying the standard non-parole periods, the prisoner would serve 16 years before being eligible for release on parole."
37 Of course, application of the s 44 "formula" effectively results in a non-parole period of three-quarters of head sentence and three quarters of twenty four is eighteen, not sixteen, but I am seeking only to demonstrate the sense in which her Honour was using the expression "standard non-parole periods". If, as it appears, the statement reflected an arithmetical mistake, it operated to the advantage of the applicant.
38 As is plain from that part of her remarks earlier quoted, she had expressly taken into account the Queensland sentence, she made the sentences on indictments 1 and 2 wholly concurrent with each other and she adjusted the eligibility date for consideration of release to parole downwards by the order for partial concurrency with the Queensland sentence.
39 As already stated, the applicant's non-parole period for the Queensland sentences were to expire on 29 September 2006. Her Honour commenced the sentences which she imposed on 26 August 2003, a benefit of concurrency to the applicant of 3 years and 1 month.
40 The calculation of the combined total of Queensland and New South Wales head sentences produced a term of 21 years 8 months and the minimum custody amounted to 17 years 8 months, thus the ratio of that to the head sentence was 81.5 percent. The calculations are correct. It was submitted that her Honour ought to have made adjustments so as to achieve an overall ratio of 75 percent in harmony with the prescription in s 44. Each of the sentences imposed by her Honour specified a non-parole period of that ratio to head sentence with the exception of the prescription in relation to the sentence on the third indictment which was adjusted downwards in order to maintain an overall proportion, i.e. for the New South Wales offences an effective head sentence of 16 years with a non-parole specification of 12 years overall.
41 The Queensland sentence was imposed in accordance with the sentencing regime of that State. Although her Honour did not articulate the above calculations, her observation that the applicant would be eligible for parole after service of an additional nine years shows that she was alert to the practical effect of the impositions. It can be observed that departure from the formula in the statute requires a statement of reasons for "downward" adjustment; there is no requirement otherwise. There is no reason to conclude that her Honour overlooked the mathematical result and that her orders reflected other than her intention.
42 Finally, in support of these grounds it was submitted that, in lieu of the commencement date of 26 August 2003 (which was the date upon which the jury returned its verdict of guilty on the first trial) her Honour should have selected either the date upon which police first became seized of evidence from the informer identifying the applicant, April 2000, or when the informer was granted immunity, March 2001, or when the applicant was charged, August 2001.
43 All of the matters, including the lastmentioned, relied upon the applicant's challenge to the exercise of discretionary judgments by the sentencing judge. It has not been shown that her discretion miscarried and I would reject grounds 1 and 2.
44 Ground 3 contended that her Honour erred in failing to make any or sufficient allowance for old age. Her Honour had observed that the applicant was born on 16 June 1933 and was at the time of sentence, aged seventy one years. Later in her remarks (ROS 19) she returned to this:
"As I have already said, the prisoner is now aged 71. He will inevitably be some years older before the non-parole period for the sentences to be imposed upon him has expired. As I have indicated, the conditions under which he will be serving his imprisonment are a matter to be taken into account."
45 The written submissions on behalf of the Crown note that the applicant will be eighty four years of age when eligible for consideration of parole.
46 In R v Holyoak [1995] 82 A Crim R 502 the offender, a former supervisor at a Dr Barnardos Home, was convicted on two charges of indecent assault of a child under his care together with a number of other charges taken into account under what was then Form 2 procedure. Holyoak was aged seventy five at the time of sentence. The intervention of this Court occurred because an incident had been taken into account which was outside the period covered by the charges, however, in relation to the issue of age Allen J (Handley JA concurring, Hulme J stating that he was 'not disposed to give the applicant's age the same weight as I perceive Allen J is inclined to give') said at 507:
"It is argued, however, that his Honour fell into error in a number of respects. The first is that, it is said, he failed to give sufficient weight to the applicant's age. His counsel points out that the sentence imposed as a minimum term is such that the possibility of the applicant dying during the minimum term, despite his present state of health, is quite real. So it is. It is not to be contemplated that his Honour would not have realised that. Particular complaint is made that all that his Honour said, apart from the reference to his age to which I have already referred, was: 'Age is not a licence to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years.' I find no fault with that observation. Indeed it would seem to be taken directly from the judgment of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgment Kirby ACJ agreed."
47 Useful reference may also be had to the Sentencing Manual published by the Judicial Commission (I. Potas, 2001) and, although specifically dealing with reduced life expectancy because of illness rather than age, it was observed that (at 284):
"A substantial possibility, or even a probability, that a prisoner will not survive the non-parole period is a relevant consideration, but it is but one subjective matter to be taken into account. Other relevant matters are the responsibility of the prison authorities to provide medical treatment, the Royal Prerogative of Mercy and the powers of the Offenders' Review Board (Parole Board), under s 160 of the Crimes (Administration of Sentencing) Act 1999, to grant parole where a prisoner is dying or because of 'exceptional extenuating circumstances', including humanitarian grounds: Jones (1993) 70 A Crim R 449 per Carruthers J, citing Giardini (Sandro) (unreported, NSW CCA, 25 February 1993) per Gleeson CJ."
48 I would understand her Honour's remarks above quoted in which she expressly took into account "the conditions under which he will be serving his imprisonment" to include among the matters she was taking into account, the immediately preceding statement concerning the advance of the applicant's years. This is further confirmed when she continued:
"He does not have, so far as I am informed, any health problems of such gravity that they cannot be properly cared for within the prison system. Whilst matters of his age and health are relevant, they do not lead to a sentence being imposed which does not adequately reflect the gravity of the offences which were committed."
49 Inevitably, when imprisonment is to be imposed on an offender who will be of advanced years before eligible for parole pursuant to sentence, a balance must be struck between the most frequently applied of established sentencing principles requiring denunciation, deterrence an punishment and the less commonly encountered but appropriate amelioration for considerations of health and age. It is clear from the remarks of her Honour just quoted that her assessment was made with attention to such a balance. Her approach was in accord with appropriate principle.
50 I am unpersuaded that her Honour erred in the manner asserted by ground 3.
51 Ground 4 contended that her Honour erred in failing to take or sufficiently take into account custodial conditions. As appears in an extract earlier quoted, her Honour stated that she would take those conditions into account. She had observed (ROS 14):
"Since being transferred to New South Wales he has been held at the highest security facility at Goulburn and the conditions under which he has been serving his sentence are relevant in determining his sentence."
52 Her Honour had been informed by counsel that the applicant was at the time, no longer in maximum security (Transcript 29 May 2004, p 9).
53 This Court was referred to the decision of White J in Kidd v Chief Executive, Department of Corrective Services [2000] QSC 405 where a maximum security order in respect of the applicant was set aside on judicial review and returned to be reconsidered by the delegate. Some information as to the incidents of maximum security in Queensland can be gleaned from the description in par 21 of that judgment. Of course, the applicant ceased to be held in Queensland after interstate transfer (to which he told her Honour that he had agreed).
54 It does not appear that the specifics discussed by White J were before the sentencing judge, however the power of this Court to intervene is dependent upon the demonstration of error. No error such as is contended in ground 4 has been demonstrated.
55 I would grant the necessary extension of time to allow the applicant to file his application, I would grant leave to appeal against sentence, but dismiss the appeal.
56 HOEBEN J: I agree with Grove J.