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Legislation Cited: Crimes (Sentencing) Act 2005 ss 33(1)(o), 63(1)–(2) Crimes Act 1900 (ACT) s 34 Criminal Code 2002 (ACT) s 603(5) Criminal Code Regulation 2005 (ACT) sch 1, pt 1.2

Cases Cited: Dalton v The Queen [2015] ACTCA 48 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Green v The Queen [2011] HCA 49; 244 CLR 462 Hall v The Queen; Barker v The Queen [2017] ACTCA 16 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Kilic [2016] HCA 48; 91 ALJR 131 R v NF (No 1) [2016] ACTSC 216 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Webb [2004] NSWCCA 330; 149 A Crim R 167 Rubino v The Queen [2015] ACTCA 22 Wong v The Queen [2001] HCA 64; 207 CLR 584 Zdravkovic v The Queen [2016] ACTCA 53

Parties: Michael Aaron Le Clair (First Appellant) David Achanfuo-Yeboah (Second Appellant) The Queen (Respondent) Representation: Counsel Mr J Purnell SC (First Appellant) Mr J O’Keefe (Second Appellant) Mr J White SC (Respondent)

Solicitors Sharman Robertson Solicitors (First Appellant) John O’Keefe Solicitor (Second Appellant) ACT Director of Public Prosecutions (Respondent)

File Number(s): ACTCA 20 of 2016; ACTCA 22 of 2016

Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Justice Burns Date of Decision: 25 May 2016 Case Title: R v Le Clair; R v Yeboah Citation: [2016] ACTSC 126

THE COURT:

1. The first and second appellants (Mr Le Clair and Mr Achanfuo-Yeboah) appealed against sentences imposed by Burns J (the sentencing judge) on 25 May 2016.

2. For a joint offence of unlawful confinement committed on 28 December 2013 the first appellant was sentenced to 3 years and 6 months’ imprisonment from 25 May 2016 to 24 November 2019. The sentence was reduced from three years and nine months’ imprisonment for the guilty plea, a discount of about 6.6 per cent (although the sentencing judge indicated a discount of five per cent). The plea of guilty was entered on the first scheduled day of the joint trial.

3. For this offence, the second appellant was sentenced to 2 years and 11 months’ imprisonment after a discount of just above 10 per cent from a starting point of three years and three months’ imprisonment. As was the case with the first appellant, the second appellant entered a plea of guilty on the first scheduled day of the joint trial.

4. Unlawful confinement is an offence against s 34 of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years’ imprisonment.

5. For an offence of trafficking in a trafficable quantity of cannabis on 24 January 2014, the first appellant was sentenced to 12 months’ imprisonment from 25 August 2019, i.e. the sentence commenced 3 months before the conclusion of the sentence for unlawful confinement. The sentence for trafficking was reduced from 15 months’ imprisonment for the guilty plea, a discount of 20 per cent (although the sentencing judge referred to it as 15 per cent). The first appellant pleaded guilty three days before the trial was to commence.

6. For a separate trafficking offence on 24 January 2014 (relating to different events than those for which the first appellant was sentenced), the second appellant was sentenced to 12 months’ imprisonment, reduced from 15 months’ imprisonment for a plea of guilty. Like the first appellant, the second appellant pleaded guilty three days before the trial was to commence.

7. Each trafficking offence was a contravention of s 603(5) of the Criminal Code 2002 (ACT). That provision carries a maximum penalty of 10 years’ imprisonment. A trafficable quantity of cannabis is a quantity of between 300 g and 30 kg (30 kg is the commercial quantity): Criminal Code Regulation 2005 (ACT) sch 1, pt 1.2.

8. The total sentence imposed on the first appellant was four years and three months’ imprisonment from 25 May 2016 to 24 August 2020. The sentencing judge set a nonparole period of 2 years and 5 months’ imprisonment, i.e. 57 per cent of the total sentence.

9. The total sentence imposed on the second appellant was three years and 5 months’ imprisonment. The sentencing judge fixed a nonparole period of 2 years’ imprisonment, i.e. 59 per cent of the total sentence.

10. The total sentence imposed on the second appellant was 10 months less than the total sentence imposed on the first appellant. The nonparole period was five months less than that set for the first appellant.

11. Prior to the imposition of sentences, the first appellant had spent some time in custody in relation to the offences. However, the sentencing judge intended that the period would not be taken into account because it had been taken into account when he was sentenced in the Magistrates Court for a separate offence of assault occasioning actual bodily harm: at [64]. It was not pointed out to the sentencing judge that, in fact, part of the custodial period (16 days, 4–19 September 2014 inclusive) had not been taken into account by the Magistrates Court. In exercising its discretion to backdate a sentence for an offence, a sentencing court must have regard to any period of custody relating to the offence: Crimes (Sentencing) Act 2005 (ACT) s 63(1)–(2) (Sentencing Act). The parties accept that the sentencing judge intended to give effect to these provisions and that, when the first appellant is resentenced, it is appropriate to take the 16 day period into account.

12. For the 20 month duration of the sentence proceedings, the first appellant was on strict bail conditions. On 19 September 2014, the first appellant was granted bail in relation to those proceedings. Up to 11 May 2017, he had spent 351 days (+16 days) in custody in relation to the offences the subject of the appeal. In order to take this period into account (including the 16 days), his sentences should be backdated to 9 May 2016.

Grounds of appeal

13. At the hearing of the appeal, the grounds pressed by the first appellant were:

(a) The sentencing judge failed to appropriately consider parity principles in sentencing the appellant and the co-offender. In particular, the sentence imposed on the first appellant for his trafficking offence was concurrent for only three months, whereas the sentence imposed on the second appellant for his trafficking offence was concurrent for six months. Further, the significantly heavier sentence imposed on the first appellant for the unlawful confinement offence was unjustified. (b) The sentencing judge failed to make an appropriate allowance for the restrictive bail conditions that applied for the 20 month duration of the proceeding.

(c) The sentencing judge failed to allow for the part of the time served that had not been take into account by the Magistrates Court when sentencing the appellant on a separate matter. As already noted, this error was not controversial.

(d) Having regard to parity considerations, the sentence imposed for the unlawful confinement offence and the total sentence were manifestly excessive.

14. At the hearing of the appeal, the second appellant relied on the following grounds:

(a) The sentence imposed for the trafficking offence was manifestly excessive; the sentencing judge should have considered sentences other than full-time imprisonment.

(b) When considering matters of parity, the sentencing judge erroneously concluded that there was no reason to distinguish between the appellants’ criminal histories; his Honour should have drawn a distinction in favour of the second appellant who, unlike the first appellant, had no prior convictions for violent offences.

(c) His Honour failed to take into account the second appellant’s family circumstances; he was responsible for assisting in the care of young children.

Facts

Unlawful confinement

15. The unlawful confinement offence occurred in the context of a failed drug deal. At the sentencing hearing, the first appellant disputed the facts of the incident, particularly in relation to the circumstances in which he used a knife against the victim. The sentencing judge accepted beyond reasonable doubt the victim’s version of events. That version was as follows.

16. On 28 December 2013, the appellants attended the victim’s residence in Franklin pursuant to an agreement whereby the victim would act as an intermediary in relation to the purchase of 7 pounds of cannabis for $26,000 from a dealer known as Big G. The victim arranged to meet Big G while the appellants waited nearby. The victim took the money from the appellants and gave it to Big G. However, Big G drove away without giving the cannabis to the victim.

17. The appellants became angry with the victim, believing that he had planned with Big G to steal their money. The victim called for help and two neighbours came running. The first appellant produced a knife like a Stanley knife and held it against the victim’s throat. The first appellant told the neighbours that they should come no closer. The first appellant forced the victim at knifepoint into a vehicle, placing him in the rear seat. The first appellant sat next to the victim and the second appellant drove the vehicle to Theodore.

18. During the journey from Franklin to Theodore, the first appellant repeatedly threatened the victim. He said that he would break the victim’s bones, cut off his fingers and tattoo the word “dog” on the victim’s face.

19. One of the appellants arranged for support and others arrived at Theodore in a separate vehicle.

20. At Theodore, the victim escaped from the vehicle, but was chased by the appellants and the occupants of the support vehicle as well the first appellant’s dog, which was described as a pitbull cross. The victim was recaptured. One of the people who recaptured the victim struck him with a baseball bat. The victim was returned to the rear seat of the vehicle.

21. The first appellant sat beside the victim while the second appellant drove the vehicle to a remote location at Captains Flat in New South Wales, where the victim was assaulted and abandoned

Trafficking in a trafficable quantity of cannabis — first appellant

22. On 24 January 2014, the first appellant was driving a vehicle when it was stopped by police. When the police searched the vehicle they located a total of 903.4 g of cannabis, a set of scales, a small plastic bowl, numerous clip-seal bags and digital scales. Police also executed a search warrant at the appellant’s home address, where they seized $7461.50 in cash.

Trafficking in a trafficable quantity of cannabis — second appellant

23. On 24 January 2014, police attended the second appellant’s home, where they seized a total of 677.9 g of cannabis, $4960 in cash from a jacket in the second appellant’s bedroom, and five mobile telephones.

The sentence proceedings

Objective seriousness

24. The sentencing judge assessed the unlawful confinement offence as “objectively serious” and placed it “at the lower end of the mid-range for such offences”: at [50]. His Honour noted that the unlawful confinement was not premeditated and lasted only a couple of hours. However, the circumstances caused the victim to fear for his life. His Honour accepted that, excluding the injuries inflicted in NSW, the victim suffered only minor physical injuries during the confinement.

25. The sentencing judge said that the first appellant bore greater culpability because he produced the knife that was used to threaten the victim into submission, he instigated the confinement, and he made verbal threats to the victim during the confinement.

26. As to the trafficking offence committed by each appellant, the sentencing judge observed that the amount of cannabis was towards “the bottom range of trafficable quantity”, but that the appellant was found in possession of several thousand dollars in currency which, his Honour inferred, was largely if not entirely proceeds from the sale of cannabis: at [51]. In relation to the objective seriousness of the trafficking offences, the sentencing judge observed that there was little to distinguish between the appellants.

Subjective circumstances of the first appellant

27. The first appellant was twenty-nine years old at the time of sentencing. He left school before completing Year 10. Later, he obtained a Certificate III in information technology and worked in that area. At the time of the sentence proceedings, he was in casual employment and was well regarded by his employer.

28. The first appellant had a troubled childhood and adolescence. He was abused by his mother. However, at the time of the sentencing hearing, he was caring for his mother who suffered from physical disabilities and was somewhat dependent on him. As a young adult, he witnessed the death of his previously estranged father with whom he had recently resumed a relationship.

29. The sentencing judge discussed the first appellant’s problematic substance abuse, which had begun in his teenage years. Prior to his incarceration in 2014, he drank to intoxication on a daily basis. He used cannabis from the age of 14 to 2014. He also had a history of involvement with ACT Mental Health. He had been diagnosed with childhood oppositional defiant disorder, attention deficit hyperactivity disorder, depressive disorder and possible post-traumatic stress disorder.

30. ACT Corrective Services assessed the first appellant as suitable for a medium–high level of intervention. A drug and alcohol report recommended treatment for relapse prevention and a mental health assessment. At the time of the sentence hearing, the first appellant was attending psychological counselling, and this had had a positive effect on his attitude.

31. The sentencing judge noted the first appellant’s criminal history, which included adult offences that were traffic-related, aggravated burglary, minor theft, and assault occasioning actual bodily harm. His Honour noted that the sentences imposed for the prior offences indicated “that they were not the most severe examples of offending of that nature”: at [23].

Subjective circumstances of the second appellant

32. The second appellant was born in Ghana and lived in Canada before his family migrated to Australia when he was 12 years old. He was 37 years old at the date of the sentence hearing. He resided with his partner and their nine-year-old daughter. His partner was pregnant with the couple’s child. She said that he shared domestic duties, but that she would be able to manage if he was sentenced to a term of imprisonment. He had two children from a previous relationship and a step-daughter, aged between three and 10 years, in relation to whom he shared custody with his ex-partner and with whom he assumed significant parental responsibility.

33. The second appellant was employed as a painter. He also attended university, where he was studying building and design on a part-time basis.

34. For a decade, the second appellant used cannabis daily. Recently, he had undertaken treatment and had significantly reduced his cannabis use.

35. The sentencing judge noted that, in the opinion of the author of the pre-sentence report, the second appellant displayed little victim empathy. However, character referees had observed that the second appellant was remorseful and contrite. They considered that the second appellant’s conduct was out of character.

36. The second appellant was assessed as having a medium to low risk of general reoffending and as requiring a medium to low level of intervention by ACT Corrective Services.

37. The sentencing judge noted the second appellant’s prior criminal history, which primarily consisted of motor vehicle and traffic offences, but included one offence of possessing a prohibited substance.

38. The second appellant suffered from open-angle glaucoma which was being managed adequately. When the appellant was in custody between 2010 and 2012, he was assaulted. The second appellant believed that he may have sustained brain injury, but there was no medical evidence supporting that proposition. His Honour rejected the faint suggestion that the second appellant was less culpable because of a head injury.

Other sentencing considerations

39. The sentencing judge considered eight comparable cases of sentencing for unlawful confinement and found that they did not establish “any particular tariff” for the offence: at [61]. His Honour considered that general deterrence was the most significant sentencing consideration.

40. Although the sentencing judge was not provided with comparative sentences for the trafficking offences, his Honour relied upon the maximum penalty as indicating the seriousness of such offences.

Restrictive bail conditions

41. The first appellant argued that the sentencing judge failed to place any weight on the restrictive bail conditions that the appellant had been required to observe while the proceedings were pending. This contention was not expanded upon in the appellant’s written submissions, but was the subject of brief oral argument.

42. During a 20 month period, the appellant was subject to bail conditions that required him to:

(a) Report daily to the local police station;

(b) Submit to a curfew between 8:00pm and 5:30am (later, 7:00am); and

(c) Reside at his home address.

43. Onerous bail conditions can affect the sentencing outcome: R v Webb [2004] NSWCCA 330; 149 A Crim R 167; R v NF (No 1) [2016] ACTSC 216 at [79]. This is particularly so if the bail conditions are quasi-custodial, for example, where an offender is granted bail on condition that they reside in a residential rehabilitation facility where their personal liberty is restricted and they are required to comply with strict rules for an extended period.

44. Although the bail conditions imposed on the first appellant (particularly the curfew condition) were strict, there was nothing particularly unusual or onerous about them. They were not the sort of conditions that one would necessarily expect to affect the sentence that was imposed.

45. The first appellant has not demonstrated that the sentencing judge erred by failing to reduce the otherwise appropriate sentence because he had been subject to onerous bail conditions.

Parity — objective seriousness of unlawful confinement offence

46. As noted above, for the offence of unlawful confinement, the starting point for the sentence imposed on the first appellant was three years and nine months’ imprisonment. The starting point for the sentence imposed on the second appellant was three years and three months’ imprisonment.

47. The first appellant submitted that the sentencing judge should have imposed the same sentence on both appellants. He submitted that there was no material difference in their culpability and, as the sentencing judge found, their subjective circumstances did not warrant different sentences.

48. Parity in sentencing is an aspect of equal justice: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [65] per Gaudron, Gummow and Hayne JJ, approved in Green v The Queen [2011] HCA 49; 244 CLR 462 at [28] by French CJ, Crennan and Kiefel JJ (Green). It requires similar outcomes in similar cases, i.e. similar outcomes in cases that are similar both in relation to the objective features of the offending and in relation to the subjective circumstances of the offender. “Marked disparity” between the sentences imposed on co-offenders may cause “a justifiable sense of grievance”, entitling appellate intervention to correct infringement of the equal justice norm: Green per Bell J at [105], citing Lowe v The Queen (1984) 154 CLR 606. But in deciding whether the parity principle is breached, it must be remembered that sentences are qualitative and discretionary decisions: Green at [32]. These principles were summarised and applied by this Court in Rubino v The Queen [2015] ACTCA 822 at [26] per Ross J (Refshauge and Burns JJ agreeing).

49. In this case, the sentencing judge considered that the subjective circumstances of the appellants were such that there was no reason to distinguish between them on that basis. However, the sentencing judge considered that the objective circumstances of the offence of unlawful confinement committed by the first appellant made him more culpable for that offence; the first appellant produced a knife that was used to threaten the victim into submission, instigated the victim’s confinement by utilising the knife, and made serious verbal threats to the victim in the course of the confinement.

50. The sentencing judge was right to distinguish between the culpability of the appellants on these bases. Usually, the use of a weapon is a significant aggravating feature, and in this case it was the use of the weapon that quickly escalated the incident and enabled the first appellant to force the victim into the vehicle despite the presence of observers who may otherwise have intervened. The repeated and serious verbal threats made by the first appellant while he was seated beside the victim in the vehicle were also a significant aggravating feature because they added to the victim’s terror.

51. Objectively, the culpability of the appellants was not relevantly similar. In any event, it is arguable that the disparity between the sentences was not “marked”. The manner in which the sentencing judge exercised his sentencing discretion was well open to him and on any objective analysis could not result in a “justifiable sense of grievance”.

Parity — extent of concurrency

52. As stated above, the first appellant’s sentences were made concurrent for three months, whereas the second appellant’s sentences were made concurrent for six months, resulting in a shorter total sentence.

53. The first appellant contended this was a marked disparity that caused a “justifiable sense of grievance”.

54. We reject this contention.

55. After a sentencing court has imposed the appropriate sentence for each individual offence under consideration, it must determine the extent to which the sentences should be made concurrent or accumulated for the purpose of achieving a total sentence that appropriately reflects the total criminality: Mill v The Queen (1988) 166 CLR 59; Pearce v The Queen [1998] HCA 57; 194 CLR 610. As this Court recently affirmed in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 (Hall and Barker) at [41] “... when sentencing for multiple offences, the sentencing Judge must consider whether the aggregate sentence is just and appropriate.”

56. Concurrency and accumulation is a tool that enables an adjustment to the structuring of sentences to ensure that each individual sentence correctly reflects the criminality of the offence to which it relates and, at the same time, the total sentence reflects the criminality of all offences. There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise: R v TW [2011] ACTCA 25; 6 ACTLR 18 per Penfold J at [83], applied in Zdravkovic v The Queen [2016] ACTCA 53 at [70]. See also Hall and Barker at [42], where the Court referred to totality as “part of the instinctive synthesis involved in the sentencing process.”

57. In this case, the sentencing judge was well aware of the proper approach to concurrency and accumulation and referred to it at [63] of his reasons. In Hall and Barker this Court stated that “neither Pearce nor Mill establish that it is an error for a sentencing Judge to fail to expressly refer to the totality principle, or to fail to expressly say that the Judge has ‘taken a last look’, or to fail to expressly state how or to what extent the subsequent offending has made the overall criminality more severe”: at [42]. The first appellant did not complain that the sentencing judge had misunderstood the principles relevant to concurrency and accumulation.

58. Because concurrency/accumulation is only a means of achieving a correct total sentence, of itself, a difference in the amount of concurrency applied to co-offender sentences cannot breach the parity principle. The equal justice norm is contravened only if a comparison of the total sentence imposed upon each offender shows an unjustifiable marked disparity.

59. We infer that the sentencing judge considered that, in the case of the first appellant, concurrency of three months achieved the appropriate total sentence for the first appellant and that his Honour also considered that total sentences of four years and three months’ imprisonment for the first appellant and three years and five months’ imprisonment for the second appellant (80 per cent of the total sentence imposed on the first appellant) correctly reflected differences between their offending conduct and any relatively minor differences in their subjective circumstances.

60. As the sentencing judge found, the first appellant was more culpable for the offence of unlawful confinement. There were also differences between the appellants’ personal circumstances that were capable of supporting a lower total sentence for the second appellant. Unlike the first appellant who showed “little remorse”, the second appellant did not dispute the facts and apologised to the victim: at [53].

Manifest excess — first appellant

61. Ultimately, the first appellant did not mount a separate argument of manifest excess, relying upon his arguments about parity and failure to take restrictive bail conditions into account in support of submissions that the sentence for the offence of unlawful confinement and the total sentence were excessive. Difference in criminal histories

62. The second appellant submitted that the sentencing judge erred in finding “no reason to distinguish” between the appellants based on their criminal histories although the first appellant had a worse criminal history: at [50].

63. In relation to matters of violence (of particular relevance to the offence of unlawful confinement), the first appellant did have a worse criminal history; he had been convicted of an offence of assault occasioning actual bodily harm committed on 23 August 2013, whereas the second appellant had no prior convictions for matters of violence.

64. An offender’s criminal history does not increase the upper limit of the range of sentences that might otherwise be imposed but, within that range, a relatively minor prior criminal history may invite leniency by showing that an offence is out of character.

65. In the present case, each appellant had a relatively modest criminal history. The sentencing judge was well aware of the criminal history of each appellant; he referred to their criminal histories in his decision. His Honour’s passing remark that there was “no reason to distinguish” between the appellants based on their criminal histories did not reflect an erroneous understanding of the substance of each appellant’s criminal history or the differences between them.

66. Nor did the remark reflect an erroneous understanding of the correct approach to prior criminal history. His Honour was not saying that the criminal histories were identical or that an offender’s prior criminal history was irrelevant to sentencing. His Honour was simply indicating that, in the present case, the differences between the prior criminal histories of the appellants were insufficient to cause him to distinguish the sentences to be imposed on them.

67. As the criminal histories of the appellants were both modest, there was no error in this approach.

Failure to consider family circumstances

68. The second appellant submitted that the sentencing judge failed to take into account his family circumstances; he was responsible for assisting to care for young children.

69. Pursuant to s 33(1)(o) of the Sentencing Act, the sentencing court is required to consider:

the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependants

70. The sentencing judge did consider the probable effect of a sentence of full-time imprisonment on the second appellant’s family. The second appellant’s family obligations were discussed at [42]–[44]. At [44], his Honour noted that the second appellant was making arrangements for the children in the event that he was sentenced to imprisonment. At [47], his Honour noted the evidence of the second appellant’s partner that she would be able to manage domestic responsibilities in the event that the second appellant was sentenced to full-time imprisonment.

Manifest excess — second appellant

71. The second appellant submitted that the sentence imposed for the trafficking offence was manifestly excessive, possibly because the sentencing judge afforded little leniency for the appellant’s previous minor criminal record and failed to consider alternatives to full-time imprisonment.

72. This submission was pressed despite the fact that, on the sentencing hearing, the second appellant had not submitted that any sentence imposed for trafficking in cannabis should be suspended or served by way of an intensive corrections order.

73. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error will be inferred only if the sentence is manifestly excessive in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] per Gleeson CJ and Hayne J. See also Dalton v The Queen [2015] ACTCA 48 at [18]; Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [20]–[23]; Zdravkovic v The Queen [2016] ACTCA 53 at [51]– [52]; R v Kilic [2016] HCA 48; 91 ALJR 131 at [19]–[22].

74. Like the first appellant, the second appellant was found in possession of several thousand dollars in currency, which the sentencing judge inferred “was largely, if not entirely, the proceeds of the sale of cannabis”: at [51]. In effect, his Honour found that, on 24 January 2014, the second appellant intended to sell for profit the drugs that were in his possession. That factual finding is consistent with the events of 28 December 2013 and it was not challenged on appeal. In relation to trafficking offences, a motive of commercial profit is an aggravating circumstance that often calls for the imposition of a sentence of full-time imprisonment.

75. When sentencing the second appellant for the trafficking offence, the sentencing judge had regard to the critical sentencing parameter or “yardstick” of the maximum penalty, 10 years’ imprisonment: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. Having considered the objective factors relating to the offending conduct, the second appellant’s subjective circumstances, and other relevant statutory considerations, his Honour was satisfied that nothing less than full-time imprisonment was adequate to meet the relevant sentencing objectives.

76. There was no fault in his Honour’s approach and the sentence that his Honour imposed for the trafficking offence was certainly not unreasonable or plainly unjust.

77. Other than the 16 day period in relation to the first appellant that the sentencing judge erroneously believed had been taken into account in separate Magistrates Court proceedings, the appeals should be dismissed and the sentences imposed by the sentencing judge should be confirmed.

78. However, because the second appellant was released on bail pending the outcome of his appeal, it is necessary to vary the commencement and conclusion dates of the sentences imposed on the second appellant. After being sentenced, the second appellant was granted bail on 23 December 2016. Up to 11 May 2017, he had spent 212 days in custody in relation to the offences the subject of the appeal. In order to take the period of time spent out of custody into account (139 days), the commencement date of his sentence should be varied to 11 October 2016. Orders

First appellant

(a) For the offence of unlawful confinement, sentenced to three years and six months’ imprisonment from 9 May 2016 to 8 November 2019.

(b) For the offence of trafficking in a trafficable quantity of cannabis, sentenced to 12 months’ imprisonment from 9 August 2019 to 8 August 2020.

(c) Set a nonparole period of 29 months, from 9 May 2016 to 8 October 2018.

Second appellant

(a) For the offence of unlawful confinement, sentenced to two years and 11 months’ imprisonment from 11 October 2016 to 10 September 2019.

(b) For the offence of trafficking in a trafficable quantity of cannabis, sentenced to 12 months’ imprisonment from 13 March 2019 to 12 March 2020.

(c) Set a nonparole period of two years from 11 October 2016 to 10 October 2018.

I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 11 May 2017