Ground Two - The sentence is manifestly excessive
12 The applicant in her written submissions concluded as to this ground:
Having regard in each case to the maximum penalty of five years, which when discounted for the plea of guilty was effectively one of three years and nine months, the imposition of an overall sentence of three years and three months for the offences given the applicant's age, previous good character, admissions and prospects of rehabilitation is manifestly excessive.
13 The respondent, in its written submissions, responded:
For eleven serious offences committed over the course of eighteen months, involving repeated flagrant breaches of trust by a Commonwealth employee, the imposition of a total aggregate head sentence of three years and three months, with a non-parole period of two years and seven [sic, three] months, is an appropriate sentence to arrive at in the exercise of the sentencing judge's discretion. This is particularly so in the present case where no evidence was presented by the Applicant and the subjective features that were able to be determined were neither compelling nor special in any respect. Accordingly, in all of the circumstances the ultimate sentence imposed cannot be said to be manifestly excessive.
14 I accept the Crown's submission that the total aggregate head sentence was not manifestly excessive. Indeed I regard that sentence as lenient.
Ground One - The sentencing Judge erred in setting the non parole period.
15 His Honour imposed a single non parole period as he was required to do by s 19AB(1) of the Crimes Act 1914 (Cth). The ratio of the non parole period of 2 years 3 months to the aggregate effective sentence of 3 years 3 months was approximately 69%.
16 The applicant submitted the norm for non parole periods in Commonwealth offences was in the range of about 60% - 66 2/3% - R v Bernier (1998) 102 A Crim R 44. She submitted his Honour had erred in not fixing the ratio within that range. She relied upon the decision of this Court in R v Campos (1999) NSWCCA 339 where this Court varied a non parole period of 70% of the head sentence to 60% thereof. That case is however distinguishable from the present. In that case the sentencing Judge had found the offender's prospects of rehabilitation were higher than average. It was held on appeal that the sentencing Judge clearly intended to set a proportionally lower non-parole period yet he had done the opposite.
17 The range of 60% - 66 2/3% is not immutable. In R v Bernier this Court said:
… the norm for non parole periods is in the range of about 60% - 66 2/3%. One factor which may be material is the length of the head sentence and its position in the permissible range. Circumstances may exist which make it appropriate to move outside the usual range for a non parole period. The process is not mathematical or rigid, and often requires a finely tuned assessment.
18 In R v Stitt (1998) 102 A Crim R 428 at 432 Dunford J (with whom Beazley JA and Wood CJ at CL) agreed said:
Generally speaking, in relation to federal offences … non parole periods have generally varied between 60 - 75 percent with periods of 75 percent being rare and limited to the more serious cases where the prospects of rehabilitation have not been considered good.
19 In R v Lian (1990) 47 A Crim R 444 at 449 this Court held:
Although the purposes of the head sentence and minimum term (or non parole period) are to some extent different, they are necessarily related. This point was made by the High Court in Power (1974) 131 CLR 623 at 628:
In a true sense the non parole period is a minimum period of imprisonment to be served because the sentencing Judge considers the crime committed calls for such detention.
20 More recently in R v Moore (2005) NSWCCA 212 this Court held:
Whilst due allowance should always be made for the subjective circumstances of an offender, including an offender's age and health, the ultimate sentence imposed, both as to the non parole period and the head sentence, must not be disproportionate to the objective gravity of the offence.
21 His Honour's conclusion that the applicant's rehabilitation prospects were positive would, ordinarily, have resulted in the imposition of a non parole period in the range of 60% - 66 2/3% of the aggregate effective sentence.
22 His Honour however selected a non parole period which yielded a ratio to the aggregate effective sentence of approximately 69%. It may be his Honour intended to depart from the normal ratio because he considered the circumstances made it appropriate to do so. However he did not say that that was his intention nor did he give any reasons for so doing.
23 In R v Bugeja [2001] NSWCCA 196 at [43] Adams J said:
… there should have been some advertence to the extent to which the non parole period conventionally appropriate did not provide adequate and sufficient personal deterrence and did not reflect the other purposes of sentencing law.
24 Notwithstanding that the Crown had referred, in its written submissions on sentence, to the principles relevant to fixing the ratio (the applicant was self represented and made no such submissions) his Honour's failure to refer to the ratio between the non parole period and the aggregate effective sentence in his Remarks on Sentence leads to the inference that he did not turn his mind to that question.
25 In these circumstances I have concluded that error has occurred and that the non parole period should be varied to reflect his Honour's findings as to the applicant's rehabilitation prospects and the normal range referred to in R v Bernier.