9 It was not until after he had announced his sentence that the judge had his attention drawn to the terms of s.16(3B) of the Sentencing Act 1991. On both sides it is agreed by counsel who appeared on the appeal that his Honour fell into error when addressing that provision. Mr Silbert for the Director conceded that, the complaint of sentencing error having been made out, the orders made below should be quashed and the sentencing discretion was thereupon reopened. Mr Silbert and Mr Kassimatis agreed that it was unnecessary to further address the grounds of appeal and the hearing before us therefore proceeded as a plea.
10 The major difficulty confronting the appellant in seeking leniency is his truly appalling record of prior offending. His prior convictions commenced in 1964. A few may be highlighted. In 1969 he was sentenced to five years' imprisonment, with a non-parole period of two years' imprisonment, for housebreaking and stealing and attempted housebreaking and stealing. Also in 1969 he was sentenced to five years' imprisonment with a minimum of three years, for possession of an explosive with intent to endanger life or property, and also shopbreaking and stealing and officebreaking and stealing. In July 1985 for handling stolen goods he was sentenced to seven years' imprisonment with a non-parole period of five years. In 1986 he was sentenced to eight years' imprisonment with a non-parole period of six years, for conspiracy to commit armed robbery and going equipped to steal. In 1987, for armed robbery and false imprisonment, he was sentenced to 12 years' imprisonment with a 10-year non-parole period; and on 1 June 1996 he was sentenced to 10 years' imprisonment with a non-parole period of seven years for a series of offences, including attempted armed robbery, causing serious injury intentionally and using a firearm to resist apprehension. With respect to that last sentence, he was released on parole on 25 July 2001 and was on parole when the current offences occurred. His parole period ended on 24 July 2004. Notwithstanding that fact, he remains at risk of being recalled by the Parole Board, but that has not happened to date. The fact that he is at risk in that regard is relevant as a general sentencing consideration.[2]
11 The co-offenders were dealt with in the Magistrates' Court. Sharp was fined $2,000, without conviction. Thomas was sentenced to six months' imprisonment, to be served by way of intensive correction order. The question of parity has been raised in the submissions of counsel for the appellant, and the sentence which I will propose in this case takes that factor into account and would not, in my opinion, give rise to a justifiable sense of grievance on the part of the appellant,[3] having regard to the fact that Sharp had no prior convictions, and to the fact that although Thomas did have many prior convictions, none were comparable to those of the appellant. In addition, Thomas was much younger than the appellant and had not previously been in prison.
12 Notwithstanding the prior offending history of the appellant, he had many factors which were capable of mitigating his sentence. Mr Ian Joblin provided a psychological assessment of the appellant and plainly was impressed by his frankness and sense of remorse. As emerged in that report, the appellant had a very difficult upbringing, being one of twelve siblings whose father died when the appellant was six years old. The appellant became an uncontrollable child and was placed in boys' homes from the age of eight. He has never attended secondary school. He celebrated his 17th birthday in an adult prison. He had been in prison many times and for much of his life. He had not, however, committed an offence since 1995 (although for part of the time subsequently he was again in prison). Upon release on parole in 1999 he had difficulty settling down. His wife, who gave evidence which impressed the judge, and understandably so, said that she had moved house while he was in prison, so that upon his release he would not be close to any of his old friends. In this unsettled period, and for the first time in his life, he began amphetamine use. His wife attested to the impact that that had on his stability, saying that he had been irrational and highly strung, although she did not then know the cause. Debts which had arisen due to his amphetamine use were, he told Mr Joblin, the motivation for these offences.
13 The fact that he was on parole is a most serious aggravating factor, and in my view that fact, coupled with the prior convictions, means that this is not a case where it would be appropriate to impose a wholly suspended sentence of imprisonment, as was urged on the appellant's behalf, having regard to the time already spent in custody. Nonetheless, I consider this is a case where the exercise of mercy is justified.
14 Evidence was called on the plea from the appellant's wife of 33 years, who described her dependency on her husband, who did most of the housework. The appellant's wife suffers serious medical conditions which greatly affect her mobility. The appellant was on a carer's pension, his wife on a disability pension. She said that whereas once the appellant had just treated gaol as part of his life, now he was frightened by imprisonment. His life now revolved around his adult daughters. Mr Joblin said of the appellant that he should not be considered incorrigible and he did not have an antisocial personality disorder. He was insightful, remorseful and no longer using amphetamines. When released on bail the appellant did not rush to get his case dealt with. Instead, as he freely acknowledged, he wanted to take the opportunity whilst on bail to demonstrate that he was capable of rehabilitation and to thus enhance his prospects of a more lenient sentence.
15 Called as a witness in the hearing below was one Gregory Lovett, a community development co-ordinator dealing, in particular, with Aboriginal youth. He had known the appellant for 25 years. For two-and-a-half years, that is, whilst on bail, he had been engaged as a volunteer worker with the Aboriginal community of Broadmeadows, dealing with both juveniles and adults. He attended every Wednesday and at weekends for sporting events and his role was to talk to and counsel the mainly young people. Asked about the appellant's impact and whether the fact that he had a criminal history impeded his task, Mr Lovett said, speaking for the young people: "If they can see help, they appreciate it."
16 The appellant told the police that he was an idiot for committing these offences. With some self-irony, the appellant told Mr Joblin that he was an armed robber, not a house burglar. It seems reasonable to assume, however, that his days as an armed robber are also at an end. Mr Joblin said that the appellant was enthusiastic about his role in keeping young people away from drugs and crime, and he said it was deserving of credit. I agree. It is plain that the judge below was also impressed by the appellant's efforts whilst on bail. He said that he was imposing what he called a short sentence, and I agree that it was indeed a merciful sentence, one which in fact I propose to largely replicate, although I would suspend slightly more of the sentence than did his Honour.
17 I would impose the same sentences on each count as did his Honour and also the same order as to cumulation, but I would vary the order as to the period of suspension, so that nine months of the sentence of 15 months' imprisonment would be suspended, thereby requiring the appellant to serve six months' imprisonment, rather than the period of eight months which was ordered by his Honour.