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APPEAL – CRIMINAL LAW – Offender appeal against sentence – aggravated robbery – whether sentencing judge mistook the facts – consideration of power to vary sentence where orders pronounced but not recorded

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Application for adjournment of appeal hearing – where adjournment sought by offender to consider evidence from civil proceeding about conditions in custody Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) Crimes (Sentence Administration Act) 2005 (ACT) Criminal Code 2002 (ACT) Court Procedures Rules 2006 (ACT) Corrections Management Act 2007 (ACT) Human Rights Act 2004 (ACT) Supreme Court Act 1933 (ACT) Cases Cited: Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Burrell v R [2008] HCA 34; 238 CLR 218 CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 Featherstone v Australian Capital Territory [2022] ACTSC 250 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 Horan v O’Brien [2021] ACTSC 323 House v R (1936) 55 CLR 499 Jovanovic v R [1999] FCA 1008; 92 FCR 580 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Lewis v Australian Capital Territory (No 8) [2018] ACTSC 218 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 O’Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 PG v The Queen [2017] NSWCCA 179; 268 A Crim R 61 R v Booth [2004] ACTCA 21 R v Carberry [2022] ACTSC 208 R v Catts (1996) 85 A Crim R 171 R v Cox (1960) VR 665 R v Deng [2022] ACTSC 143 R v Duffy [2014] ACTCA 53; 297 FLR 359 R v Fordham (1997) 98 A Crim R 359 R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v Millington (No 2) [2022] ACTSC 9 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Raeyers (Unreported, Supreme Court of the ACT, Refshauge J, 6 May 2014) R v Sidaros (No 6) [2021] ACTSC 24 R v Stacker [2020] ACTCA 34 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v UG [2020] ACTCA 8; 281 A Crim R 273 R v Wrigley [2015] ACTSC 114 Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 The Queen v Rappel [2019] ACTCA 11 Tracey v The Queen [2020] ACTCA 51 nd Texts Cited: Oxford English Dictionary (2 ed, 1989) Parties: ACTCA 22 of 2022 The King (Appellant) Keith Carberry (Respondent) ACTCA 23 of 2022 The King (Appellant) Garang Dau Deng (Respondent) ACTCA 34 of 2022 Keith Carberry (Appellant) The King (Respondent) Representation: Counsel ACTCA 22 of 2022 J Hiscox (Appellant) M Keaney (Respondent) ACTCA 23 of 2022 J Hiscox (Appellant) E Chen (Respondent) ACTCA 34 of 2022 M Keaney (Appellant) J Hiscox (Respondent) Solicitors ACTCA 22 of 2022 ACT Director of Public Prosecutions (Appellant) Michael Lalor (Respondent) ACTCA 23 of 2022 ACT Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent) ACTCA 34 of 2022 Michael Lalor (Appellant) ACT Director of Public Prosecutions (Respondent) File Numbers: ACTCA 22 of 2022 ACTCA 23 of 2022 ACTCA 34 of 2022 Decision Under Appeal: Court/Tribunal: Supreme Court of the ACT Before: Refshauge AJ Date of Decision: 27 April 2022 Case Title: R v Carberry Citation: [2022] ACTSC 208 Court File Numbers: SCC 123 and 271 of 2021

Court/Tribunal: Supreme Court of the ACT Before: Refshauge AJ Date of Decision: 21 April 2022 Case Title: R v Deng Citation: [2022] ACTSC 143 Court File Numbers: SCC 15, 16 and 302 of 2021

THE COURT: Introduction

1. Garang Dau Deng and Keith Carberry were sentenced, by the same judge of the Supreme Court, on 21 April 2022 and 27 April 2022 respectively. Each had pleaded guilty to three offences that they committed together: an aggravated robbery that took place in the community in August 2020; and offences of arson and damaging property that took place in the Alexander Maconochie Centre (AMC) in May 2021.

2. For Mr Carberry the total effective sentence was seven years’ imprisonment, with a nonparole period of one year and four months to commence on 10 March 2023 and end on 9 July 2024 (the damaging property and arson offences cannot have a nonparole period set in respect of them). That sentence comprised: (a) damaging property: 27 months’ imprisonment to commence on 10 January 2021 and end on 9 April 2023; (b) arson (taking into account three offences of common assault and one of assault occasioning actual bodily harm): 38 months’ imprisonment to commence on 10 January 2021 and end on 9 March 2024; and (c) aggravated robbery: 58 months’ imprisonment to commence on 10 March 2023 and end on 9 January 2028.

3. In relation to Mr Deng the total effective sentence was seven years and three months’ imprisonment, with a nonparole period of one year and six months to commence on 15 November 2023 and end on 14 May 2025. The individual sentences were: (a) damaging property: 24 months’ imprisonment, to commence on 15 August 2021 and end on 14 August 2023; (b) arson: 36 months’ imprisonment to commence on 15 November 2021 and end on 14 November 2024; and (c) aggravated robbery: 60 months’ imprisonment to commence on 15 November 2023 and end on 14 November 2028.

4. Because the property damage and arson offences were committed while in custody, and therefore their sentences are “excluded sentences” within the meaning of s 64 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), no nonparole period could be fixed for these offences. His Honour structured the sentence in each case so that the term to be served for the aggravated robbery offence commenced last, and fixed a nonparole period for that offence.

5. The Crown, and both offenders, filed notices of appeal against the sentences imposed.

6. The Crown appealed on the following grounds: (a) The sentencing judge erred in failing to consider s 35(4) of the Sentencing Act (Crown Ground 1). This ground relates only to the offences that took place in the AMC in May 2021. At the hearing the Crown sought and was granted leave to amend its notice of appeal in the matter of Carberry to extend this ground to include a contention that the sentencing judge erred by failing to find that the prosecution case was overwhelmingly strong. (b) The sentences are manifestly inadequate (Crown Ground 2). Three of the particulars of this ground are the same in each notice of appeal, but an additional point is alleged in respect of Mr Carberry’s sentence. They are as follows: (i) the sentence imposed in respect of the charge of arson is manifestly inadequate; (ii) as a result, the total head sentence is manifestly inadequate; (iii) (in the sentence of Mr Carberry) there is inappropriate concurrency in the sentences, in particular the learned sentencing judge erred in making the sentence in respect of the charge of damage property wholly concurrent with the sentence imposed in respect of the charge of arson; and (iv) the effective nonparole period and minimum term the respondent is to serve is manifestly inadequate.

7. Mr Carberry appealed on grounds that: (a) the sentencing judge erred in the findings of fact made (Carberry Ground 1); and (b) the sentence is manifestly excessive (Carberry Ground 2).

8. Mr Deng’s notice of appeal alleged manifest excess. However, at the hearing, he sought and was granted leave to discontinue his appeal. Mr Deng was not represented in this aspect of the proceedings.

Application for adjournment

9. At the commencement of the hearing of the appeal, counsel for Mr Carberry made an oral application for an adjournment on the basis that it had recently come to her attention that Mr Carberry had commenced proceedings against the Territory in relation to alleged contraventions of the Human Rights Act 2004 (ACT) (Human Rights Act) arising from the conditions of his imprisonment. It seemed to be submitted that an adjournment would serve two purposes. First, to allow Mr Carberry’s legal representatives to consider the evidence in the civil proceeding in order to determine whether to make an application under s 37N(3) of the Supreme Court Act 1933 (ACT) for the Court of Appeal to receive further evidence about conditions in the AMC. Secondly, to allow the civil proceeding to run its course because its success might in itself constitute further evidence that Mr Carberry would seek to rely upon. We refused the application and reserved our reasons, which are as follows.

10. In exercising the discretion to grant or refuse to grant an adjournment of a sentence appeal, the court must have regard to the interests of the offender, but the court is not confined to that consideration: cf. R v Cox (1960) VR 665. Also relevant are considerations such as the efficient use of judicial resources and the impact of adjournment on others including, relevantly, parties to related proceedings.

11. Here, the benefits to Mr Carberry of an adjournment are uncertain. The civil proceeding is one of several proceedings seeking the same relief, interlocutory applications of which were considered by the Supreme Court in Featherstone v Australian Capital Territory [2022] ACTSC 250 (Featherstone). The proceedings concern the somewhat narrow issue of whether damages or compensation flow from what Mr Carberry (like the other plaintiffs) seeks to show was an unlawful restraint imposed on him while detained in the AMC. The restraint is said to be that (allegedly contrary to provisions of the Corrections Management Act 2007 (ACT) and the Human Rights Act) he was on some days not given access to open air and allowed to exercise for at least one hour: Featherstone at [3].

12. The evidence needed to support that allegation would not necessarily go far in explaining Mr Carberry’s offending (in a way that lessens his moral culpability) or show that his sentence was more onerous than the ordinary conditions of imprisonment (in a way that should be taken into account as a factor in mitigation). This initial difficulty is compounded by two larger difficulties. It was not clear what, if any, evidence Mr Carberry had assembled in support of the civil proceeding at the time the application for adjournment was made. As the proceeding was complex and still in its early stages, it may well have been that a long adjournment would be necessary if sentencing were to await the outcome of the proceeding. Secondly, even if relevant evidence were obtained from the civil proceeding, it is far from certain that the Court would exercise its discretion to receive it. As Howie AJ observed in R v Fordham (1997) 98 A Crim R 359 ((at 377) (Hunt CJ at CL and Smart J agreeing)): Generally before fresh or new evidence will be received by this Court, it must be shown that the sentencing of the appellant in the absence of that evidence resulted in a miscarriage of justice. As a general rule, where that evidence was available to the defence at the time of sentencing, a miscarriage of justice would rarely result simply from the fact that the evidence was not before the sentencing judge, even if the evidence may possibly have had an impact upon the sentence passed.

13. Mr Carberry was aware of his conditions in detention prior to his sentence hearing. Instructions and evidence could have been obtained and presented at that stage. In relation to the second purpose of the adjournment (to allow the civil proceedings to conclude), it is not clear what the findings in the civil proceeding could add to the actual evidence that underlies them (evidence which could, at least for the most part, have been obtained prior to the sentence hearing). In any event, waiting for the civil proceedings to conclude would have involved an unacceptable period of delay.

14. Additionally, the application was made at the last possible moment: orally during the time allocated for the hearing of the appeal. If we granted the adjournment then either Mr Deng’s appeal would have proceeded alone (with the consequences that we would not have had the benefit of hearing both parties’ submissions on similar issues together, and the Court would be required to expend considerable additional judicial resources on a further hearing before three judges), or it too would have needed to be adjourned (with the consequences of wasted judicial resources, wasted preparation by counsel and their instructors and delay in the resolution of two appeals).

The sentence proceedings

The offences

15. The parties to each proceeding below agreed a Statement of Facts, the key parts of which were summarised by the sentencing judge. This is not a case where co-offenders were sentenced on the basis of inconsistent agreed facts, as sometimes occurs when pleas are negotiated: see, e.g., PG v The Queen [2017] NSWCCA 179; 268 A Crim R 61 at [23]-[24] (Basten JA, Button and N Adams JJ agreeing at [70]). Indeed, with few exceptions, the only substantive differences between the Statements of Facts (and as a consequence the sentencing judge’s summaries of them) are results of their focus on the relevant offender. For example, the Statement of Facts in Mr Deng’s proceeding included a list of his conduct constituting the damage property offence that is not included in the Statement of Facts in Mr Carberry’s proceeding. For the most part, findings of fact about the offending in one judgment are repeated in identical or almost identical language in the other.

16. As a consequence of these similarities, it is convenient to outline the factual background to the proceedings together.

Events of August 2020

17. At about 2:20am on 12 August 2020, Mr Carberry, Mr Deng and Mr Marley Hall went to a residence in Narrabundah. The occupants of the residence were awake and heard a vehicle entering the housing complex. One occupant walked to the front sliding glass door, and, after turning on a light, saw three men wearing face coverings approaching. One of the men (Mr Deng) was carrying a sawn-off single barrel rifle. The other men were also armed: Mr Carberry with a knife and Mr Hall with a double-edged bayonet style sword. The occupants called the police. Mr Deng tried unsuccessfully to break the glass with the rifle, but after an occupant shouted, “We’ve called the cops”, the men left.

18. These events resulted in charges of attempted aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code), which were, at the request of each offender, taken into account in their sentencing under Part 4.4 of the Sentencing Act.

19. Later the same morning, at around 4:00am, the three offenders entered a residential unit in Gordon. The occupant awoke to find the offenders standing in her bedroom. Mr Deng was still carrying the rifle, Mr Carberry now had two knives and Mr Hall had a long metal weapon which could have been the same as the sword he was carrying in Narrabundah. Mr Hall said, “Where’s the fucking money … don’t lie to me, where are the safes?” Mr Deng said, “Where’s the drugs?” The occupant denied having any money or drugs. A relative of hers, for whom she was housesitting, was attending residential drug rehabilitation. The next events are recorded as follows in the transcript of the sentencing judge’s remarks in sentencing Mr Carberry: The men became angry and Mr Deng pushed the gun he was carrying into the occupant’s face and said, ‘Do you want me to blow your brains out’. Mr Hall then pressed the weapon that he was carrying to the occupant’s throat and said, ‘Don’t lie to me. Tell me where the money is.’ The occupant could still not answer as she did not know. Mr Carberry did not approach the victim and did not threaten her with any of the knives that he was carrying. Mr Carberry and Mr Hall then set about searching the unit while Mr Deng remained in the bedroom with the occupant. Mr Carberry – on a number of occasions, Mr Carberry took various items from the unit and placed them into the vehicle in which they had arrived and also in the vehicle owned by the occupant. Mr Carberry then motioned to the others that there were police patrolling the area and they began to leave. On departure, Mr Carberry told the occupant, ‘You’re lucky the police are here otherwise I would have fucked you. Don’t call us. Don’t call the cops either otherwise we will kill you’ or ‘we will come and kill you’. The property taken included jewellery, electrical items, a Rolex watch and watches, assorted electrical items, a black handbag and two rectangular PIN code safes and a hard drive. The offenders also took a hip bag, a gym bag and a jumper. A number of items were shown as having a monetary value in total of $9,900 but did not cover much of the jewellery or other items. The hip bag contained a number of identification and bank cards as well as $200 in cash. It also contained the occupant’s car keys and one of the offenders used them to drive away in her car which was valued at $25,000. The others left in the car in which they had arrived. Fearful of the offender’s threat, the occupant did not call the police but she did call her parents and though she begged them not to call the police, [they] did so.

20. Unfortunately, as will be returned to later in these reasons, it was Mr Hall, not Mr Carberry, who said the things set out in the third paragraph extracted above. Counsel for Mr Carberry brought the error to the sentencing judge’s attention after orders had been pronounced but before the Court adjourned. The sentencing judge invited submissions on what should be done in light of the mistake, but none were made. The error was corrected in the published version of the judgment. It is one of two errors relied on in the first of Mr Carberry’s grounds of appeal.

21. The events in Gordon support the charges of aggravated robbery contrary to s 310 of the Criminal Code.

Events of May 2021

22. Mr Deng was arrested in relation to the aggravated robbery on 22 August 2020 and refused bail in the Magistrates Court two days later. Mr Carberry was not arrested in relation to the aggravated robbery until 11 October 2020. He then spent three months on bail, before bail was revoked on 11 January 2021 and he was remanded in custody in the AMC. On 12 May 2022, when the offenders committed the arson and damaging property offences, they were both detainees in the AMC’s Remand Unit 1.

23. The facts relating to the arson are summarised by the sentencing judge in identical terms in the published reasons in both matters (R v Deng [2022] ACTSC 143 (R v Deng) at [32]-[45]; and R v Carberry [2022] ACTSC 208 (R v Carberry) at [43]-[56]): … The unit contained 24 cells split across two levels and on one side led to an external yard. The inside is described in the Agreed Statement of Facts as having “a central kitchen area in the middle of the unit, a television viewing area on the left of the unit and an Officer’s Station and medication dispensary area on the right side of the unit. The Officer’s Station is an enclosed windowed room so that Corrections Officers can physically monitor detainees”. At about 3:00pm, Mr Deng and a number of other detainees in the unit, including Mr Carberry, were intoxicated when Corrections Officers spoke to them. The behaviour of these detainees escalated; including threatening the Officers, throwing items at them and fights between detainees. The Corrections Officers retreated to the Officer’s Station and a full lockdown of the Centre was ordered so that other Officers could be released to assist in managing the disturbance and the detainees. Mr Deng and Mr Carberry caused significant damage to the unit and the Officer’s Station and property inside both rooms. In particular, Mr Carberry broke and opened a window panel, forcing the Officers to retreat. He and Mr Deng then continued to damage property in the Station. At about 6:02pm, Mr Deng went into a cell carrying an item of clothing, lit a lighter and left the cell. Mr Carberry then took some toilet paper from a cell and, after an unsuccessful attempt, managed to set some of the toilet paper alight which he placed into the Officer’s Station through the open window panel. Mr Carberry and Mr Deng continued to stoke that fire with numerous rolls of toilet paper, clothing and towels. Shortly after, the Officer’s Station became engulfed in large flames which caused the plastic roof of the structure to melt and disintegrate. Corrections Officers used a hose to try and extinguish the fire through a small office window, but Mr Deng and Mr Carberry continued to throw items at the fire, including a microwave oven. By 6:12pm, the Station was fully engulfed in flames and the unit was filled with thick black smoke. A number of detainees were concerned for their safety and the safety of others who remained locked in their cells. While Officers negotiated with the detainees to extinguish the fire, Mr Deng and Mr Carberry tried to block the window and take hold of the fire hose, preventing the Officers from extinguishing the fire. The two were directed to move to the outside yard but ignored the direction, continuing to try and take hold of the hose. They were sprayed with oleoresin gel spray, which appears to have stopped them interfering with the extinguishing of the fire. Later, however, Mr Carberry left cell 3 in the unit and he appears to have started two small fires in there. Black smoke was billowing out into the unit. At about 7:10pm, however, after ACT Fire and Rescue personnel had arrived at the centre, the fire was extinguished and the eight detainees had been removed by the ACT Fire and Rescue Officers from their locked cells. A few minutes after 8:00pm, however, Mr Carberry removed a towel tied to the outside yard and hung it over the door handle of the gate separating the open yard from the gym area. With a lighter, he tried to ignite the end of the towel. Mr Deng took an item of clothing over to Mr Carberry and tried to light it also. It quickly caught fire and Mr Deng took it and threw it onto a tennis net in the yard. Mr Carberry then brought the towel over and set it alight from the flames. Mr Deng took a boxing bag, hanging in the yard area, pushed it into the flames and Mr Carberry threw the flaming towel onto the boxing bag, which then caught fire. Mr Carberry then picked up other items of clothing and threw them onto the fire. About 20 minutes later, ACT Fire and Rescue personnel had extinguished the fire. Undeterred, Mr Deng, assisted by Mr Carberry, later held a gym net over the smouldering ashes of the fire, trying to reignite it. They were successful and they fed the fire with numerous items of clothing, towels and other objects, but the fire was soon also extinguished. At various times, Mr Deng and Mr Carberry were directed to approach the yard gate so that they could be removed from the unit and rehoused, but they refused, which prolonged the incident.

24. In evidence against Mr Carberry (but not against Mr Deng) was a transcript of intercom recordings from the AMC on the night of the offending. The sentencing judge summarised these as follows (R v Carberry at [57]): They showed a high level of distress among the detainees, complaining that “I can't even breathe in here” or “I’m choking”. Many of the complaints were about the smoke, but also other things such as the smashing of items like a computer. The detainees obviously were frightened and wanted to get out of their cells. For some reason the Corrections Officer would not open their doors, saying things like, “I'm not allow [sic] to” or “we're trying our best to get you out” or “I have to get permission and instructions from someone with more power than me”. No evidence was given to justify those reactions.

25. In relation to the damaging property offences, the sentencing judge noted the extended duration of the offending (which continued until about 11:30pm) and the items that were damaged. His Honour called it “a destructive rampage”. It is not necessary here to provide a detailed list of the items damaged by each offender, but at a high level, the offenders damaged the tap of a kitchen and threw food, items off tables, garbage bins and chairs. They also caused damage to windows and walls of the Officer’s Station. They dragged around refrigerators (breaking the top off one) and damaged gym equipment and a dividing gate.

26. Throughout the incident, the offenders yelled “constant” abuse and threats at the corrections officers, including threats to injure them, and to kill them and their families. At one stage, Mr Carberry imitated shooting a corrections officer with a bow and arrow and used his hands to mimic shooting them with a gun.

27. In addition to the attempted aggravated burglary described above, Mr Carberry asked that three offences of common assault and one of assault occasioning actual bodily harm be taken into account under Part 4.4 of the Sentencing Act. The first of the assaults occurred when Mr Carberry pushed another detainee forcefully and then chased him around the unit. The second occurred when Mr Carberry kicked another detainee in the chest with so much force that the detainee fell backwards to the ground. The third occurred in the exercise yard, when Mr Carberry pushed the face of a detainee into the fence. The final assault, which occasioned actual bodily harm, occurred when Mr Carberry threw a mug at a detainee. It struck the detainee in the head and caused him to bleed.

28. It was agreed in each proceeding that the cost of rectification and remediation for the unit was $4.61 million, inclusive of staffing resources. The figure did not differentiate between damage caused by arson and damage caused by the offenders’ other actions, but the parties did not take issue with the sentencing judge’s finding that the “large majority” of costs incurred were attributable to the fires.

29. The events in custody support the charges of arson (contrary to s 404(1) of the Criminal Code) and damaging property (contrary to s 403 of the Criminal Code).

Objective seriousness of the offences

30. The sentencing judge’s reasons in respect of the objective seriousness of the aggravated robbery are set out at [87]-[92] of R v Carberry and [65]-[71] of R v Deng. It is not necessary to summarise them here. The sentencing judge next turned to consider the attempted aggravated burglary (R v Carberry at [93]-[101]; R v Deng at [72]-[79]). We note that the lists of additional offences prepared pursuant to s 56 of the Sentencing Act list the ‘principal offence’ for this ‘additional offence’ as being the aggravated robbery. Accordingly, and properly, the attempted aggravated burglary was ‘taken into account’ in respect of the aggravated robbery, and was not relevant to the arson and property damage offences. It is otherwise not necessary to summarise the reasons in relation to the seriousness of the attempted aggravated burglary.

31. The sentencing judge addressed the objective seriousness of the arson at [102]-[110] of R v Carberry and [80]-[87] of R v Deng. In summary, his Honour observed that the maximum penalty of 15 years’ imprisonment and 1500 penalty units makes arson a serious offence, and referred to the factors collected in R v Wrigley [2015] ACTSC 114 at [33] (Wrigley), noting in particular that: (a) more severe sentences are called for where ‘as here, [there is] a realistic prospect that life will be endangered’; (b) although perpetrators of arson are often difficult to detect, this was ‘hardly so in this case where Mr Deng and Mr Carberry were clearly visible as responsible’; (c) many common aggravating features were not present (such as, we infer, the use of accelerant or the fire having been lit for commercial gain or revenge); (d) the destruction was ‘wanton’ and ‘deliberate’ and continued in the face of attempts by corrections officers to stop it. It also put detainees at risk, and some were affected by smoke; (e) the reason for the offending was unclear. (The sentencing judge found that the offenders had consumed a ‘prison brew’ of unknown ingredients and could not remember the riot. His Honour considered there not to be any particular cause or malevolent intent, but that some must have been present for which the offenders’ intoxication disinhibited them. In these circumstances, the sentencing judge found that ‘the real gravity of the offence cannot be adequately identified’ (R v Carberry at [105]; R v Deng at [82]). This language reflects the statement at [34(c)] of Wrigley that ‘the real gravity of the offence lies in the intent with which it is committed’); (f) a significant quantum of damage was caused: the sentencing judge found the larger part of the $4.61 million in damage was a result of the arson.

32. His Honour concluded that the arson was ‘clearly a serious version of the offence with significant circumstances of aggravation’ (R v Carberry at [110]; R v Deng at [87]).

33. The consideration of the objective seriousness of the damage property offending runs from [112]-[114] in R v Carberry and [88]-[90] in R v Deng. The sentencing judge noted that although the maximum penalty of imprisonment for 10 years and 1000 penalty units makes this the least serious of the offences, it is still a serious offence. As relevant factors, his Honour referred to the significant amount of damage caused and that the ‘rampage’ continued for many hours. As with the arson offences, the sentencing judge considered intent to be both relevant and somewhat unclear.

34. As noted above, Mr Carberry asked that three common assaults and an assault occasioning actual bodily harm be taken into account when considering how he should be sentenced for the count of arson. The objective seriousness of these offences is considered at [115]-[121]. The sentencing judge found the injury relevant to the assault occasioning actual bodily harm did not appear to have been particularly serious, though it was to the head and committed within a prison environment, both of which made the offence more serious. In relation to the common assaults, limited information was available. They too were made more serious by virtue of having been committed within a prison environment but were still low level offences. The push against a fence was likely to have caused pain and so was assessed as more serious than the push and the kick.

The respondents’ subjective circumstances

35. Mr Carberry’s subjective circumstances are set out at [138]-[160] of R v Carberry. Of particular note are the following: (a) Mr Carberry was 22 years of age at the time of the aggravated robbery and attempted aggravated burglary, and 23 at the time of the arson and damage property offences. (b) He had a difficult upbringing. His mother died when he was three years old and he has had a limited relationship with his father due to alcohol use and incarceration. After his mother’s death he was placed in kinship care with his maternal grandmother, where he was exposed to violence and substance abuse. The principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) apply. (c) Mr Carberry is of Indigenous parentage (his submissions described him as “a Ngunnawal/Wiradjuri (father’s side) and Kunnunurra (mother’s side) man”) and is engaged with his extended family and the Aboriginal community. He has a young child with a former partner and considers himself as the stepfather to his current partner’s son. (d) He completed Year 10 at an alternative education facility and is completing a construction course. His employment undertaking contract work for a demolition company has not been stable, though he would like to find stable work. (e) His physical health is good; however, according to a psychological assessment report before the sentencing judge, he meets the criteria for Attention Deficit Hyperactivity Disorder and experiences some effects from exposure to trauma, without meeting the full criteria for Post-Traumatic Stress Disorder. (f) He has a long history of alcohol and drug use. He drank alcohol from the age of 11 or 12 and regularly from about 14 or 15. Gradually he replaced it with illicit drugs. He commenced using methamphetamines at the same age he started drinking, and, between 16 and 18, used the drug heavily (approximately 1.75 grams a day). His use of GHB commenced when he was 21 or 22 and was also heavy (between about five and 15 millilitres a day). He has used various other illicit drugs, but less regularly. He has had some alcohol, tobacco and drug treatment. He completed the four-month program at the Ted Noffs Foundation and four months of a program at Oolong House. (g) His criminal history is long and concerning. [Redacted]. He has 16 offences on his record from the few years he has been an adult. Broadly, they are traffic, dishonesty and drug related. He has not committed a robbery before. (h) His compliance with orders has also not been good. ACT Corrective Services report his compliance with bail supervision has been satisfactory (although he has failed to appear in accordance with a bail undertaking on two occasions), but he did not comply with supervision under a Good Behaviour Order. He has been subject to discipline on several occasions while in custody. (i) He has provided a letter to the victim of the aggravated robbery in which he apologies for the wrongfulness of his behaviour. In a letter to the Court, he has described his wish to achieve something better and, in particular, provide support to his daughter.

36. The sentencing judge addressed Mr Deng’s subjective circumstances generally at [91]- [117] and then with a focus on his childhood disadvantage at [152]-[161]. There were various inconsistencies in dates in the materials before the Court, though none were significant. The key findings were as follows: (a) Mr Deng is a few months younger than Mr Carberry. (b) Also like Mr Carberry, Mr Deng had a disadvantaged upbringing and the Bugmy principles apply. As a result of the war in South Sudan, he spent his early life in a refugee camp in Kenya. He has memories of villages burning down, gunshot sounds and his family running with him and his siblings for their lives. (c) The family came to Australia as refugees when he was three years old. His father was violent to his mother but was not around much and moved to Perth when Mr Deng was about 11 years old. There was no alcohol or illicit substance abuse in the family home and Mr Deng has a good relationship with his mother and siblings. He proposes to return to live with his mother when he is released from custody. He has had one significant personal relationship that lasted about four years but ended when Mr Deng was incarcerated. He has no children. (d) Mr Deng has had disrupted education and employment. As a child he had behavioural issues leading to suspension and moving schools. He experienced racism and would fight students he thought were racist. He left school in Year 6 or 7, but later completed Year 10 [redacted]. He says he has certificates in fitness, hospitality and business, and can return to bricklaying when released from custody. He has worked as a traffic controller and in various capacities in construction. (e) Like Mr Carberry, Mr Deng is physically healthy (though he suffers from asthma) but has some mental health issues. He has been described as meeting the criteria for anti-social personality disorders and several substance use disorders. (f) Mr Deng has for a long time used substances to numb his feelings, flashbacks and nightmares. He began using cannabis at the age of 10 and by 11 was using daily. He was using about half an ounce a day in late 2021. His other major drugs of choice were methamphetamines, heroin and GHB. At the time of his arrest, he was using half an eight ball a day of methamphetamines, half to 1 eight ball a day of heroin and about 4 millilitres a day of GHB (an “eight ball” being an eighth of an ounce). He first used methamphetamines when he was 13, heroin when he was 16 and GHB when he was 20. He also uses cocaine sporadically and smokes about 10 cigarettes a day. He commenced drinking alcohol when he was 11 years old but he does not drink much, preferring the use of other drugs. He has been diagnosed with a severe opioid use disorder, a severe cannabis use disorder and a severe stimulant amphetamine-type substance use disorder. He has participated in three drug treatment programs: a day program when he was aged 12 or 13 (though he was discharged because of anger and fighting and did not really engage); a three-month program at the Ted Noffs Foundation in Dubbo when he was 15; and another Ted Noffs Foundation program in Canberra a year or two later (though he left this program shortly after commencing as a number of other participants were still using drugs). (g) His criminal record is long and distressing. [Redacted]. He has only 10 offences on his record since he turned 18 but that is in part because he has been in custody for more than half his adult life. He has committed violent, drug and traffic offences, but his major offending relates to offences of dishonesty including serious offences of burglary and robbery. He also has a conviction for damaging property. (h) He has breached community based orders including parole orders and has been convicted for failing to appear in accordance with a bail undertaking. He has been disciplined on a number of occasions while in custody, apart from the incidents for which he was being sentenced. (i) Mr Deng expressed remorse. As well as pleading guilty, he wrote a letter of apology to the victim (though the Court was not informed whether the victim received it).

Other considerations and sentences

37. The victim of the aggravated robbery prepared a Victim Impact Statement that is discussed at [161]-[166] of R v Carberry and [171]-[173] of R v Deng. Also in evidence against Mr Deng was a Victim Impact Statement of a corrections officer: [175]-[176].

38. There is a discussion of current sentencing practice in R v Deng (at [118]-[127]) which is adopted in R v Carberry (at [170]). The sentencing judge observed that neither party was able to provide any comparable sentences in relation to the arson and that this was unsurprising given the circumstances of the offence and the cost of the damage done.

39. However, his Honour did canvas a number of cases briefly. In R v Raeyers (Unreported, Supreme Court of the ACT, Refshauge J, 6 May 2014) the offender was sentenced to twelve months’ imprisonment (discounted from 18 months) for a fire started in custody. As his Honour noted, the fire caused much less damage than in this case (it destroyed bedding and resulted in a cleaning bill of $2,173.60 and $3,245 in repairs and maintenance), but Mr Raeyers’ subjective circumstances did not require modification of the severity of the penalty as would be required for Mr Deng (or, presumably, Mr Carberry).

40. R v Sidaros (No 6) [2021] ACTSC 24 (Sidaros) concerned an arson in connection with a serious attack on a residence by four people, including Mr Sidaros. They poured petrol into the living room of the house where there were a number of residents, including a young boy, but it appeared not to have been ignited. They then lit petrol which they had poured over cars in the carport, but the fire did not spread to the residence. Mr Sidaros was sentenced to six years’ imprisonment for the first of these acts (an attempted arson with intent to endanger life), and four years’ imprisonment for the second (arson contrary to s 404(1) of the Criminal Code). We note that the arson was assessed by Mossop J as being in the mid range of objective seriousness and that it involved three vehicles of substantial value. Relevant differences between that case and those of Messrs Carberry and Deng, as observed by the sentencing judge, are the use of accelerant and the lack of subjective disadvantage.

41. In R v Millington (No 2) [2022] ACTSC 9, Mr Millington and other intruders lit petrol they had poured around the lounge room of a house they had invaded. There were a number of people in the residence. Mr Millington was sentenced to five years’ imprisonment (after a 15 percent discount) for the offence of arson with intent to endanger life (contrary to s 117(1) of the Crimes Act). This is a more serious offence than the one to which Messrs Carberry and Deng pleaded, with a maximum penalty of 25 years’ imprisonment.

42. The sentencing judge also made reference to the ACT Sentencing Database which recorded that 45 percent of the 51 arson sentences in its system are of full-time imprisonment. They range from 3 to 36 months. As his Honour noted, this tends to highlight the shortcomings of the database. At least, the sentence in Sidaros is not included.

43. At [128]-[151] of R v Deng, the sentencing judge addressed issues surrounding the imposition of sentences for offences committed in custody. As described elsewhere in these reasons, his Honour concluded that in each case the sentence for the offence of damaging property should be imposed first, then the sentence for arson (and these can be partially concurrent), and then the sentence for the aggravated robbery (for which, unlike the two other sentences, a nonparole period can be imposed). The Crown submitted on appeal that structuring the sentences in this way is lenient but not legally impermissible.

44. In relation to the sentencing purposes in s 7 of the Sentencing Act, the sentencing judge identified punishment, specific and general deterrence, rehabilitation, denouncing the conduct and recognition of the harm done to the victim as relevant. His Honour placed particular emphasis on rehabilitation, observing that it is a more certain way to protect the community than specific deterrence: R v Carberry at [178]; R v Deng at [182].

45. The sentences imposed by the sentencing judge, as well as the degree of accumulation, are set out in the table below.

Offence Maximum Starting point Sentence Accumulation penalty and discount Mr Carberry Damage 10 years’ 31 months 27 months -property imprisonment, (13%) 1000 penalty units or both Arson 15 years’ 48 months 38 months 11 months imprisonment, (22%) 1500 penalty units or both Aggravated 25 years’ 70 months 58 months 46 months robbery imprisonment, (17%) 2500 penalty units or both Mr Deng Damage 10 years’ 30 months 24 months -property imprisonment, (20%) 1000 penalty units or both Arson 15 years’ 48 months 36 months 15 months imprisonment, (25%) 1500 penalty units or both Aggravated 25 years’ 72 months 60 months 48 months robbery imprisonment, (17%) 2500 penalty units or both

Mr Carberry’s appeal

Carberry Ground 1: Errors in findings of fact

46. Mr Carberry relied for this ground on two errors of fact made by the sentencing judge. The errors are not in dispute. First, the sentencing judge erred in finding that it was Mr Carberry, rather than Mr Hall, who said, “You’re lucky the police are here otherwise I would have fucked you. Don’t call us. Don’t call the cops either otherwise we will kill you” or “we will come and kill you” when leaving the scene of the aggravated robbery. Secondly, in the context of discount, the sentencing judge erred in finding that no brief of evidence had been prepared for the damage property and arson charges when, in fact, a brief had been prepared and provided.

47. The second of these errors tended to work in Mr Carberry’s favour, in that the utility of his plea of guilty would have been greater had it meant the prosecution was not required to spend time and resources on the preparation of a brief of evidence. On the other hand, the first error tended to increase the objective seriousness of the count of aggravated robbery and thus work against Mr Carberry.

48. Immediately following the conclusion of the sentencing judge’s sentencing remarks the following exchange occurred: MS KEANEY: Yes, I did not announce my appearance. Thank you, your Honour, and I was loathe to interrupt you in your lengthy delivery of judgment but, your Honour, unfortunately it appears that your Honour has made an error in the findings of fact and particularly with reference to the agreed facts in relation to Mr Carberry's behaviour in respect of [the victim] at the end of the robbery incident. With respect, your Honour, my submission is that your Honour has inadvertently made an error and characterised the actions of Mr Hall with those of Mr Carberry, but Mr Carberry did not engage in the behaviour which included the threat of – and reference to a sexual assault. That was not on Mr Carberry's part, your Honour. MR LALOR: Paragraph 33, I think, your Honour. HIS HONOUR: I am sorry, I did do that. HIS HONOUR: I must say, Ms Keaney, that did not have much effect on me. As you will see, and I am not sure whether you are aware, but Mr Hall was sentenced to five years and some months, five months I think from memory. Mr Deng was sentenced to five years’ imprisonment and Mr Carberry has been sentenced to four years and 10 months’ imprisonment so I think that probably is reasonable in the circumstances. I accept that there was an error but it did not have – I mean, where I saw the similarity was that he had a knife and she saw that. She expressly refers to that in her victim impact statement and he then went about (a) searching the property with Mr Hall and (b) transporting the stolen items to the motor vehicles and that was more an influence. I am not – I accept that there is an error there but I really think that it would be difficult to reduce Mr Carberry's sentence much for that error but I do acknowledge that it is an error. Do you want to be heard on that? MS KEANEY: No, your Honour. I simply viewed it as my duty to bring the error - - - HIS HONOUR: No, no, I appreciate that and I am sorry you were not able to stop me before I articulated that error. I think I must have, in the pressure of getting this judgment out, read Hall as he, meaning the offender, so I apologise to that but I think in the circumstances going back over my mind about how I worked the instinctive synthesis through and the relativities of the sentences imposed, I think a further reduction would not be appropriate for the total culpability of Mr Carberry for that offence. I certainly - - - MS KEANEY: May it please your Honour. HIS HONOUR: Well we could not anyway because of the arson and damaging property but I could not – certainly could not reduce it to below four years to make a treatment order a possibility, for example. Do you wish to be heard any further? MS KEANEY: I do not think there is any submission I can make, your Honour. … HIS HONOUR: That has been significant, so. Mr Carberry, I am afraid I am human, I make mistakes. I have made two big mistakes. They are ones that could affect the sentence. I have, I think, been as just as I can to you and I think further adjustment, notwithstanding those sentences that I have imposed would make them below what is adequate and therefore unjust in the circumstances, so I hope you do not feel hardly done by. You are entitled to be concerned that there were errors that could otherwise sound in a different result but I assure you that I have done the best I can to try and reflect your culpability in the sentences actually imposed as compared, for instance, to the other co-offenders in all of those offences, all right. I do not think I can say anything further and given what I have just written and mis-stated, anything further I say will probably cause more problems for me than solve anything.

49. The Crown submitted that the errors were ‘interim errors’ in that the sentencing judge, before Court adjourned, had regard to the correct facts and determined that the sentence remained appropriate. Relevantly to this submission, although orders had been pronounced, they had not yet been entered into the records of the court. The significance of this difference is explained in the context of a civil proceeding in Lewis v Australian Capital Territory (No 8) [2018] ACTSC 218 (Refshauge J) at [13]-[19]: The entry of the judgment or order is effected by the sealing of a formal order of judgment. This is done under r 1606 of the Court Procedures Rules 2006 (ACT) and is required in some circumstances. It is this procedure which provides for the method by which a judgment or order is formally entered: Eastman v R [2008] FCAFC 62; 166 FCR 579 at 586-7, [17]. This is significant, for when a judgment or order has been entered into the records of the court or, as is sometimes described, has been “perfected” or “authenticated”, then the principle of finality applies to it: Burrell v R [2008] HCA 34; 238 CLR 218 at 224, [18]-[20]. … Thus, despite some misgiving about the basis and width of such a principle in Burrell v R at 224, [18]-[19], Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ re-affirmed the principle, saying (at [20]): Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter as at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court. This approach has been accepted in this jurisdiction when the Full Court of the Federal Court, on appeal from this Court, said in Jovanovic v R [1999] FCA 1008; 92 FCR 580 at 584, [18]: In civil cases, before a judgment or order has passed into record, the judge who gave the judgment or made the order may reconsider the decision and withdraw, alter, or vary it: Carroll v Price [1960] VR 651 at 657. After a judgment or order has been formally entered in the records of the Court or, to use the language which is sometimes invoked, ‘authenticated’, the judge is said to be functus officio. Thus, until the order in a civil case is perfected or authenticated in accordance with r 1606 of the Court Procedures Rules, the trial judge is not functus officio and may recall or reconsider the judgment pronounced, though, in appropriate cases, may be required to give the parties an opportunity to be heard, to accord with the principles of natural justice. The question of when an order is perfected in criminal cases appears to be different, as held in Jovanovic v R.

50. As adverted to in the final two paragraphs of the extract, the court in Jovanovic v R [1999] FCA 1008; 92 FCR 580 (Jovanovic v R) considered this principle to be more complicated in criminal proceedings, because (at [35]): …there is no clearly defined or obvious point at which that may be said [a sentence has “passed into record”]. As a general rule, orders are not drawn up, entered, or taken out, in criminal cases.

51. This statement sits somewhat uneasily with the fact that r 1606 of the Court Procedures Rules 2006 (ACT) applies equally to civil and criminal cases, but it is not necessary to consider whether it remains correct. The sentence had only just been pronounced, so it would not yet have been reflected on the indictment, the “bench sheet” (or “yellow sheet” as it is referred to in Jovanovic v R) or any warrant of imprisonment issued pursuant to s 12 of the Crimes (Sentence Administration Act) 2005 (ACT) or notice of sentence issued pursuant to s 84 of the Sentencing Act. On any view, it was yet to pass into record.

52. The issue that arises is whether the sentencing judge did, in fact, reconsider the sentence that had been imposed such that it was no longer infected by error.

53. Part of the significance of orders being formally recorded is that it marks the moment the court has concluded its consideration of a controversy. Prior to that moment, absent any statutory provision to the contrary, a superior court of record can vary its decision to prevent either an unjust outcome or an unnecessary appeal. For this reason, practitioners assist the court by bringing its attention to possible errors: see Burrell v R [2008] HCA 34; 238 CLR 218 at [27]; Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457.

54. Once the error was brought to the sentencing judge’s attention in this case, his Honour expressed the view that the sentence remained appropriate, offered an explanation about why this was the case, and twice invited submissions on whether it should be varied. We do not doubt that a more detailed explanation of the sentencing disposition would have followed if counsel had wished to be heard against the course the sentencing judge indicated he was taking. It may have been preferable to allow the parties time to consider whether they wished to make submissions on any resentencing, but the reasons given by the sentencing judge are adequate to show that when the orders were formally recorded, the sentencing judge considered them appropriate in light of the facts correctly understood. Accordingly, the errors do not infect the sentence and this ground must fail.

Carberry Ground 2: Manifest excess

55. Mr Carberry’s second ground of appeal was advanced on the footing that it could be inferred from the fact that the sentencing judge proceeded on the basis of a misunderstanding of the facts that was disadvantageous to the offender that the resulting sentence was higher than it otherwise would (and should) have been. So framed, it is not an independent ground of appeal, but a submission to be considered in any resentencing exercise. Accordingly, this ground too must be rejected.

56. For completeness, we note that counsel for Mr Carberry did not submit that the sentence was outside the permissible range. Given the objective seriousness of the offence, the seriousness of the attempted aggravated robbery that was taken into account, and the need for parity with Mr Hall, this was appropriate.

Crown appeals

57. Criminal sentencing is discretionary and the principles in House v R (1936) 55 CLR 499 (House) apply. The question for the appellate court is not whether it would have imposed a different sentence but whether error has been established. The error must be either a specific error of fact or law (such as adopting an incorrect principle, failing to take account of a material consideration or mistaking the facts), or an implicit error. An implicit error in sentencing exists where a sentence is ‘manifestly wrong’ such that the court can infer there has been a failure to properly exercise the discretion: R v Duffy [2014] ACTCA 53; 297 FLR 359 at [53].

58. Relevantly, in relation to an appeal on the ground a sentence is manifestly inadequate (or excessive), in Tracey v The Queen [2020] ACTCA 51, this Court observed at [37]- [38]: The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]-[59], [75]-[76]. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender. Crown Ground 1: Section 35(4)

59. Excluding sub-s (7), which provides definitions, s 35 of the Sentencing Act is as follows: 35 Reduction of sentence—guilty plea (1) This section applies if— (a) an offender pleads guilty to an offence; and (b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment. (2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters: (a) the fact that the offender pleaded guilty; (b) when the offender pleaded guilty, or indicated an intention to plead guilty; (c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty; (d) the seriousness of the offence; (e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement. Note For who may make a victim impact statement, see s 49. (3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence. (4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong. (5) For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose. (6) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence. …

60. The provision was the subject of detailed consideration in two judgments of the Court of Appeal last year: R v Newby [2022] ACTCA 20; 367 FLR 122 (Newby) and Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 (Cooke).

61. Cooke established that the effect of s 35(4) is that the strength of the Crown case is not relevant in deciding whether to impose a lesser penalty for an offence in recognition of a plea of guilty unless the Crown case is ‘overwhelmingly strong’ (at [47] (Loukas-Karlsson J (Mossop J agreeing)) and [83] (Rangiah J)).

62. In Newby the offender pleaded guilty to charges of murder and intentionally causing grievous bodily harm around two months before he was to face a four-week jury trial. There was substantial and compelling evidence that went to motive, the formation of intention and the physical acts of the offending. This included eyewitness evidence, extensive crime scene evidence and independent evidence of Mr Newby’s state of mind. The Crown submitted to the sentencing judge that the Court was precluded from affording a significant reduction in recognition of the plea because the Crown case was ‘overwhelmingly strong’ for the purposes of s 35(4). The sentencing judge, who delivered reasons ex tempore, did not refer to s 35(4) and applied a discount of between 15 and 20 percent. The Crown appealed on grounds including that the sentencing judge failed to consider the provision.

63. In finding that this ground was made out, the Court referred to Abbas Elzein v R; Ahmad Elzein v R; Bilal Doughan v R [2021] NSWCCA 246 (Abbas) where Bellew J (with whom Bell P and Walton J agreed) observed (at [231] to [232]) that: The extent of the duty [to provide reasons] will depend upon the circumstances of the individual case [Mifsud v Campbell (1991) 21 NSWLR 725 at 728) per Samuels (Clarke JA and Hope JA agreeing)]. In that regard, Mahoney JA said in Soulemezis [at 270]: … In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them. The corollary of that proposition is that if an issue is the subject of a specific submission made to a judge in terms which call for a reasoned consideration of it, that issue must be addressed in the reasons, and a definitive conclusion expressed.

64. The Court did not consider the sentencing judge’s finding that ‘[t]he case against the offender for murder on the basis of intention to cause serious harm was strong, as it included eyewitness testimony, admissions by the offender, and DNA evidence’ constituted the necessary engagement with the issue of the application of s 35(4) (at [43]). The Crown’s submission was compelling and, if it were to be rejected, called for ‘a clear and express explanation as to why the prosecution case was not found to be overwhelmingly strong’ (at [43]). The failure to engage with the submission was an error (in the House sense) which, subject to the discretion not to intervene, called for resentencing (at [46]).

65. The Crown’s case in respect of Mr Carberry bears relevant similarities to Newby. In written submissions to the sentencing judge, the Crown put its position in relation to discount as follows: [T]he offender pleaded guilty to the arson and damage property charges at an early stage. That was probably, in part, a reflection of the strength of the case against him. However, s 35(4) Crimes (Sentencing) Act requires the court not to make a significant reduction for the plea where (as here) the case against him was overwhelmingly strong. Not only was he caught red handed by Corrections staff as he was setting the remand unit alight and damaging property but he was also captured by CCTV cameras.

66. Mr Carberry’s written submissions addressed the issue of discount similarly briefly: Mr. Carberry has ultimately entered a plea of guilty after negotiations. Mr. Carberry joins the submission of his co-accused Mr. Deng, that the Court would allow the full discount for his plea. It is submitted that there was not an overwhelming case against Mr. Carberry.

67. Neither party’s written submissions developed further (or in Mr Carberry’s case, at all) on what it was that made the Crown case overwhelmingly strong or something short of that. The issue of discount does not appear to have been raised during oral submissions.

68. In its appeal against Mr Carberry’s sentence, the Crown contends that the sentencing judge did not consider its submission that s 35(4) applied. The relevant passage of his Honour’s remarks is as follows ([182]-[188]): Mr Carberry has entered pleas of guilty to the offences. This is important and required to be taken into account, both as a factor and also to consider whether in specified circumstances it can reduce the sentence to be imposed. In this case, the pleas of guilty for the offences of arson and damaging property were entered in the ACT Magistrates Court, though at the fifth mention. This is a relatively early plea, although a brief of evidence had already been prepared. [This sentence was amended from the transcript, where the sentencing judge had erroneously stated that a brief of evidence had not been prepared]. The plea for the offence of aggravated robbery was entered after the Criminal Case Conference in this Court, after pleas of not guilty were originally entered. Nevertheless, the resolution meant that a number of charges did not proceed. Thus, there was significant utilitarian value of all the pleas, though more so for the earlier pleas. Nevertheless, especially for the offence of arson and damaging property, the evidence of the Crown was very strong, with CCTV footage and many witnesses. Mr Hall also pleaded guilty to two transferred charges which must have been relevant to the severity of the sentence as they were concurrent with the sentence for the aggravated robbery. This is relevant to the issue of parity. Mr Carberry showed commitment to his possible rehabilitation through a Treatment Order, though this has not yet been translated into any actual action that he has taken. Mr Carberry has expressed some remorse and this is also evidenced in his plea of guilty and that must also be taken into account. No remorse was mentioned in the sentencing of Mr Hall, though he also pleaded guilty and that was taken into account.

69. It was submitted on behalf of Mr Carberry that the sentencing judge did not fail to consider s 35(4). This was said to be evident from the analysis of the strength of the Crown’s evidence at the fourth paragraph of the above extract. However, consistent with Newby, what was required by the Crown’s submission was a clear and express explanation of whether (and why) the case was, or was not, overwhelmingly strong. Having noted the strengths of the Crown’s case, a negative answer to that question would have demanded some explanation of the weaknesses that caused the case to be less than overwhelmingly strong. The absence of any such explanation leaves us satisfied that his Honour did not consider and reject the submission that s 35(4) applied. Therefore, the Crown must succeed on this ground of appeal against Mr Carberry. However, resentencing is subject to the discretion not to intervene. We discuss these matters below, after resolving the present ground in respect of Mr Deng and considering the issue of manifest inadequacy. Unless there is a reason to exercise the discretion not to intervene, this Court must resentence. Before considering these matters, it is convenient to turn to Mr Deng.

70. Crown Ground 1 was advanced differently against Mr Deng because the Crown did not submit to the sentencing judge that the case against Mr Deng was overwhelmingly strong. It was conceded that this meant the obligation to give reasons in the sense discussed in Abbas and Newby did not arise. Instead, the Crown submitted that the sentencing judge had in fact found its case was overwhelmingly strong; and that, having made that finding, his Honour was compelled by the terms of s 35(4) not to make any significant reduction to the sentence in recognition of the plea of guilty.

71. The relevant part of the sentencing judge’s remarks is as follows (at [185]): Pleas of guilty to the offences of arson and damaging property were entered in the Magistrates Court, though not until the eighth mention. No plea of not guilty was entered, so there was no need for the prosecution to prepare a Brief of Evidence. This justifies a substantial discount, though the Crown case was no doubt very strong, if not overwhelming, with CCTV footage and many eyewitnesses to the events.

72. There was considerable discussion of whether the parenthetical remark ‘if not overwhelming’ should be read as clarifying that the Crown case does not rise above ‘very strong’ (as submitted for Mr Deng) or as elevating it into the category of ‘overwhelmingly strong’ (as submitted for the Crown). In our view, a very strained reading of the phrase is required for it be taken as a positive finding that the Crown case was overwhelmingly strong.

73. The negative clause ‘if not’ is commonly used to introduce more extreme terms. Sometimes it is used to suggest the more extreme term might be apt (where it means, in effect, ‘perhaps even’), and at other times it clarifies that the more extreme term is not meant (where it means, in effect, ‘but not’ or ‘although not’). As an example of the former usage, the Oxford English Dictionary gives ‘researchers have attempted to interpret many, if not all, human diseases in evolutionary terms’. Its example of the latter usage is from the nineteenth century periodical Christian Remembrancer: ‘The style of Bede, if not elegant Latin, is yet correct, sufficiently classical’.

74. The latter usage cannot be the sense in which the sentencing judge used ‘if not’ because the clause is followed by an observation that there ‘was CCTV footage and many eyewitnesses to the events’. It would be strange to follow a conclusion that the Crown case was not overwhelmingly strong with reasons why that might in fact be the case. It is thus tolerably clear, in our view, that the sentencing judge intended to convey that the Crown case was ‘no doubt very strong, perhaps even overwhelming’.

75. However, used in this sense, the clause necessarily imports an element of doubt. It suggests insufficient information is available to be able to state something conclusively, or that the possibility of something has not been the subject of detailed consideration. This sentence of his Honour’s reasons therefore does not, in our view, express a conclusion one way or the other as to whether the Crown case met the threshold expressed in s 35(4).

76. Nor is it possible to conclude that, without having consciously considered s 35(4), the sentencing judge made a finding (‘the Crown case is overwhelmingly strong’) that objectively brought s 35(4) into play. That is clear, at least, because his Honour stopped short of expressing a conclusion that the intensifier ‘overwhelmingly’ was apt. There is also some doubt as to whether a finding expressed in those terms, but without reference to s 35(4), would engage the duty that the provision imposes. That is because, as discussed in Newby at [31], s 35(4) uses the term ‘overwhelmingly’ in a sense that is slightly different from its primary dictionary definition; and the term is one whose precise meaning can be affected by its context.

77. We do not understand the Crown to submit that, having concluded that the Crown case might be described as overwhelming, the sentencing judge erred by not asking himself whether it was ‘overwhelmingly strong’ for the purposes of s 35(4). That submission would face some difficulty in a case where no submission concerning s 35(4) had been made. Nor (properly) was it submitted that this Court should consider for itself whether the Crown case was overwhelmingly strong, without first establishing that the sentencing judge had erred by not doing so.

78. Accordingly, this ground must fail against Mr Deng.

Crown Ground 2: Manifest inadequacy

79. As this Court observed in R v UG [2020] ACTCA 8; 281 A Crim R 273 at [43], in considering whether the sentences are unreasonable or plainly unjust it is important to not to be distracted from the task at hand by criticism of specific aspects of the sentencing judge’s remarks. A contention that a sentence is manifestly wrong necessarily proceeds by inference from the final result, rather than by reference to specific errors.

80. As noted at [6] above, the Crown contended the sentences were manifestly inadequate in respect of the charges of arson; the total head sentences (but only as a consequence of the inadequacy of the arson sentence); the concurrency between damage property and arson (but only in Mr Carberry’s sentence); and the effective nonparole period. We address the contentions in that order.

Arson

81. The maximum penalty of 15 years’ imprisonment for arson reflects the legislature’s view of its seriousness: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31]. We respectfully agree with the sentencing judge’s finding that this arson was “a serious version of the offence with significant circumstances of aggravation” but consider that the sentence imposed, taking into account all the relevant considerations, does not reflect that.

82. Irrespective of the offenders’ perception as to their grievances, we would emphasise that the offending conduct was motivated by anger and a wish to cause damage to the building in which the offenders were detained.

83. As described by the sentencing judge, the offenders’ behaviour started to escalate after they were confronted by corrections officers about their intoxication at around 3:00pm. A full lockdown was ordered so that officers could assist in managing the disturbance. Rather than complying with that lockdown the offenders’ behaviour escalated further. It continued for many hours. A number of detainees were concerned for their safety, and the safety of others who remained locked in their cells. Shortly after 6:00pm, when the offenders had been in conflict with corrections officers and damaging property for around three hours, Mr Deng set fire to some toilet paper and placed it into the Officer’s Station through a window panel Mr Carberry had broken. The offenders did not leave matters there. The agreed facts record that they continued (literally) to add fuel to the initial fire, impeded efforts to extinguish it, and started further fires over a significant period. Throughout the offending the offenders’ anger was evident in the abuse and threats they yelled at corrections officers. The Statements of Facts included the examples “I will kill all your families”, “I’ll smash your head in you dog cunt”, and “I will fucking kill you with this and shove it down your throat”. This was described by the sentencing judge as a “rampage”. It put detainees at risk and some were also affected by smoke.

84. The fire had a significant impact on a public institution and public resources. In addition to the millions of dollars needed for remediation and the fact that ACT Fire and Rescue needed to be deployed, a significant part of the Territory’s only adult correctional centre was unable to be used while that remediation took place.

85. General deterrence is a paramount consideration in relation to offences committed in prison, especially in the ACT because there is a single prison and a single, centrally located, court system: Horan v O’Brien [2021] ACTSC 323 at [16]. Deterrence, along with denunciation, takes on particular importance as a purpose of sentencing in a case where the offence involves partial destruction of the facility in which the offenders are being lawfully detained, accompanied by threats to corrections officers. This follows from the centrality of the criminal justice system in an orderly society where the rule of law is a fundamental value. It is also reflected by the fact that Parliament has excluded parole for offences committed in custody, and limited the circumstances in which sentences in relation to such offences can be served concurrently with others: Sentencing Act, ss 64, 72.

86. It has also been recognised that deterrence is to be given substantial weight in respect of the offence of arson, in part because it is easy to commit and can have very destructive, if not tragic consequences: R v Booth [2004] ACTCA 21 at [26]; R v Catts (1996) 85 A Crim R 171 at 176. Injury or loss of life was more than a theoretical risk in this case where detainees were locked in their cells and would have been unable to escape had the fires lit by the offenders spread quickly.

87. The sentencing judge placed emphasis on the offenders’ subjective circumstances, which must be taken into account in the process of instinctive synthesis. We note and agree with the sentencing judge’s assessment (R v Carberry at [133]) that: [T]here was respectively little to distinguish Mr Deng’s personal circumstances from those of Mr Carberry, though the childhood experience of Mr Deng was more horrific with the experience of war and refugee internment.

88. In relation to rehabilitation, it is necessary to be somewhat guarded about the offenders’ prospects. Their youth and eagerness to participate in the Drug and Alcohol Sentencing List are reasons to be optimistic. On the other hand, as outlined above, both offenders have significant criminal histories, histories of non-compliance with court orders and have committed serious offences while in custody.

89. Mr Carberry received a sentence of three years and two months’ imprisonment for arson (reduced from four years’ imprisonment for plea of guilty) and Mr Deng received a sentence of three years’ imprisonment (also reduced from four years). Bearing in mind that the maximum penalty for arson is 15 years’ imprisonment, these sentences do not adequately reflect the seriousness of the offending, despite the subjective factors outlined above.

Concurrency

90. As set out in the table at [45․], in sentencing both offenders, the sentencing judge structured the sentences so that the sentence for damage property for Mr Carberry was wholly concurrent with sentence for arson, and for Mr Deng, concurrent except for three months. The sentencing judge also afforded 12 months of concurrency between the arson and aggravated robbery sentences. Given that concurrency, and the degree of concurrency between the arson and aggravated robbery offence, Mr Carberry is serving no imprisonment attributable solely to the arson offence. For Mr Deng, the concurrency results in only three months being attributable solely to the arson.

91. Although the Crown only particularised this ground as including inappropriate concurrency in the notice of appeal filed against Mr Carberry’s sentence, it submitted that the structure of the sentences, and the orders made as to concurrency of the sentences, contributed in both cases to the total sentences being manifestly inadequate. We understood this to reflect a position that only in Mr Carberry’s sentence was the concurrency itself contended to be so lenient as to reveal error. In each appeal, concurrency is relevant to manifest inadequacy more generally. That said, this aspect of the consideration is rather artificial because, having concluded that the arson sentence is manifestly inadequate, that necessarily impacts on the issue of concurrency/accumulation on the total sentence imposed. Nonetheless, it is appropriate to consider this issue as the principles bear upon the resentencing process.

92. There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, at [56]. In determining questions of accumulation or concurrence, his Honour was required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill v The Queen (1988) 166 CLR 59. A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length): R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17]. Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47 at [26]. Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [49].

93. Section 72 of the Sentencing Act adds an additional layer of complexity. It operates to require that a sentence for an offence committed while an offender is in custody be served consecutively with the existing sentence unless the court directs the sentences be served concurrently or partly concurrently. The sentencing judge proceeded on the basis that a direction may be required for two sentences for offences committed in custody to be served concurrently: Carberry at [198]. As this Court held in The Queen v Rappel [2019] ACTCA 11 at [24]: The purpose of s 72 of the Crimes (Sentencing) Act is clearly enough to ensure that, ordinarily, those already within the penal system be given no leniency by way of concurrency with an existing sentence should they offend again while in custody. A departure from such a clear statutory statement of a sentencing norm should not lightly be countenanced. Within the jail community, further offending must be seen to carry the consequence of a full sentence being imposed as an almost inevitable outcome, so as to effectively deter further offending, rather than being seen to be subject to an effective discount because of an existing sentence. Those already in custody will then have the strongest of incentives not to transgress further and thereby extend their incarceration, the date of release obviously being of vital importance. If a departure from the statutory norm is considered appropriate in the exercise of the discretion retained to do so, it should be explained so that all concerned, including custodial authorities, those affected by the conduct, and an appeal court, understands why that norm has been departed from.

94. The arson and damage property offences in the present cases clearly come within s 72(1). Further, in respect of the sentence to be imposed for each offence committed in custody, the sentence imposed for each of the other offences was an “existing sentence” as defined by s 70(1)(a)(iii). Prima facie, therefore, there was to be no concurrency between any of the individual sentences imposed in the present case (s 72(2)).

95. Under s 72(3), the court may direct that the “primary sentence” be served wholly or partly concurrently with an “existing sentence”. The sentencing judge made such a direction, as between the property damage and arson offences, and between the arson and the aggravated burglary. Absent such a direction, it would appear that there was no scope for concurrency between the aggravated burglary and the offences committed in custody.

96. A degree of concurrency was justifiable in relation to the property damage and arson offences, as they arose out of the same course of conduct, and a direction to that effect is understandable. However, many acts done in the commission of the damaging property offence did not form part of the offence of arson. This included very serious offending such as breaking into the Officer’s Station in the Remand Unit and forcing officers to retreat. To make the two wholly concurrent, as was case for Mr Carberry, especially given the legislative regime concerning offences in custody, suggests an error in principle.

97. The Crown does not allege any specific error by the primary judge in this regard (notwithstanding that the arson, at least, would seem to come within s 72(4) and thus require “special circumstances” to exist before a direction under s 72(3) can be made). Instead, these matters are agitated as aspects of manifest inadequacy. Although, as observed above, a direction in relation to the damage property and arson may be understandable, in so far as it related to the arson and aggravated robbery it is more problematic. This is particularly so given the sentencing judge appears to have considered totality as a basis for partial concurrency (without addressing why that is a special circumstance), in a context where other orders as to concurrency resulted in the property damage offence being subsumed in the penalty for the arson.

98. The sentences as structured by the primary judge result in each offender serving (at most) an additional four months’ imprisonment in respect of the aggravated burglary after the sentences imposed for the offences in custody have been completed, before being eligible for parole. In our view, this does not adequately reflect the policy reflected in s 72, or the particular importance of deterrence in cases involving offences committed while in custody.

99. Significantly, as explained above, the process of considering the issue of concurrency was also on a flawed foundation, as the sentence imposed for the arson offence is manifestly inadequate.

Total head sentence

100. Given the nature of the offences for which the offenders are sentenced, the head sentences, like the individual sentences for arson, are manifestly inadequate.

101. Neither Mr Carberry’s sentence of seven years’ imprisonment, nor Mr Deng’s sentence of seven years and three months’ imprisonment is capable of properly reflecting the totality of their criminal behaviour.

Nonparole period

102. The effect of s 64(2) of the Sentencing Act was not in dispute and is mentioned above at [4]. The sentencing judge considered himself precluded from setting a nonparole period in respect of the offences committed in custody for the reasons set out in Biddle v Gatherer [2021] ACTSC 236; 17 ACTLR 42. However, in order not to offend the principle of totality, his Honour appears to have set a nonparole period for the aggravated robbery that, in substance, reflects the overall sentence rather than just the sentence for the aggravated robbery. That led to nonparole periods of 28 percent for Mr Carberry (50 percent of the total sentence) and 30 percent for Mr Deng (52 percent of the overall sentence).

103. This Court set out the principles applicable to the setting of nonparole periods in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [92]-[104] (Toumo’ua). A nonparole period must be fixed having regard to the sentencing purposes and considerations found in ss 7 and 33 of the Sentencing Act. A focus on prospects for rehabilitation is generally important, but it must not be allowed to undermine other sentencing purposes.

104. Given the circumstances of the offence to which the nonparole period applied, it went beyond very lenient to impermissible. As already outlined at [88․], it is necessary to be guarded about Messrs Deng and Carberry’s prospects for rehabilitation.

Residual discretion and resentencing

105. The Crown bears the onus of establishing that the residual discretion to dismiss an appeal should not be exercised: CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 at [66] (CMB). The question of whether it has discharged that onus is complicated somewhat by the failure of Crown Ground 1 in respect of Mr Deng.

106. Counsel for Mr Deng submitted that Mr Deng may have sought to present evidence showing deficiencies in the Crown case had it been submitted, in the first instance, that the Crown case was overwhelmingly strong. While we have doubts as to whether these attempts could have been successful, we do not need to explore the issue because we have decided that Crown Ground 1 fails in Mr Deng’s case.

107. The failure of this ground in relation to Mr Deng is significant because it is well established that “a powerful consideration against allowing a Crown appeal would be the resultant creation of unjustifiable disparity between any new sentence and an unchallenged sentence previously imposed upon a co-offender”: Green v R; Quinn v R [2011] HCA 49; 244 CLR 462 at [37]. Further, in the light of the recent discussion of s 35(4) in Newby, for us to embark on an analysis of whether the Crown case against Mr Carberry was overwhelmingly strong would be unlikely to provide significant guidance to sentencing judges.

108. The appropriate course is to limit our resentencing to remedying the manifest inadequacy of the sentences imposed. A similar approach was adopted by Mossop and Charlesworth JJ in R v Stacker [2020] ACTCA 34 at [29]. Intervention, at least in this more limited way, is required to provide guidance for sentencing serious arsons and to ensure that an appropriate sentence is imposed to reflect the sentencing purposes in the Sentencing Act. The Crown has established that the residual discretion to dismiss the appeal should not be exercised.

109. The Court must resentence by exercising the sentencing discretion afresh. We have considered the material that was before the sentencing judge. In general, we agree with his Honour’s description of the subjective circumstances of each respondent (although not the weight he attached to them). As explained above, we also agree with his Honour’s characterisation of the property damage and arson offending as particularly serious, and stress the matters to which we have referred at [82․]-[84․] above. The description of the aggravated robbery is also accepted; that it is made a more serious version of the offence as there were three offenders, each carrying weapons that were life threatening, the property taken was substantial and valuable, there was some planning as the offenders acquired the weapons and had information that there may be drugs and money there, which the sentencing judge found to all be significantly aggravating features.

110. For reasons we have outlined above, general deterrence and denunciation must be given great weight in sentencing the offenders for the property damage and arson offences. General deterrence also is an important consideration for offences of aggravated robbery. Bugmy principles remain applicable, and we have taken them into account. Rehabilitation is also an important consideration in sentencing, especially where (as here) the offenders are still relatively young. However, the prospects of rehabilitation here are somewhat guarded. Given the importance of general deterrence to the sentencing of these offences, the weight given to the subjective features, relatively speaking, is necessarily less.

111. The head sentences for the damaging property and the aggravated robbery were not challenged and in our view were appropriate. They remain the same length as imposed by the sentencing judge for both offenders.

112. In relation to the arson offences, the sentences imposed are manifestly inadequate. Taking into account all relevant considerations, in light of the assessment of the offending as described above at [81]-[89․], we will increase Mr Carberry’s sentence to imprisonment for four years and six months (discounted from five years and ten months in recognition of the guilty plea). We will increase Mr Deng’s sentence to imprisonment for four years and four months (discounted from five years and eight months in recognition of the guilty plea). Mr Carberry’s sentence is slightly longer consistent with the sentencing judge’s approach, given the assault offences on the schedule were taken into account on sentence. The discounts are generally consistent with the approach of the sentencing judge.

113. As explained above, the sentencing judge made a direction pursuant to s 72(3) as to partial concurrency between the offence of arson and property damage, and arson and aggravated robbery. As that direction has not been challenged, we apply that approach (noting that we would not necessarily have made a direction in relation to the aggravated robbery).

114. We have also adhered to the approach taken below of structuring the sentences so that the term of imprisonment for the aggravated robbery commences last. In imposing the sentences, we have taken into account the principle of totality.

115. We have imposed a nonparole period for the aggravated robbery (the other offences being parole excluded) which would, considered in isolation, appear unusually short. Although this approach may sit somewhat uneasily with the legislative policy concerning offences committed while in lawful custody, applying the principle of totality to all the circumstances of these cases, it is appropriate to do so. Given the sentencing judge’s findings, these offenders would benefit from a lengthy period on parole.

Orders

116. Our orders are as follows.

117. In respect of the appeal brought by Mr Carberry the appeal be dismissed.

118. In respect of the appeals brought by the Crown, the appeals be allowed and the offenders be resentenced as follows.

Mr Carberry

119. On the charge of damaging property (CC2021/6926) Mr Carberry is convicted and sentenced to imprisonment for two years and three months (discounted from two years and seven months in recognition of the guilty plea) to commence on 10 January 2021 and expire on 9 April 2023.

120. On the charge of arson (CC2021/6929) Mr Carberry is convicted and sentenced to imprisonment for four years and six months (discounted from five years and ten months in recognition of the guilty plea) to commence 10 January 2022 and expire on 9 July 2026.

121. On the charge of aggravated robbery (SCCAN2021/93) Mr Carberry is convicted and sentenced to imprisonment for four years and ten months (discounted from five years and ten months in recognition of the guilty plea) to commence on 10 January 2025 and expire on 9 November 2029.

122. We fix a nonparole period of two years to commence on 10 January 2025 and expire on 9 January 2027.

Mr Deng

123. On the charge of damaging property (CC2021/6789) Mr Deng is convicted and sentenced to imprisonment for two years (discounted from two years and six months in recognition of the guilty plea) to commence on 15 August 2021 and expire on 14 August 2023.

124. On the charge of arson (CC2021/6792) Mr Deng is convicted and sentenced to imprisonment for four years and four months (discounted from five years and eight months in recognition of the guilty plea) to commence on 15 August 2022 and expire on 14 December 2026.

125. On the charge of aggravated robbery (CC2020/12196) the offender is convicted and sentenced to imprisonment for five years (discounted from six years in recognition of the guilty plea) to commence on 15 December 2024 and expire on 14 December 2029.

126. We fix a nonparole period of two years and eight months to commence on 15 December 2024 and expire 14 August 2027.

I certify that the preceding one hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 20 July 2023

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Amendments

20 July 2023 Replace “2027” with “2026” Paragraph: [124]