R v Edigarov

Court of Criminal Appeal (NSW)|2001-10-05|Before: Wood CJ, Studdert J, Bell J

CITATION : R v Edigarov [2001] NSWCCA 436 FILE NUMBER(S) : CCA 60328/01 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 5 October 2001

PARTIES : Regina Mikhail Edigarov JUDGMENT OF : Wood CJ at CL at 1; Studdert J at 75; Bell J at 76

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 60328/01 LOWER COURT JUDICIAL Mahoney DCJ OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60328/01 WOOD CJ AT CL STUDDERT J BELL J

FRIDAY 5TH OCTOBER 2001 REGINA V MIKHAIL EDIGAROV

Judgment 1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act (NSW) 1912, in respect of sentences imposed by Mahoney DCJ in the Sydney District Court on 19 April 2001. On that occasion his Honour had two separate series of offences to deal with, each arising out of violence directed by the respondent towards his wife.

OFFENCES OF 3 AUGUST 1999 2 On this day the respondent assaulted his wife in the presence of their three year old daughter, by pushing her against a refrigerator, and by pursuing her into the bedroom, where he seized her by the head and pushed her to the floor. After throwing and kicking articles around the bedroom he left the premises. His wife and young daughter went to a friend's unit for safety. He arrived there an hour or so later and forced his way into the bedroom where she was hiding. He demanded that she return home and threatened to kill her. After a struggle he was ejected from the unit. However, he remained outside yelling for his wife to come out and banging on the door. 3 Police were called to deal with the situation. When he attempted to push past them, to get to his wife, attempts were made to arrest him. In the course of doing so, one of the officers involved, Constable Ian Ward, who was trying to handcuff him and place him into the back of a police wagon, was pushed. He lost his footing and fell to the ground. As a result of this fall he suffered serious fractures to his lower leg and ankle. Three other police were also assaulted by the respondent before they were able to effect his arrest. 4 Arising out of these incidents, the respondent was charged with the following offences: (a) Common assault of his wife (s 61 of the Crimes Act 1900 for which a maximum penalty of imprisonment for two years is prescribed). (b) Assault police officer in the execution of his duty, thereby occasioning him actual bodily harm (S 60(2) of the Crimes Act 1900 for which a maximum penalty of imprisonment for seven years is prescribed). 5 To these offences he pleaded guilty upon the date fixed for his trial, namely 5 March 2001. Four other offences involving the assault of police officers in the execution of their duty, with intent to resist arrest (s 58 of the Crimes Act (NSW) 1900 for which a maximum penalty of five years is prescribed) were taken into account on a form 1. 6 Unfortunately, neither the record, or the reasons for sentence, indicate in respect of which of those two counts the form 1 matters were taken into account. In some ways the observations made by his Honour tend to suggest that he regarded it is as appropriate to take them into them account in relation to both counts. If so that would have been impermissible. Whatever happened there does appear to have been procedural error in relation to this aspect of the case. 7 Following upon these events, and pending the sentence, the respondent was released to bail and became the subject of an apprehended domestic violence order, which was obtained in the Local Court, upon his wife's application, on 5 July 2000.

OFFENCE OF 7 OCTOBER 2000 8 Upon this day the respondent kidnapped his wife while she was walking along the street with her daughter. This he achieved by forcing her into the boot of his motor vehicle, which he closed, despite the discomfort and humiliation of being treated in this way, and despite the fact that the day was very hot, with the temperature being in the thirties. The child was placed in the passenger space of the vehicle. 9 While in the boot she endeavoured to use her mobile phone to obtain help. The respondent threatened to kill her if she continued to use the phone. When she began to call out for help he turned up the volume of the car radio so as to drown out her cries. At some stage she managed to contact a friend whom she asked to contact the police. In fact they had been alerted earlier by a bystander who had observed the kidnapping and taken down the registration number of the respondent's vehicle. 10 Upon arriving at the home of his parents the respondent repeatedly punched and kicked his wife and pushed her head against a wall. She suffered cuts and abrasions to her feet and left knee; bruising to her left knee and right shoulder; grazes to her right elbow, neck, back and shoulder, and an injury to at least one finger on her right hand and possibly to two fingers. 11 She eventually managed to escape to a neighbouring unit where she contacted police. By the time the police and an ambulance arrived the respondent had left the scene. However, later that day he surrendered himself. When interviewed he made admissions as to the commission of the offence, although asserting that the degree of violence involved was not as great as that alleged by the victim, and also suggesting that his intention had only been to take her to his parent's place so that he could talk to her about their relationship. 12 He was then taken into custody where he remained bail refused until he was sentenced on 19 April 2001 (by which time a period of six months and 12 days had passed). 13 He pleaded guilty to the offence of kidnapping, for which the maximum penalty was imprisonment for 20 years, in the Local Court. He adhered to that plea in the District Court.

THE SENTENCES 14 The sentences imposed by his Honour were as follows: (a) common assault of his wife - Six months imprisonment from 7 October 2000 to 6 April 2001; (b) assault police officer occasioning actual bodily harm - Imprisonment for 18 months to commence on 7 October 2000 and to expire on 6 April 2002, suspended upon the condition that he enter into a good behaviour bond for the term of the sentence; (c) kidnapping - Imprisonment for two years to commence from 7 October 2000 and to expire on 6 October 2002, with a non parole period of six months and 12 days, also commencing from 7 October 2000, and expiring on the day on which sentence was pronounced, namely 19 April 2001. 15 In imposing the sentence for kidnapping his Honour found that there were special circumstances in that all of the offences of the respondent were "by-products of (his) anger and frustration and disappointment at the failure of (his) marriage and at the imposition of the apprehended violence order against (him)". 16 The net result was that, for this series of offences, the respondent was required to serve a custodial term of six months and 12 days and to be to be subject to supervision, upon parole, for the balance of the sentence for the kidnap offence. (ie in round terms, a further period of 18 months); and, to be subject to the possibility of being called up in relation to the suspended sentence, (for a period in round terms of 12 months from the date of his release to parole for the kidnap offence).

THE APPEAL 17 The Director of Public Prosecutions signed a notice of appeal on 30 May 2001, which was served upon the respondent on 1 June 2001. He has in the meantime continued to live in the community without re-offending. 18 It is the Crown submission, in summary, that there were five identifiable errors in the sentencing exercise undertaken by his Honour, leaving aside any procedural error related to the form 1 matters, namely that: (a) The suspended sentence was imposed in breach of s 12(2) of the Crimes (Sentencing Procedure) Act 1999, since the order for suspension was made in circumstances where the respondent was subject to another sentence of imprisonment which had not itself been suspended. (b) His Honour failed to give sufficient weight to the objective seriousness of the combination of offences involved; (c) His Honour failed, in relation to the kidnap offence, to give sufficient weight to the aggravating circumstances that it was committed while the respondent was upon bail and also while he was subject to an apprehended violence order which had been granted for the protection of the victim; (d) The overall sentencing order displayed such a degree of leniency as to demonstrate error of law; and (e) The factors identified as special circumstances justifying a departure from the ratio between the non parole period and the head sentence specified by s 44(2) of the Crime (Sentencing Procedure) Act 1999 did not qualify as such. 19 The respondent submitted, in reply to these submissions, that the sentences imposed were not, in the circumstances of the case, manifestly lenient, and alternatively, that if error of law was displayed, either in relation to the suspended sentence or otherwise, this Court should not, in the exercise of its discretion, or by reference to the principles of double jeopardy, intervene so as to return the respondent into custody. 20 In particular it was submitted: (a) It was not clear that the order to suspend the sentence for the assault of the police officer was in breach of s 12(2) of the Crimes (Sentencing Procedure) Act 1999; (b) the objective seriousness of the offence for which the suspended sentence was imposed was reduced by the circumstance that the police officer's injury arose as the result of an accident rather than as the result of deliberate intention on the respondent's part to occasion him harm; c) the assault of the respondent's wife and the kidnap needed to be assessed in the context of the respondent's adverse psychological reaction to their marital problems and, in particular, his resentment at having been rejected after working extremely hard to bring her parents to Australia. It has been further submitted, in that regard, that he was over-tired, confused or otherwise mentally less responsible for his acts than otherwise might have been the case; (d) the various offences involved in the assault of the police officers were properly to be considered as part of a single episode of criminality; (e) for the kidnap offence the respondent was entitled to the benefit of the utilitarian value of the plea, in respect of which the strength of the Crown case had no relevance; (f) the experience of having served six months in custody during which time the respondent had undergone an anger management course, was sufficient by way of punishment and personal deterrence for him, particularly as he had never previously served a custodial sentence; and (g) to return him to custody would be counter-productive to the interests of securing the respondent's rehabilitation and reconciliation to his current situation. 21 The subjective circumstances, as found by his Honour, are relevant for the determination of this appeal. In summary they reveal that the respondent was aged 30 years when he appeared for sentence. He had been born in Djagistan and came to Australia in 1992 at the age of 22 years. His wife joined him here shortly before their marriage in 1995. They had one child in 1996 and separated in August 1999 following a period of marital disharmony. 22 In his home country he had been trained as a food technician and had seen military service. In Australia he had been employed as a process worker and part time taxi driver and he had been working long hours to earn sufficient money in order to support his wife and to bring her parents to Australia. 23 A report supplied by a clinical psychologist, Warwick John Taylor, for sentencing purposes, suggested that he had some passive-aggressive characteristics in his personality adjustment, was lacking in significant insight, and had a reasonably low predisposition to re-offending, but needed psychotherapy and supervision in order to gain a greater degree of understanding of himself and to assist in developing more adequate emotional and behavioural controls. He was not found to be suffering from any significant emotional disturbance or personality disorder. 24 He had no prior criminal record of any relevance save for one earlier conviction for the contravention of an apprehended violence order. In his favour was the fact that he surrendered himself to police after the October 2000 offence, and the fact he had undergone an anger management course while waiting for sentence. 25 Notwithstanding the very careful and comprehensive submissions of Mr Craigie SC, for the respondent, I am of the view the Crown appeal has been made good. (a) Suspension of the sentence for the assault occasioning actual bodily harm. 26 By s 12(2) of the Crimes (Sentencing Procedure) Act 1999 it is provided that an order suspending a sentence: "may not be made in relation to a sentencing of imprisonment if the offender is subject to some other sentence of imprisonment that is not the subject of such an order." 27 As has already been noted, the suspended sentence was here imposed so as to take effect, in the first place, concurrently with the period during which the respondent was to be taken as having been in custody serving the sentences for the assault of his wife, and for the kidnapping of her, and also as to take effect, in the second place, concurrently with the period during which he was directed to be released upon parole for the kidnapping offence. 28 The submission advanced by Mr Craigie SC was to the effect that the section should be given a beneficial interpretation, at least in relation to the second of these periods, on the basis that the prohibition was intended to take effect only in relation to any part of another sentence which required the offender to serve time in prison. If that was so then, it was submitted, the prohibition would not apply to the period when the offender was subject to release on parole in respect of another sentence. 29 In my view this argument faces two difficulties. The first arises by reason of s 132 of the Crimes (Administration of Sentences) Act 1999 which provides that: "An offender who, while serving a sentence, is released on parole in accordance with the terms of a parole order is taken to continue to serve the sentence during the period: (a) that begins when the offender is released, and (b) that ends when the sentence expires or (if the parole order is sooner, revoked) when the parole order is revoked." 30 While it was submitted that this provision is merely a deeming provision for a particular purpose related to the administration of sentences, and should not be given any wider effect, that submission cannot, in my view, be made good. The Act within which it is contained must be regarded as cognate legislation for the Crimes (Sentencing Procedure) Act 1999. In accordance with well established principles of statutory interpretation it is permissible to refer to cognate legislation as far as that may throw light on any ambiguity. 31 Secondly, the interpretation suggested would require the prohibition to operate in escrow to be reactivated if, and when, the parole for the other sentence was revoked thereby returning the offender to custody. I do not consider that the legislation contemplated or intended such an ambulatory operation of s 12(2). 32 Rather, it appears to me, it was intended to preclude suspension of a sentence during such time as any other sentence was in force which was expressed to be one of imprisonment, both during its parole and non parole phases. 33 Reference to other portions of legislation does not really assist in the resolution of this question. As far as the researches of counsel have shown the only provision in the Act which provides a definition, of a "sentence of imprisonment" is s 55(4) of the Crimes (Sentencing Procedure) Act 1999 which in the following terms: "In this section, a reference to a sentence of imprisonment is taken to be a reference to: a) the non parole period of the sentence, in the case of a sentence for which a non parole period has been set, or (b) the term of the sentence, in the case of a sentence for which a non parole period has not been set." 34 It appears to me, however, that this provision is intended to take effect for the limited purpose of that section. Indeed, the fact that the legislature saw it appropriate to give a special meaning to the expression in this context tends to support the contrary interpretation which I favour. 35 That interpretation I observe also has the support of dicta in the case of R v Gangee [2001] NSWCCA 251 in the judgment of Sully J. His Honour was in the minority in that case but the proposition with which he dealt was not the subject of consideration by the other members of the Court. In his judgment, at paragraph 9, his Honour indicated that "the term of the sentence properly related to the overall sentence of imprisonment (that is what used to be called the head sentence)". 36 That view of his Honour's accords with the interpretation which I favour. 37 In any event, even if there were merit in the submission, it does not meet the difficulty that the suspended sentence was directed to commence at a time when the respondent was, by virtue of the backdating, to be taken as a matter of law, to be serving two other sentences of custodial detention for the assault and kidnapping respectively, of his wife. 38 Error of law has accordingly been shown in relation to this aspect of the sentence. 39 Independently and additionally I am persuaded that the sentence imposed failed to give sufficient weight to the objective seriousness of the offences, and that too much significance was attached to the emotional reaction of the respondent to being thwarted in the marriage, a circumstance that provided no excuse whatsoever for his behaviour.

ASSAULT OF RESPONDENT'S WIFE 40 The initial assault on his wife involved the respondent terrorising her by the sustained use of physical violence, in the presence of an equally terrified small child. It could not be characterised as a momentary or uncharacteristic loss of self-control, as his aggression continued until later in the evening and was accompanied by threats by him to kill his wife. 41 As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.

ASSAULT OF CONSTABLE WARD 42 Next, in relation to the 1999 matters, it has also been made abundantly clear by this Court that offences involving the assault of police officers, in the execution of their duty, are to be regarded as serious offences requiring a significant element of deterrence (see R v Stone (1996) 84 A Crim R 218; Myers NSWCCA 13 February 1990, and Nasif NSWCCA 10 March 1995.) 43 While it may be accepted that the actual injury sustained by Constable Ward was unintended, and somewhat freakish, there is always a risk of an officer being injured if he or she is subjected to actual physical force in an attempt to resist arrest. That the precise consequences were unexpected does not operate as an excuse, or as an answer, for such conduct. It may mean that the offender's objective criminality is somewhat less than it would otherwise have been, but nevertheless any such offence remains objectively serious. 44 The criminality involved in this assault was, in my view, such, notwithstanding the respondent's emotional state and his plea of guilty, that it was one that was inappropriately dealt with by way of a suspended sentence. 45 In that regard it also appears to me that it would have been appropriate for his Honour to have taken into account, in dealing with any offence, the matters included in the form 1. If that were the case then it was important that his Honour not overlook the principles enunciated by this Court when Hunt CJ at CL, in R v Morgan (1993) 70 A Crim R 368, stated that the fact that offences are taken into account does not mean that only very little by way of additional penalty should be imposed in respect of those matters, (providing, of course, that the penalty does not exceed the maximum penalty that could have been imposed had the offences not been taken into account). 46 The view which I have reached as to leniency of this sentence, is formed irrespective of whether or not it was the offence in respect of which the form 1 matters were included.

KIDNAPPING 47 Turning to the kidnapping, it is important to note that the available maximum penalty of imprisonment for 20 years, indicates the seriousness with which the legislature views this offence. 48 The kidnapping here involved sustained violence by the respondent who caused substantial injury to his wife and again threatened to kill her. Yet again this offence was carried out in the presence of their young daughter and in circumstances of great indignity, so far as the victim was bundled into the boot of a motor vehicle and driven off without any consideration of her safety, for the selfish purposes of the respondent. On any view it must have been a terrifying situation for her. 49 I observe there was some issue before his Honour at trial as to whether or not the respondent either had in his possession, or used a weapon in connection with this offence. The matter was left equivocal by his Honour when sentencing the respondent and the material before us does not allow us to reach a view one way or the other about it. The appropriate course, I believe, is to place that factor aside. 50 In the case of this offence, however, there were three significant aggravating factors which should have been reflected in the sentence: (a) This was not an isolated act of violence since the respondent was already awaiting trial for an earlier assault upon the same victim, that being an offence to which he ultimately pleaded guilty; (b) it was committed while he was on bail for that offence; a matter said in R v Readman (1990) 47 A Crim R 181, and repeated more than once by this Court -see eg R v Lardner NSWCCA 10 September 1998 to be a matter of aggravation; and (c) it was committed while he was subject to an apprehended violence order in relation to the same victim. 51 These circumstances, and the objective seriousness of the offence, in my view, inevitably required the imposition of a sentence which was accumulative upon the sentences for the earlier episode of criminality. Absent an accumulation the overall sentence failed, in my view, to reflect the elements of punishment and deterrence which were called for.

SPECIAL CIRCUMSTANCES 52 The finding of special circumstances was related to the fact the offence of kidnapping was seen to be a "by-product of the respondent's anger, frustration and disappointment in relation to the breakdown of the marriage and the imposition of an apprehended violence order". That finding was, in my view, unjustified in law. The special circumstances, of which the section speaks, are those which are related to the need to reduce the proportion between the head sentence and the non parole period, in most cases being referable to the need for an extended period of post release supervision, or for access to some form of treatment which is not readily available within the prison system. The purpose in each case is to foster rehabilitation and a lawful return of the offender to the community. (See Moffitt (1990) 20 NSWLR 114 and Silver (1999) NSWCCA 108. 53 It is not appropriate to give a double discount, by treating as special circumstances, those objective or subjective considerations which otherwise justify leniency in relation to the head sentence. See Kama (2000) 110 A Crim R 47, and Lett NSWCCA 27 February 1995, where Hunt CJ at CL said: "What constitutes special circumstances is something more than those matters which may be taken into account by way of mitigation of the total sentence. If it were otherwise, there would be no need for the adjective 'special' and no need for s 5(2) at all. Sometimes, the combination of those circumstances may be sufficient: R v GDR (1994) 35 NSWLR 376; 75 A Crim R 319 at 3-4. But what must be shown are circumstances which demonstrate the need or the desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole." 54 The result of these various matters was to produce an effective sentencing order which, in my view, did not reflect the objective seriousness of the total criminality involved, and in which the respondent's subjective circumstances were allowed inappropriately to outweigh the objective criminality of the case, contrary to the principles in R v Rushby (1977) 1 NSWLR 594 and R v Dodd (1991) 57 A Crim R 349

DOUBLE JEOPARDY AND DISCRETION 55 Notwithstanding the discretion which is properly reserved to sentencing judges, concerning the way in which they are entitled to treat the facts and circumstances of a particular case, (see R v Allpass (1993) 72 A Crim R 511) and that which is reserved to Courts of Criminal Appeal in relation to Crown appeals, the degree of discrepancy between the sentences which were imposed, and those which should have been imposed, in this case were, in my view, such that this Court should intervene (see Moffitt (1990) 20 NSWLR 114 at 129.) 56 It is, however, necessary to give proper weight to the principle of double jeopardy and to substitute, for those sentences which are set aside, sentences towards the lower range of those properly available (See Griffiths v The Queen (1977) 137 CLR 293, R v Warfield NSWCCA 24 June 1994, and Dinsdale v The Queen (2000) 115 A Crim R 558.) That has particular relevance in a case where the Court's intervention would have the result of returning an offender to custody, with the possible adverse effects that may have upon his or her rehabilitation. 57 It is also necessary to have regard to the additional material which was provided by the respondent in the form of two affidavits from his parents; in the form of reports from Dr Carne, from the Probation and Parole Service, as well as a document which takes the form of a victim impact statement, although it possibly goes beyond the usual reach of such a document. 58 It is necessary to do so because the Court must re-sentence in the light of the respondent's current circumstances (see Allpass). 59 The material from his parents tends to suggest the respondent has become more accepting of the need to avoid contact with his wife and child and that he has become somewhat more settled since being sentenced. The remainder of the material, however, places a substantial or qualification upon that view. 60 Dr Carne, in his report noted the respondent's reluctance and irritation at being required to revisit the matter. He expressed the opinion that his behaviour was consistent with that of a rejected stalker and, in particular, with that of a male with narcissistic personality traits, which he considered him to display. While Dr Carne did not consider him to be suffering from any form of mental illness, his personality he thought was such that he was still finding it difficult to come to terms with the loss of his relationship. As such he thought he would benefit from returning to work and undertaking suitably focused counselling. A further period in custody, he thought, may cause him to dwell on the breakdown of the relationship and to hinder access to appropriate counselling. 61 The Probation and Parole report evidences concern as to the extent to which the respondent has come to accept the situation or to gain any real insight into that offence. In particular it notes that he has rejected any approach that he be referred to specialist counselling. It also notes that he has asserted that he would never stop looking for his wife and he believes that someone must pay for what has happened to his life. The author of the report concluded that the respondent presented as a disturbed and angry man, who used threatening and violent language and whose expressions of revenge evoked concerns for his former wife. 62 These matters, I stress, do not justify preventive detention but they are relevant for an assessment of the progress which the respondent has, or has not, made towards rehabilitation, and also as to whether he has developed any real insight into his problems. 63 I find on the material available that his insight is limited and that his progress towards rehabilitation is limited. I come to this conclusion taking into account, in fairness to the respondent, on the other side of the coin, the fact that since his release on 20 April 2001 he has been subject to the restraints of a bond and parole order and has not re-offended in relation to his ex-wife. That circumstance does need to be understood in the context of the arrangements which have been made for her protection in consequence of which he does not know where she is living. 64 It is always difficult and potentially harsh, and this Court derives no satisfaction from the need to return offenders to prison, when Crown appeals against sentence are brought, for the reasons expressed in R v Tindle NSWCCA 8 October 1998 and R v Chad NSWCCA 13 May 1997. It is for this reason that the Court has cautioned, more than once in recent times, that sentencing judges who extend appellable leniency to an offender do not do them any favour: In that regard see the observations of Mason P in R v Horne (1999) NSWCCA 391 and of Grove J in R v Webster (1999) NSWCCA 313. 65 However, taking all those matters into account I do consider it necessary to allow the appeal and to re-sentence the respondent in relation to the offences of assault of the police officer occasioning actual bodily harm, and in relation to the offence of kidnap. 66 STUDDERT J: I agree. 67 BELL J: I agree. (Mr Craigie addressed the Court on re-sentencing and discussion as to a fresh form 1 being signed.) (The Court adjourned briefly to enable Mr Craigie to discuss the above matters with the respondent.) (On resumption Mr Craigie stated he had given advice. However, the respondent did not feel able to accept the advice and would not execute the form 1. In response to the Court Mr Craigie advised he had informed the respondent of the consequences of not signing the form 1. Respondent to be dealt with on the basis of sentencing for the two assaults without the form 1 taken into account.) 68 WOOD CJ at CL: Following advice given the respondent has declined to sign the form 1, with the consequence that he is not entitled to have the four offences of assault police taken into account when being sentenced. 69 For the reasons I have already given, and taking into account the matter just mentioned, I would propose that the Crown appeal be dismissed, so far as it relates to the sentence for the assault of the respondent's wife, that is the sentence of the six months imprisonment from 7 October 2000 to 6 April 2001, being a sentence already served. 70 I propose that the appeal be allowed in relation to the sentence for the assault of Constable Ward and that there be substituted therefor a fixed term of imprisonment for six months to commence from today. That sentence I would fix by way of an effective accumulation of six months upon the sentence for the offence of the assault committed against the respondent's wife. I would decline to set any non parole period for it by reference to the sentence I next propose. 71 I propose that the appeal be allowed in relation to the sentence for the kidnap of his wife and I would substitute therefor a sentence of imprisonment for two years and six months to date from today and to expire on 4 April 2004, such sentence to be served partly concurrently and partly cumulatively upon the last mentioned sentence. I would specify a non parole period of 18 months, similarly to commence today and to expire on 4 April 2003. I would direct the respondent's release, at the end of that period, on parole subject to supervision by the Probation and Parole Service and also subject to standard conditions prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 as well as subject to a condition that he undertake counselling in relation to his problems of anger management and in relation to such other problems, as might still be present, as directed by the Probation and Parole Service. 72 I specify that, in imposing these sentences, I have taken into account the pleas of guilty for their utilitarian value for which I conclude that he was entitled to a discount in the order of 15 per cent. 73 I find special circumstances exist, not for the reason found by Judge Mahoney, but having regard to the fact that now the respondent is to be taken back into custody, pursuant to the orders which I propose, he would need a longer period than that allowed by the statutory proportion for supervision, so as to ease his return back into the community. 74 I observe that the sentences which I have proposed are substantially less than those which I consider should have been imposed at first instance. This is a consequence of the principle of double jeopardy. 75 STUDDERT J: I agree with the Chief Judge at Common Law. 76 BELL J: I also agree. 77 WOOD CJ at CL: The orders of the Court will, therefore, be as I have proposed.

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