_R v Gambier_

[1]

Director of Public Prosecutions (Commonwealth) for the respondent

[2]

[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by A Lyons J. I agree with those reasons and with the order proposed by her Honour.

[3]

[2] CHESTERMAN JA: I agree that the application for leave to appeal against sentence should be refused for the reasons given by A Lyons J.

[4]

[3] A LYONS J: On 20 August 2007, Mr Gambier made seven phone calls advising that a bomb had been left in two nightclubs at Airlie Beach. On 20 March 2009, Mr Gambier pleaded guilty to seven breaches of s 474.16 of the Criminal Code Act 1995 (Cth), namely using a carriage service to send a communication with the intention of inducing a false belief that an explosive had been left at a place. Mr Gambier was 23 years of age at the time of sentence and he had a minor criminal history.

[5]

[4] Mr Gambier was sentenced to nine months imprisonment on each count, to be served concurrently. It was ordered that he be released after serving four months, upon giving a recognizance in the sum of $3,000, and that he be of good behaviour for a period of three years. He was also ordered to pay $3,000 restitution by 20 September 2009 to one of the nightclubs, 'Mama Africa's Bar.'

[6]

[5] Mr Gambier now appeals this sentence on the basis that it is manifestly excessive because:

[7]

(a) the head sentence imposed was at the top of the range suggested by the Crown Prosecutor; and

[8]

(b) the order for release on recognizance is set at a date to far into the head sentence.

[9]

[6] In relation to the seven phone calls which comprise the subject offences, six phone calls were made to the Whitsunday Police Station and one telephone call was to the mobile phone number of the manager of 'Evolution' Lounge Bar at Airlie Beach. All the calls were made from Mr Gambier's mobile phone. The first set of phone calls to the police related to claims by Mr Gambier that there was going to be a problem at a bar and café called Mama Africa's at Airlie Beach. The calls were recorded. The final phone call was made directly to the manager of Evolution Lounge Bar, which is across the road from Mama Africa's.

[10]

[7] The first call was made to the Whitsunday Police Station at 2.43 am. When Mr Gambier was asked how police could assist he replied, "I don't know. Mama Africa's. 3 o'clock. It's going to blow up."

[11]

[8] The second call was received at 2.51 am and in that call Mr Gambier stated, "You need to take me seriously. At 3.00 am, 200 people are going to die." When he was asked why he was doing this he stated words to the effect that, 'they needed to learn' and 'they are too heavy handed'.

[12]

[9] The third call was received at 2.55 am at the Whitsunday Police Station and the applicant stated, "Five minutes" and then hung up. The police by this time were in attendance at 'Mama Africa's Bar' and at around 2.57 am approximately 200 patrons were evacuated from the club. The club was then searched by police and security for suspect devices, but no devices were located.

[13]

[10] The fourth call was received at the Whitsunday Police Station at 3.00 am when Mr Gambier said, "What happens when you push one people from one club to another club?" The police indicated that they did not know. Mr Gambier said, "You walked right into it. Evolution's. Right into it." When police asked what was happening at Evolution Lounge Bar the applicant hung up. The police interpreted this call to mean that Evolution Lounge Bar, which was located on the opposite side of the road from 'Mama Africa's Bar,' was going to be the subject of concern.

[14]

[11] The phone call which makes up Count 5 was received at 3.05 am and the applicant stated, "Evolution's going now." When police asked him why he was going to blow up Evolution Lounge Bar the caller said, "Youse walked right into it. Didn't youse, hey. Pushed every one over there." When police asked what was going to happen at 'Evolution Lounge Bar' Mr Gambier hung up.

[15]

[12] The final call to the police was made at 3.09 am and in that call Mr Gambier said, "Dangerous games, isn't it, hey, leading people in there." When the police asked why it was dangerous, he stated, "Well, 80 plus people, you're going to have a lot of people that die when youse knew." The inference to police was therefore, that Evolution Lounge Bar was a source of concern. There were 80 people in Evolution Lounge Bar at the time. When the police asked how he was going to blow 'Evolution Lounge Bar' up he said, "Oh, it's already there. You've got to - you've got to keep your eyes open. Keep your eyes open, it's there." The police again asked how he was going to do it and he hung up.

[16]

[13] The final charge, which is Count 7, relates to a call made directly to the manager of Evolution Lounge Bar at 3.14 am. Mr Gambier stated, "Your club is about to go boom." The manager asked, "What?" Mr Gambier hung up. The manager was concerned for his patrons and staff. He rang police believing there was a serious bomb threat and he left his home and travelled to the club. No devices were located at the club.

[17]

[14] Mr Gambier was 21 at the time of the offences and 23 at the time of sentence. He had spent all of his working life in the security industry. Whilst he had been taking ecstasy at the time of the offences, he had attended drug and alcohol counselling at Ipswich and Moreton District Counselling and was drug free at the time of sentence. He was also in a responsible job, earning $60,000 per year and was in a new relationship, which had been ongoing for some nine to 12 months. His partner was also nine weeks pregnant. Mr Gambier was remorseful and accepted that his behaviour had caused substantial apprehension and fear and that police had actually evacuated patrons from the nightclub.

[18]

[15] 'Mama Africa's Bar' lost two hours of trade on the night and had a loss of $2,000. A takeaway shop also operated by Mama Africa's, lost $1,000 as a result of the threat, due to a loss of trade from the takeaway premises. There was therefore a total loss of profits for the evening of $3,000. Mr Gambier was able to pay and offered to pay compensation in the amount of $3,000.

[19]

[16] The maximum penalty for breach of s 474.16 of the Criminal Code (Cth) is 10 years imprisonment. The Crown submitted that one penalty could be imposed to cover all of the charges, that a period of imprisonment in the range of six to nine months was appropriate and that the applicant should be released on his own recognizance, having served a portion of actual custody of three to four months. The Crown prosecutor indicated that the seven individual calls were,

[20]

"prolonged, deliberate and escalating. It showed a clear knowledge of each venue and the numbers of patrons in each venue who were present at the time. The conduct was taken very seriously by authorities. They evacuated one premises. Both premises were searched by police and security personnel, and there was a search of property in those venues."[1]

[21]

[17] The prosecutor also noted that the calls came very early in the morning and had the potential to cause significant alarm because patrons would be wary of bomb threats in nightclubs because of international events. In all of the circumstances the Crown submitted that given the seriousness of the conduct, the impact it had on authorities and citizens and the comparative Queensland Court of Appeal decisions, the only appropriate penalty was imprisonment for six to nine months.

[22]

[18] In her submissions the prosecutor referred to the recent Court of Appeal decision in R v CAK & CAL[2]. This decision discussed sentencing under the Criminal Code (Cth), with respect to two offences of dishonestly obtaining a financial advantage by deception, and the prosecutor submitted:[3]

[23]

"That decision was handed down on the 20th of February 2009, and related to a significant fraud matter. It's relevant because it discussed the principle of dealing with Commonwealth sentencing and trying to maintain parity across the entire Commonwealth jurisdiction. It refers particularly to pre-release custody, and Justice Atkinson is of the few (sic) that Commonwealth offences should be in line with state and other status (sic) in Queensland, and other states and that pre-release custody should be in the range of 60 to 66 per cent. To achieve that-----

[24]

Your Honour, the principle I think is consistency. The principle is that that is the actual custody proportion that has been imposed across other jurisdictions and across Queensland for other offences, and for some Commonwealth offences such as social security fraud, the actual period of custody has tended to be more in the range of one third rather than two thirds. And it is the Court of Appeals few (sic) that for all Commonwealth offences there should be consistency in sentencing.

[25]

Having said that, your Honour, it is a matter where these offences may be something that is outside the ordinary range, and that sentencing principle of two thirds may not apply depending on the circumstances in the case. Your Honour, the difficulty we now come to is this is a matter that is routinely dealt with in the Magistrates Court, so I don't have Commonwealth comparatives for these offences."

[26]

[19] At the sentencing hearing, counsel for Mr Gambier did not cavil with a range of six to nine months imprisonment as the appropriate head sentence. Reliance however, was placed on the decision of R v Tobin[4], where similar threats were made in relation to alleged bombs at a Surf and Rescue Club. In that decision a sentence of six months wholly suspended for two years was set aside and a period of six months probation was imposed by the Court of Appeal. In that decision Fraser JA had indicated that "it does not necessarily follow, however, that imprisonment must be imposed for such offences in all cases." Accordingly, defence counsel submitted that an actual term of imprisonment was not required to be served due to the significant mitigating factors in Mr Gambier's favour. In particular, counsel relied on the fact that Mr Gambier was currently in good employment as the manager of a franchise called, The Australian Poker League, earning $60,000 a year. Furthermore, he was under some particular stressors on the night in question, as he had split up from his girlfriend of 12 months and his grandmother had died two days previously. He had also been drinking during the evening and had taken four to six ecstasy tablets with alcohol. Counsel relied on Mr Gambier's significant rehabilitation, good employment and the fact that he was drug free, as particular mitigating factors. He also indicated that it was extremely unlikely that Mr Gambier would offend again.

[27]

[20] In his sentencing remarks, the learned sentencing judge noted the relevant circumstances of the offences and also took into account Mr Gambier's age at the time of the offences and the fact that he had a minor criminal history. He also indicated Mr Gambier's personal circumstances, that he was affected by drugs and alcohol at the time and that he was extremely ashamed and embarrassed by his actions. His Honour however, stated:[5]

[28]

"On any view, anyone who would make a telephone bomb threat is engaging in appalling behaviour. In your case you made seven phone calls threatening the death of almost 300 people. The police quite properly took your phone calls seriously. Your actions were deliberate. You were aware of how many people were in those clubs because you'd been in at least one of them earlier that night. Your conduct certainly had the potential to cause serious alarm - and I would think that it would have caused serious alarm.

[29]

In light of recent international events, including the atrocity in Bali which killed a number of Australians, telephone bomb threats deserve extreme public condemnation and appropriate penalties from the court.

[30]

On each of the seven counts, you are sentenced to nine months' imprisonment."

[31]

[21] The applicant appeals against the sentence imposed on the basis that it was manifestly excessive because the head sentence imposed of nine months is at the top of the range of six to nine months suggested by the prosecutor. Furthermore, it is submitted that the order for release on recognizance, is set at a date too far into the head sentence. The applicant submits that, the learned sentencing judge erred in not giving sufficient weight to the mitigating factors, which should have been recognized by setting the release date earlier than at four months or 44 per cent of the sentence. Whilst counsel concedes that some mitigating factors were taken into account, it is submitted that some relevant mitigating factors were given insufficient weight, particularly the plea of guilty, the applicant's youth and his lack of relevant criminal history.

[32]

[22] There is an inference in the argument of the applicant that because there was a reference in the prosecutor's submission to a practice of requiring 60 to 66 per cent of a sentence to be served in some circumstances that this resulted in a manifestly excessive sentence being imposed. It is not argued however, that there has been an error in the sentencing process but rather that the sentence was simply manifestly excessive.

[33]

[23] The applicant submits that an analysis of the relevant authorities contained in the schedule supplied by the Crown at sentence indicates that an appropriate head sentence was six months imprisonment but that he should have been released upon giving security by recognizance in the sum of $3,000. The order for restitution is not disputed by the applicant.

[34]

[24] At the sentencing hearing, the Commonwealth prosecutor tendered a Schedule of cases involving telephone threats. A consideration of that Schedule indicates that six of the nine cases involved breaches of s 474 of the Criminal Code (Cth). Five of those cases had been dealt with in the Magistrates Court where the maximum penalty was two years imprisonment. In the decision of Kubik[6] a 42 year old man made three threatening phone calls to police, threatening to blow up Family Services at Wynnum and the Premier. He had a previous criminal history for like offences and was sentenced to nine months imprisonment to be released after serving a further three months with 12 months good behaviour and a recognizance of $2,000. It would appear that he had been in custody for some 10 days at the time of sentence. In the decision of Kroon[7] 10 weeks imprisonment was imposed in relation to one call by a 26 year old with a criminal history, indicating there was a bomb in the Lebanese Consulate. Those decisions therefore involved actual terms of imprisonment imposed in the Magistrates Court ranging from two and a half months to over three months where there had been a prior criminal history. In Adamson[8] three months imprisonment was imposed but the applicant was released after serving two days with good behaviour for three years and a recognizance of $3,000. In that case there was a call to 000 by the applicant where he stated that his mother was on a plane with a bomb which was in mid flight from Cairns to Brisbane.

[35]

[25] Whilst the 2005 decision of Milvic[9] was referred to on the Schedule, it does not involve a threat in relation to a bomb but rather a phone call in relation to a threat to rob a Subway store and is therefore factually different. The 2006 decision of Brelsford was also referred to but involved some 50 phone calls involving hoax calls and threats to kill a particular policeman and is also factually distinct.

[36]

[26] The 2007 Queensland District Court decision of Harper[10] was also referred to, where a 22 year old made three threatening calls to a child care centre where his ex girlfriend worked, indicating a bomb was going to go off in an hour. However, the applicant had significant psychological issues and whilst he was sentenced to concurrent terms of six months, three months and three months he was released forthwith with a recognizance of $500 and good behaviour for three years.

[37]

[27] Three decisions on the Schedule involved offences under the Queensland Criminal Code where the maximum penalty is five years imprisonment. Counsel, in particular, relied on the decision of R v Waugh[11] where an application for leave to appeal against a sentence of six months imprisonment with three years probation, with a special condition requiring psychiatric treatment was refused. In that case, the offender had made two calls during the day making threats against the Premier and these calls resulted in a 10 storey building having to be evacuated by workers. Reliance was also placed on the Court of Appeal decision in R v Mills[12] where three calls were made at night to police indicating that there was a bomb at a High School. In that case, whilst there was relatively little inconvenience as the applicant was apprehended quickly, a period of imprisonment of three months was imposed followed by probation for two years. In both those decisions the Court of Appeal emphasised the importance of general deterrence. The prosecutor had also referred the sentencing judge to the decision relied upon by the applicant of R v Tobin[13] where a period of imprisonment was not required to be served, however it was clear that the two calls made to police in that case were not in fact taken seriously as they were initially not understood by police. It was also clear that there was no real inconvenience to the public and that the calls had a nuisance factor only. On appeal, Fraser JA indicated that it was clear that:[14]

[38]

"the applicant's threats were so expressed that they did not induce any belief that there was a bomb. It was accepted that there was no apprehension of the potential for an explosion or harm of any kind."

[39]

[28] It is apparent from the sentencing remarks that the learned sentencing judge did not consider any of these authorities to be of particular assistance because he indicated:[15]

[40]

"I have considered the comparable authorities cited by both counsel but am firmly of the view that there are no features of this case which were present in some of the other cases where a period of imprisonment was not required. Yours to me is a very serious example of this type of offence."

[41]

[29] In terms of the level of offending an analysis of the Schedule indicates that the circumstances of these offences were such that the conduct was indeed a 'serious' example of this type of offence. It cannot be ignored that there were seven separate calls coming minutes apart which were designed to be taken seriously. The calls were indeed "prolonged, deliberate and escalating". Furthermore, some 200 people were evacuated and all the calls were calculated to cause alarm. As the learned sentencing judge correctly pointed out, in light of events in Bali a threat of a bomb in a crowded nightclub at a beachside resort at night would be taken very seriously indeed. Furthermore, the calls were menacing and calculating in that they implied the police had fallen essentially into a trap and had moved patrons into the path of the bomb. Mr Gambier then seemed to delight in informing police they would all be held responsible. Whilst it has been submitted that Mr Gambier was drunk and affected by ecstasy, he persisted in a series of planned and calculating calls despite his apparent intoxication.

[42]

[30] The essential issue is whether a sentence of nine months is considered to be excessive. At sentence it was conceded by counsel for Mr Gambier that the range was indeed six to nine months. An analysis of the Schedule cases indicates that factors which are considered by the courts to be particularly relevant are whether the threat was taken seriously, the inconvenience and distress caused by the threat, as well as the speed of arrest. In the circumstances of this case, the threats were taken very seriously as almost 300 people were evacuated, three businesses lost trade, police and security personnel conducted searches of two premises and there was great potential for alarm amongst patrons. I consider that the circumstances here indicate the learned sentencing judge imposed a head sentence which was within the proper limits of his discretion.

[43]

[31] In terms then of the period of imprisonment actually required to be served, counsel for the applicant on this appeal argues that no period of imprisonment was required to be served and that essentially the recognizance release order was sufficient.

[44]

[32] On this appeal, it would seem to be argued that because there was a reference to consistency in sentencing Commonwealth offenders and as there was a reference to some Commonwealth offences where 60 to 66 per cent is required to be served, that this caused the sentencing judge to impose a pre-release date too far into the head sentence. It is not submitted however, that there was any identifiable error in the sentencing process but rather the period of actual imprisonment was excessive.

[45]

[33] It is clear that the prosecutor gave an example of social security fraud cases, where the actual period of custody was not two thirds but rather one third. It is also clear that the prosecutor indicated that the sentencing principle of two thirds may not apply, depending on the circumstances of the case. In fact the prosecutor indicated a range of six to nine months, with release after three to four months, which indicates that a ratio of 44 to 50 per cent was in fact sought by the prosecutor.

[46]

[34] It is clear that the sentencing Judge imposed a sentence, which has a pre-release date of 44 per cent of the head sentence. What were the relevant sentencing principles which applied in this case?

[47]

[35] The offences in this case are governed by the sentencing principles in Division 2 of the Crimes Act 1914 (Cth), including the principle that imprisonment is a sentence of last resort as follows:

[48]

(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:

[49]

(a) shall state the reasons for its decision that no other sentence is appropriate; and

[50]

(b) shall cause those reasons to be entered in the records of the court.

[51]

(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.

(4) This section applies subject to any contrary intention in the law creating the offence."

[52]

[36] Section 19AC in Division 4 of the Crimes Act (Cth) then provides the circumstances in which a recognizance release order must be made rather than a non-parole period order.

[53]

"19AC When court must fix a recognizance release order

[54]

(a) a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

[55]

(b) the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

[56]

(c) at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

[57]

the court must make a recognizance release order in respect of that

sentence or those sentences and must not fix a non parole period."

[58]

[37] Accordingly in the present case, as the period of imprisonment imposed did not exceed three years, a recognizance release order was required to be made, unless the court decided that a recognizance release order was not appropriate, in which case the reasons for so deciding were required to be stated.

[59]

[38] These offences are not offences which are governed by s 19AG of the Crimes Act (Cth), which mandates that a non-parole period of at least three quarters be served in relation to offences specified in that section.

[60]

[39] However, there are important principles which operate in relation to consistency, which were discussed in R v CAK & CAL[16] by Atkinson J at [14]:

[61]

"[14] An important principle to be observed in this case is consistency in sentencing of Commonwealth offenders. As Keane JA observed in R v Tran [2007] QCA 221; 172A Crim R 436 at [8]: 'Gleeson CJ in Wong v The Queen said of the administration of criminal justice: "It should be systematically fair, and that involves, amongst other things, reasonable consistency." Where the system of criminal justice is enforced by the judicial power of the Commonwealth, State courts exercising that power should strive for reasonable consistency in the sentences imposed throughout the Commonwealth. That objective will usually require recognition of decisions of other States where those decisions concern like cases.'

[62]

[15] Matters that a sentencing court is required to consider and apply are set out in s 16A of the Crimes Act 1914 (Cth). Subsection (1) provides:

[63]

'In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.'

[64]

[16] Amongst the matters relevant to discounting the sentence which would otherwise be imposed in a case such as the present the court must take account of are 'the degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence' (s 16A(2)(f)(i)), the fact that the person has pleaded guilty to the charge (s 16A(2)(g)), the degree to which the offenders have co-operated with law enforcement agencies in the investigation of the offence or of other offences (s 16A(2)(h), and the prospect of rehabilitation of the offenders (s 16A(2)(n)).

[65]

[17] The recognizance release order was made in respect of the sentence imposed pursuant to s 19AC of the Crimes Act 1914 (Cth) which applies where a person is convicted of a federal offence and the court imposes on the person a sentence that does not exceed three years. The court in such a case is required to make a recognizance release order in respect of that sentence unless it gives reasons for not doing so. Section 16(1) provides that a 'recognizance release order' means an order made under paragraph 20(1)(b). Section 20(1)(b) provides that where a person is convicted of a federal offence, the court before which he or she is convicted may, if it thinks fit, sentence the person to imprisonment in respect of the offence. The court must direct, by order, that the person be released, upon giving security, with or without sureties, by recognizance or otherwise. The court must be satisfied that he or she will comply with conditions that he or she will be of good behaviour for such a period, not exceeding five years, as the court specifies in the order, pay any reparation, restitution, compensation or costs or pecuniary penalty ordered by the court and any other conditions set out in the order including orders in relation to supervision by a probation officer. The recognizance release order may be made either forthwith or after the offender has served a specified period of imprisonment in respect of the federal offence.

[66]

[18] The norm for non-parole periods and periods required to be served before a recognizance release order for Commonwealth offences is generally considered to be after the offender has served 60 to 66 per cent of the head sentence. The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation, but that is the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it. In this case taking into account the offenders' early pleas of guilty, by way of ex officio indictment, the past cooperation by the respondents, the payment of the loss sustained to the Commonwealth by the respondents and their apparent rehabilitation, the appropriate period before a recognizance release order was appropriate would have been towards the lower end of that range in the region of 60 per cent or after serving 21 and a half months imprisonment."

[67]

[40] In that decision, it is clear that Atkinson J was referring to similar decisions in relation to the particular Commonwealth offence of dishonestly obtaining a financial advantage, which was relevant in that case. In particular, there were similar decisions in other jurisdictions in Australia and consideration was necessarily given to the importance of consistency, in relation to sentencing for like offences.

[68]

[41] In the present case however, no truly comparable sentences for this Commonwealth offence in other Australian jurisdictions were referred to. In particular the prosecutor indicated as follows:[17]

[69]

"Your honour, the difficulty we now come to is this is a matter that is routinely dealt with in the Magistrates Court, so I don't have Commonwealth comparatives for these offences. I'll tender a schedule. It - it contains Magistrates Court sentences. There is one District Court sentence for this same offence."

[70]

[42] Clearly then, there were no Commonwealth comparatives and consistency with Commonwealth sentences was not a real issue and indeed the submission of the prosecutor at the hearing was that it was not necessarily the case that a sentence of two thirds or 66 per cent needed to be imposed.

[71]

[43] The recent decision of R v Mokoena[18] makes it clear that there is no rigid rule as to the proportion that a non-parole period should bear to the head sentence, except in drug cases. As Holmes JA stated[19]:

[72]

"[9] Section 19AB of the Crimes Act 1914 (Cth) requires the court, in respect of a person convicted of a federal offence for which a sentence in excess of three years is imposed, to fix a non parole period or make a recognizance release order, unless it decides that neither order is appropriate. The section does not provide any criteria by which the non parole period is to be determined. Nor are any parameters set for it, other than the requirement in s19AF that it not extend beyond the end of the sentence, as reduced by any remissions.

[73]

[10] At this Court's request, counsel for the respondent undertook to provide some information as to the practice of setting non-parole periods for Commonwealth drug offences at a point beyond the half way mark of the sentence. An examination of sentence appeals from other jurisdictions bears out the statement of the prosecutor below. ... It does not seem, however, that any similar uniformity has developed in respect of Commonwealth offences which do not involve drugs."[20]

[74]

[44] Clearly then a sentence requiring a pre-release period in the order of 66 per cent was not in fact required nor was it imposed. Rather a figure in the vicinity of 44 per cent was imposed. Was such an order manifestly excessive? The applicant argues that it was because Mr Gambier's age, plea of guilty and rehabilitation were not sufficiently taken into account.

[75]

[45] In this case the learned sentencing judge required a period to be served which was less than 50 per cent of the sentence imposed. Given the seriousness of the conduct his Honour obviously considered that a period of imprisonment was required to be served and he clearly considered the principles of general deterrence as outlined in the decisions of Waugh[21] and Mills[22] previously referred to.

[76]

[46] Whilst it was not argued in these specific terms, there seems to be an underlying argument that the applicant should have been entitled to a discount of at least one third. On appeal, counsel for the Crown referred to the decision of R v Robertson[23] as follows:

[77]

"[2] At the hearing of the application the applicant represented herself. She was unable to articulate any particular argument in support of her application, but she relied upon a written submission which was helpfully provided pro bono by counsel who had appeared for her at the sentence. One of those submissions was that the sentencing judge did not apply 'the usual allowance of one-third but rather increased that to something nearer 42%.' It was submitted that the 'usual' factors in mitigation 'entitled me to be released at the one-third mark in accordance with the ordinary approach'.

[78]

[3] I would reject that reasoning process, although in the end I agree that release after serving 12 months of a three year term is the appropriate sentence when all of the relevant factors are taken into account in this particular case.

[79]

[4] The applicant's submission referred to the quite common cases in which an offender's personal circumstances suggest an encouraging view of the prospects of rehabilitation and there are other factors in mitigation, such as a plea of guilty, remorse, and co-operation with authorities. In such cases, depending on the particular circumstances, recommendations for consideration for post-prison community based release or suspension of sentence are not uncommonly made after about one-third of the sentence has been served.

[80]

[5] It must be borne in mind though that most of those sentences were imposed in the context of a legislative regime under which (to put it broadly) in the absence of any more favourable order, prisoners were eligible to be considered for parole at the mid-point of the term of imprisonment imposed by the court. That remains the case for many sentences of more than three years imprisonment regulated by the Penalties and Sentences Act 1992 (Qld). In respect of those sentences it has been held that 'good reason' must be demonstrated before fixing as the parole eligibility date a point later than the mid-point of the term.

[81]

[6] To the extent that decisions establish ranges within which sentences are regularly imposed for similar offending, it is of course right to take them into account, but in the end the proportion which the period to be served in prison bears to the whole term is to be fixed by taking into account all of the circumstances rather than by some rule of thumb. The authorities do not condone, in any aspect of sentencing, some arithmetical approach under which a deduction is made from a pre-determined range of sentences: the sentencing judge is obliged 'to take account of all of the relevant factors and to arrive at a single result which takes due account of them all.'"

[82]

[47] In all of the circumstances of this case, I consider that the learned sentencing judge did indeed take into account all of the mitigating factors, whilst a greater allowance may have been made for the applicant's age, guilty plea and rehabilitation that was a matter of discretion. I do not consider that the sentence, as a whole, has been shown to be manifestly excessive.

[83]

[48] The application for leave to appeal against sentence is refused.

[84]

[1] Sentencing Transcript, 20 March 2009, p 12.

[85]

[2] [2009] QCA 23.

[86]

[3] Sentencing Transcript, 20 March 2009, p 9.

[87]

[4] [2008] QCA 54.

[88]

[5] Sentencing Remarks, 20 March 2009 p 4 ll 11-42.